10 Days Into Developing a Trademark Policy Through a Public Discussion

As I wrote in my last blog post, we’ve been preparing a new policy for the Wikimedia trademarks. Unlike how other organizations normally prepare legal documents, this policy is developed in public with direct input from Wikimedians across the world. The first step in this process was to solicit comments on how our trademark policy should be revised and prepare a draft based on that input. Next, the draft was posted on Wikimedia Meta-Wiki for review and feedback from the Wikimedia community. There is a lot of organization to maintain a productive online discussion around a legal policy with multiple stakeholders. The draft has now been under public discussion for little over 10 days and I wanted to take advantage of the Thanksgiving weekend to jot down some thoughts about the process.

There are now roughly 250 comments on the discussion page for the draft.  Most of the comments were posted in the first few days after the release. Many of them are responses from our legal team. Overall, most of the comments make suggestions or ask challenging questions about the draft that helped us clarify the language. But the high participation on the page did not come easy. We first announced the release in a blog post in 7 languages, an email to the Wikimedia community, and messages on village pumps and other notice boards throughout the Wikimedia sites. We then sent out an invitation to everyone who has applied for a trademark license to us in the past year to let them know that we’re updating the trademark process. My colleague Luis kindly extended the invitation to members of several FLOSS mailing lists. We’re also running announcement banners for logged-in users on Wikipedia and 12 other Wikimedia sites. Our next step will be to reach out to Wikipedians who have written about trademark issues in various languages, as they are likely to be interested in this topic. The idea is to get a productive discussion between as many interested parties as possible. The variety of perspectives will make sure that the policy anticipates more trademark issues. In essence, if the policy doesn’t cover important uses of our trademarks, it has bugs. And, in words of Eric Raymond, “given enough eyeballs, all bugs are shallow.” To date, I’ve been really impressed with people’s willingness to participate in the discussion and the quality of their comments.

The purpose of the policy update is to: (1) strike a better balance between the interests of the Wikimedia community and trademark law; and (2) to create a document that better communicates how people can use Wikimedia trademarks. To maximize the comprehensibility of the document, we used simple language and applied various information design principles. The initial comments suggested that people mostly liked the new design and found the document “approachable and easy to read.” My impression is that the design and readability of the draft also improved the substantive discussion of the draft. As people could get a better overview and easily understand the legal terms, they could jump into the discussion and comment on the substance of the terms. It helped them propose revisions or point out scenarios that were not yet addressed by the draft. And their comments have already resulted in several substantive revisions to the draft.

Our team’s active participation in the discussion also helped to keep it in positive terms. Given the amount of time that community members devote to reviewing the draft and suggesting revisions, they deserve timely responses that show that their input is taken seriously. It also encourages new people to join the conversation because they can see that we will think about how we can improve the draft based on their comments. But thoughtfully responding to comments and discussing proposed revisions online is quite time consuming. And time is very scarce when you’re on a small team of six lawyers tasked with protecting the sixth most popular website. The sheer amount of comments that were posted right after the release made it difficult for us to respond quickly. I’m incredibly grateful to my awesome colleagues, who took time from their busy schedules to sit with me and respond to comments. The team effort helped to maintain a productive discussion with the community. I’ve heard through the grapevine a few days into the discussion that people really appreciated our quick response time. While the pace of the discussion may eventually slow down, the initial statistics for the discussion page showed that the team made a total of 161 edits to the discussion page (but they are not all complete comments).

Posted in collaboratively developed terms, design, information design, legal design jam, readability, trademark policy, user experience design, Wikimedia | Leave a comment

Designing User-Friendly Legal Documents

I’ve been meaning to update this blog on what I’ve been working on lately. While thinking about the implications of face recognition technology, I started thinking about how user experience design can be used to convey data practices. This question is particularly relevant for the use of face recognition technology in mobile and wearable devices because it affects individuals other than the primary users of those devices. So, for example, if you automatically recognize a friend using your phone, you will primarily process the friend’s data as opposed to your own. But your friend will not have read the relevant privacy policy on your phone and will need some alternative way to get that information. That research led me to some sources suggesting that privacy regulators may now be more willing to enforce user expectations based on design as opposed to legal documents (more on this soon).

Ideas around the relationship between legal documents and user experience design have then influenced my work at Wikimedia as I started preparing a new policy for the Wikimedia trademarks. The new trademark policy is being collaboratively developed online with the Wikimedia community and, in that sense, it’s likely to be more user-friendly than traditional legal documents. But I also wanted to make the format of the policy feel intuitive so that the design can help convey information. My colleague Heather Walls and I recently wrote a blog post about what we’re doing in that respect. Together with Stefania Passera, Helena Haapio, and Margaret Hagan, we held two Legal Design Jams at Stanford Institute of Design and the Embassy Network to brainstorm about the design of the document. The Legal Design participants worked with color coding, typography, white space, and icons to visualize the policy. I’ve also focused on clarifying the language of the policy by using short sentences, simple words, and avoiding legalese. To catch instances where the text could be improved, I built in readability tests throughout the writing process. The simplified language and design will hopefully make the document more user-friendly.

I’m lucky to be able to get feedback on this work directly from future users of the trademark policy as we release the draft for public discussion in a couple of weeks. And I plan to write about what I learn from this process here. Stay tuned!

Legal Design Jam at Stanford d.school

Heather Walls, Legal design jam at Stanford October 2013 01  https://commons.wikimedia.org/wiki/File:…), CC-BY-SA-3.0  http://creativecommons.org/licenses/by-s…)

Posted in collaboratively developed terms, design, face recognition technology, information design, legal design jam, readability, trademark policy, user experience design, Wikimedia | 1 Comment

EU Weighs in on Face Recognition Technology in Online and Mobile Apps

I wrote a blog post for the Electronic Frontier Foundation about an opinion issued by the EU Article 29 Data Protection Working Party on the use of face recognition technology in online and mobile apps.

Read about it here.

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California to Jump on the Driverless Wagon, But What About Privacy?

On February 23, Sen. Padilla introduced SB 1298, which would require the Department of Highway Patrol to adopt “safety standards and performance requirements” with respect to cars that use “computers, sensors, and other technology and devices that enable [them] to safely operate without the active control and continuous monitoring of a human operator.” This is a carefully drafted piece of legislation that addresses some of the definitional issues raised by Ryan Calo and that I was concerned about with respect to similar legislation in Nevada last year. It is also exciting that California may be taking this step considering the vast amount of traffic accidents in this state that are caused by drunk-driving and other human errors. Driverless cars can also keep a smaller distance between cars—reducing traffic jams and pollution from car idling, which is of particular concern in California.

I wrote a post for the Harvard Journal of Law & Technology Digest outlining the California bill, but I would like to air one of my personal concerns here. As with the Nevada legislation, I am concerned that driverless cars can be used to gather personal information. The Ninth Circuit has already been struggling with the FBI’s desire to use technologies in cars to secretly gather information for law enforcement purposes. The Supreme Court also recently considered the use of GPS trackers in criminal investigations. However, cars operated entirely by computers have the potential of providing much more sensitive information. This information could get exposed not only to government surveillance, but also to data mining companies or hackers that could tap into the driverless systems to take control over the cars. The California bill should therefore explicitly require the Department of Highway Patrol to adopt standards with respect to privacy and security, in addition to “safety standards and performance requirements.”

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Brief Summary of the Recent Patent Decision Falana v. Kent State Univ. Regarding Joint Inventorship.

I wrote a blog post for the Harvard Journal of Law & Technology Digest about Falana v. Kent State Univ. which clarifies the level of contribution required to be listed as a co-inventor on a patent for a chemical compound.

Read about it here.

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Autonomous Cars Now Expressly Allowed on Nevada Highways–What About Government Surveillance?

On June 17, the State of Nevada introduced legislation (AB 511) that allows autonomous vehicles on its highways, provided they comply specific regulations. The regulations, testing, and a driver’s license endorsement remain to be developed by the Nevada Department of Motor Vehicles. Autonomous vehicles are expected to save thousands of lives lost in traffic accidents each year. The vehicles are developed to have 360-degrees perception, stay focused on the road, and react faster to road conditions than humans. Drunk driving, for example, will no longer be an issue. They may also reduce traffic jams by allowing cars to safely keep a smaller distance, which should mitigate pollution from car idling. While the legal recognition of this technology in Nevada is great progress, the legislation was rushed and failed to consider government surveillance enabled by autonomous vehicles.

AB 511 defines an “autonomous vehicle” to mean “a motor vehicle that uses artificial intelligence, sensors and global positioning system coordinates to drive itself without the active intervention of a human operator.” It defines “artificial intelligence” to mean “the use of computers and related equipment to enable a machine to duplicate or mimic the behavior of human beings.” This definition, as discussed in Ryan Calo’s blog, fails to acknowledge the fact that certain vehicles already include “artificial intelligence” to various degrees. This legislation may, for example, unintentionally require special testing of self-parking cars that are already available for public consumption and are not commonly considered to be “autonomous vehicles.”

The Legislation also lacks analysis regarding collection of data from vehicles operated by computers. There is a clear advantage for a company that ultimately will provide these cars (whether it is Google or not) to collect data from the cars to advance the performance of the technology. There should be some clear directions as to how a company is to handle that data. It may, for example, be kept in a manner that does not reflect personal information about where any particular vehicle has been or is going. More importantly, there needs to be restrictions on the government’s ability to access that data. This is significant given that the government already tried to use the current technology in certain cars to obtain information for “law enforcement purposes” in a rather non-transparent manner. Restrictions on government surveillance are usually developed by case law. But courts have been slow to develop principles to address computers and new technology. Therefore, it may be wise to address these issues with legislation based on thorough input from engineers and researchers that can provide insight into the potential of this technology.

Obviously, these issues take a long time to consider and they should not get in the way of the development and use of this technology. However, because autonomous vehicles were not previously expressly prohibited in Nevada, they could probably have been used even before this legislation (though there is some debate about whether the lack of prohibition means that autonomous cars are legal). It is, however, clear that the Nevada Legislature dropped all practical considerations into the DMV’s lap, which definitely lacks the technical expertise and resources to consider these issues (if the California DMV’s workload is any indication, early this year, DMV’s staff estimated the process of printing new driver’s licenses to average about 8 months per license!). Given that this technology will likely not be available within the next year, the Nevada Legislature could have taken some time, working with experts (perhaps Google?), to consider these issues.

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