Avatar's Freedom of Speech? No way says US Federal Court...

It appears that Erik Estavillo, the unsuccessful plaintiff in Estavillo v Sony Computer Entertainment America, 2009 WL 3072887 (ND Cal Sept 22, 2009) has decided to appeal that decision.
Estavillo was banned from the Sony Playstation 3 Network due to violations of the Sony ToS regarding use of the Network, with respect to his use of the public forums (allegedly due to verbal comments made by him while playing 'Resistance'). Estavillo claimed that this ban violated his free speech rights under the First Amendment.
In the brief judgment (so brief it would make my students cheer with joy!) Judge Ronald Whyte stated:
'Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users...these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State.'
This characterisation may come as a disappointment to some who had been theorising that virtual worlds could be treated as a company town for First Amendment purposes, see, for example, Jack Balkin's 2004 article
Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds.
(see also his more recent article on The Future of Free Expression in a Digital Age for an updated approach to these issues.)
This is not the end of the story and the outcomes will be watched with interest.

new article on governance of virtual worlds

The new edition of Journal of Virtual Worlds has been released, and it deals with 'Technology, Economy and Standards'. My article
Piracy vs. Control: Models of Virtual World Governance
and Their Impact on Player and User Experience appears in the Journal along with many excellent articles and think pieces. It examines issues arising from various governance models of virtual worlds, with a specific examination of the fascinating world of EVE. I look forward to the continuing analaysis of this important area.

Sex Bed generates Class Action Claim

Eros LLC (the company owned and operated by Kevin Alderman/Stroker Serpentine in SL) and Shannon Grei have filed a class action complaint against Linden Lab with respect to a range of claims in trade mark and copyright. The Plaintiffs allege that Linden Lab has 'directly and secondarily violated the intellectual property rights of Plaintiffs and other Second Life Proprietors.' The essence of the claim is that Linden directly and secondarily infringes the trade marks of Eros, by using Eros's marks to sell infringing virtual goods in Second Life, and directly and secondarily violates the copyright of Grei by reproducing and displaying her copyright works within Second Life and by materially contributing to and supervising (sanctioning and benefitting from) the infringing conduct of others with Second Life.
The complaint emphasises the claim that Linden benefits from the infringing conduct by deriving revenue from the sale, use and display of infringing items.
The claim reflects the frustration of Kevin Alderman (or is it Stroker Serpentine?) that he has previously been compelled to take parties to court over infringements with respect to his SexGen bed and other intellectual property with little practical consequences. The claim alleges that there is much more that Linden could do to prevent the extensive trade in infringing items. Specifically, it claims that although infringement is prohibited by the Second Life Terms of Service and may be the subject of a claim under the Digital Millennium Copyright Act (DMCA) Linden does little to supervise or enforce any DMCA claims. Further, the DRM protection running in Second Life 'is easily circumvented and hopelessly ineffective'. Interestingly, the claim explains how those wishing to avoid DMCA liability can simply avoid compliance by creating a new account and loading the content under their new account name. Further, many content creators in SL are reluctant to bring a DMCA claim as it requires disclosure of their RL identity. The claim draws the analogy of a flea market where pirated goods are openly and cheaply available. The claim also forcefully makes the point that due to the small value of transactions in Second Life in terms of RL currency the cost of bringing individual legal actions is prohibitive, allowing infringement to continue unabated.
The claim makes interesting reading for those interested in the technical and legal operation of Second Life and provides an interesting argument regarding the limitations of the DMCA safe harbour scheme. It discusses the practical application of CopyBot and other copying programs.
See the coverage at Massively for more commentary.

Gov 2.0 Roadshow: visit to Adelaide

Last night I attended the Adelaide leg of the Government 2.0 Taskforce Roadshow, intended to provide the public with the opportunity to comment on the Issues Paper and the work of the Gov 2.0 Taskforce. It was chaired by Nicholas Gruen, and the other Taskforce members in attendance were Alan Noble and Glenn Archer. Nicholas began by outlining his vision for the work of the Taskforce including: changing the default position in government to access to data being open unless it is determined for good reason that it should be closed, rather than the current 'closed' default position, and the encouragement of digital engagement with government through Web 2.0 techniques and the the opportunities and challenges in doing this.
The process aims to produce a Report by mid-November but this is currently looking unlikely, due to workload and time taken with the process thus far. The Taskforce has until 31 December to report.
Much of the discussion revolved around issues related to authentication and identity, apparently not an issue raised at any of the other Roadshow meetings. There was some debate regarding what aspects of identity and authentication were in fact Web 2.0 issues.
I was most impressed by Nicholas' discussion of 'engineering for serendipity'. Acknowledging that perfect co-operation between all arms of government was unlikely (at least in our lifetime) it was important to facilitate and design mechanisms that would at least encourage and support those willing and able to engage with technology to increase the potential for such interaction.
Predictably there was also a little cheering for the wonders of Creative Commons and its promise of freeing up material for innovation. (Here insert a little bit of standard lawyer bashing to the amusement of the audience). Again the mantra is free the information and innovation will follow. There was no time to get into a debate about ownership, access and use, and the differences between the three. However, we will need to be careful that these are identified and separated in any work following on from the report of the Taskforce, when it is produced.
The conclusions of the meeting were that there is a clear need for cultural change, due to the resistence both institutional and personal by many to the adoption of new technologies. This is particularly true in the public sector.
Finally, asked what academic input would be sought be the Taskforce Nicholas somewhat disappointingly said that academics do not appear to be on top of the game in this area (perhaps due the institutional restraints referred to above? and the need to publish in arcane journals??) Rather 'quasi-academics' (his term not mine) like Clay Shirky were doing all of the interesting work. Perhaps the academics need a change of culture too?
So apart from feeling a litttle wounded on account of being both a lawyer and an academic, it was an interesting experience. We still have a lot of work to do, but it was good to see that the members of the Taskforce were well across the issues and quite passionate about their task.

Government 2.0 Taskforce Issues Paper

The Government 2.0 Taskforce, charged with the task of 'finding ways of accelerating the development of Government 2.0 to help government consult, and where possible actively collaborate with the community, to open up government and to maximise access to publicly funded information through the use of Web 2.0 techniques' is seeking your input. They are seeking comments and feedback on the Issues Paper, released on 23 July 2009.
Input must be received by the Taskforce by start of business Monday 24 August 2009.
Key issues are:

• access to and use of public sector information
• access and innovation
• online engagement

The taskforce will provide a final report on it activities and achievements by the end of 2009, so if you have a contribution to make to this consultation act quickly!

Australia's Digital Economy: Future Directions

On 14 July, the Minister for Broadband, Communications and the Digital Economy, Stephen Conroy, released the Australia's Digital Economy: Future Directions Final Report.
I will restrict my comments essentially to the copyright issues and implications raised by the Report. For those of you wondering what the 'digital economy' actually is, the Australian Government definition is:
'The global network of economic and social activities that are enabled by information and communications technologies, such as the internet, mobile and sensor networks.'
The Report is expressed to outline 'the areas of focus for government, industry and the community to maximise the benefits of the digital economy for all Australians.' The Report breaks up the elements of the successful digital economy among three stakeholders: government, industry and comunity, each with different outcomes.
For Government, the success factors include facilitating innovation, and reference is made to the outcomes of the Innovation Review : Powering Ideas, launched on 12 May 2009.
The Future Directions Report again emphasises the need to open up access to government information: 'In addition to promoting public sector innovation, government can also faciliatate private sector innovation for digital ecoomy benefit through more open information strategies and an innovation agenda designed to promote a strong culture of commercialising digital innovation.'
Whilst this is so broadly worded one can only guess what it may mean, it is intended to refer, at least in part, to access to knowledge platforms such as Creative Commons. The Report continues:
'A open access approach to the release of public sector information is a logical response to the digital economy and innovation benefits that can result from new and emerging digital use and re-use, subject to privacy, national security or confidentiality concerns. In this context "open access" means access on terms and in formats that clearly permit and enable such use and re-use by any member of the public. This allows anyone with an innovative idea to add value to existing public sector information for the common good, often in intially unforeseen or unanticipated ways.'
So if any of you have a fun idea for remixing a government report (for the common good) let me know! Although on a more serious note, this article by Paula Bray outlines an interesting project undertaken by the Powerhouse Museum using Flickr.
The Government 2.0 Taskforce has been instructed to advise and assist with respect to making public sector information more accessible and usable. (More about them in a later blog.)
The Report then picks up the question of copyright safe harbours, wondering aloud whether the present safe harbour scheme works effectively for some types of online service providers? The Report outlines the pros and cons and then states that the Government will be considering whether the scope of the safe harbour scheme should be expanded to include additional types of online service providers.
Finally, the Report states that the issue of peer-to-peer file sharing is currently being considered by Government, noting that the content industry has stated that file-sharing is 'a barrier to further investment in sustainable and innovative content initiatives in Australia ' (presumably this is only illegal file sharing). The possible solution noted by the Report is the 'three strikes' or 'graudated response' approach, pursuant to which ISPs would send notices to users suspected of unauthorised file sharing, outlining an escalating level of penalties on the user's account. So watch out for work on reform of this area soon. Only oblique reference is made to the current Internet filtering trials.

BTW on a related note, for some of my thoughts on the Innovation Review you can see my slides from the Australian Copyright Council conference in November 2008 here.
I will be presenting on the topic of copyright and innovation on 6 August here.

Young Australians' use of social networking: ACMA report

The Australian Communications and Media Authority has released a Report prepared for it on the use of online social media by young Australians. The report is in two parts:

• Qualitative Research Report
• Quantitative Research Report

Some interesting aspects of the Qualitative Report:

The definition of social networking service used by the Report:

'A social networking service (SNS) can be defined as an online social network for communities of people who share interests and activities, or who are interested in exploring the interests or activities of others. As a member of a social networking service, individuals can "chat" with each other via messaging, email, video or voice chat, share photos and videos and post comments in online forums, blogs or discussion groups. Profiles may contain personal information such as real life photos and descriptive comments about the member.'

However, the Report recognised that different names were used for different types of services and no common terminology could be clearly identified.

Importantly, the Report concludes that the Internet is a regular part of the lives of young Australians aged 8 to 17 years and is part of both the home and the school environment. The nature of Internet use and the types of online forums used by children and teenagers changes as children mature, reflecting their social development and their gender. Younger children use the Internet for entertainment preferring game websites, with teenagers reaching out beyond their face to face friendship group to explore new friendships. (For more detail on this see the Quantitative Report)

These differing uses give rise to a range of different risks, both perceived and actual. The Report considered three key areas of risk: content, contact and privacy, which were identified by the EU Kids Online Report. Of these three, it appears from the ACMA Report that the dangers associated with a failure to protect their own privacy poses the most immediate and general risks to users. The notion of protecting their privacy is inconsistent with the desire to use these sites to attract attention ie the 'signalling' or 'waving' behaviour identified by Judith Donath. Further, the Report notes that whilst users may have a 'high awareness of the obvious risks of online use' young people still engage in dangerous behaviour, as '[e]xploring the unknown and pushing the boundaries is a natural part of growing up.'

The Report confirms that a great deal of effort is devoted to the creation and maintenance of online profiles. 'User-generated social networking services' are recognised by the Report as playing a key role in 'teenagers' efforts to conform to group norms and culture, and develop and maintain social currency.'

Interestingly though, the Report notes that parents 'held the view that social networking services were often seen by their children as part of a "fantasy land" where children and young people were either unaware or could easily believe that their interactions did not have real world consequences.' Whilst it may be believable that many parents held this view, I think further in-depth analysis is necessary to confirm that the users themselves hold this view. I also suggest that there could be a big difference here amongst the age-groups and the various online forums they are accessing. The consequences of this belief (where it exists) merits further exploration.

The Report concludes that young Australians are reasonably adept at recognising and managing risk, through a combination of abiding by the advice given to them (predominantly by schools and to a lesser extent parents, whose main authority is derived from the ability to withdraw computer access), commonsense, learning from experience (after encountering a problem online directly or by learning of friends' bad experiences) and finally, resilience. The Report's reflection of the need for young people to encounter and to learn from online experiences is refreshing and grounded in an absence of the hysteria which has frequently attended discussion of these issues in the Australian media. There is also a disconnect over what parents may see as the key risks and those which are actually encountered by users eg online predators.

That said, there is still a need to inform and educate users about the risks they face and, in particular, to warn them about the digital footprint they are creating. Therefore the report makes some key recommendations about future projects to warn and educate users about risks they may face. It makes for interesting reading and a launching place for more work in this area.