Category Archives: CopyFUD

The Tyranny Of Terms: How Zillow Is Overreaching

“Never go full Corinthian.”

The blog McMansion Hell (if the link isn’t working, read on to find out why) is dedicated to pointing out the architectural problems with houses commonly called McMansions.  Kate Wagner, an architecture critic, started the blog some time ago but recently received some mainstream press coverage in the form of a Washington Post video on her work and prominent inclusion in an article about McMansions.  Her blog included pictures of McMansions with annotations of what made the house ugly in her eyes, pointing out the various common flaws inherent to McMansions.

Shortly after the video and article started making the rounds on social media, Zillow sent the following letter to Ms. Wagner:

Ms. Wagner is currently in the process of moving her website from Tumblr, the original host, to a new host which may be why the link isn’t working if you’re reading this shortly after I wrote it.  And the good news is that Ms. Wagner was able to obtain legal representation in this fight (the EFF), because this is a fight worth having.  While we’ve seen instances of social media platforms wrongly accused of overreaching with their terms, here is an example of a platform wrongly asserting rights that don’t belong to it.

Leaving aside the fair use argument that Ms. Wagner is providing commentary and criticism on these photos, which this Mashable article effectively summarizes, the biggest concern I have is Zillow’s letter itself and how it interprets its own terms of service.

Zillow’s biggest complaint is that Ms. Wagner admits to gathering these images from Zillow, a well-known website and app that provides house listings.  But Zillow does not own the copyright to these images–they expressly said so in their letter as they attempt to address any potential fair use argument (although that’s not their issue to address because they don’t own the photos).

Instead, Zillow is alleging that Ms. Wagner’s act of copying photos that are on the Zillow website violated their terms.  That’s what the case, if there is a case (and I highly doubt Zillow will continue to pursue this through judgment), is all about and it all depends on some rather broad readings of their own terms.

Here, for example, is one section of Zillow’s terms they claim Ms. Wagner violated:

You agree otherwise not to reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Services.

These clauses are common on social media platforms and refer to the platform itself.  The buttons, the interactive features, all of the bits and pieces that make a functional platform are certainly right and proper for a platform to protect.  But when you create a platform that hosts content, the content you’re hosting doesn’t become a part of your platform.  This concept is what has allowed platforms to benefit from Safe Harbor provisions in copyright laws, for example–they conceptually draw barriers between a platform and the content so the platform doesn’t become an infringer.

It’s somewhat bizarre to see a platform destroy the barrier between content and functionality in one of its arguments.  For Zillow to argue that the pictures they host are now part of their services is to ignore the ownership and proper use of the content itself, not to mention opening themselves to much greater exposure.  If Zillow uses this clause to assert intellectual property rights in images posted by users, does that mean they are also subject to lawsuits for infringing content posted by their users?  What if I copy a famous series of house interiors published in Architectural Digest and post those as a listing on Zillow?  Should the rightful owner of those photos sue me or Zillow?

Zillow also references a provision in their terms that prevent the copying of images in their listings.  They didn’t cite the specific language, but let me do so:

Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.

Wow, that’s a mouthful, right?  This is exactly the kind of term that makes most people’s eyes gloss over.

That clause has a lot of prohibitions in there, and yes it does include a prohibition about copying the images available, but there are two kinds of problems with this term.  First, it’s a backdoor attempt to assert copyright protection without owning the copyright.  Copyright holders get to decide when an image can be copied, not one of their customers.  Copyright law allows the owner of the photographer to restrict how an image can be used and here Zillow is attempting to take those rights without informing the copyright holder.  Quite to the contrary, when you upload photos to Zillow you give the platform a broad license to use the pictures, but you aren’t assigning to Zillow your rights to enforce or protect that photograph.

So if Zillow doesn’t have the right to prevent this copying in copyright law, does it have some kind of right to restrict how the copying is done on its own website?  That’s possible, except that a user like Ms. Wagner who copies a photo from Zillow doesn’t use Zillow to make the copy.  She uses her web browser or other software to copy the image that was already transmitted to her computer.  Zillow is either taking over the rights of a copyright holder or is attempting to insert themselves into the terms of third party software they didn’t write.  Either way, this is a stretch.  This clause is designed to prevent someone from scraping Zillow’s website to set up a competing product–and that kind of activity shouldn’t be allowed but it’s a far cry from what Ms. Wagner was doing.

Also, taking this clause as Zillow interprets it against Ms. Wagner, Zillow would also have a potential case against everyone who has ever posted a link to a Zillow listing on Facebook or Twitter or other social media platform, as those links frequently pull associated images.  Does Zillow really want to go down that road?

Beyond the technical arguments presented in Zillow’s second reason why Ms. Wagner violated their terms, they also present a third reason that connects with the second.  This third reason is that Ms. Wagner’s activity harms Zillow or its suppliers.  And yes, they absolutely have that term:

You agree not to use the Services in any way that is unlawful, or harms Zillow Group, its service providers, suppliers or any other user.

But the spirit of Zillow’s argument here isn’t the kind that most courts will find persuasive.   The activity of viewing house listings and commenting on them happens, oh, EVERY DAY on Zillow.  And off Zillow.  Heck, without that kind of activity being permitted then the TV show House Hunters wouldn’t exist at all and I know several people who don’t want to live in a world without House Hunters.  Posts liks Ms. Wagner’s blog don’t harm Zillow or the listing themselves.  Do they think someone is interested in buying a multi-million dollar house but not if someone posted a snarky comment about it online?

It seems like Zillow was deeply upset that someone was using their website for anything but buying a house, and while I can understand that I can’t exactly sympathize.  So long as a social media activity isn’t actually harming you, you leave it alone.  Attempting to stifle the conversation only results in the Streisand Effect, as we’re seeing in full effect right now.  Ms. Wagner’s blog had some interest among architecture fans and some mainstream interest after the WaPo article.

But that interest is NOTHING like the interest her blog is going to have now that Zillow has sent its nasty gram.  If Zillow was truly interested in shutting down this kind of commentary based on their overly broad reading of their own terms, they have horribly miscalculated.

Leave a comment

Filed under CopyFUD, Copyright, Fair Use, Social Content, Terms and Conditions

The EU Just Expanded Copyright Infringement In A Really Confusing Way

It's all about the links.

It’s all about the links.

Nudity + Bad Content Laws = Confusion.   While not as popular as the equation E=MC², N+BCL=C is a useful equation for describing a recent decision out of the European Union dealing with copyright and social media.

Copyright and social media are frenemies at best.  On the friend side, social media has given authors powerful ways of reaching audiences that were never previously possible.  Many people make decent livings based on creating cartoons, movies, or audio files that are distributed via social media.  On the enemy side, social media has wrecked havoc with authors’ abilities to control their creative works–the entire purpose of copyright.  Find any image on the Internet, right click on it, and save the image.  Odds are you just infringed on someone’s copyright.  But whose copyright?  And did you actually infringe it or is the author fine with you saving the image?  What if you re-use that image on a Facebook post or blog article?

There are numerous issues with the (lack of) progression in our copyright laws and the rapid development of technology which easily infringes copyrights.  One set of those issues deals with the ability to link to other content on social media.  You may post a link on a blog post or on Facebook that can take a reader from your content directly to other content.  What happens when the content you link violates someone’s copyright?  The issue just became more complicated because of a recent decision by the Court of Justice of the European Union, the top appellate court for the EU.  To understand the implications of that case, let’s dive into the details.

First, the good news: the case deals with nudity as I mentioned at the top.  That’s usually good to keep people interested.  In this case, the nudity at question were naked photos of TV personality Britt Dekker which were taken for publication in the Dutch version of Playboy.  Eleven of those photos leaked prior to publication by being placed on a file hosting site.

GeenStijl (Dutch for “No Style”) is a website that posts stories about current events and scantily clad or naked women in varying ratios throughout the week.  The day that the photos were leaked online, GreenStijl received an email with a link to the photos.  Also on that day, Dutch Playboy, aware that the photos were online, attempted to take down the photos on the file-hosting site but also reached out to GeenStijl asking them not to post the photos.

GeenStijl did not respond to the request.  Instead, the next day, GeenStijl published an article that included one of the leaked photos.  They also included a link at the end of the article which directed users to the file-hosting site that had all of the photos.  Dutch Playboy again wrote GeenStijl asking the article to be taken down.  GeenStijl did not respond.  But the web site that hosted the eleven leaked photos did respond to Dutch Playboy’s request and the photos were removed from that site.

One week later, Dutch Playboy sent another letter to GeenStijl demanding their original article be taken down.  GeenStijl did not take down the original article, instead they published a new article talking about the legal dispute they now had with Dutch Playboy.  The end of this second article contained a new link to another website that had the leaked photos.  Dutch Playboy contacted the website hosting the leaked photos linked in the second article and that website also removed the leaked photos.

Ten days later, GeenStijl published another article with yet another link to a website hosting the leaked photos.  Users of the GeenStijl site filled the comments section of the article with other links to the leaked photos on various hosting services.

All three of these articles were published prior to the actual issue of Dutch Playboy for which the photos were commissioned.  Dutch Playboy brought a lawsuit against GeenStijl regarding these links that made their way through the court system before finally landing at the top appellate court.

Let’s get one thing clear: GeenStijl was a jerk in this case.  That’s not to say they were, at the time and under their understanding, breaking the law.  But they were definitely provoking a publication through their pattern of activities.  And that’s okay–cases dealing with content and speech are often filled with jerks who help bush the boundary and test the limits of the legal system so that the rest of us non-jerks benefit from a greater understanding.  But that may be important in understanding that the courts in this case may not have been inclined to help out a website acting like a jerk.  Unfortunately, their decision may have punished a jerk while also muddying the waters for all legitimate social media users.

By the time the case reached the highest court there was a set of three questions that all dealt with whether GeenStijl had “communicated to the public” (or what we in the US call “distribution” which is one of the protections afforded an author of copyrighted material) by virtue of posting links to protected content.  And here the court ultimately answered the questions with a rather convoluted statement (to be fair, it might be simpler in the original Dutch) which I will attempt to untangle.  By the way, it’s important to note the court didn’t decide the case–rather they were asked to answer some questions and now the answers will be used to resolve the case.  They said it will be hard for GeenStijl to overcome this test given the facts at hand, but another court will have to look at all the details.  Here’s what the court said:

  • To determine if a link to protected content is a communication to the public you must first determine if the link was posted by an individual.
  • If the link was posted by an individual, but they did not post the link for financial gain, and they had no reason to know the linked content was protected, then it is not a communication to the public
  • If the link was posted by an individual for financial gain, or by a non-individual (such as a website), then there will be a presumption that the link was known to point to protected content
  • This presumption of knowledge about the protected nature of the content can be rebutted

Like I said, this probably makes more sense in Dutch.  But for us English speakers, there are two really big problems for this kind of test to determine if a mere link to protected content is a legal violation.

Problem 1: The ruling sets up different tests depending on whether the links were made “with pursuit of financial gain.”

Copyright protections are supposed to protect authors so that we encourage people to become authors.  So it makes sense to stop people posting copyrighted content without the permission of the author because that could financially injure them.  If we are at all concerned about the next level of activity, other sites linking to the unauthorized posting of copyrighted content, then the motivation behind those links should be absolutely irrelevant.

The Court’s test here creates two different tests–one which applies to individuals who are posting links online but not for financial gain, other test for anyone posting for financial gain (which seems to include all websites or activity by more than one individual).  These tests shouldn’t be relevant if we’re concerned with protecting the author.

Consider this hypothetical.  I make a movie.  It’s a really good movie with time travel and robots and aliens and a hilarious road trip in a spaceship and then there’s a big fight with a giant space-Octopus.  I’m in the process of taking this movie to various festivals, maybe seeing if I can sell it to Netflix or some other distribution channel.  Someone working at one of the festivals takes my movie and makes a copy, then posting it on YouTube.  This person posted it on their own site and didn’t give it a descriptive title so nobody watches it.  Then a website stumbles across the YouTube movie and posts it on their website under Movie You Must Watch Of The Day.  A million people watch the movie and now all my interested distributors don’t want to talk to me because my movie is available for free.

At this point, I wouldn’t care one iota whether that website that posted the link is a commercial venture, newspaper, educational institution, or message forum.  Their motivation for posting the link is irrelevant–I have been damaged.  Granted, I’m also upset at the person who posted it in on YouTube in the first place, but if we are going to extend those protections to people who link to protected content why should we even consider their motivation?  Setting up a separate test for sites based on whether they pursue financial gain (because in this day and age more sites pursue a profit than actually achieve it) doesn’t make sense from the perspective of preserving the incentive for authors.

Problem 2: The court presumes that websites pursuing financial gain have magical knowledge

The court’s test says that a post made for commercial gain will be presumed to know that content they are linking to is authorized or unauthorized.  This presumption doesn’t make sense.  From the court’s perspective, such a site should know that content is protected and should therefore have better judgement in posting links because they will know if that linked content was authorized or not.

But here’s the thing: despite certain US Supreme Court decisions hinting otherwise there is no such thing as a corporation that can exercise judgment.  Corporations, websites, any organization is composed of people.  So if one person can’t be presumed to know whether any piece of content on the Internet is properly authorized, how would five people running a website have that breadth of knowledge?  Or even a hundred?  Or a thousand?  Certainly larger organizations with more resources might identify protected content and be able to ascertain if the posting was authorized, whether by virtue of more eyeballs seeing the content or being able to afford some tools to help it identify content, but none of those are perfect.  Trying to substitute the pursuit of profit with having enough resources to presume knowledge of content status just doesn’t make sense in our digital world.

US law on this issue is similar but has an important difference: a website could be liable for linking to unauthorized content if it knew the content was unauthorized but there is no presumption of that knowledge simply because the website is trying to make a profit.  That’s the key distinction.

Also, when the EU court made this a presumption that can be rebutted, they left open a huge loophole.  Let me give you a psychic prediction on approximately 100% of the cases involving this test moving forward: the website that posted the links will say they didn’t know the content was posted without authority in an attempt to rebut the presumption.  That’s 100%, plus or minus 0%.  And the only websites that won’t be able to make this argument will be the ones who, like in GeenStijl’s case, were sent an actual communication by the copyright owner that the content was posted without authorization.

If that’s the court’s intent then they should have just flipped the test.  Instead of presuming knowledge, make a copyright holder tell the website that posts links.  If that seems like too much to ask–because why should a copyright holder have to do the extra work of telling everyone not to violate their rights–that’s because it is too much to ask.  But that’s exactly what the test will ultimately end up doing.

Maybe the court just isn’t as psychic as I am.

 

 

How long this decision by the court is upheld remains to be seen.  Perhaps it proves so unusable at a practical level that it is refined or reversed within the next few years.  Perhaps courts try to cobble together a patchwork quilt of decisions that mostly follow this test but make it workable.  But as it exists right now there are serious problems applying this test to Facebook, Twitter, Google, or any site that hosts a blog (Hey WordPress, what’s up?).  And there are even bigger ramifications for those hosting platforms on trying to set up a process to handle this new test.  Right now, websites that host content are accustomed to having a process where copyright onwers can assert ownership and take down offending content.  Will that system need to be expanded to then impact other sites that link infringing works?  Will a failure to do so make these sites contributing to the unauthorized communications to the public, allowing an additional expansion of copyright protection?

The EU’s decision is too recent to see how it will play out, but keep your eyes peeled.  This could get ugly fast.  Although the court may have been swayed by not wanting to let GeenStijl get away with being a jerk, they may have inadvertently overcorrected the issue and caused more problems than they solved.

Leave a comment

Filed under Commercial Activity, CopyFUD, Copyright, Europe, Facebook, Fair Use, Google, Social Content, Social Platforms

So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

Leave a comment

Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Laws, Personal Live Streaming, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Trademark, Twitter

Oh Hey, Want To See A Great Social Media Law Final Answer?

Final-examsThis is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog.  I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer.  I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year.  Worth Carroll wrote the answer so all credit to him.  If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently?  When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well.  Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions.  Take a read after the break and see if you agree.

Continue reading

Leave a comment

Filed under Affiliates, Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Instagram, Laws, Pinterest, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Technology, Terms and Conditions, Trademark, Twitter

7 Signs Of A Bogus Facebook Privacy Change Post (and why your status update has no impact on Facebook)

facebook_privacy_comic_brian_farringtonEvery September it emerges like a cloud of locusts but far more annoying.  The posts.

Facebook has changed its privacy policy and is going to start charging you tomorrow unless you post the following UCC provisions and use some really strong words to say you DO NOT ALLOW THIS!  It might help if you stomp your foot too.  And you have to copy and paste this, for no good reason other than its funny as hell that people believe this nonsense.

It’s a hoax.  A chain mail joke.  And every year it flies around because people don’t remember it from the year before.  I tried blogging about detecting these hoaxes almost three years ago and the same points hold true.  This year even Facebook got in on the action by publicly telling people it was fake.

facebook

But I decided to make it easier for people to detect these hoaxes with the following list of bogus nonsense that can help you find the next Facebook hoax.  Some of this is a bit of tough love if you’ve been one of the people spreading this rumor–but it’s time for you to put your thinking hat on.  Yes, even while using social media.

The next hoax may take a different form or say it’s for some other reason, so I’m giving you all the ammunition you need to find and kill hoax posts.

1. It asks you to copy and paste something into your status update.

Look, I know your status update is really important to you as a Facebook user.  It’s where we tell people about how much fun we’re having and the great deal we got on something and how we’re really, really tired.  But it isn’t a Magical Contract Box.  You don’t get to put text in it and have that conjure some mystical legal impact like changing your terms with Facebook (check reason number 6) or giving yourself some extra degree of privacy (check reason number 5 below) or avoiding some bogus charge (check reason number 4).  That’s not how Facebook works, that’s not how contracts work, that’s not how life works.

2. It cites some source of information without a link.

You are a sophisticated Facebook user once you’ve been using the platform for more than a day.  So you know how easy it is to link an article, a video, a picture, or many other forms of information.  If a status update starts off by citing some source of information like a Channel 13 or WXYZ or some newspaper you’ve never heard of and it doesn’t contain a link to that original information then I want you to use some critical thinking skills.  “Are they not linking this information because it’s common knowledge or because it doesn’t exist?” I want you to ask yourself.  And then I want you to realize that you have no idea who Channel 13 is and why should you trust them.  And then I want you to ignore the status update.

3. It pretends to be legal by mentioning the UCC or Statute of Rome or some such nonsense.

Look, I get that the legal system can be a bit mysterious because lawyers want to keep a reason for suffering through law school for three years.  So part of this is on us–you don’t know what the UCC is except now I’m going to tell you.  The UCC isn’t a law.  It’s a code that is recommended to states to make a law and have it be common across all states (the U stands for Uniform).  But it isn’t a law.  So any status update that cites the UCC like it’s a law?  Immediately bogus.  Also if you see something that vaguely sounds like a law, like the Statute of Rome, think to yourself “Do I live in Rome?”  If you do, I want you to get on your scooter and go drive around a bit.  If you don’t, I want you to ignore the status update.

4. It says Facebook is about to start charging you.

I’m not saying that Facebook will always be free–that’s up to Facebook.  They said they are always going to be free (see that post at the top) but they could change their mind.  But even if they did change their mind, let’s think about it for a second–if Facebook were going to start charging its 1 billion plus users do you think you would find out about it the day before it happens?  And do you think you would find out about it from a status update?  An unsourced status update with no link that likely comes from one of your friends who, let’s face it, don’t post any technology news ever?  Nope.  If Facebook were going to start charging everyone you can be sure every news outlet would cover it and Facebook would be getting ahead of the message by alerting every user the moment you logged onto Facebook.

5. It tries to use anything but the Privacy settings to, you know, impact your Privacy settings.

Facebook has an incredibly robust Privacy settings page.  It’s grown over the years, partially as a reaction to users asking for more Privacy settings.  But while you can access many settings when you post something (like who can see it, what information it includes, whether it has a location, etc.) and you have many more global Privacy settings available via that funky lock icon in the top right corner of every Facebook page ever, one of the few places where you can’t change your privacy settings is by posting text in your status update.  Because I know how important your status update is to you and your friends–but Facebook isn’t reading everything you post.  Nor are they setting their computers to constantly monitor your status update to see if you’ve signaled some new relationship between yourself and Facebook.  This is mostly because you’re being paranoid, but it’s also because…

6. You don’t get to modify your agreement with Facebook

Well, okay, that’s a bit harsh.  You do have one way of modifying it–you can delete your account.  Although even then the Facebook terms you accepted when you signed up have some applicability, namely as in what happens when you delete your account.  But those terms you accepted when you signed up?  Yeah, those were actually a contract and you don’t get to modify them without Facebook agreeing.  Just like if you pay your rent by sending a check to your landlord and write a note on it saying “I hereby change my monthly rent to $5” that’s not going to work.  The terms apply to you.  The fact that you chose to accept them without reading the document?  Guess who’s fault that is?  Hint: not Facebook’s.

7. It says you must copy and paste, not share.

It seems silly that I’m even listing this one but it irks me.  Besides the notion of having any status update with a legal impact, why would anyone think that copying and pasting is somehow more impactful than sharing?  Have you ever signed a contract, ever?  Of course you have–you’ve agreed to terms, you’ve signed up for cell phone plans, maybe you’ve bought a house or leased an apartment.  Were you handed a paper to sign or told to check a box?  Of course you were.  You were never  asked to write out a paragraph word for word so that it would apply to you.  That’s just silly.  Stop being silly.

 

There.  Seven ways to detect a hoax post about Facebook’s privacy policy or a lot of other topics.  We don’t need to do this again, do we?

Sigh.  Yeah.  See you next year.

 

Leave a comment

Filed under CopyFUD, Copyright, Facebook, Laws, Privacy, Social Content, Social Platforms

So You Want To See A Social Media Law Final? (2015 Edition)

Readers who were smart enough not to attend law school (congrats on that!) may not realize that a law school final is serious business.  The vast majority of your classes during those three years will have you reading and discussing cases and listening to a professor for an entire semester; then you get one test and that’s your grade.  No repeats.  No making it up down the road.  One and done.  Scary stuff.

Readers of this (increasingly infrequent, sorry) blog also know that I teach a class on Social Media Law at the University of Texas School of Law.  This past year was the third time I offered the class and it’s always interesting to see the issues that have emerged from year to year or even during the year I’m teaching.  I also spend a lot of time thinking about the final, both because I want it to be interested and because I want the students to have ample opportunity to show what they’ve learned over the entire semester.

Below is the final from my 2015 class.  (Here’s the final from last year and here’s the final from 2013 if you’re curious.)  I wanted to post it now to give you some time to think about it (or discuss in the comments).  Later I’ll post what ended up being the top grade in the class’ answer (yes, I asked for and received permission to post it).

Before I get into the text of the final, let me thank the inspiration for elements of these questions: my work SMaC team for pulling social media lessons from the movie Chef, the movie Real Genius, my youngest son Isaac who thinks “Poo-poo” is the funniest word ever (he’s not wrong), and many real world examples that I tweaked for this exam.

And now, the final exam:

QUESTION ONE

Fresh out of law school and after passing your Bar exam, you are quickly snapped up by a hot new company called Pop-Up Pop-Ups (PU2).  PU2 has a unique business model where they partner with other companies to create mobile marketing experiences.  In the past, PU2 has worked with a volleyball company to hold an impromptu volleyball tournament in the middle of a city block.  PU2 has also worked with fashion companies to hold flash mob style runway shows in unexpected locations such as rooftops and swimming pools.  PU2 prides itself in organizing events that shock its audience and get people talking.

PU2 picks the locations for its events by identifying certain key social media users and targeting an experience around this individual, hoping that the individual will then be the origin for a cascade of social media posts that gets the word out about the event.

The CEO of PU2, Mr. Knowslittle, lets his staff handle the social media elements of the business.  This past year he saw the movies Chef and Catfish and now thinks social media might be a risky area for him but he knows his team relies on social media to conduct their business.  He has asked you to advise him on any practical or legal risks his business might face due to social media and to put them in perspective with the potential benefits his company could receive.  Since he has never used any social media platforms but really enjoyed the movies Chef and Catfish, he would like you to use examples from these movies to help illustrate your points.

Compose an email to your CEO advising him about his company’s social media risks and potential rewards.

QUESTION TWO

PU2’s latest marketing stunt involved building a giant pyramid in Times Square.  An actor wearing sun-god robes stood on the top of the pyramid while a hundred other actors stood at the base of the pyramid and threw little pickles at the sun-god.  Your CEO is unclear what this event was supposed to promote but it did receive a lot of attention on social media.

During the event, the well-known action movie star Arnold Schwarzeblecher (“Arnie” for short), was filming Total Recall 2: Totaller Recall nearby.  Seeing all the commotion, he came to Times Square and proceeded to take part in the event.  He laughed, he cried, he said it was better than Cats as he stood and threw little pickles.  Several bystanders saw Arnie participating in the event and they all took pictures and videos and posted their content to social media.

When Arnie returned to his trailer he had several urgent messages from his public relations team.  They saw all the posted content and, even worse, so did a number of entertainment websites who are now running articles that Arnie is working with PU2 to promote…whatever the pickle throwing event was supposed to promote.

Arnie’s team is demanding you pull down all content using Arnie’s image.  Your CEO, Mr. Knowslittle, has received some of these demands as well.  Not only does he want to keep the content up but he’d also like to start posting some of these pictures and videos directly from all PU2 social media accounts (“Whatever those are,” he says, because he still doesn’t really get it).

Compose an email to your CEO addressing the demands from Arnie’s public relations team as well as Mr. Knowslittle’s desire to post this content from PU2 accounts.

QUESTION THREE

Your CEO, Mr. Knowslittle, has sent the head of Human Resources to speak to you about an employee matter.  The Marketing Department had extended an offer to a new Event Manager, Helen Clueless, a week ago.  Helen accepted the offer almost immediately and the team had been thrilled to bring in their newest team mate.

Some of Helen’s strengths which carried her through the interview process were her extensive social media skills and ability to build online communities.  She had built her personal brand on Twitter and had an account with over 20,000 followers at the time of her interviews.  The hiring manager, unsure of how to handle Helen’s Twitter account during the interview, was especially careful not to read the content of Helen’s tweets and ensured that everyone involved in the hiring process did the same.

After the Times Square pickle throwing, Helen tweeted out several messages that are highly critical of PU2.  Some examples include:

  • I cannot believe I’m starting a job next week with this company. #picklethrowing
  • Sure, the job pays well, but am I going to work on stupid events like this for the rest of my life? #picklethrowing #worstjobever
  • Please, Twitterverse, find me a job before I start working for these morons. #picklethrowing #willworkfortweets
  • Just wish my last gig hadn’t fired me for that drug bust. #justpot #legalizeit

The last tweet caught the attention of HR in particular and they then reviewed the content of her Twitter account.  They discovered dozens of tweets referencing drug use and other behaviors that are clear violations of your Code of Conduct.

To make matters worse, now other people are starting to reply to Helen’s tweets and including PU2, asking your company if they really hired someone who is just going to insult her employer before she even starts her job.  HR would like to know what options they have regarding Helen.

Compose an email to your head of HR and CEO advising them on what they can do about Helen and if there is anything they should change in their hiring practices to mitigate this risk in the future.

3 Comments

Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Informal Tone, Instagram, Laws, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Trademark, Twitter

4 Ways That Copyright Is Just Trying To Do Its Job And Doesn’t Control You

“Did Comcast just copyright my diaper? Does that mean I just filled it with derivative works?”

Copyright law has its flaws but it doesn’t control your life.  This despite a blog post that’s been making the rounds on social media.  I’m not going to link it because I’m trying to combat the fear-mongering–one more verified kill and I earn my Hysteria Killer badge!–but you may see it out there getting some shares.  I make it a rule that once four of my friends shares one of these blatantly wrong articles I need to blog about it.  Fourth one was shared this morning, so here we go.

First off, if you ever see a blog post saying that something is controlling you, be skeptical.  Especially if it is something you knew existed but didn’t give it a second thought until this tantalizing headline appears across your feed.  “This is trying to control me?” your freedom loving mind will think, “I DO NOT WANT TO BE CONTROLLED!  YOU DON’T KNOW ME ANONYMOUS ISSUE I DID NOT CARE ABOUT FIVE MINUTES AGO!”

Our latest culprit?  Copyright law.  It’s trying to control you and run your life and make you watch Gilmore Girls reruns.  And only that last thing is good.

As a skeptic, the number one thing to look for is the source.  In this case the article is coming just from one book–it’s essentially a book report.  Single source articles trying to present a comprehensive look at an issue should set off a mild alarm.  Single source articles trying to just tell you about that source–that’s fine.  Like a movie review or an interview with someone.  But when it’s trying to tackle something as big as copyright law, you should expect more.  Like, I dunno, two sources.  Or more.

If you have the time to search for the single source’s credentials you are typically going to find they are very different from what the article suggests.  Like in this case where the article suggests that the book’s author is just an innocent copyright researcher who has some thoughts on the issue.  Instead, the author is a proud proponent of killing a part of copyright law and seeks out every opportunity to advance his cause.  He’s about as impartial a jury member as the prosecutor.

So what is copyright law being accused of this time?  Only these four horrible things.

1. Copyright is all about locks.

This is coming from the guy who hates these locks.  Despises them.  Thinks they are worse than the Star Wars prequels.  The truth is far less evil.  Copyright law does care about locks around content, but it isn’t all about them.  Not even the majority of copyright law is about these locks–directly or indirectly.  Copyright law is about authors and trying to figure out a way to reward them for their creative efforts.  Efforts which are easily stolen.  It’s a difficult challenge in today’s age of incredibly simple copying and as we face new ways of consuming and creating content.  Copyright law does need to change, but to say it’s all about the locks is like saying your car is all about the seat belt.

2. Copyright law is privacy law.

This one is bizarre since it’s talking about US law, a country with the least amount of privacy laws in the western (and a good chunk of the rest) world.  The US is extremely corporate-friendly when it comes to privacy, especially when compared to Europe which is very consumer friendly.  In the European Union they have a documented and acknowledged fundamental human right to privacy.  In the United States the same government agency that oversees privacy also regulates those tags on your mattress that can’t be removed under penalty of law.

Suggesting copyright law is privacy law is a strange statement.  Stranger still is the support for this argument–that when Viacom sued Google they wanted to be able to look at private videos to see if they were infringing.  Yes, Viacom made an outrageous argument in an outrageous lawsuit that went on for years and where Viacom lost almost every step of the way.  Eventually they settled for no money, which is as close to saying “Whoops, my bad!” as a giant media conglomerate is going to come these days. Taking one bad argument from a really bad lawsuit and turning it into a scare tactic is pretty cheap.

3. Copyright law weakens security.

The argument here is that you use computers a lot and computers like to patch themselves without telling you and that’s really insecure because you don’t know what they’re doing.  That’s an interesting theory except that but for a handful of people in the world NOBODY KNOWS EVERYTHING YOUR COMPUTER CAN DO.  Seriously, even computer engineers at Microsoft working on Windows will know their own piece but ask them about another section of the operating system and they’ll shrug, admit they don’t know, and blame them for some bug that impacts their world.  That’s how computers have operated for decades yet–if you want to know every moving piece of how the machine works then get yourself an abacus, stop driving your car, and pitch your smartphone into a lake.  Modern technology builds on the work of more people than you’ve ever known–if that new functionality somehow translates to less security then you just have a crazy definition of security.

4. Copyright law is surveillance and censorship law.

Oh holy hell.  Copyright is considered surveillance because…Snowden?  Seriously, that’s as cohesive an argument they can make.  They toss in Edward Snowden’s name and suddenly it’s about surveillance.  Hey, know what?  Edward Snowden loves frozen yogurt.  Loves it.  So frozen yogurt must be about surveillance too.  Delicious, delicious surveillance.

The censorship take is about organizations abusing the process to issue take down threats.  This is a somewhat fair criticism.  The law does provide for organizations to request content to be removed from web sites and the web sites must comply in order to be shielded from really ugly lawsuits.  Some organizations may abuse this process to claim copyright for material that has no copyright protection, they just don’t like it.  Definitely abuse.  Clearly abuse.  Also not allowed under the law, but it may take a company some work to weed out those requests from the legitimate ones.  Copyright law is not about censorship just because someone is abusing it and for a while can get away with it.  Quite the opposite, in fact.

I am not saying copyright law is perfect.  It does need to change for new technologies, a new collaborative economy and creative environment that technology has created, and better limits between the public interest and corporate ownership.  But just as copyright law is not perfect neither is any other law.  It’s something that impacts us every day whether we realize it or not, from reading articles online to sharing links on Facebook to creating funny memes to watching shows on Netflix.  We live in an incredibly rich world of content and copyright is important.

But it doesn’t control your life and anyone who tells you otherwise is just trying to sell you something.

Leave a comment

Filed under CopyFUD, Copyright, Laws, Privacy