Human Rights Now!

Call me crazy, but I bet the Silicon Valley Human Rights Conference won’t discuss Article 27 of the Universal Declaration of Human Rights, which reads in part as follows:

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

In fact – surprise! – it looks like one meeting on the agenda could end up specifically promoting the agenda of Google, which just happens to be a sponsor. Take a look:

Workshop 1: Intermediary liability – What are the freedom of speech and business implications of making content platforms responsible for user-generated content?

The implication seems clear: Holding YouTube responsible for massive copyright violations amounts to a freedom of speech issue. This has been a Google talking point for some time. In October 2010, the company co-hosted Internet at Liberty 2010: The Promise and Perils of Online Free Expression, an event that had several lofty aims including “making sure that platforms like Google aren’t held liable for content they host.” Keeping corporations safe from legal damages – an issue for activism if there ever was one!

The Internet certainly presents important human rights issues, although I don’t think intermediary liability is one of them. I do think too much intermediary liability could curtail innovation, which would be a bad thing but hardly a human rights violation. The truth is that we need to discuss these issues in a much more nuanced way.

Every right reaches some limit when it interferes with the rights of another. The classic formulation is that “your right to swing your fist ends where my nose begins.” The same applies online. Open Internet champions see Apple as a censor, since it chooses what can be sold in its App Store. But one could also argue that Apple’s selection process represents its own freedom of speech. Why does a rejection from Apple interfere with free expression any more than a rejection letter from a magazine? (As a freelance journalist, my rights were violated almost daily, I’m sorry to report) Apple may have too much market power, but that’s another issue entirely.

Copyright issues are also more nuanced than Google would have us believe. As some online activists see the issue, copyright is nothing more than a censorship regime. But that’s nonsense: No one believes that free speech includes the right to charge admission to a screening of “Star Wars” in your living room. In fact, in the U.S. at least, “The Framers intended copyright itself to be the engine of free expression,” according to Justice Sandra Day O’Connor majority opinion in a Supreme Court case. Copyright law doesn’t only limit free expression – it encourages it.

We clearly need to run the Internet in a way that encourages free expression. But I don’t think that involves shutting down YouTube or allowing it to profit from all the copyright infringement it encourages. I think it means writing sensible laws that assign some responsibility to companies like Google – enough to make them behave responsibly but still allow them to thrive. I know a conference on writing sensible laws would not have as much publicity value as the Silicon Valley Human Rights Conference – it’s complicated, abstract, and often rather dull. But this corporate pep rally, disguised as a serious conference, only obscures the important issues.



9 thoughts on “Human Rights Now!

  1. Robert, This is very well stated. The lines are not well defined and should be looked more closely. YouTube’s rights should not trump the rights of content creators, those individuals and companies whose work YouTube / Google profits from. This would apply to Grooveshark as well as many others. Just as free speech does not equal scraping, one of of the many issues which alarmed senators during last week’s anti trust hearings. An event that seemed to have not happened, at least in the consciousness of the average American. Ironic, as most of them use Google daily.

    As for Intermediary liability, there really isn’t any as far as I’ve seen so far… Do you know of any?

    Posted by TMD | September 28, 2011, 5:26 pm
  2. >>>As for Intermediary liability, there really isn’t any as far as I’ve seen so far… Do you know of any?

    As I read the DMCA – and I’m obviously not a lawyer, altough some smart ones agree with my take – it limits safe harbor in a way that establishes *some* intermediary liability. The judge in the Viacom-YouTube case disagreed, but that case is on appeal. So we’ll see.

    In any case, I’d like to see a higher standard – reasonable precautions, a duty of care, something like that.

    Posted by roblevine1 | September 28, 2011, 7:03 pm
  3. You say “it limits safe harbor in a way that establishes *some* intermediary liability.”

    Can you give some examples of this? Is it in your book? If so where? I’d love to learn more about this.

    Posted by TMD | September 28, 2011, 8:26 pm
  4. I just realized the official website is “rightscon.org”. It is indeed.

    Posted by Terry Hart | September 30, 2011, 6:18 pm
  5. So, not the LA area? Bummer.

    Posted by TMD | October 2, 2011, 8:36 am
  6. No artists on the speaker schedule. What a shock.

    Posted by Chris Castle | October 3, 2011, 3:48 pm
  7. Both the DMCA and the EUCD seem to put no liability on YouTube, as long as they have a proper notice-and-takedown procedure. This combined with the ability to request the infringer’s information via the courts seems to me like a proper distribution of responsibility. The platform is not responsible for its users, nor for the policing of it (which is practically impossible), but must clean up based on specific allegations. It is the infringing user that should be held accountable for his/her actions. Viacom vs YouTube has already shown us that in many cases the copyright holder can’t even properly identify infringing uses, so such liability cannot be put on YouTube IMHO.

    YouTube actually takes things one step further, since they have one big advantage to other platforms: they know the exact data format used on their servers. As such, they’re offering tools to rights holders to help identify infringement on their work. As far as I know they’re not obliged to do so by law, but it’s clear that it’s in YouTube’s interest to work with the entertainment industry on this to the advantage of all.

    Would you say the notice-and-takedown (or notice-and-notice procedure for that matter) is enough liability or is more needed, and if so: how much more?

    Posted by Pieter Hulshoff | October 18, 2011, 2:52 pm
    • First, I’m not sure you’re right about the DMCA – it depends how you read the law. Second, the DMCA was written for a different world, with an eye to protecting ISPs. It was not written to allow Google to build a business on copyrighted content and it was not written in a world where automatic re-posters make takedown notices absurd, (I’m talking about auto-reposters on cyber-lockers, not YouTube.)
      Second, if you take this to its extreme, it turns centuries of copyright law on its head by making it opt-out instead of opt-in. I do not think the DMCA was meant to overturn almost all the law up to that point, and the debate over the law backs this up.
      Third, YouTube as a business – and only as a business – is based on infringement. It has never made money so far. And it has never given up trying to get licenses. If you look at the 10 most popular videos in the history of the service, 8 are major label music videos and 3 of those are Justin Bieber. Clearly YouTube has a great deal of social importance. As a business, tho, it’s based on other peoples investments.
      What’s the right level of liability? Well, we could require the level of filtering YouTube does now – that seems to work pretty well. (Not perfectly, but pretty well.) We could require services to act on “red flag” knowledge, as the DMCA does. Or we could require a “duty of care,” just as we do in other situations in the real world.
      Here’s a parallel. If you ran a used bookstore and I came in with 100 different used books, in various conditions, should you have any responsibility to make sure they’re not stolen? Most reasonable people would say no. Now what if I came in with 100 new copies of the same title, in boxes from a printing plant, and the book wasn’t out yet. If you assume they’re stolen and still buy them, shouldn’t you have _some_ liability? I think that’s very reasonable.
      Look, reasonable people can disagree about how much liability YouTube should have – it’s a conversation I want to start. I’m eager to hear what others have to say. But the idea that they should have full liability, or none, just doesn’t seem very reasonable.

      Bonus: Why did Larry Page say, under oath, that he didn’t remember whether or not he favored Google buying the service?

      Posted by roblevine1 | October 18, 2011, 6:29 pm
      • I’m not sure I agree about the DMCA timing; if you read it carefully it seems to’ve been drawn specifically to allow rights holders to take down content, without making hosting services responsible for their user’s behaviour. Certainly, notice-and-takedown by itself does little against auto-reposters, but combined with court-orders to get their identification, and take them to court for infringement it seems like a very powerful instrument to me. Sure, it’d mean bad PR for the copyright holders, but that’s a choice they should have to make. It’s certainly not that case that hosting services were given no liability.

        True, YouTube’s most popular videos are likely to be infringing clips (or at least they were before the deals YouTube struck), but by far most of the videos on YouTube, and many of them are very popular, are home-made content, and perfectly legal under the law. Automatic take-down is also impossible, due to the simple fact (see Viacom vs YouTube) that rights holders often upload their own material to YouTube as a form of advertising, combined with the very realistic chance of false positives. Still, combining notice-and-takedown with lawsuits against infringers should be able to tackle that in my opinion, especially with the YouTube provided tool to flag publicly shared movies that may contain infringing elements.

        As a hosting server, YouTube is a pretty special case though. It’s one of the few servers out there that knows exactly the file format of its content. As such, a filter’s actually buildable. Most other servers don’t have this advantage though, so they are simply unable to apply such measures. Requiring it by law would shut down any service that can be abused for copyright infringement. If time has shown us anything it’s that infringers simply move from platform to platform as they are taken down. It’s been over 10 years since Napster, and we’re not anywhere closer to solving the online infringement problem. Perhaps it’s time we try a different solution?

        Posted by Pieter Hulshoff | October 18, 2011, 7:32 pm

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