Mr. Topp and the Big Bad Blog

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?

I read a lot of blogs, and follow a lot of people on Twitter. While the vast majority of these defy easy classification, for some the taxonomy is easy — they are friends, skeptics, comedians (whether they know it or not), science bloggers … and social media/technology “gurus”.

There is a reason why I follow this last group — while social media gurus spout no end of bullshit, as a group they are very tuned in to new technologies and have an excellent nose for finding interesting new technologies and news stories involving current technologies. This sometimes (but sadly not always) outweighs their tendency to be blowhards — they are too often self-proclaimed experts who lack any particular expertise. The requirements for being a social media guru are to be plugged into new technology (and its jargon) and to talk a good game.

So I was a little shocked when one of these gurus — “a consulting firm specialising in emerging technology & digital media” — wrote the following:

Apparently the fact that you can legal break your phone in the US is a cause for much jubilation, well at least for US geeks. How strange.

This particular guru is interesting, as they have a tendency not to take the popular viewpoint — for instance, they think that the Times paywall is a good idea. Because of this, they make for an interesting counterpoint to the constant wall of alleged gurus who do not appear to think for themselves.

Still, not understanding the importance of the decision allowing jailbreaking seemed quite odd to me — it was a tacit admission from this guru that they do not understand the issues involved.

As we are nothing if not kind and understanding know-it-all smartypantses here at the Big Bad Blog, we have decided to explain this geeky jubilation in three steps.

A criminal provision

The Digital Millennium Copyright Act makes circumventing a digital lock a criminal act. Until last week, the generally accepted interpretation was that any digital lock picking, from the use of a felt tip marker to a complicated hack was a violation of this law.

The penalty? Up to five years in prison and a $500,000 fine for the first offense. Double that for repeat offenders.

Just to be clear: If you chain your bicycle to a fence and lost the key, you can cut the chain. Your chain. Your bicycle. Not a crime.

However, under the DMCA (and the above interpretation), if you locked your mobile phone, forgot the code, and hacked it — up to five years in prison. That’s a digital lock you broke.

While it should have clearly delineated the difference between breaking a digital lock in the commission of another offense and breaking a digital lock to get at something you own, it did not.

Perversion of the law

We can see already that a law (however flawed) designed to enforce copyright online — the DMCA — actually applies outside the realms of copyright, and prevents the removal of digital locks for any reason.

With this in mind, several businesses made an ingenious move — they built a business model using the DMCA’s protection of digital locks as their basis.

Phones are locked into a particular provider of phone services, and it is against the law for the owner of the phone to unlock that phone so it can operate under other providers. This increases the cost of switching providers (as law-abiding users need new phones) and creates an artificial financial barrier locking customers in with their current provider.

But Apple is the master of this strategy. Their devices are digitally locked — phones, music players and tablet computers — but not just to a service provider. They are locked into a software package, and require the use of Apple’s iTunes software to operate. They are designed that new software applications can be loaded to them, but locked so that those applications can only be bought in one place.

Apple profits tremendously from this artificially limited competitive landscape, but a large portion of their customer base loses out, as Apple heavily censors what is available from their store.

These tactics appear to have the backing of copyright-protection legislation, despite the locks being ineffectual and there being no copyright to violate in this situation. Circumventing the locks was considered a crime in the United States, and still is considered a crime elsewhere.

The business strategy, however, is rooted in perverting a law meant to protect copyright owners.

Ownership

Finally, as in the bicycle example above, it comes down to ownership.

If I lose the key to my bicycle lock, I am perfectly entitled to saw the lock of my bike. If I lock myself out of my car, I am perfectly free to call somebody to pick the lock on my door, break the window, or use some other means at my disposal to get into the car.

My bike. My car. My stuff.

I can break it, break into it, and use it how I see fit — so long as I am not committing some other crime by doing so. It might look suspicious, and result in a question or two from a police officer — at least, I hope it would — but it’s all perfectly legal.

Applying that same logic in the digital world, the question becomes who owns my iPhone?

If the answer is Apple owns my iPhone, then fair enough — I should not be allowed to break the locks within the device. I should also have to pay them if I put it in a blender. I would be destroying their stuff, after all.

But if I own my iPhone, then I should be able to do what I want with it, including downloading an alternate Operating System, or unapproved applications. So long as all this software is legally obtained, it should not be anybody’s business but my own. And I should not have to worry about going to prison for it.

This change is good

An all-out, take-no-prisoners digital lock rule was wrong. And rules that are wrong should be changed — this change simply makes breaking locks illegal only when the lock was protecting somebody else’s stuff. Which is how it is with analog locks.

It is hard to see this as a bad thing.

But this is not why the decision makes people happy — courts were not, after all, clogged with bizarre prosecutions under this law.

The decision makes people happy because it tears away the basis of the business practices of companies like Apple, and puts the right to decide what to do with hardware back in the hands of the consumer.

It allows jailbreaking to be something other than the domain of activists protesting against the status quo, and opens up a world of possibility to those who were willing to respect a law, even if it did not make sense.

In short, the jailbreaking geeks were not just geeks — many were making a conscious act of defiance (and risking prison, however faint that risk might have been) in response to a business practice based upon a perversion of law. And they won — this battle, anyways — and winning tends to bring happiness.

You know those shoes that claim that they tone your legs, butt, abs and/or pectoral muscles? Big surprise … it turns out that they do nothing of the kind.

The anguish felt when rejected (romantically) is similar to addiction. So you really can be addicted to love.

Finally, just as countries such as Canada and Britain are passing new draconian copyright/anti-piracy laws, in the United States — whose diplomats and corporations are the ones pushing for these laws — those very same laws are being watered down by the courts.

In 2008, the Recording Industry Association of America spent over sixteen million dollars suing their customers for breach of copyright. The return on this investment? $391,000.

This follows similar numbers in 2007 ($24 million for $500k) and 2006 ($22 million for $455k). Suing potential customers, it would seem, is not a profitable venture. But I’m sure it must be winning them lots of friends and good press.

(Eclipse on July 11th, as seen from Easter Island, from Astronomy Photo of the Day. Photo by Stephane Guisard.)

A former teacher in Australia is suing the state for more than $40,000, claiming that her larynx was permanently damaged from yelling at the students in her special needs class, which included those with ADD, autism, children with cardiac problems and a diabetic child. This leaves me with questions:
1. Why are all these children lumped together in a single class? How does being diabetic constitute “special needs” in an educational environment?
2. Does this teacher understand the difference between teaching and yelling? Is important to yell at a diabetic? Is it useful to yell at an autistic child? Is there a purpose to yelling at children with heart problems?

Finally, Jewel puts on a disguise, goes to a karaoke bar, and sings her own songs to hilarious effect.