December 20, 2007

Here Comes Another Takedown

Filed under: law — wseltzer @ 6:24 pm

Earlier this month, comedy group The Richter Scales released a funny music video, “Here Comes Another Bubble.” The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel’s “We Didn’t Start the Fire,” lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week’s top-rated video.

Then, it was removed from YouTube, “due to a copyright claim by a third party.”

Photographer Lane Hartwell says she objected to use of her photograph of Valleywag’s Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the “third party” sender of the complaint.)

Now, the video is back, in a revised version that omits Hartwell’s photograph.

To me, the original situation seems to lie near the blurry edge of copyright’s fair use exception. The Richter Scales would argue that their use was “transformative,” using the photograph to comment on the bubbly scene the photographer chose to depict; commentators on Silicon Valley foibles might be unable to get permission for photos used to skewer the establishment. Hartwell, by contrast, tells us that “Photography is my livelihood. It’s how I pay my bills. I’m not treating the band any differently than any other group that uses my work without my permission.” She sells or licenses her work to magazines and others who want to use photo illustrations, and sees no reason to treat the Richter Scales differently.

Is the momentary use of Hartwell’s photo an unfair substitute for something she should have had the right to license, or a fair use the law should license irrespective of the copyright holder’s wishes? I’d be inclined to find the use fair, as transformative commentary, but I couldn’t guarantee that a court would agree with me.

The DMCA harbors no such ambiguity, however. The moment someone claims an infringement, the law encourages the service provider to act “expeditiously” to remove the offending material. The strict penalties in copyright’s “property rule” nature support that response: One who can prove copyright infringement can often get both an injunction and stiff statutory damages. Acting individually, the parties might stand firm or be pushed by the costs of legal uncertainty to settle their differences, but the service provider in the middle changes the calculus.

The intermediary service provider rarely wants to risk outsize damages or get into negotiations with copyright claimants and small content-posters, and so tends to take down rather than face even a remote chance of liability. If, on the other hand, intermediaries’ secondary liability were limited as it is for defamation, content creators would be freer to make and defend fair use arguments. A liability rule or compulsory license, enforcing rights through payment rather than removal, could leave these items in the public view.

Absent copyright reform, we’re stuck with the likelihood that clever montages — which depend on pulling content from many sources — get popped even more quickly than tech bubbles.

December 19, 2007

Year-End Giving

Filed under: law — wseltzer @ 2:20 pm

Whether it’s holidays or the close of the tax year that motivates, it’s a good time for generosity to non-profit causes. Here are some of mine:

The Tor Project, Inc.The Tor Project, Inc. develops anonymity software to help users navigate the web without being tracked — helping whistleblowers blog anonymously and dissidents browse past national firewalls. The Tor Project will be concluding its first year as a 501(c)(3) non-profit, and I’m proud to be on its Board of Directors. While your there, download the Tor software and add a node to the anonymity network.


Electronic Frontier FoundationElectronic Frontier Foundation relies on members’ donations to champion online freedoms in the courts. Its litigation against AT&T for participation in warrantless wiretapping has helped to expose the depth of the administration’s evasions. While you’re there, keep the pressure on congress to let the public hold telecommunications carriers accountable when they break the law.


Creative CommonsCreative Commons celebrates five years of helping creators to share their works and the public to find them, through standard copyright-permissions licenses. Science Commons is extending this spirit to enable web-like collaboration in scientific research. While you’re there, search for CC-licensed work or license a work of your own.


One Laptop Per ChildOne Laptop Per Child Through the end of the year, donors to OLPC can give one and get one — give one laptop to a child in a developing country and get one of their rugged yet open-source machines for your (inner) child.


Free Software FoundationFree Software Foundation produces both great software and the original great legal hack — copyleft. Grab some free software while you’re there.


ACLUAmerican Civil Liberties Union isn’t tax-deductible, but we need allies lobbying for our rights in Washington too.



Amnesty InternationalWGBHPlanned ParenthoodRhizomeOpen Rights GroupWitnessThe Harvard Crimson Financial Aid FundNature ConservancyWikipedia

December 3, 2007

Facebook Founder Sees Contextual Privacy — when it’s his records decontextualized

Filed under: law — wseltzer @ 2:32 pm

I’ve criticized Facebook lately for its new “beacon”-based advertising, using Facebook cookies to bring information from outside e-commerce transactions into the Facebook newsfeed. Rent a movie on and, unless you were watching carefully, Facebook would tell your friends you spent Friday night watching “The Blob.” In response to user protest, Facebook has now changed the notification sequence so that these external items don’t post until you acknowledge them, though there’s still no way to opt out globally.

My chief privacy complaint with the initial beacon model was the loss of context, a concern others raised as well . While you might have known that your movie choices weren’t secret — after all, Blockbuster has to get the movie to you — you might have expected your purchasing context to be separate from your social network. The choices you’d make provisioning for a rainy night at home might differ if you expected friends to be peeking in the windows, and it should be your explicit choice whether to open the blinds.

So it’s interesting that when Harvard rag 02138 posted documents, including Facebook founder Mark Zuckerberg’s college application, produced in Facebook’s ongoing litigation with ConnectU, Zuckerberg wanted privacy and context. Citing “context,” Facebook asked a federal judge to order 02138 to remove the documents, which had been filed under seal and apparently erroneously disclosed. The court refused.

As the New York Times reports:

Facebook said in a statement Friday. “One reason the court ordered certain documents’ protection was to prevent exactly what has happened: misusing documents and taking documents out of context to sling mud.”

While I wouldn’t wish the unceremonious unsealing of college writings on anyone, I do hope Facebook pursues its new-found interest in contextual privacy. What’s appropriate to one setting isn’t necessarily appropriate for all.

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