Who carries your Web 2.0 banner?

Posted on April 15, 2009 by Jeremy Costin

What’s at stake when you let others step in your online footprint?

I wrote here about the possibility of something resembling agency through social networking / Web 2.0 / user-created content a short time ago.  I am now in the fortunate position to be examining this issue first hand, as I’ve been asked to provide content for the Tazzu blog.  My first piece there is going up simultaneously with this piece.  On the Tazzu blog, I suggest that you monitor how others perceive your relationship with those whom you authorize to use your name, your goodwill, your reputation, your platform, etc.  Here, I would like to get into a little more detail answering a specific question:

What is the difference between goodwill risks and liability risks with Web 2.0?

First some definitions:

From the Canadian Oxford Dictionary (1998):

Goodwill:  2.  The established reputation of a business etc. as enhancing its value.
Liability:  2.  A person or thing that causes one problems or puts something at risk.

From Black’s Law Dictionary (8th Ed., 1999):

Goodwill:  A business’s reputation, patronage, and other intangible assets that are considered when appraising the business, esp. For purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets.  Because an established business’s trademark or servicemark is a symbol of goodwill, trademark infringement is a form of theft of goodwill.  By the same token, when a trademark is assigned, the goodwill that it carries is also assigned.
Liability:  1.  The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.
Vicarious liability:  Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

From this, we can see that goodwill has to do with the perception of your enterprise, and liability has to do with getting into real legal trouble.  How are they connected by this Web 2.0 stuff?  Well, let’s look at that vicarious liability thing.  It refers to being liable for what someone does in your name, and requires two parts. Continue reading →

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Laws for the Virtual Universe

Posted on March 21, 2009 by Jeremy Costin

What if virtual worlds, no matter their purposes, narratives, unique details, and other variations, could be linked?  What if they had borders between them, keeping the right stuff in its place, but in other ways being permeable?

I am in the process of revising my paper, “Sheriffs and Vigilantes of the Cyber-Frontier: Justice within Virtual Worlds,” and have also just read Cory Ondrejka’s essay, “Escaping the Gilded Cage: User-Created Content and Building the Metaverse.”  In the paper, I elaborate on “interration,” a process proposed by Ed Castronova, and expanded by Jack Balkin.  Essentially, it would make new legally recognized jurisdictions out of virtual worlds, complete with proper articles of “interration,” principles of accountability, and formal limits on liability.  It would do to virtual worlds what incorporation does for entrepreneurs and businesses.

Ondrejka, in his essay, suggests how to make the Metaverse an actuality.  The Metaverse was a complete virtual world in Neal Stephenson’s phenomenal novel, “Snow Crash.”  It should be noted that Cory Ondrejka is one of the head honchos at Linden Labs, creators of Second Life – a bona fide attempt at the Metaverse.

What I wonder is this: Continue reading →

Posted in Information Technology, Legal Explorations, Video Games, Virtual Worlds | Tagged , , , , , , , , , | 3 Comments

The Value of Liberal Arts in a Recession

Posted on March 3, 2009 by Jeremy Costin

The New York Times recently published an article, “In Tough Times, the Humanities Must Justify Their Worth,” by Patricia Cohen.  I was told about this article by McMaster University English and Cultural Studies Professor, Dr. Sarah Brophy.

NYT Article at:  http://www.nytimes.com/2009/02/25/books/25human.html

There are a few points in the article I would like to explore, from the perspective of someone who has partaken of the pastures on both sides of the fence.  First of all, I suggest that the dichotomy of liberal arts – the humanities – as an Ivory Tower luxury opposite the greenback-printing mill of technical disciplines is an artificial dichotomy.  Secondly, I suggest that it is a dangerous one.

Cohen sets out this dichotomy right at the beginning of her article, though she rightly questions whether it is a good idea to shift resources to technical training and sciences from liberal arts:

“A traditional liberal arts education is, by definition, not intended to prepare students for a specific vocation.  Rather, the critical thinking, civic and historical knowledge and ethical reasoning that the humanities develop have a different purpose:  They are prerequisites for personal growth and participation in a free democracy, regardless of career choice.”

I would like to add to this:  The humanist training, the whetting of mental faculties that not only separate us from the animals but allow us to weigh and manage the fruit and potential fruit of our technical wizardry, is as essential to a growing society as the freedom that makes it possible.  Growth in our society, as it was during the renaissance and in Athens two millennia earlier, is predicated on inseparable democratic and intellectual freedom.  Participation in a free democracy cannot be accomplished without growth, and growth cannot be accomplished without the intellectual ardour for which the humanities train us. Continue reading →

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Richard Stallman came to Vancouver, and I upset him

Posted on February 19, 2009 by Jeremy Costin

Richard Stallman was in Vancouver two weeks ago.  He performed, if I may describe his lectures like that, three times; I caught the first.  I asked Stallman a question after it was over, and thoroughly annoyed him.  I know that I annoyed him because he grew flustered, stamped his feet, turned away from me to the rest of the crowd and yelled at me.

Richard Stallman at UBC

Richard Stallman’s claims to fame are manifold.  From writing the emacs text editor (for you Windows-only users, there are text editors out there, which are designed for programmers, that show Notepad to be a genuine embarrassment to Microsoft), to being leader of the GNU development team, to founding the Free Software Foundation and being the free software movement’s chief evangelist, Stallman, or rms (as he prefers to be called), is a legend in the software world.  rms is equally well-known for his temper, his unsociable behaviour, and the monorail upon which he drives the train of his thoughts.

“Enough, Jeremy,” you are saying, “What did you ask him that made him stamp his feet, pump his fists, and otherwise react like a six-year-old who was told that he has to do his homework before he watches television?”

Before I tell you what I asked him, I have to tell you about Stallman’s lecture.  I found it very interesting.  I went to the first of three lectures held in various places that weekend.  This first one was at the UBC Faculty of Law, in the mega-hall (101, 102, 201).  It was primarily about the fundamental principles that underlie “free software”.  rms was quick to explain the difference between “free” software and “open source” software, a distinction I have often blurred.  I will do my best, in the future, to maintain this distinction, as it made a lot of sense to me.

Stallman explained the difference in different ways.  There is a language issue.  “Free” has two meanings in English; other languages tend to be more specific.  The distinction can best be drawn using the words “libre” (from French, which shares its Latin root with “liberty”) and “gratis”, referring to the price tag in dollars.  Both open source and free software are gratis, but only free software is built and distributed on a philosophy which incorporates principles of liberty.

Continue reading →

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Does WOM or Social Network Marketing Create Agency?

Posted on January 28, 2009 by Jeremy Costin

We are now near the end of January, and I realize it has been a little while since my last post.  Before leaving LexisNexis, I prepared a proposal, formatted as a white paper, for a position specializing in information management.  At the same time, I wrote a post here on how online social networking technology impacts marketing strategy.  I’m looking into writing on the subject, and how it intersects with law.

Social networking technology is just one aspect of Web 2.0, the paradigm that was encapsulated and named only four-and-a-half years ago by IT publisher and guru Tim O’Reilly.  As such, social networking should be considered as one of many related technologies.  In fact, it shouldn’t be seen as a technology at all, but as an interaction platform, a way both of enabling interaction between participant users and also of nurturing those interactions.  And like any nurturing mother, the platform controller infuses the nurturing with whatever flavour suits it.

O’Reilly summed up Web 2.0 as “the move [by business] to the Internet as a platform.”  Seeing the Internet as a platform instead of as a mess of often unrelated technologies is key to understanding both the interconnectedness of Web 2.0 and the resultant online social networking phenomena.  The various technologies always were related, but this was not apparent as they (e-mail, web pages, newsgroups, chat, etc.) manifested independently.  The interconnectedness is now apparent.  It is part of the user experience, not just the underlying technology.

Users are now able to connect their web toys in uncountable ways.  From wired broadband to wi-fi hotspots to 3G iPhones, BlackBerries, and other smartphones, to the variety of social networking platforms (Facebook, MySpace, Twitter, LinkedIn), cloud computing web-based applications (a Google app world?), and user-generated content (YouTube, etc.), connectivity is the emergent über-paradigm.  Connectivity is the defining factor of this post-industrial information age.

I’ll climb down from the soapbox now, put down the megaphone, doff my cyber-evangelist’s cloak…

What does this mean to business, and to the law that affects business?

Continue reading →

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What would you call open-source marketing?

Posted on December 26, 2008 by Jeremy Costin

President-Elect Barack Obama raised $264.5M through April 30, 2008, thrice that raised by his opponent, Senator John McCain. Studies at the FEC, The Campaign Finance Institute, The Center for Responsive Politics , George Washington University, indicate that a massive amount of this difference was through small contributions (many of which were repeat donations by the same donors) obtained through online resources. The marketing of the Obama-for-President brand embraced social networking; when Sen. McCain attempted to allow his supporters to use YouTube to swell his popularity, he was thwarted by the rigid intellectual property rules he helped establish.

Some time ago, I posted about Ford’s order to a black Mustang fan club to stop publishing a calendar of pictures of their cars. I wonder what an actuary would calculate as the net from loss of goodwill from such a suit as compared to the gains from attempting to extend their intellectual property.

(c) 2008 Jeremy Costin

As would not surprise anyone who has looked at the fabulous wooden instrument in the corner of my living room, I am a member of the Facebook group for fans of the Fender Telecaster electric guitar. One day, I might add a picture of my fifteen-year-old Tele to the group’s album.

In 1999, Star Wars fans like me were subjected to Jar Jar Binks, “Annie” Skywalker, naked C-3P0, and the rest of an unprecedentedly anticipated movie in which the menace seemed to be somewhat, well, phantom. Why was Star Wars, Episode I so eagerly anticipated? Did the fire come from the official trailers and marketing put out in various media by Lucasfilm? Or was it from a massive underground campaign of fanvideo, promulgated through such unofficial sites as theforce.net? George Lucas loosened his grip on the trade-marks and copyrights of his celluloid empire, rewarding his fans with the right to publish their labours of sycophantic love, and in turn reaping his own rewards at the box office when the good, but not great, “prequel” obliterated box office records in its opening weekend.

So what is this grassroots phenomenon? Continue reading →

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EU suggests reason and logic behind ACTA

Posted on December 16, 2008 by Jeremy Costin

I’ve just finished reading the ACTA Fact Sheet, updated November 2008.  Here is some preliminary information:

  1. ACTA is the Anti-Counterfeiting Trade Agreement.
  2. The subtitle “Fact Sheet” is footnoted, “This fact sheet purports to explain the objectives of the ACTA negotiations.  It does not in any way interpret or prejudge on the provisions of a future agreement.”
  3. This document was prepared by the EU’s European Commission on Trade.
  4. You can find the Fact Sheet here:  http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf

This is the same ACTA that, based on early leaks that were likely from American sources, had many of us burning our passports, locking our mp3 players in vaults, encrypting our laptops, and generally vowing never to cross the border again.  (Earlier post:  http://weblawg.costinmedia.com/wp/intellectual-property/riaa-and-mpaa-hijack-the-border/)

(c) 2008 Jeremy CostinMy source of early panic was an article in that cauldron of superlative journalism, the Vancouver Province, to which I’d been directed by a friend.  Reading it, sucked in by the force of its writing, which was thoroughly unmitigated by journalistic integrity or what we academics call “checking your facts and citing your sources,” I felt inclined to stay forever north of the 49th, my jaw dropped in disbelief that this is what border resources would be used for.

What’s the “this”?  Well, it seemed that an international coordinated effort to stop trafficking in counterfeit data and media at the border by peering into individual travellers’ mp3 players, laptops, USB keys, etc., on the hunt for that unauthorized copy of P. Diddy’s latest ditty, or Jim Carrey’s newest caper.

Being an international treaty, ACTA is exempt from Charter scrutiny or any of the other legislative checks we rely upon.

And, of course, there was also the fact that U.S. Border guards were already tackling what they saw – well beyond their dubious competency – as IP infractions.

So we had a reason to fear ACTA. Continue reading →

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New ways of looking at video game IP

Posted on December 9, 2008 by Jeremy Costin

I suggested the other day that we use video games as the industry in which to consider hybrid IP for software.

I suggested this because video game software, more than any other kind of software, still retains the elements that were patentable in their mechanical (i.e. non-virtual) predecessors.  Let’s look briefly at Monopoly, U.S. Patent # 2,026,082, filed in 1935.  The patent contains sketches of all of the components in the box (the board, cards, playing pieces, and dice), and the following opening paragraph:

“This invention relates to board game apparatus and is intended primarily to provide a game of barter, thus involving trading and bargaining.”

Hybrid IP for Video Games

Thus we all three patentability requirements met.  Monopoly is novel (although this was contended, as it had a predecessor), non-obvious (it is in fact an invention), and useful (it “provide[s] a game of barter”).  The patent on the whole, 14 pages long, includes those sketches, as well as the rules of the game, and a list of 9 ways in which Charles Darrow restates his claim over the invention.

Here’s what I got, reading over the patent and thinking about games as closed systems versus (other) forms of software expression:

Games are closed systems.  There is a wholeness to the game that maintains, strongly, its connection to its pre-software past.  This is why the video game industry is an ideal arena to test the hybrid model.

All of the elements of the earlier game survive the transition to digitization.  Although the dice, cards, board, etc., are all virtualized, they all still exist. Continue reading →

Posted in Information Technology, Intellectual Property, Video Games, Virtual Worlds | Tagged , , , , , , | 1 Comment

Software IP and Games – which model applies?

Posted on December 5, 2008 by Jeremy Costin

At the moment, video games, because they are software, are covered by copyright.  But traditionally, games were covered by patent.

Hmm.  I’ve argued before that software should be sui generis, governed by a hybrid model of patent and copyright:

The Source Door: When and How Far should it be opened?
Reforming the Intellectual Property Regime for Computer Software through a Hybrid Protection Model.

Perhaps video games should provide the legal arena for this battle.  How does one then fit user-created collaborative content into such a model?

I smell a thesis coming.

Posted in Information Technology, Intellectual Property, Video Games | Tagged , , , , , , | 2 Comments

Remembrance Day – Poems by Wilfred Owen

Posted on November 11, 2008 by Jeremy Costin

I wrote a paper on these two poems a number of years ago.  I found them much more powerful than In Flanders Fields. Wilfred Owen was a British soldier who died a week before the Armistice that ended World War I.  I’ll let them speak for themselves: Continue reading →

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