Legal and Ethical Issues Associated with Sensor and Drone Journalism

On March 18th, the Columbia Journalism School hosted a group of academics, lawyers, journalists and makers who gathered for a workshop on the legal and ethical issues associated with sensor journalism. The event was organized by Fergus Pitt, a Fellow at the Tow Center for Digital Journalism working on the Sensor Newsroom Project funded by the Tow Foundation and the Knight Foundation.

Workshop participants covered a wide range of topics including privacy, data accuracy and intellectual property. I participated in two panels: the first featured a discussion on regulatory and intellectual property issues with Mike Hord, Electrical Engineer at SparkFun Electronics and Matthew Schroyer, Founder and President of the Professional Society of Drone Journalists; and the second featured a discussion with Deirdre Sullivan, Senior Counsel at the New York Times on risks and liabilities associated with drones.

Mike Hord led an interesting discussion on the Federal Communications Commission (FCC) rules governing the electromagnetic spectrum. While commercial entities face stringent testing requirements for electronic devices, the good news for hobbyists is that the rules permit individuals to use a single design to build up to five electronic devices without having to complete any testing. However, even though testing may not be required in these cases, individuals must comply with all applicable rules. For instance, if a device causes unacceptable interference, the user may still face legal penalties.         

Matthew Schroyer explored closed and open source models in the context of sensor journalism. Media companies that develop closed technologies can benefit from clear revenue streams from licensing activities. Although newsroom technologies remain predominantly closed, journalists are increasingly adopting open source tools. The open source model presents many advantages to journalists, for instance it promotes transparency and accountability, which are particularly important in the context of sensor journalism investigations in which accuracy and precision are critical.

Deirdre Sullivan and I explored the risks and liabilities that media companies and journalists face when developing and operating drones, an obvious concern being the risk of physical injury or substantial property damage.

Deirdre approached these concerns from a negligence perspective. Tort liability for negligence can be applied where an individual has a duty, the duty is breached and injury results. A journalist operating a drone has a duty to not place others in foreseeable risks. If the journalist breaches this duty – for example, by flying dangerously close to a crowd at an outdoor concert – and someone is injured, then it is likely that a negligence claim would succeed. Deirdre also explored the potential application of negligence per se in the context of commercial use of drones. Generally, when an action violates a statute (i.e. speeding), such action conclusively establishes negligence, hence the term negligence per se. Since commercial drone operations currently fall in a legal grey area, Deirdre suggests that it is unclear whether negligence would be presumed in personal injury claims arising in the context of commercial drone operations.

I explored the application of product liability concepts to open and closed drones, and suggested that liability is more straightforward in the context of closed drones. For example, a closed drone may be built with safety features such as ‘sense and avoid’ technology to reduce the risk of collision. If these features do not function, then the developer may be held liable for personal injury or property damage. However, if a journalist operator modifies a drone in violation of the end-user license, then the developer could avoid liability by claiming alteration as a defense, and the operator is likely to be on the hook for personal injury or property damage that occurs.  

In the case of open drones, liability is more problematic. Assume a journalist operator modifies a ‘sense and avoid’ radar and adds communication and weather modes. If the revamped drone crashed into a person, causing bodily injury, who would be liable? A court would have to engage in a complicated analysis to determine whether the underlying technology or the modified upgrade is to blame. And, the initial developer of the open ‘sense and avoid’ radar would not be able to avoid liability by simply claiming alteration as a defense.

Although open technologies may be more problematic than closed designs from a liability perspective, industry measures may be adopted to mitigate liability risks. Developers of open technologies can look to licensing as a mechanism to allocate liability and promote non-harmful and ethical use of their technologies. For example, a sufficiently and selectively open license may be used to prohibit end-users from removing safety or privacy features incorporated by upstream developers.

For those interested in further reading, the workshop papers will be published in June by Columbia University.

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Video of my presentation at Stanford Law, “A Licensing Approach to Regulation of Open Robotics”

Video of my paper presentation at the We Robot 2013 conference at Stanford Law School, commented on by cyberlaw expert, Professor Michael Froomkin.

“A Licensing Approach to Regulation of Open Robotics”

On April 8th, I had the opportunity to present my paper, A Licensing Approach to Regulation of Open Robotics at the We Robot Conference at Stanford Law School.  The paper was commented on by cyberlaw expert, Professor Michael Froomkin.  The following is a brief introduction to my proposal.

My paper argues that openness is normally associated with increased innovation.  However, in the case of robotics, open architecture can have an inverse effect by creating a disincentive for manufacturers to develop open systems. The singular preoccupation of open source – as we currently understand it – with software freedom, presents a barrier for manufacturers seeking to restrict or foresee harmful or unethical applications by downstream channels.

What I propose is the development of a new licensing model that promotes “sufficient and selective openness” as a means to regulate open robotics.  The Ethical Robot License (a work in progress that I designed as part of the paper) seeks to temper the inconsistent goals of attaining total software freedom, and promotion of ethical and non-harmful use of robots, by imposing selective obligations and restrictions on downstream applications.  Violation of license terms renders downstream parties liable to upstream channels for breach of contract and intellectual property infringement.

Photographer prevails in copyright dispute regarding ownership of content posted on Twitter

Earlier this month, a New York District Judge rendered a summary judgment in Agence France-Presse (AFP) v Daniel Morel, finding that both AFP and The Washington Post infringed Morel’s copyright by using photos Morel posted on Twitter without his permission.  The images under dispute were taken by Morel in the aftermath of the Haiti earthquake.  Within minutes after Morel uploaded the images to Twitter, Lisandro Suero copied and tweeted them claiming that he was the exclusive copyright owner.  AFP acquired the images from Suero and licensed them to Getty Images.  The photos were widely distributed through various news outlets including The Washington Post.  When alerted of the copyright violation by Morel’s counsel, AFP sought a declaration that it did not infringe Morel’s copyright.   Morel responded with a counter-suit alleging that the news outlets violated his copyright.

What is interesting about this case is that both AFP and Morel relied on Twitter’s terms of service to substantiate their positions.  In the case of AFP, it argued that Twitter’s terms operated as a license granting AFP (as a Twitter user) the right to use content uploaded by other users.  This argument relies on a portion of Twitter’s terms which states that Twitter “encourage[s] and permit[s] broad re-use of content.”  Morel also appealed to Twitter’s terms to argue that he retained copyright in his images.  The relevant provision states: “You retain your rights to any Content you submit, post or display on or through the Services.”  The Judge sided with Morel, finding that Twitter’s terms of service do not “clearly confer a right on other users to re-use copyrighted postings.”  The only license to user content is granted in favor of Twitter and its partners.

The debate over ownership in content uploaded to social media sites has similarities with the early infringement lawsuits involving open source software.  In the open source context, infringing parties similarly argued that once content was made available under open source licenses, it was effectively ceded to the public domain.  In those early cases, courts had to clarify that making software available under an open source license does not amount to a waiver of exclusive copyright.  Just as Jacobsen v Katzer and other early open source infringement rulings established that open source software is not a free-for-all, AFP v Morel serves as a critical decision putting commercial entities on notice that their use of content uploaded to social media sites must be consistent with the rights and limitations set out in the terms of service.