Denmark’s ISPs are collectively putting their foot down and will no longer surrender identifying subscriber information to the copyright industry’s lawyer armies. This follows a ruling in neighboring Norway, where the Supreme Court ruled that ISP Telenor is under no obligation to surrender subscriber identities, observing that the infraction of the copyright distribution monopoly is not nearly a serious enough issue to breach telecommunications privacy. This has the potential to end a long time of copyright industry free reign in Denmark, and will likely create a long series of court cases.
Last week European Commission president Jean-Claude Juncker proposed open city WiFi networks. This left us with some unanswered questions, e.g. about the rules for liability when it comes to copyright infringements. (Link»)
The very next day a ruling in the European Court of Justice (ECJ) brought some clarity. And raised some new questions.
The court finds that a measure consisting in password-protecting an Internet connection may dissuade the users of that connection from infringing copyright or related rights, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain.
Ars Technica wrote…
Businesses such as coffee shops that offer a wireless network free of charge to their customers aren’t liable for copyright infringements committed by users of that network, the ruling states—which, in part, chimes with an earlier advocate general’s opinion. But hotspot operators may be required, following a court injunction, to password-protect their Wi-Fi networks to stop or prevent such violations. (…)
The implications are obvious: no more free and anonymous Wi-Fi access in bars, cafes, or hotels in countries within the 28-member-state bloc that can now use existing law to demand that users hand over their ID first.
Pirate Party MEP Julia Reda commented…
Juncker’s free Wi-Fi plan is aimed at travellers, refugees, and other groups that could not possibly be expected to identify themselves before using a public Wi-Fi. The commission is even advertising its new initiative as password-free. This ruling means that copyright holders will be able to foil that plan and require free Wi-Fi providers to restrict access to their networks.
Let me add to the confusion.
First, let’s have a look at the situation for traditional hotspot operators such as cafés.
It is not reasonable to expect a café owner to keep a database of all local WiF users. That would require an extensive and very privacy sensitive register that cannot be tampered with and that can stand up to legal procedures. And still, it would do nothing to identify an individual user on the cafés single IP address. At least not with the relatively cheap and simple WiFi equipment normally used in such places.
It all quickly gets complicated and expensive. This would effectively kill free WiFi with your coffee.
The same general questions can be raised when it comes to Juncker’s free city WiFi. But there is a difference. Public sector operated WiFi will have more money and can apply common technical standards. As the number of users in a city-WiFi can be expected to be substantially higher that at a single café – there would not only need to be some sort of password protection but also individual user names, linked to personal identity. At least if you want to meet with the ECJ ambition to be able to identify single users.
In both cases, anonymity will be more or less impossible.
And when it comes to city-WiFi, we can expect various law enforcement and intelligence agencies to show a keen interest.
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.