Copyright and Virtual Fuzzies

As long ago as 1997 Jonathan Zittrain critiqued hype about 'online communities' with the comment that -

... aspirationally, and sometimes accurately, known as "online communities" ... "online community" joins "sysop" in the oversize dustbin of trite or hopelessly esoteric, hence generally meaningless, cyberspace vernacular. Not that "online community" is obscure, like "sysop"; rather,the term’s emptiness results from its abuse. "Online community" is used by Internet companies the way a motivational speaker uses "excellence," an academic uses "new paradigm," or a lawyer uses "justice": it represents something once craved and still invoked (if only as a linguistic placeholder) even as it is believed by all but the most naïve to be laughably beyond reach. Since it’s applied to almost anything, it now means vague warm fuzzies and nothing more.

'Copyright, Culture, and Community in Virtual Worlds' by Dan Burk in Eighth International Conference on Cultural Attitudes Toward Technology & Communication (2012) edited by Fay Sudaweeks, Herbert Hrachovec & Charles Ess comments that

Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst. Thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content.

Burk notes that

The express purpose of copyright is to foster the development of art, music, literature, movies, and other cultural creations. Successful copyrighted works add to the fund of cultural content and practice, but generally through the mechanism of commodification. Ownership and sale of copyrighted content is intended to provide a monetary reward to spur cultural creation. Indeed, copyright holders frequently target their creative and distributive efforts toward cultural adoption, and profit from the promulgation of their works as part of popular culture. 

Consequently, the copyright system has been criticized with some frequency for failing to make allowances for access and re-interpretation of cultural materials.[Lessig 2004, Vaidhyanathan 2004] Graphical, musical, audiovisual, and literary works constitute key components of shared culture. Full participation in society is impossible without access to such works, but access is controlled by an unsympathetic copyright regime. Some types of participation, such as criticism, commentary, and parody, are privileged under the fair use doctrine. But many, indeed most, types of participatory re-creation of such works are not contemplated within either fair use or other copyright exemptions. 

This failure of the copyright system holds as true for participation in virtual communities as for society generally; indeed, given that virtual communities are largely mediated by copyrighted media, it poses a particular problem for such communities. In this paper I illuminate this problem by means of a case study, following the migration of copyrighted content away from the defunct on-line game Uru: Ages of Myst to Second Life to other venues, as graphics from the Uru game were reproduced by departing players attempting to maintain their distinctive virtual community and culture through shared iconic images. The unauthorized appropriation of content from the Uru game was crucial to maintenance of the virtual community but, as I show here, almost certainly constituted copyright infringement.

Reparation

It's rather too late to say sorry to Alan Turing - and to people who although loved by friends and family are notable only as victims of institutionalised homophobia in UK law - but a start to reparation has been made through Protection of Freedoms Act 2012, which provides that men with historic convictions for consensual same sex activity will be able to apply for the deletion of those records.

The Guardian indicates that "Until now, people wishing to work in roles that require background checks, including volunteering, have been discouraged for fear of having to disclose offences that were decriminalised in 1967". There would be some men with the requisite age profile.

The Guardian goes on to announce that

The Home Office will work with HM Courts and Tribunals Service and the Association of Chief Police Officers to run the application process. Each case will be considered by caseworkers, with the home secretary making the final decision. Successful applicants will have their records updated so the offence will no longer appear on a criminal records certificate or be referred to in any future court proceedings. 

The specific provisions in the statute, which received Royal Assent on 1 May 2012, are in chapter 4. They include -

Disregarding certain convictions for buggery etc.

General

s 92 Power of Secretary of State to disregard convictions or cautions

(1) A person who has been convicted of, or cautioned for, an offence under - (a) section 12 of the Sexual Offences Act 1956 (buggery), (b) section 13 of that Act (gross indecency between men), or (c) section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (corresponding earlier offences), may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.

(2) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.

(3) Condition A is that the Secretary of State decides that it appears that- (a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and (b) any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).

(4) Condition B is that- (a) the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and (b)the period of 14 days beginning with the day on which the notice was given has ended.

(5) Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.

s 93 Applications to the Secretary of State

(1) An application under section 92 must be in writing.

(2) It must state- (a) the name, address and date of birth of the applicant, (b) the name and address of the applicant at the time of the conviction or caution, (c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and (d)such other information as the Secretary of State may require.

(3) It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 92.

s 94 Procedure for decisions by the Secretary of State

(1) In considering whether to make a decision of the kind mentioned in condition A in section 92, the Secretary of State must, in particular, consider- (a) any representations or evidence included in the application, and (b)any available record of the investigation of the offence and of any proceedings relating to it that the Secretary of State considers to be relevant.

(2) The Secretary of State may not hold an oral hearing for the purpose of deciding whether to make a decision of the kind mentioned in condition A in section 92.

(3) Subsection (4) applies if the Secretary of State- (a)d ecides that it appears as mentioned in condition A in section 92, or (b) makes a different decision in relation to the matters mentioned in that condition.

(4)The Secretary of State must- (a) record the decision in writing, and (b) give notice of it to the applicant.

Effect of disregard

s 95 Effect of disregard on police and other records

(1) The Secretary of State must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.

(2) A notice under subsection (1) may be given at any time after condition A in section 92 is met but no deletion may have effect before condition B in that section is met.

(3) Subject to that, the relevant data controller must delete the details as soon as reasonably practicable.

(4) Having done so, the relevant data controller must give notice to the person who has the disregarded conviction or caution that the details of it have been deleted.

(5) In this section- "delete", in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned- (a) the fact that it is a disregarded conviction or caution, and (b) the effect of it being such a conviction or caution, "the names database" means the names database held by the National Policing Improvement Agency for the use of constables, "official records" means records containing information about persons convicted of, or cautioned for, offences and kept by any court, police force, government department or local or other public authority in England and Wales for the purposes of its functions, "prescribed" means prescribed by order of the Secretary of State, "relevant data controller" means- (a) in relation to the names database, any chief officer of police of a police force in England and Wales who is a data controller in relation to the details concerned, (b) in relation to other relevant official records, such person as may be prescribed, "relevant official records" means- (a) the names database, and (b) such other official records as may be prescribed.

(6) An order under this section- (a) may make different provision for different purposes, (b) is to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

s 96 Effect of disregard for disclosure and other purposes

(1) A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not- (a) committed the offence, (b) been charged with, or prosecuted for, the offence, (c) been convicted of the offence, (d) been sentenced for the offence, or (e) been cautioned for the offence.

(2) In particular- (a)no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in England and Wales to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and (b) the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person's past which cannot be answered without acknowledging or referring to the conviction or caution or any circumstances ancillary to it.

(3) Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, cautions, offences, conduct or circumstances of any person- (a) the question is to be treated as not relating to any disregarded conviction or caution, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and (b) the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or caution or any circumstances ancillary to it in answering the question.

(4) Any obligation imposed on any person by any enactment or rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or caution or any circumstances ancillary to it.

(5) A disregarded conviction or caution, or any circumstances ancillary to it, is not a proper ground for - (a) dismissing or excluding a person from any office, profession, occupation or employment, or (b) prejudicing the person in any way in any office, profession, occupation or employment.

In Australia of course the state/territory governments have not rushed to apologise and decriminalisation occurred after the UK. Federal law decriminalised homosexual acts between consenting adults in the ACT in 1973. South Australia was the first state to decriminalise consensual activity between men in 1975; Tasmania was the last in 1997.

The belated change down south reflected the Human Rights (Sexual Conduct) Act 1994 (Cth) that prohibed the making of laws that arbitrarily interfere with the sexual conduct of adults in private and the 1997 repeal of Tasmanian Criminal Code provisions after the state government fail to have the application in Croome v Tasmania struck out by the High Court. Section 4 of the 1994 statute referred to "Arbitrary interferences with privacy", specifying that

(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

As Paula Gerber has pointed out, action by Australian governments to right the historic wrong through an apology and through scope for expungement of records is both necessary and overdue.

Donors

Past items in this blog have noted debate about anonymity, adoption and release of information about the gamete donors.

The 55pp 'A Cross-Jurisdictional Study of Regulatory Requirements and Practice Regarding the Recording of Donor Information and Its Release to Donor Conceived People' by Sonia Allan reports on

part of the author’s ongoing research [supported by the Churchill Trust] on psycho-social, ethical and legal issues regarding the release of identifying and non-identifying information about donors to donor conceived people where assisted reproduction has been used. The author traveled to a number of jurisdictions (the Netherlands, Sweden, Finland, Austria, and the United Kingdom) that require the recording and release of such information (i.e. they require non-anonymous gamete donation) and interviewed practitioners, regulators and other persons regarding regulatory approaches and practices. 

In particular, the project examined:

1. what the law in each jurisdiction provides; 
2. the practice of recording information about the donor and releasing such information to donor conceived people or the recipient parent(s);
3. information regarding what underlies the law; how well it had been received; and any aspects of the law or practice that might be improved according to those who were implementing it. 

Some further research was also conducted on other jurisdictions and is briefly included at the end of the report. Recommendations regarding regulation and practice are made.

Dr Allan comments that -

This report has focused upon countries where the recording of information about gamete donors in assisted reproductive technology and release of that information to donor conceived people upon request, is required by law. Its primary focus was to consider how the law is implemented and to evaluate the extent to which practice supports access to information. 

The countries surveyed ranged from having comprehensive registry and support systems in place for people wishing to exchange information and who might wish to have contact, to jurisdictions that leave information release to the clinics and do not provide specifically for any support services. 

The author was particularly impressed by the services provided by UK DonorLink in the United Kingdom, and FIOM in the Netherlands. These establishments provide positive models for how donor linking may work, the use of DNA testing to increase certainty about the possibility of being genetically related, and the intermediary services that may be provided to support those engaged in searching for information. It was noted that the intermediary services provided by these establishments went well beyond emphasizing genetic relatedness. They supported people in obtaining information, in managing their expectations (for example where contact was or was not desired), and in making connections. Sometimes, those connections went well beyond those who were genetic relatives and included other donor conceived people, donors and recipient parents who shared common experiences.

Data Mining

A recent feuilleton on Facebook and datamining is here. Another perspective is offered in 'Regulating Human Subjects Research in the Information Age: Data Mining on Social Networking Sites' by Lauren Solberg in 39(2) Northern Kentucky Law Review (2012).

She comments that

 In the 1970s, the Department of Health, Education & Welfare promulgated the first regulations governing research with human subjects. Currently, the Department of Health and Human Services regulates both biomedical and behavioral research with human subjects through 45 C.F.R. § 46, but these regulations have not been revised to address the advances in technology that have changed the ways in which human subjects research is conducted in the 21st century. One of these advances includes researchers’ use of the Internet for various research purposes, including recruiting subjects for their studies, as well as mining data on social networking sites. The issue of data mining on social networking sites for research purposes is becoming more important as researchers in a number of academic fields are collecting research data in this manner. The question of whether such research involves “human subjects” as the term is defined in 45 C.F.R. §46 is important because the answer dictates whether or not such research is subject to federal regulation and oversight. 

The U.S. Department of Health and Human Services’ Office for Human Research Protections (OHRP) has previously acknowledged an increased use of the Internet for research purposes, but it has not published any guidance about how the Office understands the issue (nor have any applicable specific regulations been promulgated). Such guidance, and particularly guidance that addresses the use of social networking sites for research purposes, is becoming increasingly more important as researchers are expanding beyond just Facebook and MySpace to recruit research participants and collect data. Furthermore, new social networking sites such as PatientsLikeMe.com are changing the ways in which both behavioral and biomedical researchers recruit and interact with study participants. 

This article identifies three key research activities that any new guidance that the OHRP publishes about Internet research should address: (1) the use of the Internet (including social networking sites) to recruit subjects; (2) the use of the Internet to collect personal information via direct interaction with site users; and (3) the collection of personal information from the Internet for research purposes without direct interaction with the owner of the information, i.e. data mining. It further explores recent case law that says that there is no reasonable expectation of privacy with respect to information posted on social networking sites, and discusses the history of privacy in the federal regulations governing research with human subjects. This article concludes that in light of the changes in online social networking and resulting changes in expectations of privacy, as well as the consideration that the Department of Health and Human Services is giving to revising 45 C.F.R. § 46, guidance – or even new regulations – should be drafted that address these key research activities. It furthermore suggests language that would inform researchers and research institutions whether each of these key research activities is subject to the regulations governing research with human subjects.

UK Tobacco Packaging

The 33pp 'To What Extent Can the UK Defend the Efficacy of Plain Packaging Legislation for Tobacco Products?' by Richard Coates notes that

The UK Government wants to introduce Australian-style plain cigarette packaging, despite opposition from Big Tobacco. To what extent can the UK defend the efficacy of this plain packaging legislation?

Coates concludes

 it appears that the Government has a strong foundation on which it can build a defence   of plain packaging legislation. There is strong empirical evidence for the efficacy of   plain   packaging   legislation,   and   there   is   apparently   sufficient rebuttal   to   the   arguments   against   the   proposals to lead   to   success for their defence. However, there are still three areas of analytical   deficiencies. 

Firstly,  the  experimental  evidence  in  favour  of  the  legislation  rests  on  the  shoulders  of  few  studies.   There   are   no   British   studies   providing   evidence   for   the   argument   that   this   will   undermine   the   general   attractiveness   of   smoking,   and   only   the   Thrasher   auction   experiment   provides   empirical   evidence  that  this  will  decrease  demand  for  cigarettes.  On  neither  count  is  there  sufficiently  strong   evidence   to   support   a   complete   defence,   contrary   to   suggestions   by   the   Public   Health   Research   Consortium  (2012),  which  simply  accepts  both  findings.  For  a  defence  to  rest  so  strongly  on  such  a   level   of   investigation   would   be   unadvisable.   Consequently,   further   research   into   the   effects   of   the   legislation,  eliminating  the  flaws  in  the  studies  noted  above,  is  required.  Moreover,  a  greater  focus   on   complementary   policies   is   required,   concerning   those   currently   in   operation,   and   potential   future  supplementary  legislation. 

Secondly,  cigarette  manufacturers,  or  anti-­‐smoking  campaigns  such  as  ASH,  have  conducted  much   of   the   other   theoretical   modelling.   Independent,   impartial   research   is   required   to   a   much   greater   degree  for  a  clearer  picture  of  the  true  effects  of  the  proposal.  While  academics  such  as  Hammond should be commended   for   their   impartial   work   in   the   modelling   of   smokers’   decisions and   behaviour,  independent  empirical  investigations  into  the  UK  economy  are  still  required.          

Finally,   necessity is   a   factor not fully   considered so far.   While   a   conclusion   on   the   question   of   the   necessity  of  this  legislation  would  require  an  examination  of  each  of  the  alternatives  in  equivalent   detail,   some   preliminary   comments   can   be   made.   Given   that   brand   power is the   focus of   the   legislation,  further  advertising  restrictions  are  often  cited  as  a  less-­intrusive  alternative.  However,   Wei Tan,   in   his   dynamic   analysis of   tobacco   markets (2004),   explains   that   advertising   is   particularly   ineffective   for  cigarettes. He   argues that   the   determinants   of   demand   are   determined independently of   advertising   (see   also   Roberts   & Samuelson, 1988).   Consequently,  compared   to   the  level  of  restrictions  imposed,  a corresponding  fall  in  demand will  be  small.  Moreover,  as  firms’   advertising   costs   decrease, they   can   lower prices   without   reducing   their   profits,   which   will   increase demand   for   cigarettes   more   than   the   restrictions   on   advertising   will   decrease it, and so further  advertising  restrictions  are  ineffective.          

Malcolm  Gladwell,  writing  on  the  subject  of  the  legislation’s  necessity,  has decried  plain  packaging, instead proposing that   nicotine levels be   limited (Marketing Magazine,   March   2012).   He argues that under this   model,   smokers could never   become   addicted,  as they would never reach the addiction  ‘tipping  point’.  This should  be  rejected  as  an  alternative,  though, as  it  concentrates  solely  on the  non-­‐cognitive   model of smoking,   and   does   not   engage with the   issues   concerning   branding within  the  cognitive  model.  While  it  might  have  similar  effects  at  reducing  relapse,  it will  do  little  to   actually encourage cessation   (Schneider   et   al. 1981).  Moreover,   this is   not a mutually   exclusive alternative.   Martin Lindstrom’s suggestions in   the   same   publication   are   by   contrast   an alternative   to   plain   packaging,  but his proposal of   ‘random’ packets is   designed to break down brand   power,   has   little   empirical evidence   in   its   support.   Moreover,   the cost   of   enforcing   his   policy   merely   confirms  that  plain  packaging  is  a  better  alternative.          

Overall, the   preliminary analysis and investigations compiled so far suggests that   plain packaging legislation will   bring   the   evidential health benefits needed to defend the   proposed   legislation.   However,  facing  big  tobacco,  fighting for  its  rights,  is  formidable,  and further  analysis  and  evidence   is  needed  before  the  Government  can  take  this  bold  step,  and  be  confident  in  its  success.

Trust and Data Retention

In parliamentary submissions and articles I have argued that questions of trust underly much of the debate about calls for mandatory retention of telecommunications traffic data and, more broadly, telecommunications content.

Recurrent flip flops by national Attorney-General Nicola Roxon for example do not induce trust. Hyperbole by representatives of the Australian Federal Police similarly don't induce trust.

It was thus interesting to see the item in today's Canberra Times that features another iteration of claims by the AFP that both can and should trust law enforcement bodies regarding mandatory retention. That retention is supposedly a matter of necessity rather than mere bureaucratic convenience.

The Times states that -

Senior federal police say their ability to investigate major crime will be "devastated" if a controversial proposal to track the internet use of Australians does not go ahead. 

And the Australian Federal Police have asked for the public "to trust us" to use the online data responsibly, saying police surveillance would be subject to considerable internal and external oversight. 

.... the police say their ability to investigate and track criminals will be hampered without some form of online data retention. .... 

The head of the AFP's high tech crime operations, Neil Gaughan, said the force had a good record with not abusing its powers, and was subject to ''significant'' internal and external oversight. 

"I know it's a big ask, but we're asking people to trust us", Assistant Commissioner Gaughan said. 

"We won't hold the information, it will be held by the ISPs or the telcos, and we require an authorisation by a superintendent of police or above to obtain that information", he said. 

"To be blunt, we are too busy policing the community and policing national and international law to go on fishing expeditions. We just don't have the resources." 

Assistant Commissioner Gaughan said police were losing the capability to track and investigate crime as communications moved online and away from fixed lines.

There is a case to be made for data retention. Regrettably the AFP has neither made that case nor recognised that there might be legitimate concerns - highlighted for example in the cogent submission by Dr Anthony Bendall noted here or Malcolm Turnbull's lecture noted here - regarding a major extension of powers and potential for misuse.

Should we provide Asst Commissioner Gaughan with a blank cheque on the basis of reported (and fallacious) justifications that

Opposition to such laws in Germany - the government has declared them invasions of privacy and forbidden them - has left the German federal police agency the Bundeskriminalamt or BKA a laughing stock … No one can work with them internationally," he said. "If I go to Germany with an inquiry about who called who, when and why, they can't tell us. It's causing the BKA all sorts of problems.

Sino IP

'The Rise and Decline of the Intellectual Property Powers' by Peter Yu in 34 Campbell Law Review (2012) 525-578 comments -

In the past decade, China has experienced many impressive economic and technological developments. Intriguingly, the narrative about piracy and counterfeiting there is rarely linked to the narrative about the China's technological rise. To provide a more comprehensive picture, this article brings together these two different narratives to explore what their combination would mean for the United States and its intellectual property industries. 

Delivered as the keynote luncheon address at the Symposium on "Applications of Intellectual Property Law in China," this article begins with the good news that China is at the cusp of crossing over from a pirating nation to a country respectful of intellectual property rights. It draws on the historical developments of intellectual property protection in the United States and other once-developing countries. 

The article then delivers the bad news that, even though China will finally experience improvements in the protection and enforcement of intellectual property rights when it hits the proverbial crossover point, such improvements will bring some disappointments and unintended consequences. In light of both the good and bad news, the article offers suggestions on three types of policy changes that could help prepare U.S. industries for the identified challenges. It specifically discusses changes at the domestic, bilateral and multilateral levels. 

Noting the challenges of making prognostications, this article concludes by suggesting that the United States may still have some time and wiggle room to decide its course of action for the near future.