For years, Viacom has been embroiled in a bizarre lawsuit against Google, asserting that Google had a duty to figure out exactly which videos uploaded by it users infringed on Viacom's copyrights and stop them from showing (Viacom's internal memos showed that they themselves had paid dozens of companies to secretly upload Viacom videos disguised to look as leaked internal footage to YouTube, and that the company's executives had viewed the suit as a way to seize control of YouTube from Google and run it themselves).

Now, yet another court has told Viacom that its legal theory about the duty of online service providers to proactively police its users' uploads is totally, unequivocally WRONG. Viacom has pledged to appeal.

In a ruling released today, the court gave a total victory to Google/YouTube, granting it summary judgment, saying that YouTube was protected from claims of infringement via the DMCA's safe harbors, and mocking Viacom's legal theories at the same time. Might as well jump right in with some quotes, including the money quote that Viacom's legal theory is "extravagant." Elsewhere the judge calls it "ingenious."

Viacom's argument that the volume of material and "the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives" (Viacom Opp. pp. 9-10) combine to deprive YouTube of the statutory safe harbor, is extravagant. If, as plaintiffs assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. 17 U.S.C. § 512(c)(3)(A). The system is entirely workable: in 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day. See 718 F. Supp. 2d 514 at 524.

Thus, the burden of showing that YouTube knew or was aware of the specific infringements of the works in suit cannot be shifted to YouTube to disprove. Congress has determined that the burden of identifying what must be taken down is to be on the copyright owner, a determination which has proven practicable in practice.

This was the crux of Viacom's argument. That because they could show a lot of infringement, and here and there point to some evidence that some people at YouTube might have known of general infringement, then the burden should be on YouTube. But the court clearly calls them on this, noting that's not what the law says, nor does it make sense. Instead, under the law, the burden is on Viacom and that makes sense.

YouTube Wins Yet Another Complete Victory Over Viacom; Court Mocks Viacom's Ridiculous Legal Theories [Mike Masnick/TechDirt]

The Zero Knowledge Foundation's explainer on privacy policies is a pretty good introduction to where the fine-print on the sites you read comes from, and the surprisingly meaningful differences between different privacy policies on different sites. It's easy to assume (as I usually do) that the average privacy policy says, "You have no privacy," but there's a lot of difference between the policies on Craigslist, Facebook and Twitter, say.

The Fine Print of Privacy | Zero Knowledge Privacy Foundation (Thanks, Josh)

Philip N Howard wonders if there are any countries that have, on balanced, suffered as a result of the coming of the Internet -- say, because improved networks created so many opportunities for dictators to spy on dissidents that it swamped any free speech/free association benefits that the Internet delivered. So he scatter-plotted PolityIV’s democratization scores from 2002/2011, and cross-referenced them with World Bank/ITU data on internet users. The conclusion: by this method, no country experienced a decline in its overall levels of a democracy as it attained widespread Internet penetration, and almost all many countries experienced a rise in democracy levels that correlated to a rise in Internet penetration.

Are there any countries with high internet diffusion rates, where the regime got more authoritarian? The countries that would satisfy this condition should appear in the top left of the graph. Alas, the only candidates that might satisfy these two conditions are Iran, Fiji, and Venezuela. Over the last decade, the regimes governing these countries have become dramatically more authoritarian. Unfortunately for this claim, their technology diffusion rates are not particularly high.

This was a quick sketch, and much more could be done with this data. Some researchers don’t like the PolityIV scores, and there are plenty of reasons to dislike the internet user numbers. Missing data could be imputed, and there may be more meaningful ways to compare over time. Some countries may have moved in one direction and then changed course, all within the last decade. Some only moved one or two points, and really just became slightly more or less democratic. But I’ve done that work too, without finding the cases Morozov wishes he had.

There are concerning stories of censorship and surveillance coming from many countries. Have the stories added up to dramatic authoritarian tendencies, or do they cancel out the benefits of having more and more civic engagement over digital media? Fancier graphic design might help bring home the punchline. There are still no good examples of countries with rapidly growing internet populations and increasingly authoritarian governments.

Are There Countries Whose Situations Worsened with the Arrival of the Internet?

Are you a lawyer in Ohio? If so, your pro-bono services are urgently needed to defeat a trollish, bullying legal action from Med Express, a company that sells refurb medical equipment on eBay. The company is suing one of its customers for providing accurate, negative feedback on eBay's comment system, trying to establish a precedent that saying true things on the Internet should be illegal if it harms your business. They're relying on the fact that Ohio has no anti-SLAPP laws -- laws designed to protect people against the use of litigation threats to extort silence from critics -- and have admitted that, while they have no case, they believe that they can use the expense of dragging their victims into an Ohio court to win anyway. Ken from Popehat has more:

This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.

If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.

If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?

The Popehat Signal: Stand Against Rank Thuggery In Ohio

Andy Baio's "The New Prohibition" is a speech given at a Creative Mornings/Portland event, expanding on his must-read "No Copyright Intended" post, about the way that the complexity of copyright and fair use effectively criminalizes a whole generation of creators. Baio documents his own experience of being bullied into giving $35K to a photographer rather than spend a decade and hundreds of thousands of dollars proving that his limited-run, 8-bit remix of a photo was fair use, and makes some practical suggestions for what a modern fair use should look like, if it is to preserve the new, networked creativity.

The New Prohibition

Tim Wu has written an admirably economical and restrained review of Evgeny Morozov's new book, "To Save Everything, Click Here." I wrote a long critique of Morozov's first book in 2011, and back then, I found myself unable to restrain myself from enumerating the many, many flaws in the book and its fundamental dishonesty, pandering and laziness. Wu has more discipline than I do, and limits himself to a much shorter, sharper and better critique of Morozov's new one. It's a must-read:

“To Save Everything, Click Here” is rife with such bullying and unfair attacks that seem mainly designed to build Morozov’s particular brand of trollism; one suspects he aspires to be a Bill O’Reilly for intellectuals. How else to explain the savaging of thinkers whom you might think of as his natural allies? Consider Nicholas Carr, another critic of Silicon Valley, who wrote a book, “The Shallows: What the Internet Is Doing to Our Brains,” detailing the malicious effect of Web apps on our minds. He commits the unforgivable sin of discussing “the Internet” and is therefore guilty of what Morozov calls “McLuhanesque medium-centrism.” (Morozov is evidently licensed to use concepts, even if his targets are not). Similarly, although most of my work is an effort to put the Internet in historical or legal context, I, too, am an “Internet-centrist” (but at least I’m in good company).

Too much assault and battery creates a more serious problem: wrongful appropriation, as Morozov tends to borrow heavily, without attribution, from those he attacks. His critique of Google and other firms engaged in “algorithmic gatekeeping”is basically taken from Lessig’s first book, “Code and Other Laws of Cyberspace,” in which Lessig argued that technology is necessarily ideological and that choices embodied in code, unlike law, are dangerously insulated from political debate. Morozov presents these ideas as his own and, instead of crediting Lessig, bludgeons him repeatedly. Similarly, Morozov warns readers of the dangers of excessively perfect technologies as if Jonathan Zittrain hadn’t been saying the same thing for the past 10 years. His failure to credit his targets gives the misimpression that Morozov figured it all out himself and that everyone else is an idiot.

Does Morozov have an alternative vision of technology’s future? Generally, he decries the search for perfect, efficient solutions and admires an inefficient, organic chaos of the kind favored by Jane Jacobs in urban design. Funny, that’s exactly what the Internet’s protocols brought to communications, as a response to the big TV networks and AT&T’s “perfect” network. The ideology behind the Internet’s protocols accepts greater inefficiency to allow for the organic life and death of applications and firms. Hence, if you had to name one technology that best serves the principles Morozov believes in, it would be easy: It is called the Internet.

Apart from Morozov's tendency to ad hominem (he likes to call people he disagrees with "morons" and "idiots" in print) and his reliance on straw-men, Wu hits on the two critical flaws with Morozov's work:

1. He never offers a credible vision of what technology should be like in order to promote freedom and justice. Morozov gives the strong impression that activists should just give up on using or attempting to improve the Internet, a counsel of despair that would result in an unchecked march to total surveillance, control and censorship for just about everyone, with no hope of change. In his first book, Morozov asserts that the mass demonstrations following the Iranian elections would have taken place without the net, just through word of mouth -- as someone who spent about a decade helping with phone-trees, mass-mailouts and wheatpasted poster campaigns for demonstrations, I was dubious on this score.

2. He is fundamentally pandering to censors, surveillors, and repressors. All of the former are cheerful about their attempts to lock down and spy upon the net, because, they assert, nothing of much importance happens there (I wrote about this at length earlier). Morozov's biggest boosters are the copyright thugs, the spyware vendors, and the data retention snoops who argue that ripping up the Internet's fabric does no particular harm because the Internet isn't even a thing. "There is no such thing as the Internet" is the 21st century version of Maggie Thatcher's "There is no such thing as society" -- a dangerous, reductionist self-fulfilling prophecy.

Book review: ‘To Save Everything, Click Here’ by Evgeny Morozov

Google's rolled out an "Inactive Account Manager" -- a dead-man's switch for your Google accounts. If you set it, Google will watch your account for protracted inactivity. After a set period, you can tell it to either squawk ("Email Amnesty International and tell them I'm in jail," or "Email my kids and tell them I'm dead and give them instructions for probating my estate") and/or delete all your accounts. This has a lot of use-cases, from preventing your secrets from being tortured out of you (before you go to a protest, you could set your dead-man's switch to a couple hours -- if you end up in jail and out of contact, all your stuff would be deleted before you were even processed by the local law) to easing the transition of your digital "estate."

No one wants to think about their own death, but not thinking about it has a zero percent chance of preventing it. The Inactive Account Manager (great euphemism) can send your data from many Google services to your digital heirs, alert your contacts, delete the accounts, or do all or none of the above. It affects Blogger, Contacts/Circles (in Google+) Drive, Gmail, Google+ profiles, Pages and Streams, Picasa albums, Google Voice, and YouTube.

It also serves as a useful self-destruct button. Don’t want anyone watching your stupid YouTube videos after you’ve long forgotten that you had an account? Don’t want your kids to find your password notebook years after you’re gone and read your dirty chat sessions with their dad? You can have your account auto-destruct after trying to reach you using other e-mail addresses and by text message. You know, in case you just get tired of Gmail and wander off somewhere else.

Google Introduces Dead Man’s Switch For Your Accounts

I love Bruce Sterling's "Design Fiction Slider-Bar of Disbelief," a list of fictions in ascending order of credibility:

9.4 New age crystals, lucky charms, protective pendants, mojo hands, voodoo dolls, magic wands

9.3 Quack devices, medical hoaxes

9.3 Fantasy “objects” in fantasy cinema and computer-games

9.2 Physically impossible sci-fi literary devices: time machines, humanoid robots

9.2 Perpetual motion machines; free-energy gizmos, other physically impossible engineering fantasies

9.0 State libels, black propaganda, military ruses; missile gaps, vengeance weapons, Star Wars SDI

8.9 “Realplay” services, “experiential futurism” encounters, military and emergency training drills, props and immersive set-design, scripted personas

8.8 Online roleplaying scenario games

8.7 Net.art interventions, diegetic performance art, provocative device-art scandals

8.6 Guerrilla street-theater; costumes, puppets, banners, songs, lynchings-in-effigy, mock trials, mass set-designed Nuremberg rallies, propaganda trains

8.5 Fake products, product forgeries, theft-of-services, con-schemes, 419 frauds

Spoiler alert: the list ends with these:

1.0 Engineering specifications, software code

0.5 Historical tech assessment of extinct technologies, the “judgement of history’

0.0 The ideal and unobtainable “objective truth” about objects and services

Design Fiction: The Design Fiction Slider-Bar of Disbelief

danah boyd sez, "Researchers who focus on technology's role in human trafficking and the commercial sexual exploitation of minors teamed up to create a short primer for technologists who are trying to do the right thing. This high-level overview is intended to shed light on some of the most salient misconceptions about human trafficking and provide some key insights that will be useful for anyone who is trying to build tools to intervene. This document is to help those who are trying to create innovative solutions recognize pitfalls that they can address in the design of their systems."

Curbing commercial sexual exploitation of children and promoting the rights and safety of children should be a top priority for all members of society. Yet, all too often, myths and public misunderstandings – particularly about technology’s role in CSEC – and a lack of empirical data about the scope of the problem drive political and legal agendas, however well intentioned. These same myths and misunderstandings have the potential to inadvertently affect how technologists approach the problem. As researchers, we feel it’s important to take an evidence based and data-driven approach toward technological interventions so that they are effective, efficient, and limit the additional harm done to victims. With this goal in mind, we offer a series of key findings that should be a part of any serious discussion about using technology to address CSEC in a networked world. We hope that this information is useful for technologists seeking to build innovative solutions. We would be happy to offer more detailed information and data to any technologist seeking to learn more.

Addressing Human Trafficking: Guidelines for Technological Interventions [blog post]

How to Responsibly Create Technological Interventions to Address the Domestic Sex Trafficking of Minors (paper, PDF)

(Thanks, danah!)