Oscar Magi, the Italian judge presiding over the Google YouTube privacy/defamation liability case. Picture copyright Luca Bruno/Associated Press. Taken from The Guardian - click to view article.

– UPDATE Thursday 25th November, 23:25UTC:

Lilian Edwards has put together a really comprehensive analysis of the verdict on her blog. See also her prior post about it back in December.

Original post follows.

Wow.

Gosh, this is bad news.

Three of four Google employees on trial for defamation and violations of Italy’s privacy code, in reference to a video uploaded by a third-party to YouTube and subsequently taken down by Google after a takedown request, have been found guilty today by a court in Milan. They were absolved of the defamation charges but found guilty of privacy violations, and given six-month suspended sentences.

I haven’t been following this case in any detail, but what I can glean from the result seems more than a little out of step with the thrust of the E-Commerce Directive, given that they did not film, upload, or review the video, and acted to remove the content within a few hours of a police report (so presumably “expeditiously”).

But we are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence.

That’s taken from Google’s reaction on their blog.

This case has been ongoing for some time. There is analysis at Ars Technica and a somewhat contrary opinion at ZDnet blogs.

There is also good a BBC News report containing a video statement from a Google representative, who appears visibly shocked and emotional at the result. There is also coverage at The Guardian. And more for those who understand Italian at La Stampa and Corriere della Sera.

According to TechDirt, YouTube now receives 20 hours of video uploads every minute. It’s therefore worth noting that the Italian government have recently proposed making the approval of the Communications Ministry a prerequisite to uploading video onto the Web as part of their amendments to media law (presumably AVMS implementation?). A central part of Google’s argument in the case was the impracticality of such pre-approval/screening.

I hope the Commission go to town on Italy for failure to implement the E-Commerce directive’s safeguards.

Hello all,
The new edition of the International Free and Open Source Software Law Review is out now. I meant to publish this post late last week, but between the last-minute scramble to get the issue ready (this one was supposed to be easy but turned out to involve a whole lot of corrections at a late stage), it got missed out somehow.

Anyway, if you’re into law and open source, you could do a lot worse than to check it out. You can download a PDF of the entire thing, or order a print version via Lulu (which is very cool).

I guess I’m supposed to be neutral given that I run a lot of the reviews, copyedit and put the thing together, but the highlights for me are probably Silvia Pfeiffer’s article on open standards for video codecs in HTML5, which is well-written and extremely topical at the moment, and Susannah Sheppard’s article on the potential for competition law to affect Free Software, which is something I hadn’t directly considered before.

We’ve reached an interesting stage in the development of the journal. It’s now clear that it has a high degree of FOSS community support, and we are beginning to get the same from the academic community. Much work is still to be done though. We desperately need more submissions, could do with a more streamlined workflow, and on an ongoing basis we will require a more permanent governance structure.

One of the things that has helped most in achieving visibility is being part of the OCLC OAIster database. This is replicated across lots of libraries, as part of their ‘find an eJournal’ systems. It means that more academics and students are more likely to be able to find the publication without doing a web search.

We also now deposit DOI numbers with CrossRef – this helps articles maintain their authority if they get distributed across the web or hosted by some other server (as our licence policy allows).

…well, so far, anyway. Some highlights from the 6th January House of Lords committee stage follow. Most of the discussion so far has been about OFCOM’s obligations. The ‘three strikes’ copyright infringement stuff hasn’t been discussed yet, but I’ve included a preview of the most interetsing amendments tabled so far in this area at the bottom of this post.

Amendments already discussed

A light-hearted one to start you off:

Baroness Howe of Idlicote, on why investment in mobile networks is a good idea:

“Equally, the noble Lord, Lord Steel, made a very important point. I, too, live in one of the completely hopeless reception areas. Enough gigabytes need to be available so that the level is acceptable right across the country. I fear that we did not have enough gigabytes in the first place so that we could compete with countries such as Japan and so on. That is one of the problems with which we have to live.”

(6th Jan, Column 149)

Oh noes! We don’t have enough gigabytes!

Some enlightened talk – but full of bombast – from Lord Lucas on trust-busting (during a section about the universal service obligation on broadband providers). He is clearly a long-term BT critic:

“However, as the noble Lord, Lord Mitchell, pointed out, we are facing not a tide but a tsunami-the dam has broken. He outlined a world where there is the growth of apps, to be followed by a decent e-book, at last-I am dead certain that Apple will not produce anything other than that. This will create an enormous change, not only for this part of the Bill but certainly for Clauses 4 onwards. I declare an interest as someone who earns most of his money from selling copyright on the net.

It is wrong to see these things as a threat. They are an enormous opportunity. The way in which to harness an opportunity is not to live with the old monopolists and try to shore them up, doing cosy deals with the big beasts of the industry, but to encourage the underdogs and the people who are motivated to change.”

(6th Jan 2010, Column 159)

Perhaps not to positive on the copyright side, but at least with regard to broadband provision there’s some determination not to hand BT a chunk of change and not keep a tight reign on them. Anyway, Lucas’ amendment was withdrawn.

An attempt to usurp the special place of investment in public service broadcasting by Lord Howard of Rising (amendment 3, here):

“My Lords, I shall speak also to Amendments 4, 6, 7 and 31. These five amendments fall into a few different groups. Amendments 3 and 6 serve two purposes-first, to create a level playing field with respect to investment in media content, and, secondly, to highlight a further concern that this subsection may have on Ofcom’s ability to function properly. By removing the phrase “public service” from this duty, we are attempting to create a level playing field in the media sector.

We on this side of the Committee want to attract investment into UK content in general, rather than just public service content. Without this amendment, such a duty may put off potential investment into the UK media sector, because it would create a fear that Ofcom may intervene to the detriment of those not producing public service content. We do not believe that the state should choose what type of content non-public service broadcasters invest in. Consumers value choice above all else, and these amendments would ensure that this is protected.

(6th Jan 2010, Column 163-164)

Amendments still to be discussed

You can view a full list of amendments to be discussed in the Committee stage at the HoL site. From my (copyright policy) perspective, the most interesting are:

Amendment 33 (Lord Razzall; Lord Clement-Jones):

“Obligations on copyright holders

Copyright holders seeking to take action against subscribers for online copyright infringement must use the process set out in sections 124A to 124E of the Communications Act 2003 except in cases of actual or likely extreme prejudice.”

Amendment 34 (Lord Razzall; Lord Clement-Jones):

“Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action—

(a)  is necessary and proportionate to the goal of protecting and enforcing copyright, and

(b)  that it appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights.”

Amendment 56 and 57, on introducing a DMCA-style sworn statements to affirm that the accuser owns the copyright concerned and has collected the information legally:

“56 Page 6, line 24, at end insert “; and

(   )  includes a sworn statement by the person making the report that the information collected has been obtained in compliance with all relevant laws, including data protection and privacy laws, and by persons entitled to gather such information”

57 Page 6, line 24, at end insert “; and

(   )  includes a sworn statement and evidence that the person making the report owns the requisite copyright” “

I doubt those last ones will survive the Committee stage.

There are also a number of amendments clarifying the accusing tone of the language, from “infringement” to “infringement allegation”. These can be found throughout the tabled amendments.

I couldn’t let the topic of Peter Mandelson’s new Digital Economy Bill go un-blogged, so rather than subject you to my incoherent ramblings, I thought I’d point legally-minded readers in the direction of Pangloss’s excellent analysis of the Bill as it stands.

The Bill has just been presented for its first reading, and despite the hysterics and some inaccurate reporting from the usual folk, there really is a lot to be concerned here about in terms of copyright policy and civil liberties. The Bill would allow the Secretary of State to make amendments to copyright law by Statutory Instrument, would mandate ISPs to notify (and possibly later disconnect) customers based on mere accusations of copyright infringement on their account, and a few other ill-thought-out measures.

I will be phoning my MP in the next few days to ensure that he votes the Bill down when it is presented in the Commons.

Those wishing to read more of the context of the Bill’s introduction can read Ars Technica’s background piece. You can read the Bill itself, as presented to the Lords, here.

Nice work again, Ms. Reding:

UK laws protecting the privacy of people’s communications are inadequate, the European Commission has said. The Commission has launched a legal case against the UK over its implementation of European Union Directives.

The Commission’s investigation was sparked by outrage over trials by BT of a system which monitors web use and tries to match advertising to people’s perceived interests. The trials were done without BT customers’ knowledge or permission.

The Commission has investigated complaints made to it and to police and has found the UK’s laws inadequate in protecting the privacy of communications.

The UK.gov’s reaction to the Phorm fiasco, and its attitude to privacy in general, is best described by the following lolcat:

So I welcome this intervention, and hope that the UK gets slapped around the face and fined an enormous sum of money.

You can read the full article at out-law.com.