Charles Curley's Weblog

"Patent trolls" were bad enough. Now there are "copyright trolls," and one in particular is suing anyone who has quoted content from the Las Vegas Review-Journal (LVRJ).

So says "Brad" at Wendy McElroy.com in the first of two articles. Apparently, seen how well patent trolls like SCO have done, companies are buying up the content of web sites and suing people who quote them.

Now you would think (if you aren't a lawyer) that quoting the articles in controversy would be "fair use". But fair use is an "affirmative defense", meaning it's up to the defendants to raise the issue, after they've been sued and shelled out the big bucks for attorneys and other costs. So in many cases it would be cheaper to buy a license to the material than defend a law suit. Hence the term "copyright troll".

In response "Brad" and Ms McElroy are boycotting the LVJR and other sites where the copyright is owned by copyright troll company Righthaven LLC. (No, I'm not going to link to them.) "Brad"'s second article deals with how to boycott the LVRJ and other Righthaven sites. You, gentle reader, might do the same.

One effect of their boycott is that Ms McElroy, a leading libertarian thinker and writer, is now unable to link to columns for the LVJR by Vin Suprynowicz, another leading libertarian thinker and writer. The irony being that libertarians generally uphold property rights. If you want to see some of those columns, sorry, you'll have to google for them.

Assume, for a moment, that the web site you've signed onto actually keeps to its privacy policy. So you give them sensitive data, such as a credit card number. Or, in some parts of the world, the simple fact that you're gay. So far so good.

Now, what happens when they go bankrupt? The database to which you have contributed is an asset of the bankrupt company. It will go to the creditors. And they are not bound by any privacy policy. Worse, often the original creditors have sold the debt to debt collection agencies, who often have all the moral compunctions of a shark.

All the more reason to keep your sensitive data to yourself.

Call centre spivs get dose of their own medicine

A small telco has decided to turn the tables on irritating unsolicited calls by setting up a block of dummy phone numbers that play messages to trick marketers into lenghty and pointless sales pitches.

The wheeze is the work of Andrews and Arnold (AAISP), a small business provider, and was prompted by a deluge of unsolicited calls to its office lines over the past month.

The firm has reserved a block of four million VoIP lines for the prank. All are registered with the Telephone Preference Service, so any unsolicited marketing calls they get are likely to be the result of illegal use of autodialler software.

So says the Register. Not having four milion spare lines handy, my policy is a bit different. Still, it couldn't happen to a nicer bunch of jerks.

So far, violating a commercial terms of service is a matter of civil law. The penalties are likely to be monetary damages, and the standard of judgment is "a preponderance of the evidence". If Facebook gets their way, it will be a criminal offense, where the standard of judgment is "beyond a reasonable doubt" and the cops can come to your door with hand cuffs.

The Electronic Frontier Foundation (EFF) notes on its blog:

In its suit against Power Ventures, Facebook claims that the tool violates criminal law because Facebook's terms of service ban users from accessing their information through "automated means."

Er, isn't using a computer "automated means"? What about using a Perl script and a cron job to update one's facebook account? How about using a front end for several social networking sites, like gwibber, found inter alia on Ubuntu 10.4 "good buddy"? Never mind that Facebook supplies a means of automating access through its API.

But that's a mere cavail. The EFF continues:

This is not an esoteric business issue, because the legal theories Facebook is pushing forward would make it a crime not to comply with terms of service.

The EEF's amicus brief in the case argues:

Amicus believes that merely providing a tool to assist an authorized user in accessing his or her own data in a novel manner cannot and should not form the basis for criminal liability. To hold otherwise, as Facebook urges this Court to do, will create a massive expansion of the scope of California criminal law, hinging liability on arbitrary and often confusing terms chosen by websites in the contracts of adhesion they present to users or in their cease and desist letters, thus giving these private parties immense power to decide when criminal liability attaches. This creates both legal uncertainty and the risk of capricious enforcement.

Exactly so.

Anyone can write a cease and desist letter. Sending one does not create any criminal liability. It is at most a threat to sue, i.e. a threat of civil action.

Facebook argues that it is criminal for Power to continue to scrape Facebook's web site because Facebook sent a cease and desist letter to Power. But it isn't Power using the "automated means" to access the user data, it is Power's end users. Has Facebook sent a cease and desist letter to Power's users? I suspect not.

Not that I need one, but this seems to me to be a sufficient reason to avoid using Facebook.

Thanks to WendyMcElroy.com for bringing this issue to my attention.