The Sincerest Form of Flattery?

Imitation is said to be the sincerest form of flattery, but I think that outright theft is even better―it is, after all, imitation pushed to its logical utmost. Well, I was a very flattered man yesterday, upon discovering that a self-described “Canadian Legal Directory,”, had published verbatim two of my recent posts (the one about H.L.A. Hart and the one about mass incarceration, the originals being here and here respectively)―without asking me of course. My name does appear under the republished posts, along with the bizarre title “IPlogue Editor,” which I do not bear.

Unfortunately, this website contains no information about who stands behind it, or about how they might be contacted. Nor do they seem to have a social network presence. Indeed they barely show up in Google search results.

So. If you know the people behind that website, please let me know how to get in touch with them. And you actually are somehow related to that website, do get in touch―with an apology―and do take down your copies of my posts. You are certainly welcome to link to them, or to make fair use of them―but an integral reproduction does not qualify.

I’m glad that my writing is good enough to be stolen. But I’m not amused at its actually being stolen.

Google as Regulator, Part Deux

A recent story, reported for example by the Globe and Mail, nicely illustrates Google’s dual, and perhaps ambiguous, role as “speaker and censor,” at once exercising, or claiming to exercise, an editorial judgment and making itself he agent of speech-restricting governments, about which I blogged some time ago. According to the Globe, “Google’s search algorithm will begin demoting websites that are frequently reported for copyright violations, a move that will likely make it more difficult to find file-sharing, Torrent and so-called file locker sites.” These websites will not be removed from search results, but they will be harder to find.

This is, it seems to me, an obvious example of “editorial judgment,” which – as I explain in more detail in the post linked to above – Google claims to exercise when designing its search algorithms. At the same time, it is an an example of Google acting, in effect, as a regulator, if not, in this case, as a censor. The decision to demote allegedly-copyright-infringing websites is not, one suspects, motivated by commercial considerations; at least not immediately commercial considerations, since, as the Globe puts it, the move “should please Hollywood” – and other content producers – and perhaps Google considers pleasing them as an investment that will pay off. Google’s state reason for this decision is that it will “help users find legitimate, quality sources of content more easily” (my emphasis). One usually associates concerns for legitimacy with public authorities rather than private corporations.

Indeed, some might want Google to take an even more public-spirited position. As Deven Desai, of the Thomas Jefferson School of Law, notes in a post on Concurring Opinions, “this shift may open the door to more arguments for Google to be a gatekeeper and policer of content.” Indeed, although he does not favour such an approach, he points out that it is a “difficult question … why or why not act on some issues but not others.” Why, for example, copyright infringement but not hate speech? For now, even Google might lack the data and/or content-analyzing capacities effectively to recognize hate speech. But given how fast technology evolves, this might change sooner rather than later. As prof. Desai observes, if Google becomes a more overt internet regulator, it will be criticized, for example from a competition-law standpoint. But of course it will also be criticized if it refuses to take on that role.

Either way, there will be a lot of interesting questions for lawyers. At what point does Google, acting as a quasi-regulator, become a state agent subject to constitutional constraints? How does competition law, and its prohibition on abuse of a dominant position, interact with the constitutional protection of freedom of speech, if the latter encompasses Google’s freedom of editorial judgment about its algorithm? What sort of due process rights do or should people affected by Google’s editorial decisions have – and what legal framework – for example, administrative or maybe tort law – is appropriate for settling this question? This is a lot to think about. No answers from me for now.