Platforms’ liability for news theft

by Andrea Monti (originally published in Italian by IlSole24Ore – May 1, 2020)

The criminal investigations against the unlawful distribution of newspapers, periodicals and books are interesting in several respects. Firstly, it is a step towards making those who commit a crime by hiding behind the screen of a smartphone, i.e. the user of a service, responsible for their course of action. Secondly, it focuses on “platforms”, i.e. those operators who “rely” on the access network to make profits and who therefore can immediately provide data to prosecutors and perform selective blocking. Thirdly, and as a consequence, it puts again on the table the issue of the actual (non) neutrality of platforms. EU Directive 31/00 is evident in this respect: operators who do not interfere in users’ behaviour must not perform pre-emptive monitoring. But those who, like platforms, are not “neutral” to those who use them should not be able to take advantage of this possibility, as has been happening for some time in Italy and Europe.

Hopefully, the European Union eventually decide to give platforms an autonomous legal status and liability. However, these criminal investigations create a legal precedent on another very technical but essential issue: the possibility of configuring a responsibility (whether under the criminal intent or other liability doctrines) for crime by design. The idea is simple: as in any human action, when somebody decides to do something, has to make sure that it does not cause damage and upholds the law. If somebody designs a platform (or a business model that exploits it) without mechanisms that prevent its illicit use, and the absence of these mechanisms is what makes my product/service successful, then he cannot deflect his liability.

In this specific case, therefore, it is necessary to understand the way Telegram works and assess, for example, if it is a provider of a press distribution service and then if the entire revenue generation model is based on service neutrality.

Finally, this case is the test-bed for that case law (Cass. penale, sez.II sent. 11959/20) that, after only twenty-five years from the first theoretical elaborations, finally recognizes the nature of “thing” to data and files. This jurisprudence opens the possibility to charge a defendant not only of copyright infringements but also of serious crimes such as money laundering or receiving stolen goods. In this case, it would be possible to claim more substantial charges for the perpetrators of the offences, and more dissuasive for those who have “nasty thoughts”.

Danny Monzeroll, Youtube and Copyright

Every now and then – thank to Youtube – I discover some mind-blowing musician I didn’t know about as it just happened with Canadian, Montreal based artist Danny Monzeroll.

His Pink Floyd songs arrangement for solo classical guitar is nothing but brilliant in terms of composition, execution and recording and – yes – it is freely available on Youtube. While, then, it would have been easy to “forget” about author’s right to be compensated for his work I decided to buy the album as a way to thank Mr. Monzeroll for his masterpiece. Continue reading “Danny Monzeroll, Youtube and Copyright”

The Netflix-NeonGenesis Evangelion case – Moral Right of Author and limits to dialogues adaptation

The apparently marginal case of the removal from Netflix Italia of the poor adaptation of NeonGenesis Evangelion’s dialogue,s poses, in reality, a serious problem of moral Right of Author: that of the mutilation of the creative work.

Fact: Netflix commissions the rewriting of the dialogues of the Italian version of a very famous Japanese animation series: NeonGenesis Evangelion (新世紀エヴァンゲリオン). The dialogist – this is the professional figure who carries out this task – delivered such a poor result – in the audience’s perception – that Netflix decided to suspend the publication of the series waiting to repair the damage. Continue reading “The Netflix-NeonGenesis Evangelion case – Moral Right of Author and limits to dialogues adaptation”

Copyright on Information. A Dangerous Path

In its “Re-use of Public Sector information” website section, the Irish Data Protection Commissioner writes verbatim

All of the information featured on our website is the copyright of the Data Protection Commission unless otherwise indicated. You may re-use the information on this website free of charge in any format.

At first sight this statement might looks innocuous, but actually it carries a blatant mistake that will turns into a dangerous trend: imposing copyright on information.

In the EU, Copyright – better, the Right of Author – grants legal protection to the way an idea is creatively put in writing or in whatever way can be perceived by a human beings. In other words, this Shakespear’s quote from Hamlet’s Act II, Scene II

Though this be madness, yet there is method in ‘t.

is protected by the Right of Auhtor because of the “how” (creative form) rather than of the “what” (raw information). 1

Therefore, the statement of the Irish Data Protection Commissioner is a wrong enforcement of the Right of Author prerogatives.

But why is it dangerous too?

The talk I did at the 2004 Licensing Executive Society of Britain and Ireland Annual Conference, lately edited in a paper published by Ciberspazio e Diritto (English version available here) explains what is at stake:

The impossibility of securing patents did not stop the attempts to establish some sort of “ownership” on the genetic information, and alternative ways have been sought. As far back as 1987, Walter Gilbert, one of the pioneers in bioinformatics research, declared to the Washington Post: “I don’t believe in the patentability of the genome. What we are actually interested in is securing copyrights on the sequences. This means that if someone wishes to read the code, they will have to pay us to get access. Our goal is to make the information available to everyone. Provided they pay a price.

Imposing “copyright” over information, then, is not only wrong because there is no creativity on raw data. Is dangerous because it is a way to deprive people of their right to knowledge (right to science) and to be informed (free speech)

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  1. Of course Hamlet is in the public domain regime, but the moral Right of Author still stands

Weibo vs Leica Camera AG: Social Networks and the loss of control over corporate brands

An advertising video titled “The Hunt” and aimed at promoting the “Leica experience” raised controversy in China because of a frame showing a lens that mirrors the Tank Man picture portraying the activist that in Tien An Men Square blocked a PRC Tank just refusing to give way.

As a result for what has been perceived as an infringement of the chinese social networking platfrom Weibo terms and conditions, the word “Leica” (both in English and Chinese) is banned from the platform.

Furthermore, the partnership between Leica and HwaWei to establish a Chinese presence of the German camera manufacturer seems to having being jeopardized, at least for now. Continue reading “Weibo vs Leica Camera AG: Social Networks and the loss of control over corporate brands”