Tag Archives: Copyright

So You Want To See A Social Media Law Final? (2018 Edition)

Another year of my Law & Social Media class at the University of Texas School of Law is in the books.  The grades have been entered and now I can share with you all this year’s final exam.  Let me know your thoughts/answers in the comments!

QUESTION ONE

It’s your first day on the job at Maramountal Bros. studio, makers of every movie you’ve ever seen and quite a few you haven’t. You’ve been lucky enough to join their newly formed Social Media Division, and while they plan on eventually extending the department to more people, for now the entire staff consists of you and a laptop. And the laptop doesn’t have a law degree.

The Head of Marketing bursts into your office like his hair is on fire. Which is impressive, since he’s bald.

“We’ve got a situation!” he yells with an exclamation point. He goes on to describe how the latest movie in their massive hit franchise is about to be released. The series of movies is based on superheroes who drive around the world in exotic cars and fight crime or each other. While the cars are typically turbo charged by NOS (nitrous oxIde), in this latest film a new Totally Hyper Active NOS (or THANOS) has been developed. It’s incredibly powerful but has a good chance of killing people so it must be stopped.

Your head of marketing is upset because some people at advance screenings are starting to post spoilers on social media. The studio is concerned that if these spoilers continue to spread then nobody will see the movie.

“I mean, I want it to be a surprise when [REDACTED] dies or when [BELOVED REDACTED] bites it,” he mutters, while actually saying the word redacted as he speaks.

The majority of these posts are appearing on the hot social media platform, MADE-UP. The platform was created a year ago and continues to serve the needs of fictional social media users and social media law professors everywhere. And, your head of marketing points out, it’s a platform where you spend several million dollars a year on advertising.

MADE-UP’s terms and conditions do say that “Content may be removed at the sole discretion of MADE-UP for failing to contribute to our community.” But so far, MADE-UP has refused to remove any of the posts Maramountal Bros. has flagged.

The head of marketing would like you to compose an email to the MADE-UP General Counsel to try and convince them to remove the posts. And since time is of the essence, he wants you to anticipate their responses so you won’t have a lot of back and forth. But he’s willing to give you an hour to write it. So hop to it.

QUESTION TWO

No sooner do you hit Send on the email to MADE-UP when your head of Human Relations comes storming into your office. Which is impressive because there’s actually a storm cloud floating around her head.

“You’re the Social Media lawyer, right?” she says as lightning strikes her chin. You nod, a bit afraid to speak. “Yeah, so it turns out some of those spoiler leaks for the new movie, Endless Skirmishes—you know, the one about THANOS—came from our employees. Our own employees! It makes me so mad!” A small tornado emerges from her left nostril and violently recedes.

“It turns out we don’t even have a social media policy! How is that even possible?” she screams as a hailstone falls out of her ear. “Listen, I know one hour is way too short for you to draft a social media policy for our whole company, but I have a meeting with some important people in 60 minutes. Really important people whose names and positions I can’t think of right now. But I’m going to need to tell them about what we’re going to do for a social media policy.

“Can you give me some highlights of what we can and can’t do for our employee’s social media policy?” she asks while a rainbow bursts from her eyebrow. “And please make it easy to understand—I’m not a lawyer and none of the actual, real-life people I’m meeting with that I didn’t just make up are lawyers either.”

You sit back, open the umbrella you conveniently packed in your laptop bag, and turn back to your laptop. Compose something easy for non-lawyers to understand about what your social media policy for employees should and shouldn’t have in it.

QUESTION THREE

You’ve just handed off your material to the head of Human Relations when the Vice-President in Charge of Movie Development and Overly Long Job Titles sits down at your desk. Which is impressive, because there isn’t a chair on the other side of your desk.

“Social Media and movies, who would think those go together, am I right?” he says while you wonder how he hasn’t fallen down. You nod, afraid to upset his balance.

“So listen, turns out we just acquired the rights to two old movies: Chef and Catfish. My people tell me those movies have some good social media lessons in them—as if people would actually watch movies for social media lessons! I want to combine the two movies and call it Cheffish and I want to make it super educational about social media. You know, really tell people about the risks they or their company may face on social media.

“I’m going around to all the departments and asking them what kinds of lessons I should include in the new movie. I’m definitely interested in what you learned from the movies—wait, you watched the movies, right?” You nod, because of course you watched the movies. It was listed on the job requirements the whole semester…um, job interview process.

“Would you mind telling me what kinds of lessons I should put in the new movie? Feel free to reference the old movies, or make up whatever you want. This is the movie business, after all.”

He stands up, making you wonder again how he was sitting, and casually strolls out of your office. Just as he passes the door he yells back “Anytime in the next hour will be fine!”

Grinning wildly because you totally watched both those movies, you write out your proposed lessons for the new film.

Advertisements

Leave a comment

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

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

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

Of Course People Understand Trademarks

tmYesterday, Hank Green (@hankgreen) of YouTube vlogbrothers fame, published a post on Medium named The Trouble with Trademarks.  I think it needed to be addressed so I did so in a Hank Green-style video (except it’s too long–I am a lawyer after all).  Please enjoy.  Or don’t.  Totally up to you.

 

Leave a comment

Filed under Uncategorized

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

YES PLeaSe: A Legal Guide To Periscope And Meerkat

meerkat-vs-periscopeFor the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope.  Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media.  No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction.  In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow.  But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS.  Is it too much to say as brands develop a Go-To-Meerkat strategy?  It is?  Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about.  And, oh, how convenient, they spell out YES so we can make a great blog post title.  Those three concerns are YouTube+/-Engagement, and Saved Streams.  Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke.  So YES it is.

Because professional courtesy.

Because professional courtesy.

Also please know this is a highly dynamic area.  Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW.  So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions).  This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics.  But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.

YouTube+/-

Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube.  But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded.  Since these streams go out live you will not be able to review them for their content prior to publication.  That video your marketing team did with that catchy, unlicensed Top 40 hit?  Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams.  So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later.  Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent.  Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below).  If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages).  By the way, don’t invite that streambomber to your next livestreams.

Unless it's a dolphin.  Dolphins can photobomb or streambomb all they want.  It's the law.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.

Engagement

Both apps provide similar ways to engage with stream watchers.  Stream watchers can like a stream or send a comment to the broadcaster and those watching.  Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments.  Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast.  This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments.  Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks.  One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team.  The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.).  Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments.  There’s no right answer, it’s just something to think through.

Unless you have one of these.  Because now you have extra fingers to use and you are awesome.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments.  Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream.  That security issue aside, Meerkat faces another legal risk in terms of recorded sessions.  Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out.  In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image.  But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done.  So it’s something to consider.

Pictured: extensive legal analysis.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers).  The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed.  That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.

 

It’s exciting to see a new function and communities spring up in the social universe.  We haven’t had a significant new step like this since Pinterest many years ago.  Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

1 Comment

Filed under Copyright, Personal Live Streaming, Pinterest, Privacy, 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