Tag: Google

YouTube, Facebook, and the responsibilities of intermediary gatekeepers

YouTube logo, via YouTubeIn my previous post, I argued that, as a matter of principle, the controversial American anti-Islamic video should not be censored. The most obvious form of censorship comes from government action, such as legislation banning speech, but that does not arise in this case. Less obvious, but no less insidious, was the White House request to Google to re-consider whether the video breached YouTube rules. This was not a formal ban, and Google declined to take the video down in the US, but it did block access to it in in Egypt and Libya. This raises two important questions about the structure of free speech. First, in the online world, where most of us access the internet through a range of intermediaries, government censorship does not necessarily need to target the disfavoured speech; it need only target the intermediaries. Very few US companies would feel able to decline a request like that from the White House, and Google are to be commended for standing firm in those circumstances. Second, these intermediaries now have a great deal of practical power over online expression – not only can they be co-opted by government as agents of state censorship, but they also have the capacity to act as censors in their own rights, as Google did in their unilateral action to block access in the Middle East.

Such intermediaries are effectively gatekeepers are those who enable – and control – our access to that information, and this raises profound issues of principle about the role of intermediary gatekeepers in the structure of free speech about which I have written on this blog (here | here | here). At present, such intermediary gatekeepers are all private entities, operating to their own rules, and it is not at all clear how they can be made accountable to their users or the wider public for their private actions. Given the practical, social and legal issues that arise in policing content in such a quasi-public sphere (pdf), it has been argued that search engines and other intermediaries should have public interest obligations, perhaps by analogy with common law duties that govern public utilities (pdf). In particular, free speech norms should not only be about protecting speakers against a heavy-handed state but also about protecting speakers and readers against heavy-handed intermediate gatekeepers. (more…)

Who Said France Does Not Have Fair Use? | SAIF v Google

An important decision of the Paris Court of Appeal was rendered yesterday in a litigation between Google and a French Collective Society for Visual Works (SAIF). The Collective Society claimed that Google was infringing on the copyright of its authors members by reproducing and displaying their works in the form of thumbnails on the pages of Google Image service and also by reproducing their works through Google caching system. Before the Court of First Instance, the Judge considered the applicable law to be the U.S. Copyright Act, and consequently, the court applied the fair use defense in line with the Arriba and Perfect 10 decisions.

The Court of Appeal disagreed and applied French law. Nevertheless, it too rejected plaintiff’s claim and decided that Google benefited from the “safe harbor” provisions of the Loi sur la Confiance dans l’Economie Numérique [the relevant French statute]. It considered Google as being a “neutral” actor and the reproduction of the photos necessary to provide the service. It also refused to consider a sort of contributory infringement liability when Google refers to works available on the Internet without the consent of the rights holder.

Fair Use: Be careful what you wish for!

Google image, via GoogleA little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works. The fundamental (even if increasingly questioned) justification for this development is that the copyright monopoly encourages the creation of original works.

This development of copyright has been a very slow process, but two current issues are putting significant pressure on this slow pace. The first is the evolution beyond the static to the plastic described by Johnny Ryan; the second is that the rate of this change is exponentially faster than heretofore. Copyright rules rules created for static texts which at best change slowly are rules that are ill-adapted to faster change and inappropriate to the modern reality of plastic texts. (more…)

Reshaping the Law for the Digital Economy – II – the liability of intermediaries

Google image, via GoogleAs I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.

She examined the main rights of each of the three main involved: rights holders, subscribers, and intermediaries. (more…)

Reshaping the Law for the Digital Economy – I

Google image, via GoogleLast Friday morning, I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy (Irish Times | SiliconRepublic here and here). It was hosted by Google Ireland and co-sponsored the by Institute for International and European Affairs (IIEA); and the morning was very ably chaired by TJ McIntyre (blog | Chair, Digital Rights Ireland | Consultant, Merrion Legal | UCD). There were five presentations; in this post, I’ll deal with the first two; in the next tomorrow’s post, I’ll deal with the remaining three; and in a third post, I’ll add a few comments of my own on some of the issues raised by the seminar.

First up was Johnny Ryan (IIEA | author A History of the Internet and the Digital Future) speaking on “A hinge in history: the conditions of the digital future and the need of rights reform”, and setting the scene for the debates that would follow. (Update: Johnny comments below that video of his presentation is now available). For him, we live in the age of the perpetual beta. Before Gutenberg‘s printing press, hand-transcribed manuscripts made information fluid. By contrast, after Gutenberg, the printed book fixed information in static form. But now, online, information is very flexible and plastic, again. Consider a wikipedia page: everything is open to challenge and experimentation – and perpetually beta. We are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Because of the internet, we have moved from a read-only (RO) culture to a read-write (RW) culture, a remix culture, where we can all adapt and re-invent, and this participation can be anywhere: anyone can be Andy Warhol, and the internet can be your Factory. This is the hinge in history of his title.

He argued that as we have moved from a RO to a RW culture, so can we move from RO to RW business. (more…)


GallimaufryDr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while. I’ll begin and end with some stories of censorship, and along the way I’ll mention open wifi, international perceptions of Ireland, typography, mobile phones, broadcasting, and the future of our universities.

First, as a supplement to my post on the Lady Chatterley’s Lover trials, Alan Travis in the Guardian argues that the failure of the Chatterley prosecution secured the liberty of literature in Britain over the past 50 years. By way of a similar supplement to my post on the decision of the European Court of Human Rights in Akdas v Turkey 41056/04 (15 February 2010) that a Turkish ban on Apollinaire’s Les Onze Mille Verges infringed Article 10 of the European Convention on Human Rights, the Guardian reports that Turkey is at it again: publisher Irfan Sanci is being prosecuted – under the same Turkish provisions that were found wanting in Akdas – for publishing a translation of another Apollinaire noverl, Les exploits d’un jeune Don Juan (The Exploits of a Young Don Juan). To add insult to this injury, the prosecution comes in the week before Sanci is to be bestowed with a special award by the Geneva-based International Publishers Association. (more…)

Ten Copyright Myths

At Ignite Dublin #4, held in TCD’s Science Gallery as part of last week’s Trinity Week celebrations, I gave a 20-slides-in-5-minutes presentation on Ten Copyright Myths, in part because the previous weekend saw the 300th anniversary of the first modern copyright statute, the Statute of Anne, 1710 (fascimile | transcript | wikipedia). For the day that’s in it, here’s a YouTube video of my presentation:

For those who don’t have 5 minutes to watch, here are the myths debunked:

  1. You don’t need to put the copyright symbol © on a text to claim copyright. All that matters is that the work is original.
  2. You don’t need to put it in an envelope and send it to yourself. If the work is original, then copyright just vests.
  3. There is no doctrine of fair use outside of the United States. Instead, there is a much more limited doctrine of fair dealing for the purposes of research or criticism.
  4. Just because something has been published on the internet doesn’t mean that it’s in the public domain. There’s a lot less in the public domain than you might think.
  5. Taking a work, and transforming it, still infringes copyright.
  6. Giving credit is important; but if the taking is a copyright infringement, giving credit doesn’t change that fact.
  7. Taking a copyright work, but not charging for your use, will still be an infringement if the taking is a copyright infringement.
  8. The fact that the original author is dead doesn’t mean the work is out of copyright. The copyright term is the life of the author plus seventy years.
  9. Creative Commons is a good development, but it’s just a system of licences or permissions, and it won’t change the copyright world.
  10. Finally, just because Google are copying books doesn’t mean the rest of us can: they have permission pursuant to a court settlement.

So, there you have it, ten copyright myths debunked. What others would you add to the list?

The Internet never forgets

Cover of I remember this one time, at BarCamp Dublin, I went to Darren Barefoot’s presentation, and he said

Things live forever on the web … the internet never forgets.

Total recall online is now a common trope, and one which forms the starting point of Viktor Mayer-Schönberger‘s provocative new book Delete: The Virtue of Forgetting in the Digital Age (Princeton University Press, 2009). Your privacy is gone, and you don’t know what you’ve lost till it’s too late. Two years ago, Dan Solove warned in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2007) that a permanent online chronicle of our private lives could mean that the freedom of the internet makes us less free. Now, for the “future that is forever unforgiving because it is unforgetting”, Mayer-Schönberger proposes the remedy of induced forgetting for the internet’s elephantine memory (more…)