Lex Internet Blog

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Children’s Objections to Parents’ Social Media Sharing

Over at the New York Times, KJ Dell’ Antonia writes about children’s  objections to their parents’ sharing on social media of baby pictures etc.:

….there was one surprising rule that the children wanted that their parents mentioned far less often: Don’t post anything about me on social media without asking me.

As in, no pictures of them asleep in the back of the car. No posts about their frustration with their homework. That victory picture after the soccer game? Maybe. The frustrated rant about the fight you just had over laundry? No way.

The answers revealed “a really interesting disconnect,” said Alexis Hiniker, a graduate student in human-centered design and engineering at the University of Washington who led the research. She, along with researchers at the University of Michigan, studied 249 parent-child pairs distributed across 40 states and found that while children ages 10 to 17 “were really concerned” about the ways parents shared their children’s lives online, their parents were far less worried. About three times more children than parents thought there should be rules about what parents shared on social media.

See, Don’t Post About Me on Social Media, Children Say @ New York Times.

We don’t now expect parents to receive permission from their children before posting slice-of-life photos of those children, but I would be surprised if we don’t see efforts in the next decade (however outside the current sense of legitimate American parental activity) to restrict the range of parental postings either legislatively, administratively in child-welfare actions, or in litigation on behalf of children aggrieved over adults’ postings.

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Code as Free Speech

The FBI hearing over Apple encryption is now postponed, but one of the arguments in that case – as they Electronic Frontier Foundation advanced it – was that code is speech, and should be free speech:

The Supreme Court has rejected requirements that people put “Live Free or Die” on their license plates or sign loyalty oaths, and it has said that the government cannot compel a private parade to include views that organizers disagree with. That the signature and code in the Apple case are implemented via technology and computer languages rather than English makes no difference. For nearly 20 years in cases pioneered by EFF, the courts have recognized that writing computer code is protected by the First Amendment. In a brief from EFF and leading technology experts, we have told the court considering Apple’s case that forcing the company to write and sign a new operating system for the government is akin to the FBI dictating a letter endorsing backdoors and forcing Apple to sign its forgery-proof name at the bottom.

See, Code Is Free Speech @ TIME.

Here’s that brief:

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Prince and the Internet

Prince is known to dislike the Internet, or at least unauthorized publication of his work, via phones, tablets, etc. onto the Web or Internet. Over at NPR, Hasit Shah writes about that the reasons it’s a troubled relationship in Poor Lonely Computer: Prince’s Misunderstood Relationship With The Internet:

First is an attempt to preserve the purity of the live music experience, to encourage people to watch and absorb the show rather than their screens. Apart from a woman who used her phone flashlight to look for something she’d dropped, earning a stern word from an alert member of staff, everyone seemed to respect the rules. At one point, while he scrolled through his iPad, deciding what to play next, Prince playfully asked why everyone was looking at him. Later, I could only find a single, blurry image from the show on social media.

The other reason is Prince’s fierce commitment to protection of copyright. He does not take kindly to unauthorized recordings and images. There is surprisingly little to be found in places like YouTube. What does exist is usually unauthorized and only survives for as long as it takes to issue a takedown notice. Which Prince, or whoever he’s paying to handle this task, does with great regularity. There is plenty of Prince material on non-U.S. video sites, which are harder to deal with under American law.

The article describes Prince’s views, but issues and debates in copyright, too. Well worth reading in full.

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The Reply Brief from Apple

Over at TechCruch, Greg Kumparak and Matthew Panzarino characterize – accurately – the reply brief from Apple in its encryption battle with the FBI as

cold and precise. Apple got some time to consider the best way to respond and went with dissecting the FBI’s technical arguments in a series of precise testimonies by its experts.

Where the FBI filing last week relied on invective, Apple’s this week relies on poking holes in critical sections of the FBI’s technical narrative.

See, Apple: ‘Government misunderstands the technology’ involved in demanding they decrypt an iPhone @ TechCruch.

Here’s an embed of the brief, well worth reading in full:

Reply Brief in Support of Apple's Motion to Vacate by Greg Kumparak

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FCC Chairman’s 3.10.16 Proposal on ISP Use of Customer Data

Last week, Federal Communications Chairman Tom Wheeler informally published a proposal to restrict ISP use of customer data:

If adopted, these would be the first privacy rules for Internet service providers, resulting largely from last year’s net neutrality regulations that expanded the Federal Communications Commission’s oversight authority over the industry. (Those rules are currently pending in court.)

Thursday’s unveiling of the proposal from Chairman Tom Wheeler is just a first step: The FCC is expected to vote to formally propose this plan on March 31, soliciting public comments on a variety of questions about how the rules should work before the final version gets drafted….

See, FCC Proposal Would Limit What Internet Providers Can Do With Users’ Data @ NPR.

Here’s the draft released last week, and online at http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0310/DOC-338159A1.pdf:

Download (PDF, 50KB)

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Hiltzik on Harper Lee and HarperCollins

Over at the Los Angeles Times, columnist Michael Hiltzik writes about the withdrawal of mass-market rights to a classic:

The latest chapter in the saga has just been written. Following the author’s death at the age of 89 on Feb. 19, the Harper Lee estate has eliminated the mass-market edition of “To Kill a Mockingbird.” List-priced at  $8.99 by its publisher Hachette Book Group (but available for as little as five dollars and change), this is the edition through which a couple of generations of schoolchildren first encountered the book in class–and often encountered the joys of reading for the first time.

According to a March 4 notice issued by Hachette to booksellers and reported by the New Republic, permission for the mass-market edition has been withdrawn by the novel’s publisher, HarperCollins. (HarperCollins also brought out “Go Set a Watchman.”) Hachette can sell off its remaining copies, which it’s doing at a further discount, but henceforth “Mockingbird” will be available chiefly in a HarperCollins trade paperback edition, which lists for $14.99.

See, The latest news on ‘To Kill a Mockingbird’ shows how copyright law is totally broken @ LA Times.

Even believers in strong copyright protections will concede that enforcement of copyright – like any other claim against others’ actions (in this case, others’ printing of a novel) – may be contrary to a copyright holder or author’s interest.  Hitzlik continues:

Yet as we can see from the extinction of the mass-market paperback of “Mockingbird,” such extensions stifle the dissemination of creative works rather than encourage it. The squabble over the copyright to Anne Frank’s diaries, which we reported on here, also illustrates how the grip of copyright law leaves the control of creative works in the hands of people who may not share the desires of the works’ creators. Harper Lee has passed on, Anne Frank is long gone, and Walt Disney is represented in the marketplace by a corporation  that is hopelessly far removed from his artistic and even his business creation.

I’ll concede that it’s hard to see how Harper Lee would have wanted fewer people to read her books, but that is the likely consequence of the cancellation of the mass-market edition.

The implication, I think, is that copyright should be limited to the original author’s life, at the very most.

That would take us back to the copyright regime before 1976, before life-plus copyright terms.

There are few reasons to go back to 1976 (Bicentennial notwithstanding), but this may be one of those few.

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Ruling Awarding DC Comics a Copyright to Batmobile Stands

One reads over at Ars Technica that although the Batmobile is not a character, the U.S. Supreme Court let stand a Ninth Circuit ruling that DC Comics can (and does) hold a copyright in the Batmobile.  The Ninth Circuit earlier found that

….in general, the Copyright Act affords no protection to “useful articles” or items with an intrinsic utilitarian function such as automobiles. Leicester v. Warner Bros., 232 F.3d 1212, 1216-17 (9th Cir. 2000). Defendant’s argument, however, ignores the exception to the “useful article” 4 Case 2:11-cv-03934-RSWL-OP Document 22 Filed 01/26/12 Page 4 of 5 Page ID #:192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rule, which grants copyright protection to nonfunctional, artistic elements of an automobile design that can be physically or conceptually separated from the automobile. Id. at 1219, n.3. As the facts are pled in the Complaint, the Court can make the reasonable inference that there may be non-functional artistic elements of the Batmobile that may possibly be separated from the utilitarian aspect of the automobile. Klarfeld, 944 F.2d at 585 (9th Cir. 1991)(holding that all reasonable inferences must be drawn in favor of the non-moving party in a motion to dismiss). As such, the Court finds that the Batmobile and all of its relevant embodiments are not, as a matter of law, excluded from copyright protection….

See, from the Ninth Circuit, the opinion in DC Comics v. Mark Towle, embedded below:

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‘A Brink of Invention’ Claim

Claims based on alleged breaches of invention assignment agreements rest fundamentally on state laws and, significantly, on state trial courts’ determinations of fact.

In Ikaria, Inc. v. Frederick J. Montgomery, No. 2015AP568, plaintiff-appellant Ikaria advances a ‘brink of invention’ theory that employees left Ikaria immediately before they were about to come upon an invention under the scope of Ikaria’s invention assignment clause with them. (Had they stayed, and completed their invention while under Ikaria’s employ, the rights to their invention would have resided with their employer.)

Brink of invention claims, naturally, rest on how much an employee had achieved prior to his or her departure. They’re fact-intensive. The argument as a claim makes sense, I think, because others may naturally wonder: why did employees leave when they did?

Here’s the employer’s claim, from the appellate opinion, paragraph 26:

What this leaves we will call Ikaria’s “brink-of-invention” argument. Ikaria argues that the defendants breached the implied duty of good faith by allegedly intentionally timing their resignations to occur when the defendants, as Ikaria puts it, were on “the brink of completing their inventions, so that they could evade a narrow reading of the Invention Assignment Clause.”

To advance successfully a claim like this, Ikaria would need two things under Wisconsin Law:

(1) to show that “the defendants not only conceived of all four inventions after the employee-defendants had resigned, but that these conceptions-of-invention were based on “substantial work” that the defendants “performed post-Ikaria”

and

(2) for the appellate court to disregard that “Ikaria effectively asks us to reweigh witness credibility and the evidence generally and override factual inferences drawn by the circuit court. However, as stated above, we are obligated to view the evidence in the light most favorable to the circuit court’s fact finding, including its credibility determinations, and there was a factual basis for the circuit court to reject the brink-of-invention notion.”

(Paragraphs 28, 29.)

In Ikaria, one sees that an appellate court may decline consideration of a factual determination about a ‘brink-of-invention’ departure by relying on a trial court’s prior factual assessment.

Appellate slip opinion, below:

Download (PDF, 381KB)

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California Bill Adds Sexting to Students’ Grounds for Being Expelled

Some sexting among minors constitutes bullying or acts of revenge, and a bill before the California Assembly would allow expulsion as a punishment for students doing so.

Cyrus Farivar writes that

Asm. Ed Chau’s (D-Monterey Park) new bill would empower public schools to expel students under 18 who engage in the potentially degrading behavior.

According to the draft legislation, which was formally introduced late last month in the California Assembly, sexting is defined as “the dissemination of, or the solicitation or incitement to disseminate, a photograph or other visual recording by a pupil to another pupil or to school personnel by means of an electronic act with the purpose or effect of humiliating or harassing a pupil.”

Specifically, if signed into law, the new statute would affect students on school grounds, en route to or from school or a school event, and even during the school’s lunch hour regardless of whether the student is on or off campus.

See, Beware, California students: You could be expelled for “sexting” on campus @ Ars Technica.

This is, as Farivar notes, closer to addressing problems of revenge pornography than sexting. Sexting among minors brings obvious criminal risks even if the minors involved believe they’ve found willing recipients.  (Practitioners in cyberspace issues should be prepared to make a referral to a criminal lawyer in cases where a minor client has distributed sexually explicit images of other minor children.  For a story about an ongoing investigation in Wisconsin involving possibly dozens of children, see, Waukesha police investigate students as young as 10 in sexting case @ JSOnline.)

See, also, a copy of the California legislation concerning expulsion:

Download (PDF, 264KB)

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