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The Indiana Law Library Blog

The Consequences of “Saying Cheese” – Instagram and Clickthrough Agreements

Instagram LogoFirst, there were “shrink wrap” contracts – contracts accompanying physical products, such as software, in which the consumer “agreed” to to the contract by breaking the shrink wrap.  In the digital age, we have become accustomed to “clickthrough” or “clickwrap” contracts – the user agreements requiring us to click OK in order to, say, download the latest version of iTunes.  (And let’s be honest here – just as with the shrink wrap contracts, not many of us can claim to carefully read these before clicking OK.)  In legal terms, these are considered contracts of adhesion, a “standardized contract form offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording consumer[s] realistic opportunity to bargain and under such conditions that consumer[s] cannot obtain [the] desired product or services except by acquiescing in form contract” (Black’s Law Dictionary, 6th ed.).  Due to the lack of bargaining power, courts may be lenient when it comes to particularly outrageous provisions in these contracts, but by and large they are not considered unconscionable.

To say these types of contracts are commonplace today would almost be an understatement – there are very few products you can download or internet services you can sign up for these days without encountering such an agreement.  However, as recent news reminds us, the savvy person will make an effort to know what s/he is signing up for.  This week, Instagram, a photo-sharing service that makes it simple to share photos taken with your phone, has come under a great deal of heat about the recent changes to its user agreement.  In particular, the following language has come under fire:

“Some or all of the Service may be supported by advertising revenue.  To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.”  Instagram Terms of Use – Rights, #2 – effective Jan. 16, 2013

This language is in contrast to the provision’s previous version:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.  The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.”  Instagram Terms of Use – Proprietary Rights in Content on Instagram, #2 – in effect until Jan. 16, 2013

Comparing the two provisions, they do not seem all that dissimilar.  Other provisions in both versions of the Terms of Use unequivocally state that ownership of the photos remains with the user.  However, the new provisions make clear that Instagram can financially profit from advertisers buying certain rights to your photos and information (such as username) to advertise their products.  While many Instagram users and news sources declare these changes to be an outrage and an invasion of privacy, others see it, as does Instagram, as the service’s move to be more fully functional within Facebook, which bought Instagram in September.  For example, with these new provisions, advertisers would be able to use your Instagram content to create ads for Facebook such as “6 of your Friends like this product.”  As anyone using Facebook knows, Facebook already does this; since Instagram is owned by Facebook, this change does not seem to be as great a shock.

What will be more interesting, perhaps, is to see how else the language of these new provisions can be interpreted.  Beyond Facebook advertising, what else might advertisers be able to do with your content?  Given the immediate backlash, will Instagram simply back off and retain its current Terms of Service instead?  With the story still in development, only time will tell.  If nothing else, this is a great example of the risks of clickthrough agreements and a lesson in safe consumerism.

Traveling for the Break

With finals just about over many of you are probably looking at getting out of town for the winter break.  For those of you who are flying, Legal Blog Watch from Law.com has some advice—a series of 27 volumes of Things You Can’t Do on a Plane.  Stay safe, have a wonderful holiday, and don’t do any of these things on planes!

We Want a Death Star!

The White House has created a means by which the American people can voice their concerns on any range of issues and urge POTUS to take action.  “We the People” is the site where you can create a petition or browse and sign other petitions.

According to the How & Why, “If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.”

I wonder what the official response might be to the petition urging construction of a Death Star.

As of this posting, the Death Star petition has received over 1,400 signatures.  This petition suggests that “[b]y focusing our defense resources into a space-superiority platform and weapon system such as a Death Star, the government can spur job creation in the fields of construction, engineering, space exploration, and more, and strengthen our national defense.”

Check out some of the other pending petitions, which include the following:

Cyber(law) Monday — it won’t cost you a cent!

You’ve already selected the obligatory new tie for Dad; used the discount code UGLYXMASSWEATER to buy Mom a festive holiday cardigan; and snagged the video game at the top of your sister’s wish list.  Now what should you do with the rest of your Cyber Monday?  Why not consider engaging in a bit of computer law research?

According to the Council on Research Excellence,  Americans spent an average of over 2 hours per day (142.8 minutes) parked in front of their computers as of 2009.  Technological advances and the increased importance of computing and the Internet in American society have created a burgeoning new legal field.  Per Black’s Law Dictionary, cyberlaw deals “…with the Internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interacting through computers.  [It] addresses issues of online speech and business that arise because of the nature of the medium, including intellectual property rights, free speech, privacy, e-commerce, and safety, as well as questions of jurisdiction.”

There are a number of online legal publications devoted to technology and intellectual property issues.  Among them, the Maurer School of Law’s IP Theory, which is available in our digital repository.  Other major law journal publications covering this topic include the Berkeley Technology Law Journal, Harvard’s Journal of Law & Technology, and Florida’s Journal of Technology Law & Policy.  In HeinOnline, you can search the Law Journal Library for topical articles in additional journals.  While you are there, be sure to search their new Intellectual Property Law Collection too.

Several of the law library’s electronic databases also contain cyberlaw material.  Bloomberg’s Technology and Internet Law practice page has a sizable amount of information, with an emphasis on current developments and news.  Lexis Advance’s Computer & Internet Law database can be selected (and searched) using the “Browse Topics” tab and contains a helpful breakdown of the major subtopics.

Another great place to conduct Internet law research is IUCAT.  Because cyberlaw is a loosely-defined area of law that is closely intertwined with several broad legal concepts, search term selection is particularly critical, whether you are searching the Internet or a library catalog.  Try using “cyberlaw” and its synonyms, such as “Internet law” or “virtual law” or “computer law”.  Additionally, it is a good practice to attempt searches combining the core subject term (i.e., “the Internet”) and any narrower terms applicable to your research interests (i.e., “privacy” or “intellectual property”).  The law library has several recent print publications on computer and technology law.  Books on this subject are classified beginning at KF390.5 and located on the 3rd floor.  Thumb through the volumes of  Law of the Internet (3rd edition), peruse Virtual Law, or scan Internet Law in a Nutshell (on reserve at the circulation desk).

For current awareness resources, look at the ABA Journal’s list of technology law-focused blogs and news sites, Science and Technology Law Blawgs, and any of the numerous institutes on technology and law: Berkeley Center for Law & Technology, Center for Innovation Law & Policy, and Stanford’s Center for Internet & Society, to name a few.  These organizations often host conferences and publish articles on Internet law and related topics.  GL&HF researching cyberlaw!

Managing Facebook in the Legal Profession

Today, CLE programs abound discussing the proper and ethical use of social media by attorneys.  In Facebook in One Hour for Lawyers (KF 320.I57 K46 2012), a recent addition to the law library’s collection, authors Dennis Kennedy and Allison C. Shields discuss both basic and advanced features of Facebook and how these can be employed in the legal profession.  No matter how long you’ve been using Facebook (or even if you’ve never used Facebook), this text offers excellent discussion of the ethical implications of your Facebook choices.  Unlike many resources that might tell you to delete your Facebook account before looking for jobs, this text enthusiastically encourages the use of Facebook by attorneys, but in a mindful manner.

The chapters are arranged as progressive lessons, walking the reader through the process of setting up a Facebook account, managing one’s privacy and security settings, and building a profile.  Each lesson offers practical advice about what one’s choices will mean in terms of who can view or otherwise access your profile.  At less than 200 pages, this book is brimming with useful information (and will probably in fact only take you, as the title suggests, about an hour to peruse).

The following are a few highlights from the book:

  • General Principles of Facebook use (pp. 28-29): When setting up your account, assume Facebook intends to share more than you might intend and consequently “assume more people can see your Facebook activities than you think.”  This means you need to go through each privacy and security setting, understand what each does, and set them according to your comfort level.  With the frequent changes that occur in Facebook, however, you cannot “set and forget” – it is important to check your settings from time to time.
  • Security (p. 32): Security settings are discussed at length, but one particularly good piece of advice was to turn on secure browsing for your Facebook account; this helps keep your account safe when using public WiFi.
  • Privacy (p. 35): We are most often told to delete our Facebook accounts because of foolish things we may have posted in the past that potential employers would still be able to see; however, as the authors point out, there is now a feature on Facebook that allows you to limit the audience for individual posts.  Essentially you can alter how your profile appears to different people (i.e. Friends versus Public).  You can see how your profile appears to these groups by using the “View As” feature on your profile.
  • Pages versus Profiles (beginning at p. 61): Lesson 4 discusses Facebook pages.  If your intent is to create a Facebook account for your firm rather than yourself, Facebook now asks that you create a page rather than a profile.  This lesson offers suggestions for this type of account.
  • Advanced Topics (beginning at p. 137): Perhaps most helpful in this book are the advanced topics located at the back.  Where the lessons focus on setting up and managing a Facebook account, the advanced topics focus more on ethical and legal implications of Facebook accounts.  These topics include “Ethics” (pp. 137-47), “Separating Your Personal from Your Professional Presence” (pp. 149-52), “Facebook Apps” (pp. 153-57), “Litigation and Discovery” (pp. 159-61), and some final “Tips” (pp. 163-69).

Even if you’ve been using Facebook since its inception, this book is worth a read.  There’s no denying that social media has made its way into the legal profession, but the choices made in one’s Facebook account can have serious ethical and legal implications.  This is certainly not the only resource available discussing these issues, but for a quick read on the subject, check it out.

And while you’re at it, “like” the law library on Facebook!  At the beginning of the year I set a challenge that we would give away a $25 Starbucks gift card once we reach 100 likes.  We’re getting closer, but we can’t give it away until we make that goal, so like us (and if you already have, tell a friend!).
Source: Dennis Kennedy & Allison C. Shields, Facebook in One Hour for Lawyers (2012).

Lawyers Behaving Badly

With the final Multistate Professional Responsibility Examination (MPRE) of the year looming on the horizon, ethics may be at the forefront of your mind.  While the MPRE tests for knowledge of the Model Codes for Professional Responsibility and Judicial conduct, as well as common law principles related to attorney discipline, there are guaranteed to be a nearly infinite number of ethical quandaries that won’t make it onto the exam.  Fortunately, there are resources available to help law students and practitioners navigate these issues.

First, always start with the rules governing professional responsibility.  It is sound advice to familiarize yourself with the Rules of Professional Conduct in your jurisdiction.  The current version of Indiana’s rules can be found on the judiciary’s website.  In addition, attorney disciplinary opinions are available online at the Indiana Judiciary website, with coverage from 2004 to present.  Periodically, the Indiana State Bar Association (ISBA) publishes ethical advisory opinions.  This ethical guidance can be retrieved through the ISBA’s website.  For coverage of other jurisdictions, Bloomberg BNA and the ABA collaborate to produce the Lawyers Manual on Professional Conduct.  This online resource can be accessed by selecting “BNA Premier” from the Online Resources menu and choosing the “ABA/BNA Lawyers’ Manual on Professional Conduct” from the BNA “All Resources” list.

Next, keep abreast of changes – in both the legal field and society at large.  The advent of the Information Age, and its resulting technological advances, has added another layer of complexity in legal ethics.  Electronic discovery methods, and even simple email correspondence, can imperil the otherwise well-intended attorney.  Res Gestae, the journal of the Indiana Bar Association, includes a column in each issue devoted to ethics called “Ethics Curbstone.”  The law library keeps recent issues of this publication in the reference collection behind the circulation desk, shelved in the final row closest to the computer bank.  Res Gestae is a great current awareness resource for ethical concerns that are emerging or otherwise newsworthy.

Finally, don’t be afraid to reach out to a friend or colleague.  In each state, there is help available to attorneys and judges struggling with mental health and substance issues.  In Indiana, the Judges and Lawyers Assistance Program (JLAP) provides a variety of services to members of the legal community trying to cope with these types of difficulties.

Remain informed by using the myriad resources and advice available concerning legal ethics.  Be diligent and thoughtful in your professional and personal conduct.  Take care of your mental and physical health.  Lastly, remember that when you are an attorney, or even an aspiring one, what happens in Vegas, doesn’t necessarily stay in Vegas.

Copyright Law in the Digital Age

The law library recently added the Hathi Trust Digital Library to our list of electronic resources.  The Hathi Trust is a cooperative digitization effort by many major research institutions, including Indiana University, with a goal of preserving and providing access to library collections in digital format for use now and in the future.  With so many institutions contributing, collections within the Hathi Trust are vast, including such subjects as nineteenth century German texts, eighteenth century cookbooks, and many historic government documents that can be difficult to locate, such as Patent Indexes going back to the 1800s.

With the natural (and sometimes unnatural) deterioration of print materials, being able to digitize these works helps to ensure their preservation and accessibility for the future.  However, for a little over a year the Hathi Trust has been involved in a copyright lawsuit by the Authors Guild for copyright infringement.  The Authors Guild claimed that creating digital copies of copyrighted works infringed the authors’ copyright, because no permission was sought from the copyright holders, and that such wide-scale distribution (as is afforded by digital access) overstepped the allowances provided for in the Copyright Act’s fair use provisions.

On Wednesday, however, the presiding judge in this case ruled in favor of the Hathi Trust, finding that fair use was met, both because the digitization process was sufficiently transformative (the digital versions of the works in the Hathi Trust are full-text searchable in the database) and because this process provides much-needed access for disabled students (who can now read the digitized works through the help of assistive software).

Copyright law originates in the U.S. Constitution, Article 1, Section 8, Clause 8, endowing Congress with the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The U.S. Copyright Act can be found in Title 17 of the U.S. Code.  For more information on U.S. copyright law, see this booklet from the U.S. Copyright Office.

If you’re interested in further research into copyright law, try searching the subject heading Copyright–United States in IUCAT, or browse the shelves around the KF 2994’s (second floor of the law library).

LawInfoChina upgrades Web Site

The Library subscribes to several databases of Chinese law. One of them is LawInfoChina, which is produced by the Peking University Legal Information Center. LawInfoChina  has  a variety of collections. Laws & Regulations contains laws, regulations, rules, judicial interpretations, local regulations and local rules in more than ninety subject areas. It includes all laws adopted by the National People’s Congress and the NPC Standing Committee and all regulations issued by the State Council from 1949 onward. Laws & Regulations also includes “important judicial interpretations that substantially influence legal practices and are recognized as an indispensable part of the original Chinese laws and regulations.” LawInfoChina includes a separate Case Law Database, which contains “typical judicial decisions approved and published by the Supreme People’s Court or the Supreme People’s Procuratorate.” These editorially enhanced cases are chosen “to reflect both current and predicted future trends in Chinese legal practice,” but the emphasis is on meeting the needs of companies doing business in China. Finally, there are both a Gazettes database (containing tables of contents of the official gazettes of various government agencies) and a database of Chinese Law Journals.

LawInfoChina has just updated it web site. It is now possible to search (or filter search results) by data facets, such as type of document, subject area, year of adoption, or any combination. The title/keyword search engine now also supports Boolean search syntax, allowing you to “and” and “or” search concepts, as well as search for phrases.

Of course, the single greatest value-added aspect of LawInfoChina is that all material is translated into English. However, those who speak or read Chinese should also keep in mind that the same platform supports a Chinese-language version of the database, ChinaLawInfo, which contains more material than its English-language counterpart. One nice feature is that it is possible to toggle back and forth between the two versions.

HeinOnline User Guides, Quick Reference Guides, and Other Training Materials

We all think of HeinOnline as a terrific source for PDF versions of law review articles. There’s good reason for this, since HeinOnline includes so many titles, and provides access to all of them all the way back to volume one. No other database provides PDF versions of so many articles, covering such a long period of time. Full Story »

We Have A Winner!

Last week I posted a blog entry offering a Starbucks gift card to the first student who could correctly answer several research questions using my new Foreign Law Basics research guide. And we have a winner! Charles Shaw, an associate on the Indiana Journal of Global Legal Studies,took the challenge and proved to himself how easy it is to do research when you use the correct sources. Congratulations, Charles!

If you haven’t noticed our new Research Guides web site, you should take a look. We already have eight new guides available, and many more are on the way. In fact, if you would like to see a research guide on a particular subject, please don’t hesitate to let us know!