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The dreadful state of copyright law in the digital age can be nicely illustrated by a thought experiment.* If one thinks back to 1980, it is hard to imagine how one could have committed a copyright violation with a book, an LP or a reel of film. Lending the book to a friend, duplicating parts – or even the whole book – on a photocopier, or staging a reading were all possible without clarifying rights. While copyright was already a complex matter at that time, until the internet it played little role in most people’s everyday lives.

Cover of the reader on "The Digital Society" by the Friedrich-Ebert-Foundation

Cover of the reader on “The Digital Society” by the Friedrich-Ebert-Foundation

Today everything is different. Anyone who uses a smartphone to video everyday experiences and share them with friends in a personal blog will hardly be able to avoid violating copyright. A couple of seconds of music or a poster in the background will suffice if “making publicly available” in the internet violates copyright. Many of the most creative digital artforms, such as remix and mashup, are almost impossible to disseminate by legal means, still less to commercialise. The use of even the briefest music or video sequence must be legally clarified, and in most cases this is much too complicated and expensive. Libraries, museums and archives battle with similar problems, preventing them from digitising their holdings.

Introducing a Right to Remix?

Apart from shorter copyright periods, there would be two other sensible approaches to solving this problem. Firstly, a European harmonisation and expansion of the catalogue of copyright limitations and exceptions would be sensible. The introduction of a de minimis or remix exemption modelled on the fair use clause in US copyright, combined with the forms of flat-fee reimbursement established in Europe, would enable new forms of recreational and remix creativity. Even for commercial publication of remixes and mashups all that would be required is to notify the relevant copyright collecting society (as is already the case for cover versions), in place of the complicated and expensive process of clarifying rights. Secondly, the establishment of a European register of works would simplify clarification of rights and restrict ongoing copyright protection (after an initial period) to cases where works are in fact still in commercial circulation.

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google-good-or-badEllen P. Goodman (Rutgers University School of Law) and Julia Powles (University of Cambridge, Faculty of Law) have assembled 80 scholars (including myself) in support of an open letter to Google, which demands ”

Aggregate data about how Google is responding to the more than 250,000 requests to delist links, thought to contravene data protection laws, from name search results.

The letter mentions two main reasons why more transparency is needed:

(1) the public should be able to find out how digital platforms exercise their tremendous power over readily accessible information; and (2) implementation of the ruling will affect the future of the RTBF in Europe and elsewhere, and will more generally inform global efforts to accommodate privacy rights with other interests in data flows.

Read the letter in full, which ends with a long list of unanswered questions, over at the Guardian or at Medium.

(leonhard)

In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

In the last entry of this series I have described how YouTube’s Content ID system effectively re-introduces registration requirements into copyright, even though international treaties such as the Berne Convention forbid such requirements. With its most recent additions to YouTube’s rights management infrastructure, YouTube owner Google brings the former’s rights clearing services to a whole new level.

Previously, creators using copyrighted material such as contemporary pop music in one of their videos could only try to upload their videos and hope for the best (i.e. no recognition by the Content ID algorithm) or the second best (i.e. recognition by the Content ID algorithm but acceptance/monetization by rights holders). In any case, creators could only definitely know after making and uploading a video whether and how YouTube’s algorithms would react.

In a recent blog post, YouTube has announced substantial changes to this system:

But until now there was no way to know what would happen if you used a specific track until after you hit upload. Starting today, you can search the YouTube Audio Library to determine how using a particular track in your video will affect it on YouTube, specifically if it will stay live on YouTube or if any restrictions apply. You can uncross those uploading fingers now!

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

The most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works, is quite clear with regard to registration requirements for copyright protection in its Article 5 (2)

“The enjoyment and the exercise of these rights shall not be subject to any formality”

copyright-symbol

The copyright symbol in Arial

In other words, for the 168 countries covered by the Berne Convention, registration provisions are not an option.* In the digital era, this ban is unfortunate for a number of reasons: Read the rest of this entry »

In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

google-good-or-badWith a market share of over 90 percent in Europe, the Google search engine and its search algorithm respectively decide what is relevant on an issue and what not. Any information that is not placed on the first few pages of Google’s search results will hardly ever be found. On the other hand, personal information that is listed prominently in these results may haunt you forever. The latter issue was recently tried by the European Court of Justice (ECJ), who ruled (C-131/12) that

the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’

and that, under certain not very clearly spelled out conditions relating to the data subject’s rights to privacy,

the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person.

By crafting such a “right to be forgotten”, the ECJ effectively regulates Google’s search algorithms. In other words, we can observe the ECJ regulating Google’s algorithmic regulation. In response to the ruling, Google has already set up an online form for deletion requests, stating that  Read the rest of this entry »

It is well known that YouTube serves as a platform for a huge variety of educational material. Most prominently, Salman Kahn (“Khan Academy“) began his career as a provider of Massive Open Online Courses (MOOC) by posting teaching videos on YouTube.

In addition to educational material on all kinds of topics provided by third parties, Google increasingly engages in the production of its own educational content to improve the quality of user-generated content published on its platform. Google’s obvious calculation: better videos means more views means more ad revenue.

Initially, however, Google’s first educational videos were in mere self-defense against countervailing accusations with relation to copyright infringement on its platform. While rights holders complained and blocked unauthorised use of their content, users protested against respective deletion of their accounts (see “Private Negotiation of Public Goods: Collateral Damage(s)“) . In this situation, Google launched its “YouTube Copyright School”, which so-called “multiple infringers” have to watch to re-open their account (see “Crazy Copyright Cartoon: The YouTube Copyright School“).

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

fair-search-europe-logoA common complaint of Google’s competitors in fields such as Internet maps is that Google’s search algorithm favors its own services over those of competitors in its search results. For instance, the FairSearch coalition led by Microsoft, Oracle and others calls for more transparency in displaying search results and harshly criticizes Google:

Based on growing evidence that Google is abusing its search monopoly to thwart competition, we believe policymakers must act now to protect competition, transparency and innovation in online search.

Given Google’s market dominance in Europe with over 90 percent in core markets such as Germany, such allegedly discriminatory practices led to an antitrust investigation by the European Commission (EC). However, providing reproducable evidence for such discriminatory search results is difficult. Google is not only constantly changing its search algorithm (see “Algorithm Regulation #4: Algorithm as a Practice“) but also increasingly personalizing search results; both these characteristics of contemporary search algorithms make it difficult to compare search results over time.

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

Google Logo

Raúl Ochoa, CC-BY-NC-ND

Today I stumbled via twitter upon the website “Google Algorithm Change History” that chronologically documents all changes of the core search algorithm publicly announced by Google. The most striking feature of the site is the sheer number of changes:

Each year, Google changes its search algorithm up to 500 – 600 times. While most of these changes are minor, every few months Google rolls out a “major” algorithmic update that affect search results in significant ways.

In other words, it does not make sense any more to speak of “the Google algorithm” because there is not an algorithm but there are algorithm-related practices. In line with the practice turn in contemporary social theory (see Schatzki et al. 2001) and similar to perspectives such as strategy-as-a-practice, we might require a practice perspective on algorithms to better understand how algorithm regulation works.

When looking at the frequent – not to say constant – changes in Google’s search algorithm, it also becomes obvious how misleading regular comparisons with the Coca-Cola formula such as the following in a Wall Street Journal blog are:

Google is very cagey about its search algorithm, which is as key to its success as Coke’s formula is to Coca-Cola.

The algorithm of Google search is not like a static formula and therefore it should not be treated as a trade-secret either. Actually, if the search algorithm where a mere formula, we would see much more competition in search. Google is practicing algorithmic search and it is these continuous changes, which mostly rest on access to unimaginably big data sets of search and usage practices, that are difficult to imitate for competitors.

With regard to the issue of algorithm regulation, a practice perspective sensitizes for phenomena such as regulatory drift. In a paper on transnational copyright regulation, Sigrid Quack and myself describe regulatory drift as “changes in meaning and interpretation, which result from continuous (re-)application of certain legal rules” (see also Ortmann 2010). In the context of algorithms, the term might refer to the sum of continuous revision and (seemingly) minor adaptation practices, which in the end lead to substantial and partly unintended changes in regulatory outcomes.

(leonhard)

In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

Yesterday, YouTube proudly announced on its blog that it had improved its “Content ID” system, which allows rights holders to automatically detect uploaded content that contains potentially infringing works, by introducing a new appeals process:

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

In addition, YouTube claims to have made its algorithms “smarter” to reduce the number of unintentional Content ID claims:

Content owners have uploaded more than ten million reference files to the Content ID system. At that scale, mistakes can and do happen. To address this, we’ve improved the algorithms that identify potentially invalid claims.

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In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

Earlier this year, Google revealed that it routinely removes search results that link to material allegedly infringing copyrights, thereby following removal requests of copyright holders (see  “New Layer of Copyright Enforcement: Search“). Since this announcement, the number of removed search results per month has quadrupeld (see Figure below).

Yesterday, Google announced that in addition to removing search results it is going to also adapt its ranking algorithm:

Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results.

As in discussed in the first entry of this series on algorithm regulation, the technological layer of regulation is becoming increasingly important for copyright enforcement. But Google’s move to tinker with its most precious asset, the search algorithm, also evidences that technological regulation of this kind may directly result from stakeholder negotiations.

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The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
August 2017
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