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Comment: Re:Good thing (Score 2, Insightful) 949

by Modern Demagogue (#31681778) Attached to: New Litigation Targets 20,000 BitTorrent-Using Downloaders
Not only is there a problem with a causal chain of action (all they can do is probably hold the ISP account holder responsible, but I am not sure that is law or precedent), but they misrepresent what BitTorrent does.

They claim that if you are a member of a swarm which is tied to a copyrighted work, then you must be distributing a portion of this copyrighted work, which is not true. Unless they download a piece from you, they have no way of verifying that you "made available" a copyrighted work for download, or that you in fact committed the crime of distributing a portion of a copyrighted work. As far as I can tell, they do not attempt to download a piece from each individual they are suing; if they do, then it gets interesting, but the way the law suit is worded, it looks like they are doing some pretty serious hand waiving at establishing the basics; all they seem to really do, is establish that X IP address was a member of Y swarm at Z time, and then claim that is prima facie evidence of copyright infringement, which is not the case...

Comment: They misrepresent how BitTorrent works... (Score 1) 949

by Modern Demagogue (#31681708) Attached to: New Litigation Targets 20,000 BitTorrent-Using Downloaders
Unfortunately, as lawyers often do, the plaintiff's counsel factually misrepresent BitTorrent technology and process in their claims to their favor. Any decent lawyer would get these suits thrown out on its face. In their pre-amble, they claim that due to the nature of BitTorrent, anyone who is a member of a swarm after the monitoring agent has accessed the swarm is necessarily distributing some part of the file, and therefore guilty of distribution of a copyrighted work. However, this is not how the technology works. To participate in a swarm, you do not actually have to have the file available, nor must you have downloaded it from someone else in an illegal fashion. You do not HAVE to upload anything, or even download anything infringing to participate in a swarm. As always, unless a 3rd party specifically downloads data from you that is copyrighted material one cannot demonstrate copyright infringement. Additionally, without some form of physically captured copyrighted materially downloaded from a peer, I would love to see them prove jurisdiction. Them requesting a list of seeds from a tracker, does not constitute your IP committing an act of copyright infringement in the District of Columbia, and I would like to see them demonstrate the routing information showing that whatever you did, necessarily passed through their, particularly if you are in the North East or Northern California. They may succeed in monetizing this flow, but only because most lawyers would be too clueless to defend themselves properly — it bothers me that one can get away with making such materially false representations about the way that a technology works to a court, in order to get judgements on one's side. They either don't understand, or are lying, and given the amount of technology used by the monitoring service, I'm betting someone somewhere has advised them more accurately how the technology works.

Comment: Re:What did you expect? (Score 1) 391

by Modern Demagogue (#31260424) Attached to: Google Italy Execs Convicted Over YouTube Bullying Video
I think yours is one of the most insightful comments here; but you come to the wrong conclusion.

Of course there is an element of protectionism of Berlusconi's traditional media empire; but why exactly should Google have a media distribution network that is not subject to the same standards? None of his papers, magazines, or television networks can publish or air content without clearing the rights in a traditional manner, so why should Google continue to enjoy the free ride that the rest of the world has given them?

When the DMCA was written in the US, the robotic exemption clause was included to protect actions like search and tasks that were completely automated and benign, but that could otherwise be construed as technically illegal. It was by no means intended to absolve internet content distributors of all duty to vet content before beginning distribution, but that is the effect it has had. YouTube sells ad space and changes the content flow; it no longer constitutes an automated content blind common carrier, and it should be subject to the restrictions placed on other distributors.

Just my two cents.

Comment: Re:Riiight (Score 1) 391

by Modern Demagogue (#31259776) Attached to: Google Italy Execs Convicted Over YouTube Bullying Video
Sigh. You are allowed to post the video to your own site because you are not making a profit off it and there is a public interest in the dissemination of the piece as a news item, and you are the photographer. You have certain rights to the footage; but you can't necessarily assign them to a 3rd party attempting to profit of the "work".

Google is not allowed to distribute the video because they do not own the rights to the cops likeness, you can not transfer or issue those moral rights to them, and they are using it to generate profit by selling ad space in and around the video. Additionally, it seems in this situation there are privacy issues such as where the video was taken and whether the subject gave consent to be videotaped, or could have a reasonable belief their behavior would be private and protected.

Feel free to post the video on your own site to send to people for non-profit public awareness purposes. A for profit entity should not necessarily be allowed to do this, and if they are doing so in the same way a network might air a video during a news show for informative purposes, they should be subject to the same standards of care and FCC oversight that the Nightly News etc is; ie present both sides, give equal time, and have documentation to back up everything being shown or said.

Comment: Re:What?!? (Score 2, Insightful) 391

by Modern Demagogue (#31259608) Attached to: Google Italy Execs Convicted Over YouTube Bullying Video
This is fundamentally different than your examples; by definition youTube is using this content to turn a financial profit; they are not blind such as a phone company, who makes a profit by charging a fee to two users and provides a private channel of communication between them, or the mail, which is also private communication.

People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates, and that the paradigm of email or a network neutral approach applies. They are not a common carrier with distinct sender/receiver parties; they are a public distribution network accessible by all much closer to broadcast television. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc. Why should google not have a similar duty of care?

Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so.

Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.

And yes, I do expect that someone at Google should watch every video, and file the accompanying paperwork; talent release forms, rights releases for music, photographic releases from the dp etc... Thats how it works with every other form of mass media. If it is impractically expensive; then perhaps the notion of Google, Facebook, etc, are impractical in and of themselves. And this would not violate free speech — you clearly don't have a firm grasp of what Free Speech actually means or entails. Copyright fraud or intellectual property theft are not protected elements of free speech.

Comment: Re:firsta posta mamma mai! (Score 1) 391

by Modern Demagogue (#31259450) Attached to: Google Italy Execs Convicted Over YouTube Bullying Video
That by definition you are using this content to turn a financial profit. People need to stop thinking of YouTube / Google as some helpless 3rd Party that is not responsible for the content it disseminates. A television network would not be allowed to air a video like this without clearing all the rights to it, unless they were using it as part of a news piece, and even then they might have to blur some of the faces etc. Google and Youtube are essentially for profit entities which sell ad space next to, before, or on top of content provided by another entity. All internet content distributors have a legal duty to make sure they have the rights to the content they distribute, before doing so. Yes this is inefficient and would curtail the growth of such sites, but their explosive growth is only because they are not responsible for their true cost of doing business, and have been getting a free ride for far too long through a loophole exemption in the DMCA. I should not have to patrol the internet to make sure my copyrights are not being violated; I should be able to go to sleep at night knowing that my content is safe wherever it is being distributed, because that distributor has taken the necessary precautions to clear all rights and compensate performers, artists, and creators appropriately; even if that performer is an autistic child.

Comment: The Net IS NOT Neutral; Why PROTECT Google etc? (Score 3, Interesting) 256

by Modern Demagogue (#15497522) Attached to: Eric Schmidt on Net Neutrality
Through intention or error technology companies, media pundits, and scholars have overly narrowed the recent public debate by misidentifying the potential points of origin of Internet bias. Rather than expressing opinions of public interest regarding the future of the Internet as a global network, the discussion battles back and forth between two markedly corporate perspectives on physical network infrastructure and ignores issues concerning the utilization and neutrality of the Internet as an emergent system and larger whole.

Incumbent upon any desire to protect the ideal of net neutrality is the assumption that we currently possess a neutral system we might care to protect. This is not a valid supposition. As a first measure, I suggest that the debate on net neutrality be widened to include not only the physical network questions as it has in the past, but also the related concerns of unfair influence over the Internet including the meta and virtual entities that are Cyberspace and the World Wide Web. The only way to responsibly execute reform or regulation in this arena must be preceded by a comprehensive understanding of the interconnectedness of the competing issues. Targeting the physical elements for legislation without examining the virtual or the broader context and consequences, could be far more disastrous than even a hands-off approach.

But how exactly is the Internet no longer neutral? Why is this expansion or redefinition of terms necessary? From the standpoint of Economic Theory, Metcalfe's Law tells us the value of a network is roughly equal to the square of the number of members of the system and Reed's Law parallels this statement for utility. When linked with network externalities (i.e. when you buy a fax machine, other fax owners benefit because they can now fax you) sites or services with many members can be transformed into powerful competitive (or anti-competitive) weapons. The vast networks of information, users, and sites, created by several web services providers are thus an in-ignorable source of inefficiencies of scale and conflicts of interest.

A capitalist, corporate driven Internet (such as we have now) cannot be as unbiased and democratic as trends such as the "blogosphere" and media representation would have it appear. Cyberspace, the meta-realm emergent from the physical "network," is highly polarized, highly prejudicial, and highly subject to the influence of powerful, unchecked, unregulated, and at times even legally protected corporations. These corporations are the very members of the "High Tech Broadband Coalition" that first advocated neutrality legislation in its current form: Amazon, Google, Yahoo, Microsoft, and other major application, content, platform, and services providers. Of course they favor these laws! However, the virtual realm of cyberspace is dependent upon, not separate from, the physical network and should not be treated as such.

Google, arguably the most powerful entity on the World Wide Web, provides clear evidence of the current presence of partiality. A first illustration is the company's regulation of "acceptable" content for their index. Google's practice of excluding sites that do not conform to their guidelines is without question inconsistent with their professed corporate culture of doing no evil and mission of indexing the world's information. If a site were merely black flagged and sent to the bottom of the listings Google's apologetic arguments suggesting a greater good to society by influencing the organization and presentation of information on a global scale might be worth discussion. However, they do not do this; they remove content entirely from their index. This is irresponsible and a behavior they may only practice because of their commanding corporate status and extremely high power level relative to those they effectually regulate. Ironically, Google gained this position of supremacy and authority because of the prior neutral democratic nature of the Internet they now repress and because of their reputation of integrity and comprehensiveness they now cherish.

Recently these trends have evolved from simple content presentation, into content modification itself. See The New York Times "This Boring Headline Written For Google" High profile influential media outlets including the New York Times itself now habitually change their content so that it will rank higher in search engine listings. When a witty reference in a title is transformed into a blunt description, something is lost. While Google might claim that no one forced the Times to alter content, this is simply not true; Google's network effects if not "forcing" are at the very least coercive and compelling. Furthermore, Google's guidelines and underlying page ranking techniques are in themselves significant reason for the necessity of search engine optimization. Many prohibited activities in fact have perfectly valid uses; cloaking, hidden text, and other techniques may frequently be used nefariously, but properly utilized they are helpful and valid! Google, in effect if not in intent, is in the practice of limiting free speech and creating a self-reinforcing cycle. For example, including hidden content that more directly outlines the subject matter of an article is expressly forbidden (Google believes those words should be in the article), yet Google's software is not yet capable of picking up nuance, properly discerning context, or interpreting metaphor. This is not because Google's approach is the only way to accomplish the task, but because it is easier technologically and more financially viable for Google as a corporation; after all, they are essentially a data indexing company. It has become a big issue recently that humans, particularly Americans, are particularly unwilling to submit to regulation of freedoms simply because of the potential for harm, so I don't see wreason to allow regulation in this case.

Furthermore, the second-class "netizenship" many fear is already at hand. In order to be found on the Internet one must integrate oneself with these major networks, but that involves conforming to their desires. As an individual I do not have enough clout to challenge this and if I used questionable techniques, I would be immediately de-listed. However, an established media outlet such as the New York Times, CNN, or Fox News would never be removed. They may or may not necessarily have the direct financial capability to threaten Google but the public outcry would be deafening. We are already unequal on the net.

At its inception, Google could not control the format of information. Its founders had to invent ingenious ways of correlating data and staying ahead of both their competitors and those that might try to thwart or disrupt their service. This led to a better, more effective product for consumers and greater popularity. Now instead of indexing, organizing, and innovating Google influences, controls, and dictates. This is not its role, violates the precepts of network neutrality, and should be thoroughly unacceptable to us as a society and a State. Instead of making significant progress developing semantic and contextual algorithms, Google has an out and uses it (This is difficult to analyze from outside Google, but all I see are more complex versions of the same old trick: extensive information gathering and encouraged increase in page views rather than a shift toward more cognitive models and representations). Google's adoption of such policies when combined with its pole position limits competition, innovation and progress and is most certainly not helpful to the public or the greater good. Creating a semantic web, the next step in the evolution of the Internet is hard, will be expensive and requires an innately different business model (not based on advertising revenue) than the one Google operates on. Google may not be able to usher this new era in, and as a corporation if it cannot it will eventually be forced to repress it. A worrisome comparison might be to the automobile industry's previous reluctance to introduce hybrid and alternative fuel technologies. Greater public awareness of this unfortunate eventuality is needed. I would love for time to prove me wrong on this one. The world could be a great place with integrated cognitive semantic web assistants paid for by advertising and "special offers" routed through Google, but I am not optimistic.

There are deeper ramifications for our society. When we accept these initial modifications or alterations, we set a precedent of allowing similar behavior in the future. Will introductory paragraphs be next? Or perhaps entire articles will be rewritten for the benefit of a machine? Humans have a flair for and appreciation of wit, style, and artistry, but we appear increasingly willing to limit ourselves to the distinctly artificial demands of computers. Computers will not even need to achieve consciousness to control us. The long running philosophical debate discussing at what point computers will cease to serve man, and man will serve them may soon come to an end. I am not fearful of progress or modernization, but I find it sad that we already change our behavior to make it easier for computers to understand us. I do this today in the way I pose questions to search engines; I think, "how would a search engine think about this?" and then type. In how many ways do you? In how many more ways will we in the future?

An innate conflict exists between the free flowing, democratic, nature of the Internet and our capitalist, free market economy. The Internet is far more socialist than many would care to admit and this juxtaposition appears to be coming to a crossroad and we must choose a path. We are dangerously close to legally codifying further protections in the name of innovation for companies that certainly need no protection and do not necessarily foster the creative spirit. Corporations such as Google, Yahoo, and Microsoft either will or have already forgotten their obligation to society that is implied by granting them protection under 17 USC 512b (a clause of copyright law that prevents search engines and similar automated services from being held liable for copyright infringement). If they stifle creativity and progress, there will soon be little or no public and State interest in protecting for-profit corporations that organize and catalogue information. Wikipedia, Firefox, and similar projects prove that non-profit models work. The subject at hand is nothing less than the collective wealth of human knowledge and to make an analogy, The Library of Congress and the New York Public Library are not companies and we do not get served ads along with our selection. Perhaps we no longer need corporations to perform these tasks for us?

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