I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed [...]]]> D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.

The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?

Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.

Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.

As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to [...]]]> As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays [...]]]> The Federal Register has moved to an XML format. That has allowed Princeton’s Center For Information Technology Policy to be on the move once more. The new project is called FedThread. As the site puts it now that the Federal Register is in XML, “citizens [can] create new services that in turn provide value back to government. Kudos to the Government Printing Office, National Archives and Records Administration, and Office of Science and Technology Policy for making this all possible.”

What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays except for government holidays). So today’s documents include material about the Delaware River Basin Commission, Department of Education, Federal Communication Commission, Department of Health and Human Services, and the National Science Foundation proceedings. Actions regarding postesecondary education, rulemaking at the FCC, and pandemic influenza vaccines are apparently on the table. Go to this link for today’s full list.

In other words, rejoice, wonk and non-wonk, for you may can now see what your government is doing. In fact FedThread offers some rather great features including:

* collaborative annotation: Attach a note to any paragraph of the Federal Register; start a conversation.
* advanced search: Search the Federal Register (back to 2000) on full text, by date, agency, and other fields.
* customized feeds: Turn any search into an RSS or email feed, which will send you any new items that match the search query.

As I understand it, one can set up a search and receive updates about the topic. Policy makers, academics, and engaged citizens should take advantage of these features. It should allow one to see how the law is evolving and take action much more quickly than before.

One point for those who may confuse making a note with a comment. FedThread is not affiliated with the U.S. government. Notes appear on the FedThread site but are not part of the Federal Register. Formal comments must follow the proper procedures related to commenting on whatever particular topic upon which one wishes to comment. In addition, the notes are just that, notes of those who wnat to share their views about a topic. It should open debate and discussion, but as with many areas of the Web, one will have to sort between useful and irrelevant notes.

I am sure I will learn more from my colleagues here at CITP as the project moves forward. For now, I hope people enjoy the offering.

For those interested in “some of the driving principles behind the project,” this paper Government Data and the Invisible Hand is a good place to start. Last, I want to call out the people involved in building this project. Joe Calandrino, Ari Feldman, Harlan Yu, and Bill Zeller developed it. Calvin Lee at Princeton’s Student Design Agency handled the graphic design. Prof. Ed Felten and Stephen Schultze led the project. You can contact FedThread at info@fedthread.org.

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook’s Beacon: News Feeds All Over Again?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

* Facebook — the New DoubleClick?

* Facebook Listens and Responds

* Facebook’s Beacon, Blockbuster, and the Video Privacy Protection Act

A class action suit was initiated against Facebook, and recently, a settlement agreement has been reached.  According to the WSJ:

Facebook Inc. said Friday it settled a class-action lawsuit related to its Beacon Web product, a controversial service that displayed actions that users took on other Web sites back on Facebook.

As part of the settlement, which is pending approval [...]]]> A while ago, I wrote a lot about Facebook’s Beacon on this blog:

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook’s Beacon: News Feeds All Over Again?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

* Facebook — the New DoubleClick?

* Facebook Listens and Responds

* Facebook’s Beacon, Blockbuster, and the Video Privacy Protection Act

A class action suit was initiated against Facebook, and recently, a settlement agreement has been reached.  According to the WSJ:

Facebook Inc. said Friday it settled a class-action lawsuit related to its Beacon Web product, a controversial service that displayed actions that users took on other Web sites back on Facebook.

As part of the settlement, which is pending approval in the U.S. District Court of the Northern District of California, the social-network concern will shut down the Beacon service, which it has been phasing out but which is still being used by a small number of Web sites, according to a Facebook spokesman.

The company will also pay $9.5 million to create a foundation to fund products that promote online privacy, safety and security, the spokesman said. The settlement was submitted to the court late Friday evening.

Tiny bubbles In the wine Make me feel happy Ah, they make me feel fine

Those tiny bubbles Make me warm all over With a feeling that I’m gonna Love you till the end of time

The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble [...]]]> As Don Ho (and others) have sung:

Tiny bubbles
In the wine
Make me feel happy
Ah, they make me feel fine

Those tiny bubbles
Make me warm all over
With a feeling that I’m gonna
Love you till the end of time

The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble means Apple! Do the green bubbles qualify too? Yet again I am left wondering what’s a cubit and contemplating a drink with tiny, shiny bubbles.

So I leave you with Don Ho and Tiny Bubbles.

Tiny Bubbles – Don HO

“This is the new JuicyCampus,” says a note at Campus Gossip, which boasts campus-specific message boards for hundreds of colleges and encourages anonymous and racy barbs such as “These Fellas got herpes,” with a list of names attached. Going even further than its predecessor, there’s also a photo section where students can post embarrassing pictures and videos of others.

The site is planning a back-to-school marketing push, including a happy hour near Arizona State University where a rap artist named Sabotage will perform a song about the pleasures of campus gossip.

Another site, CollegeACB (the letters stand for Anonymous Confession Board), [...]]]> A while ago, the notorious college gossip website, Juicy Campus, bit the dust.  But according to an article by Jeffrey Young in the Chronicle of Higher Education:

“This is the new JuicyCampus,” says a note at Campus Gossip, which boasts campus-specific message boards for hundreds of colleges and encourages anonymous and racy barbs such as “These Fellas got herpes,” with a list of names attached. Going even further than its predecessor, there’s also a photo section where students can post embarrassing pictures and videos of others.

The site is planning a back-to-school marketing push, including a happy hour near Arizona State University where a rap artist named Sabotage will perform a song about the pleasures of campus gossip.

Another site, CollegeACB (the letters stand for Anonymous Confession Board), paid the defunct JuicyCampus $10,000 to redirect visitors from its Web address to CollegeACB.

For those who want a first-hand look at these sites, the Campus Gossip site is here and the CollegeACB site is here.  I’m quoted in the article, as is co-blogger Danielle Citron:

Internet shaming creates an indelible blemish on a person’s identity,” wrote Daniel J. Solove, a professor of law at George Washington University, in his 2007 book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). “It’s similar to being forced to wear a digital scarlet letter or being branded or tattooed. People acquire permanent digital baggage. They are unable to escape their past, which is forever etched into Google’s memory.” . . . .

“I don’t see why it has to be that way,” the law professor told me in a recent interview. “Just like when you drive, it’s not a free-for-all,” he added, equating the current laws governing online forums to a road without traffic lights or stop signs. “It’s like if we looked at the roads and said, There’s just nothing to be done—let’s just abolish all rules of the road.” . . . .

Danielle Citron, a law professor at the University of Maryland at Baltimore, said she hoped that stamping out harassment on campus-gossip Web sites would be considered a matter of civil rights.

She makes the case in an article published in the Michigan Law Review this year called “Law’s Expressive Value in Combating Cyber Gender Harassment.” In it, she argues that law-enforcement officials fail to take seriously complaints about online anonymous comments, and that using “civil-rights remedies” may be the most effective way to pursue such acts.

“Women should not have to wait until cyberharassment fulminates into physical violence for law enforcement to address it,” she wrote. “A civil-rights agenda … would demonstrate that the Internet is not the lawless Wild West, just as court settlements and state legislation made clear that the home does not insulate abusing husbands from societal intervention.”

In an opinion released on August 28, Judge George Wu struck down, on unconstitutional vagueness grounds, the prosecution’s attempt to enforce violations of website terms of service as crimes under the Computer Fraud and Abuse Act (CFAA):

[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use [...]]]> The Lori Drew case has finally been decided.  Background about the case is here.  In previous posts (here and here), I argued that the CFAA should be held to be unconstitutionally vague.

In an opinion released on August 28, Judge George Wu struck down, on unconstitutional vagueness grounds, the prosecution’s attempt to enforce violations of website terms of service as crimes under the Computer Fraud and Abuse Act (CFAA):

[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].” City of Chicago [v. Morales], 527 U.S. [41] at 64 [(1999)].

Congratulations to Orin Kerr, who assisted in the defense, and who is cited numerous times throughout the court’s opinion.

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google [...]]]> A model named Liskula Cohen was being attacked on a blog called Skanks in NYC.  The author of the Skanks blog was anonymous.  Kashmir Hill reports:

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.

Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.

CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:

CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.

The Skanks in NYC raises a lot of interesting issues.  I’ll tackle a few in this post.

1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity.  This behavior indicates she was using the lawsuit only to unmask the blogger.  I agree with CyberSLAPP that such a practice should be restricted.

2. Did the court properly reveal Port’s identity? I believe that the court used too low a standard in revealing the blogger’s identity.  The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.”  This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss.  While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers.  I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005) (I blogged about it here).

3. Does Port have a cause of action against Google? I don’t think she’s got much of a case.  Google was complying with a court order.  However, over at PogoWasRight, Dissent raises the interesting point that Google had a rather anemic defense of Port’s anonymity.  Could Google be liable for not doing enough to defend Port?  Maybe, as EFF attorney Matt Zimmerman notes in Dissent’s post, if Google didn’t notify the anonymous blogger and give her a chance to respond.  Beyond that, though, I’m not sure that there’s much of a case against Google, but there may be facts I’m not aware of that would change my opinion.

4. Does Port have a cause of action against Cohen for using the legal process to reveal her identity? A better defendant than Google might be Cohen.  Port may be able to sue Cohen, perhaps for abuse of the legal process, if Port can prove that Cohen initiated a frivolous action solely to unmask her.  The revealing of an anonymous blogger’s identity is a privacy invasion in my opinion, because it links speakers to things they said that they don’t want to be connected with their true identity.  The use of legal process and obtaining of a court order might provide shelter to Cohen unless Port could prove it was just a ruse to reveal her identity.

5. How should courts protect anonymous bloggers? In addition to using the summary judgment standard, courts should require a plaintiff who finds out the identity of an anonymous blogger to keep it confidential until it absolutely must be revealed to the public.  Courts should enforce this via a protective order. A lawsuit can proceed quite far before it is necessary to reveal a litigant’s name to the general public.

Moreover, plaintiffs should be prohibited (to the extent possible) from using unmasking the identity of an anonymous blogger as a bargaining chip in settlement negotiations.

However, in the end, if a blogger has anonymously invaded a person’s privacy or defamed that person, then the blogger should be held responsible.  I fully support a person’s ability to sue for privacy violations or defamation.  Anonymity shouldn’t be a shield for hurting other people and committing torts (or crimes).  The difficulty is in robustly protecting people’s First Amendment right to speak anonymously and preventing harm to people from invasions of privacy and defamation.

For more on the Skanks case, see this other post by Kashmir Hill discussing the rights of the Skanks blogger.

For more on the issue of blogging and anonymity, see also this story on CNN about the coming-out stories of anonymous bloggers.  I have a quote in it, and the reporter kindly linked to The Future of Reputation.

Over at the New York Times Bits Blog, Jenna Wortham writes:

According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.

The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)

According to [...]]]>

Over at the New York Times Bits Blog, Jenna Wortham writes:

According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.

The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)

According to the report, most employers did their research on applicants by using Facebook.  I wonder whether they respected the applicants’ privacy settings.  If the applicants limited the access of their profile to a select group of friends, and the employer accessed that profile, then the employer might find themselves at odds with the Computer Fraud and Abuse Act — with possible criminal penalties!

What leads to job rejections?  Photos!  Photos involving nudity, drink, and drugs are the most frequent job killers.

As I discuss in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, people must learn to be more careful about what they post about themselves and others or else they will face serious consequences and lost opportunities.

In an earlier post regarding college admissions officers researching applicants online, I argued that most lack guidelines for how they conduct such research and for how they use the information they find.  These questions also pertain to employers:

* Should such information be used? When?

* How heavily should it be relied upon?

* What kinds of things should negatively impact an applicant? Information about sex life? Drug use? Drinking? Bad behavior?

* What steps should be taken to make sure that the information was accurate?

* Should a distinction be made between information that people post about themselves and information that others have posted about them, perhaps invading their privacy without their consent?

* What steps should be taken to make sure that the information used in fact relates to the applicant and not to somebody else with the same name?

* Should people be notified that information online was used against them and be given an opportunity to be heard to explain it?

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated [...]]]> As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

This development has much significance.  It tells [...]]]> As I noted in a blog post late last year, Mark Zuckerberg, chief executive of Facebook, has predicted that “next year, people will share twice as much information as they share this year, and that next year, they will be sharing twice as much as they did the year before.”  He explained that “people are ever more willing to tell others what they are doing, who their friends are and even what they look like as they crawl home from a college party.  Recent statistics support his optimism (and then some).  Yesterday, Zuckerberg announced that his social networking site now has 250 million active users, up from 200 million users just three months ago and 150 million in January.

This development has much significance.  It tells us that social networking is no passing fad — it is deeply embedded in our daily lives and will likely remain so despite many parents’ dismay.  It suggests that we are more connected personally (and perhaps more distracted professionally).  And it means that we entrust Facebook with an exponentially increasing amount of data.  Facebook’s information security practices and privacy policies are thus worth watching carefully.  No doubt, this development will have other far-reaching impacts so your comments are most welcome.

Wikimedia Commons Image

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.” . . . .

Wu told Assistant U.S. Attorney Mark Krause that if Drew had been convicted of the felonies, he would have let the convictions stand, and would have already sentenced her. But the misdemeanor [...]]]> Judge George Wu has ruled that he is planning to dismiss the charges against Lori Drew, the woman involved in the MySpace suicide case involving Megan Meier.  Background about the case is here.  According to an article by Kim Zetter of Wired, who has provided terrific coverage of the case:

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.” . . . .

Wu told Assistant U.S. Attorney Mark Krause that if Drew had been convicted of the felonies, he would have let the convictions stand, and would have already sentenced her. But the misdemeanor convictions troubled him, because of the vague wording of the statute. . . .

To convict Drew of the felonies, prosecutors would have needed to prove two things: that Drew accessed MySpace “without authorization,” and did it for the purpose of committing a tortious act — in this case, to intentionally cause harm to Megan Meier.

But for the misdemeanors, the jury just had to find that Drew obtained the unauthorized access. Wu said that language, standing on its own, was too vague to pass constitutional muster in this case.

“I don’t see how the misdemeanor aspect would be constitutional,” he said. “That is the issue I’m wrestling with at this time.”

Wu also doubted that MySpace provided sufficient notice to members to hold them responsible. If a user didn’t read the terms of service, the judge asked prosecutor Krause, could they still be charged with violating them?

In previous posts (here and here), I argued that the CFAA should be held to be unconstitutionally vague.  I’m encouraged that Judge Wu agrees, though I believe the CFAA is unconstitutionally vague not only in its misdemeanor provisions, but in its felony ones as well.

Congratulations to my colleague, Orin Kerr, who assisted in Lori Drew’s defense.

The AP story is here.

The Wikimedia Foundation (WMF) has proposed that the copyright licensing terms on the wikis operated by the WMF — including Wikipedia — be changed to include the Creative Commons Attribution-ShareAlike (CC-BY-SA) license in addition to the current GNU Free Documentation License (GFDL). This will affect all text and rich media (images, sound, video, etc.) currently licensed under “GFDL 1.2 or later versions”. This change is meant to advance the WMF’s mission by increasing the compatibility and availability of free content. Further [...]]]> Slashdot reports that “The Wikimedia Foundation has resolved to migrate the copyright licensing of all of its wiki projects, including Wikipedia, from the GNU Free Documentation License to the Creative Commons Attribution-Share Alike 3.0 License. Here is the WikiFoundation site explanation for the change:

The Wikimedia Foundation (WMF) has proposed that the copyright licensing terms on the wikis operated by the WMF — including Wikipedia — be changed to include the Creative Commons Attribution-ShareAlike (CC-BY-SA) license in addition to the current GNU Free Documentation License (GFDL). This will affect all text and rich media (images, sound, video, etc.) currently licensed under “GFDL 1.2 or later versions”. This change is meant to advance the WMF’s mission by increasing the compatibility and availability of free content. Further details and motivation for this change are explained in the licensing update proposal and the associated FAQ.

There is a fair amount to unpack here. For example why use the phrase “in addition to”? It could be that this language is supposed to reflect a transition period such that old content may have legacy licenses under GNU and new material is all CC licensed. The background information on why change at all sheds some light on the issue, but there is enough to discuss that I will get to that in a post tomorrow. At bottom it is a big shift and indicates that CC may be better for sharing content.

Perhaps just as interesting is the process behind the change. The Foundation aired the topic for some time and took a vote. For “Yes, I am in favor of this change” there were 13242 votes or 75.8% of the total votes; for “No, I am opposed to this change”, 1829 votes, 10.5% of the total; and for “I do not have an opinion on this change”, 2391 votes, 13.7% of the total. The 17,462 total votes were cast and certified. This process reminds me of Dave Hoffman and Salhil Mehra’s paper Wikitruth Through Wikiorder in that the Wikifoundation seems to find ways to organize and direct a rather large and disparate group rather well. (The details of the voting process are set out here under Certification. They seem to track the paper’s finding that the system wishes to keep people in the system even if they misbehave.) Yet, the vote total seems quite small.

The site explains that suffrage was offered to “All users (excluding bots) who have made at least 25 edits to any Wikimedia project prior to March 15, 2009 are welcome to participate in this vote.” So perhaps there are not that many folks who have more than 25 entries or perhaps not that many chose to participate. Or it could be that the grand and glorious Wikipedia is run by around 17,000 people in total if one takes “run by” to mean 25 or more edits. (Wikipedia editors accounted for 16,785 or 96.1 percent of the vote.)

A quick glance at the stats pages for active users is not that helpful. If I am reading the stats page for active wikipedians correctly, as of 2006 (no idea why the English edits are not listed after that date) a total of 57,500 people were active with 5 contributions per month and very active wikipedians (100 or more per month) had a total of 7779. The new wikipedians (defined as Increase in wikipedians who edited at least 10 times since they arrived) is 17,437 as of April 2006 (again the data stops there). That number is awfully close to the total 17,462 certified votes. Given the gap in data it may be that one is seeing a leveling off in participation at the slightly active range. In addition, it may be that those who have put it in the 25 edits at anytime are engaged enough to vote with an astonishing participation percentage. So yet again there is more to learn about Wikiland and how it works.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the [...]]]> The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, Yahoo had not responded but the undesired advances from unknown men continued; Barnes again asked Yahoo by mail to remove the profiles. Nothing happened. The following month, Barnes sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return.

The court held, as expected, that Section 230 immunizes Yahoo from Barnes’s claim that it was negligent in removing the content.   This is in line with many courts that have interpreted the scope of Section 230 immunity.

The interesting part of the court’s holding involves Barnes’s promissory estoppel claim.  For non-lawyers, promissory estoppel is a doctrine that provides that when one makes a promise to another person, and that person relies on that promise, then the promise will be treated akin to a contract.  Ordinarily a contract requires bargaining and consideration, which are often lacking with mere promises.

Barnes contended that she relied on Yahoo’s promise to take down the tortious profiles and did not pursue other avenues of relief because of her belief that Yahoo would fulfill its promise.  The court held that Section 230 didn’t immunize Yahoo against the promissory estoppel claim as it had against Barnes’s tort claims:

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.

I agree with this conclusion.  Promissory estoppel and contract claims differ from tort claims such as negligence, defamation, or invasion of privacy.  Indeed, such claims are treated very differently under the First Amendment, with tort claims receiving full scrutiny and contract/promissory estoppel claims receiving virtually no scrutiny.  In a recent paper, Neil Richards and I discuss why First Amendment law takes such wildly divergent approaches: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).  We also argue that the line shouldn’t be drawn based on the formalist distinction between tort and contract, as this distinction readily breaks down.  For example, we conclude that the tort of breach of confidentiality should be treated akin to contract/promissory estoppel claims rather than tort claims such as defamation and public disclosure of private facts.

Back to the case.  One of the potential problems with the court’s holding is that it may deter ISPs and other sites from having an explicit policy for removing tortious material.  Yahoo could be penalized with potential liability and a loss of its immunity by having a removal policy.  An ISP or site that has no such removal policy and that would say “get lost” to people who request takedowns would not be subject to promissory estoppel liability.  Is it fair to penalize those who have such policies?

The court notes how its holding is limited:

[A] general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.

In other words, Yahoo is liable not because it had a general removal policy, but because it made specific promises to Barnes.

Eric Goldman argues that policies can readily be redrafted.  He notes that “websites can easily manage their potential exposure to this claim by picking their words carefully.”

I hope that the Ninth Circuit’s holding doesn’t result in various sites qualifying all their promises and weakening their policies in the hopes of avoiding liability.  One of the problems with situations faced by Barnes and others is that the websites and ISPs that have the offensive information posted about victims are often not in any customer relationship with the victims.   Barnes did not contact Yahoo for a regular customer complaint with its service — she was hurt by a Yahoo customer.  The removal policies at many sites and ISPs help people who are often non-customers.  There is no particularly strong incentive for such sites and ISPs to respond to such complaints as with customers who could threaten to leave.

The court’s holding, though correct, might encourage ISPs and sites to further attempt to hide under Section 230’s umbrella by weakening promises to take down harmful content.  And that’s a problem because the original goal of Section 230 was to encourage sites to monitor and take down offensive and hurtful content.  Now the law seems to be saying loudly: You have no responsibility to protect people from harmful content about them.  If you do nothing, then you’re not liable because of Section 230 immunity.  If you promise to protect people, then you might be liable.

This reminds me of Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995), where the court held that an ISP could be liable for content provided by another because it had a policy of monitoring content.  This was the very case that Congress wanted to overrule when it passed the CDA 230.

Ironically, the law of Section 230 immunity seems to have moved closer to Stratton Oakmont with the Ninth Circuit’s holding (of course, very significant differences still remain).  This isn’t the fault of the Ninth Circuit’s holding, which strikes me as quite valid.  Rather, it is due to the perverse implications of the overreaching interpretations of CDA immunity that most courts have now adopted, making such immunity near absolute for tort claims.

For further discussion of some of the other issues in the case, see Paul Levi’s post at Consumer Law & Protection Blog and Eric Goldman’s post at Technology & Marketing Law Blog.

“This problem comes not, paradoxically, from a lack of control. It comes from too much control.  Because the law allows the copyright owner to veto use, the copyright owner must worry about misuse.  The solution to that worry is less power.  If the owner can’t control the use, then the misuse is not the [...]]]> While reading Lessig’s recent book, Remix, I was struck by a comment in support of his argument that we should deregulate amateur creativity online.  One of Lessig’s suggestions is that if content owners have too much control of a copyrighted work, they potentially suffer more damage than if they have less control, particularly in terms of reputational issues.  In the context of describing Hollywood’s concern about reputation, he notes that:

“This problem comes not, paradoxically, from a lack of control. It comes from too much control.  Because the law allows the copyright owner to veto use, the copyright owner must worry about misuse.  The solution to that worry is less power.  If the owner can’t control the use, then the misuse is not the owner’s responsibility.” (p 257)

In other words, if everyone knows that anyone in the amateur playing field is free to remix copyrighted works in any way they like then no one will be confused into thinking that Warner Brothers supports a Nazi spin on Bugs Bunny.

I wonder if this oversimplifies some of the reputational issues, though.  In countries with moral rights, particularly those that don’t allow waiver of those rights, the concern is not just that audiences might be confused about the source of a remixed work.  Rather, it is that creators (as distinct from copyright owners of course)  should have some say in how their works are used both for purposes of attribution and integrity.  There is more to the equation than simple consumer confusion.

Additionally, given that courts are so prepared to find pretty much anything happening online as “commercial conduct”, I wonder if Lessig’s theory has a practical limitation in that he would exempt all non-commercial remixes of copyright work from a copyright infringement action.  However, this assumes that courts will not readily find an amateur remix to have commercial elements eg if distributed alongside click-through ads online and thus potentially encroaching on the copyright holder’s market to make money from click-through ads related to the placement of the work online.

In other words, I think there may be a problem here with the boundaries between trademark law and copyright law once one starts talking about exempting amateur remixes from the scope of copyright infringement, be it under fair use or otherwise.  If the concern is with reputation, isn’t there a significant possibility that the whole debate would move to trademark law and/or moral rights law (in countries where those rights are available and relevant)?  Wouldn’t copyright holders simply start asserting trademarks in specific aspects of the work that are used in the remix, and then claiming infringement (where there is a commercial purpose and perhaps a claim for “initial interest confusion”) or dilution (where there is no likelihood of consumer confusion any way you slice it)?

I’m not necessarily disagreeing with where Lessig is coming from, and I do think there should be clearer scope for amateur creativity online, but I wonder if the analysis in Remix isn’t a little overly simplistic.  In particular, I wonder if a better way to look at it is that raised by Jessica Litman in her recent article on Lawful Personal Use where she suggests that personal uses of copyright works may well be regarded as outside the scope of copyright law altogether.  This perhaps avoids the difficult distinctions between what is “commercial” and “noncommercial” use online.  However, even Litman isn’t talking about trademark law so that could still be a problem in the online context if coypright is pared back by the courts.