Connected Conversations

At e-thePeople.org, we long ago adopted the policy not to police what members posted on our boards. We adopted this policy for several reasons. First, we wanted to allow the members to be responsible for defining and enforcing the community standards. Second, we did not want to incur the (unscalable!) costs of moderating a large forum. Third, we were worried that we would risk legal liability by selectively moderating the content on our site.

Well, it seems that the third reason may not be valid. According to this legal argument, newspapers and other publishers are not usually legally liable for the content on their sites. Scrubbing out expletives is ok! Removing posts is ok! Here are the takeaways:

— The first is if you passively host third-party content you are going to be fully protected under Section 230.

— If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove or edit material, you will not lose your immunity unless your edits materially change the meaning of the content.

— If you pre-screen objectionable content, correct or edit or remove content after publication, you are not going to lose immunity.

— If you encourage or pay third parties to create or submit content, you will not lose immunity.

— If you use dropdown forms or multiple-choice questionnaires, you should be cautious of allowing us

I hope he is correct, for the sake of free speech! But I do worry that big sites will always be big targets for law suits, regardless of the legal merit of their cases. (Hat tip: Jay Rosen)

1. technology, 2. politics e-thepeople, Freedom of speech, law, Liability, Publishing

I hate music labels, and their abuse of the courts gives law a bad name in my opinion. Yesterday, Jennifer Pariser, the head of litigation for Sony BMG, testified in a file-sharing case. On the stand, she was asked whether it was wrong for consumers to rip their CDs onto their iPods. Her answer:

“When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

I am not a lawyer, but I certainly hope the courts take a broader view of fair use than this music executive. Would the public good be served by such extreme protection that allowed the labels to dictate where, when and how we consume digital entertainment? I think entertainers need no further incentives, and such restrictions would only serve to harm the benefits of freedom that fair use provides.

It doesn’t surprise me that the labels are attacking CD ripping. Why? Because purchasing CDs and then ripping the songs to mp3s is the best and fairest way to consume digital music. I think it is better in most cases than purchasing online if you value fair uses like backing up your music without permission, etc.

Via slashdot.

1. technology copyright, law

Scott Reents sent me an email with just a single link, and man did it bum me out.

Lawrence Lessig is a famous constitutional law scholar who teaches now at Stanford Law School. For the last ten years, he has led the charge to redefine copyright in the Internet age as the founder of Creative Commons. Recently, all of us suffered a major setback when he lost a (literally) ‘Mickey Mouse’ Supreme Court case. And now this cause is losing its principal advocate, who has found a new windmill to tilt at: corruption. (He says: “I am 99.9% confident that the problem I turn to will continue exist when this 10 year term is over. But the certainty of failure is sometimes a reason to try.“)

For someone who is so admired and successful, I found Lessig’s inspirations really depressing for this decision in his announcement (“Required Reading“). His three inspirations are (1) obama; (2) gore and (3) an unnamed prominent republican who called him a “shill” for google.

Working backwards: first, please don’t accept the “shill” charge, Professor Lessig! Or tell me: how did you get duped into being an accomplice in corrupting the system? These charges really got to hurt an advocate who devoted a decade to an issue. I think that he should rather reconcile his views on the particular issue in question — network neutrality — where he should explain where his principled position does indeed differ from google’s largely correct but somewhat self-interested position.

Second, Al Gore is valiantly pursuing the global warming issue. But he is a sad hero: don’t you think he’d much rather have been President? And as a serious Washington insider for decades, it seems a little late and convenient to start blame the system now. It’s especially disingenuous because the environment also has its own interest groups that pray on emotional responses.

Third, he says that Obama is running for Presidency because of a ten-year “up or out” strategy. It’s a terrible parallel because Obama is riding at the top of his wave and Lessig is adrift after recent serious setbacks. So, claiming success (“we are going to prevail in these debates. Maybe not today, but soon.“) is decidedly weak. In fact, the weakness of this argument by such an admired thinker leads to question whether my own support of Obama is foolish too!

That said, Lessig is an *amazing* person so I wish him all the luck in the world in this new endeavor as well as those who will remain in the copyright arena. Lessig, here’s a message for you in the unlikely event you read this post: please understand that it is written with the same honest candor that your post was written and that I have the utmost respect for everything that you’ve accomplished. Corruption is a terrific new windmall to tilt at….good luck!

Uncategorized academia, copyright, law, lessons learned

It’s not surprising (but stupid imo) that many people send personal emails at the office during business hours and from their business email account. It is more surprising that many people use their *personal* email accounts to conduct business. In fact, many Democrats were upset that Karl Rove used his RNC account for official White House business but that those email disappeared when they were subpoenaed. (I guess they were not discoverable after all.) But Rove is hardly alone in using alternative email accounts; the practice of using personal emails for business is indeed quite widespread, as noted in this interesting legal analysis of this issue:

An April 2007 survey revealed that 33 percent of employees use personal e-mail accounts at least once or twice weekly for business purposes, and that 17 percent do so daily. Moreover, nearly 16 percent of the survey participants admitted to using their personal e-mail accounts to avoid corporate review or retention of their messages.

As I read it, the courts are trying to strike a pragmatic balance between defendants’ privacy and plaintiff’s discovery interests. One case recognizes that giving a legal adversary access to all personal emails or even a harddrive is “overbroad.” Another case penalized a defendant for intentionally terminating a yahoo account in order to avoid disclosing potential evidence.

The courts are struggling to come up with solutions. In one case, the emails were filtered by an outside expert for relevance. In another case, the defendant was ordered to determine the relevant emails himself. These approaches have obvious problems. Perhaps more promising, some companies are offering to this filtering automatically. These technologies are important because they can make discovery more effective at finding relevant emails while protecting the defendants privacy for irrelevant ones.

The analysis offers common sense advice: “companies should consider educating their employees through employee handbooks, notices, meetings and regularly scheduled reminders that using home computers and personal e-mail accounts for business may well require those computers and e-mails to be reviewed for responsive information if there is litigation. And employers may wish to discourage their employees from using private e-mail accounts to conduct business.”

I suppose that the courts are being reasonable about this process. Still, I worry that crucial decisions about email discovery motions will be decided by who has the better lawyer rather than the merits of the case. They *are* always watching you!

1. technology law, panopticon, society

Google won’t permit me to use the word itunes in an ad I wrote to promote weiksner.com! Now, if google wants to sell exclusive rights to the word itunes, that seems like their decision to make. But does the law really prohibit me from advertising an article that talks about itunes? Isn’t that fair use?

Any lawyers out there, lemme know if I’m crazy or what.

Update: I tried to change to ‘i tunes’ and that didn’t work either, so I changed it to ‘ltunes’ and that passed the automatic legal sniffer test.

1. technology copyright, law

In a post last week (Chutzpah!), I wrote about the travails of Chris Knight. Chris ran for a seat on his local school board and lost. More notably, he made a funny campaign ad that was appropriate by VH1 for one of its shows. When Chris uploaded the ad on youtube, Viacom threatened him for copyright infringement despite having aired his entire creative work without permission! And youtube threatened to ban him from the site, as is its policy for any alleged infringing work.

So, he fought back with the help of the Electronic Frontier Foundation. And as this blog post reports, he won the battle and youtube sent him a very apologic note, wouldn’t you say?

Dear Kwerky,

In accordance with the Digital Millennium Copyright Act, we’ve completed
processing your counter-notification dated x/xx/xx regarding your video

http://www.youtube.com/watch?v=ddyVQwpByug

This content has been restored and your account will not be penalized.

Sincerely,

Harry
The YouTube Team

Yeah! at least he won this ridiculous case.

1. technology, 2. politics copyright, follow up, law

This is why law suits look like government-supported coersion. This is theatre of the absurd: viacom is threatening the producer of a video that they ripped off without permission in one of their own shows. And who has the presumption of guilt now? Get the blow-by-blow in Christopher Knight’s own words and watch to the bizarre campaign ad that is at the center of this contraversy.

Update: Another good example is this video demonstrating that the NFL requires that you seeks it’s permission to talk about what you see on your TV (“”all accounts and descriptions”). The video was placed online by a law professor as an example of corporate overreach, and well, you guessed it. She received a nasty lawergram insisting that her clear fair use was actually a violation of copyright law.

1. technology copyright, law, videos