Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:

Two-word license agreement: “F— YOU!”, from Boing Boing by Cory Doctorow

Fair Use for YouTube & MySpace Users, from Slashdot by Zonk

What bloggers should know about copyright protection for their writing and photographs, from IP Law Daily by mamarant

Trademarks FAQ, from Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout by Brett Trout

Catching Up: Derivative Works and Fair Use, from IPTAblog by Andrew Raff

Avatar Rights, from Wonderland by Alice Taylor

Proposal to Make Suing Anonymous Avatars Harder, from Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds by Benjamin Duranske

Lawsuit Filed Against Second Life Avatar, from Top Tech News by Phil Davis

Prophesies, from Doc Searls Weblog by Doc Searls

A Guide to Google’s APIs, from Mashable! by Adam Ostrow

It All Comes Together: The getting good with BitTorrent roundup, from Lifehacker by Adam Pash

Most Popular DVDrips on BitTorrent (wk31), from TorrentFreak by Ernesto

Stop! Don’t click “I Agree” before you read the Terms of Service, from Yap 3.0 by Robin

YouTube, Google Street View: the copyright, trademark, AND privacy trolls are coming!!, from ZDNet Blogs by Russell Shaw

Getting data OUT of Facebook, from ZDNet Blogs by Dennis Howlett

Electronic Filing Of Copyright Applications Has Arrived (at least for beta testers), from Clock Tower Law Group’s shared items in Google Reader by Aaron Silverstein

Internet Vote-Swapping Legal, Says 9th Circuit, from Threat Level - Wired Blogs by Sarah Lai Stirland

Facebook, Identity, and OpenID, from Ministry of Intrigue by daniel@andrlik.org (Daniel Andrlik)

Let’s kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts, from Online Guide to Mediation by Diane Levin

Taking Intangible Electronic Files is Criminal Fraud–NM v. Kirby, from Technology & Marketing Law Blog by Eric Goldman

Video Site Veoh Sues To Stop Universal, from Top Tech News by Richard Koman

Surfing your clickstream, from ZDNet Blogs by Ed Gottsman

Hyperlinking & the law: IMPACT guide to the essentials, from IMPACT® by Alex (note the focus of this piece is UK/EU)

The conference call Mike Madison and I recorded earlier this week in anticipation of our session at Community 2.0 (more here and here) is now available as part of the Bag and Baggage Podcast or from the Future of Communities blog.  We talked about:

• Defining community and loosely-joined individuals and interest groups
• Community goals and governance (or lack thereof)
• External innovation communities such as Procter & Gamble's and ownership issues
• Intellectual and liability concerns for company-owned or associated communities
• Whether an initiative similar to the Creative Commons movement has or is in the process of emerging
• Ownership issues and risk-minimization around products or services that emerge from external ideas
• Variations on open source licenses
• Individual rights and protections for community contributors and participants
• Anonymity and accountability
• Nefarious community exploitation: gaming, hacking, spamming
• Trust and reputation management
• The use of trademark law to use and manage community involvement; selective enforcement, the expansion of certification marks
• Insurance industry mechanisms and models
• Defamation
• Company-sponsored (and owned) communities, and the actions taken by participants who find the terms and conditions of such initiatives too draconian
• "Innovator's dilemma" management and patent strategy and the tension between old, successful products and those developed with help from outsourced customer communities
• Personal data ownership and the Attention Trust

Our rescheduled conference call in anticipation of Community 2.0 (details here) takes place today at 1:00 p.m. PST/3:00 p.m. EST.  Call-in details are here, please join us if you are interested.

In connection with our session at the the upcoming Community 2.0 conference, law professor Mike Madison and I will be hosting a public conference call on Monday, February 26 beginning at 1:00 p.m. PST, and we'd love your participation to help us hone in on the ownership considerations (IP; attention; identity), and issues of governance and liability, most critical to the creation, maintenance, and long-term health of business communities.  The call will be recorded and made available as a podcast from The Future of Communities blog.  You can join us as follows:

From Skype: +990008275785861

From a regular phone (long distance costs apply):
US: 1-605-475-8590

In Europe, call:
Germany 01805 00 7620
UK 0870 738 0763

The Conference Room Number: 5785861

Hope to chat with you then.

(Cross-posted to Bag and Baggage and Between Lawyers)

[Update, Monday 2/26 @ 1:15 p.m.:] Unfortunately, we had problems with the conferencing service lined up to support this, so are having to reschedule. I'll post the new date, time, and call-in details once they're available, sorry for the delay.

Evan Brown has a good summary of last week's Doe v. MySpace decision, wherein a federal district court in Texas threw out claims against MySpace due to the protections provided by Section 230 of the Communications Decency Act.  As Evan describes:

Julie Doe, the anonymous minor plaintiff, lied about her age (saying she was 18 when in fact she was only 13) when she signed up for a MySpace account. Later she met a 19-year-old man on the site, and the two started talking by telephone. They met-up in person, and Doe was assaulted.

Julie and her mother sued MySpace, claiming that it failed to take adequate precautions to protect Julie from the attack. MySpace raised 47 U.S.C. §230 as a defense in its motion to dismiss. That section provides, in relevant part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

As so many courts have done before, the court in this case adopted the rationale of the watershed Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Zeran held that "[b]y its plain language, Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."

The court dismissed the case, finding MySpace immune under Section 230.  While decisions of trial courts (even federal ones), may not generally be all that earth-shattering, this one is important for several reasons.  First, it can only prove helpful (perhaps enormously so) to MySpace, which faces a slew of such claims.  Second, the court's application of Section 230 is novel, in that it concluded the statute immunizes a party against "real world physical injury relating to, but not directly resulting from, the publication of material on the Internet," as John Ottaviani puts it.  (Santa Clara law professor Eric Goldman is adding it to his Cyberspace Law syllabus for next year, and he won't be alone in giving the decision concerted scholarly attention.)  Third, the decision may prompt legislators seeking to calm the nerves of concerned parents to question the wisdom of leaving Section 230 in the hands of so-called activist judges; Richard Koman thinks the decision puts the continued viability of Section 230, without which many Web businesses would fold under the weight of their liability for third party acts, in real jeopardy. 

James Au blogs The Second Life of Judge Richard A. Posner, a transcript of last week's Creative Commons event, complete with lawyers-cum-furries.  Surreal.

The conversation ranged back and forth between topics as abstract as law in online worlds and mortally serious as law in the shadow of Al Qaeda– along with infrequent interruptions involving aforementioned raccoon and simulated terror attacks. . . .

Watch this space (a Technorati search for "Posner Second Life," which at the moment unfortunately is devoid of coverage of the actual event):  Judge Richard Posner of the Seventh Circuit Court of Appeals, held forth last night in Second Life, courtesy of Creative Commons.  If that doesn't turn your brain inside out, I'm not sure what will.  For more about the good Judge's work, Project Posner is a great starting point; it yields 60 results for copyright, for example.

Though my first life thus far has put Second Life right up there with India, Japan, South Korea, Nepal, and Thailand as far-off places I merely long to someday visit, I suspect I'm in the minority of legally minded online denizens.  Demand for event access was understandably "fervent," and a positively giddy Colette Vogele emailed as she was giving her new avatar a spin in order to participate.  (Hey, CIS has a whole new look; so does ZDNet, for that matter!)  Professor Patry has been gearing up for the proceedings as well, and I trust James Au (who conducted the interview in-world) will check in soon.  

Hurray to Creative Commons for continuing to exploit Second Life's mind-expanding potential.

Updated, December 9, 12:40 a.m.:  Amber has comments, pics and a transcript; and from James Au:

The conversation ranged from coercive interrogation of terror suspects to intellectual property in online worlds; the audience included several aliens, mutants, babes in 6 inch stilleto heels, and Judge Richard Posner's favorite audience member of all, a human-sized raccoon.  And despite a couple griefer attacks with fireballs and a giant flying block of wood, the Judge pressed on unfazed with agile wit, as if he always gave lectures in the metaverse.

Next Monday, I'll post the transcript of what must be Judge Posner's strangest public conversation on law in the 21st century. . . .

Marty Schwimmer tipped me to the controversy swirling about use of a CopyBot tool in Second Life.  (Go read Marty's terrifically headlined post: CopyBot Terrorizing Residents Of SecondLife, Caught On Video.)  Marty thinks this is an indication Linden Labs will have to bake more protective measures into its virtual world if it hopes to preserve and foster the economy:

[T]o the extent that it wishes to continue to be the host to an exchange, it will find that successful exchanges must offer security not only to buyers but to sellers. If copyrightable material is going to be bought and sold on Second Life, then I'm not sure that the real world copyright regime is fast enough to solve problems like CopyBot. I think that SecondLife is going to have to get into the copyright enforcement business.

I disagree.  Marty emphasizes the potentially disruptive nature of this copying technology on the still relatively nascent virtual world, but the fact is all copying technologies are and have been disruptive, in part by making it easier to infringe intellectual property rights:  cameras, photocopiers, audio and video recording devices, and all manner of digital media fall into this category.  In the real world, economies thrive in part because copying technologies exist — in other words, because those technologies themselves are economic engines.  Deciding that such technologies are bad per se and must be squelched or hobbled isn't good policy in the real world, and I'm not sure why Second Life, which is in the enviable position of creating in-world copyright policies from scratch, should adopt a different approach.  As Linden Labs CTO Cory Ondrejka pointed out in his related blog post, there is one aspect of the real world copyright regime that is literally built for speed:  the notice and takedown provisions of the DMCA.  I think my CNET colleague Daniel Terdiman, who wrote about this in his piece 'Second Life' faces threat to its virtual economy, missed the thrust of Cory's DMCA point.  It's not necessary "to file a Digital Millennium Copyright Act complaint — in the real world — against offenders" to achieve the removal of infringing material; it's only necessary to notify Linden Labs that you contend something is infringing and the removal process proceeds rapidly from there.  The asserted infringer has to make his or her case to Linden Labs in order to keep up the activity, before the question of real-world litigation necessarily even comes into play.

For now, Linden Labs has chosen to appease concerned users and police the technology by making use of CopyBot a terms of service violation.  But they've also, I think wisely, indicated that "using the Terms of Service is not a permanent solution," and that tracking and licensing services and data are keys to the approach-in-progress.  As in the real world, I think the smart and appropriate policy will be to find a way to let the analogs of snapshots and copy machines continue to exist, and let legal code rather than machine code primarily govern infringement situations.

[Update, 11/21/06 2:40 a.m.]  Jennifer Granick, Second Life will Save Copyright:  "The idea that innovation can flourish in the absence of copyright enforcement is not as heretical as it might seem."

Second Life and similar virtual worlds give rise to a seemingly endless stream of provocative legal issues, and now it seems even Congress agrees.  Techmeme is highlighting a complementary duo of stories on this day that happens to be the deadline for filing an '05 U.S. income tax return for those who went on extension.  The first discusses the new Reuters Second Life news center, and its bureau chief Adam Pasick.  The second, from Adam himself, discusses Congressional interest in "how virtual assets and incomes should be taxed."  (Surely, Second Life-related business expenses already are deductible.)

And Lionhead Studios (now owned by Microsoft), as it turns out, means that pretty literally.  My last post triggered a fascinating discussion in the comments about what one may or may not do with machinima films created using The Movies.  The Movies is a unique combination of authoring tool and game.  Those who buy it and use it can create digitally animated, 3D modeled movies — but according to the applicable license terms the creator’s ownership of the end result extends only things that were not supplied with the program: 

[W]ith respect to any game movies you create using the in-Program movie making feature ("Game Movies"), you will retain ownership of your Game Movies, excluding any and all content within your Game Movies that was either supplied with the Program or otherwise made available to you by Activision or its licensors, and such content shall remain the exclusive property of Activision and its licensors subject only to the limited license granted herein.

I would need to defer to someone who has actually used the product to confirm, but I believe all the raw materials — "actors," sets, etc. — are supplied with the program.  This sets up a cumbersome "joint ownership" situation, to say the least.  As Ruth Logie pointed out, it’s a little like Microsoft retaining ownership of the raw materials of your novel — letters, punctuation, etc. — because you wrote it in Microsoft Word. 

The Movies capitalized on the fact that so many were enjoying making their own creations out of their favorite games.  As Wired News put it when the product was first released,

Several bustling online communities and tens of thousands machinima later, it’s obvious that the world was waiting for a quick-and-dirty way to create computer-animation flicks. Until now, most machinima have been made by geeks who know enough about coding to re-purpose video-game engines like the open source Quake III engine to make their movies. Or they had to know their favorite MMORPG or first-person shooter well enough, and be patient enough, to manipulate, pose and film their in-game characters performing scenes.

Both styles of machinima-making have built-in limitations: Either you have to code, or you have to be willing to film your bodice-ripping romance using gnomes and orcs.

Enter The Movies’ creator Peter Molyneux, who told Wired News for that same story, "We wanted you to be able to make your own unique movie in no way controlled or defined by us. I think that’s what we’ve achieved."  The Movies’ license terms (and the terms of use for the site Lionhead provides for users to post their creations) fail to bear that statement out.  If Lionhead/Microsoft are serious about empowering users, they need to either revisit how user rights are defined, or implement a process whereby filmmakers can obtain use permissions in a streamlined way.  Short of that, filmmakers using The Movies find themselves saddled with the sort of silent partner only Danny DeVito could love.