Jaani's Linklog

The Linklog is a data feed from various social bookmarking sites that I frequent. It contains short entries deemed interesting but — whether because their subject matter is not directly related to the themes of this website (internet law and technology regulation) or simply for reasons of convenience — not justifying a full weblog entry. The format is simple: a title with a link to the aggregator source, and a one-line description.

Note that neither the titles nor descriptions are my own — they remain, with any associated errors, the work of the people who submitted each item to the feed from which each was derived.

Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.

As to the second question, it is plausible that once the website operator has been notified they may become liable as a joint tortfeasor (or publisher) if they fail to remove the defamatory material within a reasonable period.  To the extent that the website is treated as a publisher of the material, actual or constructive notice would also preclude reliance on an innocent dissemination defence.  Upon receiving notice, the website operator would probably be required to remove or block access to the entire Twitter widget.  While this may seem disproportionate, there doesn’t appear to be any way to prevent the display of individual tweets - unless of course Twitter removes them directly.  The level of notice required, and the period of permissible delay, remain unclear, but existing case law (at least in England) suggest that some leniency is likely to be offered — particularly where the website operator acts with reasonable diligence and propriety.

Dutch Supreme Court upholds conviction for theft of virtual objects

Dutch Supreme Court upholds conviction for theft of virtual objects:

According to news reports, the Dutch Supreme Court has upheld a lower court’s conviction of a teenager for assaulting a younger boy and stealing virtual objects from an online RPG.  The victim was forced to transfer the objects to his attackers in the game world whilst being threatened with a knife in the real world:

The suspect’s lawyer had argued the amulet and mask “were neither tangible nor material and, unlike for example electricity, had no economic value.”

But the Netherlands’ highest court said the virtual objects had an intrinsic value to the 13-year-old gamer because of “the time and energy he invested” in winning them while playing the game. …

It said he and another youth beat and kicked the boy and threatened him with a knife until he logged into RuneScape and dropped the objects in 2007.  One of the thieves, who was also playing the game, was then able to pick up the items, making them his virtual property.

The essence of the Court’s reasoning was: “due to the digitization of society, a virtual reality has been created, all aspects of which cannot be dismissed as mere illusion where the commission of criminal acts are not be possible” .  On the question of whether the objects could be considered “goods” (property capable of theft within the meaning of the Dutch Penal Code), the Court commented (with apologies for my poor translation):

Counsel argued that a virtual amulet and mask cannot be considered “goods” … because they are neither tangible nor material, but - unlike, say, electricity - have no value in trade.  … The idea that goods must have materiality [has been] abandoned. … Gradually, the jurisprudence came to adopt a subjective concept of economic value.  What is relevant is mainly whether it is valuable “goods” for their possessor.

In the present case, it is clear that possession of virtual goods and points was highly desirable for [the defendants].  The [principal] in this regard said: “I am very rich in RuneScape and because I’m rich, I’m also very strong. I am very much with different weapons, and almost unbeatable. … I change my password almost every three days, because I fear that I might be “hacked”. The co-defendant stated: “… I was actually jealous of [the victim’s] equipment. ” … The court notes that effort and time investment in the course of the game result in the acquisition of valuable items.  …

Also relevant is that the rules of RuneScape do not allow goods to be acquired in the manner that occurred in this case.  The theft was committed outside the context of the game. It is thus not a virtual action within a virtual world, but  physical acts resulting in effects in a virtual world.

A fascinating case which calls to mind Neal Stephenson’s excellent Reamde. I’m sure there will be many others that follow.

Some excellent analysis (and a better translation) here: http://www.virtualpolicy.net/runescape-theft-dutch-supreme-court-decision.html

Stunning orbital timelapse as animated GIF - thank you,...

Stunning orbital timelapse as animated GIF - thank you, Internet.

Absurd ASA ruling upholds complaint over user reviews

Absurd ASA ruling upholds complaint over user reviews:

The UK Advertising Standards Authority has upheld a complaint that the popular travel reviews website TripAdvisor has misled consumers by implying that reviews were accurate.  According to the ruling:

consumers would understand the claims “Reviews you can trust”, “… read reviews from real travellers”, “TripAdvisor offers trusted advice from real travellers” and “More than 50 million honest travel reviews and opinions from real travellers around the world” to mean that they could be certain that the reviews posted on the site were from genuine travellers, and accurately reflected those travellers’ experiences of the places they visited.

We noted that reviewers were asked to agree to a declaration that their review was their genuine opinion of the hotel and that they had no personal or business affiliation with the hotel, or been offered an incentive to write a review for it. We also noted that reviewers were not asked to similarly confirm that they had no competitive interest in the place they were reviewing, or were posting a review on behalf of a competitor or other interested party, and we did not consider that agreeing to a declaration in itself would necessarily prevent non-genuine reviews from being posted on the site. Notwithstanding that, we understood that reviews could be placed on the site without any form of verification, and that whilst TripAdvisor took steps to monitor and deal with suspicious activity, it was possible that non-genuine content would appear on the site undetected.

In other words, the fact that some reviews might be misleading or false was enough to invalidate TripAdvisor’s claims.  Conspicuously absent from the ruling was any actual evidence that a review was fraudulent.  This makes a mockery of the CAP Code and effectively requires user-review websites to either verify every single review that is posted (which is clearly impossible) or refrain from making statements about user content which any reasonable consumer would understand to be qualified by commonsense.  To the extent that an adverse ASA ruling can be considered a kind of ‘liability’, this might also contravene article 15 of the E-Commerce Directive.

"Everyone knows the ACTA agreement [will] impact on civil liberties …, and still, everything is..."

““Everyone knows the ACTA agreement [will] impact on civil liberties …, and still, everything is being done to prevent the European Parliament from having its say in this matter. … I will not take part in this masquerade.””

- Kader Arif, rapporteur for the Anti-Counterfeiting Trade Agreement in the European Parliament. Meanwhile, the treaty, having been opened for signature, has been signed by the EU and 22 member states.

Copyright in photographic works has always had an uneasy...

Copyright in photographic works has always had an uneasy relationship with the idea-expression dichotomy, which generally limits protection to the physical manifestation of a work rather than its underlying principles or abstract concepts. In a decision sure to reignite the debate, Birss J has held that a photograph which reproduced the composition, subject matter and editing of the original infringes copyright: Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1.  The infringing photograph:

The defendant's infringing photograph

This conclusion is consistent with Bauman v Fussell and a long line of English and American cases.  It’s also a fairly logical result of applying Infopaq to a photograph, where the author’s intellectual creation consists of the choice and arrangement of moment, rather than the skill in capturing it.  (Arguably, the Court could also have made more of the original contributions arising from post-processing.)  The Court seems to have been influenced by the commercial context in which the copying took place:

  1. The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant’s image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.
  2. Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word “monopoly” in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.

Yet the result remains troubling.  This was not bit-for-bit copying but the product of independent labour.  Was copyright law intended to prevent non-identical the use of independent mechanical means to recreate the underlying theme, style or idea in a work?  Arguably not, but that seems to be the result in Temple Island.  Expect the engines of internet criticism to go into overdrive for this one.

Some excellent analysis of the MegaUpload arrests and the blunt...

Some excellent analysis of the MegaUpload arrests and the blunt hammer of criminal copyright enforcement.

AFNIC, which administers the .fr ccTLD, has been held not liable...

AFNIC, which administers the .fr ccTLD, has been held not liable by a French court for failing to suspend a domain name about which a trade mark owner complained.  The decision is sensible, given the impossibility of a domain registry policing the uses to which all registered domains are put, and consistent with article 15 of the E-Commerce Directive.

From the World Economic Forum’s Global Risks 2012...

From the World Economic Forum’s Global Risks 2012 report:

The impacts of crime, terrorism and war in the virtual world have yet to equal that of the physical world, but there is fear that this could change. Hyperconnectivity is a reality. With over five billion mobile phones coupled with internet connectivity and cloud-based applications, daily life is more vulnerable to cyber threats and digital disruptions. The related constellation of global risks in this case highlights that incentives are misaligned with respect to managing this global challenge. Online security is now considered a public good, implying an urgent need to encourage greater private sector engagement to reduce the vulnerability of key information technology systems.

"pagophobia (noun) — the fear of ice or frost."

“pagophobia (noun) — the fear of ice or frost.”

- Probert Encyclopedia

WordPress protests the impossibility of moderating UGC in a web...

WordPress protests the impossibility of moderating UGC in a web 2.0 world.

BoingBoing blacks out against SOPA and PIPA.

BoingBoing blacks out against SOPA and PIPA.

Bill Gates Retires Today

June 27th 2008 marks the day that Bill Gates steps out of his role as nerd-baron and into the shoes of full-blown immortal philanthropist. Thank You!

Robot Conducts The Detroit Symphony Orchestra

Honda’s ASIMO robot conducts the Detroit Symphony Orchestra to raise awareness for music education.

IsoHunt Goes Secure, Adds SSL Encryption

ISPs and authorities increasingly use Deep Packet Inspection hardware to block access to BitTorrent sites, or spy on users’ browsing habits. To offer its users more privacy, isoHunt has now added SSL encryption, making it impossible for your ISP or the authorities to monitor your activities on the BitTorrent site.

Sourceforge.net Blocked In Mainland China

SourceForge, the world’s largest development and download repository of Open Source code and applications, appears to blocked in Mainland China on the eve of Beijing 2008 Olympic Games.The current blocking may be related to the recent anti-China protests of Beijing Olympic Games, which began on 8 August in Beijing.

MICROSOFT: Open Source is a Bigger Threat than Google

Speaking at a conference in New York, Microsoft’s chief architect, Ray Ozzie, said open source is a bigger threat to the software juggernaut than Google is. He says open source developers are not restricted by the best interests of shareholders and potentially are, therefore, a stronger market force.

Gmail to Support Million-plus Student Users

With the help of an Australian partner, Google is close to landing a contract to support 1.3 million students with Gmail. The deal for student e-mail accounts at public schools and colleges in New South Wales is not quite finalized. But it is expected to be worth roughly AU$9.5 million (US$9.05 million) over a three-year period with an optional

How did the universe begin?

One of the most interesting questions considered by astrophysicists deals with the start of our universe. Indeed, there is a great deal of speculation on the subject, with different theories about how the universe began, and what may have existed before the universe came into being.

Martian Skies [PICS]

What more do we know about Mars’ atmosphere? It’s hundreds of times thinner than Earth’s atmosphere and is made of 95% carbon dioxide, 3% nitrogen, 1.6% argon, and contains traces of oxygen, water, and methane.There are an amazing number of six current live probes exploring Mars. However, only a few show atmospheric phenomena. Here are some of them

Reports: Demonoid Blocking Countries

According to an ever increasing wave of emails to TorrentFreak, it appears that residents of at least two countries can no longer access Demonoid. Not only are users from the Netherlands complaining they cannot access the site but now it’s the turn of Brazilian BitTorrent fans to wonder why they’ve been cut off.

ISPs experimenting with new P2P control methods

Peer-to-peer traffic management was a hot topic at this year’s NXTcomm convention in Las Vegas, as keynote speakers and telecom industry panelists highlighted new methods for handling P2P traffic crunches.

Internal Comcast Powerpoint Shows They Know They Suck

It’s no secret to most readers that Comcast’s outsourced techs are often late, rude and incompetent, and that calling customer service is more akin to improving dialogue in a Beckett play, but as this exclusively obtained internal Comcast powerpoint shows, it’s no secret to the cable company either.

Lego Airbus A380 Is Biggest Lego Airplane in the World

Behold the biggest Lego airplane in the world, made after the largest passenger airplane in the world, the Airbus A380. Made at a 1:25 scale-9.5-foot long, 10.5-foot wingspan, 3.2-foot tall—the Lego A380 uses 220 pounds (100kg) of bricks.

Stephen Hawking confronts UK government over science budget

Britain’s most famous scientist, Stephen Hawking, has accused the government of making “disastrous” cuts to research funding that threaten the country’s international standing. The leading physicist also reveals he turned down knighthood several times