Today’s Internet Law Tip: Common Sense

Just now as I was perusing through the Threat Level Blog, three stories in particular caught my eye. Because after reading each, I had the thought: Don’t these people know how the Internet works? Therefore, I offer these three bits of advice for Internet users everywhere.

(1) If you are a government agency, do not use Wikipedia as a resource when making major decisions.

(2) If you are a hacker, do not post pictures of your cat that have personal information about yourself in the background.

(3) If you are front-page news because of your involvement with a Vice Presidential candidate, take down your MySpace page.

My graduate school adviser always made the point to her online communities class that in twenty years, we won’t be able to run a presidential election without having to deal with the media dredging up blogs where the candidates once spewed their teenage angst. That day may be coming sooner than we think.

IP’s Next VIP? You!

From my recent posting at JETLawBlog:

Managing Intellectual Property, a global magazine not just for lawyers but for large businesses and other intellectual property owners, recently released its annual list of the most influential people in the world of IP. The top ten include names like Francis Gurry, the deputy director of WIPO, and Chief Judge Paul Michael of the Federal Court of Appeals, known for his patent decisions.

The number one spot? “The avatar,” Second Life. This, of course, refers to the virtual representation of the user/player in the online virtual world Second Life. As noted by Managing Intellectual Property:

No conference on intellectual property today, it seems, is complete without a session on them; no textbook or learned article comes without a reference to their implications for IP rights owners. Wherever you look, people are talking about online worlds such as Second Life.

Interestingly enough, SL (launched in 2003) has been growing lately… while at the same time attracting fewer new users. The growth is economic, suggesting that the already-highly-engaged SL regulars are intensifying their interest in and use of the world, even if the appeal to new users is fading. But meanwhile, the legal interest in SL is also intensifying. With virtual worlds beginning to supplant the novelty value of the Internet in terms of cutting edge law, more and more legal scholars are considering issues of “virtual law,” particularly in regards to intellectual property.

Legal practitioners are carving out a niche in the world as well. The Second Life Bar Association even offers virtual CLEs and legal lecture series. Where else can you get continuing education credit while “sitting” between a giant rabbit and a lawyer in an impeccably tailored suit (who also happens to have alien-green skin)?

In any case, Managing Intellectual Property seems to be hitting the mark in terms of the Next Big Thing in IP… it may not be Second Life in particular, but with everyone from EA Games to Google working on their own virtual worlds, the legal issues aren’t going away anytime soon. The celebration of “the avatar” reminds me of Time Magazine’s Person of the Year for 2006: “you.” Like Web 2.0 content creators and movers-and-shakers, you are the heart of virtual worlds, you and your avatar.

Image Source: flickr/pathfinderlinden

Free Speech! Gerunds! Death!

Tying into my most recent post, apparently (as Jim MacDonald at Making Light put it) Time Magazine has discovered Internet comments. It always amuses me when mainstream media picks up on something that’s been around for ages and treats it like it’s something new and shiny (actually, my whole note was about how user-generated content isn’t quite as shiny as people seem to think). Of course, it was John Scalzi weighing in on the issue that made me particularly gleeful.

He brought up one of my pet peeves: uninformed cries of “FREE SPEECH!” when the the concept is completely irrelevant. I think that free speech is one of those nebulous things that everyone knows about but not everyone actually understands. This came up a lot when I was following the Livejournal censorship fiasco. A common refrain from outraged users was that Livejournal was squashing their freedom of speech by deleting communities that it deemed as having “inappropriate” content. However, there’s a fundamental difference between censorship and trampling your first amendment rights. Private entities are allowed to censor. They can censor you all they want. Livejournal could decide tomorrow that it’s going to delete every user who blathers on about their cat because it has decided that cats are inappropriate. All it takes is a tiny edit to their terms of service. Likewise, John Scalzi can edit the comments in his blog all he wants to, and if he decides “Death to Gerunds!” well, too bad for gerunds.

The first amendment applies to government action. So if Congress passed a law saying that there will be no more blog entries about cats on the Internet, and then forced Livejournal to delete users or face the consequences, then that would be a violation of your freedom of speech. Similarly, your boss can fire you for calling him names… but he can’t have you arrested for it. And of course, there are all the kinds of speech that aren’t free–defamation, copyright infringement, threats, etc.

What this all boils down to is this: You can have all the free speech you want, and you can do it by starting your own blog. But if you’re in someone else’s, then they can censor you all they want.

On the Internet, Everyone Knows You’re a Jerk

For most people applying to law school, the applying part is a huge deal. I would say that even more so than for undergraduate or graduate school, where you go matters. A lot. Maybe it’s elitism, or maybe it’s just the reality of how many lawyers and how many law schools there are in this country. But especially if you don’t necessarily want to work in the same area where you go to school, the farther down the rankings you go, the more geographically limited your job choices become.

There are, therefore, tons of books dedicated to how to get into the best law schools (though my advice is, unless you’ve done something extraordinary with your life already, save your money on the books and buy LSAT prep guides instead). There are also tons of websites dedicated to would-be law students tracking their admissions/rejections/etc. Because the worst part is the waiting game, and it suddenly becomes a numbers game to try to predict your odds based on what’s happening with everyone else.

I remember visiting AutoAdmit.com during that time in my own waiting phase, though I never posted there and rarely visited because to be honest, it was full of jerks. Now, I’m used to an Internet full of jerks. You know what they say: On the Internet, nobody knows you’re a dog. Nobody knows anything about you unless you want them to, which means that you can be as much of a jerk as you want, and somehow it doesn’t matter. I actually have to agree with this Penny Arcade cartoon when it comes to theories of anonymity (pardon the profanity, but it really is quite accurate when it comes to many people). In any case, the people posting on this forum, who were supposedly the “best and the brightest” given that they all thought (or pretended to think) that they were getting into top-ranked law schools, made me wonder just how much I wanted to go to those schools, if it was going to be filled with people like that (a common refrain was that would-be law students should just commit suicide if they only got into a school ranked, say, 15, instead of 10… out of hundreds). But I think that the Penny Arcade equation works backwards as well–once you take away someone’s anonymity they turn right back into a normal person. Because being a jerk in the real world has consequences.

That said, it turns out that there may be consequences for the anonymous as well. I will be completely honest with you: I’m torn on this issue. I’m torn because I’m a firm believer in free speech, especially on the Internet, and I’ve never liked the idea of “outing” people’s real identities when they choose to use pseudonyms. (There has been a recent kerfuffle about this in fandom concerning the Fan History Wiki and use of pseudonymous fans’ real names–that is the sort of thing that I am very much against.) However, the last thing we want to do is cultivate a culture of cyberbullying.

In some ways, it seems like justice, what is potentially happening to these posters, at least in terms of “reap what you sow.” I actually had an experience several years ago where someone used my full name on the Internet in an unflattering way, and the page showed up in Google results for my name. That sort of thing can do serious damage if you are, for example, a young law student looking for a job (again, why law professors always tell you to take down your Facebook page). So I understand the grievances of the two women in this story. But the damage done to them is nothing compared to the damage that will be done to the offending posters. After all, Anthony Ciolli already lost a job over it, and he wasn’t even the one who wrote anything inflammatory. If these anonymous posters are listed in court documents by their real names, they can pretty much kiss their desired legal careers goodbye. These are guys that might just have graduated in May from Harvard or Stanford (or maybe not–it could be that the biggest jerks are the ones who feel inferior).

This is all such a huge mess that it’s honestly hard to make heads or tails of it. The bottom line is: I just wish everyone would stop being such jerks. Because on the Internet, that might be all anyone sees.

DMCA: Like Taking Music From a Baby

From my recent post at JETLBlog:

Most of you have probably already seen the above video by now. After all, if there’s one thing that Ally McBeal taught us, it’s that there’s nothing better than a dancing baby–at least if that baby is dancing to legally licensed music. Hear that song in the background? It’s Prince’s “Let’s Go Crazy,” and Universal Music was none too pleased to see this video on YouTube. After all, the mom who posted it didn’t go through the legal channels to get a license to the song playing in the background on the radio.

This sounds pretty silly, and the Electronic Frontier Foundation thought so too. After YouTube took down the video based on a DMCA claim, they subsequently put it back up six weeks later with a concession from Universal Music that the use of the song in the video fell under fair use. However, the mom in question, along with EFF, fought back. They filed suit under a little-used section of the DMCA allowing victims of meritless takedown notices to seek damages.

The case went to trial on Friday. Universal Music’s lawyers call this a case of first impression, making a legitimate distinction: in previous cases like this one, damages were awarded because of a false representation of copyright ownership. Here, Universal Music does own the copyright to the Prince song. So the question is whether there can be a misuse of the takedown notice where fair use is involved–or, as the judge noted, whether there can ever be misuse if there is indeed a legitimate copyright.

This is actually a very interesting issue, considering that fair use itself is basically judge-made law. Though there is precedent for what is fair use and what is not, it is litigated on a case-by-case, specific facts basis. However, even if Universal Music wins, it seems likely that they and companies like them will think twice about issuing takedown notices where the situation barely passes the laugh test, as that little clip of a dancing baby is certainly turning out to be more trouble than it was worth.

The judge did not indicate when he would rule. With the judge still out on the Harry Potter lexicon case as well, we could be seeing huge changes for the face of fair use in the near future.

The Elephant in the Room

Cafe Press shirt titled "I Smell a Democrap." ...clever.

I’ve been wondering when there would be a big trademark kerfuffle concerning Cafe Press, and I think the fact that there hasn’t been so far says something good about their legal team and attempts to police their user base for infringement. But here it is, finally, and who’s yelling fire? The Republicans!

Of course, what I think is pretty amusing about the whole thing is that whereas the Republican party does own the trademarks to “GOP,” “Grand Old Party,” “Republican National Committee,” “RNC” and the official GOP elephant logo, it’s not as if it’s for the purpose of making money. If someone wants to put the Republican logo on a shirt, the majority of the time it’s because they want to show their pride as a Republican. You know that I call that? FREE ADVERTISING. Or at least, free campaigning. I mean, there’s a reason that candidates give out bumper stickers for free, right?

According to Wired blogs, the Cafe Press attorneys are making that exact point. If you look through the site, yes, there are some products that use the GOP trademarks in a critical way, but most are positive. (In the example above that I found with a quick search, we actually have a positive use of the Republican trademark and a negative use of the Democrat one.)

Does this matter? Legally, probably not. I expect Cafe Press will just end up taking down the infringing materials. I just don’t get why the Republican party chose this particular battle to fight. Isn’t there a bigger one going on right now?

How Has the Internet Affected Politics?

Barelypolitical.com, home of the infamous Obama Girl, posted this video on YouTube, in which the brains behind several prominent websites (Craigslist, MySpace, Wired, YouTube, Idealist.org, etc.) attending the Personal Democracy Forum spoke about the effect of the Internet on politics:

One of my favorite comments was how Hillary Clinton’s website was like “the PC version of the PC versus Mac debate.” A lot of this is fluff (and self promotion), but it does bring up the point that (I really hate this term) the “blogosphere” has had an amazing affect on politics. And though we were starting to see it in the 2004 election, this presidential race is really the first one that (I think) could be won or lost in the blogs. After all, the Bush/Kerry race was pre-YouTube. And now? Yes We Can won an Emmy. A political ad.

You might call me a cheerleader for user-generated content, and here’s another reason why. The world would simply not be as interesting a place without this video, featured not only on The Huffington Post, but in this week’s Entertainment Weekly:

Apples to Oranges… or Apple Pies to Orgies

In my latest post for JETLaw Blog, I wrote about some recent cases involving community standards for obscenity. I’ve never been a big fan of the Miller test being applied to the Internet because of relevance/jurisdictional issues. But the core issue to me is: which community, the Internet one or the geographic one? I first started thinking about this during the first Livejournal censorship fiasco. Because whereas I kept having to gently remind people that it’s not a first amendment problem if a private company tells you what kind of material you can or cannot post in the community that they own, once Livejournal started citing obscenity laws (and Miller in particular) as the reason for the sudden policy change… that’s when I saw a potential problem. After all, the community of people who use Livejournal will be exactly the same whether the servers are located in San Fransisco or Salt Lake City.

So all that said, I found the case of the lawyer using Google trends as “proof” of community standards to be pretty interesting. According to him, the fact that more people run searches about orgies than apple pie means that the residents of Pensacola, Florida may not know as much about their neighbors’ “standards” as they think. So as a little experiment I decided to find out some more about the standards of my current community. Here is a representation of how often Tennessee residents run searches about “porn” compared to “football”:

Hmmm. Well, I’m not sure what this tells us about obscenity standards, but it does show that my friends and neighbors are less interested in pornography during football season. Good to know.

The MySpace Suicide Case: When Good Verdicts Make Bad Law

The tragic death of 13-year-old Megan Meier, highly publicized in the beginning of this year, has made its way into the courtroom. This should not be surprising, since generally when a child dies, we want someone to blame, and in this case there is someone – Lori Drew (or rather, Lori, her husband, their daughter, and a friend). Megan committed suicide after being rejected by “Josh,” a false persona created on MySpace by the Drews. Their intentions? It’s unclear, but the result was the confusion and heartbreak of an already fragile young girl.

Originally there were no criminal charges filed against the Drews since investigators found that their actions, while cruel, did not break any laws. However, a little over a month ago, Lori Drew was indicted under a criminal computer fraud statute. The theory of the case is that when Drew registered the account for “Josh” on MySpace, she agreed to provide truthful and accurate information and refrain from promoting anything intentionally misleading. Because she violated this agreement, the federal government was able to charge her with conspiracy to access MySpace without authorization.

Clever, huh? In a way, this seems right – a loophole in the law to allow some consequences for intentional cruelty, some justice for a dead girl. After all, the public outcry about this case was huge – according to the New Yorker article, the local police received phone calls from as far away as India begging them to do something. It is a highly sympathetic case.

But the thing about the law is that a single case sets a precedent. Whether a reward or a pitfall of a common law system, you decide – but in this case, it seems clear that a highly sympathetic set of facts could make very, very bad law. The danger is this: that every terms-of-service violation is a federal crime. Considering that the majority of people don’t even read a TOS contract before clicking through it, they might as well lock us all up right now (between that and the RIAA music downloading cases, they may run out of space soon, though).

Remember how the feds finally got Al Capone for tax evasion of all things? Well, as the WSJ law blog pointed out, now all the government has to do is prove someone violated some random website’s TOS in order to have an excuse for criminal charges. I think that everyone feels for poor Megan, but I wish they could have made some sort of harassment charges stick to Drew instead.

In the meantime, just in case? You may want to make sure you’re not lying about your favorite book on your Facebook page just to make yourself look smarter.