Closing a social transaction. Musings on e-commerce and copyright.

A couple of days ago via Microsoft’s arbiter of all things cool,  Steve Clayton,  I saw this poster

Pinned Image

(If you like it, buy it too).

The poster has gone viral, no doubt bringing a wry but slightly painful smile to anyone filling in travel expenses or CRM system screens, or thinking about tidying the garage.

Within  a couple of  clicks I was able to contact  the artist, Brad Rose, and via the collective art website, Big Cartel, order and pay for the print.  It will be gracing my office wall  some unspecified time in the future when I get around to having it framed.  

 The Internet and social media allow me to discover what I think is cool art, interact with the artist and buy their stuff. The world of art and crafts is being fundamentally reshaped by the Internet and social media.  I can very easily find stuff I like,  appreciate who and how it is made, and perhaps buy their product.  It would have been easy to just print out the poster without buying it, but I quite like the idea of paying the creator for the the grin that this will bring to people’s face when they visit my office.  I don’t need the threat of copyright infringement to know this. Discover, engage, and own.

 In a rather weird circular way, I first got into buying poster art online with Hugh, of gapingvoid fame, a close friend of Steve. 

BTW Brad’s site is a fascinating tour of typography. One day I might actually try and learn something about typography. It will be an ideal weapon to use against wine bores at dinner parties.

 similar post on my Gartner blog.

 

 

Twittersquatting.

I’m not a lawyer. This is just my musing,  not any sort of formal legal advice.

I was reviewing answers to my Software and Law survey last night when I saw a tweet  where someone was wondering how to claim the company name back from a Twitter user. The user doesn’t work for the company and was apparently bad mouthing the company. This got me thinking about trademark dispute management in Twitter. or more correctly the lack thereof.

Several years ago I wrote an LLM paper on domain names. It was all about the dispute resolution issues to solve trademark disputes. I remember reading some excellent stuff from legal academics like Froomkin, Edwards, Mueller, and Geist. It was a hot issue at the time, and trademark and domain names are far more complex than first meets the eye. Lots of messy freedom of speech and constitutionality issues. Fun if you like that sort of thing (sadly, I do).

Well, what about cybersquatting in Twitter?  Trademark law applies in Twitterland, the same as it does everywhere else.

Take this case:

1. A person registers the name of a company as a Twitter handle.

2. A reasonable person reading the tweets would then likely assume those tweets came from the company.

3. Those tweets are damaging to the company in that they are misleading, or hostile to the company.

4. Company wants the handle back

5. What happens next?

With domain names, there is a procedure.  It has its flaws, but there is a procedure. 

ICANN has a dispute resolution policy (UDRP), and there is also specific anti-cybersquatting legislation  (ACPA) in the US, and there is case law and specific statute in other countries about domain name disputes. I won’t go into details on the UDRP or the Anti-cybersquatting legislation here, but there is lots of good  information on this issue. see Wikipedia for a start.

Is a Twitter handle a domain name?  If so then the UDRP and the ACPA would conceivably apply, but as Twitter actually own the 2nd level domain name, the Twitter bit in www.twitter.com/name ,  this could get very messy indeed.

Twitter has responsibilities to trademark holders. It has responsibilities to its users and it has responsibilities for privacy and security too. Cool technology is not above the law. This isn’t the first time that Twitter has had IP challenges.

The lawyers are stirring. As one recently stated.

Twitter has become a cesspool of trademark infringement and copyright infringement claims.  Essentially, people set up twitter accounts and add feeds from popular websites and blogs.  They brand the twitter account using the trademark protected logo of a third party and then see how much traffic they can drive.  If you or your company is experiencing brand-jacking on Twitter, contact one of our internet attorneys for more information about your rights and successful approaches to having the infringing content removed.  If you do not protect your trademark registrations and copyrights, who will?

This tone from the lawyer above is not particularly helpful, but the lawyers have a point.  IP infringement does take place in Twitter.  Trademark owners are required to defend their marks, otherwise they risk loosing them.

At the same time Twitter needs to be transparent, even-handed and fair in how it assesses violations. Trademarks often conflict, and simply kowtowing to a trademark holder’s demands  without proper due course isn’t fair to Twitter users either.

According to this post from Steve Poland they still have a lot to learn.  Steve had several Twitter names removed from his possession by Twitter.  He wasn’t happy about it.  Based on the facts in the post I think Twitter were probably right to do so, but the process was far from ideal.

So Twitter, I suggest you create a clear and simple dispute resolution policy for trademark issues, and make it part of your T&Cs. Here is my two cents’ worth.

1. Outline the procedure to challenge a twitter domain registration. Trademark holder to fill in a request form, outlining the grounds for the challenge.

2. Notify the domain name holder that their registration has been challenged, and on what grounds (bad faith, financial gain…)

3. Allow them 2 weeks or so to respond.

4. If the domain name holder wants to contest the challenge, then offer a simple mediation service, at a fixed and relatively small fee, paid for by the challenger.

5. Evidence from both sides to be presented in writing, via an online template,  to the mediator.

6. Mediator replies in writing via email within 10 days or so.

7. Judgement of the mediator is binding on the parties.

8. The fee goes to pay for the mediators, as per the ICANN model.

9. Mediators are required to have a good background in trademark law. Perhaps  this sort of service could be run by law schools with a Information Technology focus?

 

Sort this out please Twitter.

 

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Interior of Kopi,  punk squat and music venue; Kopenicker Strasse, Berlin Photo from the cc Flickr Paul Graham Raven.  Thankyou

George Clooney,David Beckham and the software demo

I’m in the middle of doing a Magic Quadrant at the moment.  It is a lot more work than I imagined, even if Jim is doing the lion’s share of it.  By the end of the process we will have had in depth presentations from nearly 30 vendors, and interviewed many of their customers. But this post isn’t about the details of employee performance management software.

Copyright is a big deal in the software industry. It is the basis on which  most software is sold or  licensed.  licence v sale is another can of worms, and not for a friday evening post.

Software IP is  considered to be a fascinating subject by a very small segment of the population, but it is the foundation upon which our industry is built.  Folks such as Geeklawyer make fortunes out figuring software IP law out.  Software companies around the world pounce aggressively on abuse of  copyright and other IP forms. This is their right, and they are pretty good at exercising it.

Celebrities also make use of copyright and other laws  to protect their image, and to earn their crust(s). When David Beckham advertises a razor, or a pair of sunglasses, the company using that image has coughed up big money for the pleasure thereof. Mr Beckham’s advisors think long and hard whether a particular product fits with his image. 

Nestle paid handsomely for Mr Clooney to sip Nespresso.  And there is a mass of law, and troops of lawyers to defend Mr Beckham’s and Mr Clooney’s  rights to their images. Joe citizen has certain rights, but celebrity image rights is big business. California, home to many celebrities and software companies has strong laws to provide additional rights to celebrities.

Celebrities, athletes, and artists have certain rights in regard to the commercial use of their image, voice, or persona. Under sections 3344 and 3344.1 of the California Civil Code, reproducing or using the image, voice, or persona of someone without their permission constitutes a violation of their privacy rights.

Privacy rights extend to the celebrity status of deceased persons as well. Permission for the reproduction of photographs, movie stills, or other depictions of a deceased celebrity requires permission from the person or corporation who owns the rights to them. thanks to Fergus law office for the info .

Under UK law, the law of passing off can sometimes be used to prevent a celebrity’s image being used overtly to promote a commercial product. Have a look here at this case. more details here.  For those interested in comparative rights to one’s own image, see this paper on SSRN.

Why is it then, that so many software demos include images and data of Mr Beckham, Brad Pitt,  Cameron Diaz, James Bond and Matt Damon?

I’m not a lawyer, but it seems to me that using their names and images without their permission infringes the self same copyright laws that enable software companies to charge money for software. Never mind the more complex and messy issue of privacy and reputation.  

When you demo enterprise software, don’t promote George Clooney to Deputy Vice President,  make jokes about David Beckham being on the bench because he is a bit slow or change Ms Zeta-Jones’ family dental benefit plans. Unless of course, you have permission from the said celeb.  I’ve not even started on the data protection law implications of processing their personal data…

I’m not a lawyer, so if you don’t believe me, have a chat with your in-house legal counsel. You might think it is cool to have a bunch of celebrities in your demo system, but I’m not sure that it is such a good idea. 

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Lords in the cloud, letting in the sunshine.

 

(photo from the flickrstream of Swamibu )

It is apparently Sunshine week in United States of America, so please excuse the metaphor collision.

Over in the UK it is goodness to see nine Lords experimenting with a blog.  It is called Lords of the blog. I quote.

Apparently we are going live today. So far, our blog confessions have had a very limited audience, but now anyone may see what we have been doing.

Not that I have anything to hide. Indeed, I suspect that most members of the Lords would be only too happy if the public could and did take more notice of what we do on their behalf. Some of us spent a lengthy afternoon last Thursday debating the best way to get more people – and especially young people – interested in the way Parliament deals with their concerns, hopes and fears.

It is easy to think of the House of Lords as characters in a PG Wodehouse novel, greeting each other with what ho! chum, eating boarding school nosh, and wondering where the empire went. But that would be wrong. I’ve been lucky enough to meet a lord or two, and even though they expressed a fondness for Yorkshire Pudding, they were right on the money as far as software and technology were concerned.  I blogged some time ago about the House of Lords and RFID and the science and technology select committee .

Though the link had come from the most reliable source on all matters UK law, Geeklawyer, I wondered for a moment if this was a put up job, but no, it seems to be the genuine article. The Hansard society is lending a hand.

It is also interesting to see rather than hosting it over on a server in under the woolsack, they are running it on wordpress.com. If it had been buried in the depths of a government website somewhere, who would read it?  up on WordPress seems somehow less contrived, and less likely that  a  Sir Humphrey  is moderating things in the background.

Having these Nine Lords blog is a fine thing. I look forward to them asking some probing questions about Phorm………

Carbolic Smokeballs and software salesmen.

I’m continuing the law related ramblings, but some of you will be pleased to know I’ll rest the privacy stuff for a while.

Vinnie Mirchandani is normally a vociferous supporter of all things free-market, and the arch enemy of compliance. His dislike of the  Sarbanes-Oxley Act is legendary.

I was  surprised to read his call for stronger software industry regulation. Please read his post in full, then pop back here.

I won’t go into a discussion here on whether all regulations he suggests make sense or not, I’d like to pick up on them another day.

In part, I agree with Vinnie.  It amazes me how little direct regulation our industry has. Toys, insurance, cars, hairdriers and maps  all need testing before you can buy them, but any old idiot can set up a software company and try and sell stuff.  There is stricter certification for wiring a plug or installing toilet roll holders for a living than there is for coding software.  One of my earliest posts looks at this.

As the digital world becomes more and more vital to our personalities, our jobs, friendships, thoughts, politics and  beliefs should the web and the vast databases of information about us be determined solely by short term shareholder value?  

As software does more and more important stuff on our behalf, it is likely that it will face greater regulation. This may be no bad thing, but let’s tread cautiously.  Regulations, like technology, often bump into the law of unintended consequences. This can be a good thing in software, as may lead to Accidental Awesomeness. In law though, it tends to hurt folks it was supposed to protect, or protect things that ought to be protected. 

I will take on one of Vinnie’s points though:

Require systems integrators to be truthful

This was amplified by Nitin’s comment about outlandish sales claims.

Another one comes to my mind as a honorable mention as well:
– Regulate the advertising or hold vendors accountable for what they claim regarding profitability and efficiency. Vendors claim the moon – I cannot see any other industry where there is so much FUD and bogus claim

Software salespeople don’t live in a vacuum, and there is very little new under the sun when it comes to contract law, advertising and sales promises. To assert that software salespeople and marketeers are somehow more devious than their peers  is a tad insulting to the ‘ingenuity’ and avariciousness  of the generations of sales people that have gone before them.

Let’s head back to Victorian England. .

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Contract – Offer by Advertisement – Performance of Condition in Advertisement – Notification of Acceptance of Offer – Wager – Insurance – 8 9 Vict. c. 109 – 14 Geo. 3, c. 48, s. 2.

The defendants, the proprietors of a medical preparation called “The Carbolic Smoke Ball,” issued an advertisement in which they offered to pay 100 to any person who contracted the influenza after having used one of their smoke balls in a specified manner and for a specified period. The plaintiff on the faith of the advertisement bought one of the balls, and used it in the manner and for the period specified, but nevertheless contracted the influenza:-

Held, affirming the decision of Hawkins, J., that the above facts established a contract by the defendants to pay the plaintiff 100 in the event which had happened; that such contract was neither a contract by way of wagering within 8 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48, s. 2; and that the plaintiff was entitled to recover.

Read the full case here.

One supposes that this case could be seen as an early example of vapourware.

The law to hold “hold vendors accountable” or “systems integrators to be truthful” has been in contract law well before even the venerable Geeklawyer started out in practice.  

In my presales days  one of my best demo sessions was when the prospect videoed the complete presentation and workshop. 

The law has been clever enough to have a proper term for outlandish sales and marketing  bullsh*t. It  calls it “mere puffery.”  The presence of  video camera does tend to reduce the desire to engage in such puffery though.

Contract law and supporting legislation has developed over literally thousands of years, and courts have been largely successful at picking up unfairness in whatever happens to being bought or sold.

In UK law for instance, the practice of limited liability in IT contracts was struck down in the St Alban’s  DC v ICL case. They were able to claim damages for the cost of incorrectly calculated taxes, which were far higher than the costs of the solution. Harry Small, one of the UK’s leading computer lawyers, wrote up the facts of the case here. 

Software does create challenges for contract law, sure, as other innovations in the past have done too.  (I will return to  goods vs services  another day)

To those that argue that software and IT are a special case in contract that require unique regulation, I’d suggest that they read the classic 1996 Esterbrook Speech, Cyberspace and the Law of the Horse. Contract law has done remarkably well at protecting buyer and sellers for 1000s of years, and I’m not sure that commercial buyers of software need significantly more hand holding than the buyers of smokeballs had 120 years ago.  (Consumers do though)

I’m not a free-market zealot, but contract law is one of humankind’s most impressive creations.