Ed Champion is investigating whether certain bloggers included in Amazon’s Kindle launch were made “Kindle Blogs” without authorization or licensing. He cites two examples (Daniel McGowan and Cork Gaines) of bloggers who apparently are included in the Kindle Store without their permission. This surprises me. My personal blog Bag and Baggage is there in the Kindle Store too (I’m also quoted in Ed’s post), but under an express agreement. It could be the Kindle team had some misunderstanding about the ramifications of the noncommercial use restriction in certain Creative Commons licenses; the initial email I received about participating did reference my Creative Commons license, but neither McGowan nor Gaines seem to use Creative Commons so I’m at a loss as to what’s going on. In my case, Amazon had lots of communication with me about including Bag and Baggage, and crossed its T’s and dotted its I’s on the legal front.

[Updated 10:08 p.m.] Ed Champion has unearthed two more bloggers who are less than pleased with being Kindleized.

[Updated 11/22, 9:36 a.m.] Engadget reports the Kindle gave Amazon plenty to be thankful for, selling out the first batch in just 5.5 hours.

The recent and unexpected passing of my grandmother (she was the only 98-year-old I’ve known who could, and did, blindside hundreds with her death) opened my eyes to the fact that death in 2007 has become an online, interactive experience. The mortuary partnered with MeM.com to provide an “Everlasting Memorial,” complete with a photo slideshow (which was displayed at the memorial service; this was in Silicon Valley, after all), still images, and guest book:

Customers have told us that one of the most cherished features of the Everlasting Memorial is the guest book section. This allows family and friends from around the world to send messages to share their thoughts and fond memories. To send a message, a loved one merely clicks on the “send message” button, and begins drafting their message. Once received, family approval is required prior to publishing to the web.

Of course, they upsell/make a number of “keepsakes” available to the bereaved.

The San Jose Mercury News, where we ran the obituary, partners with Legacy.com, a similar service. Nicer guestbook format; no slide show. This memorial isn’t everlasting though, until some family member or other benefactor comes along to sponsor the (considerable) hosting fees.

Thus does the Live Web creep into all aspects of life and death. Even while the family is thinking of other, hopefully more profound things, these online communities of mourning — moderated to control, I suppose, disparagement and spam — spring into being at the hands of those on the business side of the death.

While I’m struck by the Web’s increasing role in building communities around death, I’m equally struck by the willingness of the related enterprises to fleece the unsophisticated public. The “keepsake” prices, e.g., around $70 for a hardbound book, are quite high. (Compare QOOP’s hardbound photobooks starting at $29.99.) Consider too the daily charge to run an obituary in the Mercury News:

• $9.75 per 31 character line, plus
• $117 per day to include a photo.

Assuming you’re also charged for the spaces in your 31 character lines, that’s roughly $850 per day for a 400 word obituary w/ picture. This brief blog post, also with picture (one I enjoyed, and hope you do too), is about that length already. It’s clear obituaries are cash cows for the newspaper industry. What’s not clear is how long people who can get the same information out to a larger audience for free or basically free online will continue writing those checks. One of my favorite Steve Jobs-isms, about the challenges they faced at the beginning of the personal computer era, seems particularly apropos here: “People couldn’t type. We realized: Death would eventually take care of this.”

Bonus links: Shelley Powers, Death 2.0; Matt Marshall/VentureBeat on ‘Respectance’.

(Image by welovethedark, CC Attribution-2.0)

Forget about things like the fact Google’s at $741 and Apple’s at $191. Were you to try to rent a car at San Jose Airport tomorrow (Wednesday), you would discover that every single vehicle — from every single carrier — is spoken for.

(Image by Joe Shlabotnik, CC Attribution-2.0)

Robert Scoble is wondering whether accessibility laws may cripple videocasts (and presumably podcasts). Scott Bourne had an interesting (if inconclusive) post on the subject last year, and the head lemur posits that the touchstone (in the context of the Target case presently in the news) may be whether or not you’re doing e-commerce. I’m out of my depth with accessibility law, but the subject has certainly come up and intrigued us for the last two years in the legal session at the Podcast and New Media Expo.

My thinking, uninformed as it is, is that Web accessibility and video/podcast accessibility are different animals. Since podcasts aren’t going out over any FCC-regulated spectrum, perhaps their accessibility requirements (if any) should be similar to those applicable to satellite broadcasts. If you’re on top of those requirements or have further thoughts (e.g., perhaps satellite isn’t the proper analogy at all), please chime in in the comments. And while we’re at it:

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(Image by laRuth, CC Attribution-2.0)

Then get on over to Ed Bott’s Microsoft Report, where his poll on digital media ethics has garnered an overwhelming, and highly educational, response.

WikiPatents, “a public community that reviews US patents and pending patent applications,” is one year old and now home to information and commentary about over 10 million patents and patent applications. It also is as far as I know the only place you can sort patent data by whether the invention in question is amusing, clever, complex, efficient, historic, important, innovative, interesting, practical or simple.

If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”

Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.

This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)

I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:

Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’

For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.

Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)

(Image by A. www.viajar24h.com, CC Attribution-2.0)

Dennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin’s advertising use of a minor’s picture posted by the girl’s youth counselor to Flickr under a CC-Attribution license (which permits commercial use). The Flickr user/youth counselor/photographer is a plaintiff in the suit, contending Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”

Creative Commons has been sued for negligence, the catch-all of tort law. Someone is negligent when s/he fails “to act with the prudence that a reasonable person would exercise under the same circumstances.” The plaintiff posits that Creative Commons had a duty to warn about what commercial use is and the fact an “Attribution” license permits it. Creative Commons should have little trouble demonstrating that assuming it even owes such a duty, the duty was satisfied.

Putting aside for a moment the Texas wild card [”Texas courts have twice … held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law,”], this claim should go nowhere. The Creative Commons “Before Licensing” page explains, in essence, why CC is the Live Web’s quickie divorce information center. That is: it can help users accomplish a primary legal objective at a fraction (or none) of the cost that otherwise would be associated with the transaction, but it is not intended as, and does not purport to offer, anything but a one-size-fits-many solution. Creative Commons cautions users to “[m]ake sure [they] understand how Creative Commons licenses operate.” In addition to the related explanations of the Attribution and Noncommercial license attributes provided by Creative Commons itself, Flickr (which interestingly isn’t a defendant) advises users that the only restriction imposed by an Attribution license is that the user give the licensor credit. Flickr points users to relevant portions of the Creative Commons site for more detailed explanations and information. Flickr also requires users like the plaintiff in this suit to ensure they do not use the service to, among other things, “harm minors in any way,” or post material they do not have a “right to make available under any law” or that “violates proprietary rights” of any party. Creative Commons similarly cautions users to make sure they have the authority to distribute works under the license they select, and of course tells them it is not a law firm, does not provide individual legal advice, etc.

From my admittedly noncomprehensive review of Creative Commons’ FAQs and other information, it seems to me the site complies with the ABA’s Best Practice Guidelines for Legal Information Providers (for that matter, non-defendant Flickr does so as well by linking to the appropriate Creative Commons material), and that should factor into any reasonableness test. Shelley believes this suit was inevitable, and she may be right, but I disagree with her about why it was to be expected. Creative Commons didn’t invite this suit. Rather, it had the fortitude to provide a range of possible solutions to some of the problems raised by the miasma of our copyright system. Willingness to innovate in areas that lack a wealth of on-point legal precedent can always make you a target.

(Image by hitormiss, CC Attribution-2.0)

[Update, 9/26/07, 1:00 p.m.:] In an update to her original post, Shelley Powers points out, as I have here in the past, that it’s possible for third parties to violate both copyright law and the terms of use for Flickr and/or its API. Something to bear in mind for both the users and misusers of Flickr (the latter of whom will inevitably, and this time correctly, be sued for such actions).

Through his always enriching podcast, I’ve heard Cory Doctorow give variations on his privacy talk at least five or six times over the last year. The most current iteration is available at Intel’s/Josh Bancroft’s BitStories. In responding to an audience question, Cory explains exactly why, when it comes to attention, the medium is the message:

I think technology does embed ideologies. So I think that, for example, if you design a technology that takes your users’ behavior data, and uploads it to the Internet, and then sequesters it and sells it off and gives it to other people, that technology has a message for its user, and that’s that that user is an ambulatory wallet, right? Shut up and take it. If you, on the other hand, design a piece of technology that watches what your user does on her own computer and lets her serve herself better, and then enables her to collaborate with her peers, so that she’s not a business model or a sticky eyeball, then that sends a different message. That sends the message that the expectation you should have of your computer is that it is not a snitch, but a competent and impartial butler. I love the fact that my computer auto-completes the email addresses if I send them once. I wouldn’t like the fact that it sent them to someone else.

That’s an excellent summing up of why I got involved with the Attention Trust and endorse its principles. Cory’s Q&A session with the OSCON audience starts at 19:20 and is particularly good, I encourage you to check it out. (Also includes this great line re airport security: “Those who would trade liberty for a little bit of transport deserve neither liberty nor transport…”)

(Image by katielips, CC Attribution-2.0)

Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.

StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.

It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.

Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.

Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.