Wednesday, February 24, 2010

"The Italian Job": verdict on downstream liability can raise challenging questions for future of user-generated content on the Internet


All morning long, the Web has gushed a geyser of stories about “The Italian Job” – and I’m afraid it’s without (Napster creator) Shawn Fanning’s having fun as a movie star. That is, this snowburst is all about the verdict against three Google executives from an Italian judge for supposedly violating criminal statutes in Italian law regarding privacy by allowing a video making fun of a disabled teen to be posted on YouTube. (They were acquitted of the “criminal defamation” charge.) Have no misunderstanding, creating and posting the video was morally reprehensible, but the offense was created specifically by those who created and posted it (and Italian law enforcement had dealt with them). But everyone is properly concerned about holding those owning web services allowing such posts without review or supervision liable to civil and criminal responsibility. Indeed, if western governments (the US, Britain, western Europe, etc) as a matter of general practice held service providers to such standards of “downstream liability”, the web as we know it could not exist. People could not self-publish on the web on blogs, their own sites, or social networking sites.

But there is a lot to sort out here. The best of the articles on this verdict seems to my reading to come from Jacqui Cheng at Ars Technica, with link here. I started my coverage of this matter on the “Bill on International Issues” this morning before there were so many stories. The reader can go to my Blogger Profile and easily navigate to that entry as a supplement.

First, there is a practical question. The “company” is likely to win on appeal, and even if it doesn’t the European Union would probably overturn Italy, partly because the EU is seriously considering improving its safe harbor provisions. And couldn’t “the company” just pull out of Italy? If it did so, the Italian parliament would be pressured to fix things quickly. If this verdict had come from Saudi Arabia or Iran, we wouldn’t take it so seriously (nor would we if it came from China, but that’s a separate matter).

In fact, the European Union has a provision "Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')", link here that arguably provides some Section 230-like (when compared to US law) protections for service providers including Blogger, Wordpress and YouTube (as well as ISP's).

In the United States, the main exposure would be civil (usually, except for the possibility that new cyberbullying laws, so far applicable only to the original posters, might come into play). With other matters, mainly defamation and copyright, there are two main instruments in US law protecting service providers from liability, “usually” – Section 230 in the 1996 Telecommunications Act, and the “Safe Harbor” provision if the 1998 DMCA. Both provisions have been the subject of controversy (in both directions) covered on this blog, and both conceivably have weaknesses.

Now one wrinkle seems to be that Italian law allegedly (I speak in the subjunctive mood here) protects Internet Service Providers, but not “content providers”. But Italian law seems not to have a section 230 concept where a website accepting user-generated content exempting the webmaster from most liability related to unreviewed content posted by users. I’m not sure how this plays out in other European countries (I hope some visitor can tell me how it works in the UK, for example). Apparently the EU wants to implement something like Section 230, with politically sensitive limitations.

There’s more to ask here. Is a publishing service (like Blogger or YouTube) essentially like a forum where a webmaster invites comments and then may or may not be responsible for moderating the comments? (I remember big issues with forum moderation back around 2000; it can be a lot of work.) In the US, we think it is not; we experience it more as it were an ISP. But what it really becomes, is a free service with a business model predicated on the participation of advertisers. But it’s different from broadcast or network media (with shows dependent on paying “sponsors” for decades) because it does invite and use the unedited content provided and “self-published” by users. You have to ask a number of other questions. Most broadcast networks invite comments from users who can self-publish their own comments on their sites. Should CNN, ABC News, your local television station, etc. be responsible for unreviewed material posted by users? I hope not. (Section 230 would protect them in the US, but I guess not in Italy.)

But we can turn that question around. Suppose a publishing service provider only provides the service to those who subscribe and pay for space the way we pay for ISP services like shared hosting? (In fact, Google charges for some services, such as extra picture storage.) Is the provider then immune? It sounds as though, maybe so, according to the Italian judge.

There’s even more to think about. We use the terms “author”, “publisher” and “distributor” and “service provider” loosely in various business contexts. In the motion picture business, the “distributor” usually owns most of the rights and remains the most answerable to potential legal liabilities. (Think how the anti-piracy debate is going.) If there is something really “wrong” with a particular movie, it’s the studio-distributor who is most responsible, not the theater. In the book world, the “author” and “publisher” hold most of the trumps and responsibilities; Ingram and Amazon are in a sense distributors but don’t figure into the rights v. responsibilities debate much (neither then does Wal-Mart). But the Internet has made this question even more complicated. But common sense tells me, if I make an two-hour-long feature film, post it on YouTube and create a legal controversy, the rights and responsibilities are really mine, not YouTube or its executives. I would be playing the role of Fox or WB, not YouTube.

But what is really most bothersome about the Italian ruling is the apparent attitude of the judge, that “user generated content” really isn’t morally legitimate or deserving of protection, and that all content should be reviewed by third parties if it is to be released into the wild. Indeed, until perhaps the early or mid 1990s (certainly before the public Internet era as we know it), that was how it generally was with book publishing. "Getting published" used to be a real honor. Subsidy publishing (or vanity publishing) had existed for decades but had always been very expensive and offered limited rights. The cost started to come down in the 1990s with desktop publishing and more efficient book manufacturing, and then print-on-demand. In fact, it would seem that the judge’s ruling, if it indirectly applied everywhere, including the United States, would threaten print-on-demand too.

All of this brings be back to a “social contract” issue. Even in American law, it’s not completely clear that “self-distribution” is a “fundamental right” as it is a somewhat separate concept from freedom from censorship of speech that has “legitimate” distribution. The issue was somewhat skirted by the 2006 COPA trial. Nevertheless, American law is more likely to be constitutionally protective of such a right (to UGC) simply because American law, with a short constitution and amendments and evolved “Bill of Rights”, is “dense” (topologically) when compared to European law, which depends on so many diffuse (English and Roman) legal traditions. But many people are becoming less sympathetic to unregulated “self-promotion” when it isn’t connected to responsibility for other people. That may be the biggest issue down the road.

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