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3 Ways Reality Trumps Law

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Dice and Money ImageOnline, we like to talk about what that law says. Plenty of people will give you a rundown of what is and what is not considered legal in a variety of areas of law, including copyright, trademark, defamation (libel), advertising, privacy and so forth.

However, for all of the talk of what the law says, there’s one very serious problem that gets in the way routinely: Reality trumps law.

You see, while the law is an important tool for trying to make the world a more fair place, it’s limited in how it can work, just like any other tool. Sometimes these limitations can be seen as positive things but often times they create unbalance and inequality in the very places it was supposed to fix those issues.

With that in mind, here are just three ways that the court of law, in particular civil law, are limited and why, sometimes, unlawful things go unpunished. [Read more…] about 3 Ways Reality Trumps Law

How to Write a Proper Copyright Notice

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Even if you are completely unfamiliar with copyright law, you’re probably aware that most websites have some kind of copyright notice in their footer and, as such, you probably should too.

However, anything worth doing is worth doing well and, while a copyright notice isn’t particularly difficult, doing it wrong may create confusion or, in worst-case scenarios, thorny issues that may have to be cleared up should a dispute arise.

So how do you create a solid, functional copyright notice? There’s no one set formula on how to do it, but the best notices all have a set of components and convey several pieces of important information.

With that in mind, the best place to start answering the question is by looking at the purpose a copyright notice serves and how it can serve it. [Read more…] about How to Write a Proper Copyright Notice

What the Google/Oracle Ruling Means to Bloggers

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JAVA ImageLast week, Google won a major victory in its lawsuit against Oracle. The case, which centers around Google’s implementation of JAVA in the Android operating system, has gotten a lot of press in tech circles, especially for those interested in mobile devices.

However, The true impact of the ruling will likely be felt by almost anyone who uses a computer, but especially anyone who is blogging or routinely posting content on the Web, such as bloggers. Or at least it could have been.

That makes it important to really understand what the case was about, what the judge said and what that could mean for other potential cases in the future.

Though it’s a ruling that is seemingly just one part of a much larger case, it has the potential to become one of the most important legal rulings in the development of the Web and, possibly, modern computing in general. [Read more…] about What the Google/Oracle Ruling Means to Bloggers

The Contracts You Sign to Run a Site

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Contract ImageThough running a website might seem like a solitary endeavor at times, the truth is that pretty much nobody does it alone. You’re dependent on other companies to provide you the services you need to get your site online and keep it going.

However, those services are never truly free. Even if you don’t pay for them with cash, you still have to surrender various rights and privileges in order to make those services work. Even a company with no nefarious intentions, legally, needs guarantees and permissions from you to function.

These permissions and promises are handled in the form of terms of services (TOSes) that these companies get you to agree to before registering. These TOSes, though rarely read, are fundamentally contracts that you can and will be held accountable to.

But so few webmasters think twice before accepting the TOS on a new service and even fewer think about just how many they’ve agreed to just to keep their site online.

So, rather than going through and trying to highlight every thing you’ve surrendered with a click on a TOS, I’m going to go over some of the more common types of services that people register for when building a site and what the TOSes for those services routinely include. The idea isn’t to tell you what you have done, but what you might have done and what you need to look for when reviewing a site’s terms.

1. Web Hosting

Of all the contracts you have to sign, the agreement with your Web host is probably the most important for your site itself. Your Web host is what gets your site online and makes it visible to the world.

However, to do that, your host needs a broad range of rights in your work, including your text, photos and other content you upload to the service. From a copyright standpoint, this includes a right to display, modify (create derivative works) and, if the host is a commercial one that will be displaying their ads along with your content, commercial rights to your work.

Nearly all hosts take these rights on a non-exclusive basis, meaning that you can post it elsewhere, but when these rights terminate (and the host can no longer use the work) is often a thorny issue as sometimes deleting a work is not enough.

Perhaps more worrisome than the copyright issues is indemnification, where you agree to pay any legal expenses that the host may incur for your actions. This can include any legal damages and attorney’s fees if your host is sued but also any other losses they suffer.

Generally, this is limited to anything you do in violation of their TOS, but some hosts broaden it to anything, meaning that even legal activity that the host gets sued for could force you to pay their legal bills.

Always remember that your host has to protect its interests and is going to do everything it can to protect itself from any legal issues that could arise from your account.

2. CMS/Blogging Platform

Unless you use a host that has a built-in platform, such as Blogger or Tumblr, you likely had to download and install your own blogging platform or other CMS, such as WordPress, Drupal, Joomla, etc.

Most major platforms are licensed under the GPL or a different open source license. These actually grant you a lot of rights to use the work, including for commercial purposes, for free and gives you freedom to modify it as you see fit.

However, you also make several sacrifices as well. For one, if something goes wrong and the software harms you in a way (losing your data, etc.) there’s no legal recourse. This is common in nearly all software licenses, not just open source ones. Also, if you make changes to the platform and distribute them, you, depending on the exact license, will likely have to distribute the source code of your changes and license them under the same terms.

These might be small prices to pay for a robust, blogging platform but they are still issues to consider.

3. Media Host

If you use a media host to store and display multimedia content, such as YouTube, Soundcloud, Blip.TV, etc. they have largely the same set of requirements as a traditional host (including copyright and indemnification). However, expect to give up more copyrights in the work as the more involved service needs greater permission to convert your work into a format that can be seen online. Likewise, they’re going to want more broad commercial rights to display ads.

However, you’re also going to have greater and greater limitations with what you can do with the service. Though all hosts will prohibit you from putting up illegal content (for obvious reasons), media hosts are generally more interested in preserving community standards, such as YouTube’s community guidelines. Failure to follow these guidelines can result in videos being removed, accounts shuttered and, if you were earning money from views, lost revenue.

With media hosts, especially those that are paying you, expect a lot more oversight into what you’re doing, both in terms of what their TOS allows and in their enforcement of it.

4. Social Networking

Social networking sites have many of the same issues of copyright and indemnification that other kinds of hosts have. This makes sense because it basically is another Web host with social elements.

However, with social networking comes a whole new slate of concerns related to privacy. There are serious questions with these services regarding how much of your data they have, who they can share it with and when and the issues aren’t going away any time soon.

Of particular interest is what social networks can share with third parties, including advertisers, who may be interested in the data for the purpose of delivering better-targeted ads. However, since most social networks maintain a presence across the Web, that issue does not end when you leave the site and, if you embed social networking elements on your site, could involve your domain.

As a result, with social networking, it’s not enough to think about your interests, but also the interest and privacy of your visitors as well.

Bottom Line

As overwhelming as all of this might seem, it’s important to remember that these are just a small part of the much bigger picture. In addition to these services, you also likely use email, instant messaging, play games, video chat, VOIP and more, all with different contracts to look at and agree to.

This is why it’s important to read through a TOS before hitting “accept”. Otherwise, you’ll have no idea what you are agreeing to and what implications that might have for you down the road. While these contracts are necessary for companies to be able to host and display your content, they’re also an opportunity for overreaching, either out of fear or malice.

You need to protect your interests and the interests of your readers when you’re registering for services because these companies will not do it for you. Their contracts are written to protect them, not you, and it’s important to never forget that.

Failure to do so could wind up being very costly and put you in a very difficult situation later on.

5 Areas of Law Every Blogger Should Know

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Lawbreaker ImageBlogging is an activity that is fraught with legal peril. Though most bloggers will go their entire lives without a lawsuit or a serious legal threat, it does happen and regularly.

It’s important to remember that blogging is, for the purpose of the law, the same as running your own newspaper or TV station. Every time you hit publish, what you wrote is going to be shot out to people all over the world and, with that power, comes a great deal of peril.

If you don’t want to be sued or threatened (with any seriousness) over your blogging activities, you need to take a moment and understand the laws that govern what you’re doing. I’ll be going over these areas in greater depth over the next few weeks and months here on Performancing, but for those who want to take their education into their own hands, here’s the ground your legal education should cover and why. [Read more…] about 5 Areas of Law Every Blogger Should Know

“Fair Use” and Publishing Media for Blogs and Videos

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Lately I’ve been building videos of my dives in the Philippines for a SCUBA blog and one thing I’ve noticed is that it is becoming harder by the day to find a video service that recognizes fair use for ambient audio tracks. Sure there are always the royalty free audio selections but most of the “good stuff” are from records, independent label or not. Youtube started this, removing audio from edited videos despite the credits. Facebook is doing this as well. The subject of “fair use” can be scrutinized on and on.

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Another way of putting this is that fair use is a defense against infringement. If your use qualifies under the definition above, and as defined more specifically in this section, then your use would not be considered an illegal infringement. [source]

So if I use only a partial track from a song, that’s considered fair use? If you’ve been editing videos and posting one man acts on your blog, what experiences have you had with material being taken down? Look, I’m not here to challenge the policy. I just want to initiate a discussion on what can and cannot be done. The reality of the situation is that on the web, the actual practice seems to overshadow the real policy.