Published on December 20, 2008
New Media: managing your legal risks 1
Paul Jacobson Web and Digital Media Lawyer 2
The are risks 4
Don’t panic 5
The legal stuff ... 6
Issues to consider ... ✦ Freedom of expression ✦ Content licensing ✦ Privacy ✦ Unlawful competition 7
(we call it “Freedom of Expression”) 8
This is the right ... 9
There are competing rights ... 10
versus “Freedom of the press does not mean that the press is free to ruin a reputation or break a conﬁdence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.” 11
It is all about balance 12
Content licensing 13
What is copyright? ✦ Exclusive rights ✦ Works embodying intellectual content ✦ Authorise others ✦ Perform certain acts (for example, to exploit works for personal gain or proﬁt) 15
There are exemptions ... 16
✦ Fair dealing ✦ Use for judicial proceedings ✦ Quotations ✦ Illustrations for teaching ✦ Ephemeral copies ✦ Works delivered in public ✦ Reproductions in press or broadcast ✦ Ofﬁcial texts, political speeches, news of the day 17
Is sharing caring under the Copyright Act? 18
There is another option ... 19
Creative Commons licenses are free licenses that permit a range of uses of content licensed under them Creative Commons licenses work within the framework established by Copyright http://creativecommons.org/about/licenses/meet- the-licenses 21
How about a practical example 23
36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license 24
✦ Free download (9 tracks) ✦ $5 download (all 4 albums, high quality)* ✦ $10 2 CD set (including download) ✦ $75 deluxe edition 2 CD, 1 DVD, 1 Blu-ray disc (don’t forget the downloads) ✦ $300 Ultra-deluxe edition superpack * I bought one one these ... and I am barely a fan 26
So what happened? 27
2 500 x $300 = $750 000 28
$1 619 420 in the ﬁrst week of sales* *According to Rolling Stone: http://www.rollingstone.com/rockdaily/index.php/2008/03/13/nine-inch-nails-ghosts-i-iv-makes-trent-reznor-an-instant-millionaire/ 29
Oh, and NIN isn’t signed to a major record label 30
and it isn’t just about the big bands 31
Jonathan Coulton jonathancoulton.com 32
Unlawful competition 33
Customer relationships 34
The stick Restraint of trade provisions* Monitor data transfers and employee communications Disciplinary procedures Dismissals *Most deﬁnitely enforceable 35
The carrot Participate in relationship building exercises with customers Look after employees Take an interest in who is saying what to whom 36
Which of these do you use? 38
How much do you publish online? 39
What happens to what you publish online? 40
Take your chances 42
or ... 43
Draw lines in the sand ✦ What information is most sensitive? ✦ Decide to never let that information out into the wild. ✦ Everything else is compromised and public. 47
Claim your identity on the Web 48
on the other hand you could be the provider ... 49
in which case there are a couple things to bear in mind ... 50
There are rules about gathering personal information 51
“personal information”1 means information about an identiﬁable, natural person, and in so far as it is applicable, an identiﬁable, juristic person, including, but not limited to- a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person; b) information relating to the education or the medical, criminal or employment history of the person or information relating to ﬁnancial transactions in which the person has been involved; c) any identifying number, symbol or other particular assigned to the person; d) the address, ﬁngerprints or blood type of the person; e) the personal opinions, views or preferences of the person, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual; f) correspondence sent by the person that is implicitly or explicitly of a private or conﬁdential nature or further correspondence that would reveal the contents of the original correspondence; g) the views or opinions of another individual about the person; h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the person, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and i) the name of the person where it appears with other personal information relating to the person or where the disclosure of the name itself would reveal information about the person; j) but excludes information about a natural person who has been dead, or a juristic person that has ceased to exist, for more than 20 years; Draft Protection of Personal Information Bill 52
How would this affect you? 53
Makes biometric security systems a little tricky 54
Suddenly people’s opinions you may gather are protected as personal information 55
Privacy can be tricky ... 56
Social media has tremendous potential provided you manage your risks effectively 59
Paul Jacobson 083 444 8260 firstname.lastname@example.org pauljacobson.org 61
paul.myplaxo.com linkedin.com/in/paulj identi.ca/pauljacobson twitter.com/pauljacobson pejrm1 62
Selected image credits* ✦ Slide 3: Image by Cambodia4Kidsorg (http://www.ﬂickr.com/photos/cambodia4kidsorg/354932362/) licensed under Creative Commons Attribution 2.0 license; ✦ Slide 6: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 8: Free speech zone by mus (http://ﬂickr.com/photos/mus/3457967/) licensed under Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 10: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution ShareAlike 2.0 license; ✦ Slide 12: Balancing Act by zeebleoop (http://ﬂickr.com/photos/zeebleoop/325400310/) licensed under a Creative Commons Attribution No Derivatives 2.0 license; ✦ Slide 13: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http:// ﬂickr.com/photos/wetterfrosch/130493617/; ✦ Slide 18: Sharing birthday cake by eﬂeming (Creative Commons BY 2.0) at http://www.ﬂickr.com/photos/eﬂeming/ 237379252/; ✦ Slide 34: the conversation by polandeze (Creative Commons BY 2.0) at http://ﬂickr.com/photos/polandeze/ 1206596658/; ✦ Slide 54: my ﬁngerprint (index, left hand) (http://ﬂickr.com/photos/fazen/3778408/) licensed under a Creative Commons Attribution 2.0 license; ✦ Slide 55: interview (http://ﬂickr.com/photos/timsnell/1387723389/) licensed under a Creative Commons Attribution No-Derivatives 2.0 license. *All images used are available under license from iStockphoto.com, have been licensed under Creative Commons license or are in the public domain. Where the images are licensed under Creative Commons license, the license permits commercial use. Due to an error or pure laziness on my part, not all images are properly attributed in this presentation. 63
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