Archive for the ‘web2.0’ tag
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).
Jacob Rowbottom (late of Cambridge, now of Oxford) has written a fascinating article on ‘low level digital speech’. It will appear soon in the Cambridge Law Journal, but a draft is available on SSRN, under the catchy title of To Rant, Vent and Converse: Protecting Low Level Digital Speech. It’s a great read – and a very timely intervention in the debate on Internet regulation. This post is my personal summary of some key points along with some responses – for the author’s own introduction to the topic, see his post at the Inforrm blog.
The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so. For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed . [On libel - the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts. Actually, I'm optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]
From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech. This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech. Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 'third person effect' work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more. There’s also an intriguing argument about freedom of thought here, which I’m still chewing on. My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.
One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only. We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them. On that, the statute book doesn’t fare very well. The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.
I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003. Rowbottom is rightly critical of its use as a catch-all offence (p 8) and, more broadly, of selective prosecution (p 9). One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls). It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed. There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.
There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry. The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it. Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.
What will this article achieve? I’d suggest a couple of things. In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet. In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13. Indeed, the framework of high/low value could be capable of application in a variety of other contexts.
For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day). The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I'll be blogging about very soon, as I've just received my copy of his new book].
Here are some first thoughts on how the just-published coalition agreement (Fine Gael and Labour) in Ireland proposes to deal with issues of interest to cyberlaw and media law. I’ve picked out some key issues – no promises that I have covered everything. First copyright (and other IP), then broadcasting, then IT (broadband and cloud computing), then video games, and finally the Constitution. Your thoughts welcome. (Noting of course that this is not a government until the Dáil meets to nominate one!)
We will pioneer within the EU a model of ‘fair use’ in European Copyright Law, like in the USA, which effectively permits the use of portions of a copyrighted work so long as the normal economic exploitation of the originating work is not undermined. This will allow internet companies and other digital innovators to bring their services to market.
Ireland’s current legislation on copyright provides for specific fair dealing exceptions, such as regarding “fair dealing…for the purposes of research or private study”. This can be contrasted with the US ‘fair use’ test in section 107, setting out four factors to be considered: what in shorthand I still refer to as purpose, nature, amount and effect, although the tests themselves are more eloquent.
This proposal is similar to (but appears more committed to) the discussion in the November announcement of the Hargreaves Review by David Cameron in the UK. In Cameron’s case, specific reference was made to the suggestion that Google could not have set up in the UK due to the law on fair dealing – a claim that has been deconstructed by many since. The commitment here though also recognises that the current law in the EU is based on an extensive fair dealing approach (i.e. statutory exceptions, with Member States getting to pick and choose – parody, for example, is permissible as an exception under the directive but not found in UK/Irish law), and therefore a change away from exceptions towards US-style factors. If the UK does end up deciding in favour of fair use, then that’s two states lobbying for it. However, there are also some downsides (even from the point of view of facilitating innovate uses) of the US system – it’s still a bet whether the ‘unpredictable’ factors can end up broader than the ‘predictable’ exclusive exceptions.
We will develop a National Intellectual Property (IP) protocol to give predictability about the terms on which business can access IP created in Higher Education Institutions and the wider digital sector.
This is the old Bayh-Dole problem – who owns university-related IP and how does commercialisation happen? and has also been debated regarding ‘fourth-level Ireland’. A protocol might make sense although its existence doesn’t point one way or the other at this stage.
We will support the development of an International Content Services Centre to make Ireland world leader in managing intellectual property.
This one has been on the go for some time in Ireland – in the report on Technology Actions to Support the Smart Economy (available as .doc) (Damien Mulley’s reaction to the press conference remains worth quoting), as an International Innovation Services Centre in the 2010 report of the Innovation Taskforce, and not forgetting Neil Leyden’s successful Your Country Your Call bid.
We will review and update Intellectual Property legislation currently in place to benefit innovation, develop a National Intellectual Property protocol to give clarity about terms on which business can access IP created in Higher Education Institutions, and clarify legislation relating to online copyright infringement and enforcement of rights relating to digital communications.
As well as repeating the university and fair use points above, the last point refers to the current debate on ‘three strikes’, particularly the alleged lacuna identified by the High Court in EMI v UPC last November. As in the UK, how a Government can both extend and restrict the growth of copyright in a digital context will be fascinating to watch. If the intention is to facilitate emerging creative platforms and business models (through fair use), new powers to protect IP online may create new risks and threats. On the other hand, those who might welcome new legislation on online infringement could be concerned about how fair use would affect exploitation of rights, as we see whenever Google Books is debated.
We will examine the role, and collection of, the TV license fee in light of existing and projected convergence of broadcasting technologies, transform the TV licence into a household-based Public Broadcasting Charge applied to all households and applicable businesses, regardless of the device they use to access content and review new ways of TV licence collection, including the possibility of paying in instalments through another utility bill (electricity or telecom), collection by local authorities, Revenue or new contract with An Post. We will review the funding of public and independent broadcasters to ensure a healthy broadcasting environment in Ireland. We will maintain the current regime with regard to the Heineken Cup.
This is really it in terms of conventional media issues and that itself suggests a mixture of innovative (a public broadcasting charge, not associated with the ‘television set’ as TV licensing and radio licensing before it has been) and stand-still (nothing of any detail on public broadcasting, for example). Nothing on EU-wide issues in this case (as compared with copyright), except for the amusing reference to the Heineken Cup (the previous Minister had proposed listing these rugby events under the Major Events Directive but this (to my knowledge) has not been confirmed, so I read the reference here as meaning that this event will not be designated.
We will mandate the regulator to require all broadband providers to publish average speeds for each package.
We will restrict misleading advertisements relating to monthly caps.
We will introduce a new government rating system so that home owners and tenants can assess broadband facilities easily.
This is what we have on broadband. All sensible if not particularly dramatic.
We will make Ireland a leader in the emerging I.T. market of cloud computing by promoting greater use of cloud computing in the public sector, organising existing State supports for cloud computing into a package to promote Ireland as a progressive place for I.T. investment, establishing an expert group to address new security and privacy issues arising from the use of cloud computing and reviewing the adequacy of current legislation and identify what steps need to be taken to ensure a supportive regulatory environment.
Indeed, more on the cloud than on broadband suggests an interesting shift in the debate. The second half of this is more enduring than the first – a full review of the law on cloud issues, if properly mandated, could be an important piece of work for Ireland and for other states.
We will support our indigenous digital game industry by reforming R&D supports available to the industry, setting aside funding from Innovation Fund Ireland for a seed capital scheme for Irish digital gaming start-ups, introduce a digital media component to Transition Year programmes and promote Ireland as digital gaming hub.
Not particularly specific, but will this include tax breaks? Again, given the debate on this in the UK, we can see some positioning going here. For non-Irish readers: Transition Year comes between Junior Certificate (age 15) and Leaving Certificate (age 18, pre-university) study and often has more of a skills or employability focus than the general curriculum. Finally – I do not know exactly what the ‘digital gaming hub’ might be, but it sounds interesting…
Finally, a Constitutional Convention will consider various issues, including the removal of the constitutional reference to blasphemy (good) – and other unspecified issues, which might (or at least, I hope) include long-stalled reform of the law on freedom of expression.
Jo Glanville (of Index on Censorship) visited the University of East Anglia today, for an event organised by the UEA Law School and media@uea. These are my notes (started handwritten, typed up later, no direct quotes). For me, it was an interesting end to a day that started with a first year lecture (constitutional law) on the history of freedom of expression, as Jo’s talk focused on the future, with the title “The net effect: the limits of Internet freedom“. She started by introducing the work of Index on Censorship, including its development from a focus on writers and censorship to a particular present concern with policy and reform. In this context, the recent speech by Hillary Clinton – her second on Internet freedom – was interesting, not just for the vision it set out but also how it differed from the simultaneous attempt to subpoena Twitter in respect of user information pertaining to Wikileaks. Interestingly, this was discussed in the context of the link (rather than the opposition) between freedom of expression and privacy. Twitter had ‘stood up’ for the user in this case and had challenged a gag order, but would others do the same? Another example of an attempt to resist censorship was the proposed judicial review of the Digital Economy Act brought by BT and TalkTalk.
However, there are other moves towards interference with communications, such as the return of the wiretap/intercept/CALEA debates in the US. In this context, she paid particular tribute to the work of Chris Soghoian. In the UK, interception of communications seems to have returned as an issue with the Coalition (despite promises), and the future of RIPA (interception) remains unclear – a particular issue given that the number of warrants in the UK and the US appears to be the same per year, despite the different sizes.
Regarding use of the Internet, one thing to note from Wikileaks is the power wielded by the likes of PayPay, Amazon and Visa, particularly if they have been influenced by the US Government. In the UK, the DCMS is now discussing ‘blocking’ with ISPs (for legal pornographic content on the grounds of the protection of children), but this has many problems, such as who decides and what grounds. We have already seen the Wikipedia/Internet Watch Foundation problem of over-blocking in the narrower context of the current IWF remit.
Jo also discussed a range of issues in relation to the current protests in Tunisia, Egypt and elsewhere, including the role of technology in these protests and also the response of activists to the Clinton speeches, concluding with a discussion of the preference for building an open, neutral network that could be used by activists to speak, instead of specific US intervention.
In discussion, questions came from both staff and students from the UEA Law School, touching on behavioural advertising (including how information gathered for this purpose could be used by public authorities), the different roles of ISPs and websites (and how they may be supportive of Index campaigns in some contexts but not others, e.g. net neutrality, co-operation with Government), the relationship between Wikileaks disclosures, Tunisian unrest and demographic changes, the role of the Global Network Initiative and how it can or cannot serve to moderate behaviour, and the response of users to HADOPI in France, particularly the move towards circumvention as a response to control.
So. As I said, I only managed to make it to the second day of the fifth edition of Gikii, but it was a very full day, and shows the strength of the concept (there is definitely an emerging Gikii aesthetic!) and the wide range of contributors. I should say that my immediate impressions and various links are on my Twitter feed, and the tag gikii has lots of other views. This post has some remarks on my own session, some shorter remarks on the session I chaired, and some even shorter remarks on the final session of the day. Don’t forget that you can download most of the presentations from both days at this link.
Having arrived from Dublin the night before as part of a triangular journey (Stansted-Dublin, Dublin-Edinburgh, Edinburgh-Stansted), I was first up on Tuesday morning with my own presentation. This time around, my topic was What We Talk About When We Talk About Google (or WWTAWWTAG as it is in my notes). The idea for this presentation came from earlier (and as yet, incomplete) work on the Google Books case, and how it seemed to come at a time when Google’s treatment by politicians, NGOs and academics was in a state of flux. Google is also involved in some of the most controversial media and technology policy issues on the table right now, everything from net neutrality to privacy. So it seemed interesting to dig a little deeper. My presentation (which you can download here as PDF) was therefore an attempt to explore the question in the title in a number of different ways. For example, I looked at the ways in which both courts and parliamentarians in the UK refer to Google – and compared that with a sample of news coverage, finding not just some differences (with the parliamentary discussion still focusing on Google as a general resource for search) but also some interesting internal differences within the media (in this sample, the Daily Mail / Mail on Sunday got very upset about Google Street View). I also illustrated the different faces of Google through various parodies/cartoons produced by others, and talked about the various friends and allies that are found in Google’s public policy activities, and the result in the Viacom case. I do hope to do some more detailed work on this, as it was more interesting (to me, at least) than I had thought. Curiously, it also drew quite a lot of good laughs, with Ray Corrigan giving it a joint comedy award. This is not my usual territory. I don’t think my students would write ‘stand-up comedian’ on their feedback forms.
Luckily, the following presenter, Trevor Callaghan, had genuine claim to the comedy tag, with a discussion of Google and social networking. It was a really through and unquestionably unprintable exploration of the topic, made more lively by the use of Prezi and diversions into broader issues of data, identity and privacy. It’s really interesting how he was able to get a sense of what Facebook’s business and cultural models are, and how they differ from other players often grouped alongside them. The final presentation in that morning session was another Gikii serial offender, Andrea Matwyshyn. Her presentation looked at issues of authorised access, with a particular focus on the US Computer Fraud and Abuse Act (CFAA) and similar legislation. Her key arguments were the divisions between criminal and civil issues (in particular, the role of contracts and terms of service), and she mentioned a number of key US decisions (such as the Lori Drew case and Register.com v Verio) and the problems stemming from then, including a pretty obvious circuit split (e.g. the difference between IAC v Citrin and LVRC v Brekka). She questioned the purpose of the CFAA and other legislation and whether it was meeting its aims.
The second session had yours truly in the chair, and it included a range of papers on the broad theme of intellectual property:
- Steven Hetcher, “Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright’s Relevance“. Steven’s talk (from a US point of view) considered the ‘discrimination’ against forms of contemporary art that, being ‘unfixed’, are not within the common concept of copyright law as based on fixation. In some cases, the work is the process, with no fixed object … although if unfixed art is to be protected, does this raise questions of artistic merit as an alternative mechanism for delimiting the reach of copyright? With a wide range of slides (including a Damien Hirst shark sighting), there was also time to talk about Christopher Lowry’s work as discussed in Satava v Lowry, a 2003 case.
- Gaia Bernstein, ”Disseminating Technologies“. This paper was an attempt to go beyond the rhetoric of ‘IP wars’ and to discuss the acceptance and dissemination of new technologies. It builds on the author’s recently-publisehd work on innovation (e.g. here). She traced the differences between approaches to technology in the cases of copyright and patent, and the interaction of both with competition. She put forward an argument that the user’s role was not given the treatment it deserves, and subsequently pointed to a number of situations of market failures where (due to network effects or the importance of time) specific intervention was necessary. Really interesting stuff, and bonus points for talking about Minitel.
- Christopher Lever, ”Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing“. The third paper used some very creative metaphors and images that were both botanical and big-screen (Citizen Kane), with an introductory discussion of the future of newspapers and journalism and the relevance of fair use and fair dealing giving way to a critique of the failings of DRM and a thorough analysis of the work of Ozlem Uzuner on digital fingerprinting and unique expression.
- Chamu Kappuswamy, “Dancing on thin ice – Discussions on traditional cultural expression (TCE) at WIPO”. The final presentation in a very busy session. Her presentation provoked a lively online and offline discussion on what constitutes TCE in a British or Scottish context, but also offered some valuable points on differences (even where in apparent agreement) between the approaches of UNESCO and WIPO and between traditional knowledge (often patent-related) and cultural expression (often copyright-related), and the links between international legal efforts regarding TCE, folklore, and intangible heritage.
The afternoon session included an even wider range of presentations. Simon Bradshaw & Hugh Hancock talked about (and created live before our very eyes) the prospect of interesting legal issues pertaining to machinima, suggesting that the ease with which this type of audiovisual work can be created will continue to be a fertile one for legal action and academic analysis (not least the prospect of issues around new provisions in the Crime & Policing Act 2009). Ren Reynolds (with Melissa de Zwart, who wasn’t able to join us in person) talked about online games, statutory regulation of such in Korea, analogies (and case law) from physical sports like rugby, and the relationship between the rules of the game and other laws and rules, and the contract/license distinction. The last presentations zoomed out and looked at developments across disciplines: Abbe Brown (presentation here) reviewed the various issues, forces and actors in Internet governance and international cooperation (highlighting different approaches and parallel debates), while Michael Dizon (presentation here) presented a post-Lessig/(Andrew)Murray analysis of ‘the network is the law’.