Informationoverlord

Photojournalist Daniel Morel was surprised when he saw photos he had taken in Haiti – showing the devastation after the earthquake - appearing in various publications credited to Associated Press (AFP) and Lisandro Suero. He sent cease and desist letters asking the AFP and other to stop using his photographs without his permission. AFP claimed they ceased publication of the images but stated Morel continued to make unreasonable demands that amount to an ‘antagonistic assertion of rights’. AFP responded by filing a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement.

What happened?

According to Morel – a well know and award winning photographer, who amusingly previously worked for AFP for 14 years, up until 2004. - he had taken the photos and a friend advised him he coul get them ‘out there’ by uploading some of his photos and sharing them on Twitter using the TwitPic service. Suero, another ‘photographer’ copied the images to his own account and the licenced these to the AFP who in turn licenced them to Getty Images.

AFP – who don’t mention Suero at all in their declaratory judgment complaint - claim that it doesn’t matter if the photos are really Morels as it still had a right to use them as Twitter’s terms of service allow it to do so. It says this despite the fact that the photos were uploaded to Twitpic, which is actually a separate service, with its own terms of services – which state “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites All images uploaded are copyright © their respective owners.”- and it is also a separate company to Twitter [Indeed, nowhere in the complaint is Twitpic mentioned at all].

According the them Morel provided a nonexclusive licence to use his photographs when he posted them to the site. They also claim that by contacting AFP customers and asserting his copyright over the photos he has engaged in ‘unscrupulous business practices’.

AFP points out that Twitters terms stated that by posting photos to the service Morel was granting Twitter a ‘worldwide, non-exclusive, royalty-free licence, with the right to sub-licence others, to use, copy publish, display and distribute those photographs’

Indeed Twitters terms do say:
” By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

However, they also state: “You retain your rights to any Content you submit, post or display on or through the Services.” And they further clarify the above rights by adding ” This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.”

Now even if you accept the AFP’s position on the photos, the AFP did not licence the content from Twitter, and under their argument the non-exclusive, royalty-free license Morel was agreeing to was with Twitter, and therefore the rights to licence that content is theirs, and no-one elses. Nowhere in their terms does it grant other parties a exclusive, royalty-free license to re-use anything found on Twitter. They say:

“You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. “

Very clear that the content is only shared with companies that partner with Twitter, which as they don’t mention it in their pleadings, one concludes that the AFP obviously aren’t such a partner.

Not just satisfied with that AFP also want a finding of defamation against Morel due to his continued assertions that AFP acted without a licence and infringed his copyrights, which AFP proclaim were false or made “with reckless disregard of whether they were false”

As one might expect Mr Morel sees things a bit differently.

He claims when he posted the first pics on Twitpic he states received several requested for rights to buy/publish the images from the world’s media – including from AFP, who at the same time were in contact with Mr Suero about ‘his’ pictures, which when they couldn’t immediately get hold of Morel went ahead and download the photos from Mr Suero’s account – even though they could not get hold of him either. As Morel attests they did not seem to do anything to verify the authenticity of the imagery or the accuracy of the source.

Shortly after the AFP try to contact Morel again and realising the photos are his, arrange to get the photo credits changed – although evidence provide by Morel show that several of his images were still being distributed and reprinted with either ATP/Getty and or Suero’s name attached two months after ATP had claimed to have done this.

Morel claims AFP knew the images were his, continued to use and licence them for use by others and indeed encourage that use for their own benefit. He is asking the court to send the case to trial to let a jury hear his copyright claims against AFP, Getty and others.

I can’t see this going any other way than AFP et al settling this case out of court. If it goes to trial they’ll get a royal spanking from a jury

The wrappers came off Viacom’s and YouTube’s motions for summary judgment in their copyright infringement case. The motions made for interesting reading as both sides choose to selectively target the other in their arguments.

Viacom

Viacom told the court that it is only interested in infringement pre-May 2008 (the point at which YouTube deployed digital fingerprinting and filtered for Viacom, when the parties signed a content deal). Viacom is therefore saying that since they signed their deal with YouTube they are happy with YouTube’s current practices, as regards infringing copyright material, and therefore don’t believe it currently induces infringement.

Viacom’s argument is that it is clear that the YouTube founders: Chad Hurley, Steve Chen and Jawed Karim, made a deliberate decision in 2005 to build a business based on piracy. They cite emails exchanges between the founders admitting early on the site is full of copyrighted material but that they needed to keep it up on the site to build traffic. They pointed in particular to exchanges between Hurley, still YouTube’s CEO, and Karim. During discovered Hurley informed the prosecution that he had lost his entire email repository. When then presented with copies of those emails retrieved from Karim, which showed all three were aware that 80% of their hosted content was infringing copyrighted material and that they wanted to “concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics however evil”, Viacom claims Hurley developed “serial amnesia” about any of those conversations.

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

Next Viacom point to the fact that YouTube had the ability to deploy fingerprinting and filtering technology – they has a licence for Audible Magic from early 2006 – but either choose not to at all, or only agreed to do so with media organisation who agreed content licences with them. Viacom claims YouTube withheld applying these technologies to their content until May 2008 when the parties signed a content licencing agreement.

It continues to say that YouTube continued to be aware that much of the content on the site was infringing and yet took no action to do anything about it. They argue they could quite easily have removed obviously infringing material.

When it comes to the law, Viacom argues that as in Grokster, YouTube is guilty of inducement and is not entitled to any of the affirmative defences, available under s512(C) of the Digital Millenium Copyright Act (DMCA), to protect it from copyright infringement liability. In particular, it states that service providers will not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity.

Viacom contended that YouTube does not qualify for § 512(c) immunity because YouTube had actual knowledge and was aware of infringing activity on their site and did not act to stop it; it had the ability to control infringing activety and remove any content – as they do frequently with adult material - but chose not to; turned a blind eye to acts of infringement for the sake of profit from web traffic and ad revenues; and that it did not store video clips “at the direction of a user.”, as it actively creates “Flash-formatted” copies of video files uploaded by users and allows streaming of those clips, making it a direct infringer of copyright because its copyright infringement is not from web hosting but from broadcasting videos.
This final line of argument seems a little odd, as YouTube still creates version of uploaded conetnt in this way post May 2008 where Viacom apparently has no issues with the site.

Viacom also point to the fact that YouTube has signed licencing deals to distribute their service and the infringing content over third party platforms – such as the iPhone – an action that it clearly not storage, and so is not protected by DCMA.

YouTube

Google/YouTube, perhaps unsurprisingly, choose to ignore the sites beginnings and the initial days of the Google take over and instead concentrate on what the site has become. It argues that whilst it can’t control what its user upload it has taken numerous steps to keep illegal material off the site: it’s T&Cs; copyright tips; 10 minute limit; registered a DCMA agent; removes infringing materials as result of DCMA request; terminates and blocks accounts of users suspects of being repeat infringers; and employs team to help copyright owners remove unauthorised material.

YouTube states the problem with Viacom’s case is that the actual actions of Viacom undermine its own case. Firstly, it points to Viacom’s own failed attempt to buy YouTube in 2006. If Viacom saw it as a video Grokster, why did they want to buy it, and why were they already negotiating a possible content licencing agreement before Google acquired the site? It also states that it was Viacom, not YouTube that scuppered a deal between to two in 2007 by requesting more money than any other content partner– although YouTube are quiet on the allegation of withholding fingerprint technology for only those who signed content licencing deals.

It states that in February 2007 the two companies agreed that Viacom would present a super takedown notice. YouTube says that within 24 hours ‘virtually all’ the videos had been removed. The following month Viacom launch this legal action, demanding one billion dollars.

YouTube produced its own email evidence that from early 2006 onward Viacom employees and its agent BayTSP were actively uploading clips to the site, infact they even had a documented policy to ensure that some content stayed up on the site. In November 2006, just after Google took charge 316 infringing South Park clips were found on the site, and yet Viacom only requested the removal of one.

YouTube accuses Viacom of using stealth marketing to get fake accounts set up to promote uploaded viral videos from Viacom from the ‘grassroots’. A number of commentators have expressed the view that the FTC might be interested in this evidence.

In relation to the 63,497 clips in this case (which includes one from the FA Premier league of ONE second duration) YouTube stated most were the subject of DCMA notices and taken down in response. However, YouTube claims its discover in the case shows that many of these clips were posted at Viacom’s direction. This is an accusation that seems to have been backed up by Viacom twice having to ask the court to remove clips from the list - 241 clips in October 2009, after realizing that many had actually been uploaded by Viacom employees, and this week a further 6 clips that were mistakenly included back in October in addition to removing another 187 clips ‘ in order to streamline the issues in this case’.

YouTube argues that if Viacom is still only just discovering what was a legitimate authorised copy of its content in the site as opposed to an unauthorised one three years after starting the case how was YouTube supposed to identify this ‘obvious infringing activity’ within hours or days. Whilst the courts had found that service providers must remove material on their own where infringement would be apparent form a brief and casual viewing, YouTube argues that Viacom has shown that even it is incapable of doing this successfully. Additionally, if Viacom deliberately refrained from sending takedown notices for certain clips, how could YouTube be obligated to remove those same videos on sight.

YouTube also points to the recent decisions in cases featuring fellow video sharing site Veoh (v UMG and v Io Group) in which against UMG a request for summary judgment was refused and against lo Group the case was dismissed. In the Veoh case in particular the court agreed that the created on flash videos and associated actions by the site fell within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. YouTube argues it does the same, so should be equally protected.

Both motions make compelling reading when read alone. It seems likely however that both motions will be dismissed and the case will head to the courtroom.

Eric Goldman, Associate Professor of Law at Santa Clara University School, asks the interesting question. If Viacom is right that YouTube induced infringement in 2005-06, but doesn’t currently induces infringement (after all, Viacom isn’t contesting post-May 2008 activity) How the courts determine when YouTube flipped the switch from inducing to not? And does flipping the switch cure any of the past infringement, or does it only cut off future claims?

Keep watching this one.

An Italian court has found three executives guilty of breaching Italian privacy laws, in relation to a video clip posted on the Google Video site.

The case centred on a mobile video clip of an Italian child with Down’s syndrome being bullied and hit by four school boys, which was posted on Google Video in September 2006 (just as Google was buying YouTube) and removed by Google about a month later following complaints.
Italian prosecutors then decided to file charges against four Google executives: chief legal officer David Drummond, chief privacy officer Peter Fleischer, video executive Arvind Desikan (who was cleared of all charges), and chief financial officer George Reyes. The four were charged with criminal defamation and a failure to comply with the Italian privacy code.

Google denied the charges pointing out that they had taken down the video after being notified by the Italian police, and worked with the police to help identify the person responsible for uploading it (she was subsequently sentenced to 10 months community service), as were several other classmates who were also involved.

Despite this the Italian authorities still felt that it was Google who needed to pay for the ‘crime’. According to the court it was Google’s duty to ensure consent from the person(s) filmed had been obtained, a logic that would clearly end the functioning of just about every video and photosharing site on the web and mean that they and every social networking site, such as Facebook would need to vet EVERY item submitted by their users and individually clear or reject each time before allowing it on their sites. Google themselves commenting on the decision state:. “[If] sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.”

Google plans to appeal and continues to argue that the European E-Commerce Directive (implemented in Italy by Legislative Decree n. 70 (“D.Lgs. 70/2003” or “Decree”) ) provides them with safe habour protection.

Article 14 of the Directive provides –
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
1. the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information

The Directive and the Italian Legislative Decree also state that there is no general obligation to monitor the information which providers transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

One of the main questions in this case is whether or not Google Video was an ‘information society service.’ It would seem that the Court in this case has decided Google – thorough Google Video – was a content provider – no different from an online newspaper, for example, with direct responsibility for all content posted.

This is described in Article 1(2) of the Technical Standards and Regulations Directive (Directive 98/34/EC) as amended by Article 1(2)(a) of Directive 98/48/EC as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

But what does that include? According to the Council of Europe’s Convention on information and legal co-operation concerning “Information Society Services” This covers a wide range of on-line activities amongst which : on-line information services (newspapers, magazines, libraries, electronic databases, research engines etc.); electronic commerce; on-line agencies (of advertising, marketing, teleshopping, tourism, real estate, etc.); professional services provided by electronic means (by consultants, translators, designers, computer experts, etc.); on-line validation services (certification of electronic signatures, authentication, recording, dating, etc.); on-line services to consumers (interactive teleshopping, information on products and assets, purchase tests, research and evaluation of promotional offers); on-line tourist services (information; flight, train, hotel, car, show reservations; virtual visits to museums, monuments and sites); on-line entertainment services; new telecommunications services on demand (videoconference, Internet access, electronic mail, discussion forums), etc.

To most people it would frankly seem clear that Google was providing (in part) an “information society service” by offering Google Video; and that the service provided by Google Video certainly amounted to “hosting.” The question then would be if it had “actual knowledge” of this video – the Italian procesuters said it was top of the watched video’s list for a couple of weeks before the request was made to Google to remove it.

Indeed the prosecutors who brought the case we understandably delighted with the outcome “We are very satisfied because by means of this trial we have posed a serious problem: that is to say, the protection of human beings, which must prevail over corporate interests.” they said in a statement. A sentiment I’d certainly agree with if the decision actually did anything of the sort. Instead it made the rest of the world think Italy doesn’t understand how the internet works or the very basics of law. The guilty parties here were those who took part in, filmed and uploaded the video. They were dealt with - with the HELP of google. That should have been end of story.

If I was any operator of any sort of social network site in Italy now I would be serious considering blocking access to any Italian based users for fear that I could be next.

Google’s attempt to get in on the social media updating and sharing space continues to make news – not least of which a couple of lawsuits that accuse Google of serious privacy law breaches.

I personally really want to like Buzz, honest, I do. I can also see how it could become both good and useful. But so it is easy to look at the whole exercise as a lesson of how to really fuck something up. Then again this also maybe too simplistic a view. Around 32 million Gmail users got Buzz a couple of weeks ago and registered over 9 million Posts and Comments within its first couple of days according to Mashable. These are not numbers to be sniffed at. If it keeps up those kind of numbers then even the moans of the like of me and other ‘geeks’ won’t stop this from making a big splash.

But, I do have some further moans.

Profile: ‘ a concise biographical sketch’ (Merriam-Webster Online Dictionary)

Google has now added a tab within the Gmail settings where users can choose to not show Google Buzz in Gmail, not display those who they are following and those who are following them, and also an option to totally disable Buzz. Now this final option ” will disable Google Buzz in Gmail and delete your Google Profile and Buzz posts. It will also disconnect any connected sites and unfollow you from anyone that you are following.”

Yes, whilst you may have had a Google profile set up long before Buzz arrived – I did - they are now apparently as inseparable and IE and Microsoft’s OS’s of old. If you want to keep your profile, you have to keep Buzz. Wrong, Wrong, Wrong, Wrong, Wrong. Add to this the default view for anyone visiting your profile is now any ‘buzz’ content you may be sharing, not the ‘profile’ information (no choice in this – and we now know Google doesn’t really think about choice when it comes to Buzz).

Mobile Access

I can’t use the mobile version. Why? Mainly because every time I try and post and despite my clicking on ‘don’t allow’ when https// m.google.com asks that it ‘would like to use your location’ Buzz still insists on doing exactly that if I do post. This is despite it also saying ‘Location is not available’ when presenting me with the IU for posting an update.

Don’t get me wrong, I have nothing against location updates – great for when at restaurants, pubs, sights etc, and when the choice is mine, BAD when it is Google trying to tell people where I am when I have already said no, don’t and when it’s service itself has lead me to believe it is honouring that.

This is a shame as it is here when coupled with Google maps integration etc that this could be a really useful tool and a serious threat to the likes of Loopt and Four Square.

Turned off

Whilst I haven’t disabled it, I’ve turned off sharing everything in Buzz for now except for any status updates I may decide to make (such as one for this post). Those aside I don’t have enough levels of trust for the product or (simple) control over what I might wish to do with it to use it as is. Amongst friends, I don’t think I’m alone in coming to this conclusion. This may change. Google certainly has the ability and the people to make this work. But I go back to the fact that they bought a product that could have challenged Twitter, Jaiku, and instead of developing it, left it to rot. Buzz could seriously do with a bit more Jaiku in it frankly.

Oh Google. I really want to like Buzz, and if you’d have gone through your usual never ending beta stage we might have forgiven some of your howlers so far …

Google Reader Items

Now you can share and view these in Buzz - as you can within GReader - only with Buzz there is a difference.  Even if you are sharing with a private group - the names of people withi that group are available for anyone else in that group to see - if they have a google profile. All you need to do is click on ‘private’ next to the padlock and there you go - links to everyone in the ‘private’ group’s Buzz’s.

Now again, I’m sure Google don’t see this as a problem and most people sharing the items probably wont either, but again, it would be nice to be asked whether you want this information sharing and if you do that it should be you’re choice not the default to do it.

And so it came to pass that Google decided it wanted to be Friendfeed. Yes, the Gman has rolled out its attempt to get in on some Twitter/Friendfiend/Facebook Lifestreaming action. Are you excited? No, neither is anyone else really. We remember that Google bought Jaiku a few years back, sat on it, did nothing and then stopped supporting it and left it essentially to die. In case you don’t know, Jaiku was the first real challenger to Twitter – and, get this, it was BETTER. No, really, it was. When Google bought it I was one of a number of people who thought that they were going to wipe the floor with Twitter with it. Back then they could have done it, Twitter was still mostly free of celebs and indeed anyone other than web2.0 obsessive’s, but they did nothing.

Then last year Google’s Eric Smidt called Twitter a ‘Poor Man’s Email System’ as opposed one presumed to Google Wave which is a ‘er, sorry but no one is really sure what the hell this is actually for yet system’

The Good

If you already have a Google account and a Gmail account you’re probably going to be tempted to play with Buzz because it’s there, especially if a few of your Gmail friends also take the plunge. It seems to pick up comments made on shared items in Google Reader, which is good. (Not sure whether it does the same on non-google stuff such as Flickr photos though).

Problems

You need a gmail account / google profile to use it. Are any of my friend who are happy with their Yahoo, Hotmail/Live accounts going to switch to Gmail for this? No, they’re not. They have their email and they have Facebook, they don’t need Google Buzz, just like most of them didn’t need Yahoo Buzz when Yahoo tried to do the same trick last year.

It routes everything through your Gmail inbox and doesn’t ask you if you want it there or not. Guess what? I don’t. Thankfully google has already attached the lable ‘buzz’ to things so if you create a filter for content ‘label:buzz’ then all you need to do is look at your buzz icon to see if there are any updates. Much better, but this should be a default option Google.

It needs to support more services if it wants to be a lifestreaming hub.

Seemless

Google is really good at this … oh hang on, no, sorry, I meant awful at this. Let’s take google profiles – can you find yours? I use iGoogle/Gmail all the time and you get a selection of other Google products listed in the top left hand corner as well as a ‘more’ drop down. Is ‘profile’ anywhere to be seen? No. Why not? If my profile is so important, why is this not a fixed link in ANY google product I’m in?

There doesn’t seem to be an iGadget yet for iGoogle. Again, where’s the integration.

What it is really about

Mobile and advertising. Yes, it is really about getting you to login on the move and tell your friends (and Google) where you are. At last Google Latitude may have a purpose. This also pitches Buzz into Foursquare’s back yard. This location info will in turn be attractive to advertisers.

Does it Fly

Yes and No. As with Yahoo’s attempt last year, if you live your life in the email client then there is a good chance that you might find yourself using Buzz, even if you are only using it as a lifestreaming service. Are people, even Google geeks, going to abandon Twitter or Facebook for it, no. Could Google conceivably get them to use buzz to interact with those services – especially for status updates – absolutely.

The always insightful Eric Goldman comments on jurisdiction in a case between Daniel Miller, the creator of online flash game ‘Boomshine’ and Facebook. Miller – a Facebook user – has gone after Facebook - in addition to Yao Wei Yeo who he accuses of producing a game / Facebook app ChainRxn, that violates his “look and feel” copyright in Boomshine - for its role in providing access to the app.

Miller wanted the case heard in Georgia, the Court instead agreed to Facebook’s request that it be heard in California, as asserted under the terms and conditions of the Facebook user agreement.
As Goldman points out, what makes this interesting is that the Judge decided that Miller’s complaint about another app – which is nothing to do with his use of the service - is covered by Facebook’s general forum selection clause, which purports to govern “any dispute about or involving the Web site and/or the Service.” As Goldman says, “Read literally, this court seems to be saying that all 350M Facebook users are required to sue Facebook in Facebook’s home court for any claim they may have that relates to Facebook.com.”

Just read an interesting post by Bruce Schneier on his idea for a taxonomy of social networking data, which he sets out as follows:

1. Service data. Service data is the data you need to give to a social networking site in order to use it. It might include your legal name, your age, and your credit card number.
2. Disclosed data. This is what you post on your own pages: blog entries, photographs, messages, comments, and so on.
3. Entrusted data. This is what you post on other people’s pages. It’s basically the same stuff as disclosed data, but the difference is that you don’t have control over the data — someone else does.
4. Incidental data. Incidental data is data the other people post about you. Again, it’s basically same stuff as disclosed data, but the difference is that 1) you don’t have control over it, and 2) you didn’t create it in the first place.
5. Behavioural data. This is data that the site collects about your habits by recording what you do and who you do it with.

Interesting discussion in the comments (so yes, you should go and actually read the original post!) about whether Bruce’s taxonomy works - for example whether 2-4 are all Disclosed data subsets - 2. Disclosed data (controlled), 3. Disclosed data (entrusted), 4. Disclosed data (incidental); whether there should be an additional facet covering Crosslinked Data; and whether the term ‘ “Incidental Data” is obvious as a label or should be called something else.

Thanks to James Mullan and Headshift for bringing my attention to this must read post of Capgemini’s ‘Capping IT Off’ blog entitled ‘4 Myths about blocking Internet access in the enterprise’

The post echoes comments I made in my post from last week ‘Why ‘wasted time’ is wasted column inches’ about just why blocking access to and banning social networking and other sites from the workplace is counterproductive and, frankly, stupid.

Rick Mans’ 4 myths are:

His conclusion is simple - TALK with your employees. “You only block Internet access when you are afraid to talk with your employees about their behavior. Preventing behavior does not solve your problems, it will prevent them just for a short period of time.”

I could not agree more.

[What does make this amusing however is the number of comments on Rick’s post about Capgemini’s policies re internet access. Seems maybe they don’t share Rick’s approach on this one. Sort of, do as I say, not as I do].

I see this week it was that time of year when surveys or reports come out detailing how much the UK economy is effected by ‘wasted time’ in the workplace. Of course, there is always a scapegoat for this and the headline in the Daily Telegraph ‘Twitter ‘costs British economy £1.38bn’ tells you where the finger is pointing this year.

IT services and technology company, Morse, commissioned the survey (no doubt for the purpose of getting headlines and stories like the one above mentioning them) Indeed they actually said the true cost to the economy could be substantially higher than the £1.38bn estimate, due to the fact that the people they spoke to may have lied about their ‘time wasting’ (this maybe due to the fact that of the 1,460 workers polled 57% said they spent an average of 40 minutes a WEEK on social networking sites).

A couple of years ago we had a slew of similar articles, all with Facebook in the headline. That time it was a study from UK employment law firm Peninsula. They found that the time employees spend online on social networking sites, such as Facebook and MySpace was costing the economy more than £130 million per day.

All I can say is I hope none of these people smoke too. A London School of Economics report earlier this year said smokers are costing businesses £2.1 million a year in sickness and yet more ‘time-wasting’ cigarette breaks.

The Solution from the Dragon’s Den

Of course the problem with the whole idea of ‘time-wasting’ and articles talking about it, complete with pointing fingers is that they seem to exist in some kind of vacuum where it is reported as being a newand (of course) a bad thing. Morse are not to only people to be identifying the damage all this social networking and time-wasting is doing to the economy. Take this article by Theo Paphitis – from Dragon’s Den - in the Daily Mail last month, entitled ‘Why all bosses should do what I did and ban staff from Facebook’.

According to Theo ‘we have banned smoking in the office because it is bad for health and undermines the focus on work. All employers should be doing the same with frivolous networking on the net.’ [ I don’t know about you, but I have been guilty of some frivolous networking today]

Despite the article’s title he goes on to say that they didn’t ban Facebook or My Space outright but adopted a limited internet access policy ‘whereby employees were only able to visit certain sites which could be justified as useful for their work — such as business information or news services.’ The result ‘At a stroke, the creeping march of time-wasting came to a halt.’ [Wow, he’s good]

Theo is still a worried man though. He can see the future and the future’s Orange … O2, Vodafone, 3 etc . Yes, mobile. The solution ? Employers will have to institute ‘bans on the use of mobiles during working hours.’ This apparently is ‘only fair’ as ‘In the end, businesses and public services cannot survive if staff prefer to be socialising online rather than doing the job for which they are paid.’

Now, I’ve always quite liked Theo on Dragon’s Den, he is obviously a talented businessman. He is also apparently serious deluded if he believes that his suggestion is anything other than stupid, counterproductive and totally missing the point.

Neil Franklin, digital and social media advisor at the Department for Work and Pensions, cuts right to the chase when he said that employees who waste time on Facebook and other social networking sites have always wasted time. Social networks simply provide them with a new way of doing so.

You mean Twitter and Facebook didn’t invent time-wasting?

Yes, I know it seems hard to believe, but apparently workers were doing things that people classed as time-wasting before social networking sites. Let’s think back to when the internet and email started to be allowed into the workplace shall we. The FT reported on 21 May 2001 (Employer software will limit workers’ ‘e-breaks’) how employers were installing software to limit staff use of the internet ‘to crack down on time-wasting’. But, even further back in time than that, it was going on. No really, it was.

According to Norris Arthur Brisco ‘The Problem of preventing loafing or soldiering is a most serious one with every employer. The average workman is naturally inclined to take things easy and do the least amount of work necessary … soldiering is often deliberate as wasting time in order to make a job last’ He wrote this in 1913 in his book Economics of Business.

The reasons for not working flat out for the whole day may have been different – although ‘making the job last’ is by no means a practice that has disappeared – but workers have always ‘wasted-time’.

Is ‘non time-wasting’ a good goal?

Back in June 2001 the Daily Telegraph ran an article by Alison Eadie (’Even the sharpest minds need an occasional duvet day’ - Management matters - June 21, 2001 ) which commented on two recent studies one about the cost of people being off sick (whether real or otherwise) and one on time-wasting. She started totting up all the ‘lost money’ to the economy from this time off sick; playing solitaire on their PCs and surfing the internet for an hour each day; having fag breaks and tea and coffee breaks; going to the toilet; ‘water cooler’ type chats with colleagues etc. She concluded is was a wonder ‘UK plc is solvent’ (some today might question it is, of course)

What she concluded – correctly, in my opinion – is that ‘ Rather than telling us how many billions the economy is losing, these surveys show the pointlessness of worrying about every minute of the working day. We are supposed to be knowledge workers these days, not robots.’

She goes on to make a point I have made on this topic before, and one also picked up in an excellent article by Lisa Belkin in the New York Times from 2007 (’Time Wasted? Perhaps It’s Well Spent’, May 31, 2007) that we can’t maintain the same level of concentration at all times throughout the day -“The longer you work, the less efficient you are,” (Bob Kustka, Fusion Factor).

So, what is time-wasting?

The question is what constitutes wasted time, and whether you can apply one practice - for example accessing Twitter or Facebook - as wasting time for everyone that does so. I do not think you can. If I go back to Belkin, she hits the nail on the head when she says the problem is “what looks like wasting time from where you sit, could be a whirl of creative thought from where I sit”.

Her article also points to how many of us seem to be working longer hours, and how indeed for many of us the line between work and home has blurred. I work in a law firm where this is very clear. So the question then is, if I’m expected to work out of my contracted hours and check emails, answer calls etc, then it makes sense that at work I should be able to book my holiday, see what friends are up to on Facebook or Twitter and anything else the helps give a hint of the work/life balance we are all supposed to have.

Banning people from accessing things doesn’t work. There are companies and indeed some law firms that ban access (at work) to Facebook and Twitter etc – they probably were against the wheel when that first appeared too. It’s pointless. If you are wise you have a usage policy and you place your trust in your workforce not to abuse that trust. If they do you have a mechanism for warning them, listening to see if they have a justification for the alleged ‘abuse’ (i.e a proper appeal process) and eventually firing them if it is shown there was no justification and that those warnings were not heeded. It is always better to treat adults as adults rather than as children who can’t be trusted. If you don’t trust your employees, why should they invest their time in going that extra mile for you at work?

The only question to be asked in all of this is – Is the person doing their job? Is the work done, is the quality of a standard that is expected by your company, and the people you might work for? If the answer is yes, then maybe part of the reason for that is that some of that ‘wasted time’ has helped them to stay fresh, to be ‘happy’ in their work and to deliver that quality. Yes, I mentioned the ‘H’ word. I do so because the biggest threat to productivity is not staff members posting Tweets and updating their status’ on Facebook but is instead low staff morale, a lack of motivation, and a sense of not being (or feeling) valued by their employer. Many people work in companies and organisations who despite outward facing ‘we are one’ type values and proclamations have inward facing ‘us’ and ‘them’ hierarchies, they don’t make everyone feel part of the team and of the success’ of those teams. This breeds resentment, and a desire to actively waste time.

There is also a tendency – based on this trait – to see the kind of time-wasting we are talking about being levelled at people lower down the organisation chain. The further you go up the chain you soon identify another tried and trusted time-waster – meetings. Whilst many organisations are getting better at this and starting to use tools such as wikis and blogs to reduce the need for some meetings and to better focus the content of those that are still needed, meeting continue to be used by many as an excuse to avoid ‘real work’. How often are you in meetings where nothing is accomplished, where agendas are ignored or don’t exist or are meetings to discuss having another meeting?

How many people do you know who have meetings outside the office that ‘over-ran’ (usually via the shops).

Seriously, it is not a new phenomenon. Time wasting when it is being done in a manner that genuinely effects a person’s job performance, needs to be addressed. But this can be done in a grown up manner. We do not need to take a chain ‘em to the desk approach.

I’ll leave you with two final quotes: the first from Abigail Schoneboom, writing in Project Skive Background Paper: The History and Future of Skiving (November 21, 2004) and then Alison Eadie, and the final line of her article that could almost have been written with Theo Paphitis in mind.

“As the humane workplace reaches further into our lives, skiving is an important means of shielding our private and creative selves from its encroachments. Skiving does make work more fun and, arguably, is a compromise that absorbs our frustrations and prevents us from coming up with more radical challenges to the system. But skiving is also a quiet protest against the banality that underlies so much of white-collar work. And it expresses disdain for the interminable meetings, phone calls, and PowerPoint presentations that comprise our bloated workday.” (Abigail Schoneboom)

“Employers should put their stopwatches away and find something more useful to do. Who knows? It might add billions to the nation’s wealth.” (Alison Eadie)

Amen to that.