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Is this the end of »mere conduit«?

By on February 13, 2017 in Big Entertainment, Censorship, EU, Free Information, Intellectual Property, Internet, Sweden

A central principle in EU Internet-related legislation is the so-called mere conduit rule.

The IT Law Wiki:

Under the mere conduit principle of the EU E-Commerce Regulations of 2002,[1] network operators have no legal liability for the consequences of traffic delivered via their networks.

Wikipedia:

Who an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

Today’s Swedish court ruling (and earlier European court rulings) to block The Pirate Bay is in direct conflict with this principle, as stated in the EU eCommerce directive.

The grounds for this seems to be the EU InfoSoc directive. The argument is that mere conduit does not apply when it concerns traffic to sites that do not adhere to notifications to remove content that is deemed illegal, e.g. when it comes to copyright infringements and intellectual property.

But this doesn’t make sense.

You cannot have a rule stating that ISP:s have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISP:s do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the eCommerce directive.

And even though the ISP in question have not been charged with any criminal offense – it is to be considered liable, as the verdict states that it will have to pay a hefty fine unless blocking The Pirate Bay. (The ISP also had to pay the copyright owners legal fees.)

I would say that we have a clear case of conflicting laws. And as the blocking verdict is only an interpretation of the InfoSoc directive, while the eCommerce directive states a very clear principle – the latter shall apply.

But I´m no lawyer. Reactions, opinions, and feedback are welcome in the comments below.

/ HAX

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Appeals court blocks the Pirate Bay in Sweden

By on February 13, 2017 in Big Entertainment, Censorship, Copyright, File Sharing, Free Information, Intellectual Property, Internet, Sweden

A Swedish appeals court (the court for market and patent related issues) today ruled that the Internet service provider Bredbandsbolaget must block the Pirate Bay and the streaming service Swefilmer.

By definition, this is censorship.

Also, it is a ruling in direct conflict with the EU the eCommerce-directives principle of »mere conduit« stating that net operators can not be held liable for what users are doing in their cables.

However, this is in line with court rulings in other European countries. And the court claims that the decision is based on EU law.

To confuse things further, the ISP has not been subject to any criminal charges or accusations of illegal activities. Nevertheless, the court seems to refer to a general »responsibilty« to stem illegal activities.

Where all of this leave the »mere conduit« principle (in the EU eCommerce directive) is unclear. Apparently, there are two conflicting sets of rules.

To abolish »mere conduit« is like holding the Post Office responsible for what is written and sent by mail. Or to hold road operators responsible for the intentions and actions of people traveling in cars using their infrastructure.

This is not reasonable. The ruling will open up for more censorship and surveillance.

And to top things of, no matter what, this form of blocking is not very effective and quite easy to circumvent.

/ HAX

Torrentfreak: The Pirate Bay Must Be Blocked in Sweden, Court of Appeal Rules »

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Sweden to label piracy »organized crime«?

By on January 31, 2017 in Big Entertainment, File Sharing, Intellectual Property, Sweden

Authorities in Sweden are mulling new measures to deal with evolving ‘pirate’ sites. As part of a legislative review, the government wants to assess potential legal tools, including categorizing large-scale infringement as organized crime, tougher sentences, domain seizures, and site-blocking.

TorrentFreak: Swedish Govt. Mulls Tougher Punishments to Tackle Pirate Sites »

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EU: Privatised censorship and filtering of free speech

By on December 29, 2016 in Big Entertainment, Copyright, EU, Freedom of Speech, Intellectual Property

The European Commission’s proposal on copyright attempts something very ambitious — two different measures that would restrict free speech, squeezed into a single article of a legislative proposal. (…)

1) Requires internet companies to install filtering technology to prevent the upload of content that has been “identified by rightsholders”. (…)

2) Seeks to make internet providers responsible for their users’ uploads. (…)

3) Gives internet users no meaningful protection from unfair deletion of their creations.

Medium: EU Copyright Directive — privatised censorship and filtering of free speech »

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Links to need pre-clearance?

By on December 12, 2016 in Copyright, Freedom of Speech, Germany, Intellectual Property, Internet, Link wars

This is worrisome…

(A) Hamburg court ruled that the operator of a website violated on copyright by publishing a link to material that was infringing, even though the site operator was unaware of this fact.

Ars Technica: Commercial sites must check all their links for piracy, rules Hamburg court »

Pre-clearing all links with the linked websites would be a very complicated and time-consuming task – for both parties. Not to mention all the paperwork to document this, to avoid future problems.

And exactly what constitutes a »commercial site«?

The Hamburg court ruled that even though the link in question was not used to generate revenue directly, the site as a whole was commercial, since it sells learning materials via one of its Web pages.

So – I guess – if you have ads on your site, if you sell stuff or if you lead your readers to anything of commercial interest (like services that you provide) the purpose can be deemed »commercial«. This resulting in most sites on the net falling into this category.

This is leading to a very real dilemma. Links are the nerve system of the Internet. Most site owners would love to have you link to their pages. And for reference, an open and democratic debate and knowledge building links are essential. (Like in this blog post.)

But according to the Hamburg court, you can get in serious trouble if you don’t obtain a pre-clearance.

Even if you have the time and resources to pre-clear every link – it is likely that people running the sites you would like to link to simply do not have the resources to reply to every request to link.

So if you run a blog or a site that you want people to link to, you better state that it is published under Creative Commons license CC=BY or CC=0.

/ HAX

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EU in new attempt to make ISP:s police and censor the Internet

By on November 12, 2016 in Censorship, Civil liberties, Copyright, EU, Freedom of Speech, Intellectual Property, Internet, Rule of law

Joe McNamee, EDRi: EU Copyright Directive – privatised censorship and filtering of free speech »

The proposed Directive:
1) requires internet companies to install filtering technology to prevent the upload of content that has been “identified by rightsholders”
2) seeks to make internet providers responsible for their users’ uploads
3) gives internet users no meaningful protection from unfair deletion of their creations

So, ISP:s will have to check on all content uploaded by users – i.e. scrutinize everything that is uploaded to the Internet.

What is to be allowed or censored will not be a matter of rule of law – but falls under company terms and conditions that can state… whatever.

There will be no legal means of redress or appeal.

Freedom of speech and freedom of information will be in the hands of ISP:s who are to be liable for all user uploads. There is good reason to fear that these companies will be overly anxious and cautious – censoring everything with even a remote possibility of being an infringement of copyright.

This is yet another attempt to get around the eCommerce-directives principle of »mere conduit« stating that net operators can not be liable for what users are doing in their cables.

And imagine the burden on the ISP:s, having to police all of the users net activities.

This proposal is an assault on »mere conduit«, free speech, privacy and the rule of law. It must be stopped.

/ HAX

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“Anti-Piracy Plans Harm The Internet”

By on October 28, 2016 in Big Entertainment, Copyright, File Sharing, Intellectual Property, Internet

The Internet Infrastructure Coalition is urging the U.S. Government not to blindly follow the RIAA and MPAA’s input regarding online piracy threats. The group, which represents tech firms including Google, Amazon and Verisign, warns that the future of the Internet is at stake.

Torrentfreak: “MPAA and RIAA’s Anti-Piracy Plans Harm The Internet” »

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