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Since the early days of the Internet, gripesites –websites set up to criticize powerful institutions and individuals – have become a mainstay of online communication.�� The Internet provides a lost-cost, readily accessible, global medium for those who seek to engage in such criticism.�� The importance of low-cost speech forums can hardly be over-stated.�� Particularly in countries where free speech is not constitutionally or governmentally guaranteed, the Internet provides a means for disgruntled and disenfranchised citizens to express their views often relying on the relative safety of an online cloak of anonymity.�� While it is possible for free Internet speech to be abused through fraud, defamation and deceit, overall the importance of free speech cannot be discounted.�� Generally, in a democratic society, it is better to encourage more speech, even if some of it is false and misleading, than to chill speech.

One of the key features of many gripesites is the use of a domain name that evokes or connotes the subject of the griping.�� An example might be “nikesucks.com” for a website criticizing the Nike Corporation.�� The domain name immediately labels the website as a gripesite by communicating to the audience that the subject of the griping is the Nike Corporation, and that something critical of the Nike Corporation is likely to be found on the website by the addition of the derogatory term “sucks”.�� There are many other ways to identify a gripesite, including relying on search engines to pick up website content about the subject matter.�� However, typically search engine algorithms will prioritize websites with domain names that are relevant to a search query, so domain names remain important even in the age of sophisticated search engines.

This article considers the relevance of domain names to gripesites, with particular emphasis on the impact of ICANN’s[2] new gTLD[3] process, unveiled in early 2012.�� It suggests that despite the importance of search engines as search tools to draw customers to gripesites, domain names nevertheless retain an important place in this context.�� The continuing importance of domain names for gripesites is evidenced by the fact that several applications were made to establish registries for proposed new “.sucks” and “.gripe” gTLDs in the first round of applications under the new gTLD process.

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In the Web 2.0 era, copyright law has become too blunt an instrument to deal with the intricacies necessary to balance the interests of multiple stakeholders in a copyrighted work.�� The relevant parties - often with diverse interests in a copyright work - include the original author/creator (such as a writer, poet, or songwriter), the commercial publishers or producers who may or may not be the same as the commercial distributors, and the recipients/audiences of the work.��

To make matters even more complex, Web 2.0 technologies - such as blogs, wikis and online social networks - enable the recipient/audience group to themselves become producers of derivative works based on the original more easily than ever before.�� Interactive and participatory technologies enable digital fan fiction collectives with associated blogs, multi-media mashups and remixes, and fan websites that involve user-generated content often in digital audio and video formats.�� While copyright law typically protects the interests of the commercial publishers, producers, and distributors, it does little to accommodate the interests of original creators and their fans in using the protected works.

As well as posing challenges for copyright law, participatory Web 2.0 cultures provide much anecdotal evidence as to how the underrepresented stakeholder groups feel about appropriate and inappropriate uses of copyrighted works.�� Many authors of popular fiction works maintain blogs where they actively engage in discussions with their fans about preferred uses of their works.�� Fans also maintain their own websites where they comment on ways in which they feel they should be allowed to use aspects of a copyrighted work, like publicity stills and news stories relating to the work.�� This anecdotal evidence from the blogosphere has been largely overlooked to date in debates about how copyright law might better reflect the realities of Web 2.0 cultures.�� Interestingly, many of the apparent norms developing in the blogosphere do contemplate reserving a space for authors, commercial publishers and distributors to make appropriate profits from copyrighted works, while reserving to fans the ability to comment on and build on those works in a non-commercial arena.

In a in the Maryland Law Review, I use several case studies related to the popular Twilight book and movie franchise as a lens through which to investigate the lessons digital copyright law might learn from emerging norms in the blogosphere.

The post Copyright’s Twilight Zone appeared first on IPOsgoode.

Last Thursday, IP Osgoode hosted Dr. Jacqueline Lipton, Professor of Law at Case Western Reserve University, to give a talk on privacy and the challenges of the new Web 2.0 culture.

Professor Lipton began her talk characterizing the differences between Web 1.0 and Web 2.0 and outlining the respective privacy concerns. In the early nineteen-nineties, the privacy concerns with Web 1.0 were limited to massive text-based aggregation of personal data. Despite attempts to make privacy laws technology neutral and broad enough to cover any new unanticipated privacy harm, early privacy laws, such as the E.U. Data Protection Directive, were still based on risks associated with text-based information.

Lipton emphasized that the paradigm reflected in the privacy laws of the Web 1.0 time period are consistent with the limits of the technology at that time. Most end-users accessed the Internet through low-bandwidth dial-up connections. A user’s Internet experience consisted of text with a few pictures, some real-time chatting, and an absence of audio and video content. The Internet was not ready for other forms of media-rich information, and the technology to harvest that type of information was not available. Home audio and video technology such as compression algorithms, digital cameras and digital video equipment were in their infancy.

Professor Lipton went on to discuss the transition to Web 2.0 in recent years and the new privacy concerns stating that there is an “increased potential for legally unclassified and unrecognized privacy harms in Web 2.0.” Though conceding “Web 2.0” to be a convenient, unconstrained term to help describe the internet in its current form, she did identify certain characteristics of a Web 2.0 culture that have an impact on privacy.

Web 2.0 has a participatory culture and convergence culture. There is many-to-many communication where users generate content in wikis, blogs, and online social networks. The line between consumers and producers has become blurred. The Internet has also converged with other institutions and media. Businesses crowd-source the political candidates use the internet as a , and traditional, one-way media (e.g. leverage the internet to allow their audience to participate.

Professor Lipton provided several anecdotes of recent cases that illustrate the inability of privacy laws to provide a remedy for Web 2.0 harms.

In Chang v. Virgin Mobile USA, a photo of a 15-year old girl from Dallas was posted on Flickr by her pastor. An ad agency in Australia found the photo on Flickr and, without permission, used it throughout Australia in a Virgin Mobile billboard advertisement campaign. Chang brought an action in the U.S. but a Texas court dismissed it on account that the harm occurred outside of the U.S.. Because of the differences in privacy laws, an action could not be brought in Australia effectively leaving Chang without a remedy.

In another case a high school student from Quebec, using school video equipment, videotaped himself wielding a golf ball retriever as a Star Wars light saber. Fellow students from his school found the video, encoded it and distributed it to the Internet through a P2P file sharing application. It is believed that as of 2006 the video has been viewed . It was reported that the "Star Wars kid" suffered significant psychological damage and was forced to quit school. A lawsuit was filed by the boy’s parents and a .

In an attempt to address the new privacy risks caused by Web 2.0, scholars have tried to develop a general theory of privacy. Some writers on privacy law, such as Professor Solove, have rejected the idea that privacy can be articulated clearly as a unitary concept with a uniform value. Professor Solove has instead turned to grouping privacy violations by the harms they cause. He has described his approach as a .

In her presentation, however, Professor Lipton emphasized the value of a meta-theory of privacy that looks at the issues from a higher level of abstraction. Such a meta-theory, she said, would need to map out privacy at its outer-limits. Professor Lipton’s map consists of six dimensions. The first four are what she calls the mechanics of privacy incursions. They are the actors / relationships, the conduct the actors undertake, the actors’ motivations for the conduct, the harms that result, and the remedies that should be pursued. The last two dimensions are information specific: what is the substance of the information, and what format is the information communicated in?

Professor Lipton focused the remainder of her talk on exploring these six dimensions of privacy.

1. Actors / Relationships
There may be different expectations of privacy depending on the relationship or actor. For example, the privacy expectations from government may be greater than from business which may be greater still than that expected from individuals. Even amongst members of a group there may be a spectrum of different privacy expectations. The privacy expectations of a friend may be less than the privacy expectations from an acquaintance, stranger, or “fan”. Similarly, the privacy expectations from Facebook may be different than those imposed on a financial institution.

2. Conduct
The conduct of actors is also a consideration. Are actors gathering data on an individual? Is information being? What information is being disseminated?

3. Motivation
An actor may have a number of motivations for disclosing private information. They may wish to inflict harm, increase profits, or seek election. Some motivations are innocent while others may be negligent. Some conduct may be motivated by public interest (such as politics) – which should be differentiated from conduct motivated by information that is simply interesting to the public (e.g. tabloid coverage of Hollywood stars).

4. Harms / remedies
Even if a motivation is innocent, harm can still result to an individual when private information is disclosed. The harm could be something tangible such as economic loss or refusal of health insurance, or something slightly less tangible such as shame, embarrassment, or ridicule. The harm could also be general in nature such as a culture of “unease”.�� Classifying the harms can facilitate identifying remedies and how the remedies can be achieved. Should remedies by compensatory or something else?�� Should remedies be sought through litigation, or some other process?

5. Substance of information
The substance of the information disclosed is also an important dimension as it factors directly into the harm. The spectrum of information ranges from innocuous personal details (such as a picture of an individual entering a store) to sensitive health, financial or criminal records.

6. Format of information
Professor Lipton’s final dimension is the format of the information that is disclosed. The harm caused by text-based information is different than that caused by audio, still image, video, or multi-media. For example, the harm that resulted from disclosure of the video of the Star Wars Kid would not have occurred had it not been a video. Another example Professor Lipton discussed was an image of a woman who refused to cleanup her dog’s business while on a Seoul subway car. Another passenger took pictures of the incident and posted the image on a popular Seoul website. Internet bloggers became a type of cyber-posse and within days the woman’s identity was revealed. Public humiliation escalated to the point that she was forced to quit her job. The detail rich,��imagery of a��picture��achieved what a text-based description could not.

As the U.S. continues its efforts to , and consumers seek to protect their amorphous privacy rights (), it is easy to see how a meta-theory of privacy, defining the boundaries of potential rights, would be a beneficial tool.

Full video coverage of Professor Lipton’s talk, including the questions and answer period, can be accessed on IP Osgoode's (along with Professor Lipton's powerpoint presentation).

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As Facebook welcomes its 200 millionth active user, now is a good time to consider some of the challenges posed to our society by the exponential rise of ubiquitous cellphone cameras and social networking websites, particularly with respect to personal privacy.�� The large scale peer-to-peer sharing of video and multi-media files on services like Facebook and YouTube creates challenges for privacy regulation that reach beyond the scope of current privacy laws.�� While existing privacy and data protection laws focus on unauthorized gathering and dissemination of personal data, they mainly focus on text records.�� They do not distinguish between harms arising from the unbridled collection, aggregation, and dissemination of, say, consumer spending profiles or health records in text format as compared with candid video and multi-media files capturing people's activities in their everyday lives.�� Today's "net generation" is growing up in a society where everything they do is fair game.�� Drunken parties, and intimate moments with partners may be captured on video and posted to YouTube for all to see.

Although it is not often articulated in case law or literature, harms caused to individuals by loss of privacy in relation to candid video files can be quite different in nature from harms that may be caused by unauthorized dealings with text-based personal profiles.�� Video-based harms may relate to general embarrassment or humiliation, loss of employment, general harm to reputation, or simply feeling constrained in life because of the awareness that everything we do might be captured on video and posted online for the world to see.�� Privacy law is not currently targeted at these kinds of harms, relying as it does on a clear public/private distinction, which is now breaking down in the online video context, and usually requiring a concrete showing of economic harm which is often absent in these kinds of situations.��

The four privacy torts in the United States, for example, deal with:�� offensive physical intrusion into another's seclusion; commercial appropriation of another's name or likeness; public disclosure of private facts if the disclosure would be highly offensive to the subject and is not of legitimate public concern; and, false light publicity.�� In the online social networking context, it is usually difficult, if not impossible, to establish the requisite degree of offense or intrusion when photographs and videos posted online are merely embarrassing or humiliating.�� Showing a picture of someone being unfaithful to their partner, or of drinking and smoking, or even simply being intimate with a good friend may well affect an individual's reputation.�� However, such images would unlikely rise to the level of offense or intrusion required for the privacy torts.�� Such images also would be unlikely to support a false light publicity claim.�� They would also generally not be distributed for commercial profits so would not support a misappropriation claim.�� Thus, there are few legal options for victims of unauthorized online disseminations of video and multi-media files depicting private moments.��

While there has been much academic debate in this new millennium about better protecting privacy in an increasingly online and global world, the discourse still tends to focus on issues such as protecting the privacy of text-based health or financial records in the hands of health care providers, financial institutions, and government agencies.�� Little attention has yet been paid to privacy problems arising from the exponentially growing popularity of online social networking, particularly with respect to video and multi-media files shared over such services.�� Now is the time to start thinking about protection of individual privacy from peer-based incursions into each other's lives.�� In a , I examine the gaps in the current legal system relating to online video privacy in the Facebook generation, and suggest the development of a multi-modal approach to online video privacy. ��This approach incorporates aspects of a number of regulatory modalities including legal rules, market forces, emerging social norms, system architecture, public education, and non-profit institutions.

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