Informationoverlord

I am sad to see Google has called it a day on Wave, but I am not surprised. According to Google:

‘Wave has not seen the user adoption we would have liked. We don’t plan to continue developing Wave as a standalone product, but we will maintain the site at least through the end of the year and extend the technology for use in other Google projects.’

It has not seen the user adoption for one reason in my view – it doesn’t work in Internet Explorer natively, and most corporate IT departments will not let their staff download and install the Google Chrome Frame to make it do so. This is important, because I do think some tech people do tend to forget that for most of us in the corporate/business world, we don’t have a choice of browser to use – or even version of that browser to use (see UK govt announcement last week that plan to carry on with IE6 on most of their machines). The larger the organization, the less likely you will be to customize IE in anyway, with IT departments/security taking control of most of your settings too.

I could have used Google Wave in my work environment, it would have been a faster way of collaborative working than a wiki and the IM aspect of it would also have been useful in some of the project teams I have worked in. But, I exist in the world described above. I could not use Wave at work, and frankly I didn’t need it at home – although I did try it out on a number of occasions and whilst it was not the most intuitive thing going, I liked what they were trying to do, even if for the most part it seemed like a solution looking for a problem, rather than something designed to solve a problem that already existed.

So, hats off the Google for trying it, but creating something that has most use in the enterprise, and doesn’t work natively on the browser of choice of the enterprise, meant that for me it was always doomed to failure.

Thanks to an PLC update I came across an interesting defamation case between Islam Expo Ltd a company which organises the bi-annual IslamExpo, an Islamic exhibition and the publisher of the Spectator (and one it’s journalists) concerning an article published online at www.spectator.co.uk. The item stated that ” Demos sponsored and participated in a debate at IslamExpo and a seminar on ‘Political Islam’. That’s right: a left of centre think tank worked with a clerical fascist party to organise a conference about its racist, genocidal, theocratic political programme.”

Islam Expo complained that this was defamation and the court was asked to decide on “In their natural and ordinary meaning the words complained of meant and were understood to mean that the Claimant is a fascist party dedicated to genocide which organised IslamExpo, a conference with a racist and genocidal programme”.

Where it becomes interesting – for me, at least - is the Spectator argued that the statement was not defamatory when read in the proper context of the underlying hyperlinked documentation. In the online article “Demos”, “Harry’s Place points out” (mentioned earlier in the article) “Debate” and “Seminar” all linked to other material.

As the court points out “It is a principle of law most recently defined in Charleston v. Newsgroup Newspapers Limited [1985] 2 AC 65, 70-71, that in order to determine the meaning of words complained of it is necessary to take into account the context in which the words were used and the mode of publication. Thus a claimant cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.”

So the question becomes, in an online world, does the material found at the end of a hyperlink need to be taken into account when deciding on the issue of context in a defamation case? The Spectator argued they should, Islam Expo that they shouldn’t.

Justice Tugendhat decided he would take into account what was in the hyperlinks, but did so “without thereby intending to imply any ruling, one way or the other, as to whether that approach is right in law.” His decision did not actually help the Spectator, whose own lawyer conceded that without reference to the documents the subject of the hyperlinks, the words complained of are capable of being understood as ‘ambiguous.’

Justice Tugendhat concluded that it was clear the words complained of are capable of referring to Islam Expo, and that a hypothetical reader/person could do so. The case can now proceed to trial.

I think Justice Tugendhat was spot on with his conclusion. The question as to whether linked content should be included, or even considered, as part of the ‘context’ is a much more interesting one. I would probably argue that hyperlinks, in the context of online articles, act in the same way that footnotes and references would in a print publication. Although easier to access this ‘referred’ content online than in print, so more likely to be read, it is still for the individual to read or disregard their existence. So, for me, I can’t see how hyperlinked content can be regarded as context in situations such as this one.

Checking through my feeds and shared items this morning I came across an item on libraries shared by a friend that seemed to promise bad reporting and calls to close libraries down. Better still, it was from Fox News. I was suddenly smiling, pleased to see that over in America the same quality of investigation is available on the subject of the future and worth of libraries as we saw recently from KPMG. I read on.

Boing Boing had linked to a piece by Chicago Fox news affiliate on Libraries apparently ‘ proposing that Illinois shut down its library system’, indeed the piece on Boing Boing is titled: ‘Fox Advocates Shutting Down Public Libraries’ Fox News eh. Typical. However, then I follow the link to the story; read the text of the story which starts ‘ They eat up millions of your hard earned tax dollars. It’s money that could be used to keep your child’s school running. So with the internet and e-books, do we really need millions for libraries?’ and then watched the actual broadcast story (See below: which lasts almost 6 minutes)

You know what? Boing Boing and Cory Doctorow are totally misrepresenting the story. Misrepresenting Fox News. Seriously, can you sink lower than that? Nowhere in this news piece do Fox ,as a company, or their reporter Anna Davlantes advocate shutting down public libraries. Nice attention grabbing headline, but it is in fact, a LIE.

If you actually WATCH the piece, it sets out to debate the question of ‘do we still need public libraries’

It looks at the situation is Chicago, and asks the question of whether the $120 million a year that goes to the libraries would be better spent on education, the transport authority, the police etc. What they don’t say is, yes we should. In fact the balance of the whole piece is the opposite. Yes there are some vox pops of people saying they don’t use a library but there are also ones saying how important it is to them.

Indeed reporter Anna Davlantes states :”There are 799 illinois public libraries, and boy do we use them.”

They then speak to Andrea Telli from Chicago Public Libraries who says that they are ‘busy, busy, busy’ and that visits and circulation both on the rise.

Fox do send an undercover team to the city’s main library, the Harold Washington Library in the Loop, which they say boasts 5,000 visitors a day [actually if you are ever in Chicago, it is well worth a visit]. I’ll admit this is the one really really bad bit of journalism in the piece, where they tell us they were there for an hour and reckoned about 300 people came in and most of them were there to use the free internet access, not browse the bookshelves. It added nothing to the debate and should have been edited out of the piece.

There is also a studio discussion featuring Denise Zielinski (Dupage Library System) and Jim Tobin (National Taxpapyers United, Illinois). Tobin makes clear he wants to see cuts across all public spending not just on libraries – although he is a man who thinks the internet has ‘pretty much made libraries obsolete’ (and says he argued the same 30 years ago when paperbacks started being mass produced. No, really.)

And finally, the piece ends with some viewer comments all of which are pro-libraries.

But don’t take my word for it – watch it yourselves. Who’s being more honest, Fox or Boing Boing?

I should also say that there is some great pro-library comments on the written piece, although again I would say that I feel Ms Davlantes is unfairly criticised, and would question whether all those commenting actually watched the piece.

So it seems that the xxx domain will see the light of day after all, after ICANN approved the creation of the controversial domain, to be run by the ICM Registry.

ICM claims to have received more than 110,000 pre-reservations for .xxx domains from those in the industry.

The domain – which nope to be up and running next year - will be voluntary, so adult website operators that already have a dot com address, for example, would not be obliged to give up their current sites; hence Playboy could keep operating from playboy.com.

It will not be a surprise to see the first pieces of legislation making it mandatory for adult sites to move to a .XXX domain, hitting the floors of Congress in the next few months. However, even if any of them made it onto the statute books it would relate only to US hosted sites.

There are over 200 countries in the world, each with its own laws and views on what would constitute material that should be in an .XXX domain — the age at which nude modelling is allowed, or not, for example, differs substantially across the world. If it leads the way on this, the US may be viewed as trying to impose its standards on the rest of the world.

Also creating an online ‘red light’ district, an adult ghetto, by segregating adult sites, would prompt freedom of speech issues in the US if the government tried to force site operators into the domain space.

More importantly, if the .XXX domain became anything other than voluntary it would need to be policed – one of the main fears ICANN had when it turned down the proposal before. This would mean that some authority, governmental, international, or an organisation such as ICANN, would have to monitor sites to make sure that all adult sites were in that domain and that all the content was correctly labelled. Inevitably, there would be questions as to whether there should be a global code of practice, along with the penalties for failure to catagorise content correctly.

There is no doubt that the possibility of being able to block access to all sites in the .XXX domain via filtering software would certainly be one that would appeal to most parents. It would also probably have the backing of most of the adult entertainment industry since they are generally not trying to market to a customer base that can’t buy their wares. However, the ease with which .XXX addresses could be filtered would be a big concern for the industry. The switching computers that make up the backbone of the Internet are privately owned, so what would stop the owners of this infrastructure deciding to block access to all .XXX addresses through their switches? Unlikely, yes, but another concern none the less.

Despite all this we should no lose site of the true purpose of the xxx domain – to make money for the ICM Registry. ICM is proposing a cost of $60-$75 for each .XXX domain name, and when you know that you are going to be getting thousands of non porn business from Nike to Apple to Google buying up their respective xxx domains to protect their brands, you can see that ICM is set to make a lot of money from this. Don’t be fooled into thinking it is about anything other than this.

I have said before on many occasion that the creation of addition global top level domains does little more that provide a licence to print money for the registry owners. This will be no different.

The Press Complaints Commission have cleared the mazine Loaded of breaching the privacy of a young women with an article headlined “Wanted! The Epic Boobs girl!”, published in the February 2010 edition of Loaded. Whilst the PCC commented on the questionable tastefulness of the article - which displayed pictures of the girl, then aged 15, which were originally posted to her Bebo site - they concluded that the information, in the same form as published in the magazine, was widely available on the internet to such an extent [The complainant’s photograph, for example, came up in the top three in a Google image search on the word “boobs”. At the time of complaint, there were 1,760,000 matches that related to her and 203,000 image matches of her as the “Epic Boobs” girl.] that its republication did not raise a breach of the Code.

I’m with the PCC for a change on this one. Whilst having some sympathy for the young lady in question, the ‘damage’ was clearly done before when her Bebo pictures got into the wider internet community, and whoever shared them originally - it is unclear whether her photos were originally open for all to see.

I do however also agree with the PCC that Loaded’s decision to publish pictures of a 15 year old girl as part of an attempt to get the woman in question to pose for them now is nothing short of sleazy.

It’s been a while since there was any CIPA law to get my teeth into – that’s the US’s Children’s Internet Protection Act. But a State law case in Washington has once again put it and the issue of using filters to block content in public libraries in the spotlight.

Last week the Washington State Supreme Court ruled by a 6-3 majority that a local library’s policy of filtering various categories of web content and of not disabling those filter at the request of adult patrons was not a breach of Article I, section 5 of the State Constitution, which says that “[e]very person may freely speak, write and publish on all subjects, being responsible for abuse of that right.” The right is widely accepted to encompasses the freedom to read as well.

North Central Regional Library District (NCRL) is required to certify its compliance with CIPA in order to get discounted internet connection under the Library Services and Technology Act and the eRate program under the Communications Act 1996. To qualify for these discounts Libraries must install filtering software on ALL their computers to block material ‘harmful to minors’.

The plaintiffs in the case argued that the filtering was overbroad and constituted prior restraint and an impermissible content based restriction of free speech. The Court, citing the majority in the US Supreme Court’s decision in US v ALA, said it would be a mistake to extend prior restraint to the context of public libraries, as prior restraint seeks to prohibit future speech rather than speech that has occurred and that a library’s decision to use filtering software is a collection decision, not a restraint on speech. Just as they would choose not to purchase books, journals – such as pornographic ones – for their physical collection, filters allowed them to do the same for internet content.

Libraries the court argues have no obligation to provide universal coverage of all constitutionally protected speech. Due to the vast amount of content on the internet it is entirely reasonable to ‘exclude certain categories of content, without making individualised judgement that everything they do make available has requisite and appropriate quality’. Thus the majority concluded ” NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet.”

On the question of overblocking the court once again cited the majority in US v ALA and said the constitutional issue is ‘dispelled’ if the material that is erroneously blocked is easily unblocked at the request of an adult, and they point to a process where a patron may email NCRL administrators to ask that the blocking of a certain page/site is manually overridden. Examples provided showed this was done within 1-3 days. Because of this the court concluded “a public library may filter internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon request of an adult library patron.”

Whilst reading all this, whilst you might not agree with the result it is hard not to find a logic – maybe even a convincing and balance logic in the argument. However, if we actually look at CIPA and the US Supreme Court decision we start to see cracks in the Washington Court’s majority view.

First off, CIPA doesn’t deal with text – at all : as pointed out in the dissenting opinions of Judges Stevens and Souter, in US v ALA, the Act deals with ‘visual depictions’ only.

Section 1721(b) of CIPA requires public libraries that participate in the federal e-rate program to certify to the FCC that they are:
‘(i) enforcing a policy of internet safety that includes the operation of a technology protection measure with respect to computers with internet access that protects against access through such computers to visual depictions that are (I) obscene; or (II) child pornography.’

Even if it did require text to be blocked CIPA only says libraries may ‘ the technology protection measure’, not that they must; gives no time frame for this to happen and forces adult patrons to justify their ‘bona fide’ and ‘lawful’ purpose for viewing a site/content that is blocked.

As pointed out by Judge Chambers, writing the dissent in the Washington case , eight of the 12 US Supreme Court justices found the ability of a patron to disable the filter constitutionally critical to finding CIPA lawful. Two argued that if libraries failed to remove filters at an adult’s request ‘without significant delay’ a library patron could sue on constitutional grounds.

On the issue of whether filtering was akin to book buying decision the dissenting opinion of Judge Souter in US v ALA is also worth repeating. He pointed out that there is a big difference between deciding whether to buy a book, and actually buying it and then blocking access to parts of it. He suggested that the libraries in question had already made the purchasing decision to buy the computers and/or connect to the internet. He likened the subsequent censoring of the internet’s content to that of a library ‘buying an encyclopaedia and then cutting out pages with anything thought to be unsuitable for adults’.

NCRL put forward no compelling reason in this case why filters could not be disabled on request for adult patrons, and the court’s opinion misses the importance placed on this, even by a large party of the majority in US v ALA. I hope the plaintiffs in this case appeal this case further arguing that NCRL is not in compliance with its responsibilities under CIPA.

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.

The report stage of the Digital Economy Bill at long last produced some real amendments to the Bill, but the biggest one has left some thinking the ‘improvements’ may in fact do more harm.

From the moment the bill was first published last year Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 (CDPA) in future, to reflect fast-changing technology,” found opposition both within parliament - Lord Clement-Jones called it a Henry VIII clause - and with search and social media companiessuch as Google, eBay, Facebook and Yahoo who wrote to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law arguing the “clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments.”

The government who had already amended the clause once were set to amend it further this week but were trumped by Lord Clement-Jones who tabled his own amendment to replace the clause with one of his own.

The government’s proposed amendment would have made it clear that the scope of amendments to Part 1 of the CDPA is limited to Chapter 6 of Part 1 of the copyright Act, and clarified that the clause could only “be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement”

Lord Clement-Jones’ clause introduced the power to shut down / block access to websites hosting infringing material by allowing “the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.”

Lord Young responding for the government - and being in the interesting position (for a change) of making sense - pointed out the amendment was not a good idea for several reasons: (i) the provisions would need to be notified to the European Commission under the technical standards directive…subsections (6) and (7) of the proposed new clause would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable (ii) Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult, and (iii) sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which will cause significant public disquiet.

Lord Erroll who supported an amendment that would have completely removed Clause 17 from the bill, as he would have prefered to see the next Parliament conduct a proper review or rewrite of the CDPA also saw a problem with Lord Clement-Jones’ amendment. ” We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one.”

Lord Clement Jones responded that he did not think this a problem. “I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. [I] also cannot accept the Minister’s points about the EU technical directive in this case…If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.”

The clause was be put to the vote. It passed by 165 -140, and so is now in the bill.

UK ISP Talktalk reacted strongly to the new clause, calling the measure “draconian” and “futile”. Director of strategy and regulation, Andrew Heaney Heaney said “The amendment seems to require ISPs - and by implication their customers - to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it. The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application. This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access.”

It certainly seems that the Lib-Dems have manged to get the bill looking ven more likr America’s DCMS than the government - a feat in itself. How long will sites be blocked? who will review the sites to see if they can be unblocked? It seems to me all this clause now does is as the earl of Erroll said in the debate, give the entertainment indutries yet another stick - this time through lawyers - “to threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court.”

As on the day the bill was first published, Clause 17 must go.

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.