The curvaceous twenty-something Juliana, shown here in a Folha de S. Paulo “autohagiograpy by proxy” profile — demonstrating that she “gets the Internet” — also has a Billy Bob tattoo, one hears. If she were really lawyering, those books would be open.
Executive Summary
A São Paulo court recently applied what is essentially an established European Union model of Internet governance to the mysterious case of Generic Barbie No. 8 v. YouTube.
This EU approach to the liability of ISPs and Web site operators is apparently to be the New Dispensation under Lula II, given the resolution of a similar case involving Orkut.
But “Innovative” Brazilian lobbyists prefer to misinterpret that decision on YouTube in light of the Alberto Gonzalez model for Internet governance — which the U.S. Dept of Justice has tried, and failed, to get Google to comply with in the past — claiming the ruling is “ambiguous.”
Also at issue is the fate of a Cardoso-era constitutional amendment easing restrictions on the operation of foreign media in Brazil.
I have also summarized this analysis in (bad) Portuguese.
Loura de Assalto: Who Is this Mysterious Blonde “Internet Expert,” Really?
“She was such a nice girl, and now here she is in all the newspapers with a gun in her hand.” Patty’s dad.
So who the hell is this “expert on Internet law” who lied so baldly — and badly — to my esteemed blogging colleague the Globo Blogalizer the other day about “the techical impossibility” of denying Brazilian users access to a single video on YouTube?
Well, we know that she is an employee of Renato Opice Blum, for example.
Just from Googling her name, mind you. On the first page of results.
Local media: I demand the right to consider the sources.
So why should I pay you when you constantly force me to work for it on my own?
The NMM-Tabajara Test Labs are just not staffed up to fact-test every single item in this mountain of willful noncommunication you are trying to feed us with, and calling it beefsteak.
Prof. Opice Blum himself is interviewed in the Estado de S. Paulo in recent days, pushing the idea that the injunction approved by the judge who ordered that the scenes of “alleged sexual conduct” be made unavailable was “ambiguous.”
But “the São Paulo court” immediately issued a sharp statement denying that it had ordered the specific measure of blocking the entire URL of YouTube.com.
As usual, reports on the debate tend to identify such persons as Opice Blum and Juliana merely as “Internet law experts” without revealing that they are acting on behalf of interested parties in the case.
For hire.
This young woman, for example, has been all over the TV for days now defending the complete blocking of YouTube.com in Brazil as “the only technically feasible means” for complying with a court order in the infamous Ken and Barbie sex on the beach scandal here.
As everyone knows, the suit includes the participation of media companies to which the bombshell is under contract, who are concerned with the public image of their property — the TV personality filmed misbehaving on a public beach in Spain — and sued to avoid further erosion in the value of their brand.
Kind of backfired on you, didn’t it?
Now that you have become a national joke?
I had to do a fair amount of research — and am still working on it, in fact, as to client accounts — to ascertain what all the reports I read failed to mention: What firm does she work for? What clients does she represent there?
Look here: URL means “Unique (and Uniform) Resource Locator,” right?
So if the offending video, or videos, can be uniquely identified, why can it (they) not be uniquely filtered?
Where, in other words, is the ambiguity?
Orkut, owned by the same company (Google Inc.) has reportedly already negotiated a way of complying with subpoenas for embargoing content — while preserving habeas content rights of users, so that it does not violate its own terms of service, as UOL did in a similar case — on that multiple-jurisdiction Web site, with servers in the United States.
As the blogger at Vi o Mundo reported, the curvaceous infowarrior told him, and every TV news show in town, too, that “In theory, these firms could be ordered to block the video,” but
Teriam que dedicar funcionários ao monitoramento contínuo do YouTube.
“They would have to assign workers full-time to monitoring YouTube continuously.”
Lie.
Or to be more precise, a Sisela-Bokian “Lie 2.0” — i.e., disinformation.
The loura de assalto, by the way, is a Brazilian urban legend based on the practice, during the dictarship, by armed urban guerrillas, of assaulting banks in teams led by a woman in a blond wig and sunglasses.
Think Patty “Tania” Hearst.
What attracts my attention is that I have heard this story so many times before.
It strongly resembles past campaigns run against Google, for example, by the likes of the people behind the Global Voices Online at the Berkman Center for the Intel-Inside Society — before Jim Moore’s No. 2 at the Berkman Center’s Open Economies Project (funded by Hewlett-Packard) became Google’s chief lobbyist, that is.
People like Rebecca McKinnon vociferously and disingenuously supported U.S. Dept. of Justice efforts to force Google into turning over user data to federal law enforcement — and carried water in the process for a scabrous political smear campaign, carried out by a Congressman who receives campaign funding from Verizon and characterizing Google’s operations in China as Nazioid, to do it.
McKinnon once appeared on a segment of the PBS News Hour, for example — unopposed, mind you, without a single representative of other points of view — to bash Google for doing business in China and agreeing to filter search results.
Reminded, as an afterthought, as that segment was closing, that Google.cn prints a “some results may have been filtered at the request of your government” disclaimer, the blond “recovering television personality” just kind of sneered that it was “not enough.”
As part of the deal with Brazilian federal authorities, however, Google has been relieved of a parallel demand to turn over all its potentially identifying data on users to the Brazilian government.
That information can only be turned over after due process of law and the production of a subpoena, and only in specific cases.
Duh.
Dark Pensamentos and Brooding Intuitions
This whole thing smells a lot like an “armed media monopoly” maneuver to me.
I bet you that whoever these “independent Internet law experts” are working for would like to ratfuck Google — “ratfuck” was the term of art coined by Nixon’s dirty tricks mastermind, attorney Donald Segretti, of course — and send it back home with its tail between its legs the way UOL did AOL a few years ago.
That is my working hypothesis, at any rate.
Here is a selection from the story in Último Segundo today (or was it yesterday?) on the Opice Blum maneuver:
De acordo com o advogado Renato Opice Blum, um dos maiores especialistas em Direito na Internet, em entrevista do jornal “O Estado de S.Paulo”, o despacho do desembargador Ênio Santarelli Zuliani, do Tribunal de Justiça de São Paulo, é “ambíguo”.
According to attorney Renato Opice Blum, one of the foremost specialists in Internet law, in an interviw with the Estadão, the order from judge Zuliani of the São Paulo court is “ambiguous.”
Na quarta-feira, Zuliani concedeu liminar determinando que os provedores de Internet, responsáveis pela distribuição do conteúdo americano, bloqueiem o acesso ao vídeo de Cicarelli.
On Thursday, Zuliani issued an injunction ordering ISPs responsible for distributing content from the United States, block access to the Cicarelli video.
Zuliani explicou ao “Último Segundo”, na quinta-feira, por meio da assessoria de imprensa, que a decisão refere-se apenas ao vídeo da modelo Daniela Cicarelli com o namorado Renato Malzoni Filho. Segundo o desembargador, a intenção é determinar que apenas o filme com o casal seja bloqueado.
On Thursday, Zuliani told US, through his press office, that the decision applies only to the video of Cicarelli and her lover-boy Malzoni. According to the judge, the intention of the ruling was that only the footage showing the couple should be blocked.
Blum, porém, afirma que a ação inicial, feita por Renato Malzoni, pedia a retirada do site YouTube no Brasil. Ainda, de acordo com entrevista de Blum ao jornal, como o pedido inicial era para que todo o conteúdo do site fosse bloqueado, o coerente é que as empresas interpretem desta forma a decisão dada pelo desembargador.
Blum, however, says that the initial action, brought by Malzoni, requested that the entire site be blocked. Again according to Blum’s interview with the Estadão, since the original petititon was that the entire site be block, the coherent thing for the ISPs to do would be to interpret the judge’s order in this light.
Ths positition strikes me immediately, like a hammer between the eyes, as a classic instance of the Berkman Center for the Intel-Inside Society’s trademark Humpty Dumptyism — a theory of language which also characterizes the infamous Bush “signing statements,” please note.
“We can interpret the letter of the law any way we see fit.”
“As long as we can forum-shop until we find a judge that agrees with us.”
Such as an appeals-court judge who has been on one of those infamous IRI or Federalist Society “training sessions.”
And I ask you: If you were thinking about doing business down here in Brazil, is that really the philosophy of contract enforcement you would like to see the local courts applying to deals between you and your local business partners?
And if you were going to put your money in a Brazilian firm — I personally own 100 shares of EWZ, which I bought at $21 on a tip, like an idiot, but it worked out okay, from my friend Omar the Art Director — would you feel that your risk could be better managed knowing that competitors can take unilateral actions of this kind to ratfuck the business you are betting on?
And I ask you again: Since when do the Harvard Law school and its long-time partner, the Getúlio Vargas Foundation, endorse the notion that the laywers it turns out can legitimately choose, off some kind of a la carte menu of ethical professional conduct, between honest and dishonest forms of advocacy?
And who exactly is bankrolling this Jack Abramoff-Intel Innovations in Goverance lecture series they are running over there, anyway?
For a parallel case that is very much on point, see also Google Besieged by Family, Church and Fatherland?
Note the eerily similar set of facts, as reported by GVO’s Italian correspondent:
Those who demand or initiate repressive action forget that the European Union and Italy have already faced and solved the problem of the responsibility of internet providers. Directive 31/00, received in Italy with decree-law 70/2003, says clearly that there isn’t a general obligation of preventive surveillance by internet providers. If, and only if and when, there is a provision of the public authority, it is possible to remove, or make unavailable, contents or services.
Bialystock and Opice Blum
Some notes on the dramatis personae in this farce, for further reference, starting with Renato Opice Blum’s profile on Alfa-Redi, a “law & economics for the Internet” think tank:
Advogado e economista; Professor da FGV, PUC, IBTA/IBMEC, FIAP, ITA/CTA (convidado) e outras; Árbitro da FGV, da Câmara de Mediação e Arbitragem de São Paulo (FIESP), do Tribunal Arbitral do Comércio e outras; Presidente do Conselho de Comércio Eletrônico da Federação do Comércio/SP; Autor / Colaborador das Obras: “Direito Eletrônico – a internet e os tribunais”, “Novo Código Civil questões controvertidas”, “Internet Legal”, “Conflitos sobre Nomes de Domínios”, “Comércio Eletrônico”, “Direito & Internet – aspectos jurídicos relevantes”, “Direito da Informática temas polêmicos”, “Responsabilidade Civil do Fabricante e Intermediários por Defeitos de Equipamentos e Programas de Informática”, “O Bug do Ano 2000 – aspectos jurídicos e econômicos” e outras.
Mr. Blum is a lawyer and economist and professor at the Getulio Vargas Foundation — which partnered with the Creative Commons on that absurd iCommons rollout in Rio this year — and the Pontifical Catholic University here in São Paulo. He is a dispute resolution arbitator for FIESP and the local Commercial Arbitration Court (dead link? why?) and president of the local chapter of the National E-Commerce Council.
In other words, another man of many hats from the bureaucratic latifundio — judge, jury and executioner.
As an exercise for the day, let me try and work up a nice summary of all the players in this case, but do it offline.
In the meantime, sticking to the risk management area, I would say the main question is this:
The old OAB mafia may be out at the national level, and in many regions around the country. But what is their current strength and tactical deployment in São Paulo, under this new fellow, Mr. Urso Filho?
Relatedly, what is the current balance of power in FIESP, the powerful São Paulo business syndicate, where Mr. Skaf, my impression is, has steered a more or less pragmatic and centrist course?
For a telling anecdote about the more retrograde tendencies inside FIESP, one need look no further than the Brooks Bros. riots that broke out over the Federal Police operation known as Operation Narcissus, which busted the hell out of the Paraguyan Marlboro mafia-style business model allegedly being applied at the Daslu luxury boutique here.
The protest leader, PSDB deputy Alberto Goldman, explained the rationale for the protest. According to Goldman, “this arrest could lead to an economic crisis. Businesses wil say: why invest in Brazil if we are going to wind up getting arrested?”.
As hard-left trade-unionist journo Altamiro Borges commented:
That is: in the Toucan view of the world, the only folks that ought to be in jail in this country are the chicken thieves! The businessman who evades taxes, sends money out of the country illegally or commits other crimes can’t be touched and can even count on the help of certain politicians- who will later get a nice campaign contribution.
I can’t help agreeing with that observation, even if I would not go so far as saying, with Borges, that these people represent “the inherently predatory nature of market capitalism.”
The whole point being that defense of monopoly at all costs is totally anathema to the creation and good governance of “free and open capital markets.”
So what effect, if any, will the reform broom that Governor Serra wants to wield have on that state of affairs?
The papers are brimming at the moment with reports on the internecine warfare in the local PSDB after what, after all, was an extremely in-your-face inauguration speech by Mr. Serra.
Serra is tipped to face off with Gov. Aécio Neves — yes, that is correct, as in “died before assuming office” president-elect Tancredo Neves Jr. — of Minas Gerais for the PSDB presidential nomination in 2010.
Keep your business ecosystem varmint-free: Out a tout today.
The New Market Machines 