Linking to pirated content that is already available to the public can not be seen as copyright infringement under the European Copyright Directive. This is the advice Advocate General Melchior Wathelet has sent to the EU Court of Justice, in what may turn out to be a landmark case.
TorrentFreak: Linking to Pirated Content Is Not Copyright Infringement, Says EU Court Adviser »
Today Svea Hovrätt (a regional court in the Swedish three-level court system) began the case about the domain names piratebay.se and thepiratebay.se. The government (represented by public prosecutor Fredrik Ingblad) is making its’ case to seize the two domains. The case also concerns the domain name administrator – Stiftelsen för internetinfrastruktur (IIS) – as a possible accomplice to copyright infringements.
Last spring the district court of Stockholm decided that Pirate Bay founder Fredrik Neij no longer has the right to the domain names. However, it did not seize them for the government, but left them in the care of IIS. Nor did it find that IIS had been part of criminal activities.
An interesting point is if a domain name can be deemed to be a tool for criminal activities — or if it’s just a name, an address.
The trial will go on for two days and a verdict will be read in a few weeks time.
Link to a Swedish IDG article about the case »
/ HAX
In a recommendation the Advocate General to the European Court of Justice (ECJ) states that business who provide free, open Wi-Fi to customers should not be responsible for copyright infringements carried out on their network.
But there might still be national restrictions. Glyn Moody at ArsTechnica:
However, the Advocate General ruled that national courts may issue injunctions against the provider of free Wi-Fi services in the case of copyright infringement provided they are “particular, effective, proportionate and dissuasive”; and “that they are aimed at bringing a specific infringement to an end, and do not entail a general obligation to monitor.” Moreover, courts must strike a fair balance between “freedom of expression and information and the freedom to conduct business, as well as the right to the protection of intellectual property.”
The Advocate General goes on saying that there need to be no obligation to secure an open network with a password. It might even be possible that a shop or a café providing open Wi-Fi might be covered by the mere conduit principle. (Under the mere conduit principle of the EU E-Commerce Regulations of 2002, network operators have no legal liability for the consequences of traffic delivered via their networks.)
Now it is up to the ECJ to draw its final conclusions. But the court normally rules in line with the Advocate Generals recommendations.
This is good news for an open, creative society where people work and use their devices in public establishments. Providing free internet connection should not be a crime.
ArsTechnica: Free Wi-Fi providers not liable for user’s piracy, says top EU court lawyer »
/ HAX
IPRED — the EU Intellectual Property Rights Enforcement Directive — was highly criticised when introduced. It gave IPR holders wider rights to go after e.g. illegal filesharers than the police, skewing the legal system in favour of the industry. (But even then, IPRED has never been really effective.)
In 2014, the Italian EU presidency announced its’ plans to beef up IPRED. On this blog, I quoted the reaction from Brussels-based NGO EDRi on the matter…
“However, having established that the current legislative framework is not fit for purpose, the best thing that the Presidency can think of proposing is to expand and deepen the failed, not fit for purpose enforcement measures that are currently in force. The Italians apparently hope that, if they do the same thing over and over again, different results will be produced.”
But such objections do not discourage Brussels. The political process continues.
Preparing IPRED 2 the European Commission now has launched a consultation (normally being the first step for new or revised legislation). Once again EDRi explains it best…
“Injunctions, internet blocking, blackmailing of individuals accused of unauthorized peer-to-peer filesharing – the so-called IPRED Directive has been very controversial. Now, the European Commission has launched a consultation on the Directive (whose full name is Directive 2004/48/EC on the enforcement of intellectual property rights (IPRED) in the online environment).”
“The consultation is of great importance not only to those working on copyright or “intellectual property rights” in general, but in fact crucial to anyone using the Internet. This consultation covers to how private companies should or should not be involved in law enforcement online – for example by removing your online content in case it might include copyrighted material. It also covers the range of internet intermediaries that could or should be subject to legal obligations to undertake law enforcement activities.”
This consultation is open for everyone to respond to. And as political processes are easier to influence the earlier you get into them, this is an opportunity that should not be missed.
In order to make it easier for individuals to answer the consultation, EDRi has created an “answering guide” – an online tool with the European Commission’s questions and our analysis to guide your responses. The answering guide can be found here: http://youcan.fixcopyright.eu/limesurvey/index.php/829127?lang=en
Please get involved. Your reactions can shape the future of the Internet.
And a big thank you to EDRi for hacking the political system — analyzing, explaining and opening up the process for everyone to participate.
/ HAX
“VPN providers have unanimously condemned Netflix’s crackdown on subscribers who use so-called unblocking services. Several VPN companies have announced counter-measures, while others raise the issue of Net Neutrality, suggesting that there are better ways to tackle abuse.”
Torrentfreak: VPN Providers Condemn Netflix Blocking Crackdown »
TorrentFreak: Copyright Industry Still Doesn’t Understand This Fight Isn’t About Money, But Liberty »
Privacy Online: Bitcoin, Taxation, and the Systemic Necessity of Allowing Privacy »
Youtube: Liberties Report #43, 2015 »
Today the Swedish district court of Stockholm ruled that internet service providers (ISP:s) can not be forced to block out pirate sites like the Pirate Bay. (TorrentFreak» | Also in Swedish»)
But it’s still early days. Copyright holders are to appeal the verdict. However, it’s very unusual that Swedish lower courts take bold stands. This might indicate that the judicial system has found that there is a strong case against blocking.
Interestingly, yesterday the German federal court ruled in the opposite direction. (TorrentFreak» | Also in German»)
The key issue seems to be if an ISP can be considered a co-culprit of copyright infringement in relation to the EU Infosoc directive. Conflicting judgements in different member states indicate that the European Court of Justice (ECJ) will have to address the issue. And this can happen soon as a Dutch court already has asked the ECJ for guidance in a similar case.
However, it is possible for a member state to have a stronger copyright protection than required in the EU directive. But this issue might also concern freedom of enterprise and freedom of speech. So there is a high level of uncertainty and confusion.
From a practical point of view, it is interesting to see that blocking out pirate sites has little or no effect on illegal filesharing. (Link 1» | Link 2»)
The bigger question is the principle that ISP:s are not responsible for what their customers are up to in their network (mere conduit). This is a well-established principle in the EU.
In comparison, telephone companies are not liable for what people might say on their phone lines; postal services are not liable for what people send in the mail; owners of roads are not liable for criminals driving around.
If ISP:s were to be responsible for their customers activities — they would have to police everything we do online. Everything. That would be practically extremely difficult and a fierce violation of privacy. (But proponents of mass surveillance often seem to see this as an opportunity to establish new points where to tap into public communications.)
/ HAX
The EU Commission is working on a new and updated legal framework for copyright. A draft has been leaked — and it raises some serious questions about what the EC is up to.
Most notably it covers “ancillary copyright”, a term used when it comes to Internet linking in relation to copyright.
From the beginning, this was about German and Spanish newspapers wanting Google to pay for linking to their material. This idea went down in flames, as Google stopped linking — and the publishers had to beg them to start linking again.
Now it seems that the EC is taking a new and broader approach to this issue.
The fear is that unless you have explicit permission to do so in every single case, linking to copyright-protected material (articles, pictures, video, sound) will become illegal.
This would be a fatal blow to the entire concept of a world wide web. Linking is the very neuronic system of the Internet. Having to ask for permission or seek among different sorts of licenses before you link could be extremely time-consuming and bureaucratic. People would rather refrain from linking all together.
One (of many) unintended consequences would be hampering the open, democratic debate online.
And old style media wouldn’t gain anything from it. Opposite, they would lose readers and clicks. (Like experience from Germany and Spain clearly demonstrate.)
The reasonable standpoint is that if you put something on the Internet, others should be allowed to link to it.
But that might not be the way the EC sees it.
/ HAX
• Ancillary Copyright 2.0: The European Commission is preparing a frontal attack on the hyperlink »
• Pirate Party MEP Julia Reda: EU Preparing ‘Frontal Attack On The Hyperlink’ »
• Leaked Draft Reveals EU Anti-Piracy Enforcement Plan »
Copyright is Brain Damage | Nina Paley | TEDxMaastricht | Youtube »
Swedens largest film streaming site is to be taken down.
Practically all Swedish film is produced using tax payers money…
Read more: Sweden’s Largest Streaming Site Will Close After Raid »
