Mr. Topp and the Big Bad Blog

Here at the Big Bad Blog, we have been having a lot of fun watching Apple-related lawsuits.

Apple sues HTC. HTC sues Apple.

Nokia sues Apple. Apple sues Nokia.

Kodak sues Apple. Apple sues Kodak.

Apple seems to be behind search warrant served against Gizmodo blogger.

We were wondering how to appropriately make fun of this trend, in which Apple is involved in a new legal action each and every week.

Then we were beaten to it, by an absolutely fantastic fake news story, in which Apple sues David Copperfield over the use of the word “magic”.

Apple’s press release explains, “David Copperfield has every right to entertain, but no right to confuse. In the public eye, magic equals Apple. Mr. Copperfield dilutes the Apple brand and profits by his use of an Apple asset.”

Since we are going on about Facebook this week on the Big Bad Blog, we thought that this would be a good time to share a story from the weekend.

Mr Topp: Hey, you found friends using Facebook Friend Finder!
Karen: No I haven’t.
Mr Topp: Facebook claims you have.
Karen: I guess they’re lying.

Here’s what Facebook says:

So clearly they are claiming that Karen has used the service as part of their advertising. Karen claims otherwise. Is Facebook lying to me?

A second note is that Karen’s profile picture is being used as part of the advertisement. That photo was taken by me — I own the rights to it. Here’s the photo on Flickr:

And here is the license under which it can be used. An excerpt (please note this is not the whole of the license):

You are free to Share — to copy, distribute and transmit the work.

Under the following conditions:
Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
Noncommercial — You may not use this work for commercial purposes.

So when Karen uploaded the photo for her profile picture, she meets the requirements given by Facebook to use the photo as her profile picture on her account:

By uploading a file you certify that you have the right to distribute this picture and that it does not violate the Terms of Service.

Karen has the right to distribute the photo. But she does not have the right to allow others to use the photo for commercial purposes. That is a right that I have reserved, and if somebody wants to use the photo commercially, a separate licensing deal would have to be stuck.

Quite simply, when Facebook is placing this photo in an advertisement they appear to be violating my intellectual property rights.

Facebook’s default opt-in privacy settings means that Karen has never explicitly granted Facebook permission to use her profile pictures commercially. And even if she had, she has not done so explicitly for this photograph. She has certainly never claimed ownership of it — Facebook merely asked if she had the right to distribute it.

There a few important not-so-cut-and-dry questions this raises.

Is Facebook in violation of my rights?

I own the copyright for the photo, and Facebook is not complying with the licensing requirements. They do not credit me in their little ad, though they do link back to Karen’s profile (who I have permitted to use the photo without attribution).

Is linking back to Karen’s profile sufficient to meet the licensing requirements? Clearly not, in my books.

Also, I consider use in an advertisement meant to expand their social network to be commercial use. Is that a valid assumption? Is prompting their users to use their service more a commercial application, or would a court consider it non-commercial, given the context?

I would consider it to be commercial use, but am wise enough to know that my opinion hardly matters.

Finally, is Facebook doing enough to prevent this kind of violation? Where users have opted out of having their photos used, and where users are uploading photos for which they own the rights, there are no concerns. But is Facebook doing enough for this scenario, in which a person has permission to use the photo on Facebook, but does not own the rights themselves.

Facebook takes the position that its users are permitted to sign over the rights of any photos that are uploaded, but merely asks whether the user has the right to redistribute the photo.

With the advent of Creative Commons licensing, however, it is entirely within reason that Facebook’s users DO have the right to load the photo as their Facebook profile photo, but they do NOT have the power to give Facebook (or third party advertisers) the right to use that photo in an advertisement.

Facebook does not ask this question of its users. But they should. Because here, they are violating my intellectual property rights. And it’s probably not just me — it seems likely that they are doing this on a large scale.

The assumption that they made — that holding the right to distribute an image implies holding the right to grant commercial use of that image — is a blatantly false one.

Which brings us to a final question:

What should we be doing about this?

Last week, you may have heard the announcement: Facebook added a ‘check-in’ feature, to compete with sites like Foursquare.

As usual, Facebook’s implementation of the feature might have compromised your privacy a wee bit.

Leaving aside who can and cannot see where you are when you use the service, what you might be concerned about is who can see where you are when you are not using the service.

That’s right — Facebook allows other people to reveal your geographic location through the service. Which you may not want, even if you are planning to reveal your location to your friends everywhere you go. Every once in a while, we suspect, you might not want to be tracked down.

Luckily, they have also made it relatively easy to turn it off this time: here’s how.

One of the big news stories in the tech world this past week are the plans that the United Arab Emirates and Saudi Arabia have to shut down the data transfer services on Blackberries in their country.

In short, it would be a Blackberry ban — after all, what good is the device if it only makes calls?

The United Arab Emirates argue that the phone does not comply with their laws, because the data coming in cannot be monitored (and thereby appropriately censored). Various news sites around the web site “security concerns”, but never seem to have a quote from an authority or industry expert to back that up, giving us pause to make the same claim here.

That said, if the authorities are experiencing difficulty in monitoring phone traffic, it could conceivably cause consternation for their security agencies.

Not alone

Back in 2007, India was contemplating a similar ban — thoughts that seem to be heating up again, now that there are others in their corner. At issue then is the central issue that is present now: the Indian government wanted a back door to the system that would allow them to monitor traffic.

The problem was that Blackberry does not have such a back door, and was not willing to create one. Research In Motion’s official statement on the matter is that such a thing does not exist and will not exist:

The BlackBerry security architecture for enterprise customers is based on a symmetric key system whereby the customer creates their own key and only the customer ever possesses a copy of their encryption key. RIM does not possess a ‘master key’, nor does any ‘back door’ exist in the system that would allow RIM or any third party to gain unauthorized access to the key or corporate data.

Is this free advertising?

Research In Motion has had a tough time of it recently. Google Android has recently become the top selling smartphone platform in the United States, ousting Blackberry from the top of the list for the first time. It’s next closest rival — the iPhone — is not far behind despite severe competitive limitations (it is only available in two models, and on one network).

In the battle of Application Stores, Blackberry is a distant third, well behind the second-place Android store, which itself it light years behind Apple’s App Store for the iPhone.

And when it comes for the battle for hearts and minds, RIM’s device is even further behind — people are genuinely excited about new Android phones, or the iPhone 4. When was the last time you heard someone daydreaming about owning a Blackberry?

In the midst of all these developments, a ban in Saudia Arabia and the United Arab Emirates might look like one more blow, but looking closer, one has to wonder if that is really the case.

Why only Blackberry? Why not the iPhone, too? Why not my phone?

Why, indeed. When the concern of the authorities is that they cannot monitor incoming and outgoing data well enough to know what it is, one has little choice but to wonder how secure your data transfers truly are through other devices.

When a government says “iPhone? Go ahead, use e-mail!”, and “Blackberry? No e-mail — we cannot identify the content, so it is not allowed”, can any conclusion other than the government is reading my e-mail be reached?

This applies domestically, too, for those who are not in Saudi Arabia or the UAE. While the government might not be reading your e-mail, we cannot say the same about hackers. These bans demonstrate the relative ease of breaking into systems that we think are safeguarding our privacy.

Research in Motion should be trumpeting this “defeat” as a measure of how secure their devices truly are. While they are slumping in the consumer market, this event could be enough to maintain their huge advantage in the business market for years.

Sources
Al Jazeera
Apple Insider
The Australian
BBC News
International Business Times
The New York Times
PC Magazine

Photo credit: Newsbiscuit, The Blackberry Burqa