1. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life what you don’t know can (and might) hurt you the legal issues associated with use of YouTube, MySpace and Second Life jessica coates, project manager, creative commons clinic

2. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life part of the Creative Commons international initiative CRICOS No. 00213J

3. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life part of the Creative Commons international initiative CRICOS No. 00213J same old issues

4. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life what's the difference?  you are (potentially) taking responsibility for third party content  This lessens your control, and raises your legal risk  The more interactive, the more risky:  Youtube – not much different from your own website  Myspace – a bit more risk, but easy to limit  Secondlife – most potential for change, therefore most risk

5. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life responsibility  government employees - when acting on behalf of government (eg in course of duties)  site users  posting material on government controlled space (eg comments, uploads, conversation)  government responsible because facilitating/endorsing legal breach  usually where has ability to control user actions – by moderating, removing material etc

6. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life governed by  Terms of use - contractual agreement with platform provider, ie:  Google, Inc (YouTube);  News Corp (MySpace); and  Linden Research, Inc (Second Life)  General law – legislation and common law

7. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life relationships among platform users platform providers+ platform members platform providers +platform visitors two or more platform members platform users + third parties

8. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life relationships among platform users platform providers+ platform members=TOU (+ law) platform providers +platform visitors =law (+TOU) two or more platform members=law (+ TOU) platform users + third parties=law

9. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life general law  Main areas of potential liability:  Copyright  Privacy  Defamation  Others: passing off; breach of confidence; discrimination (racial, religious, sexual, gender); obscenity and indecency; blasphemous libel; pornography; and sedition

10. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life platform terms of use  must agree to TOU to use platform – no negotiation  always highly in favour of platform user  Can be altered or added to – usually without notice  Jurisdiction = US  Click through or browse wrap - enforceability?

11. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life platform terms of use – common terms  limitation of platform provider’s liability  responsibility for uploaded content on the platform user – including indemnities  warranties that uploaded material does not breach third party legal rights  removal of content at sole discretion  termination of a user’s account for any or no reason  retain copyright, but automatic grant of licence to use material to platform provider – including promotional, sales etc

12. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life  least interactive – therefore least risky  not 'intended' for children under age of 13  liability may arise from user comments or reply videos – though these can be disabled

13. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life Youtube  Can use material for any purposes, at own discretion  Upon removal, licence terminates after 'commercially reasonable time' Members  Cannot use website for 'prohibited commercial uses' Users  can do anything within 'functionality' of site – but only for non- commercial purposes  can't download material without permission – but in practice simple to do

14. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life  Legal risks arise from user comments and possible endorsement of material – function can be disabled Myspace  licence over content only extends to use in relation to services Users  cannot use material in any way – no licence Members  Cannot solicit personal information from minors  Cannot provide links to external sites – though in practice not enforced  Cannot use site for any commercial purpose

15. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life  Most interactive, so most risk – more like real property Bad  Government could be liable for user uploads, comments, or even just conversations on 'land'  Copyright exists in all material, surfaces etc  Operates in real time, so much harder to monitor Good  Can put up notices and restrict access to 'private' spaces  Allows contracts between parties  All users must be members – so less contractual uncertainty

16. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life  TOU less biased than other platforms, more hands off Second Life  Has right to resolve disputes between members – generally doesn't  Can terminate account for any reason - in practice when breach community standards  Has broad licence to use material for promotional etc purposes Members  Must be 13 or older  Cannot remotely monitor or record conversations – so if want to moderate, must do so in person  Have access to built in copyright management tools

17. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life risk minimisation  published policies and procedures - for employees and others  prompt removal of illegal content – see ISP liability provisions for copyright material  managing webspaces to enforce policies – make sure person has sufficient expertise  disable higher-risk functions?  specific terms of use or code of conduct governing space?

18. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life to moderate or not to moderate?  More control = more responsibility = more liability  Balancing act:  close moderation - can backfire, making you more responsible for material uploaded by third parties - Napster  no moderation - run the risk of being held not to have taken all reasonable steps to prevent infringement etc – Kazaa  current wisdom - no moderation, but have policies to ensure swift removal of infringing material (technical tools also good if possible) - Youtube

19. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life proactive management of content  consider using licences to pro-actively manage content on website  Government Information Licensing Framework report – Queensland Spatial Information Council, October 2006  recommends uniform copyright management strategies, defaulting to open content licensing (eg Creative Commons)  pilot implementation currently being developed

20. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life conferences 2 nd International Summit on Access to Public Sector Information Brisbane – 4 March - www.datasmart.qld.gov.auwww.datasmart.qld.gov.au Canberra – 6 March - www.osdm.gov.auwww.osdm.gov.au Building an Australasian Commons 24 June – creativecommons.org.au Open Access and Research Conference 24-25 September - www.ip.qut.edu.auwww.ip.qut.edu.au

21. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life legal aspects of web 2.0 activities http://ip.qut.edu.au

22. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life make contact jessica coates project manager creative commons clinic queensland university of technology phone +61 7 3138 8301 mobile 0433328462 skype ccclinic email jessica@creativecommons.org.au web http://creativecommons.org.au

23. what you don’t know can (and will) hurt you: the legal risks associated with use of YouTube, MySpace and Second Life This presentation is licensed under a Creative Commons Attribution 2.5 Australia licence. For details of the terms of this licence, please see http://creativecommons.org/licenses/by/2.5/au