Targeting Google

Mar 6th, 2010 | By | Category: Blogosphere News

Google trademark logoGoogle Inc. Responds To Italian Court Ruling Holding Executives Liable For Posted Videos

Culled From The Prague Post

By Matt Sucherman

In late 2006, students at a school in Turin, Italy, filmed and then uploaded a video to Google Video that showed them bullying an autistic schoolmate. The video was totally reprehensible, and we took it down within hours of being notified by the Italian police. We also worked with the local police to help identify the person responsible for uploading it, and she was subsequently sentenced to 10 months’ community service by a court in Turin, as were several other classmates who were also involved. In these rare but unpleasant cases, that’s where our involvement would normally end.

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But, in this instance, a public prosecutor in Milan decided to indict four Google employees – David Drummond, Arvind Desikan, Peter Fleischer and George Reyes (who left the company in 2008). The charges brought against them were criminal defamation and a failure to comply with the Italian privacy code. To be clear, none of the four Googlers charged had anything to do with this video. They did not appear in it, film it, upload it or review it. None of them knows the people involved or was even aware of the video’s existence until after it was removed.

Nevertheless, a judge in Milan Feb. 24 convicted three of the four defendants – Drummond, Fleischer and Reyes – for failure to comply with the Italian privacy code. All four were found not guilty of criminal defamation. In essence, this ruling means employees of hosting platforms like Google Video are criminally responsible for content that users upload. We will appeal this astonishing decision because the Google employees on trial had nothing to do with the video in question. Throughout this long process, they have displayed admirable grace and fortitude. It is outrageous that they have been subjected to a trial at all.

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. The belief, rightly in our opinion, was that a notice and take-down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and, indeed, every social network and any community bulletin board are held responsible for vetting every single piece of content that is uploaded to them – every piece of text, every photo, every file, every video – then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.

These are important points of principle, which is why we and our employees will vigorously appeal this decision.

- The author is vice president of Google and the deputy general counsel for Europe, the Middle East and Africa.

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Firm’s predatory practices are more worrisome than the Italian invasion of privacy ruling

By Bill Cohn

While the Feb. 24 ruling by a court in Italy grabbed headlines, a back-page story that same day is of greater concern to Google and Web users. The Milan court’s conviction of three Google executives for violating the privacy of an Italian boy by allowing a video of him being bullied to be posted on its Google Video Web site in 2006 is fatally flawed and cannot stand. But the Feb. 24 announcement that EU antitrust regulators are acting on complaints made by three online firms alleging predatory business practices by the search engine king raises concerns that will not go away any time soon.

Judge Oscar Magi’s verdict of criminality flies in the face of common sense and the very essence of the Internet. It is indeed like finding the postal service guilty for delivering a letter with unlawful contents. Given that some 20 hours of video are uploaded every minute to YouTube, which Google bought for $1.65 billion in 2006, it’s impracticable for Google to prescreen content. We can, however, expect the company to have effective policies to pull harmful content – and its self-policing procedures seem to work reasonably well in the case in Italy and in general.

Italy’s ruling bears the oily fingerprints of Silvio Berlusconi, once again conflating his control of broadcast media and politics. His campaign to deny Italians broadband and place anachronistic restrictions on Internet firms makes Italy an international pariah, going against the flow of commerce and technology. Italy’s harsh cyber laws are borne of power politics not reason.

The world recognizes the unique and ubiquitous character of the Internet, and lawmakers from Brussels to Washington have acted so we all may benefit from its great potential to spread ideas and information. The EU safe harbor directive shields Internet service providers (ISPs) from liability for posted content. (Look for the EU to now force Italy’s hand by updating the decade-old law to cover user-generated content, thus reconciling conflicting rulings in France and Italy). The U.S. Congress granted ISPs immunity for ordinary defamation because the Internet merits the highest free speech protection, and subjecting ISPs to liability for all material they transmit would grind the Internet to a halt. The medium matters.

Ultimately, law and the Internet are a mismatch. Law is local, the Net global. Law is territorial, the Net virtual. Regulating Web activity presents huge headaches: Which law applies and when? Law as traditionally applied would dumb down the Net so its only content would be that which complies with law everywhere. Thus, the application of national law must give way to internationally agreed standards and protocols. Like acid rain, pandemics and nuclear arms, the Internet demands vision and cooperation for the common good. Sadly, economic woes yield protectionism not vision.

Is Google the next Microsoft? EU Competition authorities hounded Microsoft for years for using its market dominance of PC operating systems – Windows held 90 percent of that market – to leverage control over ancillary markets (Internet browsers, media players, etc.) via predatory business practices (those aimed at eliminating competition). Competition spurs innovation and progress, allowing consumers to choose the best quality products at the lowest price. Any barriers to market access hurts consumers. Even when a monopolist offers something for “free” – as Microsoft claimed when bundling its browser and media player with Windows – if its aims are to eliminate competition, then consumers will suffer.

Google today stands accused of abusing its market power in online search and advertising. (It holds some 80 percent of the market for Internet searches and ads linked to them.) It faces antitrust actions in the EU, the United States, France, Italy and Germany. The algorithm it uses to generate its search results is at the center of controversy. Online firms allege Google’s search results are biased. The CEO of Foundem, one of the EU complainants, says Google search affords an “unassailable competitive advantage for Google. Competitors across multiple markets are being crushed by this tool, and that will potentially stifle innovation across the Internet.” Competitors also claim Google uses its universal search technology to favor its own services (maps, news, YouTube, etc.). Why would it not?

Google asserts that its algorithm, the underlying formulas that determine where a site shows up in Google search results, is its trade secret, its protected intellectual property (IP). But, so long as the algorithm is secret, the firm is susceptible to charges of predatory practices. If we don’t know how its search results are generated, why trust their fairness?

Like Microsoft, made to disclose its source code so competitors could offer Windows-compatible applications, Google will likely be forced to disclose its algorithm.

IP clashes with Internet ideals like Net neutrality, open source, information access, transparency – the notion that “information wants to be free,” and that free speech on the Net is a core liberty interest of democratic societies. But IP is central to online revenues and profits. IP is contentious; it too lays claim as the engine of innovation and progress, allowing inventors to profit from their labor so they have incentive to discover and create.

Google’s real concern is loss of its IP, which drives its search dominance and profits. In January, Google threatened to pull out of China, stating concerns over human rights, censorship and privacy. But its real concern is Chinese hackers stealing its secret codes and other IP. Google’s motto “Don’t be evil” is branding, not a business plan.

The dynamic nature of cyber law and e-commerce makes predictions perilous. Nonetheless, watch for a reversal of the ridiculous liability ruling of the Milan court. It is sloppy law – the criminality finding is patently absurd – as well as bad policy. And expect Google to be in the news for years to come for alleged predatory business practices. As Microsoft knows, it’s the inevitable result of a hugely successful trailblazing business.

- The author is a member of the California and International Bar Associations. He formerly practiced and currently teaches cyber law at the University of New York in Prague. He also lectures in ethics and logic.

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