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ECJ to rule that providing open internet connection is not a crime?

By on March 17, 2016 in Copyright, ECJ, EU, File Sharing, Intellectual Property, Internet

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

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IPRED 2 in the works — have your say

By on February 25, 2016 in Big Entertainment, Copyright, EU, File Sharing, Hacktivism, Intellectual Property, Internet, IPRED, Uncategorized

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

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And the war continues…

By on February 10, 2016 in Big Entertainment, File Sharing, Intellectual Property, TPB

The streaming technology freshly embedded into The Pirate Bay is under fire from the Hollywood-backed anti-piracy outfit BREIN. Torrents-Time is an “illegal application” according to BREIN’s lawyer but in a response the group behind the software warns the Hollywood-funded group to back off or face criminal proceedings for extortion.

TorrentFreak: Hollywood Wants to Shut Down Pirate Bay’s Streaming Technology »

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Pirate sites: To block out or not to block out?

By on November 27, 2015 in Big Entertainment, Copyright, EU, File Sharing, Freedom of Speech, Intellectual Property

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

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EU to make linking illegal?

By on November 9, 2015 in Copyright, Google, Intellectual Property, Internet, WWW

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 »

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TTIP: The deceitful EU commissioner

By on October 1, 2015 in Democracy, EU, Global Politics, Intellectual Property, Internet, TTIP, US

EU:s commissioner for trade, Cecilia Malmström, claims that the negotiations over the new EU-US trade agreement, TTIP, are the most transparent trade negotiations ever.

Well, this might actually be true — as such negotiations normally are conducted in total secrecy. But transparent? No.

There is nothing like an open, democratic process about TTIP. Negotiations are still being conducted behind closed doors. Not even politicians in EU member states or members of the European Parliament are allowed normal access to the documents.

For instance, nothing is known about the TTIP IP chapter — containing issues related to patents and copyright. This is the part of TTIP where it is believed that we (eventually) will find statues restricting openness and freedom on the Internet.

The plan is obvious: The EU and the US are trying to keep TTIP under wraps until there is an final document, that cannot be changed. They believe that an all or nothing approach will make it harder for elected parliamentarians to reject the agreement.

/ HAX

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Reclaim democracy!

By on August 15, 2015 in Democracy, EU, Intellectual Property, TTIP, US

“If you have nothing to hide, you have nothing to fear.”

The phrase is well known and frequently used by politicians who are in favour of mass surveillance.

First of all, all people have something to hide. And in the unlikely event that someone really has nothing to hide – this person almost certainly have been trusted with secrets by others (such as friends and their employer).

Second, the very same politicians are not at all interested in letting the people know what they themselves are up to. They loathe transparency and openness. Because they do have things to hide.

Let’s take the secretly negotiated EU–US trade agreement, TTIP, as an example. Already it is almost derailed because of the controversial dispute settlement instrument, ISDS. That was something the people was not supposed to know about. EU and US officials are not at all happy that this detail has been publicly known and put into question.

Most parts of the TTIP are still secret. E.g. the IP chapter concerning copyright and its’ consequences for an open and free internet. By keeping this text under wraps the European Commission and the US administration hope to minimize scrutiny and opposition until the very last moment. (When nothing can be changed.)

Not even the peoples elected representatives in national parliaments and in the European Parliament — the very people who are supposed to approve or reject TTIP — are allowed free access to the latest texts. (Link»)

This is not the way to behave in a democratic society. Instead you should embrace openness, critical analysis and a free debate.

All this secrecy is a very real problem. But what troubles me even more is the blatant double standards. The people is supposed to silently subject itself to mass surveillance — while our leaders claim the right to conduct their business in secret.

It’s time to reclaim democracy!

/ HAX

Link: Politicians can only view secret trade pact in special viewing room »

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TTIP — What to expect when it comes to Internet related issues

By on July 20, 2015 in EU, Intellectual Property, Internet, TTIP, Uncategorized, US

Just before summer recess the European Parliament adopted a resolution regarding the EU-US trade agreement, the TTIP. It was generally positive to an agreement — even though the actual content of the TTIP still is unknown, in large parts.

Free trade as in free trade is a positive thing. But is this what the TTIP is about? Some would say it’s more about regulations. But we cannot tell for sure. The negotiations are conducted behind closed doors and the legislators in the European Parliament will probably not be allowed to see the entire text until negotiations are over. And then it will be to late to change anything. At that point all they can do is to to adopt or reject the whole package.

That was what happened with the ACTA agreement. It was also negotiated in secret. And it was also a package deal, impossible to change. Due to (among other things) possible limitations to a free and open Internet — the European Parliament surprised everyone by rejecting the deal.

So what’s in store when it comes to “intellectual property” and the Internet in TTIP? We still don’t really know. Some documents have been released (link»). But they are of a rather general nature and reveal very little when it comes to Internet related issues. But we have some indications.

This spring the European Parliaments legal affairs committee made a strong recommendation to exclude Intellectual Property Rights (IPR) from the TTIP (link»). However, in its’ recent resolution the EP failed to follow up on this recommendation (link»).

And we have the Trans Pacific Partnership Agreement, the TPP. One TPP document leaked by Wikileaks (link») suggests the following…

The 95-page, 30,000-word IP Chapter lays out provisions for instituting a far-reaching, transnational legal and enforcement regime, modifying or replacing existing laws in TPP member states. The Chapter’s subsections include agreements relating to patents (who may produce goods or drugs), copyright (who may transmit information), trademarks (who may describe information or goods as authentic) and industrial design.

The longest section of the Chapter – ’Enforcement’ – is devoted to detailing new policing measures, with far-reaching implications for individual rights, civil liberties, publishers, internet service providers and internet privacy, as well as for the creative, intellectual, biological and environmental commons. Particular measures proposed include supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards. The TPP IP Chapter states that these courts can conduct hearings with secret evidence. The IP Chapter also replicates many of the surveillance and enforcement provisions from the shelved SOPA and ACTA treaties.

It is expected that the TTIP will include something similar.

This suggests that TTIP will be ACTA all over again — when it comes to IPR, Internet related issues and civil rights.

The TTIP has already been heavily criticised when it comes to the “investor state dispute settlement” chapter, ISDS. But due to lack of substantial information civil society, activists and the media have yet not had any opportunity to react to any IPR and Internet related issues.

This might be a lesson the EU and US administrations have learned from ACTA — to play their cards close to their chest. The later this information is released, the harder it will be to build momentum for a campaign like the one that took down ACTA.

However, this is a weak plan. We know that there will be something. And we have some indications about what to expect. We are ready to take on the TTIP in full force and with short notice — to defend a free and open Internet. Like we did with ACTA.

I most strongly do recommend the EU and US administrations to follow the European Parliaments legal affairs committees recommendation to exclude IPR (and Internet related issues) from TTIP if they want this agreement to come true.

But they won’t.

/ HAX

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