Defamation on Twitter

It should be pretty straightforward. Telling people that someone is a thief, a drug-pushing prostitute with a history of assault and battery who lost custody of her own child. But this case involves two complicating factors.

  • The case involves celebrities. It’s Courtney Love making these claims about her designer Dawn Simorangkir.
  • She did it using Twitter

The Hollywood Reporter writes:

So on March 17, 2009, Love took to her Twitter account and began hurling a stream of shocking insults at the designer known as the “Boudoir Queen.” Love’s tweets, which instantly landed in the Twitter feeds of her 40,000 or so followers (and countless others via retweets), announced that Simorangkir was a drug-pushing prostitute with a history of assault and battery who lost custody of her own child and capitalized on Love’s fame before stealing from her. “She has received a VAST amount of money from me over 40,000 dollars and I do not make people famous and get raped TOO!” Love wrote.

That tirade, along with others the Hole frontwoman unleashed on social media platforms including MySpace and during the next four days, form the basis of a unique lawsuit headed to court in January: the first high-profile defamation trial over a celebrity’s comments on Twitter.

So now its off to court which will first look at the truth in Love’s claims – telling the truth is the best defence in defamation – then the court will value if Love’s statements are protected opinions and then they will see if the protections afforded to journalists may apply in the case of twitter users.

The court in the present case may firstly address whether these comments are truthful (which is the most obvious defense to a claim of defamation), are protected opinions of Ms. Love or rise to the level of defamation. Then the court may wade into the issue of whether Twitter users are bloggers with rights akin to journalists.

Apparently Love’s defence is also planning to include a medical expert to support the argument – if none of the other defences work – that she was not subjectively malicious: in other words she could not understand how her tweets would be understood by others.

The importance of not losing

Each time free copyright licenses such as the GPL or the suit of Creative Commons licenses go to court and win we confirm that the legal theory behind the licenses is correct. In a strange way the courts take the position that they agree with the practice of law and licensing being established in practice. Naturally they would not agree if the practices were totally outlandish so in actual fact what we have is the establishment of a school of thought – a consensus. Or what Ludwik Fleck called a thought collective. In the thought collective an idea is proposed and eventually gains momentum until it becomes an established norm.

This is what happens every time a free license is tested by the legal system.

This is because despite their theory and their use the free copyright license remains a different school of thought – a modification of the past thought collective of the established copyright regime. The problem is that often established regimes are seen as laws of nature. Permanent and everlasting. We know that copyright has not always been and does not always have to be – and yet many modifications are viewed with intense suspicion.

There is a snappy quote attributed to Henry Kissinger on the differences between conventional forces and guerrilla forces:  the guerrilla wins if he does not lose. The conventional army loses if it does not win.

So free copyright licenses win in court but in reality they do not lose. We know when we have established them as a conventional norm not only when they keep winning in court but when they fact that they lose a day in court they are still seen as viable, valuable and an ordinary part of the copyright ecosystem.

Parents not liable for childrens cyberbullying

Techdirt wrote about a cyberbullying case last year where a group of students in New York created a private Facebook group which was used to make fun of another student. This student filed suit against Facebook and the parents of the other bullying students. Techdirt writes that “the judge has now dismissed both claims, noting that while the Facebook comments were “puerile attempts by adolescents to outdo each other,” and while they displayed “an utter lack of taste and propriety, they do not constitute statements of fact,” even though they made some factually false assertions.”

(via ABA Journal) In a written opinion (PDF) provided by the New York Law Journal state supreme court judge in Nassau County granted a defense summary judgment motion, explaining that the statements at issue were not grounded in fact. The judge stated that:

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude
that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

They that do – rule! The actocracy as a form of governance

There is obviously no perfect form of power-system. At present we praise democracy as the ultimate form of government. The main reason for this is that we have moved from power in a small group (autocracy) to people rule (democracy). But is democracy really the ultimate form of group control? Obviously not. In many hierarchical organizations democracy is directly scorned. Simple examples are the military is an autocratic hierarchy and in operating theaters are dictatorships where the surgeon rules supreme.

Working in voluntary net-based organizations democracy is often seen as a viable alternative. Each member has the ability to discuss and participate. However in many of these groups it is increasingly difficult to gather “the people” and it can even be difficult to ascertain who the legitimate participants are. Even when all the right people are available online the medium itself often leads to endless mailing list discussions which, while promoting open debate can often prevent actual action.

Often in such groups the is an interesting practice which may be defined as an Actocracy. In an actocracy the person prepared to do the work actually steers the movement. In this situation work may be carried out. Naturally an actocracy is not necessarily fair in the democratic sense but as with other forms of government their are checks and balances.

Regulation by Norms: The no clapping rule

Since Lessig’s book The Code came out in 1999 the discussion of Internet regulation has been increasingly popular. Its not that Lessig started the field but by the popularity of his work he made it a topic worthy of discussion – and it shows not sign of stopping. Breifly stated Lessig’s point was that there are 4 things that regulate/control behavior: Law, markets, norms and architecture. Since the point of The Code was to argue that code is law Lessig focused on architecture. If we simplify the world we could argue that Tech lawyers tend focus on architecture, environmental lawyers look to markets and black letter lawyers focus on the law as a regulatory instrument.

Many of the reasons for focusing on a regulatory instrument are beyond the control of the individual author. For example Christina Olsen-Lund, a colleague of mine doing environmental law will be defending her doctoral thesis on emission trading. A riveting 700+ page analysis of market-based regulation.

But it is a shame that not many lawyers study norms. They are so interesting. However the use of norms are regulatory instruments are both vague and incredibly complex. Take for example the no clapping rule.

In a fascinating lecture Hold Your Applause: Inventing and Reinventing the Classical Concert held in March Alex Ross dissected parts of this rule and explains social regulation in concert halls. Ross expresses concern that the rule of not clapping during concerts is partly responsible for the making classical music less accessible to beginners.

The origins of the no-clapping rule stem from an idea that the music should be received on an intellectual as well as emotional level, for example on the premier of Parsifal in 1882

Wagner requested that there be no curtain calls after Act II, so as not to “impinge on the impression,” as Cosima Wagner wrote in her diary. But the audience misunderstood these remarks to mean that they shouldn’t applaud at all, and total silence greeted the final curtain.

Wagner had no idea if the audience liked his work and attempted to instruct them that applause was appreciated. But…

…Cosima writes: “After the first act there is a reverent silence, which has a pleasant effect. But when, after the second, the applauders are again hissed, it becomes embarrassing.” Two weeks later, he slipped into his box to watch the Flower Maidens scene. When it was over, he called out, “Bravo!”—and was hissed. Alarmingly, Wagnerians were taking Wagner more seriously than he took himself.

Wagner is not the originator of the no clapping rule but he was instrumental in provide the audience with a social standard which they gladly accepted and rigorously enforced. So much so that today attempts to applaud in the wrong place are still frowned upon:

Even worse, in my opinion, is the hushing of attempted applause. People who applaud in the “wrong place”— usually the right place, in terms of the composer’s intentions—are presumably not in the habit of attending concerts regularly. They may well be attending for the first time. Having been hissed at, they may never attend again. And let’s remember that shushing is itself noise.

The rule is not enforced by the divisions within the audience alone but also by the musicians:

At a performance of the Pathétique by the Sydney Symphony, in 2003, the conductor Alexander Lazarev became so irritated by his audience that he mockingly applauded back…Even if Lazarev’s tactic had succeeded, is “embarrassed silence” the right state of mind in which to listen to the final movement of the piece?

Here the regulation is created by etiquette, by an imagined idea of what is, and what is not, done. Too many of us are fearful of being seen as outsiders or frauds and undeserving of the perceived social standing attending these events entails. But my sympathies lie with Arthur Rubinstein: “It’s barbaric to tell people it is uncivilized to applaud something you like.” – wonderful sentiment and brilliant quotation.

The idea that there is a right way in which to listen to music is strange and that there is a duty of the audience to pay up and shut up is decidedly odd:

During the applause debates of the 1920s, Ossip Gabrilowitsch spoke approvingly of “those countries in the south of Europe where they shout when they are pleased; and when they are not, they hiss and throw potatoes.” He then said something that deserves to be underlined: “It is a mistake to think you have done your part when you buy your tickets.”

Another reason for my appreciation of Ross’ lecture is that my own attitude towards applause has shifted gradually over time. My concern about “fitting in” is no longer strong, at least not strong enough to curtail my enthusiasm. I applaud happily when an actor, lecturer or speaker makes a point I appreciate & occasionally when music takes me. But I dislike the ritual of applauding over several curtain calls simply because it is expected. Refusing to applaud is more honest – like refusing to leave an extravagant tip at a bad restaurant. 

In order to better understand regulation through norms we require more studies and better cases. The largest part of social regulation has little or nothing to do with the law and everything to do with social norms – it is surprising then that so little study is carried out on the topic.

Three-strikes law is misguided

The three strikes approach to internet-regulation is a misguided approach to the problem. Read David Canton‘s arguments on the topic:

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

Its here! FSCONS 2009

The greatest local event of the year is upon us. If you did not already know its time for the annual Free Software and Free Culture conference. The event is organised by two tireless friends of mine Jonas Öberg & Henrik Sandklef and this years FSCONS is an excellent example of why they really are the dynamic duo. The software and culture tracks appear in a nice mix (see schedule) and offer a wide range of intellectually challenging seminars and talks by pirates, politicians, aktivists, hackers, coders, geek girls, creators and the occasional academic.

My “must see” list is long but the highlights include: Edmund Harriss on Street Maths, Mikael Nordin on Cultural Transmission from an Archaeological Perspective, Christina Haralanova, on Free Software and Feminism & Christopher Kullenberg on Citizen’s Agenda: Net Neutrality, Surveillance and how to Re-build Politics

There will also be an event by the Julia Group (Tools for Determining Net Neutrality – An Activist Perspectve) the Nordic Free Software Award and lets not forget the social event of the year!

What can I say? its going to be a good weekend, so get over here and join in! There is always room for more Free Software/Free Culture nerds…

The UK goes for three strikes law

The UK is merrily going down the same yellow brick road as many other jurisdictions. This report is from Technollama:

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I told you so”, but I have been harping about three strikes for a while. The blogosphere is already replete with replies to the new development, so I will not add my voice to the overwhelming condemnation of this step by directing readers to ORG and PanGloss.

Us Now documentary

Us Now is a documentary film that explores the ways in which web2.0 technologies are changing the way in which we interact and thus changing the fundamental roots of society. It’s “A film project about the power of mass collaboration, government and the internet”.

In a world in which information is like air, what happens to power?
New technologies and a closely related culture of collaboration present radical new models of social organisation.

From what I have seen so far this is an insightful and interesting film which presents the viewer with many questions about our society. It is filled with interesting people and examples revealing interesting new social organizational forms and asking questions about the way which will could and should be governed in the future. There is an underlying demand for true participation in the ways we are governed.

The film is also released under the Creative Commons BY-SA license.

Here is a blurb from

Can we all govern? Us Now looks at how ‘user’ participation could transform the way that countries are governed. It tells the stories of the online networks whose radical self-organising structures threaten to change the fabric of government forever. Us Now follows the fate of Ebbsfleet United, a football club owned and run by its fans; Zopa, a bank in which everyone is the manager; and Couch Surfing, a vast online network whose members share their homes with strangers.

Check out the trailer:

Olympics threaten photographer

In what is an incredible attempt at Copyfraud and general corporate bullying the nasty International Olympic Committee once again attempts to use its power of intimidation to stamp on an individual photographer (via BoingBoing).

On August 12, 2008 Richard Giles posted the photo Beijing Olympics Water Cube below onto his flickr account under a Creative Commons BY-NC license.

The act of uploading a photo flickr is nothing in unusual since there are over 120 million Creative Commons licensed images on flickr.

So imagine his surprised when he received a letter dated 6 October 2009 from the International Olympic Committee (IOC) in Lausanne Switzerland. This became even better when he read on and saw it was a Cease & Desist letter. Here are some excerpts from the letter

[THE IOC] …has recently become aware that you are currently licensing pictures from the 2008 Beijing Games on you flickr account…

…when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of the entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

In addition, please be advised that the Olympic identifications such as the Olmpic rings, the emblems and mascots of the Olympic Games, the word “Olympic” and images of the Olympic Games belong to the IOC and cannot be used without its prior consent.

click to enlarge

Ignoring the whole issue of fair use the IOC has a very strange idea of what they are trying to protect and the methods with which they attempt to defend what they believe to be their rights.

First they argue that images can only be used privately and not be licensed. Displaying ones own images on flickr may not be exactly private but it is hardly a commercial activity. Also the fact that he licenses his photo’s under a Creative Commons license cannot be seen as a violation of “…does not include licensing of the pictures …” If he has copyright in the images his right to license them under a CC license cannot be limited.

The next problem occurs (well actually its probably the biggest problem) in the words “…when entering any Olympic venue…” and the problem is… the photograph was taken from outside the the venue.

UPDATE: So actually the IOC refers to all Richards photographs including those taken in the arena. The one’s taken in the arena make for a more complex legal discussion (the terms on the ticket and so on). But even here the main thing is that the IOC allows private use. Richards posting to flickr is included in such use. He is not commercializing his photographs he is displaying his life online.

The last issue is one of trademark. Trademark law naturally can prevent competitors from using others marks. But trademark law cannot be used to prevent a photographer from describing his photo as being from the Olympics. Neither can it, nor does it, prevent us from talking or writing about the Olympics – even without the IOC’s prior consent.

Searching Richards photostream with the search term Olympics gives 287 results. But if you do a general search on flickr you get 860 000 photographs that match the search term. There must be thousands more photographs with Olympic content but are not connected to the search term.  This is not an excuse or a defense but it does make me wonder what the IOC is going to do…