Group items tagged

intellectual property infringement.

The Google/Equustek case is not one of permissionless innovation, but is still an example of a large internet intermediary taking the position that it can do as it damned well pleases because, after all, it operates in multiple jurisdictions—in fact it operates in cyberspace, where, according to some, normal regulatory practices and laws shouldn’t apply or we will “stifle innovation”.

One innovation that Google has instituted is to tweak its geolocation system

The excuse of “it’s not my fault; blame the algorithm”, also won’t fly anymore. Google’s algorithms are the “secret sauce” that differentiates it from its competitors, and the dominance of Google is proof of the effectiveness of its search formulae.

But scooping up every bit of information and interpreting what people want (or what Google thinks they want) through an algorithm has its downsides. A German court has found that Google cannot hide behind its algorithms when it comes to producing perverse search results

AI is great, until it isn’t, and there is no doubt that regulators will start to look at legal issues surrounding AI.

Companies like Google and Facebook will not be able to duck their responsibility just because results that are potentially illegal are produced by algorithms or AI

One area where human judgement is very much involved is in the placing of ads, although Youtube and others are quick to blame automated programs when legitimate ads appear alongside questionable or illegal content. Platforms have no obligation to accept ads as long as they don’t engage in non-competitive trade practices

Google has already learned its lesson on pharmaceutical products the hard way, having been fined $500 million in 2011 for running ads on its Adwords service from unlicenced Canadian online pharmacies illegally (according to US law) selling prescriptions to US consumers.

Google is a deep-pocketed corporation but it seems to have got the message when it comes to pharmaceuticals. What galls me is that if Google can remove Adwords placements promoting illegal drug products, why, when I google “watch pirated movies”, do I get an Adwords listing on page 1 of search that says “Watch HD Free Full Movies Online”.

At the end of the day whether it is Google, Facebook, Amazon, or any other major internet intermediary, the old wheeze that respect for privacy, respect for copyright and just plain old respect for the law in general gets in the way of innovation is being increasingly shown to be a threadbare argument.

What is interesting is that many cyber-libertarians who oppose any attempt to impose copyright obligations and publishing liability on internet platforms are suddenly starting to get nervous about misuse of data by these same platforms when it comes to privacy.

This is a remarkable revelation for someone who has not only advocated that Canada adopt in NAFTA the overly-broad US safe harbour provisions found in the Communications Decency Act, a provision that has been widely abused in the US by internet intermediaries as a way of ducking any responsibility for the content they make available, but who has consistently crusaded against any strengthening of copyright laws that might impose greater obligations on internet platforms.

proponents of reasonable internet regulation

he democratic right for non-Americans to determine the rules under which we should live is not even considered. Instead, attempts by democratic governments to impose legitimate democratic regulation on these companies, many of which have assumed the status of essential infrastructure, is derided as creeping authoritarianism or as a threat to the free and open internet.

At the very least, thinking of internet governance in these terms should make us more sympathetic to attempts by the Australian, Canadian, German and United Kingdom governments to legislate in this area, rather than be dismissive of the legitimacy of (democratic) governance on its face. If we value democratic oversight, state regulation is almost the only game in town, an approach that can be complemented with international treaty-making among democratic states so as to create agreed-upon minimum standards for regulating cross-border platform activities.

o address the first question, in a sense, the global American platforms are free riders on the notion that the internet as a network should be global in reach. Here, a useful analogy is the global financial system. Although we have a global financial system, it is characterized by domestic regulation and, in many countries

many of the social harms perpetuated by platforms are the likely result of their business models, which incentivize extremist speech and pervasive surveillance

Speech regulation without addressing these root causes is unlikely to be successful. If tools such as internet search functions truly have become essential to knowledge discovery and exhibit natural monopoly characteristics, countries should have the ability to determine for themselves what form they should take. To be blunt, public ownership should be on the table, even if it isn’t, currently, in the United States.

Google’s threat (which mirrored Facebook’s) to cut off its search service to Australia was likely due as much, if not more, to Australia’s plan to exercise oversight over its proprietary algorithm than it was about Australia’s plan to force Google to give a cut of its revenues to various Australian media outlets. The harshness of this threat highlights exactly how hard it will be for non-US countries to exert any meaningful control over the services currently monopolized by these US companies.

Already, the United States, as the home of these companies, is working to solidify the market and social dominance of its platforms.

As already mentioned, the CUSMA contains provisions protecting free cross-border data flows that, while justified in terms of encouraging trade, serve to preserve the dominance of the US platforms in Canada and Mexico. To this, we can add its successful inclusion of CDA Section 230 language in the agreement, effectively pre-empting Canadian and Mexican debates over what values we wish to apply to platform governance.

he first step to coming up with a sound policy involves understanding the policy terrain. In internet governance, and particularly in platform governance, this involves understanding the extent to which the dominant debates and landscape reflect particular US interests and values

hese interests and values do not necessarily reflect those of people living in other countries. Both Canadians and Americans believe in free speech and market competition. However, our interpretations of the limits of each differ. This reality — the acknowledgement of legitimate differences and the necessity of democratic accountability — should be our starting point in discussions of internet governance, not the desire to preserve a global internet and platform ecosystem that is much less global, and much more American, than it appears.

The Appeal Court based its decision on the fact that right holders' unions and societies were financially unable to cover the costs of injunctions, whilst ISP/IBPs were.

he appeal decision went further by stressing that their order was also justified by fact that the defendants generated profits from internet users accessing the infringing websites. As a result, the Court breached ISP/IBPs' freedom to conduct business (as protected by Articles 16 and 52(2) of the Charter of Fundamental Rights of the European Union).

Nevertheless, the Supreme Court insisted that the judiciary had jurisdiction to require of ISP/IBPs to perform any necessary measures against copyright infringement on the internet, thanks to the 2000 Directive on electronic commerce and the 2001 InfoSoc Directive (tranposed into national law under Article 6-1-8 of the 2004 'LCEN' Act). The Court held that the dispositions provided a lawful basis to have the costs of injunctions charged against ISP/IBPs. This is because as "technical intermediaries" ISP/IBPs are  "best placed to bring such infringing activities to an end", the Court say, quoting the words of the InfoSoc Directive (Recital 59) directly. 

. First, it confirmed that neither ISPs nor IBPs were liable for secondary infringement so long as they had no knowledge of the infringing activities or that they acted sufficiently promptly to put an end to the known illegal acts upon notification by right holders. Second, the Supreme Court reasserted that ISP/IBPs were under no statutory obligation to undertake surveillance work of internet users.

The Supreme Court judges see nothing under EU law that would prevent national courts from attributing all costs to intermediaries.

"despite their non-liability, access and hosting providers are legally bound to contribute to the fight against illicit material and, more specifically, against the infringement of authors' and neighboring rights" ; "...[O]n the basis of the pure point of law, the decision of the Court of Appeal was legally justified". 

on the other hand, that neither ISPs nor IBPs demonstrated that the performance of the measures would represent an unbearable sacrifice, or that their costs would endanger their economic viability

It is very interesting to see French Courts give so much weight to the financial situation of the parties and the (alleged or potential) revenues generated by ISP/IBPs from infringing websites, in their application of liability rules. Indeed, the latter are usually framed as pure questions of law, disconnected from economic realities.

We will have to wait to see whether the position of the French court catches on in other jurisdictions, or not.

corporate responsibility

Since the mid-1990s, internet companies have been absolved from liability – by Section 230 of the 1996 US Telecommunications Act and to some extent by the EU’s e-commerce directive – for the damage that their platforms do.

Sooner or later, democracies will have to bring these outfits under control and the only question is how best to do it. The white paper suggests one possible way forward.

essentially a responsibility for unintended consequences of the way you have set up and run your business.

The white paper says that the government will establish a new statutory duty of care on relevant companies “to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services”.

for example assessing and responding to the risk associated with emerging harms or technology

Stirring stuff, eh? It has certainly taken much of the tech industry aback, especially those for whom the idea of government regulation has always been anathema and who regard this fancy new “duty of care’ as a legal fantasy dreamed up in an undergraduate seminar.

To which the best riposte is perhaps the old Chinese proverb that the longest journey begins with a single step. This white paper is it.

did not set a clear indication on deciding how many times of views or downloads are enough to trigger the examining duty, which puts hosting providers' liability in uncertainty.

Beijing High Court, Go East Entertainment Co. Ltd. (H.K.) v. Beijing Alibaba Technology Co., Ltd., (2007) Er Zhong Min Chu Zi No. 02627, December 20, 2007