The Digital Skeptic: Terms of Service Could Shatter Google Glass

NEW YORK (TheStreet) -- Chris Castle sees a broken future indeed for Google's (GOOG) latest uber-gizmo, the eyeglass-mounted PC called Google Glass.

"It is hard to see a case where someone who uses this thing outside their home can use it without potentially violating some law," Castle told me over the phone. We'd been going back and forth in recent weeks on the startling legal ramifications of the wearable computer that, if early demos are any indication, will enable just about anybody to record, store and share anything they see, hear or say -- copyrighted or not -- with anybody on earth.

Castle has deep experience in the legal ramifications of disruptive technologies. He is the managing partner of Christian L. Castle Attorneys, an Austin, Texas, digital music and content law firm. Castle says that over his 25-year legal career he's been in the content rights trenches providing advice for Last.fm, Liquid Audio, MySpace Music and even Napster. And he spins a heck of a convincing legal yarn that the 24/7 media world Google Glass will almost certainly create poses almost limitless legal exposure for the company -- and headaches for investors.

"This is major litigation waiting to happen," he said. "And not just civil litigation. I could see states attorneys getting involved, too."

Terms of service get ugly
What's surprising about Google Glass is that, even though it's not yet available to the general public, it doesn't take much spying to see what investors will be looking at with it.

Several Google executives, including co-founders Larry Page and Sergey Brin, have made high-profile public appearances wearing the thing. There's a slick, branded Glass website and an army of so-called Glass Explorers acting as beta testers, among them actor Neil Patrick Harris, politician Newt Gingrich, Foursquare's Dennis Crowley and Thomson Reuters social media editor Anthony De Rosa.

For the record, Google Glass is a tiny computer married to a video camera, small display and sound recorder. It's voice activated and can up- and download audio and video content and record images. It will display Web content, get directions and offer Glass versions of Google apps. Once it does that, it can broadcast the whole shebang to anybody with a Web connection.

And it does it all in a unit about the size of a hip pair of sunglasses.

"It is about our relationship to technology," Timothy Jordan, developer advocate for Google Glass, said in a video grabbed at the last South by Southwest music and tech conference in Austin conference last month. "You can still have access to the technology you love. But it won't take you out of the moment."

Divorcing Google over terms of service
In spite of all the new media muscle pushing Glass, Castle sees a major crack in the concept. Specifically, the conflict between rules Google require users sign Terms of Service to use the system with the rights, laws, practices, content and property of the people, business and governments around the world, who will be digitally captured by Google Glass.

Tom Henderson at ITworld, a publication of Framingham, Mass.-based IT analysis company IDG Communications, hit the Terms of Service zeitgeist nail on the head with a brilliant series about divorcing Google.

"There are some observations that I've made, post-divorce, of just how pervasive online data gathering has become," Henderson wrote this month, "and how Terms of Service privacy invasion and data sharing are now so widespread and out in the open."

Google Glass will only focus these concerns into a burning fire, Castle says.

"The question with the Terms of Service for using Google Glass is, will it trump the privacy, personal and intellectual property rights of people and institutions who probably won't even know it is being used?" Castle said.

To feel the heat of the legal risk Google Glass poses, take a brief look at Google's Terms of Service themselves.

For example: "When you upload or otherwise submit content to our Services, you give Google a worldwide license to use, host, store, reproduce, modify and create derivative works."

That's language that Castle says almost demands litigation.

"Set aside the creep factor here," Castle said. "Consumers and business will be on their own. It's going to be up to individuals, business, state and local governments to protect their lives and products once captured by Glass."

Those are concerns echoed by those close to the entertainment technology world.

"Considering what we know about thievery in movies theaters, and how little we can do to stop it," said Stefan Radtke, president of skr.media, a Rye, N.Y., emerging media consultancy and my go-to source of the effects of new technology in media. "Even a few people wearing them in a theater will be a big piracy problem. I do not see how this can be a good thing for producers."

Here's the investor kick in the eye: The legal risks are so certain that Castle wonders what are Google's long-term goals.

"You have to ask, what is a company of Google's size and scale doing taking a level of risk like this for an unproven technology?" Castle asked. "Google Glass will be a great day for the lawyers. But I see this as infinite exposure for a product that will not create infinite profit."

"I just don't understand what the thinking is," he said.

You know Chris, neither do I.

This commentary comes from an independent investor or market observer as part of TheStreet guest contributor program. The views expressed are those of the author and do not necessarily represent the views of TheStreet or its management.

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