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G-Male, Fake Tony LaRussa and $3M of Pony Stars: Slides from Online Privacy 101 October 20, 2011

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At the annual California State Bar Meeting on September 17, 2011, I had the honor of presenting a CLE panel on “Online Privacy 101: Who’s Watching You?” with Ian Ballon (who wrote the treatise on Internet Law), and the co-chairs of the state bar Business Section’s Cyberlaw Committee, Robert Hawn and Tony Vittal.

My section of the presentation covered “Social Networks.” To illustrate the good and bad of the overshared generation, I led off with “G-Male,” a parody of what a virtual boyfriend constructed from all the information Google has collected about you might be like:

My part of the presentation covered some basic legal concepts that will only grow in significance as social networks continue to infuse every aspect of our lives, from our most private messages to the daily news headlines. These topics are:

1. Misappropriation of Name and Likeness
Rights to control the use of one’s name and likeness become increasingly important as countless online community startups try to construct business models based on building social networks and monetizing against them. I discussed the 2007 case of Susan Chang v. Virgin Mobile USA, from the Northern District Texas (documents available at Justia.com). The Chang case is a good illustration of the difference between intellectual property rights (here, copyright that was waived through opting in to Creative Commons) and rights of publicity (here, the identifiable image of a little girl that was the subject of the picture used for Virgin Mobile advertisements without permission).

2. Impersonation Two fundamental schools of thought about Internet culture inevitably clash regarding impersonation. One school of thought holds that anonymity is sacred on the Internet, and that users should be able to construct a coherent (or even ephemeral) online identity. There are valid use cases for this, such as for victims of abuse or members of alternative communities that might otherwise be harassed. The other school of thought holds that online life is an extension of real life, and that it is important to verify each user’s identity to hold users accountable for their online actions.
I discussed Tony LaRussa’s case against Twitter (Good luck to you in the World Series, Tony) and the California Legislature’s new addition to the California Penal Code for malicious impersonation online, Penal Code Section 528.5.


3. Social Gaming and the Children’s Online Privacy Protection Act (COPPA)

It’s really, really important to know the laws about collecting user’s private information, especially in the case of children. As demonstrated by Playdom and Howard Mark’s May 2011 $3 million dollar settlement with the FTC. That’s a lot of Pony Stars.

4. Cyberbullying
Unfortunately, you can tell a lot about what people in a society are doing by looking at what they have outlawed. In July 2011, California amended Education Code 32261(a) to specify that acts of bullying through social networks qualify as bullying and can be disciplined in the schools. Which is a good opportunity to remind you that October is Bullying Prevention Month.

5. Computer Fraud and Abuse Act (CFAA)
This is such a broad law that it has recently been used in a variety of unexpected ways. I discussed the case of Pulte Homes v. Laborers’ International Union, in which the 6th Circuit upheld the employer’s claim that a union’s campaign to bombard and disable the employer’s email and telephone servers was an actionable violation of the Computer Fraud and Abuse Act.

6. Data Scraping and the Future of Online Reputation

There is an explosion of new data scraping sites vying to collect all your online information and push it to the top of search results for your name. I tested a few of them before the presentation to see how accommodating they were with requests to remove data. This promises to be a cutting-edge area for legal development, as the first two audience questions were about online reputation repair companies such as Reputation Defender and what, if anything, can be done about negative reviews on ratings sites.

Slides of the presentation below:

#What the HashTag? Legal TweetChat for Web Journalists March 26, 2010

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Cory Doctorow predicted that printed newspapers will become like opera, the province of “rich weirdos.” Despite this, journalism is alive and well in the new media era, and living in Cyberspace.

To help such online journalists, I participated in a Legal Issues Panel on Episode 7 of WJChat through TweetChat with some of the legal leaders in new media journalism. The panel was assembled by Robert Hernandez (@webjournalist), who teaches a course in Online Journalism at USC’s Annenberg School.

My fellow panelists were Kurt Opsahl of the Electronic Frontier Foundation (@EFF), David Ardia and Kimberly Isbell of Harvard’s Citizen Media Law Project (@CitMediaLaw) at the Berkman Center for Internet & Society, and Jack Lerner (@JackLerner) of USC’s Intellectual Property and Technology Law Clinic.

Here is the transcript of WJChat Episode 7. A more coherent digest of the panel discussion is here.

If the formatting looks wonky, that’s because it is. My Columbia Law Review editors would have had a minor heart attack back in the day where we debated such fine points as whether to end possessive plurals with an ” s’ ” or an ” s’s. ” (For grammar geeks, it was decided that official Columbia Law Review style that year was to use the full ” s’s ” because the then-Editor-in-Chief thought the ” s’s ” conveyed plural better than a “lonely single apostrophe hanging out by itself.”)

As a matter of pure Blue Book style, I agree. But I don’t get a credit for my Note on the Columbia Law Review website, since I signed my copyright away. You can read it if you can afford a Westlaw or Lexis subscription.

Perhaps one day we’ll follow @BlueBook on Twitter. Properly, it would be @AUniformSystemofCitation, but that’s over the character length. In today’s Twitterverse, we wouldn’t use an extra character on subtleties such as an extra “s” or whether two spaces follow a period. Life is short, right? Maybe it’s not pretty, but we’d claim attribution for what we write.

That’s a fair trade-off, I think.

But back to the show.

The panel discussed ethical, legal and practical problems of online news gathering and reporting. We focused on issues unique to web journalism – shield laws, web commenting, quotations, expectations of privacy, Creative Commons licenses, retractions, and DMCA agents. At times, there was a division between normative law and empirical law — that is, the split in what we believe doctrines such as the Fair Use defense in copyright may or should allow, and practical rules of thumb easy enough for your average Joe or Jill citizen journalist to stay out of trouble.

Here are some useful resources for online journalists that came out of the discussion:

EFF’s Legal Guide for Bloggers
The Online Media Legal Network
PACER.gov and RecaptheLaw for federal cases
(To this, I add FindaCase.com.)
flickr.com for Creative Commons-licensed photos
archive.org for web history
http://www.copyright.gov/onlinesp/agent.pdf to register a DMCA agent
EFF’s guide to Section 230 Protection
EFF’s Bloggers as Journalists

My final tip? Be true to yourself, be accurate, and check your sources.

The Hidden Value of Creative Commons April 16, 2009

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Happy 6th Birthday Creative Commons

Happy 6th Birthday Creative Commons

On Avvo.com, I recently answered this question on music sampling:

“What are the laws on sampling music for a beat?”

Here is my answer:

“Sampling” music sound recordings is taking a portion of a sound recording and reusing it as a portion of a distinctly altered musical work. Under the copyright law, this reuse and transformation creates what is called a “derivative” work.

In the absence of any other agreement or license, the creator of the original musical sound recording has a copyright in the musical sound recording when it is released commercially. This is regardless of whether the work is registered with the Copyright Office.

It is actionable copyright infringement to incorporate portions of a musical sound recording that has been commercially released into a new work unless (a) the copyright holder grants a license allowing both copying and the creation of derivative works or (b) the owner of the sound recording has made the music available for public use under a gratis Creative Commons license that permits derivative works.

You can search for musical sound recordings that have been made available to the public for beat sampling under a Creative Commons license at creativecommons.org. You must heed the Creative Commons-published guidelines for any particular work. Only works licensed for “remix,” that is, derivative uses, may be used for beat sampling. Some owners also restrict Creative Commons license to non-commercial uses, and/or a reciprocal “share alike” license. Most Creative Commons licenses require attribution, or credit, in lieu of a license fee. Any use that falls outside the Creative Commons guidelines for a particular work would be actionable copyright infringement.

That is the lawyer’s answer. But there is another side to using Creative Commons work that reveals the flip side of my previous post on why attribution matters in copyright law. Attribution is a way of finding and linking to people that you want to work with and who want to work with you. I discovered this for myself about a year ago by putting the photos in my free Flickr account into Creative Commons under a non-commercial, attribution, no derivatives license.

I had surprising and wonderful results. Every so often, I get a little Google news vanity alert about a photo that’s been credited on the Internet. One of my faves is the remix of Lawrence Lessig at the top of this post. It is actually a collage that was created by Andy on the fly for a G33k dinner. More profoundly, it has brought some wonderful people into my life.

Tag up your photos and try it yourself. If they’re on a free hosting service, what do you have to lose?

“Happy 6th Birthday Creative Commons” collage by netZoo/revolute. Shared under Creative Commons license -obviously – via flickr.