:Information Law and Policy Spring 10

In the news: RightSignature signs Farmers insurance as a client. RightSignature allows users to enter an electronic signature–or a graphical representation of their handwritten signature–into a system. (Contrast with a digital signature, which is cryptographic.) As it turns out, there are several companies that perform similar functions: EchoSign and DocuSign, for instance. One would speculate, given the apparent market for such products, that a digital signature would be legally important. But what is the meaning of “signing” in a digital age?

Remember cases like [ProCD, Inc. v. Zeidenberg] and [Mortenson v. Timberline]? In general, the legal standards for accepting a legal signature are quite low: a checkbox on a website can be legally binding, for instance, and this is recognized across the country. (Some exceptions include fine print issues where user intent to sign is not clear.) Many federal and financial web sites additionally require users to type out their full name as a signature.

But consistency in the law seems lacking. From what I have been able to ascertain, it appears the legal status of electronic signatures varies from state to state. In Delaware, for instance, Section 107(a) of the Uniform Electronic Transaction Act notes that “[a] record or signature may not be denied legal effect or enforceability solely because it is in electronic form.” (To see this play out in the Fifth circuit court, see Berger v. Newhouse and USA v. Rios-Espinoza.)

In Louisiana, the Uniform Electronic Transactions Act “allows electronic signature to satisfy the signature requirement for most legal documents”, although the act only applies to transactions between parties who have “agreed to conduct transactions by electronic means”. (See EPCO Carbon Dioxide Products, Inc. v. JP Morgan Chase Bank, NA.)

Where does this leave us? It seems the law is unclear, and varies from jurisdiction to jurisdiction. Perhaps, before doing business, you should just consult your lawyer. Or… just make sure you get it in writing.

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There seem to be a major overhaul of intellectual property laws in India.  And these amendments are bound to pester lot of DRM/DMCA proponents. According to the proposed changes “fair use” seems to have broader definition (when compared to USA) and as long as there is no intention to infringe, it’ll be considered as legal. Furthermore, the usage of tools like DeCSS for personal use is also legal.

Link to the article published on arstechnica: http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars

It would be interesting to see how DRM proponents react to these changes since these amendments are contrasting to what we have in the USA or most of the western world. Secondly, it raises the questions of “priacy”. In  country like India where piracy is rampant, should it have an easy IP laws like these or much more stricter to clamp down the piracy.

However, these amendments give significant latitude to people who are looking towards some non-commercial personal/educational use. Current IP laws in US have very narrow definition of fair use. As we have seen in the class, under DMCA circumvention is unacceptable for any type of use. Ars Technica published another excellent article titled “Can we have fair use without fair use technology?” that debates about broadening the definition of  “fair use” for non-commercial personal and educational usage.

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http://www.wired.com/images_blogs/threatlevel/2010/05/limewireruling.pdf

The court ruled that LimeWire intended to “induce infringement” because:

(1) The massive scale of infringement committed by LimeWire users

(2) LimeWire knew about the massive scale of infringing users on their network

One item that was interesting to me was that the court determined that LimeWire’s response to the massive scale of infringement to be insufficient. There were company papers acknowledging the mass infringement, but also strategic plan to convert infringing users to customers of LimeWire’s online store (which would sell authorized music). It seems interesting to me that the strategic plan for conversion did not protect LimeWire and the court implies that knowledge of infringement along with insufficient response may place companies liable for infringement of copyright.

Additionally, the court ruled that LimeWire’s advertisement campaigns incited copyright infringement. However I think that these ad campaigns were very different than the slogans used by Grokster and Napster. In the previous cases, advertisements explicitly stated the copyrighted materials that could be downloaded (ie: the top 10 songs on the network etc). However, in the case of LimeWire, campaigns were designed to advertise the technical functionality of the application: “free music downloads”, “excellent for downloading music files”. Where the company faltered was in associating themselves with other infringement fostering programs (Napster, Morpheus, etc), however the there were explicit advertisements marketing LimeWire as a way to obtain copyrightable material for free. This is interesting because it is placing more pressure on companies: marketing of their products could be used against them if  interpreted as promoting illegal activities.

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Most recently in the heated privacy controversy that surrounds Facebook, Information Week reports that two new features have been added to improve privacy.  Both tools are focused on preventing unknown machines from logging on to your facebook account.

See here: http://www.informationweek.com/news/storage/data_protection/showArticle.jhtml?articleID=224800027&subSection=Privacy

However this seems to entirely miss the point, and not address any of the privacy concerns related to user’s personal information and interests. In the US, 4 Senators have asked the FTC to develop guidelines governing the way social networking sites can handle user information, and I seriously doubt this latest move will get Zuckerberg many brownie points.  However Facebook really needs to start taking these privacy concerns seriously or they may find their users flock to Diaspora* in the Fall… (eh, maybe not).

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itwofs.com – chronicles of plagiarism in Indian music, is a popular website among Indian film music aficionados. At times, the author of the website accuses and mocks music directors for blatantly copying and at other times the same author appreciates a music director for being inspired by some music, listen to the samples here – as a bonus you get introduced to Indian film music! What really interests me is how he makes this decision, I have to admit that there are times when it is blatantly clear, at least to me, that a particular work is copied or inspired, but I find it difficult to put this natural cognitive decision on whether something is inspired or copied into a set of rules, so as to make a law out of it.

In this blog post, inspired by this website and the recent surge in patent suits concerning smart phones, I look at the concept of “derivative work and copyright”, first from a musician’s point of view by considering two musical examples and then applying it into what might turn out to be a frivolous patent suit filed by Apple against HTC.

In 17 U.S.C. § 101, “derivative work” is defined as:

A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

From Feist vs Rural, we understood that a derivative work must show some originality to not have violated copyright.

According to the derivative work definition, a musical work that is based upon a pre-existing musical arrangement is a derivative work. Suppose, if I take the famous song “My Heart Will Go On” from the movie Titanic and remove Celine Deon’s voice and replace it with another singer’s voice and sell it in a local musical market in India – such things happen by the way, then I have obviously derived from the original work and have blatantly violated copyrights.

However, things get slightly murkier if I put a North African Kora in place of Celine Deon’s voice, is it derivative ? according to the definition it is, but as a composer I might feel that it is my creative genius that lead me to associate a relatively unheard of instrument like the Kora (btw, it does sound great !) within a completely different context. Therefore, It could be argued that though I derived, I didn’t violate copyright(or did I ??). But from a musician’s point of view, especially James Horner the composer who composed this song, this sounds absurd as the melody, harmony and so on are all the same, just that the timbre has changed.

Sidetracking, suppose if I build a touch interface which can differentiate between a single finger touch and a two fingers touch and use it to build a drawing instrument, have I violated Apple’s patent ? Apple has sued HTC for something similar, but drawing parallels with the above mentioned musical example, can it be argued that though I derived, I was creative in using the touch interface for something different ? like how I used the Kora ? will Steve Jobs be happy ???

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Each new decade is a genesis for its own consumer and technology trends. During the 2000s mobile cemented its place in the global society fabric and its use became addictive and pervasive across all classes of people. With greater than 2.5 billion subscribers, the mobile phone dwarfs every other media platform. The reach is greater than TV, the effectiveness is stronger than print and the targeting is more precise than the Web. The mobile phone is a personal, interactive device that is always on and engaged throughout the day. It’s the first one ever in the history of the planet that people go to bed with. It’s ubiquitous across the world, across demographics and age groups. People are giving these devices even to younger children for safety and communication.

Innovation blossomed and now mobile devices have evolved to full-scale Internet-enabled mini computers. Mobile has also become the ultimate ad vehicle. The unique features of handheld devices, including their mobility, personalization and location-awareness are luring the advertisers to move from print, Internet, TV, radio to mobile. With 3G, rich media advertising like video & audio ads, are becoming a viable proposition and gaining popularity among a critical mass of mobile users. The possibilities for ad placements are just as vast in the mobile space as they are on TV (voice, SMS, MMS, WAP, Applications, browsing). Mobile advertising (used as ‘m-advertising’ hereafter) is branded as a win-win proposition for all the stakeholders including consumers, brands and telecom operators. Customers can avail a variety of services and products, including ringtones, games, chat services, mobile discount coupons, customer promotions, and location-based services. So where is the catch?

Many mobile advertisers are eager to exploit what they correctly perceive as a unique opportunity to target consumers with advertising by taking advantage of our highly personal relationships with mobile devices in order to generate more consumer response. While mobile marketers and operators may claim they have respect for privacy and user control, they are well aware of the tremendous advantage they enjoy with consumers’ private information.

m-advertising practices including behavior targeting, location based targeting, mobile analytics, data-mining which enable the advertising firms to capture highly personal and private information, consumer behavior and characteristics. These include spending patterns, location, availability, interests (through browsing habits), social status as well as demographic data. This information is available across a range of different systems, but is being consolidated by effective mobile advertising platforms to generate ‘user footprints’ or ‘user journey’. It further creates a risk, as consumers’ personal data will increasingly be the focus of data aggregators. Advertisers, mobile carriers and other third parties are now able to combine consumers’ personal data, the digital content of their electronic communications, their geographic location information with other miscellaneous data available in databases, thus creating larger consumer profiles with large associated privacy implications. Many a times, mobile user is not aware that such profiling is occurring. In addition, the perceived benefits of m-advertising are enticing people to abandon privacy to a certain degree by sharing their personal information. Hence consumers are subject to a growing number of unfair mobile advertising technology practices resulting in killing of privacy; consumers are also getting deceptively motivated to give up their privacy.

Applicable – http://www.ftc.gov/privacy/privacyinitiatives/promises.html

Good Read if you are interested in mobile and piracy — http://www.democraticmedia.org/current_projects/privacy/analysis/mobile_marketing

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I’m a regular reader of Nicholas Carr’s blog (who, by the way, is not as stupid as he claims Google has made him). One of his blog posts last year is marginally devoted to the steady decline of Second Life. Nick Carr argues somewhat strangely that Second Life has failed because the internet as a whole has apparently become a virtual reality; one that we replaced our actual reality for.

You might ask yourself what that has got to do with Information Law and Policy. The interesting part with that blog post is that only about 150 words of the 1,500 word text are written by Nick Carr himself. The rest is an excerpt from “Tlön, Uqbar, Orbis Tertius”, a story by Jorge Luis Borges, our good friend from the very first 202 lecture.

While Borge’s story is entertaining (and as usual a little weird), the use of such a large excerpt raises questions how far bloggers can reuse content under “Fair Use”, as one commenter points out:

[Nick, …] Perhaps, charitably, you left out the “Reproduced with Permission” tag?
Or do you believe your reader base would consider this “quotation of excerpts in a review or criticism for purposes of illustration or comment” or “quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations” under Fair Use?

Nick Carrs answer:

I am hoping this would qualify as fair use, as my intent is not just to quote part of Borges’s story but to encourage readers to see its relevance to our own time. […] To me, that’s the essence of the fair use protection. […] I tried to shorten it at one point, but it lost the imaginative richness of the original.

That answer, as much as I like Nick Carr’s Blog, rather describes Fair Use as a general idea than as it is defined in the legal context. This is, as we’ve learned, a common misconception.

Let’s try to recall the factors that determine whether the reuse of a copyrighted work falls under Fair Use or not, as listed in 17 USC, §107

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Nick Carr’s blog is free to the public. However, let’s face it, he also tries to sell his books, the newest of which will be released in June this year. That pretty much renders the nonprofit argument useless. Furthermore, Carr used a substantial share of Borge’s story for his blog post, approximately 20% according to one commenter.

Although I’m not implying that Carr deliberately infringed on Borge’s copyright, it’s not clear whether Fair Use applies to that type of reuse of another person’s work. Nick Carr, as most people, have no clear definition of what Fair Use actually is, yet many people claim that their work falls under Fair use.

Jorge Luis Borge’s story has been published in 1940, and copyright for this work might have already expired. In which case Nick Carr might be off the hook.

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Another article in the NY Times yesterday dealing with Facebook and privacy. Four students at NYU are fed up with Facebook and other centralized networks that flout user privacy. They are building Diaspora, touted as a personally controlled, do-it-all, distributed social network that will be open sourced. Based on the response–and funding–they’ve gotten, it seems many others are also desperate for social networking they can fully control without the tradeoff of surrendering personal information to large networks and central warehouses.

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It’s a bit old now, but I was a bit surprised that no one on the blog has mentioned the mass removals of Hitler Downfall parodies on YouTube (although I think it was mentioned on Noise). For the uninitiated, this is a meme involving modifying the subtitles in a scene from the movie Downfall, where Hitler is angrily ranting at his flunkies. He’s gotten very angry over things ranging from the faulty hardware on his XBox to the choice of Sarah Palin as John McCain’s running mate. There are (were) hundreds of these parody videos on YouTube, the first of which appeared in 2006, with many of them reaching hundreds of thousands of views. On April 20th, Constantin Films, which owns the copyright for the original movie had YouTube remove many of the videos.

When I first read about this story, I had (like many other initial reporters) assumed that DMCA takedown notices were sent to the creators of these parody videos. Perhaps like Lenz v. Universal, the parody video creators would then file a counternotice. However, it seems like a different process was actually used, with YouTube using software called “Content ID”. This technology automatically removes videos containing copyrighted content (based on some sort of audio/video signature within the file), regardless of if the video contains elements that make it a noninfringing use (like Fair Use). This article has a good breakdown of the events.

Since this happened, a number of bloggers have written about the issue, arguing that parodying the scene is constitutes Fair Use. A number of the original videos do seem to be back up. And, like many internet memes, the Hitler Downfall meme has become incredibly self-referential. At least two Hitler Downfall parody videos have been produced addressing the takedown of other Hitler Downfall parody videos, both of which are still available on YouTube. One of them was created by Brad Templeton, an EFF chairman: http://www.youtube.com/watch?v=PzUoWkbNLe8. In it, Hitler is the one ordering DMCA takedown notices on Hitler Downfall parody videos, while his lackies try sticking up for Fair Use. Templeton also has a very interesting blog post about the difficulties he had in creating his own parody video, which discusses not only Fair Use but also how he had to use a loophole to avoid circumventing the encryption on his DVD.

Somewhat more amusing, I think, is a parody video created by someone with the username Plankhead: http://www.youtube.com/watch?v=kBO5dh9qrIQ. In this version, it’s Hitler who is complaining about the takedown of the other parody videos. He brings up how parody is fair use and not an infringement of copyright as well as the chilling effects of the “broken” DMCA takedown notice procedure. Hitler even explicitly cites Title 17 USC Section 107.

In the end though, I haven’t seen much action about this issue since the initial ruckus a few weeks ago. As Plankhead’s Hitler laments, “Everyone’s gonna get upset about how corporations can illegally take down parodies. But tomorrow, they’ll forget all about it and watch cat videos.”

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Facebook has done a poor job of helping its users control their privacy. What started off as a service where most user activity was private has gradually evolved into a service where almost everything users do is public. What makes this worse from a consumer protection perspective is that in most cases Facebook has just changed the default access levels themselves without permission from users.

Here is a great infographic which illustrates the evolution of privacy on Facebook over the years. Privacy controls on Facebook are a mess. Even the most technically advanced users can’t always understand what the settings mean. They need something like this to help users decide how their activity is shared with the world. But, it’s unlikely that Facebook is going to make it any easier for their users to control their privacy given that it does not make business sense.

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