Law Librarian Blog

Big Bother Will Be Watching

That's not a typo in the title.  One of my regular topics for this blog is developments in privacy.  One thread is typically about how we are tracked via the Internet for the sake of providing us with targeted ads based on our interests.  Here’s an example.  I tend to read a lot of news about Windows 8 and the various kinds of hardware that runs it.  I also tend to see a lot of ads for the Microsoft Surface tablet.  Likely a lot of these displays are based on Microsoft buying a lot of ad space to promote the device.  I suspect, however, that I may see more Surface ads than the average person due to my reading habits.  There are efforts to create a standard for protecting consumers from tracking, but these are mired in disagreement.  See here and here, for example.

The only reason targeted behavioral advertising is possible is because the web is interactive.  Its very nature allows for bits and pieces of information to be transmitted and stored against profiles to provide this delightful service to advertisers.  Google at its heart is really an advertising agency with a very good search engine that helps drive its product.  Some media, such as television, do not have the built in advantage of interactivity.  At least not yet.

Enter Verizon with a patent application submitted on May 26, 2011 and published on November 29, 2012 titled Methods and Systems for Presenting an Advertisement Associated with an Ambient Action of a User.  It describes a system that includes a way to track immediate activity (the ambient stuff) by television users through cameras and microphones placed in the set-top box.  Commercial breaks on television programs would be based on the immediate activity that is detected.  Here are some selected descriptions and examples from the application:

3. The method of claim 1, wherein the ambient action comprises at least one of eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, and playing a musical instrument.

4. The method of claim 3, wherein the interaction between the user and [sic] the another user comprises at least one of cuddling, fighting, participating in a game or sporting event, and talking.

8. The method of claim 1, wherein the detecting comprises utilizing at least one of a gesture recognition technology, a profile recognition technology, a facial recognition technology, and a voice recognition technology.

10. The method of claim 1, further comprising: determining, by the media content presentation system, a mood of the user in accordance with the detected ambient action; wherein the selecting of the advertisement comprises selecting the advertisement based on the determined mood of the user.

11. The method of claim 1, further comprising identifying, by the media content presentation system, one or more physical attributes associated with the user.

14. The method of claim 1, wherein: the detecting of the ambient action comprises detecting at least one word spoken by the user; and the selected advertisement is associated with the at least one word spoken by the user.

20. The system of claim 19, wherein the detection facility is implemented by a detection device comprising at least one of a depth sensor, an image sensor, an audio sensor, and a thermal sensor.

[0016] To illustrate, an exemplary ambient action may include the user eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, playing a musical instrument, performing any other suitable action, and/or engaging in any other physical activity during the presentation of the media content. In certain examples, the ambient action may include an interaction by the user with another user (e.g., another user physically located in the same room as the user). To illustrate, the ambient action may include the user talking to, cuddling with, fighting with, wrestling with, playing a game with, competing with, and/or otherwise interacting with the other user. In further examples, the ambient action may include the user interacting with a separate media content access device (e.g., a media content access device separate from the media content access device presenting the media content). For example, the ambient action may include the user interacting with a mobile device (e.g., a mobile phone device, a tablet computer, a laptop computer, etc.) during the presentation of a media content program by a set-top box ("STB") device.

[0018] In certain examples, detection facility 104 may be configured to obtain data (e.g., image data, audio data, 3D spatial data, thermal image data, etc.) by way of a detection device. For example, detection facility 104 may be configured to utilize a detection device to receive an RGB video stream, a monochrome depth sensing video stream, and/or a multi-array audio stream representative of persons, objects, movements, gestures, and/or sounds from a detection zone associated with the detection device.

I can’t speak for others, but I don’t believe I would be interested in sharing personal details of my life with Verizon, from boring to intimate merely to get targeted advertising based on whatever I happened to be doing at the time.  Other articles on this development speculate on the types of ads that might pop up if the patent were implemented.  Some of them were pretty lurid or embarrassing.  I’ll leave it at that.

I realize that a patent does not mean the technology will ever be implemented, or if it is, what the terms of service will be.  Let’s say that this kind of capability does find its way into living rooms.  Will it be active only when the set-top box is on?  Consider that any profile it generates can be combined with other profiles to create super profiles no matter what media is involved.  Moreover, how is the information represented in these profiles?  Physical attributes?  Facial and voice recognition?  How would these characteristics be tracked over time?  And most importantly, who would have access to this information?  Would the government be able to subpoena collected information or even use the detectors as super wiretaps?  Data mining is already creepy.  It will take an exponential leap if this comes to pass.

 

[MG] 

Viacom Wins Appeal Against YouTube On Some DMCA Issues

This week seems to be one for interesting or important opinions from the Courts.  Today’s opinion comes from the Second Circuit Court of Appeals.  The initial case was brought in 2007 by Viacom and other plaintiffs claiming that YouTube both displayed infringing videos and encouraged their upload.  The District Court held completely for Google on all aspects of the case in interpreting the Digital Millennium Copyright Act’s safe harbor provisions.  The Court of Appeals for the Second Circuit partially overturns the victory Google received though it upheld much of the ruling as it applied safe harbor provisions to service providers.  Viacom sought a standard that required service providers such as YouTube to take affirmative action on infringing content in order to retain the safe harbor provisions.  The Court of Appeals did not go along with that.

As to knowledge of infringing items, the Court said that a service provider has to have actual knowledge of specific infringing items before it could lose the protection of the safe harbor provision.  Generalized knowledge is not enough.  The service provider otherwise would not know which links to remove under the terms of the DMCA.  From the opinion:

Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service  provider knows with particularity which items to remove.  Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to a generalized awareness of infringement.  Viacom Br. 33.  Such a view cannot be reconciled with the language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at issue.  17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added).

The Court drew a distinction between the provisions requiring actual knowledge with red flag knowledge.  The former is subjective, as in whether a service provider subjectively knew of specific infringement compared to the red flag standard which turns on whether the service provider was subjectively aware of facts that made infringement objectively obvious to a reasonable person.   

Viacom argued that Credit Suisse, Google’s financial adviser in the YouTube purchase estimated at the time, estimated that 60% of the YouTube content at the time was copyrighted content with only 10% licensed.  A YouTube employee survey similarly showed that 75-80% of YouTube streams contained copyrighted content.  This by itself does not raise a triable issue of fact.  However, emails cited by Viacom as to whether YouTube and Google employees had specific knowledge do raise a triable issue.  From the opinion:

Upon a review of the record, we are persuaded that the plaintiffs may have raised a material issue of fact regarding YouTube’s knowledge or awareness of specific instances of infringement.  The foregoing Premier League e-mails request the identification and removal of “clearly infringing, official broadcast footage.”  The March 2006 report indicates Karim’s awareness of specific clips that he perceived to be “blatantly illegal.”  Similarly, the Bud Light and space shuttle e-mails refer to particular clips in the context of correspondence about whether to remove infringing material from the website.  On these facts, a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent.  See § 512(c)(1)(A)(i)–(ii).  Accordingly, we hold that summary judgment to YouTube on all clips-in-suit, especially in the absence of  any detailed examination of the extensive record on summary judgment, was premature.

The Court goes on to say in a footnote that it expresses no opinion as to whether the facts it cited (the details of which appear in the section immediately preceding the quote) would withstand another motion for summary judgment.  The context of the facts are undeveloped and best addressed by a more developed record on remand.

Viacom further argued that YouTube was willfully blind to the existence of infringing material on its site.  The Court said that the willful blindness doctrine does not require a service provider to monitor the site content as the statutory safe harbor provision, by its terms, cannot be conditioned on an affirmative duty to monitor.  However, the doctrine may be used to demonstrate knowledge of specific instances of infringement under the DMCA on remand.  The Court said that the issue of whether YouTube or Google profited from the allegedly infringing videos is as well undeveloped.  The last issue the Court remanded to the District Court concerns whether the syndication function, that is the licensing to third parties, in within the terms of the DMCA.

As of now, the Court of Appeals is affirming the concept that service providers do not have to actively monitor their systems for infringing content.  The idea that service providers need to do monitor to qualify for a safe harbor provision was one of the central arguments that Viacom was making in this suit.  That the Court said no has to disappoint the company.  If I were Google, I would not be quaking in my boots over this one.  They may be found liable due to past practices, though not necessarily as a directed result from this opinion.  [MG]

Some Thoughts on Data Caps

AT&T announced yesterday that it would impose data caps on its home DSL subscribers.  Those who use its U-verse service would have a limit of 250 GB and those subscribers with simple DSL access would have a limit of 150 GB.  In a nod to customer care, AT&T stated it would charge  $10 per additional 50 GB only after three months of exceeding the cap.  The company intends to send out emails or other notifiers to customers informing them of their usage.  In contrast, Comcast has a cap of 250 GB, but also can deliver much higher connection speeds than DSL.  

It all sounds perfectly reasonable on its face.  After all, the company says, it will only affect about 2% of its subscriber base.  All right, what kind of usage would regularly fill up the tubes?  How about video and audio, and I'm not even thinking of the pirated kind.  The trend to moving to a streaming or cloud-based ecosystem will impact subscription costs in the long run.  Netflix is so convenient that it's being built into digital televisions and media players.  So much so that the business model likely drove Blockbuster into bankruptcy.  While it's not a great concern now, the more people rely on Netflix, YouTube, Hulu, and any other video on demand service, the more data they will consume, and the more charges they will rack up.  Oh, and did I mention that any competing video service from AT&T is exempt from the cap?  So, apparently, there is a consumer alternative when the same content is available from an AT&T source.

I'm not suggesting that anyone be outraged by this.  The recently enacted FCC rules on net neutrality do not explicitly forbid this development.  Data caps are content neutral, after all, and a network management device used to relieve system congestion, we're told.  But I wonder if the antitrust laws may spark an investigation or two.  Consider the noises the European Union is making over complaints that Google favors its own content over its competitors in search results.  Congress is getting involved as well with Senator Michael Lee (R-UT) calling for hearings on Google.  I would think that consumers would find it easier to abandon Google than it would be to ditch AT&T for another Internet service provider.  The choices are exactly what?  The cable alternative and wireless.  The latter is not a viable replacement for desktop service as the data caps imposed there from all providers are pretty severe for easy media consumption.

I don't know how this will all play out.  I see one company under fire for favoring its own, and another so far not so much.  Rep. Edward Markey is (predictably) critical, but he is part of the minority in the House, so don't expect much beyond talk.  Feel free to enjoy media, especially on the AT&T network.  It only adds to the bottom line.  Consumers, make your adjustments.  Marketers, start jumping on the bandwagon.  Welcome to the two tiered Internet they warned us about.    [MG]

Second Circuit Throws Out FCC Indecency Policy for Vagueness

The Second Circuit Court of Appeals tossed the FCC's indecency policy in issuing fines for fleeting expletives on Constitutional grounds.  The Supreme Court had originally upheld the policy but sent it back to the lower courts to consider the Constitutional issue.  The FCC had levied fines against Fox, CBS, and others starting in 2004 for objectional words that were used in live and generally unscripted broadcasts.  The enforcement and fines represented a change in how the FCC regulated offensive speech in broadcast media.

The Court noted that given what the FCC decided was indecent and what was not, the indecency policy was vague.  Beyond traditionally indecent words, broadcasters would not know what words were or were not usable in what context.  The opinion goes into some detail with examples.  Find them on page 23 of the opinion.  The FCC argued that the old standard, the seven words that can't be said was outdated.  From the opinion:

The FCC argues that a flexible standard is necessary precisely because the list was not effective – broadcasters simply found offensive ways of depicting sexual or excretory organs or activities without using any of the seven words. In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent. The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.

The reaction to the opinion was swift.  The FCC has issued the obligatory "we're reviewing the decision" statement.  The Parents Television Council, an organization that pushes many of the obscenity complaints to the FCC stated:

“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the ‘f-word’ at any time of the day, even in front of children.  The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people.  For parents and families around the country, this ruling is nothing less than a slap in their face. FCC Chairman Julius Genachowski and the Obama administration must immediately appeal,” said PTC President Tim Winter. 

Family Guy creator Seth McFarlane weighed in a while back when he broadcast the FCC song, which is rumored to be a favorite at the agency.  Note that Fox was not fined for that particular broadcast.  Expect an appeal.  [MG]

Fun Stuff About The Revolution and the 4th of July Holiday

On this Fourth of July weekend, here are some interesting holiday-related notes:

Slate announces the winners of its contest to rewrite the Declaration of Independence in a single tweet.  Read them here as hilarity ensues.  I doubt that NARA will preserve these in addition to the real thing.

The Library of Congress used hyperspectral imaging on Thomas Jefferson's rough draft of the Declaration of Independence to see what word appeared in a smudge that was a correction in the text.  It was "subjects," which was rejected in favor of the word "citizens."  The corrected sentence did not make it into the final version.  More on this is available from the LOC's press release.  Another online exhibit, Creating the United States, has a lot more on the history of the Declaration.  NARA has its own exhibit on the Declaration, here, including downloads of high resolution images.

The History Channel has its own exhibit covering Independence Day.  There are 12 videos and other factual information about the history of the holiday, the creation of the Declaration, and other aspects of the Revolution.  It's a nice change of pace from the Channels mania for aliens and apocalyptic predictions.  I would not have known that July 3rd marked the end of the Battle of Gettysburg in 1863 if I hadn't visited the page.  A high resolution copy of Lee's Battle Map is at NARA.

Not to be outdone, the Military Channel has its own features on the Revolution, and why July 2nd should be the real Independence Day.  Other fun facts include George Washington having lost more battles than he won, and the phrase "Keep me posted," comes from the revolution era.  [MG]