Speech-Via-Algorithm Is Still Speech, And Censoring It Is Still Censorship

from the this-makes-no-sense dept

I have to admit that I'm really confused about law professor and FTC advisor Tim Wu's general position on a variety of topics lately. In the past, I've often found him to be thoughtful and (very) insightful on various topics concerning internet policy and regulations. But, at times, he seems to go off the deep end, such as with his recent claims that big automatically means a monopoly. But, his latest piece in the NYTimes goes way further than anything I've seen before: claiming that search results shouldn't get First Amendment protection because it's "computers" speaking, not humans.
Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.
This is wrong. And dangerous.

Let's be clear here: what search engines do is present opinions. They are opinions based on data programmed by humans. There is nothing special in that it's a computer that cranks through the data to output the opinion. Taken to its logical conclusion, Wu's argument is that we should protect uninformed opinions not based on an algorithmic exploration of the data -- but the second you add in a computer to crunch the numbers, that opinion is no longer protected. Contrary to Wu's assertion that this "wanders" from the point of the First Amendment, I'd argue the exact opposite. The First Amendment should protect all kinds of speech, but we should be especially happy about that which is based on data.

Two responses to Wu's piece help highlight this point nicely. Julian Sanchez notes that Wu's argument seems to suggest that any computer generated content doesn't get First Amendment protections -- and that would include computer-generated video games and movies:
Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.

Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers.
Similarly, Paul Levy takes Wu to task by comparing his argument to things like university rankings:
As the alumnus of a college that proudly rejects the proposition that the quality of educational institutions can be “measured by a series of data points,” I will take any opportunity to denigrate the Useless News and World Distort rankings of colleges, law schools and institutions of higher education.  But it would never have occurred to me to offer a “speech by computer” theory as a basis for denying that the ranking is speech or that it is protected opinion.  Maybe a stupid opinion, but that is not a basis for shutting the raters down, or enjoining them to change their rating criteria.  Indeed, this theory seems to me absurd — it is not the computers that have free speech rights, any more than printing presses have free speech rights.  It is the media companies that own the printing presses that have free speech rights, and by the same token it is the people and companies who program the computers and publish the results of their calculations that enjoy protection under the First Amendment.
Pretending that Google is a computer that magically generates answers, absent humans regular and consistent input into its algorithm, is a strange position to take, and it really does suggest that we should only protect opinions that don't include a component that uses a computer to analyze the data. I can't see how that's smart policy or anything close to what was intended in the concept of free speech.


Reader Comments (rss)

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    weneedhelp (profile), Jun 22nd, 2012 @ 9:20am

    But Mike....

    Its on the internet. Duh.

     

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    Keii (profile), Jun 22nd, 2012 @ 9:20am

    When I eventually put my brain in a robot tiger body, I'll want to keep my same constitutional rights and civil liberties.

     

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    el_segfaulto (profile), Jun 22nd, 2012 @ 9:20am

    Not fair for the Techdirt trolls

    I'm already convinced that the majority of the shills on this site are simply poorly written scripts. Now they can be censored simply because they can't pass a Turing test?

     

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    sehlat (profile), Jun 22nd, 2012 @ 9:26am

    Corporations Aren't Human, Either

    Therefore they are not entitled to constitutional protections. Hmmm....

     

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      :Lobo Santo (profile), Jun 22nd, 2012 @ 9:39am

      Re: Corporations Aren't Human, Either

      Taken to it's logical absurdity, only your brain's frontal cortex will have rights.

      The rest of your body--hands, mouth, etc--can be censored at any time for any reason.

      After all, those are just parts of a biological machine following the orders given from the brain.

       

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        Josh in CharlotteNC (profile), Jun 22nd, 2012 @ 11:11am

        Re: Re: Corporations Aren't Human, Either

        The brain is just a biological machine - programmed by your DNA and the environmental stimuli around you.

         

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      Josef Anvil (profile), Jun 22nd, 2012 @ 10:16am

      Re: Corporations Aren't Human, Either

      Oh but corporations are people and have rights. Anything that can pay a politician is legally a person, even a computer.

      Google just needs an algowhatsitmabob to direct funds to the proper politicians.

       

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      John Thacker, Jun 23rd, 2012 @ 7:34am

      Re: Corporations Aren't Human, Either

      Yes, you've noticed the key similarity. Corporations are tools that humans create, yes. A corporation is just a name for things that people choose to do together. (As opposed to a government, which is a name for things that people force other people to do.)

      Humans have free speech rights. They don't lose them when the form a corporation in order to combine their powers. Otherwise, you'd have a situation where only the super rich robber barons could contribute; remember that every charity and non-profit is a corporation. Heck, Citizens United itself is a non-profit.

      And yes, free speech includes video games even though they are published by corporations.

       

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    Anonymous Coward, Jun 22nd, 2012 @ 9:29am

    What's the difference between search results and Stephen Hawking? This is not a joke, I'm generally curious.

     

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    bob, Jun 22nd, 2012 @ 9:38am

    But will the computers be put in jail for theft?

    Of course Big Search wants to have its cake and eat it too. When the huge computer system spins out answers and people complain about them, Big Search wants to claim that it's a protected opinion, as carefully crafted as Martin Luther King's speech.

    But how does Big Search feel when its computers infringe upon copyright, help people buy illegal drugs, spy on citizens or just about anything else? Oh, well, that was just a mistake. Computers can't be expected to be responsible for these things. They can't be responsible because they're just dumb computers.

    If Big Search wants to hide behind the First Amendment when issuing its search rankings, it should also be willing to be held responsible for all of the laws that the computers break. Frankly I think someone should use the RICO act to prosecute the search engines for continuing to link to obvious infringers. Big Search loves to brag that its wonderful search engine can detect the best sites that deliver the most original content. So why does it go blind when it comes to torrent sites and worse?

    Not that it matters. They tell humans, "Ignorance of the law is no excuse." And the same goes for the search engines. I say give Big Search their 1st Amendment protection and then put the search engine in jail for all of its infringement, drug running, and worse. Treat the computers just like humans.

    And lest anyone not be paying attention, the 1st amendment is not a get-out-jail-free card. A mobster who orders a hit can't claim first amendment protection. The same goes for practically every crime where people are prosecuted for being accessories. So lets treat Big Search just like the average human. Let's see how Big Search likes it then.

     

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      Anonymous Coward, Jun 22nd, 2012 @ 9:43am

      Re: But will the computers be put in jail for theft?

      Your delusions grow ever grander.

       

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      Sneeje (profile), Jun 22nd, 2012 @ 9:53am

      Re: But will the computers be put in jail for theft?

      Ummmm... you do know that speech is used to infringe upon copyright, help people buy illegal drugs, spy on citizens, etc.? and yet it is still protected, right?

       

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        bob, Jun 22nd, 2012 @ 10:02am

        Re: Re: But will the computers be put in jail for theft?

        No. It may be protected in very narrow cases like newspaper articles about the general topic, but when the speech starts assisting the commission of the crime, people become accessories. If a newspaper were to run ads for some illegal operation, they would risk going to jail for being accessories . The first amendment is not a get-out-of-jail free card.

        Judges aren't computers. They aren't are dumb algorithms. They can tell the difference between honest news reporting and becoming part of the crime.

        The same goes for lawyers, police officers and many others who are normally protected. There's a line out there. It may be a bit gray, but if you cross it, a jury can send you to jail.

        So Big Search should be careful when it wants its computer to be treated like humans.

         

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          Sneeje (profile), Jun 22nd, 2012 @ 10:05am

          Re: Re: Re: But will the computers be put in jail for theft?

          But you're missing the point--the speech is still protected, but the CRIME is not. This is no different for Google. If they did break a law, they would be liable for that, but not the SPEECH.

           

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            PaulT (profile), Jun 22nd, 2012 @ 11:02am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            Don't bother. The words "Google" and "crime" have been mentioned again, so he's too busy masturbating his keyboard with conspiracy theories to notice what you're saying.

             

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            bob, Jun 22nd, 2012 @ 11:09am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            If it makes you happy, then let's say Big Search's SPEECH is a-okay, but it/they are guilty of CRIMES like infringement. And when humans are guilty of crimes, they go to jail. It doesn't matter how many nice things they do in the rest of their lives, they are locked up.

            So let's put the search engine in jail for the CRIME of assisting infringement. Humans go to jail for helping plan CRIMEs like this all of the time. I propose a sentence of one day for every count of criminal infringement. That should keep the search engine in jail for millions of years.

             

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              Anonymous Coward, Jun 22nd, 2012 @ 12:42pm

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              Your idiocy astounds me. Truly it does.

              Programmer makes something that will skim the web and tell you where things are.

              Someone else has a site where they post illicit copies of movies, music and games.

              Program points at illicit media.

              Programmer is guilty! Not the person who actually infringed!

               

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              Anonymous Coward, Jun 22nd, 2012 @ 7:45pm

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              He's fully capitalising words! We're all fucked now! THIS IS THE END, I TELLS YOU!

               

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          drhead, Jun 22nd, 2012 @ 12:38pm

          Re: Re: Re: But will the computers be put in jail for theft?

          Bob, what I've learned from over a decade of working with computers is that unless they're broken, they only do what you tell them to. If you tell them to 'index web pages' they'll index web pages. If you tell them to 'not index torrent sites', it doesn't know what a torrent site is necessarily, so it might end up doing something stupid like blocking every website that has a .torrent file or a magnet link, even if it is legal. And some sites have a mixture of legal and illegal content, which means the whole site isn't in need of censoring (Search for 'ubuntu' on TPB). This is why we have a takedown system. Google can't account for everything it indexes, and if they handpicked things to appear in results, it'd be impossible to use the search service since there wouldn't be anything to search for. The takedown system is for telling Google that something it indexed infringes on copyright or is illegal in some other way so they can correct their error (which is bound to happen with how many things are indexed). However, some people find it necessary to abuse the takedown system to further their personal interests:
          http://www.google.com/transparencyreport/removals/government/
          As for your point about drug trafficking, do we sue gun manufacturers when someone uses one of their products to murder someone?
          As for counterfeit goods, you are equating 'counterfeit' with 'steal'. Stealing is going into a clothing store and taking everything and running. Counterfeiting is making a (often cheap, poor quality) fabrication of the item.

          I must admit, bob, you'd make a great cult leader some day.

           

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      Anonymous Coward, Jun 22nd, 2012 @ 9:58am

      Re: But will the computers be put in jail for theft?

      But how does Big [Government] feel when its computers infringe upon copyright, help [cartels] buy illegal [guns], spy on citizens or just about anything else?

      But no, it's the Google>/i>!

       

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      drew (profile), Jun 22nd, 2012 @ 9:59am

      Re: But will the computers be put in jail for theft?

      Are you really Bob or are you a parody Bob?
      "give Big Search their 1st Amendment protection and then put the search engine in jail for all of its infringement, drug running, and worse"
      Search engines are drug-running now? Really? Code scripts are moving physical drugs across borders? Really?
      And worse as well?
      Search engines are doing worse than drug-running? Arson? Homicide? Terrorism?
      :¬O

       

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        bob, Jun 22nd, 2012 @ 10:06am

        Re: Re: But will the computers be put in jail for theft?

        Drug running? Surely you're aware of the $500m that Big Search paid to settle charges of helping folks smuggle drugs into the United States?

        http://www.justice.gov/opa/pr/2011/August/11-dag-1078.html

        http://online.wsj.com/article/SB10 001424053111904787404576528332418595052.html

        The point isn't that the code is actually moving the drugs across the border, the point is that the code is helping the criminals. Humans that help are just as guilty as those who commit the actual crime.

        But the average human can't skip out of jail by paying a $500m fine. Does Big Search really want to be treated like a human? If so, Big Search should be ready to join these humans in jail where they can exercise their First Amendment right by writing their memoirs.

        http://www.nj.com/news/index.ssf/2011/07/5_busted_in_nj_prescription_dr.html

         

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          weneedhelp (profile), Jun 22nd, 2012 @ 10:39am

          Re: Re: Re: But will the computers be put in jail for theft?

          The investigation was led by Assistant U.S. Attorneys Andrew J. Reich and Richard B. Myrus of the District of Rhode Island, and FDA/OCI Special Agent Jason Simonian. The FDA/OCI Rhode Island Task Force is comprised of law enforcement agents and officers from FDA/OCI; Internal Revenue Service – Criminal Investigation; U.S. Immigration and Customs Enforcement-Homeland Security Investigations; U.S. Postal Inspection Service; Rhode Island State Police; Rhode Island National Guard; Rhode Island Department of the Attorney General; East Providence Police; and North Providence Police. Corbin A. Weiss, Senior Counsel with the Criminal Division’s Computer Crime & Intellectual Property Section, and Sarah Hawkins, FDA Senior Counsel, assisted the Rhode Island U.S. Attorney’s Office in this matter.


          WOW what an impressive list of government agencies to help protect BIG Pharma keep affordable medicines from coming in from Canada.

          Did you even read the articles you linked to?

           

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            Anonymous Coward, Jun 22nd, 2012 @ 10:47am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            Those illegal drugs were smuggled into the US in balloons shoved up beavers using maple syrup!!!

             

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            bob, Jun 22nd, 2012 @ 11:14am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            Sure I read them. And if the humans are going to jail, so should Big Search. Do you like it when rich people buy their way out of jail time? What do you think that $500m fine did?

            Now I'm not sure I like the way that Big Pharma is gouging the US, but I do know that research costs a pretty penny. So does protecting us against counterfeits and poorly made products. So maybe it's the price we pay.

            But that's a distraction here. The point is that many humans are put in jail for smuggling drugs into the US. Big Search should go too.

             

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              weneedhelp (profile), Jun 25th, 2012 @ 2:36pm

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              "The point is that many humans are put in jail for smuggling drugs into the US. Big Search should go too."

              Sure and while we are at it lets put Ford, Chrysler, Chevy, Glastron, Checkmate, Piper, Cessna, and every other form of conveyance used to smuggle drugs in jail as well. By your failed logic, they should be to.

              Love ya boB.

               

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          drew (profile), Jun 22nd, 2012 @ 10:49am

          Re: Re: Re: But will the computers be put in jail for theft?

          So the creators of a device that helps people commit a crime should be treated as associates to any crime that is assisted by the use of that tool?
          That what you're saying?

           

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            Anonymous Coward, Jun 22nd, 2012 @ 10:51am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            This would be great, we'd never see another ad or commercial!

            Run ads for Bernie madoff, pay a fine equal to all of Madoff's profits!

             

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              bob, Jun 22nd, 2012 @ 11:18am

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              There are plenty of banks that are trying to defend themselves for being advertising Madoff's funds. They're being sued because it's claimed that they should have been smart enough to know better.

              It's well-known that newspapers don't accept ads for questionable places that skirt the lines of legality. Yet there are plenty of other places buying ads. It's all a question of how obvious it should be that it's a criminal enterprise.

              The fact is that Big Search already knows of many torrent sites that are infringement farms yet it does nothing to shut them out of the search results. Once a human starts to understand this, a human has a responsibility to stop. If Big Search wants human rights, Big Search should get human responsibilities.

               

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                drew (profile), Jun 22nd, 2012 @ 11:32am

                Re: Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

                Out of curiosity, how big is big when it comes to search?
                Are Bing big search? Ask? Yahoo (still)? Dogpile? Duck duck go?
                Does, as it were, size actually matter?
                Or are you really just aiming this at google?

                 

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                  The Groove Tiger (profile), Jun 22nd, 2012 @ 11:45am

                  Re: Re: Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

                  I think bob's just angry at all the Big Cavity Search he's often having to endure.

                   

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            bob, Jun 22nd, 2012 @ 11:11am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            Oh, I don't know about that. But it's not just the creators who are working at Big Search, it's the people who are driving the search engine day in and day out. There are plenty of humans who should feel nervous. Heck, the human who created their WiFi spying operation took the 5th amendment.

            But I'm not talking about the humans. I'm saying, "Let's put the machine in jail." Shut it down and lock it up until the sentence is passed. A doctor can't help patients while in jail and the same goes for a search engine.

            If it wants rights, let's give it rights AND responsibilities.

             

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              drew (profile), Jun 22nd, 2012 @ 11:29am

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              which makes about as much sense as classifying corporations as humans.
              thank you.

               

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              Rikuo (profile), Jun 22nd, 2012 @ 11:37am

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              Put the machine in jail.

              Listen to yourself bob. That can only happen if machines were given the same legal status as human beings. Only humans can be put in jail. Not monkeys, tigers, rocks, palm trees or my bedside cabinet.
              Besides, Google is protected by Section 230 of the CDA. A tool maker cannot be held responsible for the actions of those who use the tool.

               

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              Anonymous Coward, Jun 22nd, 2012 @ 12:49pm

              Re: Re: Re: Re: Re: But will the computers be put in jail for theft?

              Heck, the human who created their WiFi spying operation took the 5th amendment.

              FULL STOP.

              Taking the 5th is not an admission of guilt. Anyone who doesn't take the 5th is an idiot, and anyone who thinks that means they're guilty is doubly so. You don't have to be actually guilty of anything to refuse to speak to the police, answer questions, or say anything in court that might be twisted and used against you. NOT taking the 5th is how innocent people get convicted.

              Further proof that your comments lack logic, knowledge, or even the most remote speck of common sense.

               

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        Socks, Jun 24th, 2012 @ 1:25pm

        Re: Re: But will the computers be put in jail for theft?

        Didn't you know? They use the same technology that lets you download a car.

         

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      Chris Brand (profile), Jun 22nd, 2012 @ 10:01am

      Re: But will the computers be put in jail for theft?

      Ahh yes, the "obvious infringers", because it's just so easy to tell who is authorised to distribute what, even if you don't take fair use into account.
      After all, the content industries (I'm not gong to stoop to calling them "big content") have never asked to have anything taken down that later turned out to be authorised, have they ?

       

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        bob, Jun 22nd, 2012 @ 10:09am

        Re: Re: But will the computers be put in jail for theft?

        Again, let's treat Big Search like we treat the pawn brokers, the flea markets and the other people who get caught trafficking in stolen goods. The courts don't really care if it's hard to tell what's really stolen. If there's a consistent pattern of sloppy behavior that repeated ignores the law, they can be sent to jail.

        http://articles.baltimoresun.com/2012-04-23/news/bs-md-raid-20120422_1_counterfeit-clothing -counterfeit-goods-federal-agents-raid

        So once again, let's treat Big Search just like humans.

         

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          Anonymous Coward, Jun 22nd, 2012 @ 10:25am

          Re: Re: Re: But will the computers be put in jail for theft?

          This bob article is amazing. They couldn't sell the crime just with millions of dollars in counterfeit clothes and DVDs so they had to mention a set of dangerous contact lenses that were also seized.

           

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            PaulT (profile), Jun 22nd, 2012 @ 11:19am

            Re: Re: Re: Re: But will the computers be put in jail for theft?

            In a way it makes sense. Nobody really gives a crap about clothes and DVDs being pirated, and some may even support it either to stick one to major corporations or simply having access to clothes whose original versions they could never afford.

            But, contact lenses are different. They present an actual risk that's not related to someone's potential profits, and lenses are generally cheap enough that it wouldn't open up the product to people who could never buy the originals. It turns the story from a "meh, who cares, why are they wasting time with this" to "OK, lock 'em up".

             

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      weneedhelp (profile), Jun 22nd, 2012 @ 10:28am

      Re: But will the computers be put in jail for theft?

      Its BIG boB!!!!! How the hell are ya?
      Thanks for the laughs boB. Just what I needed on a Friday.

       

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      btr1701 (profile), Jun 22nd, 2012 @ 12:30pm

      Re: But will the computers be put in jail for theft?

      > So why does it go blind when it comes to
      > torrent sites and worse?

      Because linking to a torrent site isn't a crime, genius. A search engine merely tells people what's on the internet. Under even the most liberal interpretation of the law, that's not a crime and it can't be a crime merely to report factual information. That in itself would be a 1st Amendment violation. It would be like trying to arrest the local news anchor because they reported that prostitution was happening on Main Street. It would be absurd and it would be a bright line constitutional violation.

      And without a crime, RICO is completely inapplicable.

       

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    Arthur (profile), Jun 22nd, 2012 @ 9:41am

    As I understand his argument...

    As I understand his argument, if I have an opinion, that's protected speech, but if I type it into a computer and the computer "decides" to display my comment, that isn't protected speech at all!


    Sure, that makes perfect sense.

     

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    A Guy (profile), Jun 22nd, 2012 @ 9:43am

    Citizens United

    Part of the rational that said corporations can donate unlimited amounts of money and run ads with very few restrictions was that it didn't really matter whether corporations were people or not.

    The right to free speech included the right of the people to hear the speech unfettered. Whether or not Citizens United was a good idea, it seems that the SCOTUS has already ruled on this issue.

     

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    jakerome (profile), Jun 22nd, 2012 @ 9:57am

    FFS

    The NY Times should be embarrassed to publish such poorly written tripe. There's the undercurrent of some larger point, but Mr. Wu fails to directly come out and say what he wishes--- he wants the government to run search engines through legislative coercion. Of course, he can't say that, because citizens would rightly recognize such a position as wholly insane. But the NY Times shouldn't publish garbage like this without it, allowing such a massive platform to someone who so deviously attempts to hide his true agenda.

     

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    Chris, Jun 22nd, 2012 @ 10:05am

    Algorithms are Soylent Green

    I'd like to throw a +1 out there to those attempting to differentiate between Corporate Speech and Human Speech and concluding that they do not deserve equal treatment.

    I think we have enough defences with "You do not have a constitutional right to your business model" and "Saying it don't make it so" and so on and so forth without needing to try and shove Google into the 1st Amendment.

     

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      Anonymous Coward, Jun 22nd, 2012 @ 10:32am

      Re: Algorithms are Soylent Green

      I'd like to throw a +1 out there to those attempting to differentiate between Corporate Speech and Human Speech and concluding that they do not deserve equal treatment.


      A simple question for y'all:    Did the US Supreme Court rightly decide NAACP v Button back in 1963?

      You've heard of the case, of course: It's an historic decision.

      Or maybe not. Can you read? Or do you you need me to tell you what the case was about?

       

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    Anonymous Coward, Jun 22nd, 2012 @ 10:10am

    yet again, another case of an idiot at work!

     

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    Beta (profile), Jun 22nd, 2012 @ 10:13am

    freedom to find out

    "It's not just the right of the person who speaks to be heard, it is the right of everyone in the audience to listen and to hear... Your own right to hear and be exposed is as much involved in [freedom of speech] as is the right of the other to voice his or her view."

    Christopher Hitchens, 2006 debate on "Be It Resolved: Freedom of Speech Includes the Freedom to Hate."

     

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    drhead, Jun 22nd, 2012 @ 10:20am

    Re: But will the computers be put in jail for theft?

    Of course Big Search wants to have its cake and eat it too. When the huge computer system spins out answers and people complain about them, Big Search wants to claim that it's a protected opinion, as carefully crafted as Martin Luther King's speech.

    Strawman, and poisoning the well.
    But how does Big Search feel when its computers infringe upon copyright, help people buy illegal drugs, spy on citizens or just about anything else? Oh, well, that was just a mistake. Computers can't be expected to be responsible for these things. They can't be responsible because they're just dumb computers.

    Strawman, and poisoning the well
    If Big Search wants to hide behind the First Amendment when issuing its search rankings

    Strawman, and poisoning the well. I'll stop here since we both know what my criticisms of everything else will be.

    Note that anyone can make a website that is indexed by Google. It'd be impossible to moderate every search result. Even if you tried to automate the process, it'd result in too many false positives. Then we consider the fact that torrents have legal uses as a method to download large files while minimizing load on the server (for example, Ubuntu offers torrent downloads of its install discs, in fact I am seeding one right now). And what good would censoring search results do anyway? People would just sigh and go directly to their torrent site. The Pirate Bay even said they'll get more traffic due to it being removed from search results.

     

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    Anonymous Coward, Jun 22nd, 2012 @ 10:50am

    If some scientist proves that the human brain its just a super computer, does the First Amendment disapears?

     

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      Androgynous Cowherd, Jun 22nd, 2012 @ 2:44pm

      Re:

      Well, what the hell else can it be? When they dissect cadavers, it's not a puff of magical fairy dust they find in there. It's a hunk of matter that follows all of the usual laws of physics. Whatever it does is as mechanical as the action of a computer -- though we don't yet fully understand how it does some of the things it does. But "we don't yet fully understand" != "It's magic!" or anything else outside the bounds of normal physics.

      Indeed, much of the first steps of brain processing of audio and visual input, and even smell, has been reverse-engineered at this point. The rest will doubtless follow, eventually.

       

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    Digitari, Jun 22nd, 2012 @ 11:12am

    Re: Re: Re:

    When false filling of DMCA's gets one put in Jail, then so should search, and not a day before.

    but then also every phone book,auto manufacturer, and gun maker ALSO has to go to jail..

    and every road in America will have to be torn up as well ( all the darn speeding you see )

    what else can we blame for crimes against Humanity, or yeah, Humanity it's self, gotta ban them too.....


    /do I really need an "s" tag?

     

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    Greevar (profile), Jun 22nd, 2012 @ 11:49am

    The computer is my bullhorn.

    And so is the internet.

     

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    Anonymous Coward, Jun 22nd, 2012 @ 12:06pm

    Any output from a computer is the sole result of input, protected speech, from human beings. If it was not, that would mean that the computer was artificially intelligent enough that it should be legally considered a person, and therefore entitled to protections of its own.

     

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    Jeffrey Nonken (profile), Jun 22nd, 2012 @ 1:38pm

    Don't be silly. NO mechanical reproduction should be protected by the first amendment. That includes hand writing, which of course is just the pen expressing itself!

     

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    Anonymous Coward, Jun 22nd, 2012 @ 2:11pm

    To be fair, in Wu's article, I got the impression that he was not arguing that the results aren't protected speech. More that in the interests of practicality, we should be limiting the scope of the First Amendment as it applies to programmatic output. And that this can get out of hand very quickly (perhaps because of the prevalence of data mining and computers)

     

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      Anonymous Coward, Jun 22nd, 2012 @ 2:18pm

      Re:

      More that in the interests of practicality, we should be limiting the scope of the First Amendment...

      Congress shall make no law, except when —in the interests of practicality—

       

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      John Thacker, Jun 23rd, 2012 @ 7:36am

      Re:

      What I think "can get out of hand very quickly" is the idea of "limiting the scope of the First Amendment."

      Like most ideas of restricting civil liberties, all very nice when it's applied to them, but what about when it's applied to us or me?

       

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    Anonymous Coward, Jun 22nd, 2012 @ 7:25pm

    "Let's be clear here: what search engines do is present opinions. They are opinions based on data programmed by humans."

    I believe it would be more accurate to say that search engines present raw information that is based upon variables/metrics incorporated into code by humans.

    Gene Volokh has what he candidly admits is an advocacy paper he and another prepared at the request of Google. His paper can be found on a link at the Volokh Conspiracy.

    It should be kept in mind that Gene's paper comprises his legal analysis of the matter, whereas Mr. Wu's contribution is no more than an editorial piece.

    A true apples-to-apples comparison would be if Mr. Wu was to present his the rational underlying his article in "legal opinion" form.

     

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