buying illegal drugs on the internet

I suppose that headline is also found in quite a bit of spam. Oh well. I read with interest this story in Forbes about how the Silk Road site is facilitating about $2 million a month in illegal drug sales over the internet, using technologies such as Bitcoin for payment (which apparently is untraceable) and Tor to serve the site (which apparently is also untraceable). As an aside, the only reason I say “apparently” is because it always seems that no matter how airtight any electronic security measure seems to be, there always eventually seems to be someone who comes along who is sufficiently clever and/or dedicated to bypass it.

My initial thought on this story was that it was rather a shame that such useful technology would be put to such notorious uses, and wondered how long it would be until someone called for government control or prohibition of such technologies. Yes, yes, I know, this hearkens back the now somewhat dated debate regarding controls over crypto and the release of the rather poorly received Clipper chip. And yet, I still encounter those who feel that this is the proper approach to such technologies, and the only way that criminals who use such technologies can be pursued and apprehended with any reasonable measure of efficacy.

Perhaps needless to say, but I don’t quite agree with such an approach, largely for the same, very practical reasons that Clipper did not succeed (which I’ll leave to you and Google to find). That being said, I’m fully expecting the dialogue around this story to broach this debate once again.


open source legal documents

Just got a note from the docracy folks. They’ve developed a new, US oriented, open source mobile privacy policy.

I’m quite intrigued by the whole notion of open source legal documents. As some readers of this blog may know, I am very much a fan of open source technology. That being said, I do wonder whether the application of open source models to legal documents will yield the same benefits as their application to code.

I suppose it should, but must admit I do have some doubts. For example, I don’t think that open source legal agreements will necessarily result in widespread adoption or create standards the way open source software does, for a variety of reasons – e.g. differences in each jurisdiction’s laws, variations in business models, or variations in risk tolerance for users.

Moreover, I’m not necessarily sure open source legal agreements that are freely available will supplant professional legal services, the way, for example, that Linux has (or at least has the possibility) of supplanting operating systems for which license fees are paid and no source is made available – like Windows.

Why? Because legal services are already provided in a manner similar to one open source business model – that of value added services. While I certainly wouldn’t mind trying to exploit my drafting work by licensing forms of agreements at $X dollars a pop, that’s not typically how legal services work. When someone asks me to help them create a  software license agreement, I’ll ask them various questions regarding their product, how they plan to license and distribute it, how they plan to charge for it, and so on, then take one or more existing precedents and start tailoring to their needs, charging by the hour to do that and perhaps to negotiate the terms from time to time. I don’t charge a license or usage fee for the use of the precedents, but rather only for the “value-add” services. It might be nice too, but if your competitors don’t (and I think most don’t) then it’s tough for you do so. Which is perhaps why legal services typically don’t scale quite as well as other industries.

Sorry, I digress. Anyway, my point was that this service model is quite similar to one approach to one open source business model – license the core product under an open source license, and sell value-add services, such as support, custom development, implementation services and the like – stuff that requires expertise for those that need it.

Just to be clear, I’m not suggesting that the concept of open source legal documents is bad (because it’s not), but rather that I can’t see it having the same impact on the legal services industry as open source code has had on the IT industry. But who knows.

it.can 16th annual conference

Does IT form a part of your practice area? If so, then you won’t want to miss IT.Can’s Annual Conference, taking place in Montreal this coming October 29-30.

The conference  offers an array of interesting, cutting edge IT, IP and related topics presented by distinguished speakers. The program will be accredited by the Bar of Quebec, British Columbia and New Brunswick for continuing legal education requirements. Registration is available for either one day or both days at a discount. Highly recommended.

For more information, take a look at the brochure (PDF). Or just go register.

another copyright infringement class action – this time in the us

Those silly Americans. Always copying great Canadian innovations, like class actions for copyright infringement by lawyers against large legal publishers. You’ll recall I put up a short post yesterday on a lawsuit along those lines that was recently certified to proceed. I’m a bit behind in my reading – apparently a similar suit was filed last week in New York, again by lawyers, and this time against Westlaw (a subsidiary of the target of the Canadian action, Thomson Reuters) and LexisNexis.

More details on the action in the Wall Street Journal (along with a copy of the claim), The Volokh Conspiracy and the ABA Journal. I’ve included the last link more for the comments, just to give a sense of opinions on the topic (which, perhaps not surprisingly, are all over the map). Volokh offers a brief analysis, plus another spirited debate in the comments.

Nice change to be first, I suppose.

mass copyright infringement suit by lawyers given go-ahead

The Lawyers Weekly reports that a class action lawsuit accusing Thomson Reuters of “mass copyright infringement” was given the green light to proceed last week. There’s a good summary of the facts in the article, but here is my 30 second summary of the summary:

  • lawyers write pleadings, motions, affidavits and other legal documents which are filed with the courts
  • because they are filed with the courts, they are (for the most part) in the public record – anyone who pays a fee can get a copy, but typically only in (somewhat inconvenient) hardcopy
  • Thomson developed an electronic database where it did all the heavy lifting – it went to the courts, paid the fees, collected the hardcopies, scanned and digitized them, and made them available in a convenient and searchable form to subscribers – for a fee

The plaintiffs’ bone of contention is that, while Thomson did do a fair bit of work and paid the relevant court fees as would any individual requesting the same documents, it did not license their use from the authors of those documents, nor pay them for such license. Therefore, Thomson should be found liable for copyright infringement.

There was a good post and interesting discussion on this case on Slaw back in 2010 when the class proceeding was first started, with a number of comments arguing for and against. I was amongst the commentators and my initial reaction, primarily from the perspective of “black-letter” copyright law, was that the plaintiffs seemed to have a reasonably good case, while comparatively, the defendants seem to have a rather weak defence.

Since then, and after giving the matter a bit more thought, I’ve become a bit more ambivalent. There are some competing policy objectives (each of which has its merits) that will need to be considered by the court. One of the distinctions that seem to be made in this case is the fact that Thomson has, apparently, profited quite handsomely from this service, whereas (presumably) individuals who request a single copy do not. Perhaps this is a straw man of my own construction, but I would have thought that many individuals who request copies of pleadings are lawyers, who use such documents in order to do their work, and thereby generate fees. Would it therefore be appropriate to distinguish between the two? Should fair use encompass use through one medium (hardcopy), but not another (digitized and searchable)? Should Thomson’s efforts in taking the time to obtain copies and digitize, index and sort them entitle it to earn a profit from its efforts without an obligation to compensate the original authors? After all, what subscribers are really paying for is not access to the documents themselves, but rather, I would think, how the documents are accessed – it is more cost-effective for them to pay a fee to access pleadings and the like in easily searchable and downloadable form from the convenience of their desk than to schlep around to courts to manually find and retrieve the same documents.

Of course there are other considerations as well – public access to the courts and to the public record, and a number of others. Certainly raises a number of thorny questions. If of interest, I’d encourage you to visit the Slaw article I mentioned above for somewhat more learned debate than my cursory ramblings.

Also, apparently the court chose to certify some (but not all issues). From the article:

The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) “reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as the author or owner of court documents?” or  (2)  “authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?”

The judge also certified common issues raised by Thomson’s defences: “Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?”

Moreover, “did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?”

Certified as common issues as well: “are class members entitled to injunctive relief” under s. 34(1) of the Copyright Act; and “does Thomson’s conduct justify an award of aggravated, exemplary, or punitive damages?’

more draft regulations to canadian anti-spam legislation published

A while back I had posted an entry on some draft regulations under Canada’s Anti-Spam Legis­la­tion which were published by the CRTC for public comment.  Those regulations related primarily to consent mechanisms and what information must be provided in e-mails.

Late last week, another round of draft regulations were released. This time, by the Governor in Counsel rather than the CRTC. For what it’s worth, here’s a compressed version of same. I’ve taken the liberty of appending the full wording at the end of the post, which can also be found in the Canada Gazette (with the added bonus of a regulatory impact analysis statement). This summary is a bit wordier as the regulations need a bit of background in order to be properly understood, and are a bit more complicated. Anyway, here it is FWIW:

  1. Section 6(5) of CASL exempts certain types of messages from the requirements to get prior consent and provide certain information before sending e-mails. These include messages to individuals with whom the sender has “personal or family relationships”. The regulations define both of these:
    • a family relationship  means:
      • a blood relationship (children, grandchildren, parents, grandparents, brothers, sisters or others of common or “collateral” descent);
      • relationship by marriage or common-law partnership (including in-laws in either case); or
      • adoption (including blood relations of the person doing the adopting).
    • a personal relationship means a relationship with someone who the sender has:
      • met in person at some point in the past;
      • had a two way communication within the past two years; and
      • the meeting and communication were not related to a “commercial activity”.
  2. Section 10(2) of CASL allows someone  (let’s call that someone the “Original Consentee”) to get consent from a person (let’s call them the “Target”) to send or alter messages or install software on behalf of third parties (let’s call those third parties “Additional Consentees”) whose identities are not known. To do so, there are two requirements: First, the Original Consentee must disclose specific information about itself (see my earlier post). Second, the Original Consentee must comply with the regulations. The regulations basically try to ensure there are seamless links between the Original Consentee and Additional Consentees from the Target’s perspective, as follows:
    • Requirements to send messages:
      • any message sent to the Target must identify the Original Consentee; and
      • each Additional Consentee must provide an unsubscribe mechanism that complies with CASL and which also allows the Target to withdraw consent from the Original Consentee and any other Additional Consentee;
    • Requirements related to withdrawal of consent by a Target:
      • the Original Consentee must ensure that any Additional Consentee who receives withdrawal of consent from a Target notifies the Original Consentee of those for whom consent has been withdrawn (i.e. the Original Consentee, the Additional Consentee receiving the notice of withdrawal, and any other Additional Consentees); and
      • the Original Consentee must:
        • give effect to the withdrawal of consent;
        • promptly notify any other Additional Consentees for whom consent has been withdrawn (other than of course the Additional Consentee who received the withdrawal); and
        • ensure that each other Additional Consentee for whom consent has been withdrawn also gives effect to the withdrawal of consent
  3. Section 6 of the Act provides that consent for messages can be express or implied. However, consent is only implied in certain situations. One of those situations is an existing “non-business relationship”. In turn, there are different categories of “non-business relationship”, one of which membership with a club, association or voluntary organization within two years immediately before the day the message is sent. The regulations clarify what is meant by membership and what constitutes a club, association or voluntary organization:
    • membership means being accepted as a member; and
    • club, association or voluntary organization basically means a non-profit. To drive home the point, the regulation specifies that it can be operated for any purpose other than profit, and that no proprietor, member or shareholder can personally benefit from any income of the organization, except for organizations promoting amateur athletics in Canada.

The concepts are a bit convoluted, particularly those summarized in paragraph 2 above (which, as an aside, I think leave open some questions of interpretation, which I might address in a later post). Perhaps at a later time I’ll try to come up with an illustrative example of how 2 works (or at least my best guess as to how it’s supposed to work). Also, I believe in my previous post I referred to “e-mail”. Just to be clear, the Act applies not only to e-mail, but to any “commercial electronic messages”, which is fairly broad and could include SMS messages, messages through websites, IM, etc.

As with the last set, open for comments for 60 days following the publication date (July 9, 2011).

Full regulation to save you a click:



1. In these Regulations “Act” means AnAct to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.


2. For the purposes of paragraph 6(5)(a) of the Act

  1. (a) “family relationship” means the relationship between individuals who are connected by
    1. (i) a blood relationship, if one individual is the child or other descendant of the other individual, the parent or grandparent of the other individual, the brother or sister of the other individual or of collateral descent from the other individual’s grandparent,
    2. (ii) marriage, if one individual is married to the other individual or to an individual connected by a blood relationship to that other individual,
    3. (iii) a common-law partnership, if one individual is in a common-law partnership with the other individual or with an individual who is connected by a blood relationship to that other individual; and
    4. (iv) adoption, if one individual has been adopted, either legally or in fact, as the child of the other individual or as the child of an individual who is connected by a blood relationship to that other individual; and
  2. (b) “personal relationship” means the relationship, other than in relation to a commercial activity, between an individual who sends the message and the individual to whom the message is sent, if they have had an in-person meeting and, within the previous two years, a two-way communication.


3. (1) For the purposes of paragraph 10(2)(b) of the Act, a person who obtained express consent on behalf of a person whose identity was unknown may authorize any person to use the consent on the condition that the person who obtained consent ensures that, in any commercial electronic message sent to the person from whom consent was obtained,

  1. (a) the person who obtained consent is identified; and
  1. (b) the authorized person provides an unsubscribe mechanism that, in addition to meeting the requirements set out in section 11 of the Act, allows the person from whom consent was obtained to withdraw their consent from the person who obtained consent or any other person who is authorized to use the consent.

(2) The person who obtained consent must ensure that, on receipt of an indication of withdrawal of consent by the authorized person who sent the commercial electronic message, that authorized person notifies the person who obtained consent that consent has been withdrawn from, as the case may be,

  1. (a) the person who obtained consent;
  2. (b) the authorized person who sent the commercial electronic message; or
  3. (c) any other person who is authorized to use the consent.

(3) The person who obtained consent must inform, without delay, a person referred to in paragraph 2(c) of the withdrawal of consent on receipt of notification of withdrawal of consent from that person.

(4) The person who obtained consent must give effect to a withdrawal of consent and, if applicable, ensure that a person referred to in paragraph 2(c) gives effect to the withdrawal of consent, in accordance with subsection 11(3) of the Act.


4. (1) For the purposes of paragraph 10(13)(c) of the Act, membership is the status of having been accepted as a member of a club, association or voluntary organization in accordance with the membership requirements of the club, association or organization.

(2) For the purposes of paragraph 10(13)(c) of the Act, a club, association or voluntary organization is a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit, if no part of its income is payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization unless the proprietor, member or shareholder is an organization the primary purpose of which is the promotion of amateur athletics in Canada.


5. These Regulations come into force on the day on which they are registered.

draft regulations to canadian anti-spam legislation published

Sorry for the absence, blog and readers thereof. I have my reasons. Anyway just a short one this time.  The CRTC published their draft regulations under Canada’s Anti-Spam Legislation (which as many of you isn’t the official short name) which was passed last December but isn’t yet in force.

Nothing particularly earth-shattering. I’ve reproduced the regulations further below, but here’s the ultra short version:

  1. E-mails must set out:
    • name of sender
    • name of the principal on whose behalf the sender is sending (if different)
    • if sender/principal carry on business under other names, those other names
    • physical/mailing address, telephone number, email address and website of sender and principal
  2. If not practicable to include the info and an unsubscribe message in the e-mail, it can be presented through a link in the e-mail or another equally efficient method that doesn’t cost the recipient anything.
  3. Unsubscribe mechanisms cannot take more than two clicks (or something similarly efficient).
  4. Requests for consents (e.g. to receive e-mails or to install software) must include all the information set out in 1 and a statement indicating consent can be withdrawn by using such information.
  5. If software to be installed performs any of the functions specified in s. 10(5) of the Act, then:
    • those functions must be described “separately” from other information in the consent request
    • written acknowledgement must be obtained that the recipient understands and agrees to the performance of those functions

The functions set out in s. 10(5) for which consent must be obtained are (in compressed form):

  • collecting personal information
  • interfering with control of the recipient’s computer
  • changing or interfering with settings, preferences or commands without their knowledge
  • changing or interfering with data that prevents access or use
  • causing the computer system to communicate without the authorization
  • installing software  that may be activated without their  knowledge

I won’t put you through the pain of a rehash of the rest of the Act.

The consultation period ends August 29. Also, apparently there may be other stuff in the official regulation to be published on Saturday.

Here’s the full text for your reading pleasure and to save you a click:

Appendix to Telecom Notice of Consultation
CRTC 2011-400

Electronic Commerce Protection Regulations (CRTC)


1. In these Regulations, “Act” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.


2. (1)   For the purposes of subsection 6(2) of the Act, the following information must be set out in any commercial electronic message:

(a)   the name of the person sending the message and the person, if different, on whose behalf it is sent;

(b)   if the message is sent on behalf of another person, a statement indicating which person is sending the message and which person on whose behalf the message is sent;

(c)   if the person who sends the message and the person, if different, on behalf of whom it is sent carry on business by different names, the name by which those persons carry on business; and

(d)   the physical and mailing address, a telephone number providing access to an agent or a voice messaging system, an email address and a web address of the person sending the message and, if different, the person on whose behalf the message is sent and any other electronic address used by those persons.

(2)   If it is not practicable to include the information referred to in subsection (1) and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act in a commercial electronic message, that information may be provided by a link to a web page on the World Wide Web that is clearly and prominently set out and that can be accessed by a single click or another method of equivalent efficiency at no cost to the person to whom the message is sent.


3. (1)   The information referred to in section 2 and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act must be set out clearly and prominently.

(2)   The unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act must be able to be performed in no more than two clicks or another method of equivalent efficiency.


4. For the purposes of subsections 10(1) and (3) of the Act, a request for consent must be in writing and must be sought separately for each act described in sections 6 to 8 of the Act and must include

(a)   the name of the person seeking consent and the person, if different, on whose behalf consent is sought;

(b)   if the consent is sought on behalf of another person, a statement indicating which person is seeking consent and which person on whose behalf consent is sought;

(c)   if the person seeking consent and the person, if different, on whose behalf consent is sought carry on business by different names, the name by which those persons carry on business;

(d)   the physical and mailing address, a telephone number providing access to an agent or a voice messaging system, an email address and a web address of the person seeking consent and, if different, the person on whose behalf consent is sought and any other electronic address used by those persons; and

(e)   a statement indicating that the person whose consent is sought can withdraw their consent by using any contact information referred to in paragraph (d).


5. A computer program’s material elements that perform one or more of the functions listed in subsection 10(5) of the Act must be brought to the attention of the person from whom consent is being sought separately from any other information provided in a request for consent and the person seeking consent must obtain an acknowledgement in writing from the person from whom consent is being sought that they understand and agree that the program performs the specified functions.


6. These Regulations come into force on the day on which they are registered.


linux kernel found to infringe patent

Well, this is rather disconcerting. By way of Engadget, I came across this blog entry on FOSS Patents about how a small outfit in Texas, Bedrock Computer Technologies LLC (apparently a non-practicing entity, otherwise typically described as a “patent troll”), has won a $5 million claim for patent infringement against Google.

But the part that is perhaps a bit more worrisome than either the amount or the defendant is the fact that the infringing technology in question is a portion of the Linux kernel. From the entry:

Like I said further above, the question of Google possibly having to pay $5 million (unless the judge decides otherwise or an appeal succeeds) is not really the issue. In addition to money, Bedrock also asked for an injunction, and now that Google has been found to infringe a patent deemed valid by the jury, it remains to be seen whether an injunction will be granted either by this court or on a possible appeal.

The problem is that Bedrock is now in a pretty strong position to collect royalties from other Linux users, especially those utilizing Linux for large server operations.

It’s a bit difficult to tell, based on the claims asserted in the patent, whether or not Google would be able to excise the offending part of the kernel or find some other way to avoid infringing use. I’m sure they can, but if they can’t,  an injunction might have some implications for Google’s server farms and therefore its operations.

In addition, there’s also the possibility that this will impact Android:

Concerning Android, I wouldn’t rule out that maybe some of the hundreds of thousands of Android applications out there use the teachings of the infringed patent claims in one way or another. Even if that is not the case, Google might have to modify the Linux kernel it distributes with Android in order to remove the infringing code because otherwise there’s always the risk of contributory infringement should any app make use of that portion of the Linux kernel.

Needless to say, there could be quite a few companies impacted by this, though I imagine folks in the open source community are starting to look at workarounds, hopefully. It’s difficult to tell from the claim in the patent how fundamental it is or how difficulty or easy it would be to work around.

Perhaps its just me, but sometimes get rather irritated when reading software patent claims. Often, they seem to describe things that already well known or rather mundane. Take for example the claims in this case:

1. An information storage and retrieval system, the system comprising:

  • a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring,
  • a record search means utilizing a search key to access the linked list,
  • the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed, and
  • means, utilizing the record search means, for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list.

2. The information storage and retrieval system according to claim 1 further including means for dynamically determining maximum number for the record search means to remove in the accessed linked list of records.

I’m not trained as a patent agent, so cannot speak with much authority on this, but these claims, to me, seem rather mundane.

who owns your tweets? (@novaspivack)

Thought I’d tackle a relatively short and easy one today – it’s been a long, long week. Anyway, I noticed a tweet from @novaspivack (via a retweet by @mathewi) asking “Legal question: Who owns the copyright to your tweets, and who has the ultimate right to decide who else can access them?”

Under both the US (§201) and Canadian (s. 13(1)) Copyright Acts, the first owner of a work in which copyright subsists is the author of that work. In other words, you write it, you own it. So that’s your starting point. You write a tweet, you own it.

There are also exceptions to the rule that an author owns the work. For example, if you author something in the course of your employment, your employer will be the first owner of the work absent an agreement to the contrary. So, for example, if you tweet as a part of your job, then copyright in your tweets are owned by your employer, not you, unless you’ve struck a deal saying otherwise with your employer. In the US, this is often referred to as a “work made for hire” (sometimes contracted to “work for hire”).

You can also agree, up front, with a contract with someone else, that a work that you author will be owned by them. Subject to the usual legal niceties of creating a legally enforceable contract (and some caveats, which I won’t get into here), that means that what you write will be owned by that other person. So, for example, you can agree under a contract to tweet for someone else and that those tweets will be owned by that other person.

This can also be done after the fact. You can author a work, and then sell it to someone else under a contract. Then they’ll own it. This could be done with tweets. So for example if a publisher wanted to compile your past tweets into a book, you could sell them the copyright in those tweets, and they’d be free to do what they want with them.

Along similar lines, you can also grant licenses to work you create. The granting of a license means that you give someone else some rights that only you would, in the absence of that grant, be entitled to exercise. So, for example, you could grant someone the right to publish a book of your tweets, in paper form only, in North America. Once you grant that right, then they can publish that book without infringing your copyright.

The reason I mention licenses is because there is a specific term in the Twitter terms of service pursuant to which users of Twitter grant Twitter a license. Here it is, for your reading pleasure:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

“Content” basically means your tweets. So you keep ownership of your tweets. BUT, you grant a license to Twitter to do a whole bunch of stuff with it. These rights constitute, more or less, anything you as the owner could otherwise do. It’s quite broad. Very broad, in fact. Substantively, really the only difference between this and giving up ownership completely is that you can continue to use your tweets in other ways. So for example if you want to put your tweets on Facebook, or your blog, or sell a book of your tweets, you would be free to do so. Then again, so can Twitter, if it wanted to.

All of this of course assumes that the terms of service are enforceable. There are arguments for and against, but that’s a bit beyond the scope of this post.

So the second part of the question is who has the ultimate right to decide who else can access them. While, as you probably know, Twitter does allow you to restrict who can see your tweets, they do have the right to give access to whoever they choose, and completely disregard your settings. I didn’t see anything in their terms of use that imposed a contractual restriction on them to honour restricted user settings. Then again, I haven’t exactly read it word for word.

I imagine there might be situations where you could be able to terminate the contract, even though the terms of service don’t expressly provide for that, but I imagine it would be challenging to suggest that the license rights granted to past tweets would terminate. Interestingly, the rights granted under the license language above aren’t characterized as “perpetual” (i.e. forever), which they often are in such documents.

It may also be worth mentioning that Twitter can control access to your tweets to the extent it involves Twitter. Just to make this clear, they have this provision in their terms of use:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

So, for example, they can pull all of your tweets off Twitter, so that no one can see them anymore. However, that doesn’t preclude you from, for example, reposting all your tweets to Facebook or a blog, if you wanted to, and assuming you retained a copy of them.

Of course, lawyers tend to argue about everything and anything, so I’m sure someone out there may be inclined to disagree with something I’ve written above. Which is fine. And of course the usual – not legal advice, no lawyer-client privilege, no obligation or liability. Just in case you live in the US.

Fascinating stuff, isn’t it?

wikipedia, legal authority and facts

I was in the middle of writing yet another half-finished post (this one on Groupon, in case you were wondering) when I was distracted by a tweet from Barry Sookman on how a court determined that Wikipedia is not a legal authority in US courts, which then pointed to a brief blog entry written by Peter Vogels. In it, he concludes with this statement:

Even though the Smithsonian Institution is now teaming up with Wikipedia that does not validate Wikipedia postings for the Courts. As time moves on Wikipedia may be a reliable source for the Courts, but when is still unpredictable.

which I interpreted as disappointment with the court’s ruling, at least as far as Wikipedia goes. This piqued my interest a bit, so I took at look at the order (PDF – which Mr. Vogels was kind enough to link to in his entry). The operative paragraph was set out in the following footnote in the order:

4The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision of Iowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

This, in turn, was a footnote to the following sentence in the order:

The defendant claims that she must be granted a new trial because the representation she received was so deficient as to violate the Sixth Amendment to the United States Constitution.4

I’m not sure the statement of the court above  is necessarily as unfortunate as it sounds. Legal authority is usually used to describe “reporters” – specific publications that publish court decisions. Some are “official”, as in they are approved in some way by the courts, while others, which are still accepted by the courts, are not. These reporters, as far as I am aware, take great care to ensure that decisions are published completely and accurately. They are typically well known by lawyers and judges, so that anyone given a reference to a particular case using a particular citation will be assured that it will be identical, down to the page, of anyone else looking at that citation. For example, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 will allow any lawyer or judge to look up the case described in a specific reporter.

If I’m interpreting the above correctly, the judge seems to be suggesting that the lawyer in question basically tried to rip-off arguments in another case without acknowledging that they came from another case (or rather the Wikipedia entry for the case) – at least for all of the footnote other than the last sentence.

That last sentence, however, I think speaks only to legal authority in the sense I’ve described above. Or at least I hope it does, because that would be a sensible thing to say – after all, the full text of decisions are not published on Wikipedia but rather summaries which are editable by users. And when it comes to citing past decisions as the basis for coming to a new judicial decision, it is probably important to have some degree of reliability, immutability and consistency for your sources. Or perhaps stated simply, lawyers shouldn’t be providing a link to Wikipedia when they’re citing a case as precedent – they should be citing authoritative reporters.

This should be distinguished, I think, from more general use of Wikipedia by the courts to refer to factual matters, which an article in the New York Times summarized the current perspectives quite well. The article in particular noted a case where a US court had rejected references to Wikipedia:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

The article does go on, however, to identify a number of instances where Wikipedia had been accepted by other courts, sometimes for rather important facts, which has been criticized by some:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

while others have been less harsh:

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

I guess my point in all of the above is that I’d be inclined to agree that Wikipedia shouldn’t be used at all to cite legal authority (assuming of course I’m properly interpreting what the court meant), without of course discounting the desirability of perhaps replacing (or supplementing) the rather antiquated, primarily paper-oriented system of legal authority with more modern, internet-accessible means of publication. Conversely, I would think that references to Wikipedia for factual matters should perhaps be a bit more flexible, and I don’t think this particular order  rules that possibility out.