(Free) access to articles on apps and on intermediaries

This month, the final versions of two of my articles have been published by Oxford University Press. OUP’s approach to copyright allows pre-prints to be posted on sites like SSRN, but for final versions, the author is supplied with a free-access URL instead. This link can be posted on personal or institutional sites (like this one).

(1) Daithí Mac Síthigh, ‘App law within: rights and regulation in the smartphone age‘ (2013) 21 International Journal of Law and Information Technology 154-186.

An earlier version appeared as a working paper, posted here. The final version includes the changes proposed by the editor and by peer reviewers (including some reorganisation and clarification of the core questions), as well as a small number of subsequent developments.

(2) Daithí Mac Síthigh, ‘The fragmentation of intermediary liability in the UK‘ (2013) 8 Journal of Intellectual Property Law & Practice 521-531.

This is now online for the first time. It’s a shorter paper (just at the upper limit of 7500 words for this journal, although they print in columns so it’s not too long when printed!), which started life as a talk and a briefing paper for events with legal practitioners. Subsequently, I wrote it up in more detail, and also added new material on the Defamation Bill (now Act) as it developed. Here’s the abstract:

It is argued that the system for intermediary liability (for mere conduits, hosts and search engines) is splitting into a number of different systems.

In the case of copyright, intermediaries (particular mere conduits) have new duties. However, regarding defamation (and to a lesser extent privacy), new schemes are reducing the liability risk of hosts – under certain circumstances.

The result is that the single system of the Electronic Commerce Directive is being replaced by a mixture of EU and national legislation, revived common law doctrines, and specific provisions for particular areas of law.

Recommended reading, 14-20 February 2013

News, blog posts, etc

Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about.  I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press.  I think both.  Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)

Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013).  Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson.  The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law?  If so, then the consent of the author of the target page may be necessary – but the consequences are significant.

Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ (News.com.au 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store.  Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here.  Original link via Slashdot.

David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector.  Also mentions the interesting issue of gambling and Diablo.

William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now.  I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist.  For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing.  Less obvious to me is why that opposition extends to the long-overdue proposals on parody.  Perhaps there’s just general opposition.  We’ll see.  Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..

Academic publications

Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013).  Fascinating attempt to measure the consequences of protecting (or not protecting) parody.  Via Rebecca Tushnet.

And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)

 

 

Recommended reading, 24 January – 6 February 2013

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

Recommended reading, 17-23 January 2013

Action!

Hacked Off would like your comments on its draft Leveson Bill.  Read all about it at this post on Inforrm. Comments by 15 February 2013.  It would be wonderful to see more of this type of engagement on the part of civil society organisations.

Academic publications

Matthias Kettemann, ‘The UN Human Rights Council Resolution on Human Rights on the Internet: Boost or Bust for Online Human Rights Protection‘ [2012] Human Security Perspectives 145. A short, well-referenced and very exacting comment on the ‘La Rue Report’ and associated documents on human rights and the Internet.

Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties. The first two chapters of this new book (forthcoming, Cambridge University Press) are available for download from SSRN.  Zick’s first book on speech and place is one of the most important contributions to the field of First Amendment studies of recent years; it was very useful when I wrote about similar issues in a European context and I read it with great interest.  So this new book is something to look forward to.

Lorna Woods, ‘Beyond Murphy, Films and Football: Audiovisual Content in Europe’ (2012) 4 Journal of Media Law 189 (£). A copyright-focused discussion sparked by the Murphy (Greek decoder cards in UK pubs) decision and its consequences, with a particularly interesting section on competition and video-on-demand (which is the theme of this week’s post, it seems).

News, blog posts, etc

John Tate, ‘Ensuring prominence for public service content as media converges‘ (About the BBC Blog 17 January 2013). A BBC report on ‘due prominence’ for public service media, on its way to Government but already the subject of interesting debate. A key issue is dealing with alternative forms of distribution (e.g. video-on-demand) and the future-facing yet very 90s issue of ‘portals’ – specifically, how to apply the type of regulation currently used, i.e. a ‘good’ slot on an electronic programme guide or EPG.  (When I was speaking about minority-language broadcasting in the UK recently, I was intrigued to see how a debate arose in relation to a point I had just mentioned, which was geographically-limited EPG prominence for Gaelic and Welsh broadcasters; some saw this as significant but others very much deemed it a legacy issue).

Eleonora Rosati, ‘The (low) cost of balancing broadcasting rights with the public interest‘ (IPKat 22 January 2013).  A note on the Court of Justice decision in Sky v ORD C-283/11.  The case is a human rights challenge to the ‘short extracts’ provision of EU broadcasting law, added in the beloved Audiovisual Media Services Directive in 2007, and now consolidated as article 15 of Directive 2010/13.  The rights cited by Sky (for that is who challenged the provision – and it was clearly the principle rather than any specific problem in the Austrian implementation or the specific incident) were property rights (EUCFR and ECHR) and the freedom to conduct a business (EUCFR). However, the Court of Justice comes down pretty firmly in favour of the Directive.

Dirk Voorhoof & Inger Høedt-Rasmussen, ‘Copyright vs Freedom of Expression Judgment‘ (ECHR Blog 22 January 2013). Another case note – this time with the added significance of being about a decision not currently available in English. The decision raises a number of issues on which the Court’s view has been awaited for some time, particularly the relationship between copyright and article 10 ECHR.  However, as the note points out, it is also important in terms of new technology more generally and the long-running issue on the status of commercial speech.

Fred Campbell, ‘What Does Netflix’s Decision to Block Internet Content Tell Us About Internet Policy?‘ (Technology Liberation Front 23 January 2013).  This is a link-rich update on a story that has developed during the week, on Netflix and how it is managing/negotiating peering.  While I’m not completely convinced by the author’s framing of the issue along the lines of his long-established opposition to net neutrality rules, the issue is a serious one – and how it is resolved may affect the direction in which VOD goes – the Netflix ‘model’ is interesting, and is being replicated outside the US in related but different ways.  (See earlier post here)

David Streitfeld, ‘Keeping the Internet Safe From Governments‘ (New York Times: Bits Blog 23 January 2013). A petition to propose the US not fund the International Telecommunications Union, in protest at its alleged attempt to regulate the Internet and suppress free speech.  (One wonders how (a) withdrawing support when you don’t get your way in debate and (b) not cooperating with other states so as to ensure that telegraph, telephone, satellite and data traffic can cross borders support this cause.  I’d be the first in the queue to criticise actions of intergovernmental organisations, but the demonisation of recent ITU debates is a road we have been down before, with UNESCO and other organisations; hopefully, calmer and more constructive voices will be heard soon.  (On the other hand, if you think I’m wrong, then the petition is here. Speech for all).

Recommended reading, 10-16 January 2013

Well, the first thing with a new series is for it to happen more than once. Here are this week’s recommendations. Two lists, one for academic journals/conferences and another for blogs, newspapers and similar.

Action!

The BBC Trust is reviewing BBC Online (and BBC Red Button). Questionnaire or online form. Closes 24 January 2013. All the details here. No doubt the usual suspects will be telling the BBC Trust that they would just love to invest in web content but sadly can’t do so until the BBC cuts back on what it does. But anyone can – and should – take part in the consultation.

Academic publications

Stefan Bechtold, ‘The Fashion of TV Show Formats‘ (working paper, ETH Zurich, November 2012). This is terrific – a 50-page, multinational tour of the law on formats (which is a really interesting topic in its own right – particularly when it illustrates the ability to ‘monetise’ inside and outside of copyright law as we know it. Clearly informed by conversations with industry and standing as a neat history of the sector as well as a legal analysis. Hopefully I’ll be teaching this topic on a course in 2013/14; the last time I taught it, the literature was lively but fairly thin. So this is an excellent addition, even as a work in progress.

Martin Robins, ‘A Good Idea at the Time: Recent Jurisprudence Under the Service Provider Safe Harbor in Section 512c of the Digital Millenium Copyright Act’ (2012) 15 Tulane Journal of Technology & Intellectual Property 1. The first half covers the cases that safe harbourwatchers will know quite well, but the second half is quite interesting, including an attempt to draft advice for service providers in response to the Circuit Court decisions.

M Heller, ‘The Tragedy of the Anticommons : A Concise Introduction and Lexicon’ (2013) 76 Modern Law Review 1 (£). A revised LSE lecture by Heller (author of The Gridlock Economy and indeed of the phrase included in the title). Has the splendid final subtitle ‘towards a non-squiggly language’, which is reason enough to read it. It’s a review (lit review, theoretical review, overview, as you wish) of the ‘anticommons’ problem (“when too many people own pieces of one thing, nobody can use it”) across a very wide range of sectors, including some of particular interest to me and perhaps to you, e.g. communications technology, patents.

News, blog posts, etc

Eric Goldman, ‘Top Ten Internet Law Developments of 2012‘ (Technology & Marketing Law Blog 11 January 2013). An annual fixture from Prof. Goldman and well timed for the start of the new semester. As well as the top ten issues, there’s a list of other issues and of interesting cases. Start rewriting your syllabi now…

Randall Stross, ‘Im Losing Money. So Why Do I Feel So Good?‘ (New York Times 12 January 2013). Stross (a consistently interesting journalist and author) has a piece on gambling, technology and psychology. It’s prompted by a new book, Addiction by Design. I picked this up from the new books shelf in the library just before Christmas, but haven’t made much progress on it yet. The article by Stross gives a nice peek into its key concerns.

Ryan Tate, ‘California Decides App Crime Is a Serious Problem‘ (Wired.com 13 January 2013). Well-written piece on two of the latest developments in the management of the app store – Apple’s action against an approval scam (get an innocuous version approved, then change the details afterwards) and the ongoing interest of the California AG in privacy and apps. (Plug: the final – and much improved – version of my app stores paper is published later this year; I’ve sent off the final version, so the next stage is proofs and then it goes online in the International Journal of Law & IT.

Campaign for Freedom of Information, ‘Crunch week for FOI in Scotland as Parliament debates coverage‘ (UK FOI Blog 14 January 2013). A preview of the discussion of new FOI legislation in Scotland (a Bill amending the existing Act), which took place on Wednesday. The legislation was passed, although the important arguments made by the Campaign (primarily on the application of FOI laws to those carrying out public functions under contract, looking for some automatic designation or better monitoring of the designation power) were, in the most part, not successful. A pity. The parliamentary debate is available here.

Simon Hattenstone, ‘Arsenal ticket protest ban yet another blow to football fans’ free speech‘ (Free Speech Blog 15 January 2013). You might have noticed the fuss over the cost of away tickets at Arsenal v Man City at the weekend (62!!), and the reaction of stewards and police to attempts to highlight the problems with this level of charging. Hattenstone rounds up the coverage of the various protests, tracks down a fairly unconvincing justification from a club spokesperson (insert shoddy defending gag of choice)