Italians decide YouTube is a Just Another Publisher

Thursday, February 25. 2010

Italians decide YouTube is a Just Another Publisher

The court case against Google's YouTube / Google Video subsidiary is very interesting. A summary here from the NYT:

Three Google executives were convicted of violating Italian privacy laws on Wednesday, the first case to hold the company’s executives criminally responsible for the content posted on its system.

The verdict, though subject to appeal, could have sweeping implications worldwide for Internet freedom: It suggests that Google is not simply a tool for its users, as it contends, but is effectively no different from any other media company, like newspapers or television, that provides content and could be regulated.

Now as you can imagine, there has been a vociferous outcry in some quarters that this is a crime against the Internet, and in others that this is Big Media attempting to strangle the poor innocents through legal hands around their jugulars.

But its simpler than that - it is a question of "when do you become a publisher" - in short:

Google maintains that the ruling contradicted a European Union directive on electronic commerce that gives service providers safe harbor from liability for the content they host.

But prosecutors argued that because Google handled user data — and used content to generate advertising revenue — it was a content provider, not a service provider, and therefore broke Italian privacy law.

Clearly, searching a large number of other sites and aggregating results (Google Search) is not being a publisher. But once you are holding a large amount of content in your own databases (YouTube, Google Video), and are clearly running a for-profit service that's business model is attracting customers by aggregating and advertising against it, it is not hugely different to any other publisher.

Google Argues:

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.

But imagine if a cinema argued that showing illegal movies was not it's problem as it was merely a hosting plaftorm. One man's publisher is another man's platform and as Web models come closer to looking like "real life" models..... so the question really is - should the Web based publisher be treated differently under law to ones that have come before?

One of the reasons that Web based media has done so well is precisely that they have not yet been put under the same constraints as older media, and while some old shibboleths like IP and Rights need reforming, a levelling of the playing field is also long overdue.

Posted by Alan Patrick in Web TV / IPTV / Online Video at 10:49 | Comments (4) | Trackbacks (0)

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I'm always on the fence with you guys. Many times your posts are intelligent arguments against the on-line status quo that is often sorely needed, if only to make people think before jumping to conclusions.

But just as I start to enjoy reading you again, I see a post like this. Nobody in their right mind would think that a direct comparison to a movie house in this situation is correct. In fact, no analogy to the real world works in this situation because of the amount of data that we're talking about here. It's reasonable to expect a movie house to know what it's showing in advance because of the limited number of films it is showing. It's unreasonable to expect youtube to be held to that standard because of the number of films it is showing is ridiculously large. (I've heard the current pace is 20 hours of content are uploaded every minute.) And it's not like youtube intentionally kept the video posted. As soon as youtube was notified it was an inappropriate film, it was removed. That is reasonable.

If you think the Italian judge was right, then you must also believe that Facebook and MySpace are responsible for their users content as well (after all, they display advertising too). And since moderating posts afterwords is not good enough (again, because you agree with the Italian judge), that means these sites will now have to moderate all content before it's posted. And if you think that's reasonable...well, I really don't know how to persuade you to change your beliefs at that point.

You take the other side of any position taken up by the TechDirts of the world, no matter how silly, hoping it will get you attention. I now realize that the only conceivable notion is that you guys are just professional trolls. Trolls with a good point sometimes (mainly due to the luck of the draw as to which side of an argument you have to take), but you're still just trolls.

#1 MissinLnk on 2010-02-25 14:35 (Reply)

Well I am curious to see how this will evolve as media like TV channels are actively willing to fight Google and Youtube, their rivals and the only one that could and maybe even will bring them down.
This issue of this case will surely be a milestone in the fight between those media superpowers.
Who will win is the crucial question! Time will tell!

#2 jean-marie amitie (Homepage) on 2010-02-25 15:40 (Reply)

@ MissingLink - a Troll is of course merely someone who disagrees with your fiercely held opinion

Likewise I doubt I can change your mind, but consider these as legal principles:

(i) Just because a publisher chucks up vast amounts of material it hasn't vetted does not absolve it of its responsibilities.

(ii) Ditto because it tears it down afterwards.

(iii) It doesn't matter what I think is correct - the key point is that some media is held to certain standards, others are not, and that is giving an artificial advantage at the moment. While that exists these test cases will keep coming.

As for Facebook, I do think they will be taken to court soon on this issue - and their T&C do to an extent hoist them on their own petard here, as they elect an unassailable and perpetual right to all the content on their site.

We have grown used to these dynamics as Web dynamics, but at the end of the day it is still a publisher function.

Re TechDirt - they are always - without fail - fiercely on the Free Internet side. We are not, we try and look at things economically rather than ideologically. Sometimes we agree with them, sometimes not.

@Jean-Marie I was thinking of the BBC when I wrote this article, they get shedloads of contributed material all the time, they could easily put it up sans checking - but the hue and cry would have been enormous if this had happened to them.

#3 alan p on 2010-02-25 16:05 (Reply)

A few questions:

Should Wikipedia be liable for every user edit?
Should a forum be liable?
Should you be liable if I were to put copyright/libellous/otherwise illegalg material in this comment?

This ruling effectively makes sites like Youtube,Facebook,Twitter,Flickr and most forums and any public wiki impossible. Without safe harbour they will have to verify the content of every single thing that is posted for a range of breaches - many impossible to establish with certainty. A paid for service with positive ID and a written contract to provide indemnity against damages might work.

Frankly, I agree with Missing Link: most of your posts are good, sometimes very good, but you occasionally seem to go weird (although I doubt its deliberate trolling)

#4 Graeme (Homepage) on 2010-02-26 07:21 (Reply)

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