File sharing and piracy

three articles recently, two showing the opposite approaches that can be adopted by courts and one the absurdity of trying to get rid of the file sharing via the ISPs

ISP Tries To Charge Users To Block File Sharing... Ends Up Installing Malware That Exposes Private Info (TechDirt 14 June 2010)

Dutch Court Says Just Publishing Links To A Movie Is Illegal And Must Be Blocked (TechDirt, 04 Jun 2010)

compared to

Yet Another Spanish Court Finds File Sharing Site Legal; Compares File Sharing To Book Lending (TechDirt, 08 June 2010) - the source in English language is Torrent Freak which has a link in Spanish to the interview given by the Lawyer Carlos Sanchez Almeida to Publico.es (04 June 2010) - research in Spanish gives access to the text of the judgment available on what seems to be the website of Almeida's law firm. http://www.bufetalmeida.com/602/caso-cvcdgo-pagina-de-enlaces-la-audiencia-provincial-de-madrid-confirma-el-auto-de-archivo.html The Google translation is not bad at all and confirms the translation made. It also reveals more clearly than my now poor understanding of Spanish could grasp. The Judges have referred to various cases, acknowledging that the law is not settled on this issue. Yet, for them

"since ancient times has been the loan or sale of books, movies, music and more. The difference now is primarily on the medium used was previously the paper or analog and now everything is digital format which allows an exchange much faster and higher quality and also a global reach through the Internet. And this exchange takes place in the network through file-sharing systems "P2P (or peer network) where there are no fixed clients and servers have a global reach as any Internet user can connect to your computer and share files that are divided, in turn, a large number of parties.

To use file sharing programs (Emule, etc.) Running the link or link to the document that is on the website so that the user's computer connects to a computer but not many who have various stages of This same document being shared among many users at once without anyone perceived why any financial reward."

In most English newspapers/blogs, the first part is quoted. Yet I find the second paragraph equally interesting: it is saying that file sharing is not about holding the copyrights of the book and making money on it. It is just like a village market place providing the platform for users to exchange.

How Much Do Most People Really Care About Privacy? (TechDirt, 02 June 2010) -

Wi-fi issues: access and use

When travelling, if one does not have a smartphone or blackberry, it becomes really annoying not to be able to use wi-fi knowing that lots of networks are available. the silliness of it all appeared when I was in Gare du Nord Paris, compared to St Pancras - London. You would have guessed I was a Eurostar traveller. At St Pancras, free wi-fi; in 45 minutes, I checked my e-mails, sent a couple of documents I could not have done so if I had a smartphone. At Gare du Nord, well, no free wi-fi if you do not have a Eurostar business status; the provider SFR was asking a minimum of 2 euros, I recall, for about 30 minutes. Well, I know it is not that expensive, but it is such a hassle (you have to register, type your card number...; a good 15 mins wasted to just access). Result: I did not pay. and I am sure I am not the only to have done so.

of course, one could argue that to call, one has to pay, whether in a phone box, from a landline or a mobile. Why not for wi-fi? well Finland contemplates opening the network to all, getting rid of its offence to use open wi-fi. Of course, open wi-fi means less security. But then, why not charged for higher security? I would actually have paid for added security if I had to send sensitive data or connect to sensitive data website. but for ordinary websites, such as what is the weather back home or train time data, frankly I felt put off.

Finland Plans To Decriminalize Using Open WiFi (TechDirt, 11 June 2010)

In contrast, Google's collection of private data is inadmissible. yet, whether it was intended to or an accident, an involuntary consequence not foreseen, is something else. I can't imagine the firm having done it on purpose, at least after until they were (made) aware of it if they continued despite knowledge.

Group Claims Google Had 'Criminal Intent' In WiFi Data Collection (TechDirt, 10 June 2010)

What i am surprised is that the data collected was not destroyed immediately. Governments have no right to look at the data.

As Google Hands Over Collected WiFi Data In Germany, France And Spain, Ireland Tells Google To Destroy It (Tech Dirt, 04 June 2010)

Google WiFi Data Caught In Legal Limbo (TechDirt, 27 May 2010)

Wider European Scrutiny of Google on Privacy from NYTimes as reported in Business and HR Watch, 21 May 2010 http://www.business-humanrights.org/Links/Repository/1000957

Obviously, the argument is based on the assumption that privacy is important. Some argue it is not; but I fully disagree. Our ancestors fought, sometimes to death, for a bit of privacy and not just privacy from government's spying. Privacy is essential and it is not because people don't go into mass protest about it that the issue/the right does not matter

How Much Do Most People Really Care About Privacy? (TechDirt, 02 June 2010) -

Privacy infringement

The two infringements make you wonder what non-famous companies do and how they are controlled:

Google Admits It Was Accidentally Collecting Some Open WiFi DataData (TechDirt, 14 May 2010)
EU watchdog slams Facebook privacy settings (Euractiv, 14 May 2010)

and new challenges ahead...

Does Storing Your Documents In 'The Cloud' Mean The Gov't Has Easier Access To It? (TechDirt, 5 May 2010)

Obviously the question is a matter of sensibility as the US tend to be less concerned than Europe.
Draft Of Privacy Bill Introduced... And Pretty Much Everyone Hates It (TechDirt, 5th May 2010)

Secondary source analyses Italian's judgment on Google

Legal Analysis Of Italian Criminal Conviction Of Google Execs Says Judge Made A Big Legal Error (TechDirt, 30 April 2010)

Google and China

Rob Hanlon and Stephen Frost, CSR Asia, on 31 Mar 2010, criticised Google's HR motives to withdraw from Mainland China. The core of their arguments is nothing new: Google was not making any profit, to stay would have been counterproductive to their business model; to withdraw in the name of HR is not helpful to China's HR activists and it is an illusion to believe a foreign company can influence China's policies on whether to censor or not.

http://www.reports-and-materials.org/Google-Theatre-CSR-Asia-31-Mar-2010.pdf

Well, at the end of the reading, frankly, I am less than convinced by their arguments. I have no doubt that Google withdrew because it was not making enough money, but I do not think it is the only motive. I completely disagree with their stand about people/companies not being able to influence others including foreign governments. This is saying that nobody is responsible for whatever happens and history defies such argument. As we are talking about HR, let us think about Nelson Mandela. He was the catalyst of a whole movement who changed the course of history. Gandhi did the same against the then British Empire which power we forget the might.

Google's answer to the criticism is poorly drafted I think. The HRW's response is much more interesting as it points towards the weakness of Hanlon and Frost's arguments.

http://www.reports-and-materials.org/Google-response-re-CSR-Asia-19-Apr-2010.doc

http://www.reports-and-materials.org/Human-Rights-Watch-reply-re-CSR-Asia-on-Google-20-Apr-2010.doc

All the reports are on the Business and HR website at http://www.business-humanrights.org/Links/Repository/1000252

For the earlier report on Google closing its site: Google Shuts China Site in Dispute Over Censorship (NY Times 22 March 2010) and different comments on the Business and HR website: http://www.business-humanrights.org/Links/Repository/1000132

Google's liability in Italy

A few other articles on the three Google's executives declared responsible in Italy because of a YouTube video.

Columnist Claims Italy's Google Verdict Makes Sense, TechDirt, 9 March 2010 (with M. Masnick obviously disagreeing)

and a speech by Lessign at the Italian Parliament, probably scheduled long ago and thus a coincidence with the verdict, "Lessig Gives A Well-Timed Speech To The Italian Parliament On Internet Freedom", TechDirt, 11 March 2010

and some pointing out that the EU may prefer privacy to freedom of speech. It is not wholly true, but yes, Europe definitely has a different vision of what is privacy in comparison with the US and even the UK, "Where Are The European Regulators In Charge Of Protecting Freedom Of Expression?" TechDirt, 9 March 2010

The problem is certainly due to the abundance of information available, despite the shortcomings in some countries of censorship, "Society Doesn't Know How To Deal With Abundance" TEchDirt, 11 March 2010

Did Google Ignore A Takedown On The Italian Video? | Techdirt

Did Google Ignore A Takedown On The Italian Video? Techdirt 8 March 2010

Apart from the issue of establishing the facts, the question is can Google be criminally liable? It may sound harsh, but the context of criminal liability has evolved over the past ten years. The biggest sources of privacy violations are within the corporate world with the databases corporations collect, hold and misuse, or because of information they make available. Offenders are not simply individuals. There is a 'collective' responsibility at corporate level and one can see that with the English debate on corporate crime. Except that the English debate is extremely restricted as we focus on manslaughter, whereas France allows for corporate liability for any offence. The question that springs to mind is actually whether Italian law sanctioned the three men as individuals or as representants/agents of Google the corporations.
The usual critic about the take down notice and the absence of a court judgment still holds.

See also "Google and YouTube should put own houses in order Charles Arthur" The Guardian, 1 March 2010, who argues that Google should be more consistent in its take-down policy rather than harrowing on lack of freedom of expression

Censorship: Google/China and others

Obviously, the headlines for the past 10 days are aboug Google's declaration and movement of withdrawal from China, but as pointed out, well, if Google withdraws from China, why not other countries like India, Australia, Saudi Arabia, Russia...?

"Google Considers Leaving China If China Will Not Allow Uncensored Search" (TechDirt, 13 January 2010)

"Will Google Pull Out Of India, Australia And Other Countries Over Internet Censorship?" (TechDirt, 14 January 2010)

and I would say of Italy?

"Proposal In Italy Would Require Gov't Authorization To Upload Any Video" (TechDirt, 18 January 2010) and for the French version, "Italie : un décret pour contrôler les vidéos du Web" (Net Eco, 19 January 2010)

The technical details of privacy/surveillance are worth understanding as it seems that China hacked the security features/apps used by Google. "China Google Hack Shows Security Gaps... Or Issues In Online Surveillance Apps?" (TechDirt, 18 January 2010)

For a reaction to Google's announcement: "Clinton urges Internet freedom, condemns cyber attacks " (Business and Human Rights Resource Centre, 21 January 2010) with a series of links to the media

and for an analysis in French: "Pékin-Google : le bras de fer s'engage" (Business and HR Resource Centre, 22 January 2010)

Due process and Twitter

Due process....

Twitter Banning Satirical 'Fake' Versions Of Politicians? (TechDirt, 28 October 2009)

China and censorship

Quite a funny one and not about political censorship, but about a Governmental Chinese report on copyrights whose access has been blocked... by the software GOogle used to avoid malwares.
That's Rich: China Accuses Google Of Censorship (TechDirt, 28 October 2009)

Twitter issues

A judge banned the use of Twitter in the courtroom; it is a form of broadcast in the sense that put all together the threads form a good picture of what happened; on the other hand, one does not need to be journalist to tweet.
Judge Says No Twittering From The Courtroom (TechDirt, 10 November 2009)


THis is rather silly and a complete misunderstanding of what Twitter as a company does. Levi Johnston's Lawyers Threaten Twitter, Despite No Legal Basis (TechDirt, 9 November 2009)

And the issue of spam also seems a bit hyped up. It Doesn't Matter How Many Twitter URLs Are Malware... Only If People Are Clicking (TechDirt, 30 October 2009)

ISP & co Liability

Google Not Liable For 'Defamatory' Search Result Snippets In The UK (TechDirt, 17 July 2009)

Filtering,

EC: New net-neutrality law is unnecessary - ZDNet.co.uk: "EC: New net-neutrality law is unnecessary"

The Conseil constitutionnel (French Constitutional Court) rejected part of the Bill nicknamed Hadopi in its provisions that were allowing an administrative authority to cut the right to access the internet. The Authority, although independent, did not provide sufficient safeguards to the internet user, given that was at stake freedom of expression. Only a court, as part of the judiciary with its own requirements of independence and impartiality, could take such decision.

The decision is interesting for several reasons:
1- in relation to the "independent administrative authority" system which France is so fond of, the decision puts a halt to a recurrent trend to transfer legal issues from the courts to non judicial authorities.
2 - it is a reminder that freedom of communication and expression are so intrinsic to the internet, that any measure curtailing it, whatever the justification offered, must be assessed by the courts. Compared with what is happening with ISPs taking down materials, the decision makes one think about the appropriateness of those take down notices procedure not validated by courts...
3 - I am not as sure as the Commission that net neutrality is not needed; resorting to courts is not the main method within Europe. Harmonisation at EU level should be certain before engaging into a dangerous path

Piracy and ISPs' attitude in Sweden

Exploiting a gap in the law, Swedish ISPs do not keep any content nor any log on their customers. A radical stand to maximise privacy against the Governments' trend (like the UK) to want to keep data.

"More Swedish ISPs Decide To Keep No Logs To Protect Users" (TechDirt, 29 April 2009)

The movement is linked with the piracy case against Pirate Bay which is also a party with a seat in the EU Parliament "Swedish Pirate Party may win EU Parliament seat" (ZDnet.co.uk, 6 May 2009). Maybe there'll be a change in policy in the future?

For the origin of piracy, a truely international crime at the time, see "A Look Back At The History Of The Word 'Pirate'" (TechDirt, 30 April 2009) who refers to a SSRN paper "The Framing of 'Piracy': Etymology, Lobbying & Policy" from K. Matthews Dames

ISPs not effective cops?

When I have the time, I'll read it more carefully, but the research is interesting. If it is proven that ISPs are not effective cops, then there is a practical for forbidding them to act as cops, independently of human rights issues.

"Research Paper Shows How Useless It Is To Require ISPs To Be Copyright Cops" (TechDirt, 18 February 2009). The post refers to an article in Computers and the law available on SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1329703 from Adams and Brown (the later I wrote a post about on 5 February 2009 Transparency in cybercrime reporting/filtering of content)

Google's criminal liability

Just two informations on this: the trial is opening; Google's exec was silly enough to travel to Italy for a conference and got arrested.
I can't find information about which bits of the criminal code or legislation has been used, but my knowledge of Italian is too bad to do any serious research.

For TechDIrt,

For the International Association of Privacy Professionals, "Additional claim filed against Google" (3 February 2009)


Update on 21 February 2009:
I thought it was not worth writing a different post, but rather completing this one. The judge seems to have refused dismissed the case. Assuming that Google is not responsible, two interpretations can be given: 1) a silly decision, 2) a willingness to let the trial happen so that the flaws in the prosecution's arguments can be exposed and the judgment be a final stop to this king of charges. The later is not as unlikely as one may think and it is a tool used by European Governments themselves when they let a case move to the European Court of Human Rights knowing full well they will be condemned. It is an effective way of settling the law.

http://www.techdirt.com/articles/20090219/0045403825.shtml

Forcing ISPs and others to act via shaming

There seems to be a trend here. Shaming seems to be a very effective method to force ISPs and others (search engines for example) to filter their contents and to stop retaining data. Or is it bullying or threats or mob's justice? The difference between the two may well be nault and this is worrying when are at stake human rights. Here, the independence and impartiality of the institution making the request and for which purpose (censorhip vs protecting privacy) are crucial elements to draw the line

"Is Public Shame Enough To Keep ISPs From Doing Bad Stuff With Your Data?" (TechDirt, 15 October 2008)

"Why Is Andrew Cuomo Pushing ISPs To Use Spyware On Everyone's Internet Traffic?" (TechDirt, 17 October 2008)

"China Adds Search Engines To Its Censorship-By-Guilt Plan; How Will Google Respond?" (TechDirt, 5 January 2009)

ISPs role: caught in fire?

A recent ruling from the European Court of Human Rights against Finland highlighted the crucial role ISPs can play in investigations and protection of the person. K.U. v. FINLAND (2 December 2008),
"The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of K.U. v. Finland (application no. 2872/02).
The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the Finnish authorities’ failure to protect a child’s right to respect for private life following an advertisement of a sexual nature being posted about him on an Internet dating site." (statewatch)

And yes, ISPs are policemen. Not such a bad thing as long as the courts are involved and criminal procedure respected, which is not always the case.
"Danish High Court Says ISPs Must Be Internet Policemen; Have To Block The Pirate Bay" (26 November 2008)

Google charged - but on which grounds?

Facts: four kids downloaded on Google a video of when they were taunting a disabled child. Prosecution, in addition to charge the children, contemplates charging Google.
I can't understand on which grounds the prosecution was thinking of charging four executives of Google. Complicity? impossible there is no mens rea and the actus reus is abstention because Google did not download the video but the kids authors of the offences. Conspiracy? impossible as no agreement... Corporate liability in criminal law? again makes no sense.
Thus the initial magistrate who rejected the case (not a trial decision if I understood well) is probably right. I wish I could speak Italian better to research a bit on this
"Italy Moves Forward With Plan To Prosecute Google Execs Over Online Video" (7 November 2008)

Liability of auction sites

Following Yahoo! case: what for e-bay? "Belgian Court Agrees With US Court That eBay Not Liable For Fake Products" (13 August 2008)