A sample text widget

Etiam pulvinar consectetur dolor sed malesuada. Ut convallis euismod dolor nec pretium. Nunc ut tristique massa.

Nam sodales mi vitae dolor ullamcorper et vulputate enim accumsan. Morbi orci magna, tincidunt vitae molestie nec, molestie at mi. Nulla nulla lorem, suscipit in posuere in, interdum non magna.

Music Licensing—La Plus Ça Change?

The French have a wonderful saying, la plus ça change, plus c’est la même chose, which roughly translates to “the more things change, the more they remain the same.” That’s an apt description of current, high-profile wrangling in the United States about music licensing under federal copyright law. Despite all the jarring changes to the recording industry over the past decade — remember Tower Records? — it’s the same issues and (mostly) the same players as always, arguing over a Rube Goldberg-like system of arcane complexity.

Today the House of Representatives (specifically the Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet) will hold a second round of hearings on music licensing. This inquiry coincides with a recent announcement by the Justice Department that it will review — and solicit public feedback on — the 73-year-old antitrust decrees that govern ASCAP and BMI, two groups which act as licensing clearinghouses for a range of outlets that use music, including radio stations, websites and even restaurants and doctors’ offices. As the New York Times has observed, “billions of dollars in royalties are at stake, and the lobbying fight that is very likely to unfold would pit Silicon Valley giants like Pandora and Google against music companies and songwriter groups.”

ASCAP logo

According to the consent decrees, which were instituted in 1941 after federal antitrust investigations, ASCAP and BMI cannot refuse licenses to music outlets that request them. These two “performance rights organizations” (PROs) have operated under this structure for decades, but in recent years have lost important legal cases having to do with licensing. Earlier in 2014, for instance, ASCAP lost a rate-setting case against Pandora in which several prominent music publishing executives were criticized harshly by the presiding federal judge. In response, major publishers like Sony and Universal Music Group have begun to openly discuss withdrawing from ASCAP and BMI, a move that would further complicate the licensing process.

Continue reading Music Licensing—La Plus Ça Change?

Opening Pandora’s Box: Copyright and Antitrust

Are copyright holders allowed to decide without legal constraint to whom they will license their content and on what terms? That is the issue facing Pandora and other new streaming radio firms, for whom music and its associated licensing fees represent the biggest hurdle to commercial success against more established broadcast radio competitors. The answer lies in the sometimes obscure interface between the Copyright Act and antitrust law in the U.S.

In Pandora Media, Inc. v. American Society of Composers, Authors & Publishers, an antitrust case currently pending in federal court in New York, the streaming company is suing ASCAP and some of the major record labels for “withdrawing” their content from the ASCAP joint licensing venture, thus forcing individualized negotiations. It’s a leading-edge dispute, scheduled for trial by year-end, that may help catalyze a new approach to the old question of whether — and if so to what extent — owners of copyrighted digital content are permitted to refuse to deal with competing distribution channels on dramatically different commercial terms.

Pandora's Box via Wikipedia

Most Project DisCo readers likely know about Pandora, a prominent start-up in the Internet radio space — one of the hottest markets around these days, especially given the launch of iTunes Radio by Apple. What is less understood is that streaming music on the ‘Net is fraught with legal issues surrounding copyright, constraints that effectively function as a barrier to the more widespread adoption of such disruptive technologies.

That’s not a lot different from the case of streaming Internet television pioneer Aereo, which as Ali Sternburg points out is caught in legal limbo between different rules (from conflicting judicial decisions) in different regions of the county: and a whopping legal defense bill as well. Copyright in addition plays a key role in the current exemption of traditional over-the-air radio stations from licensing music, an implicit subsidy the recording industry has been lobbying to change for years.

The Pandora-ASCAP fight represents a tricky issue at the intersection of intellectual property (IP) and antitrust. The ASCAP litigation actually dates to 1941, when the government entered into a consent decree settling a complaint that alleged monopolization of performance rights licenses.  The settlement, still in place more than 60 years later, requires the organization to license “all of the works in the ASCAP repertory.” A month ago, presiding District Judge Denise Cote (who also issued the decision finding Apple’s e-book pricing deals a violation of the antitrust laws) entered summary judgment for Pandora. She reasoned that the consent decree gave Pandora the legal right to a blanket license

even though certain music publishers beginning in January 2013 have purported to withdraw from ASCAP the right to license their compositions to “New Media” services such as Pandora. Because the language of the consent decree unambiguously requires ASCAP to provide Pandora with a license to perform all of the works in its repertory, and because ASCAP retains the works of “withdrawing” publishers in its repertory even if it purports to lack the right to license them to a subclass of New Media entities, [Pandora must prevail].

Continue reading Opening Pandora’s Box: Copyright and Antitrust

Friends With Benefits (How Privacy Law Evolves for Social Media)

A few weeks ago I examined how copyright law — like most legal subjects dealing with technology — is lagging behind the fast-moving and disruptive changes wrought by social media to old legal rules for determining rights to Internet content. Part of my critique was that in deciding ownership of user-generated content (UGC), courts have not yet evaluated the difference between posting content “in the clear” and restricting content to “friends” or some other defined class far smaller than the entire Internet community.


Things may at last be getting a bit more settled. A New Jersey federal court ruled last Tuesday that non-public Facebook wall posts are covered by the federal Stored Communications Act (18 U.S.C. §§ 2701-12). The SCA, part of the broader Electronic Communications Privacy Act (18 U.S.C. §§ 2510 et seq.) that addresses both “the privacy expectations of citizens and the legitimate needs of law enforcement,” protects confidentiality of the contents of “electronic communication services,” providing criminal penalties and a civil remedy for unauthorized access. It’s a decades-old 1986 law that was enacted well before the commercial Internet and either email or social media had become ubiquitous. Yet by interpreting the statute, in light of its purpose, to apply to new technologies, District Judge William J. Martini has done Internet users, and common sense, a great service.

Plaintiff Deborah Ehling, a registered nurse, paramedic and president of her local EMT union — apparently a thorn in the side of her hospital employer for pursuing EPA and labor complaints as well — posted a comment to her Facebook wall implying that the paramedics who arrived on the scene of a shooting at the D.C. Holocaust museum should have let the shooter die. Unbeknownst to Ehling, a co-worker with whom she was Facebook friends had been taking screenshots of her profile page and sending them to a manager at Ehling’s hospital.

Ehling was temporarily suspended with pay and received a memo stating that the hospital was concerned that her comment reflected a deliberate disregard for patient safety. After an unsuccessful NLRB complaint based on labor law, Ehling’s federal lawsuit alleged that the hospital had violated the SCA by improperly accessing her Facebook wall post about the museum shooting, contending that her Facebook wall posts were covered by the law because she selected privacy settings limiting access to her Facebook page to her Facebook friends.

Judge Martini concluded that the SCA indeed applies to Facebook wall posts when a user has limited his or her privacy settings. He noted that “Facebook has customizable privacy settings that allow users to restrict access to their Facebook content. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.” Therefore, because the plaintiff selected privacy settings that limited access to her Facebook wall content only to friends and “did not add any MONOC [hospital] managers as Facebook friends,” she met the criteria for SCA-covered private communications.

Facebook wall posts that are configured to be private are, by definition, not accessible to the general public. The touchstone of the Electronic Communications Privacy Act is that it protects private information. The language of the statute makes clear that the statute’s purpose is to protect information that the communicator took steps to keep private. See 18 U.S.C. § 2511(2)(g)(i) (there is no protection for information that is “configured [to be] readily accessible to the general public”). [The] SCA confirms that information is protectable as long as the communicator actively restricts the public from accessing the information.

That’s a bold move by a jurist sensitive to the constraints on Congress, especially one as polarized as we have in America today. It reflects a willingness to adapt the law to changing technology by application of the basic principles and purposes of legislation, even if the statutory framework is old and its language somewhat archaic. As Judge Martini observed with a bit of consternation, “Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static.” Thus, the “task of adapting the Act’s language to modern technology has fallen largely upon the courts.”

Continue reading Friends With Benefits (How Privacy Law Evolves for Social Media)

Social Media and Copyright Law In Conflict

When it comes to disruption, the advent of social media communications is decidedly in the front row. But along with revolutionizing personal (and political) relationships, the sharing of content on social media sites like Facebook, Twitter, Tumblr and Instagram — now a Facebook property — is steadily increasing pressures on a quite different regime, namely copyright law. The passage and forthcoming implementation in the UK of what has become known colloquially as The Instagram Act, boringly titled the Enterprise and Regulatory Reform Act, promises only to accelerate the conflict between new social media services and legacy copyright rules worldwide.

This author has written, and ranted, about ownership of user-generated content (UGC) for several years. The gist of the problem is not that social media providers want to claim ownership of UGC. None do, despite occasional outcries to the contrary, although they also insist rather unremarkably via terms of service (TOS) on a license to display UGC posts to those a user authorizes. Instead, the problem arises when third parties want to incorporate user-created content into their own sites or publications. After all, if CNN or Fox News broadcast tweets, status updates and Flickr photos as part of their news stories, wouldn’t these and other organizations be violating the inherent copyright users hold in their own content? Put another way, if posting users have legal rights to their UGC, doesn’t it follow that even “retweeting” constitutes unlawful copyright infringement?

In most of the world today, ownership of one’s creation is automatic, and considered to be an individual’s legally protected intellectual property. That’s enshrined in the Berne Convention and other international treaties, which abolished registration as a formal predicate for copyright interests (although not for judicial enforcement). What this means in practice is that one can go after somebody who exploits a creative work without the owner’s permission — even if pursuing them is cumbersome and expensive — once the work is registered with the appropriate governmental copyright authority.

Social media sharing throws all these regimes into chaos. Take first the issue addressed by The Instagram Act and, in a slightly different context, U.S. litigation over the Google Library service: “orphaned” works. The new UK law theoretically aims to make it easier for companies to publish orphan works, which are images and other content whose author or copyright holder can’t be identified. But whereas in the past, orphan works were often out-of-print books and historical unattributed photos, today millions of images are quickly orphaned online, as they move from Instagram to Twitter to Facebook to Tumblr without attribution along the way. The British response was to adjust copyright law so that an orphaned work can be republished without liability if a third party makes a “reasonably diligent” search to identify and locate the original owner.

Continue reading Social Media and Copyright Law In Conflict

Defamation, Autocomplete And Search Royalties: How Not To Govern the Internet

With the controversy surrounding the International Telecommunications Union (a UN treaty organization) just recently subsiding, it is time to take a look at Internet governance from a different perspective. We all know that laws and legal principles differ among countries. What many do not realize is that these laws — most completely non-tech oriented — are having a massive and negative impact on Internet innovation.

In America we proudly have the First Amendment, the fair use doctrine and the DMCA. The first limits the reach of liability for libel (defamation) at least to cases, for non-celebrities, where a publisher is at fault (i.e., negligent). Section 230 of the last allows ISPs, websites and Internet hosts a legal safe harbor from copyright and other legal offenses resulting from user-generated content or any other content that a customer, client or some third-party has published. These landmark legal regimes are hallowed in the U.S., for instance used to strike down overreaching Web censorship efforts by federal government. Fair use, in turn, permits non-commercial or transformative use of a portion of copyrighted content. Think Google image search thumbnails or blockquotes from a news source in someone’s blog or a movie clip in a televised review.

Things are very different elsewhere. Three cases in point.

  1. In Germany and perhaps soon other EU nations, search engines that display snippets of indexed Web pages in response to user queries are now by statute responsible for paying copyright royalties to the original publisher, regardless of whether the content owner charges for its stories with a paywall. 
  2. In France, Italy, Ireland,  Australia and now Japan, courts permit individuals to recover for libel based on autocomplete and search results that return incorrect or harmful personal information, but against the search provider, not the writer or content publisher.
  3. A Denmark court ruled deep linking illegal, as did Germany, leading some to believe that linking to a website other than the front page was illegal throughout Europe. While the German courts overturned that decision, it was Agence France Presse (AFP) which eventually sued Google News for brazenly daring to send search  traffic to the organization’s news articles.

AutomcompleteThese results are foreign, literally, to U.S. jurisprudence. But they also illustrate a vitally important point. Legal regimes that have nothing to do with the Web are being applied in ways which upset existing services users take for granted and that threaten to impede future innovation.  Linking is inherent in HTML and represents the essence of the Web. No one in America would argue seriously today that a hypertext URL link represents copyright violation. Search “autocomplete,” in turn, is not a creative activity, but a very useful technical advancement; it applies computer algorithms based on past searches to predict what the current user wants to see, speeding the retrieval of information from the Web.

Permitting autocomplete defamation suits against Google or Bing because other Web users have searched for information that damages an individual’s reputation is alien to our American way of thinking. It’s censoring completely accurate factual information about stuff on the Web, although that stuff may itself be factually wrong.  The augmentation of liability is also just plain silly, because both autocomplete queries and search results themselves merely return an indexed link to something someone else has posted on the Web.

Continue reading Defamation, Autocomplete And Search Royalties: How Not To Govern the Internet

Business Disruption Begets Legal Disruption

Disco Project

For all the discussion, dead-on accurate, about law holding back technological innovation, sometimes it works the other way around. When industries are transformed by disruptive new technologies and business models, the law itself can be in for a game-changing, forced makeover.

Take the European Union (EU) and digital music. Everyone by now realizes that the introduction of portable MP3 music players, coupled with Apple’s pioneering iPods and iTunes music store, have revolutionized the market for distribution of recorded music. Gone are the days of buying albums (or even CDs) just to get one hit song. Music is available on any device, in the cloud, streaming on desktops, and everywhere else, and it’s intensely personal playlists involved. As a result, the hockey stick adoption curve shows that hardly a decade after digital music downloads first gained popularity, “record stores” – Tower Records,
anyone? – are a thing of the past, record labels (EMI as the latest) appear to be on their last hurrahs, and fully 1/2 of all music
purchased in the United States is totally digital, never burned to a physical product.

That has not been the case in the EU. Despite a standard of living in excess of the US, less than 20% of music sold in Europe is digital. That’s in part because, under the EU Treaty, copyright licensing is conducted on a member state basis. This “balkanization” of the law (pun intended) means that digital sellers in the EU need to negotiate separate deals with each label and for each country, from France to the Czech Republic to Turkey, under very different legal regimes. That’s obviously a recipe for increasing costs and timeframes for entry, bad for business and keeping new distribution models from consumers.

In response, the EU Commission used its competition powers a couple of years ago to harmonize copyright laws in order to make them consistent throughout the EU, aimed at breaking down national barriers in the digital music business and making it possible for rights holders to issue pan-European licenses.  As one can observe from a similar step towards telecom “liberalisation” in the ‘00s, however, that itself requires a vigilant enforcer at the EU level to ensure that parochial national legislatures and courts do not slow roll the process. This 2008 licensing change helped Apple launch its iTunes music store in all 27 European nations, but so far no one else.  In 2009, major members of the online music industry — including
Amazon, iTunes, EMI, Nokia, PRS for Music, Universal, and others — signed a pact with the European Commission to work towards wider music distribution in Europe.

 Yet Apple remains the only digital music seller with licenses to operate in every EU country.  And even then, Apple rolled out iTunes stores in Poland, Hungary and 10 other European countries just last year, seven full years after arriving in Germany, the UK and France. As ArsTechnica comments:

Unlike the US, online music in Europe is typically only sold through one country’s stores at a time — this is despite the EU’s efforts to effectively eliminate the borders of its 27-country membership when it comes to products and services. As such, if you’re in Spain and want to buy a song from France’s iTunes store, you can’t — the store blocks you from making the purchase because you aren’t in France. This has led to companies like Apple rolling out individual music stores for each European country with a large enough market, but the fragmentation has caused nothing but headaches for end users who just want to listen to their favorite music.

Finally—One iTunes Store to Rule Them All (in Europe).

 The reality is therefore that the “single market” for intellectual property rights (IPR) contemplated in the EU’s 2011 report is far from ready to roll. As Neelie Kroes, who once took on Microsoft and now serves as the EU’s Vice President, asked rhetorically in ’08, “Why is it possible to buy a CD from an online retailer and have it shipped to anywhere in Europe, but it is not possible to buy the same music, by the same artist, as an electronic download with similar ease?”

So this week the EU is going a step further.  Singling out “collecting societies” – European analogs to ASCAP and BMI which gather royalties of about €6 billion, or $7.5 billion, annually from radio stations,  restaurants, bars and other music users and distribute the proceeds to authors, composers and other rights holders – the EU plans to push towards a directive requiring greater efficiency, transparency and reciprocity.  Royalty-collection societies could be forced under the draft rules to transfer their revenue-gathering activities to rivals if they lack the technical capacity to license music to Internet services in multiple countries. The idea seems to be that if it cannot reduce the sheer number (some 250) of collecting societies, at least the European Commission can make sure they operate as much in unison as possible.

A lesson to be drawn from this ongoing saga is that just as technical innovation can disintermediate industries and eliminate arbitrage as an economic profit motive among different markets, so too can it work to force elimination of legal differences among jurisdictions. Especially where the medium is the Internet, inherently global and regulated by no one (unless the European-centric International Telecommunications Union has its way), these legal changes can occur very quickly. Believe it or not, the four years over which the EU has been working for digital copyright licensing harmonization is lightning pace for the law.

Note:  Originally prepared for and reposted with permission of the Disruptive Competition Project.


All’s Fair In Love And Viral Videos


Comedy Central’s South Park has opened the door for “fair use” copyright defenses to shut down infringement lawsuits before they saddle defendants with discovery expenses or force a settlement for cost reasons.

The U.S. Court of Appeals for the 7th Circuit in Chicago ruled just weeks ago that the cartoon’s parody of a popular Internet video — if you watch South Park, you know which one — was a protected parody. The episode “Canada on Strike” lampoons the juxtaposition of viral videos’ popularity with their typically paltry financial returns through advertising and licensing. Brownmark Films, which owns the copyright on the original video, sued Comedy Central and network owner Viacom for infringement. (Incidentally, both music videos were posted on You Tube, the same company that Viacom had sued for a billion dollars in March 2007 for alleged copyright infringement.) The appeals panel unanimously agreed that the South Park video was “obvious” fair use, “providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos,” and upheld the suit’s dismissal.

Fair use under copyright law occurs when an earlier work is used by a latter work for commentary, parody, education or some other purpose whose main goal is not to secure financial gain. Recognizing the essential nature of South Park as a mature, adult-oriented animated series, the 7th Circuit emphasized that “[t]he show centers on the adventures of foul-mouthed fourth graders in the small town of South Park, Colorado. It is notorious for its distinct animation style and scatological humor [and] frequently provides commentary on current events and pop-culture through parody and satire.” Yet without getting into all the procedural wrinkles, the court also broke new legal ground in its discussion of the role of early dismissal of “weak claims” and disposition based on a fair use claim alone, in fighting against the “chilling effects” of First Amendment-related litigation.

Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of [the viral video at issue] and the [South Park] episode at issue… We think it makes eminently good sense to extend the [incorporate by reference] doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works. The expense of discovery … looms over this suit. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits. [Thus,] district courts need not, and indeed ought not, allow discovery when it is clear that the case turns on facts already in evidence.

An unusually frank and colorful opinion by long-time Circuit Judge Richard Cudahy (first appointed by President Jimmy Carter in 1979) provides some comedy itself. Brownmark could have offered its own evidence to defeat the fair use defense but chose not to, Cudahy wrote. Its “broad” discovery request made Brownmark look like a “copyright troll” and would allow “expensive e-discovery of emails or other internal communications.” Brownmark’s only plausible copyright claim could be be that the parody harmed the market for its original video, but “as the South Park episode aptly points out, there is no ‘Internet money’ for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had.” Cudahy concluded “[i]t seems to this court that” the parody video’s “likely effect, ironically, would only increase ad revenue.”

Sometimes the courts actually do get it when technology is involved, although we have no idea whether Judge Cudahy himself watches South Park. As the Electronic Frontier Foundation, which submitted an amicus brief on behalf of Comedy Central, explained:

The opinion joins a growing body of precedent affirming that it’s proper to dismiss some copyright cases early, and that it’s possible in appropriate cases to determine whether a use is noninfringing without engaging in lengthy discovery. These rulings are important not only to protect speech, but also in fighting back against copyright trolls. Trolls depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.

Of course, “trolls” are in the eye of the beholder. Like terrorists, one person’s troll may be another’s “freedom fighter.” So whether or not particular litigants merit that somewhat pejorative description, it’s clear that the costs and burdens associated with defending copyright claims — including but not only for Internet-distributed video — just went down a whole lot. While Brownmark involved a seemingly easy fair use case in the defendants’ favor, it will be inter­esting to see whether future courts will grant motions to dismiss where the fair use analysis is less obvious. In any event, copyright infringement plaintiffs should be aware that the road to discovery where a defendant raises a fair use defense is not be quite as smooth as it used to be.

As to judicial comedy, we express no opinion, but do like the district judge’s tact. “For as remarkable and fascinating the parties and issues surrounding this litigation are, this order, which will resolve a pending motion to dismiss will be, by comparison, frankly quite dry.”

The legal issues [in this case] are hardly the sort of subject that would create millions of fans, as the work of all of the parties before the court did. Nonetheless, while the court has a ‘tough job,’ ‘someone has to do it,’ and, ‘with shoulder to the wheel,’ this court ‘forge[s] on’ to resolve the pending motion. Janky v. Lake County Convention & Visitors Bureau, 576 F.3d 356, 358 (7th Cir. 2009).

Note: Originally written for and reposted with permission of my law firm’s Information Intersection blog.


The Law of Social Media (Part V)

[Part I of this series of essays can be found at this permalink, Part II at this permalink, Part III at this permalink and Part IV at this permalink].

5.  Don’t Touch My Junk: Who Owns This Social Media Sh#t Anyway?

This is a presentation I made in June 2011 at the 140 Characters Conference in New York. It focuses on copyright and content ownership in social media.

Jeff Pulver: My friend the lawyer who is coming up next. I’ve known Glenn Manishin for like 15 years. He was one of the guys that worked with me and help revolutionized the world of communications. He’s focusing a lot on social and I asked him to come to the conference and share some prospective on copyright and an understanding of use of information — because what we think is ours may not always be ours. Without giving any of his talk away, Glenn please come up on stage, Glenn come on out.

Glenn Manishin: Well thanks for having me. I’m not going to give a typical lawyer talk. This is more of a rant. It’s a little bit hard to rant at 9:40 in the morning, but you’ll see that I changed the title slightly. I made it a little more family friendly for the Web but it really is: Who Owns This Social Media Sh#t Anyway.

(a) Introduction. Jeff calls this the “state of now.” Yet the law doesn’t like the state of now. The law works in history and tradition and precedent, and the most important legal issues affecting the social Web are things that are probably of no consequence to the rest of the world. That is, I’m not going to discuss how lawyers can engage in legal marketing using Twitter or Facebook, where you’ll see just a huge number of DUI defense attorneys and personal injury attorneys wanting to sign you up for their Mesothelioma cases. I’m not going to talk about which law controls because this is a global medium that affects anyone, everywhere. Your location is completely indifferent because it’s just an IP address; the courts have been struggling for 15 years with whether it’s the law of the US or the UK or Australia that controls and where you can have jurisdiction over all these people. Finally, the law doesn’t like what Jeff called a “social revolution.” The law is conservative institution, it protects vested interest, it doesn’t protect new interests.

(b) A Hierarchy of Laws. So with that intro: A hierarchy of laws. Now, obviously, the most important law is from the creator, the almighty, but here in the US it goes as follows. The Constitution is the supreme law of the land. Followed by statutes, those are laws either by Congress or the states. Then cases, decisions by judges and courts. After that contracts. A contract is a law because it decides rights between two people or two organizations. And then terms of service. You all know them, those things you don’t read and click through when it says “I accept,” but they define your rights as against Facebook, your rights as against Twitter. If you go back to 09, you’ll see there have been revolutions on Facebook periodically when the users object to new changes in terms of service, usually because some lawyer had some legalities that were’nt explained very well.

@ ha! cheers, Glenn. You were the most entertaining lawyer I've ever heard! And who doesn't love Robin Williams?
Sean Flynn

Well these things aren’t particularly important because God is agnostic to ownership interest — unless it’s your neighbor’s ass or tabernacles, he cares about those. The Constitution is indifferent to ownership, it protects property rights but doesn’t define what property is. Statutes are non-existent; there are no statutes about social media, even crimes like cyberbullying on Facebook, which is a very serious social problem. (I got a call last week from someone whose daughter almost committed suicide because of Facebook comments.) There are no statutes covering it, although some states have proposed it. Cases, as you’ll see are just dumb. Judges don’t get it, the lawyers who argue them don’t get it, and there haven’t been that many cases in any event. There have been a few cases about Twittersquatting — stealing of Twitter names. Contracts are rare because normally the question isn’t whether it’s me or you who owns the stuff, is it someone else? Now, if we’re going to talk about terms of service, as we will see they are irrelevant. Twitter says you own what you post. Facebook says you give us a license to do whatever we want with it, except to sell it.

(c) If You Give It Away, You Don’t Own It. Yet both instances are places where there is one simple rule. If you give it away, you don’t own it. Okay?

What is the nature of social media? It’s putting up posts or content of short duration or, if it’s a photograph like on TwitPic, content that you make available to the world. Now there are ways to limit that. As a sophisticated audience you know you can do a Twitter DM — it doesn’t grant ownership if you Tweet a picture of your shaved chest to your paramour, but it can get you into political trouble. It’s still private, you haven’t given it to the whole world. If you make your Facebook photos available only to friends no one else can look at them, but if just post something on Twitter, anyone in the entire world can read it, can download it, can embed it— they don’t need to know you, they don’t need to ask your permission.


What does that mean? That means, in my view, that you have abandoned any claim to ownership. If you post your video on YouTube anyone can download it. If you post your pictures to Flickr, you can enable a function that says download prohibited, all rights reserved. Then you could claim ownership to it because you haven’t given it to the world.

(d) AFP v. Morel. So let’s look at one case which is interesting. It’s called Agence France Presse, I think I pronounced that correctly, versus Daniel Morel. Morel was a photographer in Haiti during the big earthquake. He snapped some pictures, realized they had publicity value, put them on Twitter immediately — created a Twitter account and called it Photo Moral — and put a little copyright symbol next to it. But he didn’t go to Flickr and make them non-downloadable, he didn’t put a copyright symbol on the photograph itself and he didn’t even say, in his Tweets that went with the photographs, these are my copyrighted pictures. He just gave them away. Well, Agence France Presse, to its shame, took the pictures and put their own copyright on them and sold them to news organizations across the world. Tthat created the dilemma, who owned the pictures?

The court looked at the terms of service of Twitter and said Twitter grants a sublicense to third parties, their partners, and other viewers to look at photos but it doesn’t give them the right to publish themselves. Therefore, the terms of service don’t extend to Agence France Presse. Well, that’s silly because terms of service can’t create ownership rights. They could recognize them but if I have a Web site with you, I can’t decide who owns things for third parties. I don’t have any deals with the third parties. And the court never addressed the more important issue. The one I just talked about. Whether there is an implied license or have they abandoned ownership. Again, if Morel would have put this stuff on Flickr, right, or put a copyright watermark on it, there would be no question, but he gave it away to the world. So, as you can see, he took his pictures down. Smart man.

(e) Social Media Law & the French. It all gets into the French. Now as Gore Vidal said — I think this is a great quote — “It is a nation devoted to a false hypothesis on which it then builds marvelously logical.” Well whether or not French culture is dead, I think this case epitomizes some bad things about France. They have outlawed Islamic head coverings, they insist that Napa Valley can’t use the word champagne, they have a three-strike law for peer-to-peer downloaders. Meaning that if you download three files you could have your Internet service  terminated unilaterally. They criminally prosecuted Yahoo as a war crimes defendant for allowing Nazi memorabilia to be sold on a Yahoo auction site — something that is absurd in American jurisprudence — and then they came here and tried to enforce the judgment against Yahoo. The US Court said no way. And of course you have the incident that I just told you with Agence France-Presse. The biggest news organization in France, just takes something that may or may not belong to them and decides that they own it.

If I’m right, that it doesn’t belong to anyone, they’re clearly liable for having put their copyright on it, but that’s not what the court was deciding. The court was deciding whether they enjoyed an ownership right because of Twitter. So, the bottom line is, that if we rely on the French to decide who owns our social media shit we are in big blan#&y trouble.

(e) English Pig Dog. With that I want to end up with my favorite quote about France. It’s from Robin Williams, courtesy of my son, who loved it when he was about six years old. He would be very proud of me by saying that with regard to the French, “I spit in your general direction, you English pig dog!”

In Part VI of this series, we will explore the effect of social media on employment law, including the privacy rights of employees. More to come!


Internet Freedom Challenged Not Just In China

There has been a lot of talk, debate and criticism — leveled at Google, Microsoft and other major Internet content providers — about censorship of Internet content by the government of China. Google v. China: Principled, Brave, or Business As Usual? [Huffington Post]. The assumption most of these pundits make is that mandatory filtering and blocking of the Internet is a policy embraced only by repressive or authoritarian regimes.  That’s not at all correct.

green revolution

Iran's Green Revolution

Western nations are just as bad; worse in some ways.  “Enemies of the Internet”: Not Just For Dictators Anymore [ReadWriteWeb].  As a few for instances:

Reporters Without Borders recently released a penetrating study of government Internet censorship, titled “Enemies of the Internet 2010.” It cogently observes:

Western democracies are not immune from the Net regulation trend. In the name of the fight against child pornography or the theft of intellectual property, laws and decrees have been adopted, or are being deliberated, notably in Australia, France, Italy and Great Britain. On a global scale, the Anti-Counterfeiting Trade Agreement (ACTA), whose aim is to fight counterfeiting, is being negotiated behind closed doors, without consulting NGOs and civil society. It could possibly introduce potentially liberticidal measures such as the option to implement a filtering system without a court decision.

So Internet censorship is alive and well in the world’s “progressive” industrialized nations. The liberating technology of the Web is under assault because, as in 2009’s “green revolution” in Iran via Twitter, it can catalyze viral growth in political opposition and tends to harbor folks, like pedophiles, who’s activities are politically disfavored (even repulsive).  No one lobbies for child pornographers, after all.

Just do not operate under the misimpression that it is only Saudi Arabia, Syria, North Korea, Vietnam, China and the like that censor Internet content.  Almost all governments do it.  The United States, with its constitutional First Amendment protection for free speech, and the Scandinavian countries — where the Pirate Party was victorious in Swedish parliamentary elections — which have classified Internet access as a fundamental human right, are the exceptions. This blogger, for one, hopes the exception swallows the rule.  One can always hope.

The Law of Social Media (Part IV)

[Part I of this series of essays can be found at this permalink, Part II at this permalink and Part III at this permalink].

4. Old Wine In New Bottles

I just posted the presentation slides from my keynote speech at the SociaLex 2010 conference.  Titled “Where (What) Is the Law of Social Media?,” the presentation is available here and here. Questions, anyone?


SociaLex 2010

In Part V of this series, we explore the impact of copyright law on ownership of social media content.