Intermediaries

Facebook and the 2011 London riots

Be careful what you write. In R v Blackwell [2011] EWCA Crim 2312, Lord Judge CJ offers this blunt description of the role played by “modern technology” (principally Facebook, Blackberry’s BBM protocol, Twitter and SMS messaging) in the recent London riots. Rejecting the appellants’ argument that incitement via Facebook was a less serious offence because it did not lead to criminal activity in the real world, his Lordship commented:

[73] We are unimpressed with the suggestion that in each case the appellant did no more than make the appropriate entry in his Facebook. Neither went from door to door looking for friends or like minded people to join up with him in the riot. All that is true. But modern technology has done away with the need for such direct personal communication. It can all be done through Facebook or other social media. In other words, the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organise the rapid movement and congregation of disorderly groups in new and unpoliced areas.

High Court of Australia grants leave to appeal iiNet ruling

Today the High Court of Australia granted leave to appeal against the decision of the Full Court of the Federal Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd. I haven’t been able to uncover a copy of the transcript or a list of the grounds of appeal, but the appellants are likely to contest the Full Court’s approach to determining authorisation liability, its construction of the copyright safe harbour provisions, and its finding that iiNet was not provided with reasonable notice of infringement.

iiNet CEO Michael Malone said he wasn’t surprised by today’s decision, but called on the industry to come to a “workable” solution to piracy problems. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said. “We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity.”

The respondent, iiNet, now has two weeks in which to file a notice of cross-appeal; it will presumably wish to contest Emmett J’s creative reading of the disconnection policy requirement, and his Honour’s ‘checklist’ of steps to put iiNet on notice (at [209]-[211]). There is also a costs issue to be determined. Watch this space!

WikiLeaks roundup: a selection of the best analysis

The WikiLeaks controversy continues to capture headlines and provoke vitriol from governments around the world. Most reactions, however, have been surprisingly unsophisticated. Commentators repeatedly conflate WIkiLeaks the platform with its spokesperson, Julian Assange (who is, whatever your opinion of the man, largely irrelevant), assume the platform’s actions are unlawful (probably not — and this is the very question to be determined), or believe that shutting down WikiLeaks will stop the leaks (it won’t).

US Senators have called for pressure to be placed on American companies to abandon WIkiLeaks, and for media outlets to be criminally investigated, while others have called for Assange’s prosecution and even assassination. France has called for the site to be banned from French servers (good luck). Assange has been detained on what will probably turn out to be trumped-up sex charges. Geoffrey Robertson QC and a specialist team from Doughty Chambers have stepped in to fight extradition.  Read more »

Google bookstore: closed platform or platform innovator?

Has openness become a mere buzzword?

I’m not arguing that “openness” is a bad thing in the tech business. What I’m saying is that it is not an unmitigated virtue, and it’s not necessarily the first thing people should care about when they’re shopping for a product. I’m glad that Google has introduced its new bookstore, because the e-book industry would obviously benefit from more competition. But I’d be even happier if Google wasn’t touting half-closed openness as its store’s main selling point. In the absence of real openness, Google ought to have something that Amazon doesn’t: more books, cheaper books, prettier books, books with more functions, more reviews of books, better recommendations, some kind of social-networking integration—something, anything, that would distinguish it from the bookselling herd. Calling something “open” isn’t enough, especially when it’s actually closed.

British ISPs to face regulatory pressure over internet pornography

Representatives of the Her Majesty’s government will meet with ISPs and lobbyists to discuss whether, and how, access to internet pornography should be controlled.

The meeting comes days after Tory backbencher Claire Perry said the availability of such materials is like ‘a fire is burning out of control’. The Member wants mandatory access controls on 18+ material, and called upon ISPs to provide them. Although details were unclear, it looks like some kind of mandatory ISP-level blocking system, subject to an opt-in after age verification.

Assuming, for sake of argument, that this is justified (and it may not be), who should implement the access controls? Ed Vaizey commented that he had ‘a huge amount of sympathy’ for Perry’s request. Does this signal a new era of content regulation in the United Kingdom? Sadly, it would not be at all unprecedented.

In other censorship-related news, a copy of the so-called ‘Google blacklist’ (keywords that will not autocomplete in the main search box) has been leaked (NSFW).

Ed Vaizey clarifies UK government's position on net neutrality

The recent controversy about Ed Vaizey’s purported abandonment of network neutrality was probably overhyped. In Parliament today, Andrew Smith (Labor MP, East Oxford) asked the following question:

To ask the Secretary of State for Business, Innovation and Skills if he will make it his policy to ensure that internet service providers do not discriminate against competitors and new entrants in the speed at which websites and services reach their customers.

To which the Honourable Member replied:

The Government expect all internet service providers (ISPs) providing an internet access service-both fixed and mobile-to offer all legal content. Consumers should always be able to access any legal content or service they want to and content providers and applications should be able to access consumers. ISPs should not be able to discriminate unfairly against services or users. That means no blocking or discriminatory degradation of services or applications for commercial reasons.

There is not yet any evidence that discriminatory practices are emerging, or that there is a problem with regards to how ISPs or networks manage the traffic that flows over them (something they all engage in for technical reasons to deliver the best possible service to consumers). And this is enforced by the initial responses to Ofcom’s recent consultation on the issue.  Read more »

The blocking barb in today's Pirate Bay appeal

As has been widely reported, the three co-founders of file-sharing website The Pirate Bay have lost their appeal before the Stockholm Court of Appeal against criminal convictions imposed in April 2009.

The Court upheld the trio’s convictions for contributory copyright infringement and increased the collective financial sanctions from $2m to 46 million kroner (USD$6.5m), largely on the basis of the recording industry’s evidence, which was accepted to a greater extent than by the trial judge.

The Court reasoned that ‘The Pirate Bay has facilitated illegal file-sharing in a way that results in criminal liability for those who run the service. For the three defendants the court of appeal believes it is proven that they participated in these activities in different ways and to varying degrees’. Curiously, they were liable to pay the fine in equal amounts.

The really interesting barb in yesterday’s decision is the reaction by the British Phonographic Industry spokesperson, who demanded that English ISPs ‘act responsibly and stop providing unfettered access to this criminal website’. The idea that ISPs could ever come under a duty to block access to a third party website that enables contributory infringement is, of course, absurd, but if these comments are anything to go by, it’s something that ISPs will face increasing pressure to do.

Bankers as intermediaries and the tension between regulation and profit

Financial intermediaries are little more than rent seekers, says a thought-provoking article in this week’s New Yorker magazine:

One is the role of financial intermediaries, such as banks. Rather than seeking the most productive outlet for the money that depositors and investors entrust to them, they may follow trends and surf bubbles. These activities shift capital into projects that have little or no long-term value, such as speculative real-estate developments in the swamps of Florida. Rather than acting in their customers’ best interests, financial institutions may peddle opaque investment products, like collateralized debt obligations. Privy to superior information, banks can charge hefty fees and drive up their own profits at the expense of clients who are induced to take on risks they don’t fully understand—a form of rent seeking. “Mispricing gives incorrect signals for resource allocation, and, at worst, causes stock market booms and busts,” Woolley wrote in a recent paper. “Rent capture causes the misallocation of labor and capital, transfers substantial wealth to bankers and financiers, and, at worst, induces systemic failure. Both impose social costs on their own, but in combination they create a perfect storm of wealth destruction.”

Network neutrality dead in the UK?

Ed Vaizey, the Secretary of State for Business, Innovation and Skills, has made comments in a speech which suggest that he favours abandonment of the neutrality (non-discrimination) principle in internet traffic management. The comments have, perhaps rightly, triggered an avalanche of vitriolic abuse.

It is worth setting out the Minister’s remarks in full:

The issues here are complex. People don’t even agree what is meant by net neutrality. It is a term which means different things to different people.

At the heart of this debate, however, is the extent to which traffic should be managed on the Internet, and more
specifically whether ISPs should ever have the right to favour one content provider over another, particularly for commercial reasons.

That seems a fair, if simplistic summary of the central issue. Vaizey went on to identify three principles that he thinks should ‘guide the debate’:

First, openness — Consumers should always have the ability to access any legal content or service. Content and service providers should have the ability to innovate and, most importantly, to reach end users.

Secondly, transparency — This is a fundamental principle … [P]roviders must present information about their
service, including the nature and extent of their traffic management policies and their impact on service quality in a
clear, visible and easy to understand form for all their customers.  Read more »

Romantic intermediaries and algorithmic normativity

Unsurprisingly, it turns out that online dating websites make algorithmic choices that strongly influence influence (and are tailored to) their users’ behaviour. But are they better?

I asked Yagan whether OkCupid might try tailoring its algorithm to surface more statistically successful racial combinations. Such a measure wasn’t out of the question, he said. “Imagine we did a lot of research, and we found that there were certain demographic or psychographic attributes that were predictors of [successful relationships]. Hispanic men and Indian women, say,” Yagan suggested. “If we thought that drove success, we could tweak it so those matches showed up more often. Not because of a social mission, but because if it’s working, there needs to be more of it.” …

Algorithms are made to restrict the amount of information the user sees—that’s their raison d’être. By drawing on data about the world we live in, they end up reinforcing whatever societal values happen to be dominant, without our even noticing. They are normativity made into code—albeit a code that we barely understand, even as it shapes our lives. … We’re not going to stop using algorithms. They’re too useful. But we need to be more aware of the algorithmic perversity that’s creeping into our lives.

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