what you don’t know can (and will) hurt you: the legal risks associated with use of youtube,...
TRANSCRIPT
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
what you don’t know can(and might) hurt you
the legal issues associated with use of YouTube, MySpace and Second Life
jessica coates, project manager,creative commons clinic
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
part of the Creative Commons international initiativeCRICOS No. 00213J
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
part of the Creative Commons international initiativeCRICOS No. 00213J
same old issues
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
what's the difference?
you are (potentially) taking responsibility for third party content
This lessens your control, and raises your legal risk
The more interactive, the more risky:
Youtube – not much different from your own website
Myspace – a bit more risk, but easy to limit
Secondlife – most potential for change, therefore most risk
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
responsibility
government employees - when acting on behalf of government (eg in course of duties)
site users posting material on government controlled space
(eg comments, uploads, conversation) government responsible because
facilitating/endorsing legal breach usually where has ability to control user actions –
by moderating, removing material etc
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
governed by
Terms of use - contractual agreement with platform provider, ie: Google, Inc (YouTube); News Corp (MySpace); and Linden Research, Inc (Second Life)
General law – legislation and common law
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
relationships among platform users
platform providers + platform members
platform providers + platform visitors
two or more platform members
platform users + third parties
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
relationships among platform users
platform providers + platform members = TOU (+ law)
platform providers + platform visitors = law (+TOU)
two or more platform members = law (+ TOU)
platform users + third parties = law
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
general law
Main areas of potential liability:
Copyright
Privacy
Defamation
Others: passing off; breach of confidence; discrimination (racial, religious, sexual, gender); obscenity and indecency; blasphemous libel; pornography; and sedition
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
platform terms of use
must agree to TOU to use platform – no negotiation
always highly in favour of platform user
Can be altered or added to – usually without notice
Jurisdiction = US
Click through or browse wrap - enforceability?
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
platform terms of use – common terms
limitation of platform provider’s liability responsibility for uploaded content on the platform
user – including indemnities warranties that uploaded material does not breach
third party legal rights removal of content at sole discretion termination of a user’s account for any or no reason retain copyright, but automatic grant of licence to use
material to platform provider – including promotional, sales etc
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
least interactive – therefore least risky
not 'intended' for children under age of 13
liability may arise from user comments or reply videos – though these can be disabled
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
Youtube Can use material for any purposes, at own discretion Upon removal, licence terminates after 'commercially
reasonable time'
Members Cannot use website for 'prohibited commercial uses'
Users can do anything within 'functionality' of site – but only for non-
commercial purposes can't download material without permission – but in practice
simple to do
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
Legal risks arise from user comments and possible endorsement of material – function can be disabled
Myspace licence over content only extends to use in relation to services
Users cannot use material in any way – no licence
Members Cannot solicit personal information from minors Cannot provide links to external sites – though in practice not
enforced Cannot use site for any commercial purpose
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
Most interactive, so most risk – more like real property
Bad Government could be liable for user uploads, comments,
or even just conversations on 'land' Copyright exists in all material, surfaces etc Operates in real time, so much harder to monitor
Good Can put up notices and restrict access to 'private' spaces Allows contracts between parties All users must be members – so less contractual
uncertainty
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
TOU less biased than other platforms, more hands off
Second Life Has right to resolve disputes between members – generally doesn't Can terminate account for any reason - in practice when breach
community standards Has broad licence to use material for promotional etc purposes
Members Must be 13 or older Cannot remotely monitor or record conversations – so if want to
moderate, must do so in person Have access to built in copyright management tools
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
risk minimisation
published policies and procedures - for employees and others
prompt removal of illegal content – see ISP liability provisions for copyright material
managing webspaces to enforce policies – make sure person has sufficient expertise
disable higher-risk functions?
specific terms of use or code of conduct governing space?
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
to moderate or not to moderate?
More control = more responsibility = more liability Balancing act:
close moderation - can backfire, making you more responsible for material uploaded by third parties - Napster
no moderation - run the risk of being held not to have taken all reasonable steps to prevent infringement etc – Kazaa
current wisdom - no moderation, but have policies to ensure swift removal of infringing material (technical tools also good if possible) - Youtube
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
proactive management of content
consider using licences to pro-actively manage content on website
Government Information Licensing Framework report – Queensland Spatial Information Council, October 2006
recommends uniform copyright management strategies, defaulting to open content licensing (eg Creative Commons)
pilot implementation currently being developed
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
conferences
2nd International Summit on Access to Public Sector Information
Brisbane – 4 March - www.datasmart.qld.gov.au
Canberra – 6 March - www.osdm.gov.au
Building an Australasian Commons
24 June – creativecommons.org.au
Open Access and Research Conference
24-25 September - www.ip.qut.edu.au
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
legal aspects of web 2.0 activities
http://ip.qut.edu.au
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
make contact
jessica coatesproject manager
creative commons clinic
queensland university of technology
phone +61 7 3138 8301
mobile 0433328462
skype ccclinic
email [email protected]
web http://creativecommons.org.au
what you don’t know can (and will) hurt you:the legal risks associated with use of YouTube, MySpace and
Second Life
This presentation is licensed under a Creative Commons Attribution 2.5 Australia licence.
For details of the terms of this licence, please see http://creativecommons.org/licenses/by/2.5/au