Business and work Legal People Television

Swooning over Louis CK content licensing

Louis CK has a new show which I have started watching, “Horace and Pete”. I love his licensing model for the show. You can stream it or download episodes once you have paid for them. HD or SD, your choice. He has a very simple license:

You can download the video here. Once you’ve got it, it’s yours to do with as you like: sync it to your Zune, stream it over wi-fi to your spouse, burn it to DVD, etc.

Sure, there is copyright law involved here with its presumptions but this is how content should be released. People should be able to pay a reasonable amount of money for content they want to watch or listen to. Then, once they have paid, they should be able to watch or listen to it on whichever device they want.

The only restriction should be not to re-sell or re-share it (well, unless the content creator decides to embrace Creative Commons licensing or something similarly permissive – which works too).

Instead the Entertainment Industry opted for a business model that just about discourages people from buying its products by using stupid geographical and format restrictions. Imagine if the industry gave everyone an easy option to buy and download whatever they wanted to watch or listen to and consume that on whichever device they wanted? Boy, if they did that, the industry may just thrive.

In the meantime, I’m a big fan of people like Louis CK who actively works to make it easier for people to buy their content.

Image credit: Pixabay

Legal Mobile Tech Telecoms

Unpacking MTN’s misleading “uncapped” data bundle

I just came across a bizarre story on EWN, “The terms of MTN’s uncapped data explained”, in which MTN’s Chief Customer Experience Officer, Eddie Moyce, explains MTN’s activation requirement for its time-based and misleading “uncapped” data bundle. Granted, I am not really familiar with MTN’s data bundles anymore but this sounds like a consumer trap. Here is the radio segment:

Terms of MTN uncapped data by Primedia Broadcasting

Basically, even though you have paid for the bundle, you still need to activate it by dialling a short-code which you receive by a SMS. If you don’t activate the bundle, you will use data at normal data rates and could wind up with a larger bill than you expected.

Two aspects of this story puzzle me:

1. Why offer this sort of “uncapped” bundle that the customer still needs to activate in order to use it, even after paying for it?

This is really misleading where most data bundles activate automatically when you have paid for them and the changes propagate across the network, don’t they?

It seems to me that MTN intentionally created this activation mechanism knowing that many customers won’t actually realise they need to do it and will wind up paying far more. I checked the terms and conditions that apply to this package (I think – the MTN site is not exactly designed to find information easily) and it says the following:

  1. Activation of the MTN 1 Day Uncapped Internet Bundles

5.1 Customers may purchase an MTN 1 Day Uncapped Internet Bundle by dialing 1412#.

5.2 Customers must activate the MTN 1 Day Uncapped Internet Bundle after purchase, by dialing 1415#. The MTN 1 Day Uncapped Internet Bundle does not automatically activate .

5.3 Customers may only activate the MTN 1 Day Uncapped Internet Bundle if they have sufficient airtime in their airtime account or using their usage limit (for My MTNChoice customers). This excludes MTN Loyalty 1–4–1 Loyalty Points and any promotional airtime.

Bear in mind that this seems to be a data bundle that is “valid for a period of 24 (twenty four) hours”, although only “after it is activated”. I also wonder how many people are aware of when the data bundle kicks in? How many people assume (and reasonably so) that the package kicks in automatically and they start using the data right away?

As far as the seemingly reasonable SMS from MTN with activation instructions goes, my experience handling mobile services complaints tells me that many people ignore SMS messages they receive for various reasons and may not notice the significance of an activation message until long after their bill has hit triple digits.

This activation mechanism looks a lot like the dodgy tactics mobile content providers used to use before they were banned: automatically subscribing consumers to expensive content (think R5 or R7 per day until cancelled) subscription services without clear double opt-in mechanisms and pricing information. Just because this is a major mobile network, doesn’t mean they should be allowed to use these deceptive tactics.

2. If the bundle is uncapped, why impose a “fair use value” cap of 150MB? That is tiny.

Then, to add to this, the notion that a bundle with a “fair use value” cap of 150MB is somehow an “uncapped” data bundle is ridiculous. That is a tiny amount of data when you consider that, as Eddie Moyce put it, people tend to buy these packages for specific reasons. One of those reasons would be that the customer needs to use a lot more data than his or her usual bundle allows (at least, cost effectively) in a short time period.

Here is an extract from the terms and conditions dealing with the “Fair Use Policy”:

9.1.4 Customers with an active MTN 1 Day Uncapped Internet Bundle shall be able to generate uncapped data usage, however, a fair use value/threshold as detailed in the table in clause 4 above will apply for the duration of the Validity Period.

9.1.5 Should the Customer exhaust the fair use value, as detailed in the table in clause 4 above, before the end of the Validity Period, the Customer’s data speeds will be reduced to 128kbps for the remainder of the Validity Period and the Fair Use Policy shall detailed in this clause 9 shall apply.

9.1.6 MTN further reserves the right to implement other measures and controls to ensure that the integrity of its systems is maintained, including but not limited to measures such as DPI (Deep Packet Inspection). DPI: allows MTN to monitor aspects including, but not limited to, non-compliance with its Fair Use Policy and restricted protocols, prevent attacks from computer viruses/worms and identify SPAM. Such usage may be blocked or re-routed; also allows MTN to throttle certain usage, such as peer to peer traffic; shall also allow MTN to prioritize/filter certain activities, such as VoIP traffic, over other activities which are burdensome on the MTN network (such as video streaming); in essence, this allows MTN to alleviate network congestion and improve service to all MTN customers.

9.1.7 This Fair Use Policy may be amended by MTN, whether by clarifying, modifying, adding to or deleting certain terms and conditions. This is subject to the Modification of Terms and Conditions, including notice being provided to you, as detailed in clause 16 below.

Not only does the available data speed slow to 128kbps when you hit that measly 150MB but MTN also imposes a series of restrictions on how you can use the data and when. The end result is that your “uncapped” data bundle is more like a “you can’t do much with this ISDN-like connection but thanks for paying anyway” bundle.

Oh, and the fact that MTN hides all these restrictions and qualifications in terms and conditions which few consumers will ever read, are couched in fairly dense language and presented in pale text on a white background that no-one over 45 can read without squinting says a lot too.

One more thing

Oh, by the way, this package isn’t available for “commercial use” so don’t think you are allowed to use this package to give your small business a little boost either:

9.2 The MTN 1 Day Uncapped Internet Bundles are intended for consumer use only. This means that the MTN 1 Day Uncapped Internet Bundles may not be used for commercial use (which includes, but is not limited to the intention of promoting, enabling, subscribing to, selling (directly or indirectly) the goods, services or image of any person pursuing a commercial, industrial, craft, religious, charitable or political activity or exercising a regulated profession).

9.3 The MTN 1 Day Uncapped Internet Bundles exclude use of the following services:

9.3.1 Least Call Routing (LCR);

9.3.2 Routing devices; and/or

9.3.3 Commercial use.

9.4 Use of the above services shall be deemed abuse and/or fraudulent use of the MTN 1 Day Uncapped Internet Bundles and shall entitle MTN to immediately suspend and/or deactivate the Customer’s access to the MTN 1 Day Uncapped Internet Bundles.

So if you are a small business owner and you happened to buy this bundle and use it as part of your business (you could have sent a data message to a client telling them about your services, for example), you would be committing a fraud in addition to breaching the terms and conditions of the bundle. Talk about hostile to small business!

Just more frustration

This was meant to be a quick post but the more I read the angrier I became. I’ve clearly been out of the country for too long and far too accustomed to my current mobile service which includes 5 000 minutes of calls, 5 000 SMS messages, 10GB of data a month and 500 minutes of calls to my family in SA (landlines in SA) for the equivalent of about R200 per month.

I’m sure the economics in SA are different to here in Israel but why couldn’t MTN offer a simpler option that just let’s people pay their R40 for either a fixed amount of data or a realistic “fair use value” cap? Drop this silly activation mechanism and the ridiculous fine print. In other words, give people what they think they are getting or, if that is more than you want to offer, offer them something you are comfortable with and that makes sense to consumers.

Featured image credit: Pixabay, released under a CC0 Dedication

Games Legal Writing

T&Cs don’t apply during a zombie apocalypse

Rian tweeted this last week and I meant to post it sooner. Amazon updated its Service Terms and included this odd exclusion to its “Acceptable Use” clause in the section dealing with its Lumberyard Materials service:

57.10 Acceptable Use; Safety-Critical Systems. Your use of the Lumberyard Materials must comply with the AWS Acceptable Use Policy. The Lumberyard Materials are not intended for use with life-critical or safety-critical systems, such as use in operation of medical equipment, automated transportation systems, autonomous vehicles, aircraft or air traffic control, nuclear facilities, manned spacecraft, or military use in connection with live combat. However, this restriction will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

I highlighted the relevant bit which basically means that the Acceptable Use restrictions don’t apply in the event of a zombie apocalypse. I hadn’t heard of Lumberyard before and I thought it might be a bit of a trojan inserted into the Service Terms to see if anyone was paying attention. It turns out to be a legitimate service:

Amazon Lumberyard is a free, cross-platform, 3D game engine that allows you to create the highest-quality games, connect your games to the vast compute and storage of the AWS cloud, and engage fans on Twitch. By starting game projects with Lumberyard, you can spend more of your time creating great gameplay and building communities of fans, and less time on the undifferentiated heavy lifting of building a game engine and managing server infrastructure.

Lumberyard includes everything a professional game developer would expect, from a full-featured editor, to native code performance and stunning visuals, and hundreds of other ready-to-use features like performant networking, character and animation editors, particle editor, UI editor, audio tools, and more. Additionally, Lumberyard unlocks huge scale with AWS and Twitch so that you can more easily build live multiplayer and community-driven games.

So, basically, if the zombie apocalypse breaks out and the Internet survives it, you can use Lumberyard Materials for a range of “life-critical or safety-critical systems” which may include autonomous drone strikes on large groups of zombies; securing nuclear facilities or travelling into space when it looks as if the Earth is lost.

Image credit: Zombie by Samantha Bennett, licensed CC BY-NC-ND 2.0


I blame the lawyers

This is pretty amusing although more the Ars article than the fact that the patent for online document sharing was actually granted to Xerox:

There are probably hundreds of pieces of prior art that could be found for an essentially simple idea. The one highlighted in Ranieri’s article, and pictured above, is a library circulation card. That’s a pretty old system of, well, sharing physical documents within a network.

I blame the lawyers.

Read the full Ars Technica titled “What’s stupid this month: Xerox patents sharing documents online

Business and work Legal Writing

You gave up your rights to your writing

So much for that portfolio

Obligatory disclaimer: even though I am a lawyer, this isn’t legal advice so don’t rely on it. I’m just sharing a few thoughts to spark an awareness of a legal challenge so verify with your lawyer.

This link bait-style title was inspired by a question a friend asked me recently about creating writing portfolios. We were discussing ways to create portfolios of our work which become dynamic collections showcasing our writing skill and I suggested trying Medium.

I’m a big fan of having your own site on your own domain so my starting point is usually creating your own blog at your domain (like mine). That said, for people who don’t have the inclination or patience to set up a site, a Medium profile can be a pretty easy way to create a portfolio and even gain a little attention in the process. I did something along these lines with Digital Stunt Factory.

Gone at the stroke of a pen

I suggested that he import his blog posts and articles from various sources into his Medium profile using the “Import story” feature. It got me thinking about the copyright implications of doing that so I did a little research. It turns out that, as an employee, you probably gave up your rights to your writing. Many employment contracts have clauses like this:

Employee acknowledges that any original works of authorship s/he creates, whether alone or jointly with others, within the scope and during the period of employment with Company, shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such work is not, by operation of law, a work made for hire, Employee hereby transfers and assigns to Company all his/her right, title and interest therein, up to and including copyright.

There is often another clause that deals with something called “moral rights” which the contract may require the employee to waive or otherwise give up.

For writers who put a huge amount of effort into their work and take pride in their literary brilliance, clauses like this are analogous to amputations and this is why:

  1. The “work made for hire” clause has the effect of saying that your brilliance which you create as an employee actually belongs to your employer and you don’t have any rights to it from the moment you start populating that blank screen.
  2. If your contract has a clause that requires you to waive your “moral rights”, that basically means you give up your right to be known as the author of your professional work.

The effect of these kinds of clauses is to take your work from you and create a fiction that you didn’t create it and a legal fact that you have no rights to do anything other than admire it from afar. When it comes to building a portfolio, it also means you can’t just add it to your portfolio website and point to it as proof of your creative genius.

In other words …

You didn’t write this, it isn’t yours, just keep working

There are other options for building your portfolio which could work. One option is to simply point to an author page of the company blog that lists your articles by author (if you have that option). You could create a collection of links to “your” articles and insinuate that you may be the author of those marvelous works.

The best way to avoid this situation is not to sign a contract that contains those legal scalpels. At the very least, hold on to your moral rights so you can publicly assert that you wrote those works.

Best case scenario: you negotiate clauses that give your employer co-ownership of your work (most employers would insist on this level of control) while retaining co-ownership yourself. That gives your employer the security of knowing it can do what they want with your work (because, after all, it is paying you to write that stuff) and you have the rights to do stuff with it all too, such as include it all in your portfolio.

Just something to consider. If your written art means something to you, that is.

This article was originally published on Medium on 2015-12-25 as “When you signed away your rights to your writing“.

When you signed away your rights to your writing

Books Education Legal

A great guide to GPL for WordPress developers

Richard Best has a terrific guide to GPL for WordPress developers along the lines of the famously simple “human readable” Creative Commons license explanations on his site, WP and Legal Stuff, in his post titled “A human readable summary of the GPL“. He actually has two versions, both of which are worth taking a look at. I like his version modelled on the CC license explanation format:

A human readable summary of the GPL by Richard Best

Best has also published “A Practical Guide to WordPress and GPL” and it is available in three packages. The top package is the “business package” which includes –

access to a terms of use builder through which you can build draft online terms of use for your WordPress commercial themes or plugins shop, with open and honest GPL licensing as well as protections for your business.

The terms of use builder isn’t exactly revolutionary but what I like about it is that it is designed for a specific niche: WordPress theme and plugin developers who license their products under GPL. Best also released a demonstration video which reveals a nice, clean interface and a great looking end result. You’ll have to view the video either in his blog post or the promo page for the ebook packages.

The standalone ebook option is a little pricey at $25 for the PDF but if you consider the cost of legal advice on the topic, it is probably worth it.

Image credit: Light Reading by Martin, licensed CC BY 2.0


No more Lords and Ladies in our Courts

The various superior courts issue Practice Directions from time to time to update lawyers on best practices in those courts. The President of the Supreme Court of Appeal issued Practice Directions in the last few days which included this change to how lawyers should address Supreme Court of Appeal judges:

The mode of address to the Bench in proceedings before this Court will no longer, in English, employ the expressions ‘My Lord’, My Lady’, ‘Your Lordship(s)’ or ‘Your Ladyship(s)’. Instead, the Bench will be addressed through the presiding Judge and be referred to as the ‘Court’. Where an individual member of the Bench is referred to this should be by using the Judge’s surname preceded by the word ‘Justice’.

This makes a lot of sense, of course. Our judges are not Lords and Ladies like many of their English counterparts (or so I would imagine) so addressing South African judges as “My Lord” or “My Lady” is fairly anachronistic. I wonder if this change is going to spread to the High Courts too?


If you want to see your lawyer cry …