Last week, Google and bloggers all over had a fit about this ruling, a ruling in which three Google executives were convicted and sentenced to a 6 month suspended sentence (which is apparently legalese for “you’re wrong, we’re right, still feel free to tour our country”) for violation of Italian privacy laws as a result of a video uploaded onto Youtube that depicted a Down Syndrome Autism (apparently the media got this confused. The media getting something wrong? Could this be a trend?) teenager being taunted and beaten up. Why were people so upset with a ruling like this? Clearly if these people at Google allowed for such an atrocious video to be uploaded, they’re evil individuals who need to be put in jail… right? Well, sure. If they were involved and responsible. However, the uproar stems from just how little involvement these convicted “felons” had. They collectively had no idea the video was uploaded until after it was taken down, no involvement with the uploading process of the video (it’s completely automated on Youtube), and no involvement in the creation of said video.
Are they really at fault? Common sense says no. In fact, common sense questions the legitimacy of the Italian court system after such a ruling.
But wait. A group of individuals convicted for something they had no control over, worked with police to remove specific material, and really were too busy to know of everything that was on their website? Let’s take a look at The Pirate Bay.
When The Pirate Bay Trial took place a year ago, one of The Pirate Bay’s (TPB) stronger legal claims was that they provided a service similar to Google: they indexed the existence of so-called .torrents as a search engine and that the content indexed was unknown to the website’s owners.
An aside: My buddy Mike mentioned that there’s definitely a contingency of people who don’t believe Google and thePirateBay to serve the same function. If you’re in that contingency (or if you’re not, but feel the need to click on URLs anyway), check out thePirateGoogle.com (EDIT#2: Seems as though part of the website’s Google script functionality goes down once in a while. Wonder why. If you want to try the same functionality of thePirateGoogle, preface your search keywords with the phrase “filetype:Torrent”).
Additionally, TPB had no involvement in the creation of said files (legal or illegal), no involvement in the uploading of said .torrent file (it’s automated as well), and cooperated with the police when asked to take down explicitly illegal material for which they had proof of (Sweedish Police + Child Porn + Pirate Bay The Tagline is right. It’s really much a do about nothing).
Sounds a lot like what Google is having fits about. So when Matt Sucherman, Vice President and Deputy Legal Counsel for Google says, “Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming,” doesn’t it indicate that common sense dictates that only the person who films and indexes their illegal movie recording on an search engine platform could take the steps necessary to protect the privacy and obtain the consent of the movie producers who made the original film? I contend common sense does indicate that.
So why then does the public view Google so favorably, yet view services such as thePirateBay as demonic?
Misinformation: The Prosecution’s Strongest Argument
In October of 2007, Alan Ellis, a 24-year-old man from Middlesbrough in the United Kingdom was arrested, his computers seized, and then questioned for many hours. This man was the creator of OiNK, which according to the BBC was an “extremely lucrative” website that:
“The site allowed the uploading and downloading of pre-release music and media to thousands of members.”
An IFPI spokesman said: “Once an album had been posted on the OiNK website, the users that download that music then passed the content to other websites, forums and blogs, where multiple copies were made.
“Within a few hours of a popular pre-release track being posted on the OiNK site, hundreds of copies can be found further down the illegal online supply chain.”
Now I love the BBC, almost as much as I love NPR (seriously. Great, rather unbiased news sources). But I jumped out of my chair when I read this in class during my junior year in high school. I knew then what others know today: All that stuff is wrong.
Let’s go down the list of things wrong with that IFPI statement:
- OiNK was extremely lucrative.
By far one of the funniest claims. OiNK wasn’t making any money. In fact, for most months, it was losing money (not losing a lot of money, but definitely losing money). There were no ads on the website, so you couldn’t make the argument that he received ad revenue. So the only real “income” source that OiNK had was that pink donate button in the upper right hand corner. If someone has a business plan that’s rooted in an unintrusive donate button (that’s about 400 pixels in size and found on only some pages of a website in the upper right hand corner) that’ll be extremely lucrative, please e-mail me. I’d love to start a business with you.
2. OiNK uploaded pre-released tracks and distributed it them to hundreds of websites.
So funny thing about this claim. OiNK actually had a strict terms policy that demanded high quality music found in album form only. Note a couple of things. A) High Quality and B) album form only. The problems with that claim about the pre-release track is three-fold: For anyone who rips music into MP3, it’s hard getting a high quality rip unless you have the actual medium (IE the CD). Second, because of the stipulation for high quality music, pre-released music that comes from a non-traditional medium (IE leaked by an insider), would not have received the final remastering that most music goes through, thus would not meet the quality standards of OiNK. Lastly, if OiNK stipulates that only Album torrents be shown on the website, how would single pre-release tracks be blamed on OiNK?
These two things are among many facts that spread to the general public by IFPI through legitimate new sources, but were grossly inaccurate. So inaccurate that Alan Ellis was A) released from prison after hours of testimony on how his software worked and B) found unanimously innocent by the courts on January 15, 2010, 2 years after the IFPI heralded a great triumph for the music industry.
In the OiNK story, you find a tactic the music and movie industry used by the industry: Corporate propaganda. Whatever, you call it, this misinformation severely hurts potentially innocent case-law, especially in a jury trial. For laws involving such technologically sophisticated mechanisms such as BitTorrent, how would any even-minded, yet unbiased individual differentiate between the facts and the lies?
They don’t. Or rather, it’s very hard to. This same misrepresentation of technology information happened during The Pirate Bay trial as well. The evidence presented by the prosecution during day 5, in which evidenced previously unshared with the defense that depicted inaccuracies in the sharing of files (they had a screenshot of a client, yet no information that explicitly links the material to thePirateBay among other things), exemplifies this discrepancy. If the jury/judge doesn’t understand how tracker information works, how would the defense respond correctly? It becomes increasingly difficult to. Thus, the prosecution gains the advantage for doing such a thing.
When cases such as Alan Ellis are broadcasted as a triumph of good vs. evil, but hold factual inaccuracies, what’s the file sharing website to do? When the court doesn’t understand how magnet linking through bittorrent clients don’t involve the tracker host (FYI, they don’t), how do bittorrent trackers claim safe haven? OiNK is dead and it won’t be back despite the fact Ellis was found innocent. When organizations such as the IFPI gain such an advantage to misrepresent specific facts or to simply tackle cases knowing individuals lack technological knowledge, we all lose.
What the future holds:
“Experts” from all over will tell you that the death of MiniNova means this for P2P and that the verdict of thePirateBay case will mean that for file-sharing, but in reality, nobody’s really sure. P2P is a magnificent tool for sharing information. Clearly, too much information for many music and movie industry advocates. However, through all of this some facts remain clear: Peer to Peer networks provide a valuable resource in terms of crowd-sourcing bandwidth consumption. Gaming companies such as Blizzard have been doing this for years now (Case in point: If you have millions of people trying to update their World of Warcraft clients with a file that’s a few hundred megabytes, you’d use a form of bittorrent too). Twitter has also turned to Bittorrent as a method of managing their bandwidth.
I’m of the personal opinion that legal methods always seem to pre-empt illegal concerns. As the Sony vs. Universal Case showed with VCRs, generally positive uses out shadow the negative ones. Sure, business structures change, but that’s all part of how the world works.