Copyright Legal, Laws, and Regs

Creative inevitability

It was a sense of inevitability that I read about the lawsuit against Creative Commons and Virgin Mobile, Australia. The suit came about because of the recent Virgin Mobile use of photos licensed for commercial use via a CC license.

Not surprising to read Lawrence Lessig’s optimistic look at the issue, though his segue going from a thoughtful look at where things went wrong to “everything worked as planned” is a rather interesting read:

this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

I began to write on my concerns about Creative Commons, as soon as they were released. Years ago, in response to a comment by Sam Ruby, I wrote about the potential problems for confusion associated with the CC licenses:

Sam, in the legal world there is no ‘seed’ planting. There is clarification or confusion.

Not all forward motion is positive. I’d rather see people hesitate on using the CCL, and the CC open a dialog with the community (through a weblog with comments or a discussion group or like), then to continue using the CCL, perhaps incorrectly, all based on wonderful sounding words and a cute movie.

I appreciate the nobility of the Creative Commons intent and effort. But I’d appreciate it more if they combined that with an interactive element that allows us all to understand better what it all means.

I guess we have a better idea of what it all means now. But I wrote that over five years ago.

In response to this issue, Suw Charman wrote:

I like to think that the world is based on goodwill. People are, generally speaking, nice and, by default, they will respect and help others. Certainly humans are fundamentally and inescapably social creatures that need each other on a minute-by-minute and day-to-day basis, and I think that being nice is one of the attributes that which fuels the reciprocation that makes helping someone else ultimately worth it for us ourselves.

I also think that the social web is an expression of the niceness that lubricates society. All the mores that have built up around blogging and wikis and sharing and Creative Commons are based on being nice: if you quote someone’s blog, it’s being nice to credit them; Wikipedia encourages everyone to be nice to newbies; sharing anything with strangers is an act of niceness in itself; and Creative Commons licences are predicated on the idea that people will be nice and respect them.

Whilst niceness isn’t universal – there are people who aren’t nice – it is a desirable attribute, so much so that niceness is taught and enforced from birth. I doubt there’s anyone reading this who wasn’t told as a child to “be nice” or to “play nicely”. Nice is good. We need nice.

This might explain why I get so cross when I come across examples of people, or especially businesses, not playing nice. But thanks to the internet, we now get to call out companies who, whilst sticking to the letter of the law (or Creative Commons licence), are flagrantly abusing its spirit.

The online world–Suw’s ‘social web’–is no different than the offline world: there are people who give all, and people who take all, and the rest of us in the middle just trying to get by. The online world–with its Creative Commons, Wikipedia, Citizen Journalism, Social Network/Web/Graph goodness–is no more ‘nice’ than the towns, cities, or hamlets we live in; it’s just newer is all and we don’t have to worry about landfill. Continuing to set any of this up on a pedestal only serves to generate a false sense of trust and security that inevitably leads to disillusionment.

In the post associated with the comment I quoted earlier, I wrote (with some modifications to grammar):

Pessimists see the world from its dark side—always the glass half empty. They never see that the world can be made better, or that problems can be solved. They’re not constructive, but they aren’t destructive, either.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They are pleasant, but they can also be destructive.

The idealist is destructive where the pessimist isn’t by introducing change without concern for the consequences. They say, “Look at this wonderful thing I have given you!”, but don’t provide the user manual. After you’ve managed to blow up a city block, when you look for the idealist they’ve moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn’t you’d want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist, the Creative Commons have dropped this little bomb in our lap and then left it up to us to determine how to use these things, and what they really mean.

Jonathon Delacour, who has been called, usually with respect and affection, many things but I don’t think ‘nice’ was one of them, shared some of my misgivings about the CC licenses. He wrote:

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?

It is this determination to manufacture an online Utopia, to hold fast to the rose-tinted vision that Jonathon described, of the Creative Commons–promoted by shrewd, sharp people who should have known better–that spurred me to write my criticisms years ago, and to continue to write on topic in the times since.

The Creative Commons web site has never, to my knowledge, responded to challenges, or discussion regarding the issues surrouding the licenses. When I derived a test of CC licenses, or when Creative Commons figured in a Dutch law suit, or Virgin Mobile grabbed several CC licensed photos from Flickr for its campaign, the Creative Commons community seemed to focus more on eliminating anything other than the type of license that caused the initial problems, rather than respond to the issues, or reflect on perhaps providing stronger warnings.

Ultimately, who really does benefit from the Creative Commons? Andrew Orlowski, who has never been referred to as ‘nice’ either, as far as I know of, wrote one of the most eye opening summations of the Creative Commons I’ve read:

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing “frictions” such as compensation or consent.

Some would say it is not the CC organization’s responsibility to answer the critics, to meet the challenges–that the organization doesn’t have an obligation to warn as much as it promotes. I say to stubbornly persist in wearing those rose-tinted glasses, to mark only the sunny hours, as the sun dial would say, is the ultimate irresponsibility. The Virgin Mobile lawsuit was inevitable, and it didn’t have to be.

It would seem that the online site Babble has been taking photos from Flickr, assuming they’re CC licensed, even when the photos they take are copyrighted by their owners.

No, I don’t blame CC. However, there is a growing assumption that photos at Flickr are CC licensed, and this is causing additional confusion. In addition, a CC licensed photo, even one designated as non-commercial, can be used in a magazine or newspaper, because that’s not necessarily considered ‘commercial’ use of the photo.

Just one of the many uncertainties and confusions around CC licenses, copyright, and fair use. That’s the main reason we shouldn’t be making it easier for people to license their work with CC.

Legal, Laws, and Regs

More on the Arbitration Fairness Act of 2007

The Consumerist has more on the Arbitration Fairness Act of 2007.

People Over Profits has an email campaign but it also helps to contact your Congressional rep directly. A letter of phone call also works wonders.

How important is this bill? There is no bill pending in Congress that scares Corporate America more than this one. There is no bill pending in Congress that could more help the American people than this one.

Due to rulings in the Supreme Court, mandatory arbitration agreements now trump the Equal Employment Opportunity Commission when it comes to employment discrimination lawsuits. This means that an arbitrator can make decisions based on civil rights, can do so without following the law, can do so without following the arbitration rules themselves, and can do so without any transparency into the decision process.

…after Sherri Warner lost her discrimination and wrongful firing suit in mandatory arbitration, a San Francisco arbitrator not only charged her nearly $16,000 for his time, he ordered her to pay her opponent’s legal fees of more than $207,000.

The fee award would probably not have been allowed in court, and it forced Warner into bankruptcy. But after her lawyer, Stephen Gorski, asked the arbitrator to explain his decision, the arbitrator refused when reminded no rules required him to do so.

Arbitrators rarely issue written opinions, making requests for review virtually impossible.

What’s scarier is that this case was ten years ago, and since then, the Supreme Court has given even more power to arbitration, including giving it power over ruling on employment discrimination that now supersedes that of the EEOC. The Supremes have even given it power over the law, itself. In recent case, one of my favorites, Buckeye Check Cashing vs. Cardenga, a man sued a check cashing company claiming that the conditions of the loan were illegal. The company, which had a mandatory arbitration clause, demanded that the claim be taken to arbitration. The state of Florida disagreed, saying that an arbitration clause that was in a contract deemed to be illegal is not enforceable.

However, our Scalia controlled Supreme Court doesn’t allow a little thing like an illegal contract deter it. It decided that it wasn’t up to the courts to determine the validity of an arbitration clause just because it happened to be in an illegal contract — the only item the courts could determine is whether the arbitration clause is, in and of itself, legal. The rest of the contract was then up to the arbitrator.


Under the Federal Arbitration Act, may a party avoid arbitration by arguing that the contract in which the arbitration clause is contained is illegal?


No. The 7-1 majority (Justice Samuel Alito not participating) ruled that challenges to the legality of a contract as a whole must be argued before the arbitrator rather than a court. The opinion by Justice Antonin Scalia explained that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” The Court held that the Florida Supreme Court had been wrong to rely on a distinction between void and merely voidable contracts, because the word “contract” in the Federal Arbitration Act includes contracts later found to be void. Justice Clarence Thomas dissented due to his long-held view that the FAA does not apply in state courts.

This is a frustrating topic for me, because I’ve watched over the years now as arbitration has eroded all of our judicial rights, as granted by the Seventh Amendment to the Constitution. It’s frustrating because I can’t seem to convey, in this weblog, how serious this can get.

A legal expert in Texas once said that he felt in ten years, there would no longer be a civil court system because of how much it is being eroded by an act that was basically put into law in 1925, as a way for businesses to come to ‘gentlemanly agreements’ in regards to a dispute. It was never intended to be used by corporations against the common citizen.

This is also a case of the breakdown of the system of checks and balances built into our government. The Supreme Court has empowered arbitration and supported mandatory arbitration to the point that it now is undermining the very nature of civil rights in our country, and was allowed to do so, unchecked, in the Republican controlled Congress.

Now we have a Democratic controlled congress. More than that, we have a congress where even many Republicans are beginning to look askance at the miscarriage of justice that occurs under the auspices of ‘arbitration’.

American Corporations do not want this Bill. American Corporations, who have delivered shoddy equipment, surly service, and bad faith consumerism.

Who supports this bill?

The Feingold-Johnson bill is supported by a host of consumer advocate organizations including Consumers Union, Public Citizen, American Association for Justice, Center for Responsible Lending, Consumer Federation of America, Homeowners Against Deficient Dwellings, Home Owners for Better Building, National Association of Consumer Advocates, National Consumer Law Center (on behalf of its low income clients), National Consumer Coalition for Nursing Home Reform, the National Employment Lawyers Association and Public Justice.

The list is only growing, as word of this Bill slowly trickles out.

Support the Arbitration Fairness Act of 2007. Please.

Legal, Laws, and Regs

Breaking the mandatory arbitration back

People over Profits has a campaign under way to encourage Congress to support this bill. It’s important to let your Congressional representative know you support the Arbitration Act of 2007.

Ars Technica and Tortdeform both write on the recent, and important, decision of Douglas v. Talk Ameria in the Ninth Circuit Court of Appeals. In the decision, the court ruled that companies may not change terms of service arbitrarily, forcing people into having to check for such changes in online agreements; then denied the motion to compel arbitration–one of the changes actually added to the terms of service that initiated the class action lawsuit.

This is important because it challenges the concept that a person has to be forced into visiting terms of service on some periodic basis in order to ascertain changes–a onerous task, indeed.

This is also an interesting case as regards mandatory arbitration clauses. I’ve written on this issue before, and the fact that online services are now slipping in mandatory arbitration clauses–joining the banks, plumbers, credit card companies, house builders, computer manufacturers (Dell being one of the most prominant), realtors, your employer, car dealers, hospitals and others who slip such clauses in, usually in small print, and buried among dozens of other changes, worded in confusing legalese–should help drive out that this isn’t ‘just’ a problem with deadbeats looking to skip out on debt or fakes wanting to sue the poor drug companies, as the pro-mandatory arbitration supporters insist.

I bet I can safely say right now, you’re covered under a mandatory arbitration clause right now that abrogates your class action and other civil and legal rights, and you don’t even know it.

What perfect timing, then, to segue into drawing your attention to the Feingold-Johnson billThe Fair Arbitration Act of 2007, just introduced into Congress last week that would block mandatory arbitration clauses.

The issue has never been about whether arbitration is or is not a good thing. Arbitration entered into willingly by two equal parties, both of whom can argue the case without paying thousands in exorbitant fees in front of competent and truly unbiased arbitrator, is a good thing. Arbitration purely for profit, as a way of skirting the laws of the land and a form of bastardized tort reform, is not.

What the Feingold-Johnson bill is about is that people should be given a choice. This wholesale movement of companies forcing mandatory arbitration clauses, using for profit arbitration companies where cases are processed in assembly like fashion–six to an hour being typical–for fees far in excess of what courts charge, and typically favoring corporations over the individual (and disregarding many laws of the land, including the civil rights) is not a good choice.

I’d suggest contacting your congressional representatives and tell them you support this bill. After all, if arbitration is the good thing these companies say it is, then why do they need to add these mandatory arbitration clauses in the first place?

From American Homeowners Resource Center

In 1995, Justice Sandra Day O’Connor wrote: “over the past decade, the [Supreme] Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” Justice O’Connor was absolutely right.

Starting in the mid-1980s, the Supreme Court dusted off the Federal Arbitration Act (“FAA”) – an obscure procedural statute that had been the subject of only half a dozen or so Supreme Court decisions in 60 years – and transformed it into something bearing little relation to the law considered and enacted by Congress in 1925. Concerned with the workload of the federal courts, the Supreme Court discovered that the FAA could be used as an extensive docket-clearing device to move large numbers of cases out of the court system and into a system of private dispute resolution. The cases cleared out of the court system under the judicially re-tooled FAA have been disproportionately the claims of consumers, employees and small-business owners.

The real winners under the modern system of FAA arbitration are large companies who decide to write arbitration clauses into their “take-it-or-leave-it” contracts. Also benefitting from the modern FAA are the arbitration-providers and individual arbitrators who find a huge increase in demand for their services. What is, for the courts, a system of “do-it-yourself court reform” has increasingly become a system of “do-it-yourself tort reform” for regulated business entities seeking to avoid liability for wrongs done to consumers, employees and small-business franchise owners.

Excerpt from the testimony of David S. Schwartz, Associate Professor of Law at the University of Wisconsin Law School, before a congressional hearing on mandatory arbitration clauses held in June. The article also includes a link to the PDF for the complete testimony. The link in this paragraph is to the recordings from the event, including others testimony.

Legal, Laws, and Regs

Speaking of which

I had written about the proposed projects for the five million in fines FERC fined Ameren. I may be interested in what’s happening in the aftermath of the Taum Sauk dam break, but one thing I’m not is a ‘local’, with a local’s intimate knowledge of the politics and the organizations. Black River News points today to a letter that a local, James Hawley, sent as response to the recommended proposals, and it is a direct look at how political many of the recommendations are.

(The FERC correspondence system is based on scanned correspondence and uses Java to display such, so the system isn’t particularly friendly. Access the letter through FERC, clicking on the link labeled Project Correspondence in the right side of the page–Hawley’s letter is the first in the list. If you have pop-up blockers, you’ll have to allow the site to open new windows to use the FERC document viewer.)

Among some of the criticisms of approved projects:

3) Case end loader, boom axe mower and two dump trucks–First, has any qualified company or person outside of the area looked at the existing trucks and equipment Reynolds County owns? Second, a boom axe mower is not environmentally friendly. It rips, mutilates and kills trees and vegetation. The Reynolds County Commissioners requested $259,500.00 for these trucks and equipment. I as others can’t get our roads maintained. Why would we want this equipment when only the selected get their county roads maintained? This again is for political gain and definitely should not be approved.

14) Building construction, dog purchase, and operational expenses for establishing a training facility for search-and-rescue dogs–This is the wording from AmerenUE’s web site, which exposes the deceptive motives from this panel. This wording doesn’t reveal that this is for hiring a K-9 handler and training center for drug and bomb sniffing dogs. Again, this money should not go for salaries and we don’t need bomb sniffing dogs.

22)Marketing and advertising campaign for the Iron County Hospital–This is a local hospital and everyone in the community knows where it is. People will not drive from Farmington, Potosi or anywhere else when their cities already have hospitals. The local paper says it’s for doctor recruitment. Which is it? Marketing and advertisement or doctor’s recruitment. Either way $70,000.00 is a lot of money for either purpose. Did they detail where this money is to be spent? This would be a total waste of money.

24) Purchase of a CT Scanner for the Advanced Healthcare Medical Center — This Center has had major financial problems in the past. This is supported by the Panels stipulation of “If the center goes out of business clause”. It states that the equipment must stay in Reynolds County if the Center goes out of business. The hospital in Iron County went out of business and it was years before another one was built. What is Reynolds County going to do if the Center goes under? Where will this scanner be stored and for how long?

The letter brings up more than enough to force FERC to get involved with this process. It seems to me that Ameren has used this to ‘buy’ the goodwill of the power elite in the community, which is not compatible with FERC’s admittedly vague and somewhat indifferent guidelines.

What I thought was even more interesting was a comment Hawley’s comments about a couple of the board members and their view of the Johnson’s Shut-Ins. He wrote:

One voting panel member, Jim Chadbourne, and the county commissioner, Wayne Henson, who had an influence with some of the projects, do not even understand the economic value of the Johnson Shut-Ins State Park. They have both stated that the park doesn’t bring any revenue to Reynolds or Iron County. With this bias, it’s obvious that they would summit projects away from “at or near the affected area”. We own a family campground and lodge next to the State Park and 85% of our business comes from the overflow of the Park.

Before the dam broke and one time when I was out at the park during the winter, among the visitors were a young couple from Japan, and a family from Germany. This during the down time, in a cold January where ice formed along the Shut-Ins. This region has such potential for tourism. Managed carefully and promoted wisely, it could be a strongly sustaining source of income for residents, as well as taxes for the community. It could be a place for families in the summer, and a business retreat or educational opportunity in the winter. With the unfortunate Taum Sauk dam break, there is even more potential for bringing visitors into the community–though such effort does require some imagination on the part of community leaders.

I’m astonished how little some of the people in the area seem to value what they have. To them, the Taum Sauk dam break seems less a tragedy, and more an unexpected windfall, which is an atrocious way to treat this event. Add this to the silence regarding the ongoing effort with the cleanup and I can’t see how the people of Missouri are being well served b this panel, or Ameren’s, efforts.

Just Shelley Legal, Laws, and Regs

Hanging up the keys

Recovered from the Wayback Machine.

A few weeks back, an 84 year old woman drove her car through a grade school lunchroom, killing an 8 year old. They haven’t come out with the specifics of what happened, but it was broad daylight, good weather, and the school was a distance off the road.

This led to more discussion about when people should hang up their keys. After this weekend, I’m even more acutely aware of this as an issue.

Yesterday, driving through a parking lot, a women coming in from a side road just pulled out in front of me, without looking, forcing me to slam on my brakes. I was lucky, and I didn’t hit her. Today another young woman wasn’t as lucky.

I had to go to the Radio Shack, at the mall near my house. The mall’s parking lot is typical for the area: a line of shops with a road in front and parking on the other side of the road. The only cross walks were in front of the all-you-can eat buffet and the department store.

I was standing by the side of the road, waiting for a break in the traffic to cross, when one person stopped for me to my left, and a woman to my right slowed down to stop. She stopped right in front of a lane leading into the road, in the lane closest to the shops. As I started across, I noticed another woman pulling out in the lane, right at the woman who was stopped. I yelled and waved my arms; the lady who was stopped was pretty limited on what she could do with a pedestrian, me, in the road and a car behind her.

We both watched as this woman just drove into the side of her car. Bright sunshine, 100% visibility, the bloody car is right in front of her. She wasn’t looking to the front, though. Nor did she look to the left, either. She was looking to the right, and didn’t once look anywhere else. In fact, if the car to the left hadn’t stopped for me, it probably would have hit her, or she would have hit it.

I checked to make sure the woman who was hit was OK, and she was fine, suffering only a combination of being rattled and astonished. I then went over to the older woman to see if she was fine, and she said, “Oh, I’ll pay for the damage. Just have her contact me,” and then started to pull away.

I put my hand on her car, and told her, “Ma’am, you can’t go. You have to exchange insurance cards.” As she was blocking the lane, I mentioned she needed to pull over out of the way. Again, she started pulling forward without even looking, this time right at an SUV. I stopped her, and signaled the other horrified driver to go. Didn’t have to signal that driver more than once–she was out of there.

I got the older woman parked finally, and she got out. Sweetest thing you’ve ever seen. The younger woman was, also — more concerned that the other wasn’t hurt. Though this was a parking lot accident, she called the police and though they can’t cite anyone in a parking lot accident, I think she wanted the police to check out the older woman.

Bluntly, this woman did not belong behind the wheels of a car. She was easily confused, extremely malleable, and did not once properly check before making any moves. Not even completely aware of what she needed to do after an accident.

Hanging up the keys. For many, it means losing independence. For this older woman, it probably means not meeting her friends at that all-you-can-eat buffet, a favorite place for the seniors. For others, it means not taking off for the trails, not shopping, having to depend on others, trying to depend on public transportation, which is still quite poor in most communities.

I only just started driving in my 40’s, and I love to drive. I shudder at the thought of the time when I’ll have to give up my wheels. I hope I make that decision before it’s too late.

My Dad gave up driving at about 75, because he had arthritis in his back and neck, and it was too hard for him to look around for cars when he wanted to change lanes. It was tough for him to quite, because he was then dependent on family or whatever public transportation existed. Luckily, in Seattle, and then later in Bloomington, he did have access to public transportation.

One of the reasons he made this decision is because, long ago when he was a Washington state Patrolman, he was racing about 70 MPH to an accident scene, lights and sirens on, when a elderly man pulled right out in front of him. The man and his wife were killed, and Dad was in the hospital for three months.

Statistically, the most dangerous drivers are under 24, but the people who get involved in more accidents in ratio to how much they drive, are over 70. The AARP recognizes this and provides special driving classes for folks over 65.

In our state, once you hit 70, you have to get your license renewed every three years, rather than six. In Illinois, there are more restrictions, including driving tests every two years after you hit 80.

When is the time to quit? There are people capable of driving into their 90’s, but others suffering vision or other problems who should quit in their 50’s, or sooner. We’d like to leave this up to the individual, but as this woman today demonstrated, as the woman who killed the child, or the man who drove out in front of my father, people don’t always make the right decisions.

The day when I have to hang up my keys is far off, I hope. May I have enough wisdom to know when it’s time. I can’t help thinking, though, that the day I can’t drive anymore will be the beginning of the end for me.