Information Law Possum (discontinued)

Please read the following message: 

“Karen McCullagh, PhD student at the Cathie March Center for Census and Survey Research, University of Manchester, is doing a survey on privacy attitudes and behavior of bloggers. Besides, some of the questions also deal with copyright issues.

This empirical work is very important because it will enable me to critically assess whether I’m on the right track with privacy legislation, especially in Europe!

So please take the survey if you have your own blog.

Thanks,

The Law.”

John Palfrey, on the basis of a comment to YouTube’s copyright liability risks, has made a very important and outside-the-box suggestion as to how to deal with the present copyright uncertainty in the digital realm:

“One might imagine a process by which citizens who create user-generated content (think of a single YouTube video file or a syndicated vlog series, a podcast audio file or series of podcasts, a single online essay or a syndicated blog, a photo covering the perfectly captures a breaking news story or a series of evocative images, and so forth) might consistently adopt a default license (one of the CC licenses [...]) for all content that they create, with the ability also to adopt a separate license for an individual work that they may create in the future.

In addition to choosing this license (or these licenses) for their work, these users registered this work or these works, with licenses attached, in a central repository. Those who wished to reproduce these works would be on notice to check this repository, ideally through a very simple interface (possibly “machine-readable” as well as “human-readable” and “lawyer-readable,” to use the CC language), to determine the terms on which the creator is willing to enable the work to be reproduced (though not affecting in any way the fair use, implied license, or other grounds via which the works might otherwise be reproduced).

Some benefits of such a system:

- It would not affect the existing rights of copyright holders (or the public, for that matter, on the other side of the copyright bargain), but rather ride on top of that system (which might have the ancillary benefit of eventually permitting a global market to emerge, if licenses can be transposed effectively);

- It would allow those who wish to clarify the terms on which they are willing to have their works reproduced to do so in a default manner (i.e., “unless I say otherwise, it’s BY-SA”) but also to carve out some specific works for separate treatment (i.e., “… but for this picture, I am retaining all rights”);

- It might provide a mechanism, supplemental to CC licenses, for handshakes to take place online without lawyers involved;

- It might be coupled with a marketplace for automated licensing — and possibly clearance services — from creators to those who wish to reproduce the works;

- It could be adopted on top of (and in a complementary manner with respect to) other systems, not just the copyright system at large as well as worthy services/aggregators of web 2.0 content, ranging from YouTube, software providers like SixApart, FeedBurner, Federated Media, Brad Feld’s posse of VCs, and so forth; and,

- It would represent a community-oriented creation of a market, which ultimately could support the development of a global market for both sharing and selling of user-generated content.”

John concludes:

“This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.”

I think, the main strength of this approach is — besides transparency and legal certainty — its potential for automatization of licensing. “Traditional” rightsholders as well as potentially liable intermediaries might be well advised to foster creating this system, as they could benefit from it themselves:

• Rightsholders could benefit in three ways: First, they could signal that they don’t want people to use their works for certain purposes, and that their works are n o t CC-licensed. Second, they could use the system to license their works for a fee.
• Intermediaries could prevent abuses of their notice-and-takedown mechanisms, for instance requiring that a work be listed in one of the central repositories/clearinghouses and that the rightsholder argue that the use of the work he or she wants to be taken down violates the terms of the machine-readable license.

More theoretically, it would be interesting to see if we can design a rights management layer to the internet whose default rule is on “open”, in contrast to the “closed” default rule of DRM protected works their protection by hardware.

In this way, John’s system could be very meaningful for Google, YouTube & Co. I hope that not only the intermediaries, but also the “copyright industry” have learned the copyright industry’s lesson of the late 90s/early 2000s, and that they will proactively help users in shaping copyright’s digital future.

An update to the resume story

The Russian Yale student decided to end his fifteen minutes of fame:

First, he sent a cease and desist letter to IvyGate, the Ivy League gossip blog that posted his video on Youtube and on the blog itself.

Second, he made a DMCA complaint with Youtube:

From: DMCA Complaints
To: ivygate
Date: Oct 10, 2006 9:06 PM
Subject: Video Rejected: Copyright Infringement

Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification [...] claiming that this material is infringing:

IvyGate: Worst Resume Ever: http://www.youtube.com/watch?v=sjRZgmc3RyQ

[...]

Sincerely,
YouTube, Inc. 

As a consequence, IvyGate decided to host the video directly on its server, making a fair use claim with respect to the video.  They also might want to report the letter to chillingeffects.org.

Intermediate result: 1-1. The video and the resume are still online, but less easy to retrieve than before. As many cases before, the story tells us that it’s impossible to contain the dissemination of unwanted information over the www. This may be a good thing or not, depending on from whose perspective the information is unwanted (the Russian student, President Mugabe, me).

What is sad from a policy perspective is the fact that copyright law seems to be a more effective privacy enforcement tool that the law of privacy itself.

An anonymous source provided me today with the latest Wall Street gossip: A Russian Yale college student entrusted his resumé plus motivational video to a well-know Swiss bank.  The resume sounds impressive, and so looks the video, especially the scene where the job applicant smashes a pile of bricks with his hand.  What’s even more impressive is the idea that thousands of investment bankers in New York, London, Frankfurt, Zurich or elsewhere are taking the time to share this information despite their 18 hour days, which arguably adds anecdotal evidence to the informational signaling theory. Anyway, the job applicant deservedly got his fifteen minutes of fame, which will save him a lot of introductory talk once he starts working in the business.

From this perspective, he seems a bit ungrateful, as he announced a host of lawsuits for public disclosure of private facts, which might not be a better idea than adding the ballroom dance scenes to his video.

In the meantime, some compliance officers might wonder whether they should recommend that the whole investment branch of their bank be fired or just the guy who forwarded the information first.  Seriously, this incident shows us that email usage policies are extremely difficult to enforce:  Firing a scapegoat HR staff assistant won’t likely scare the wits out of those who forwarded the information in the 1+nth instance, and I don’t think it should because gossip of that kind, as annoying as it may be for the subject, is part of everyday social life and much more harmless than many (or most) other forms of social interaction, such as mobbing, intrigues, and what we name in German “the use of elbows” to bring forward one’s carreer.

So, to terminate “Ivygate”, I suggest that the bank which leaked the information give the student the job he wants and let him use his elbows (only figuratively, please, we don’t want a bloodbath!) against all the guys who already made his acquaintance online.

By the way, if Switzerland had jurisdiction over the case, the person who initially forwarded the resumé to his or her friends would face imprisonment of up to 90 days and a fine of up to USD 30.000.  I don’t think it’s necessary to comment on the appropriateness of this legal solution to the problem.