Legal Analysis Of Italian Criminal Conviction Of Google Execs Says Judge Made A Big Legal Error

from the whoops dept

We were among those amazed back in February, when an Italian court ruled that three Google execs were criminally liable for a video posted on Google Video, and were sentenced to six months suspended sentences. The video in question involved some kids taunting a mentally challenged boy and throwing a tissue box at him. Within hours of Google being alerted to the video, it was taken down. Part of the debate focused on whether or not Google should have known about problems with the video or whether or not Google had actually been informed earlier -- but the only evidence that seemed to have been presented was that the comments on the video complained about the content. But it wasn't clear that anyone at Google had read the comments. Still, when the decision came out, it was just the decision -- not the full ruling by the judge, leading to some detailed legal guesses for the judge's reasoning.

However, it looks like the ruling has finally come out, and one Italian legal expert, after reading through it in detail, suggests the ruling was based on a pretty big legal interpretation error by the judge. The details are a bit complex, but basically, it seems the judge may have combined two separate parts of a law that were disconnected (and, the key part of the law wasn't even brought up in the case itself) to suggest that Google's big mistake was in not prominently telling users that they should not upload videos without the permission of everyone in the video. That information was in the Google Video's terms of service, but the judge felt that wasn't enough.

The problem is that the law doesn't actually say that Google had to make that information clear to users -- and, even if Google didn't satisfy that part of the law, not only was it not mentioned during the trial at all, it's also not connected to the part of the law Google was actually charged under:

The trouble with the ruling, said [Elvira] Berlingieri, is that Section 13 of the law was not mentioned in the case against the Google trio at all. One charge laid against them by prosecutors was to do with defamation, and that failed. The other was to do with privacy but that was based on a supposed data-processing violation of Section 167 of the law.

Section 167 of the Act says that anyone who breaches particular Sections of the Act with a view to gain or with intent to cause harm shall be punished by imprisonment of between six and 24 months. The Sections to which it refers, though, do not include Section 13.

"If you put together Section 13 and Section 167, that is how you get a sentence of six months," she said. "The problem is that Section 167 does not talk about Section 13. In the charge written by the prosecutors, Article 13 is never mentioned."

This definitely seems like good news for Google in its planned appeal.

Of course, even outside of the legal nuances of this, just from a common sense standpoint, this ruling is incredibly troubling. It's difficult to see how anyone (outside of those with logic deficiencies) could defend the ruling. The video itself was actually helpful in punishing the kids responsible. If Google had actually stopped the video from being uploaded, they would have gotten away with the bullying. On top of that, making the sanctions criminal against individuals seems way over the top, especially for individuals who had absolutely no knowledge of the video in question whatsoever. The whole thing seems ridiculous on any level.

Filed Under: criminal charges, eu, italy, liability, online video, privacy, youtube
Companies: google

Should Managers Care That Employees Are On Facebook And YouTube While At Work?

from the results-based-management dept

A recent study reported that 6.8 percent of URLs accessed by businesses lead to Facebook and 10 percent of bandwidth goes to YouTube. Of course, as to be expected, along with such a study come the fears that security and worker productivity is harmed by allowing access to such "non-work" sites:

The figures show that IT managers are right to be concerned about the amount of social network use at work. There are two real concerns here: firstly that employees will be downloading applications from social networks and putting security at risk; and secondly the amount of corporate bandwidth that appears to be being used for non-corporate activity.

These fears seem to resurface every once in awhile, especially when some new technology starts to become ubiquitous in the workplace. First, it's silly to think that social networks would somehow have more security-risking applications to download than the rest of the internet. As for the productivity concern, if you're worrying about how much time your employees are spending doing "non-work" things, then you're worrying about the wrong thing. From online shopping to social networking, allowing employees to do "non-work" web surfing while they are at the office keeps them happier and more productive. In fact, multiple studies have shown that social media sites like Twitter and Facebook actually make workers more productive by sparking creative ideas.

Of course, in order to manage this properly, managers must monitor productivity based on concrete, measurable goals -- rather than focus on the time spent doing the work. After all, if you're delivering results, why should your manager care if you spend a few minutes a day catching up with friends on Facebook?

Filed Under: facebook, productivity, twitter, youtube

Sony Music Claiming Beyonce's Official YouTube Channel Violates Copyright?

from the left-hand,-right-hand? dept

It really is incredible how screwed up some things are at the major record labels. The latest, via David Johnson, is that it appears (at least as of this writing) that Beyonce's official YouTube channel is blocked in the US due to a copyright infringement issue. I have no idea about if it's blocked elsewhere, but perhaps readers from other countries can let us know. In case they get this sorted out, here's a screenshot: We saw this happen a while back when YouTube and Warner Music had a dispute about a deal, but I was pretty sure that YouTube and Sony Music had a deal in place. Either way, there seems to be some sort of confusion going on.

Filed Under: beyonce, copyright, takedown, youtube
Companies: google, sony music, youtube

Did Google Ignore A Takedown On The Italian Video?

from the making-things-a-bit-more-complex... dept

As the arguments continue over the Italian verdict convicting Google execs of criminal privacy violations for a video on Google Video, there is one interesting tidbit that's now coming out. One issue is that the judge has only released the verdict, not the full reasoning -- and that's leading to an awful lot of speculation. But now, Stefano has alerted us to reports claiming that Google had received an earlier takedown request which it had ignored. Throughout the case, Google had insisted that within hours of receiving a takedown notice from the police, it had complied. But, apparently, the prosecutors are claiming that there definitely was an earlier takedown.

So now we go back to our post from last week about the law, and whether or not Google had sufficient notification for a takedown. Part of the problem appears to be that current EU law does not clearly state the process for a valid takedown. In the US, at least, with the DMCA, the process for what counts as a valid takedown and how it needs to be delivered is extremely clear. And that way you can guarantee what is, and what is not, sufficient notice that requires a takedown. In this situation, where the law is not clear, you are left with a problem of interpreting what counts as sufficient notification.

But that brings us to the second issue: even if Google was notified, but somehow missed the notification, does that then mean that it makes sense to convict three totally unrelated executives of criminal charges? It still sounds like that would be a massive leap. At worst -- if we take as a given (and I'm not saying it's true, but for sake of argument, let's say it was true) that Google was sent a takedown notice which it ignored -- I would think that it would make sense to fine Google and require it to have a clear process for handling takedowns. To go beyond that and criminally charge and convict three totally unrelated execs because it took a second notice to get the video taken down seems pretty ridiculous.

Filed Under: criminal charges, eu, italy, liability, online video, privacy, youtube

Will Google's Italy Conviction Stick... Or Is The Problem In The Law?

from the common-sense-problem dept

Most of the discussion around the conviction of three Google execs on criminal charges over a video uploaded to Google video (which none of those execs had anything to do with), rightly focused on the assault on basic common sense that the result created. Convicting three executives as criminals for actions they had absolutely nothing to do with, and which concern events where the company acted expeditiously once it was officially informed of the issue, just violates every concept of fairness. It's hard to see how anyone can justify this sort of outcome (though, we've see a few people try).

However, a separate question is whether or not the ruling has a real legal basis. Given some of the reports we'd received from some lawyers in Italy, the feeling was that this was perfectly within the bounds of Italian law (and some were upset that we'd even question that). There is some uncertainty, however, as to how this fits within wider EU law, which Italy must also abide by. The Citizen Media Law Project has a post that details why they think that the conviction won't hold on appeal, suggesting that the judge misclassifed Google in determining whether or not the company qualified for EU-wide safe harbors for service providers.

However, there are some other possibilities as well. Struan Robertson has a detailed post, looking at EU safe harbors, which notes two reasons why Google may have lost the case. The first is that, despite EU safe harbors, there's actually a carve out for data privacy issues. Since the execs were acquitted on defamation issues, but still convicted on privacy violations, this might be correct. However, if that's the case, it highlights exactly why this loophole is both silly and dangerous. Yes, privacy is very important, but it's never going to make sense to put the liability for privacy violations on a third party directly. There's nothing wrong with focusing on potential lawbreaking by those who created or uploaded the video -- but blaming the platform used for hosting the video makes no sense at all.

The second area that Robertson highlights is the one that prosecutors had definitely brought up in the case: that Google did have "notice" of the offending nature of the video prior to the official alert from the police. The prosecutors argued that the comments on the video should have served to alert Google. Again, this seems a bit ridiculous -- given how many videos are uploaded every day, and how many comments are found on those videos.

However, these issues all point to problems with EU law that really should be fixed. First, the safe harbors need to be clearer, so that it's understood who or what is covered. Second, the "privacy" loophole needs to be closed. Yes, privacy is important, but nothing is so important that it should lead to jailing totally unrelated parties. Finally, the law needs to be much clearer on what constitutes official notice. As Robertson notes, there was a proposal made in the UK a little while back to clarify that very issue, and the politicians chose not to do so. When you leave the process open wide to interpretation like that, you get cases with nonsensical results, such as what happened in this case. Hopefully, Google wins on appeal, but in the meantime, Europe really should fix these problems with its current safe harbor laws.

Filed Under: criminal charges, eu, italy, liability, online video, privacy, youtube
Companies: google

Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation

from the not-this-again... dept

Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.

Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig's presentations, that he just posted -- a "chat" he had done for the OpenVideoAlliance a week or so ago, about open culture and fair use, has received notice that it has been silenced. It hasn't been taken down entirely -- but the entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there's a notification somewhere that the audio has been disabled because of "an audio track that has not been authorized by WMG" (Warner Music Group) -- which would be the same company whose copyright caused the issue a year ago -- but I haven't seen or heard that particular message anywhere.

However, Lessig is now required to fill out a counternotice challenging the takedown -- while silencing his video in the meantime: While you can still see the video on YouTube, without the audio, it's pretty much worthless. Thankfully, the actual video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two separate videos -- both of which clearly are fair use -- neutered due to bogus copyright infringement risks suggests a serious problem. I'm guessing that, once again, this video was likely caught by the fingerprinting, rather than a direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules are.

Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.

This is backwards.

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas -- not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.

Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, you have someone who knows what happened, and knows how to file a counternotice -- though, who knows how long it will take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the wider audience in favor of a few large companies.

The system is broken. When even the calls to fix the system are silenced by copyright claims, isn't it time that we fixed the system?

Filed Under: copyright, fair use, larry lessig, silencing, takedown, videos, youtube

Should YouTube Allow Artful Nudity?

from the but-think-of-the-commenters... dept

The EFF and the National Coalition Against Censorship are apparently asking YouTube to consider changing its policy with regards to nudity. Apparently, it will allow nudity if the video is from a film or TV show -- but not if it's user generated videos made for YouTube. Separately, YouTube suggests it will allow nudity with "some educational, documentary and scientific content, but only if that is the sole purpose of the video and it is not gratuitously graphic." The problem, according to the EFF and NCAC, is that there is no exception for work that is artistic in nature, and apparently YouTube recently removed the videos of a well-known artist, Amy Greenfield, for violating the "no nudity" policy. Now, this isn't actually a "censorship" issue, since YouTube is a private site, and not the government. So, honestly, I don't see any problem with YouTube deciding that it doesn't want that particular content on its site, but there is a separate issue raised here -- which is that, once again, the real issue is Google's lack of customer service -- something we've seen a lot of lately. One of the complaints is that Greenfield's videos were taken down with no recourse and no method for her to communicate with folks at YouTube to talk about getting them back online.

Filed Under: nudity, video, youtube
Companies: eff, google, ncac

And A Million Rickrolls Went Silent... Demonstrating The Problem Of Pressuring Google To Takedown Without Due Process

from the this-is-what-you-get dept

So, just after the news came out last night that Google execs were criminals for not taking down videos fast enough, suddenly people started noticing that the original infamous Rickroll video had been taken down, due to a "terms of service" violation. While some assumed that it was a copyright takedown, usually Google is pretty good about clarifying when it's an actual copyright takedown. This was clearly something different. After a few hours of people screaming about missing Rick Astley, Google put the video back up, saying it was caused by too many people "flagging" the video as violating the terms of service, leading to yanking the video.

In the end, this demonstrates the difficult position that Google is put in. It's getting sued by entertainment companies, threatened by politicians and now convicted of crimes for being "too slow" in taking down "bad" videos (with "bad" often being loosely defined). So it creates systems to try to speed up the process, and the end result is that those systems can be abused as well, leading to videos getting taken down without due process. What's amazing is that people still think that Google can easily figure out which videos should be kept up and which should be taken down -- but when you consider just how much content is on the site, and the difficulty of reviewing any complaints, and the likelihood of both false positives and false negatives in reviewing videos, it's really incredible that anyone thinks it's reasonable for Google to take responsibility for the content.

The "rickroll" incident is a pretty clear indicator of why trying to put secondary liability on a third party like Google will almost certainly lead to more incidents like this -- where legitimate content is taken offline due to a legally mandated itchy trigger finger.

Filed Under: flagging, rickroll, secondary liability, takedown, youtube
Companies: google

Incredible: Google Execs Found Guilty Because Of YouTube Video; Given Six Month Suspended Sentences

from the legal-world-gone-mad dept

This is just downright ridiculous. We see all sorts of jaw-dropping legal rulings around here, but I still can't fathom how Italian law allowed the following case to be decided in this manner. As you may recall, a couple years ago, Italian prosecutors filed criminal charges against four Google execs. What was the crime? Apparently, some kids had taunted another boy with Down's Syndrome, and filmed the whole episode. In the video, the kids apparently threw a tissue box at the boy. They then uploaded the video to YouTube, along with the countless other videos uploaded to the site. Nearly a year ago, YouTube noted that 20 hours of video are uploaded to the site every minute. To think that Google should automatically have knowledge of what's included in every video uploaded to YouTube is ludicrous.

But it's even more ridiculous when you realize the full story. Within hours of Google being alerted to the problems with the video, the video came down. In other words, the company acted promptly when questions about the video were raised. But, even more importantly, the video itself was used as evidence to punish the taunting teens. Now imagine if they hadn't been able to upload the video. Then the kids likely would have gotten away with the taunting, without anyone knowing about it. Why would you ever want to blame Google for providing a tool that allows stupid people to give proof of their own illegal activities? And even then, rather than filing a suit against Google the company, Italian prosecutors chose to file the lawsuit against four execs at the company, most of whom had nothing to do with the company's Italian operations.

You might think that a judge would toss this sort of lawsuit out really quickly, but that didn't happen, and now, amazingly, the court has found three of the four execs to be guilty and given them six month suspended jail sentences. I vaguely remember reading that "first time offenders" given prison sentences in Italy of three years or less get suspended sentences, so the suspended sentence part isn't surprising. But, of course, given how many videos are uploaded, it seems likely that there will be second, third and further offenses of this nature as well. It seems like Italy has just suggested Google block all access to YouTube, while also increasing the liability for pretty much any other company to operate there or have any foreign execs visit the country.

Honestly, I can't see how anyone would make a ruling in this manner and think that it makes sense. As I said when the case first came up, you would think that suing the execs of the company that made the tissue box would make more sense than suing Google's execs. Why not charge the execs of the company that made the camera that was used to film the incident? It's hard to hear about this ruling and not consider the Italian legal system to be a joke.

Filed Under: criminal charges, italy, liability, online video, youtube
Companies: google

Bollywood Movie Released On YouTube Same Day As Theatrical Release

from the day-and-date dept

The whole concept of "windowing" movie releases makes little sense. It's as if the movie industry purposely wants to make sure customers don't get to consume the content in the format that fits them best at the time when they're putting the most money behind a marketing campaign. It's hard to fathom why they do this, other than the pressure they get from the movie theater companies (which is silly, because the theaters would benefit from this too). Every so often, though, we hear about a moviemaker who seems to understand how to better reach out to an audience. Pranav points us to the news of a new movie out of Bollywood that is being released on YouTube at the same time as its theatrical release. There is a big caveat though: the YouTube videos are only available for international, rather than domestic (Indian) viewers. Also, it looks like US viewers will have to pay to rent it via Google's new YouTube rental program, but those in any other country (outside of the US or India) can view it for free. It's not necessarily ideal (and there doesn't seem to be much of a business model behind the free viewings), but at least it's a step in the right direction.

Filed Under: day and date, india, movies, online, windows, youtube