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.

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).

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.

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.

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.

In a massive public relations own-goal, Romano Prodi’s centre-left government in Italy has preliminarily approved a compulsory registration system for any web site involving “editorial activity”.

And it definitely, definitely, definitely doesn’t have anything to do with silencing comedian, blogger and general thorn in the Italian establishment’s side, Beppe Grillo (Wikipedia article).

Definitely not.

Since the story broke, the article in question has been watered down to presumptively exclude ‘personal’ sites, but the discretion to make that distinction remains with the ministry implementing the law, rather than the courts.

Thanks to Maureen Lister for the Times Online article. I expect that she’ll cover the story at some point on her blog too. Maureen makes an excellent point about Grillo in an unrelated post:

Grillo is successful first of all because he is a brilliant comedian, secondly because he comes up with a lot of information (rather than bla-bla opinions) and thirdly because he uses webtools intelligently, something that hardly anyone in the media has bothered to mention.Of course blogs, used by averagely intelligent people, are a serious threat to traditional media, (and therefore to traditional politics) and have the power to undermine the present RAI-Mediaset duopoly.   

More coverage:Beppe Grillo – original postBeppe Grillo – updateSlashdot coverageTimes online articleTimes online updated articleBoingBoing coverage

Obama will support filibuster of any bill granting telecom immunity:
The so-called “Austin Mayor” says:

Sen. Barack Obama will back a filibuster of any Senate FISA legislation containing telecom immunity, his campaign has just told Election Central. The Obama campaign has just sent over the following statement from spokesman Bill Burton: “To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”Link 

(Via BoingBoing.)

I don’t actually have the words to describe how stupid this is, but I hope you like this picture:

Yeah.

BBC coverage Gizmodo coverage

Hang on a minute. These are legal, legitimate CDs – I know because I’ve bought a few myself.

CD-Wow does, then, pay whatever royalties are due wherever they source the discs from as part of their purchase price. And the CDs, being legitimate, were released by the very record companies themselves (perhaps not the same subsidiary, but branches legally entitled to release the records nonetheless).

So who exactly is getting scammed by CD-Wow’s practices? No-one. And as for the ruling – sounds like it’s the consumer, as usual.

Why do people buy from CD-Wow? Because it’s cheaper. And they’re buying legally, at a time when the music industry is continuing to moan about ‘piracy’. CD-Wow were certainly in breach of the 2004 agreement, but that agreement was an extremely stupid precedent.

The BPI claims that CD-Wow’s tactics undermine “the legitimate businesses of UK retailers and record companies”. I’d like to say a few things on that.

• Your failed business model is not my problem.
• I, as the consumer, should be the judge of retail value, rather than having it decided for me by a cartel
• CD-Wow were among the cheapest retailers. You couldn’t compete. Why should I care?
• Evidently, the music industry charges different prices around the world for a (bit-for-bit) identical product. Silly, but fair enough if people are willing (and foolish enough) to pay the higher prices. But in no way should rights groups be able to stop people importing cheaper-sourced ones abroad.

If someone could please explain to me how the 2004 ruling and its subsequent enforcement possibly advance the free market and/or benefits the consumer in any way, shape or form, I positively beg them to explain it to me.

Answers on a locally sourced cartel-authorized postcard please.

Gonzales’ latest remarks are indicative of the contempt shown by the current American administration for one of the greatest political documents and institutions of the past five hundred years.

I Am Not A Lawyer, nor an American, ergo he may be factually and legally correct. But arguing for this position is beyond the pale.

I rest my case.

Some notable examples from the past few days’ media coverage:

Swedes favour more bugging
Supreme court refuses to hear challenge to air passenger identification requirements
The continuing air passenger data-sharing disagreement between the EU & USA
US Visitor Fingerprints To Be (Perhaps) Stored by FBI
Bush says feds can open mail without warrant

I personally find some of these developments to be more than a little disturbing: however I am conscious that, particularly outside the United States (where many of the most egregious challenges to civil liberties occur nowadays), people don’t seem to care about privacy any more. Or else, they see these developments as inevitable and (to some extent) a necessary compromise.

I wonder if this has anything to do with the political context of the ‘war on terror(ism)’, or whether it’s part of a trend of passivity toward individual rights which pre-dates 9/11. In any case, many seem willing to trade privacy for ‘security’. Ben Franklin aside, people apparently fail to recognise the dangerous, and quite possibly permanent trade-off they are making.

The arguments used always go something like this: “We are facing a radically new threat, that of violent and suicidal terrorism. This terrorism seeks to destroy our essential liberties”.

And then the logical complement which is usually given:

“Therefore, we must give up some individual liberties in order to guarantee the security of the community as a whole”

For the life (and liberty) of me, I can’t make this argument flow. We hear it every day from people like John Reid, Tony Blair and any number of chief police officers, yet as far as I can see, it’s analytically hollow.

The final gambit often turns out to be a suspension of due legal process, as a corollary of the compromise made. New threats = suspension of tried and tested principles. To take an example: Section 43 of the Terrorism Act 2000′s stop-and-search powers.

I’d like to throw this one open to my intelligent and well-informed readership. So, answers on a postcard please:

Is 9/11 entirely to blame for society’s acceptance of measures like these, or were people already willing to make the compromise?
Does the example argument presented have merit?
Is it justified, necessary or effective to make compromises in privacy and civil liberties for the purposes of defeating terrorism?
Are privacy and civil liberties contested concepts in the first place?
Do you think that measures such as Sec. 43 will be repealed – or is the loss of civil liberties a relatively one-way street?

Pirate Bay trying to buy Sealand, offering citizenship:

Cory Doctorow:

The Pirate Bay is raising money to buy the tiny, bankrupt “island” of Sealand. Sealand is the abandoned drilling platform gun battery near the UK that was occupied, declared soveriegn, and turned into a offshore data-center for sensitive information. Sealand’s owners have put the “country” on the block, and the Pirate Bay, Sweden’s gutsy, notorious BitTorrent tracker, is soliciting donations to buy it. They’re even promising citizenship to donors. If they don’t get enough to buy Sealand, they’re promising to buy another island somewhere.

Link

(Via BoingBoing).

Several students admirably take up Tabatabainejad’s cause, repudiating the officers’ advances, and (as the video proves) recording the events so that ample evidence now exists for a high-profile lawsuit.

Laura writes:

The questions I would ponder are:

1) Would the reaction on the part of the security staff had been as fierce if the student was white and/or female?

2) Were the actions of the student and the police influenced by the large number of students gathering to see what was going on?

I’d be interested to know what you think.

It’s a shocking video, and a brutal indictment of the police involved and the climate of hysteria which exists in some circles in the U.S. regarding Arab-Americans.

More: Detailed coverage from Andy Sternberg; BoingBoing’s first and second post on this; Pictures of Friday’s student protests at UCLA over this incident; UCLA chancellor’s response

I have included Laura’s post below, along with the video of the arrest. Don’t watch if you’re squeamish.

I originally saw this video posted on kensei‘s journal. It shows a student being tasered by security staff at a university library. Apparently it is policy for people to be IDed in the library after 11pm for the safety of the students.

Personally I’m wondering if this incident would have happened if the student was white. Or female for that matter.

Well, the answer is that the shit hits the fan, Cisco style.

Christopher Soghoian published a PHP script on his site which generates fake boarding passes in any name given, in order to demonstrate the flaw. Perhaps an error of judgement.

Except this time, unlike with the Cisco IOS affair,the flaw is so well known that a United States Senator has already published details of it in an official press release, as well as it being widely reported in the media (as linked above at Slate).

So will the Senator, and indeed Slate be prosecuted? I highly doubt it.

And now, Congressman Edward Markey (D-Mass.), who had earlier called for Soghoain’s arrest in colourful and quasi-patriotic language has retracted his request:

“On Friday I urged the Bush Administration to ‘apprehend’ and shut down whoever had created a new website that enabled persons without a plane ticket to easily fake a boarding pass and use it to clear security, gain access to the boarding area and potentially to the cabin of a passenger plane. Subsequently I learned that the person responsible was a student at Indiana University, Christopher Soghoian, who intended no harm but, rather, intended to provide a public service by warning that this long-standing loophole could be easily exploited. The website has now apparently been shut down.

“Under the circumstances, any legal consequences for this student must take into account his intent to perform a public service, to publicize a problem as a way of getting it fixed. He picked a lousy way of doing it, but he should not go to jail for his bad judgment. Better yet, the Department of Homeland Security should put him to work showing public officials how easily our security can be compromised.

“It remains a fact that fake boarding passes can be easily created and the integration of terrorist watch lists with boarding security is still woefully inadequate. The best outcome of Mr. Soghoian’s ill-considered demonstration would be for the Department of Homeland Security to close these loopholes immediately.”

Here’s an earlier BoingBoing story on the matter:

FBI returns to “Fake Boarding Pass” guy’s home, seizes computers:

Xeni Jardin:
(Story background here). Christopher Soghoian today blogs that the FBI returned to his home last night in his absence with a search warrant, and seized computers and other belongings. The 24-year old computer science student is the creator of a website that generated fake airline boarding passes to illustrate a security flaw which has been documented on the ‘net since (at least) 2003. I reached Soghoian by email today, and he declined comment on advice from attorneys.

Snip from his most recent blog entry:

I didn’t sleep at home last night. It’s fair to say I was rather shaken up.

I came back today, to find the glass on the front door smashed.

Inside, is a rather ransacked home, a search warrant taped to my kitchen table, a total absence of computers – and various other important things. I have no idea what time they actually performed the search, but the warrant was approved at 2AM.

Link to full text of post. Search warrant scans: page 1 (BB mirror), page 2 (BB mirror). (thanks, Jan Pederson, David Molnar, Craig, Catspaw, John Hudgens, and others.)

BACKGROUND POSTS ON BOINGBOING:

* Fake boarding pass guy reports he was visited by FBI

* Congressman wants fake boarding pass guy arrested

* Website generates fake boarding passes
* Slate’s Andy Bowers on airline security loopholes

PREVIOUSLY AROUND THE WEB:

A number of people before Soghoian have pointed out the airline security vulnerability his “Fake Boarding Pass Generator” website illustrated. Among them:

* Bruce Schneier (2003): Link

* Sen. Charles Schumer (2005): Link

* Andy Bowers, Slate.com (2005): Link

* Jacob Appelbaum (2005): Link

Reader comment: Kevin says,

I’m pretty sure that you can bank on the fact that the FBI will be going through the IP logs to see everyone that visited that site.

Steve Peterson says,

Here’s an article from Twin Cities newspaper with reaction from NWA (Ed. note: this one, not the one from Compton) to the Northwest Airlines Fake Boarding Pass Generator story: Link

UPDATE:
* Fake Boarding Pass Generator guy and FBI: what about the law? (10-28-06)

(Via BoingBoing).

Traditionally, copyright has been firmly in the realm of ‘stakeholder’ politics, but in an age where ‘stakeholders’ include 15-year-olds uploading videos to SueTube (explanation), multi-billion dollar ‘content’ companies and the quasi-corporatist non-governmental organisations, isn’t it time for a proper debate?

The Parallel Politics of Copyright and Environment:

zumaya100k writes “In recent months, Slashdot has covered the rise of the Pirate Party and the battles in Europe over iPod interoperability. Canada’s Hill Times has an insightful column from Michael Geist that links these developments as the growing importance of copyright as a political issue. He argues that copyright is now tracking the environment as a mainstream political issue.” (Geist is talking about Canada here, but much the same can be said about the U.S. and other places.)

(Via Slashdot).

I, for one, welcome our digitising, organising, aggregating, comparison shopping, advertising, Mountain View overlords.

Publishers Thank Google for Book Sales:

eldavojohn writes “A few book publishers are actually thanking Google for an apparent rise in sales due to Google’s scan plan. Google is busy defending itself against authors and publishers that have brought lawsuits for ignoring copyrights. The director of the Oxford University Press said, ‘Google Book Search has helped us turn searchers into consumers.’ It seems to work in favor of the smaller publishers: ‘Walter de Gruyter/Mouton-De Gruyter, a German publisher, said its encyclopedia of fairy tales has been viewed 471 times since appearing in the program, with 44 percent of them clicking on the ‘buy this book’ Google link.’ Do you think that Google’s ‘sneak peak’ search access increases sales or violates copyrights on intellectual property?”

(Via Slashdot).

“But the draft code of conduct has no guidance on weighing privacy against the demands of law enforcement,” said Caspar Bowden, former head of FIPR.

He questioned how police could balance the rights of victims, suspects and the general public if this was not made explicit.

Mr Bowden also questioned the wisdom of making it an offence to refuse to unscramble evidence. He said there were many scenarios that made it possible for a suspect to deny they ever had the key that unlocked encrypted data.

Already, he said, there had been one court case in which a suspect was acquitted after claiming a computer virus under someone else’s control had caused the offences for which he faced trial. Mr Bowden speculated that other suspects could use the same tactic or would fake a virus infection to get themselves off the hook.

Some fear the powers will stop people taking care with data
He also asked how someone would prove they had genuinely lost or forgotten a password and wondered if the threat of a jail sentence would hamper efforts to make users take more care of personal data.

“Will it deter the mass of honest users from properly securing their data?” said Mr Bowden.

You bet.

BBC story