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More on the Italian Antitrust investigation upon Google News

The strongest claim supporting the Italian Antitrust investigation upon Google News is the alleged Google “dominant position” that would make Italian publishers poorer (better, less rich) by not getting advertising revenues from their online contents.

There is some doubt, nevertheless, that ? Google’s market role could be defined as a “dominant position”. 1

Although it is undeniable that Google is the users’ preferred choice, and that Google has created from scratch a new business model attracting a huge quantity of customers, its legal status can hardly be defined as “dominant” in the Antitrust meaning. A characteristic of “dominant position” is the customer’s “locked-in syndrome”. Once you buy a product (or a service), its technological, purposely created oddities – such as non-standard file format etc. – make it almost impossible to switch to another similar, competing product. The most blatant example is the operating system market, where Microsoft was able to secure its market quota through its dominant position.

In Google’s case, au contraire, users are not “locked-in”: they can buy advertising services wherever they like, and use other search-engines at their will. Furthermore, Google can’t do anything to force its users to use its services, except by improving efficiency and quality. This means, in other words, that Google might lose its business power on the snap of finger. To put it short, cannot rest on its laurels.

As for the specific claims of the Italian publishers, there is neither a contract with them, nor a broader legal obligation falling on Google’s shoulders, to force the search engine to actually find “everything” on the Internet. 2 If they don’t like Google’s “banning attitude” (that still has to be demonstrated, by the way) they can simply find different agreement with Google’s competitors, thus forcing users to change their search engine of choice. Provided – of course – that Internet users find those contents of some value, but this is a horse of a different colour.

  1. “Dominant position” is a concept belonging to the Antitrust law and depicts a situation where a company stays in its market in a much stronger position than its competitors, thus setting the rules for competition. ↩
  2. Oddly enough, this is the first time, at least in Italy, where Google is “charged” with not making contents available, while in the past its management has been accused of not removing “disturbing contents” from its indexes ↩
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Italian Antitrust to storm on Google News?

Yesterday ? the Italian headline news announced that the Italian Antitrust, following ? claims by FIEG (Federazione Italiana Editori e Giornali – Italian Federation of Publishers and Journals), opened an investigation against Google, “charged” with discriminating against those publishers who had denied the availability of their content in Google’s News platform.

As I’ve pointed out in an interview by ANSA, this claim seems to stand on very weak legs.

As first, people use Google simply because it works. As soon as a (not necessarily new) search engine will prove to be more efficient, people quickly discharge Google.

Secondly: Google is not, by far, the only search engine to provide news search. People are not affected by a “locked-in syndrome” like in the operating system field: in other words, nobody has put a gun on the users’ temples to use Google.

Thirdly: the Internet economy is based on a quid pro quo, and the search engine sector doesn’t behave any differently. Publishers have contents, Google the technologies to make these contents available. If they join forces, publishers get traffic (i.e.: advertising), Google its part of the cake. If they don’t, they loose traffic and advertising revenues. That’s the Internet, honey!

Fourthly, let’s admit – for the sake of the discussion – that Google actually does what it is charged with. So what? As soon as the law is abided, Google is a private company, and the only people who can complain about its business strategies are the shareholders. I don’t see any reason whatsoever to force Google to look for specific content.

A final note: this situation is a typical demonstration of how “innovation” is “awarded” in Italy by the content industry. Instead of trying to unleash the power of new tools, the reaction of the traditional powers is to break it. It happened with software, it happened with music and video, and now with the Internet.

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Faked DNA and Criminal Trials in Italy

“Authentication of forensic DNA samples” is a paper released on the last Forensic Science International: Genetics issue by a group of Israeli researchers. Authors claim to have found a method to fabricate artificial biological samples (and the way to tell the differences from the original one) and wish that their finding will become a standard in forensic procedures to maintaini “the high credibility of DNA evidence in the judiciary system.”

Does this method really affect criminal investigations and trials?

“We still are in the “bad cop” (or evidence tamperer) field who planted faked biological samples on the crime scene” – says Andrea Cocito, researcher at IFOM, Milan (IT.) In fact, the “fabricated-genetic-evidence defense” has been proven viable in the ? OJ Simpson case tried between 1994 and 1995 in Los Angeles, USA. Mr. Simpson’s lawyers were able to raise the suspicion that the results of the analysys on the biological samples coming from the crime scene – aiming at Mr. Simpson as “owner” of the DNA – weren’t reliable enough because of the police handling lack of care. “If” – Cocito argues – “a biological sample has ? really been found on the crime scene, if the sample isn’t planted and if it’s not been degraded, then I might analyze both samples (the crime scene one and the one belonging to the defendant) to see if I get a match. In these case, there couldn’t be reasonable doubts on the results.” Thus, matching the defendant biosample collected in a controlled environment with the sample found on the crime scene it is possible to tell the probability of a reciprocal match.

The actual problem, then, is not the intrinsic scientific reliability of a genetic analysis-produced evidence. The problem is the strength of the chain of custody (i.e. the possibility of tracking all the intermediary steps, from the crime scene to the Court.) It is evident that if during the journey some part of it is not verifiable, a possibility comes to arise a legitimate doubt that what came in Court might not be what has been found on the crime scene.

On this issue, Italian law n. 85/2009 that creates a local National DNA Database is very lazy. There is neither any explicit duty of guaranteing the chain of custody, nor a provision that prevent the use in Court of wrongly-handled biological samples.

This is the translation of an article I’ve written for Nova-IlSole24Ore. The Italian version is available here.

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The Pirate Bay war. Does something changes for ISP’s liability?

The new episode of the Pirate Bay war leads to think that something is changing in judges’ mind in re: ISP liability. In the recent Swedish preliminary order neither is the final user the final target of a legal action, nor the ISP. The focus is on the sole and only possible defendant: the one who actually shares illicit contents (apart from the merit of the specific TPB case.) The ISP who provided the housing service for TPB torrent search engine has been ordered to “disconnect” the machine from the network and not, as in the previous episodes, to hijack users’ attempts to reach The Pirate Bay.

It is important to remark that in this trial the ISP is not involved as (contributory) defendant, but only as subject whose cooperation is – de facto – necessary to obtain the compliance to a court order. Thus, we face a situation where:

  • rights of innocent end users are not endangered by the activity of the copyright majors,
  • ISP’s role is not portrayed as those of an accomplish, supporter, or contributory violator,
  • the target of the legal action is focused on the (alleged) culprit.

Again, I don’t want to enter in the legal quarrel about TPB responsibility. What I want to stress is that – should the Swedish approach be confirmed – a step toward and actual respect of legal principles set by dir. 31/00/CE is made.