Walled gardens or open worlds? Virtual lives, real-world laws, and issues of control

Lilian EdwardsProfessor of Internet Law, University of SheffieldLiian.edwards@sheffield.ac.ukPangloss blog at http://blogscript.blogspot.com/

Where do we record our lives?Previously on Digital Lives..Historically mainly in text or images (by data subject and

others), more recently sound recording, film, video, phonecams, phone videos.. Preserved in libraries, museums and archives. Acquire economic value if related to fame or significance.

New digital media and fora evolve – emails, websites, texts

Much self-mapping of lives - cf pre digital diaries but more preservable and shareable - “web 2.0” – blogs, chatrooms, social networking sites (eg Facebook; MySpace; Bebo), virtual worlds (Second Life, MMORPGS like World of Warcraft, Lineage, hybrids like EVE Online.)

Preserved where? Will they become of economic/cultural significance? (Obama’s emails??) Already legally useful!

Putting your life on the line: two options

Second (much less popular option)

And another..

.. And another!

Does it make a difference?

FB, MySpace, Bebo and WoW are all “walled gardens” – proprietary areas guarded by need for acceptance of T&C (or “EULAs”) Economic model is “free” – ie making money by taking your

personal data and monetising it. Ads from third parties, served to users + data sold on to

marketers for use elsewhere, often via data mining/profiling Thus aim is to prevent you controlling your own data. Achieved by contractual consent obtained when signing in.

Live Journal and Second Life (and other places such as DeadJournal, Boing Boing’s own site, personal websites) are generally not subject to the same kind of conditions. “Open worlds”. Often open source code projects so code /data can be ported to other sites. Economic model usually some combo of subscription and ads. Often governance is more responsive to user wishes & rights.

A Love Letter By Robert Burns 1790's

Dear Madam,

The passion of love has need to be productive of much delight; as where it takes thorough possession of the man, it almost unfits him for anything else.

The lover who is certain of an equal return of affection, is surely the happiest of men; but he who is a prey to the horrors of anxiety and dreaded disappointment, is a being whose situation is by no means enviable.

Of this, my present experience gives me much proof.

To me, amusement seems impertinent, and business intrusion, while you alone engross every faculty of my mind.

May I request you to drop me a line, to inform me when I may wait upon you?

For pity's sake, do; and let me have it soon.

In the meantime allow me, in all the artless sincerity of truth, to assure you that I truly am,my dearest Madam, your ardent lover, and devoted humble servant

The digital culture land grab

No one reads terms & conditions, but…Already well known privacy and disclosure problems with

personal data on FB etcEg FB Privacy Policy (28 Nov 2008)

FB entitled to collect personal data you supply & combine it with other data

Info you provide can be given in aggregate to third party advertisers eg a film you like leads to an ad for more (but see recent work on de-anonymisation)

Using third party apps on FB invariably means delivering them full profile and contacts data, and FB have no responsibility for policing this

By default skeleton profile details made available to Google etc Not responsible for circumvention of any privacy settings or

security measures Privacy settings to control disclosure deliberately obscure

NB protections for privacy under EU data protection law all avoided by CONSENT required at entry – illusory?

The Facebook paradigm - content Ownership of content and contacts? (cf Pennwell case) Significance: family history; relationship networks; notes towards

work; love letters, characters/heroes developed in 2L/City of Heroes?

Economic model: keep the users in the walled garden, stop them leaving, stop transfer of control, protect FB against any liability for what users do

Terms of Use, 4 February 2009 “Except for User Content.. all materials on the FB service are the

property of FB”. Sounds good but – “You grant FB.. an irrevocable non exclusive perpetual license..

To use, copy, publish…retain, adapt, produce derivative works..”FB may at its sole discretion remove or censor any user-supplied

content (eg pix of breastfeeding mums, emails)Prohibited to transfer your profile (what if FB goes bust?)Prohibited to share password (what happens on

death/abandonment/disability?)FB can terminate your account “for any or no reason”

Bad results of closed paradigm?

Scoble (blogger) - screen scraper Facebook case – data portability.

Fan fiction blogs on LJ – unwarranted censorship?

US marine killed in action. (2004). Rights of heirs to access his emails?

Should law do anything?

Current legal protection largely negated by the forced giving of consent

User ignorance and apathy as to significance of consentLock-in effect – no one wants to leave where their friends

are => non competitive market on user rightsCausing trouble probably lead to account termination

BUTPositive desire to disclose data – it’s an SNS after all!

(covers privacy, but content ownership?)SNS business model usually involves monetising user

supplied data, in return for free services– no walled garden, no free service? (But WoW takes IP and still charges.)

Over regulation?

Practical solutions for preservation of our self-written digital lives in walled gardens? Death: leave an envelope of account logins, sites and passwords

alongside will. “Executry” - Contacting site admins to access site if no password

available cf clearing out bank accounts. Practice varies wildly – FB variously reported to take down on death within 30 days, or leave up indefinitely. LJ leaves indefinitely unless notified. Proof of death? Conflicts? Family may want site closed; boyfriend it kept as a memorial. DR procedures? Should this process be “legalised” – virtual probate?

“Inheritance” of textual assets. If account closed, everything vanishes (emails, notes, photos?) Code of Practice for cooling off periods. Some assets may be seen as dying with deceased yet have value – reputation /karma as on eBay.

Bankruptcy – many web 2.0 blog sites likely to go bust soon. Try to mirror or back up content? Will usually be against T & C.

What about when we have everyone life-logging? Will formats be “walled garden” depositories or self-archived open formats? (eg Stross’s “diamond”)