What's In A ... Face?

Much ado about...  faces is my takeaway from this week's legal (and copyleft activist) blogs. Not that "faces" equate to nothing. Far from it. And there's a lot of  facial violation going on.

Facebook is doing it. Amazon is doing it. Bad actors in the advertising world are doing it. EFF would like you to worry, and they may be correct (but never right!).

Electronic Freedom Foundation policy analyst Matthew Guariglia highlights how bad Amazon's Ring is, especially for passers-by whose faces are caught up by a Ring-using household's surveillance device and shared for all time with the police without their knowledge or consent and without a warrant or probable --or improbable-- cause.
https://www.eff.org/deeplinks/2019/11/five-senators-join-fight-learn-just-how-bad-ring-really

Nathan Sheard, also writing for the EFF,  has a follow up, calling for an About Face protest.
https://www.eff.org/deeplinks/2019/11/about-face-ending-government-use-face-surveillance

Legal blogger Sean C. Griffin, writing for Dykema-Gossett PLLC, discusses a class action lawsuit against Facebook's facial recognition technology, which matches up faces in their database with unidentified faces in uploaded photographs, and suggests "tags" to link the photograph to the person allegedly identified by Facebook as being in the photograph.
https://www.thefirewall-blog.com/2019/11/facebook-seeks-post-spokeo-review-of-biometric-privacy-class-action/

The question is, does a person need a concrete injury in order to sue Facebook?

Perhaps eventually, Facebook will misidentify someone in the background of an uploaded photo of what turns out to be a crime scene, and then the proverbial cat will be among the pigeons.

Meanwhile, the British grocery chain Tesco got itself into hot water when it relied on a Getty image license for a photograph of a celebrity.

Hallam Whitehead, writing for Virtuoso Legal, discusses the issues at stake when commercial use (as in advertising) is made of a celebrity's face without her knowledge or permission.
https://www.virtuosolegal.com/ip-insight-things-get-scary-for-tesco/

Authors who want a celebrity on their cover art need to obtain a model release from the model in addition to a copyright license from the photographer.

There have been advertising campaigns that have tried to "get around" the problem of a perfect but reluctant celebrity by using lookalikes.

Legal blogger Barry M. Benjamin, for Kilpatrick Townsend and Stockton LLP lays out  the issue of "false endorsements" and what can be done about it.

https://s3.amazonaws.com/documents.lexology.com/5294934f-5f6c-4a50-a40b-91407fd14f72.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1574613881&Signature=%2Bd891%2FmV5%2BEPeiBPRmHBDB86P0I%3D

or
https://www.lexology.com/library/detail.aspx?g=c29600ca-8ef8-4ff6-a678-5a5ccb95b6f0

Also, author Po Yi, blogging for Manatt Phelps and Phillips LLP describes what Sandra Bullock and Ellen DeGeneres are doing to fight the pernicious problem of  "Celebrity Endorsement Theft".

https://www.manatt.com/Insights/Newsletters/Advertising-Law/Bullock-DeGeneres-Fight-Celebrity-Endorsement

This may not seem like it would affect us, but if we were to come across a photograph of a major influencer reading a paper copy of one of our books, a temptation would arise, wouldn't it?  Get permission!

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

PS. For our European readers, please check your caches. The authors of this blog do not intentionally track you, but Amazon, Facebook, Google and many others do so.

Digital Theft Is Like Selfish Motoring. Really? (A Rant)

EFF compares the unlawful practice of reproducing and distributing copyrighted works in violation of the lawful rights of copyright owners (copyright infringement) to bad driving (a civil traffic infraction).

EFF also calls anyone who would protect and preserve their copyrights "a troll", but name-calling is not remarkable. It is a pity that digital theft of intellectual property is equated with selfish non-adherence to driving or parking rules.

They tell their followers "prevent copyright trolling: tell your Representatives that copyright claims can't be treated like traffic tickets."

Is that an accurate representation of the C.A.S.E. Act? How are traffic tickets treated?

https://www.wisemantriallaw.com/blog/2012/august/the-difference-between-a-civil-traffic-ticket-ci/

Wiseman Trial Law blog explains what happens to a person who commits a traffic offense and is spotted and stopped by an officer of the law. The driver either constructively admits guilt and pays a fine, or they go to district court to dispute the grounds for their "ticket".

If they are repeat offenders, what might have been a civil infraction for a first timer becomes a criminal felony, for example if they were driving (badly enough to be stopped) while knowing that their license to drive had been suspended.

Under current copyright law, the statutory penalty could be as much as a $150,000 fine per instance, but the copyright owner would have to identify the infringer and take him or her through a federal court case at enormous expense (estimated at around $350,000 for the copyright owner) and long term inconvenience for both.

If the C.A.S.E. Act becomes law, the fine for the infringer would be capped at $15,000. Is that comparable with traffic ticket fines?

EFF suggests that one individual Claims Officer would award damages, but the Act discusses a small claims court, with a Claims Board of three Claims Officers to hear both plaintiff and defendant.

One similarity might be the "three strikes" idea. With traffic tickets, if you get too many points on your license, at some point, your license is suspended. With the DMCA, in theory, repeat offenders are supposed to be banned from some internet access.  In practice, few platforms ban repeat offenders, and there are no measures to prevent banned individuals from rejoining with a new name and a new email address.

Keith Kupferschmidt blogs about the problem of the platforms whose business models reward their wilful blindness to the piracy from which they profit.
https://copyrightalliance.org/ca_post/more-monkey-business-at-the-copyright-office-dmca-roundtable/

There can be no working together as envisaged by the DMCA, when copyright owners know that works are widely pirated, and that take down notices are an endless, fruitless cycle of whack-a-mole, but the platforms insist that the take down system works perfectly.

In haste,

Rowena Cherry

EFF vs FBI

It may be cheaper to buy a new computer than to give your crook one to the Geek Squad!

https://www.eff.org/deeplinks/2017/02/FBI-tries-to-bypass-Fourth-Amendment-Safeguards-by-using-Geek-Squad

EFF would like to hear from anyone who had their computer serviced by Best Buy in Brooks, Kentucky, and who was subsequently prosecuted because of private information discovered by the Geek Squad on the computer and provided to the FBI.

From a sci-fi writing perspective, it would make sense for a rogue government to deliberately put out some kind of malware that would cause computer-users to have to take their devices to a repair shop such as Geek Squad.

This would result in warrentless searches of unlocked computers. It would be a brilliant solution to device-makers' refusals to create "backdoors".

There would have to be collateral damage to innocent internet users, so that the true targets would not be suspicious.  On the same principle, grannies and toddlers have to be patted down by the TSA, so that there is no appearance of improper "profiling" of persons (more) likely (than grannies) to cause problems on planes.

The government might prosecute persons found with certain kinds of porn on their pcs, but persons with seditious stuff might simply disappear.  Or, if the government had really clever malware, perhaps the malware would plant porn on infected computers, just like bad and inaccurate Hollywood movies show crooked crime scene investigators planting marijuana in places that they did not have probable cause to investigate.

Read the EFF article. https://www.eff.org/deeplinks/2017/02/FBI-tries-to-bypass-Fourth-Amendment-Safeguards-by-using-Geek-Squad by Stephanie Lacambra and Aaron Mackey. You may be inspired.

For stock tips, if such a thing were going on, it would be very good for the hardware sellers, and perhaps for landlines and broadband cable.

All the best,
Rowena Cherry