movefast-breaklaw

Blog Assignment – Legal Challenges of Information Technology (UofE)

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Now that every technology company in America seems to be selling cloud computing, we decided to find out where it all began.

Week 10: Somewhere up in the clouds

‘Who Coined 'Cloud Computing'?’ – Antonio Regalado, MIT Technology Review

Even though much of modern technology is dependent on it, to many people the Cloud is an elusive concept. This article provides an interesting overview of the history of the term ‘Cloud Computing’ and the early history of its development. It reminds us that often, when non-experts are talking about the Cloud, it is a useful metaphor to explain something that is little understood.

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Week 9: Babies can be smarter than you think

Where there are consumer products, there is data to be collected. It seems that no object can escape the destiny of becoming “smart”ified and connected to the Internet. It began with smart phones and has since moved on to smart TVs, smart watches and smart meters. No item is too mundane to be upgraded in this way – we have now entered the era of the smart nappy. The smart nappy is part of a recent proliferation of Internet of Things (IoT) devices, where everyday objects are connected to the Internet and can collect data. Pampers has developed a “smart” nappy system known as Lumi, which uses an activity sensor attached to nappies that detect when they are wet and track babies’ sleep (Pampers). The system can also follow babies’ routines, development and “nudge” parents to “to better take care of their children” (Financial Times).

Who benefits from this datafication of human activity? It is probably not the child who grows up and, in later life, has the ability to make a data subject access request to review their nappy data. It is questionable whether anxious parents gain by buying into yet another baby product with dubious benefit, given that all the smart nappy does is amount to a “truly brilliant update to the obsolete technology known as “your nose”” (The Guardian). Kathy Hirsh-Pasek, president of the International Society for Infant Studies, has suggested that the smart nappy could make babies less self-reliant as they do not need to learn how to communicate when their nappy is full (CNN). Additionally, there is even a change.org petition suggesting the nappies are not safe and potentially carcinogenic (Change.org).

It is not particularly surprising that the product was developed by Pampers in partnership with Verily – a sister company to Google. For Google’s parent, Alphabet, smart nappies can facilitate a truly cradle to grave relationship with consumers. Although it seems that only parents will be able to access the data, aggregate data will be used to “improve the product”. The exact purposes of collection and who will be able to access it are not yet clear, though Google does not have an excellent reputation for being transparent about its data collection practices. Until a leak exposed it, they did not disclose that human reviewers had been listening to conversations recorded by its Google smart speakers (The Guardian).

A further concern is that IoT devices have a relatively weak security profile and are more vulnerable to hacking (Walport). Perhaps the nappy data could be considered innocuous. However, parents do not normally advertise this information to friends and neighbours – so why should they feel comfortable with the risk of hackers accessing it? Additionally, the account information connected to the smart nappy is also expected to include the baby’s name, sex and date of birth, which is data that presumably parents do care about and do not want hackers to access.

Ultimately, these concerns do not seem to have deterred anxious parents – there is a waiting list to purchase Lumi.

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How much does Google know about you? – podcast

Alex Hern on how Google’s use of personal data has potentially helped create a new age of mass surveillance. Plus Lois Beckett on the US mass shootings

Week 8: “Can I stalk you? I promise more personalised services, so it’s worth it!”

The Guardian’s Today in Focus Podcast, ‘How Much Does Google Know About You?’

Some key points from the podcast, which I felt were relevant to this week’s class:

– Google collects vast sums of data, far beyond what we are consciously aware of.

– It is damaging to normalise this level of online behavioural tracking.

– The online behavioural tracking for advertising, for many people, is relatively innocuous. However, although Google are not using this mass surveillance for underhand purposes now, the volume of data gives them a huge amount of power and potential for control. In 2029 or 2099, that data might end up in the hands of people with dangerous motives. This is a serious concern.

– Despite this, people are willing to offer their data to Google because its services work very well. 

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Article 15 of the ECommerce Directive lays down the basic principle that EU Member States cannot impose a general obligation on internet...

Week 7: Filter me softly – internet intermediaries and content liability

At a time when regulators and the general public are calling for more active involvement of internet intermediaries in monitoring content, Cyberleagle (“Time to speak up for Article 15″ Graham Smith) outlines some of the perils that could accompany changes to Article 15 of the E-Commerce Directive.

The Simpsons meme reminds us that overenthusiastic private enforcement mechanisms, such as YouTube’s Content ID, can be heavily restrictive and extend the rights of copyright-holders beyond the scope of what is provided by the law.

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How the music industry came back to life

Labels got by with a little help from Spotify and streaming

Week 6: The apps are alive with the sound of music

“How the music industry came back to life” – John Gapper, Financial Times

The music industry was hit hard by filesharing and piracy from 1999 onwards. I chose this article because it shows that the law and IP rights were not necessarily helpful at protecting industry revenues. Instead, legal streaming services such as Spotify have provided a new means for consumers to access music and, increasingly, they are choosing to pay for this rather than resorting to piracy.

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Week 5: Be you never so high, the law is above your meme

President Donald Trump’s Twitter feed hit the news again this month. This time, it was not for a controversial comment but for a copyright violation. He had shared a meme using a video clip taken from Nickelback (a rock band), having edited it to include a photograph of Democratic presidential candidate Joe Biden (The Guardian). Fewer than twelve hours after the tweet was posted online, the video was made inaccessible and has been replaced with a message that states “[t]his video has been removed in response to a report from the copyright holder” (Twitter).

The sentiments of Mr Trump’s tweet aside, this story does highlight the legal fragility of memes. This is particularly true in the EU where, following the introduction of Article 17 of the Directive on Copyright in the Digital Single Market, memes occupy a more precarious position compared to the US. 

Article 17 provides that online content-sharing services (such as YouTube and Facebook) must obtain authorisation from copyright owners when they give the public access to copyright-protected works or other protected subject matter uploaded by their users. Failure to do so will result in liability, unless the online content-sharing service can show that they did their best: to obtain authorisation; to ensure the unavailability of copyrighted works and to act quickly upon receiving notifications of copyright violations from rightholders.

The problem for internet memes, such as the one used by Mr Trump, is that they often use copyrighted materials (such as photographic works) as their basis and then adapt them to share a particular (often humorous) message. Article 17 does explicitly exclude content that contains “quotation, criticism, review” and “caricature, parody or pastiche” from its scope, which would appear to protect memes.

However, online service providers use automated mechanisms to detect copyrighted works and overenthusiastic filters tend to be biased towards copyright owners and operate on a “guilty until proven innocent basis”. This means that when a copyright owner reports an infringement, the content is removed before the content creator has the chance to object. Even a video of a Harvard professor giving a lecture on copyright was removed by YouTube’s Content ID system for containing clips of Jimi Hendrix’s music (Harvard Law Today, Music:)Ally). 

The result is a private enforcement mechanism that exceeds the copyright protections provided by law, with material that does not actually amount to copyright infringement being taken down. The delicate balance between copyright owners and the public, which incentivises the production of creative works whilst providing limitations on owners’ rights, is tilted towards rightholders – to the detriment of creativity on the internet. I do not care for Donald Trump’s politics, but I also do not think that platforms should cede to copyright owners’ assertions to provide them with more rights than those afforded by law.

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Week 4: Butchering Songs and Fair Use

Which online activities constitute “copying”? Some law students created their own version of Carpool Karaoke to demonstrate the mechanics of fair use in the United States.

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Week 3: Ownership in an e-World

In April of this year, Microsoft announced that its ebook store was going to close (Financial Times). The consequences of this were very different to the closure of a retail bookshop: Microsoft recalled all of the ebooks sold through the store and customers are no longer able to access their purchases. This story highlights some of the difficulties of “online/offline equivalence” that has been applied in the legal context.

The Court of Justice of the European Union (CJEU) applied the logic of “online/offline equivalence” in UsedSoft GmbH v Oracle International Corp ([2012] Case C-128/11), which concerned the copyright principle of exhaustion. Exhaustion means that an author’s distribution right is exhausted by the first sale of a copy of their work and the author is not able to control further sale of that copy. 

The CJEU held that the “principle of equal treatment” means that the copyright principle of exhaustion applies “regardless of whether the sale relates to a tangible or intangible copy” of a software program. The Court equated online and offline activities to apply the principle of exhaustion to software. 

However, as Nicholson points out, “problems can arise where an activity transported online might appear prima facie to be equivalent to its offline counterpart, but in practice technology has so fundamentally altered the activity that applying existing laws would be harmful” (Nicholson). The situation with Microsoft illustrates the confusion that can arise when offline concepts of ownership are directly lifted and applied in an online context.

Microsoft had allowed customers to “buy” or “rent” ebooks in their online store. The concept of renting an ebook is not too dissimilar to renting a normal physical object (customers purchase access to the item for a defined period of time). However, when a customer chose to “buy” an ebook from Microsoft, they were actually only purchasing access to the product, which Microsoft retained the right to withdraw. This differs from the purchase of a physical book, which customers own and control for as long as they wish. As the Financial Times put it, “[i]n the information age, consumers are often renters with limited control of digital products, even if these have apparently been “sold” to them” (Financial Times).

Accordingly, we must be careful about using offline concepts to describe online “ownership” because the reality of ownership in an e-World is different. The European Court of Justice overlooked this in Usedsoft by taking offline exhaustion and applying it to software. A second-hand market for software, however, can be distinguished from an offline second-hand market. Second-hand software is sold as perfectly as if it were bought brand new when it includes software updates. Why would someone pay more for buying software directly from the supplier, when an equally good version is available more cheaply “second-hand”? By contrast, second-hand physical objects experience wear and tear that is accounted for in the price. It is therefore misleading and confusing to strive for online/offline equivalence, without being cognisant of important differences between offline and online situations.