Chapter 11 Assignments

Assignment #1: 

WordPress.org Privacy Policy

By Lisa Youngclaus

WordPress.org Privacy Policy Overview

WordPress.org is a weblog hosting provider open to the general public as a free service.  The site’s published privacy policy delineates information gathered from site visitors in two categories:  (1)“non-personally-identifying” information and (2) “potentially-personally-identifying” information and “personally-identifying” information.  Overall, the policy is easy to understand, straightforward and clear.  However, there are a few areas where additional information could be helpful to the user. 

Discussion

Non-personally-identifying information.  WordPress.org collects a variety of data in this category that is standard for most websites, such as browser type, language preference, visitor’s dates and times.  The privacy policy specifies the information and tells the user “why” the information is gathered, which is “to better understand how WordPress.org’s visitors use its website.”  

Potentially-personally-identifying information and personally-identifying information.   User information gathered in this category includes: IP addresses, username and email addresses. WordPress.org’s privacy policy clearly states the circumstances and reasons for gathering this information and the uses of this information.

 There are three general areas where the site gathers and uses personal information from site visitors: (1) certain site services, chosen by the user, which require this information, (2) employees, contractors and affiliated organizations located within the U.S and outside of the U.S., deemed necessary to provide the WordPress.org services, (3) information disclosure as required by law or in cases where WordPress.org determines that disclosure of private information is “reasonably necessary to protect the property rights of WordPress.org, third parties, or the public at large.”

 More specifically, the gathering of personal information is dependent upon how a user engages with the site.  In order to participate in WordPress.org Forums, for example, this information is stated as necessary.  The policy clearly indicates that the user has the option of not participating, should they not desire to disclose this information.

While perhaps not entirely desirable to some users, it is reasonable and acceptable that employees, contractors and affiliated organizations might need this personal information in order for WordPress.org to adequately facilitate the site.  The policy does specify that these “suppliers” must agree not to disclose this information to others, thereby protecting the site user.

It is also understandable and acceptable for the site to disclose personal information when required to do so by law or to protect its own and the public’s property rights.  The policy clearly delineates and informs users about these circumstances, as well.

Objections to Policy’s Use of Information

The following statement regarding the “sale” of personal user information is potentially objectionable: 

“WordPress.org will not rent or sell potentially-personally-identifying and personally-identifying information to anyone.  Other than to its employees, contractors and affiliated organizations as described above.”

This passage could be improved with some additional clarification.  The “selling” of personal information is ambiguous.  Is this “selling” part of a contract to accommodate services?  Or is the “selling” of personal data for other reasons?

Other Opportunities for Clarification

WordPress.org might consider linking to their “Terms of Service” section within the text describing disclosure of personal information for legal reasons, namely for copyright violations.  The WordPress.org Terms of Service does a good job of explaining appropriate behavior to protect users.  A link to this section or a bullet point summary of these terms contained within the privacy policy is recommended.

Finally, the privacy policy states, in closing, that changes may occur to the privacy policy and users are encouraged to “frequently check” the policy for changes.  It is recommended that if any material changes are made to the privacy policy, that users be notified either by email or at least in a headline or notation on the WordPress.org homepage.

 

 

 

Assignment #2: 

An Argument Against NRECA’s Claim of Copyright Infringement

By Lisa Youngclaus

“Gore’s Light Bulbs”, CEI advertisement

Background

The Competitive Enterprise Institute (CEI) produced and aired a public service television advertisement which utilized “seven seconds of footage” sourced from a documentary produced and presumed copyrighted by the National Rural Electric Cooperative Association (NRECA).  The documentary and subsequent footage in question aired freely and broadly on the YouTube website and is broadly distributed by the NRECA.

The NRECA claimed “copyright infringement” over the seven seconds of footage use.  Subsequently, the ad was removed from YouTube.

Point of View: Insufficient Basis for Infringement

Based on court opinion and precedent, the NRECA does not have a viable copyright infringement claim due to the “small amount of copying” involved in the case and the overall nature of the public service advertisement which “advances the ideas, education, information and knowledge” about energy use and the political discussion of energy policy, policymakers and influencers.

Further, The CEI does have grounds to use the seven seconds of footage without liability for copyright infringement, as they meet the weight of two of the four factors set forth as criterion by U.S. Copyright Law’s “Fair Use” provisions. It should be noted that previous court rulings (Campbell v. Acuff-Rose Music, 1994) have found that it is not necessary to meet the weight of all four factors of “Fair Use” to prove lack of infringement.  In this case, CEI adequately meets the weight of two of the four factors:  (1) an insignificant amount of footage was used by CEI and the usage of that footage is used in a “wholly different way”, in this case as satire, and (2) There is no market place effect, other than CEI’s intention to educate, inform and stimulate public opinion and debate.

 

Discussion

An insignificant amount of footage was used by CEI and the usage of that footage is used in a “wholly different way”.

Specifically, in the CEI public service ad, the seven seconds of footage in question represents less than 50% of the overall commercial time of :60.  (In fact, the footage accounts for only 12% of the commercial time.)

Further, the footage does not represent “the essence” of NRECA’s documentary.

The footage, which depicts landscaping scenes or “beauty shots”, is a minor part of the overall ad.  The totality of the CEI ad is new and original, differing substantially from the overall communication of the documentary from which the seven seconds of footage was derived. In fact, the overall communication of the PSA reflects a satirical tone aimed at bringing to light inconsistencies in the political rhetoric of the environmental energy debate.

Much like political campaign ads, which we have seen an abundance of this year, using a few frames of footage from a rival candidate’s own advertising used as satire, is a relatively commonplace practice. 

The main idea of CEI’s ad was to suggest the potential hypocrisy of global warming advocates, represented by Al Gore, who may gain personal notoriety or profit from their political stance, while their efforts may cause harm to jobs and availability of affordable energy in the lives of ordinary citizens.  This idea is a new, satirical form of communication that differs significantly from the communication intent of the NRCEA piece and includes primarily original material.

Additionally, the NRECA broadly aired and disseminated their documentary and made it readily available on YouTube.

 There is no market place effect, other than CEI’s intention to educate, inform and stimulate public opinion and debate.

 The second criterion supporting a lack of infringement by CEI concerns the lack of market effect and the nature of the communication.  The CEI public service ad was purporting a point of view and educating the public about this point of view.  The ad was not intended to sell for profit, but rather to influence thought and stimulate public debate.    

In summary, based on the fulfillment of two of the four standards used to determine fair use, NRECA has no basis for its claim against CEI for copyright infringement.

 Implications:  The Application of U.S. Copyright Law

Given the technological advances available to most U.S Citizens, today, especially due to the Internet, U.S. Copyright Law should be more broadly interpreted.  Many expressions of ideas in design, photography, music, video, etc. are readily available to most citizens and have unique potential to increase our creativity and ingenuity as a nation.  The rise of YouTube and the ability to edit film and create new expressions of ideas has given all of us creative “fodder”.  While the law should continue to protect the profitable value of an original work, using snippets of film, sound, music, design elements “out of context” or in satire or parody to the original in an effort to create a wholly new expression should be protected. 

 

 

Assignment #3:

Defense Against Libel for MyFaceBookSpaceNews.com

By Lisa Youngclaus

Background

Plaintiff, David Simmons is pursuing a libel per se action against MyFaceBookSpaceNews.com stemming from a story published on December 2, 2008.  Simmons claims the story falsely accused him of being guilty of drunk driving and “being stupid”. 

Plaintiff’s Case

Simmons is a college student enrolled at Brooklyn College; therefore the court will name Simmons a “private citizen”.  As a private citizen, the burden will be upon Simmons to prove the requisite standard of “negligence” on the part of the MFBSN.com in order to succeed in his libel suit.  Simmons will have several arguments available to him that the courts have previously ruled, constitute libel:

(1)         Failure to exercise reasonable care

(2)         Use of only one credible source

(3)         Lack of reliable sources

(4)         Failure to verify facts

(5)         Failure to contact Simmons

(6)         Failure to recognize “red flags” about the story’s veracity

 Failure to exercise reasonable care.  Simmons can claim that the website failed to meet this standard by publishing statements regarding “drunk driving suspicion” and the vague “more serious charges” statement from Sgt. Ruggiero.  Additionally, Simmons may claim that reasonable care was not exercised by publishing the “stupid” references, which was unnecessarily slanderous and did not contribute substantially to the facts of the story.

 Use of only one credible source.  Simmons may claim that Sgt. Ruggiero, as the sole source for such a grievous incident as multiple deaths, was insufficient.

 Lack of reliable sources. Simmons may also claim that the story used an unreliable eyewitness, Hubier.  Hubier did not actually see the accident but was quoted excessively in manner that was derogatory and inflammatory (“I think people like that guy are just too stupid to know when it’s unsafe to drive”)

 Failure to verify facts.  Simmons will likely claim that the reporter and the news site should have verified whether Simmons was charged with drunk driving or other charges.

 Failure to contact Simmons. Simmons may also claim that MFBSN.com failed to contact him regarding the accident and alleged charges.

 Failure to recognize “red flags” about the story’s veracity.  Upon discovering that Simmons was the vice president of SADD, Students Against Drunk Driving, arguably, the reporter might have recognized the incongruity of behavior and sought to verify the drunk driving implications.

 

 MFBSN.com’s Defense Strategies

The news site has several defenses available to them that may either exonerate or reduce liability.  Specifically:

(1)         The story was accurate.

(2)         Publish a retraction, correction or follow up story with apology.

(3)         Claim the story was not original but used from a wire service, should this be the case.

(4)         Lack of Malice.

(5)         Use of authority

 The story was accurate. MSBSN.com can defend itself by underscoring the fact that the published story accurately stated that Simmons was “arrested on suspicion of drunken driving”, which was factual, despite any allusions to guilt.

Publish a retraction, correction or follow up story with apology. Theoretically, the site would likely have reported a subsequent, follow-up story that would have continued the coverage and reported whether or not Simmons was, indeed charged with DUI or additional charges.  If the site never ran a follow-up story, they could now run a “correction” or apology stating that in a previous story, the site alluded to drunk driving and serious charges against Simmons in this accident.  They could apologize for failing to update the story and report that Simmons was not in fact charged in the accident.  The site should not address the “stupid” comment from witness, Hubier, as the reprinting of that remark could inflame the libel claim by republishing.

Claim the story was not original but used from a wire service, should this be the case. If MSFBSN.com could prove that they did not report this story firsthand, but the story was sourced from a wire service, for example, they could claim “repetition.”  Court precedent has been established for this defense based on the argument that editors cannot verify every story received from these outside sources.

Lack of Malice can certainly be claimed which would likely eliminate punitive damages provided MSFBSN.com provided the site can prove “good faith” was used in reporting the story.

Use of Authority defense can by used by the site, claiming that they relied on the authority of SGT. Ruggiero, who could be “reasonably expected to be accurate.”