WEB 2.0: LEGAL ISSUES AND OPPORTUNITIES January 20 th , 2009

Overview A New Technology... Legal Issues Privacy AOL Google Social networks Intellectual Property Legal Opportunities Ask Your Lawmaker

A New Technology...

Legal Issues

Privacy

AOL

Google

Social networks

Intellectual Property

Legal Opportunities

Ask Your Lawmaker

A New Technology Legal issues and opportunities may arise from new technology or novel way of using technology Internet & Web 2.0: distinctive characteristics Connectivity Sharing Social Freedom Communication Search engines & data mining Keep in mind that law often moves slowly...

Legal issues and opportunities may arise from new technology or novel way of using technology

Internet & Web 2.0: distinctive characteristics

Connectivity

Sharing

Social

Freedom

Communication

Search engines & data mining

Keep in mind that law often moves slowly...

Legal Issues Privacy Increased sharing (video, text, photos...) Public profiles? Proliferation of information; information as a resource Advertising Intellectual property (copyright et al.) Sharing of copyrighted material Digital Rights Management Collaborative tools

Privacy

Increased sharing (video, text, photos...)

Public profiles?

Proliferation of information; information as a resource

Advertising

Intellectual property (copyright et al.)

Sharing of copyrighted material

Digital Rights Management

Collaborative tools

Internet Privacy The ability to control what information one reveals about oneself over the Internet, and to control who can access that information... Questions to consider: Who can see your information? Is your information safe? How is your information being utilised? Search history

The ability to control what information one reveals about oneself over the Internet, and to control who can access that information...

Questions to consider:

Who can see your information?

Is your information safe?

How is your information being utilised?

Search history

Privacy Law Reasonably modern innovation (1890 ~) Existing privacy law embodies several legal concepts Differs across countries Tort law: intrusion of solitude, public disclosure of private facts, false light, appropriation Right to privacy (US constitution, NZ Privacy Act 1993) ‘ Expectation of privacy’ (public/private) All New Zealand-based websites require privacy statements (Privacy Act 1993) “ The communications revolution wrought by the Internet has rendered existing privacy jurisprudence obsolete.” (Gunasekara & Toy [G&T], 2008)

Reasonably modern innovation (1890 ~)

Existing privacy law embodies several legal concepts

Differs across countries

Tort law: intrusion of solitude, public disclosure of private facts, false light, appropriation

Right to privacy (US constitution, NZ Privacy Act 1993)

‘ Expectation of privacy’ (public/private)

All New Zealand-based websites require privacy statements (Privacy Act 1993)

“ The communications revolution wrought by the Internet has rendered existing privacy jurisprudence obsolete.” (Gunasekara & Toy [G&T], 2008)

The “AOL Search Data Scandal” August 4 th , 2006 (Arrington, 2006) An AOL researcher accidently released a text file containing: twenty million search keywords for over 650,000 users, collected over a 3-month period Deleted by AOL, but already spread over the Internet Users identified by a unique sequential key New York Times was able to identify several users by cross-referencing with phonebooks/public records CTO resigned; class-action suit brought against AOL.

August 4 th , 2006 (Arrington, 2006)

An AOL researcher accidently released a text file containing: twenty million search keywords for over 650,000 users, collected over a 3-month period

Deleted by AOL, but already spread over the Internet

Users identified by a unique sequential key

New York Times was able to identify several users by cross-referencing with phonebooks/public records

CTO resigned; class-action suit brought against AOL.

Social Networks 90% of college students use social networking services (Solove [S], 2008) Large amounts of personal, sometimes intimate data shared Video, photos, comments, wall posts, etc. Perpetual and cumulative Very few people use the built-in privacy options to control access to their data [S] The obvious risk is reputation Stalking, re-identification, digital dossiers (Gross & Acquisti, 2005) NZ Privacy Act has ‘information privacy principles’ [G&T] Don’t cover individual users, but may provide protection from networks and third parties

90% of college students use social networking services (Solove [S], 2008)

Large amounts of personal, sometimes intimate data shared

Video, photos, comments, wall posts, etc.

Perpetual and cumulative

Very few people use the built-in privacy options to control access to their data [S]

The obvious risk is reputation

Stalking, re-identification, digital dossiers (Gross & Acquisti, 2005)

NZ Privacy Act has ‘information privacy principles’ [G&T]

Don’t cover individual users, but may provide protection from networks and third parties

Social Networks (Barnes, 2006) In social media spaces, public and private boundaries are unclear Illusion of privacy leads to boundary problems Disconnect between perceptions and behaviour regarding privacy Students strongly disagreed that “everybody should know everything about everyone else”, yet seemed contrastingly unaware of the public nature of social media like Facebook Barnes discusses social, technical, and legal remedies

In social media spaces, public and private boundaries are unclear

Illusion of privacy leads to boundary problems

Disconnect between perceptions and behaviour regarding privacy

Students strongly disagreed that “everybody should know everything about everyone else”, yet seemed contrastingly unaware of the public nature of social media like Facebook

Barnes discusses social, technical, and legal remedies

Some Terms Of Use... By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works... Most sites are a lot more respectful than this! Many sites have well-developed privacy policies and terms of use.

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works...

Most sites are a lot more respectful than this!

Many sites have well-developed privacy policies and terms of use.

Google & Privacy http://www.google.com/privacy.html Google collect incredibly vast amounts of user data Controversies Gmail Machine email reading to improve relevance of advertisements Street View Public/private property People captured in images Search histories Kept for two years; identified via a cookie

http://www.google.com/privacy.html

Google collect incredibly vast amounts of user data

Controversies

Gmail

Machine email reading to improve relevance of advertisements

Street View

Public/private property

People captured in images

Search histories

Kept for two years; identified via a cookie

Street View and Gmail

Intellectual Property Copyright , patents, registered designs, trademarks, performer’s rights, moral rights, trademarks, database rights... All normal copyright provisions apply on the Internet, eg. ownership, lifetime Napster, Kazaa, BitTorrent, IRQ... Digital Rights Management (DRM) Additional risks given the collaborative, sharing, and informal nature of Web 2.0 Collaborative works YouTube

Copyright , patents, registered designs, trademarks, performer’s rights, moral rights, trademarks, database rights...

All normal copyright provisions apply on the Internet, eg. ownership, lifetime

Napster, Kazaa, BitTorrent, IRQ...

Digital Rights Management (DRM)

Additional risks given the collaborative, sharing, and informal nature of Web 2.0

Collaborative works

YouTube

Collaborative Works (JISC, 2008) Many Web 2.0 sites enable development of collaborative works Lack of clarity regarding ownership in collaborations Multiple layers or rights Industry copyright traditions Policing infringements Exceptions User attitudes Who owns copyright? Risks in 3 rd party copyright and ‘implied license’ Contractual relationships

Many Web 2.0 sites enable development of collaborative works

Lack of clarity regarding ownership in collaborations

Multiple layers or rights

Industry copyright traditions

Policing infringements

Exceptions

User attitudes

Who owns copyright?

Risks in 3 rd party copyright and ‘implied license’

Contractual relationships

YouTube Copyrighted material (consider ‘fair use’) TV shows, movie clips, music On upload, checked using ‘Video ID’; however, Youtube maintains that goes far beyond its legal obligations in assisting content owners to protect their works (AFP, 2008) Takedown requests under Digital Millennium Copyright Act 1998 Defining case: Viacom

Copyrighted material (consider ‘fair use’)

TV shows, movie clips, music

On upload, checked using ‘Video ID’; however, Youtube maintains that goes far beyond its legal obligations in assisting content owners to protect their works (AFP, 2008)

Takedown requests under Digital Millennium Copyright Act 1998

Defining case: Viacom

Viacom vs. YouTube Viacom sued YouTube, seeking: $1bn in damages ‘ Discovery’ phase User data Source code for YouTube and Google (as Viacom maintained the code treated copyrighted material ‘differently’) “ A US judge has ordered Google to expose to Viacom the video-viewing habits of everyone who has ever used YouTube” (AFP, 2008) IP addresses & usernames Ruling condemned as a major blow to privacy; Judge Louis Stanton dismissed privacy concerns as “speculative”

Viacom sued YouTube, seeking:

$1bn in damages

‘ Discovery’ phase

User data

Source code for YouTube and Google (as Viacom maintained the code treated copyrighted material ‘differently’)

“ A US judge has ordered Google to expose to Viacom the video-viewing habits of everyone who has ever used YouTube” (AFP, 2008)

IP addresses & usernames

Ruling condemned as a major blow to privacy; Judge Louis Stanton dismissed privacy concerns as “speculative”

Legal Opportunities It’s far from all bad news... Web 2.0 presents a number of opportunities to improve and enhance legal discourse Ask Your Lawmaker ( www.askyourlawmaker.org ) vLex ( www.vLex.com ) Change.gov ( www.change.gov ) Police Act Review Wiki ( www.policeact.govt.nz/wiki/) Although then there’s also... Rate My Cop ( www.ratemycop.com )

It’s far from all bad news...

Web 2.0 presents a number of opportunities to improve and enhance legal discourse

Ask Your Lawmaker ( www.askyourlawmaker.org )

vLex ( www.vLex.com )

Change.gov ( www.change.gov )

Police Act Review Wiki ( www.policeact.govt.nz/wiki/)

Although then there’s also...

Rate My Cop ( www.ratemycop.com )

Ask Your Lawmaker USA; Capitol News Connection (a public radio service) Allows users to submit questions for journalists to ask lawmakers (such as Congress members); questions are voted on, and the most popular are asked

USA; Capitol News Connection (a public radio service)

Allows users to submit questions for journalists to ask lawmakers (such as Congress members); questions are voted on, and the most popular are asked

References Arrington, M. (2006, ). AOL Proudly Releases Massive Amounts of Private Data . Retrieved January 19, 2009, from http://www.techcrunch.com/2006/08/06/aol-proudly-releases-massive-amounts-of-user-search-data/ AFP (2008, July 3). Judge orders Google to give YouTube user data to Viacom. AFP . Retrieved January 19, 2009, from http://afp.google.com/article/ALeqM5gvFPgT3MNrzaN7r-Y37eFI-qv4bA Barnes, S. (2006). A privacy paradox: Social Networking in the United States. First Monday, 11(9). Retrieved January 19, 2009, from http://firstmonday.org/issues/issue11_9/barnes/index.html Gross, R., & Acquisti, A. (2005). Information Revelation and Privacy in Online Social Networks [Electronic version]. Proceedings of the 2005 ACM workshop on Privacy in the Electronic Society , 71-80. doi:http://doi.acm.org/10.1145/1102199.1102214 from ACM. Gunasekara, G. & Toy, A. (2008) "MYSPACE" OR PUBLIC SPACE: THE RELEVANCE OF DATA PROTECTION LAWS TO ONLINE SOCIAL NETWORKING , New Zealand Universities Law Review, 23(2), 191-214. JISC (2008). Legal Issues arising from Web 2.0 engagement in FE and HE. Session at JISC Conference, April 15 th, 2008. Privacy Commissioner (n.d.). The Privacy Act and Codes . Retrieved January 19, 2009, from http://www.privacy.org.nz/the-privacy-act-and-codes/ Solove, D. J. (2008, August). Do social networks bring the end of privacy? Scientific American . Retrieved January 19, 2009, from http://www.sciam.com/article.cfm?id=do-social-networks-bring

Arrington, M. (2006, ). AOL Proudly Releases Massive Amounts of Private Data . Retrieved January 19, 2009, from http://www.techcrunch.com/2006/08/06/aol-proudly-releases-massive-amounts-of-user-search-data/

AFP (2008, July 3). Judge orders Google to give YouTube user data to Viacom. AFP . Retrieved January 19, 2009, from http://afp.google.com/article/ALeqM5gvFPgT3MNrzaN7r-Y37eFI-qv4bA

Barnes, S. (2006). A privacy paradox: Social Networking in the United States. First Monday, 11(9). Retrieved January 19, 2009, from http://firstmonday.org/issues/issue11_9/barnes/index.html

Gross, R., & Acquisti, A. (2005). Information Revelation and Privacy in Online Social Networks [Electronic version]. Proceedings of the 2005 ACM workshop on Privacy in the Electronic Society , 71-80. doi:http://doi.acm.org/10.1145/1102199.1102214 from ACM.

Gunasekara, G. & Toy, A. (2008) "MYSPACE" OR PUBLIC SPACE: THE RELEVANCE OF DATA PROTECTION LAWS TO ONLINE SOCIAL NETWORKING , New Zealand Universities Law Review, 23(2), 191-214.

JISC (2008). Legal Issues arising from Web 2.0 engagement in FE and HE. Session at JISC Conference, April 15 th, 2008.

Privacy Commissioner (n.d.). The Privacy Act and Codes . Retrieved January 19, 2009, from http://www.privacy.org.nz/the-privacy-act-and-codes/

Solove, D. J. (2008, August). Do social networks bring the end of privacy? Scientific American . Retrieved January 19, 2009, from http://www.sciam.com/article.cfm?id=do-social-networks-bring