CoCo

Scientology v. XS4ALL: Supreme Court Poops Party

2005-12-17T21:46:00.000+01:00

Friday the Dutch Supreme Court gave its long-awaited decision in the lawsuit between Scientology and ISP XS4ALL. The legal battle that had the (tense) relationship between copyright an freedom of expression at its centre, ended somewhat disappointing.

On the left is the "Final Victory"-shirt XS4ALL gave away to 5000 of its subscribers. The 0-4 refers to XS4ALL's legal victories over Scientology. The latest (0-3) was in the Court of Appeals (2003), which recognized the copyright of Scientology on the texts of its founder L. Ron Hubbard that were included in a witness account used in an American court. Writer Karin Spaink published the account on her website, hosted by XS4ALL, leading to a copyright infringement claim by Scientology in 1995. While recognizing Scientology's copyright, the Court of Appeals found that Spaink's publication should be allowed on the basis of article 10 ECHR (freedom of speech). Especially since it has an informative, non-commercial character, and the Church of Scientology shows anti-democratic objectives. Scientology appealed the decision to the Supreme Court.

The Supreme Court's legal counsel advised that the appeal should be rejected, not so much because copyright had to yield for the freedom of speech, but because with the initial submission of the contested texts to the American Court's library, where it was available to the public, the Church can no longer prohibit the "further communication to the public or reproduction" under provision 15b of the Dutch Copyright Act [English Version].

After this advice Scientology asked the Supreme Court to grant a withdraw of the appeal, if not to avoid another condemnation . In a reaction XS4ALL wrote that "It's in line with Scientology's strategy to withdraw itself from lawsuits it has started. XS4ALL hopes that the Supreme Court will not accept this tactic."

The Supreme Court has accepted the tactic, and dismissed the appeal as requested by Scientology [decision, Dutch]. While this means that the decision of the Court of Appeals stands, it also means that the case has not really been judged by the highest instance. For XS4ALL this may not have brought the broadest "Final Victory" they hoped for, but final it is and its sweetness must take away some of the bitterness of the last ten years.

Fujitsu's DRMed Car Network

2005-11-18T10:24:00.000+01:00

This new Fujitsu "in-vehicle information system network" is nicely locked-down, so you won't be able to upload The Dukes of Hazard when doing 100 miles per hour through a WiFi-infected dessert:

This product, for the first time in the industry, carries the physical and link layers conforming to the IEEE1394b-2002 (*3) standard and the copyright protection function conforming to the DTCP (*4) standard.

Enemies of the Internet Best Of

2005-11-18T09:59:00.000+01:00

The World Summit in Tunesia is a great moment to market your opinion (and some facts): Reporters without Borders has published The 15 enemies of the Internet and other countries to watch. A webpage of background on the Good, the Bad, and the Ugly sans the Good:

The 15 “enemies” are the countries that crack down hardest on the Internet, censoring independent news sites and opposition publications, monitoring the Web to stifle dissident voices, and harassing, intimidating and sometimes imprisoning Internet users and bloggers who deviate from the regime’s official line.
The “countries to watch” do not have much in common with the "enemies of the Internet." The plight of a Chinese Internet user, who risks prison by mentioning human rights in an online forum, does not compare with the situation of a user in France or the United States. Yet many countries that have so far respected online freedom seem these days to want to control the Internet more. Their often laudable aims include fighting terrorism, paedophilia and Internet-based crime, but the measures sometimes threaten freedom of expression.

I guess fighting copyright infringement is an Internet-based crime, or not considered laudable...

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Thru Quicklinks

Bollywood's Fashionable Copyright

2005-11-18T02:03:00.000+01:00

Homeindia.com is a great site that has raised some fashionable discussion about copyright infringement on Bollywood costumes. The site allows you, the Bollywood-addict, to pick your favourite movie/actress/actor and order its/her/his costume from the movie for some $200. Imagine, getting that wacky Ewok-costume online, with no Indian-style Skywalker Empire juicing out its intellectual property rights to let you bleed for a, well...$200? Anyway, Bollywood's finest may not be your average Darth Vader, but the Hindutimes pops the question to Homeindia.com and the Bollywood costume designers:

Is this not entering the grey area of copyright violation? Mehta says that the site has "not faced any problem so far." He adds, "The problem arises only when the dress is marketed as a separate entity and the producers themselves market the clothing that the characters are seen in. If it's not patented, it's open to the market."

Film designer Vikram Phadnis begs to differ. "I don't think it's right to make money off our work," he says. Fellow designer Rocky S agrees, "It is totally wrong to cash in on our creative work." But he adds, "There's only so much we can do. It's not possible for a fashion designer to patent each and every piece that he makes."

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In the picture above: Satish Shah Churidar Kurta and his costume as seen in the movie "Kal Ho Na Ho"

Time-Shift that Private Copy

2005-11-18T01:38:00.000+01:00

An interesting take on fair use comes from the company behind iFill, which allows you to receive internet radio, send it directly to your iPod, where it is stored in separate song files: "iFill's main use is as a timeshift device, and as such it encourages private use of music within the legal limits of personal copies".

I'm not so sure at all that this reasoning will hold. But expect the debate about internet radio as an alternative source for music to increase as the P2P saga winds down: how to (legally) define the selective recording of transmitted songs and the subsequent time-shifting for, probably, more than a little time.

Jot: Skype v. Verso Row Linklist

2005-11-18T01:37:00.000+01:00

If you haven't followed the little Skype - Verso row (Verso being the filtering company that provides software, which it claims "blocks bandwidth drains such as Skype, P2P messaging, streaming media and instant messaging), here's a short linklist:

Firm hits out at "critical" Skype problems
Skype in talks with Chinese authorities
Verso Responds to Statements by Skype

Filtering In Tunesia 2005

2005-11-18T01:10:00.000+01:00

While it's starting to become somewhat of a cliche to point out that Tunesia's anti-democratic and anti-speech tendencies make it far from the right place to hold the World Summit on the Information Society (Q's: Which country would be right, anyway? Isn't Tunesia representative for the Information Society to be?), the Open Net Initiative has released its report Internet Filtering in Tunesia 2005. Nice timing, here's a small abstract:

A country study documents Tunisia's attempts to control Internet information, including the filtering of Web sites, blogs, and anonymizer services. Drawing on open sources and a detailed year-long technical investigation, ONI research describes Tunisia's aggressive targeting and blocking of on-line content, including political opposition Web sites, human rights groups, and sites that provide access to privacy-enhancing technologies.

PC Is Finally Spelled TV

2005-11-18T00:55:00.000+01:00

Those were the days, when you had to tinker with your PC for hours until you could finally watch that favourite TV show in ASCII fashion on your matrix-style monitor. Those were the days soon gone by. Thanks to the great drive for convergence to the ultimate home hub your PC will soon be spelled TV:

Microsoft and CableLabs, the U.S. cable industryÂs nonprofit R&D unit, are working to document final approval of Windows Media Digital Rights Management as a content protection technology in order to protect cable operators from copyright violation and content theft.

"This agreement carefully balances the need to preserve the flexibility of the personal computer for consumers with the need for cable operators to be confident that the hardware and software shipped with compliant Media Center PCs will function like a CableCARD-enabled digital television," said Glenn Britt, chairman of CableLabs and chairman and CEO of Time Warner Cable

I think this is one of the most beautiful sentences I've read in a long time. The obscenity of its wording is strangely attractive: agreement - balance - need - preserve- flexibility - personal - computer - consumers - need - cable - operators - hardware - software - compliant - media - center - PCs - function - television. That's TV poetry! Be ready for the great televison era. Be ready for flexibility within your own home hub. We're entering the state of preservation: the freedom that is, has to be preserved and protected by a fence of DRM-wire.

Swiss IFPI: Game Over for P2P Infringers

2005-11-17T09:14:00.000+01:00

The Swiss division of the International Federation of the Phonographic Industry (IFPI) says it's all over for P2P- users that download copyright protected works. At least, that's the final aim of their anti-piracy campaign Game Over. IFPI Swiss says (semi-)professional P2P-infringers are now under control, and that it does not exist anymore in Switzerland.

The focus of IFPI Swiss' legal actions will now move to private infringers (so-called Raubkopierer), concentrating on those who download the most for starters. The tactic is well-know: registrating IP-addresses, warning the user with instant messaging, offering a settlement, starting a civil lawsuit with fines between 3,000 and 10,000 Swiss Franks if no settlement is reached and in grave cases a criminal lawsuit.

IFPI Swiss says that until now it had "trusted on the principle of individual responsibility embodied in Switzerland" but that this did not lead to he expected respect for intellectual property. So, now the Swiss are putting some tradition back into the internet, the lack of which was deemed one of its values. The projection of incumbent legal and socio-economic structures continues. Until the game is over.

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IFPI Swiss press release [German] (the picture above shows how "Raubkopierer" will be tracked)
Thru Institut fur Medien- und Urheberrecht [German]

Zittrain on the Generative Internet

2005-11-17T09:03:00.000+01:00

This is the first paper I'm going to read as soon as I get trainload of work done: Johnatan Zittrain's The Generative Internet, now up for download at SSRN. I found his previous papers very insightful and readable, with a great analysis that's not blurred by ideological fog as (much as) you'll find with some other (Harvard) über-cyberprofs.

Here's the abstract:

The power and flexibility of the Internet has ignited growth and innovation in information technology and in associated creative endeavors, its "generativity" soliciting contribution from varied audiences. This very power and flexibility projected across millions of mainstream users has also become a vehicle for security threats that endanger its many desired uses. This Article describes how the intertwining of the highly generative personal computer and Internet is creating an information technology "grid" that will find itself in grave crisis with no easy fix.

The most direct responses to the crisis, both by regulators and through market forces reflecting a shift in consumer attitudes about the importance of technology reliability, will enable the sort of locked-down Internet that publishers and some regulators have so far favored but been unable to bring about.

Those who treasure the Internet's generative features must assess the prospects for sufficiently either satisfying or frustrating the forces in question so that a radically different technology configuration need not come about. I believe that a different-in-kind Internet is likely quite difficult to avoid. It is precisely while the future is uncertain that those who care about openness and the positive disruption it generates should not sacrifice the good to the perfect by seeking simply to maintain a tenuous technological status quo in the face of inexorable change. Rather, we should establish the principles that will blunt the most unappealing features of a more locked-down technological future while acknowledging that an unprecedented and, to many who work in technology, genuinely unthinkable level of enclosure is likely to be the rule from which we must negotiate and justify exceptions.

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Thru Urs Gasser, who's calling it groundbreaking and a must-read.

Makayama: DVD-to-iPod Ripper...DRM in Review

2005-10-28T22:12:00.000+02:00

"The feature that everyone wants, but Apple didn't give you."
That's what Makayama is giving to the world. It's a company that sounds like a Japanese motorcycle manufacturer, and even has a little Japanese flag on one of its web pages. But, to my surprise, it's actually located right here in Amsterdam, in the old post office building, which also holds a (night) club and (temporarily) the museum of modern art. That's right here:

But what exactly is the Dutch company Makayama offering to us from their scruffy Amsterdam office's that Apple didn't from sunny California:

The iPod Media Studio. This innovative software lets you watch home movies, feature films and TV-series on your video iPod in great quality, in full screen, zoomed mode. [...] The software installs an encoding package on a Windows XP computer, users pick any video file from their harddrive, CD or DVD and with only three clicks, the software turns it into a compressed movie file, which will play on the MPEG4-mediaplayer on the iPod.

The press release presses the point that "A 60 Gb iPod may store up to 200 hours of home movies and tv recordings or one hundred full length feature films." That sounds like a soon-to-be classic little DVD ripper. Might their be a reason that Apple didn't dive into this? The answer is probably in the company profile:

Makayama supports fair use and is reviewing several DRM standards to incorporate in its products.

Fair use is certainly a feature that everybody wants, but Apple doesn't give us. Or can't give us, since it can't put a product on the market that rips content protected DVDs, while still reviewing "several DRM standards to incorporate". Maybe I'm reading to much in this little sentence. Or, maybe it's the small (circumvention) disclaimer with one of their other products, DVD to Pocket PC, that gives some doubt about the legality of the software, at least under the US Digital Millennium Copyright Act circumvention provisions:

This software was not designed or produced to circumvent technology that effectively protects access to, or restricts the duplication of, copyrighted material. It has a commercially significant purpose other than to circumvent and has major non-infringing uses; being primarily designed to transcode home movies, tv-programming, personal video and audio files, and feature films from a users harddrive and/or on removable media. It does not produce digitally identical copies, but transcodes into a lossy, strongly compressed file. Its sole purpose is to enable a platform- and timeshift allowing playback of lawfully aquired content, under the fair use principle.

That's fair use, alright. Some might doubt that an old post office building near the harbour of Amsterdam will also provide a safe harbour for fair use circumvention under the ever stronger enforcement of the European Copyright Directive.

Oh, I wasn't able to see if iPod Media Studio actually ripped away any DRM: it runs on Windows only, no Mac supported.

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iPod Media Studio product page (with trial version)

IPTV & Digital Piracy: Keeping Honest People Honest

2005-10-28T21:46:00.000+02:00

A small interview on "digital piracy" and IPTV with Steve Oetegenn, Executive VP Global Sales & Marketing at Verimatrix, which read like a sales pitch. It's about keeping honest people honest, again:

One other problem which is often overlooked is theft of service. It is estimated that around 30% of cable and 50% of satellite programming is actually viewed without being paid for. Our system provides excellent clone detection functionality, which ensures that only paying customers have access to services. The problem with IPTV is to keep honest people honest. We’re going to be challenged by these type of hackers, if they can circumvent the system they will, but you need to provide a deterrent.

Jot: Copyright Does Bolster Evolution

2005-10-28T20:56:00.000+02:00

From The New York Times:

Two leading science organizations have denied the Kansas board of education permission to use their copyrighted materials as part of the state’s proposed new science standards because of the standards’ critical approach to evolution.

Trademark's Zeitgeist

2005-10-21T02:09:00.000+02:00

Tired of ego-surfing on Google? Try the database of the Benelux Trademarks Office to see who has trademarked your name. I could have guessed...CoCo has been accepted as a (figurative) trademark for a monkey. That's accepted again: left Kellogg's new and right Kellogg's old CoCo. The evolution of a trademark: dead by expiration, and lack of coolness.

VeryCD: Death to All P2P Pay Sites

2005-10-21T01:56:00.000+02:00

Danwei has a short piece on the Chinese P2P-site VeryCD, approved by the Ministry of Information Industry and Creative Commons-licensed. What VeryCD lacks in thirst for money, it has all the more for some fresh, capitalisitc blood:

Every person shares three albums in order to establish the world's largest P2P Mp3 music library.
Through the VeryCD website's search, allow all users convenient and quick downloads of Mp3s.
Death to pay download sites.

Germany: P2P Prosecutions Bring Unacceptable Workload

2005-10-21T01:20:00.000+02:00

The public prosecutor of the German district Karlsruhe fears getting crushed under the workload of (future) P2P-prosecutions presented to him by the German gaming industry:

"20,000 announcements are said to have been received against game downloaders, which take the work time of five lawyers and three particularly policemen turned off for the sifting. The processing of the document mountains will [take] at least six months to take up. "the treatment of heavier offenses could suffer in the future under this substantial additional expenditure"

The German gaming industry is using the Swiss firm Logistep, which says to registrate "which contents during which period and with which IP address" users downloaded. At least in the Netherlands this kind of outsourcing of P2P-police work to a non-EU third-party has been deemed unacceptable.

The public office in Germany thinks the P2P-prosecution of minor uploaders would put an unacceptable pressure on its resources and is said to only proceed with criminal prosecutions against users that have been previously convicted and have sold songs on a large scale. That would be in line with the so-called Bagatellklausel from the reviewed German copyright law, which exempts the exchange of a small number of songs that are exclusively for private use from prosecution. If one still wonders wether the Bagatellklausel was born out of practical considerations or legal charity, the prosecutor's practice seems to have given the answer.

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Thru Institut for Urheber- und Medienrecht [German]

Microsoft's Anonymous Lawyers

2005-10-21T00:17:00.000+02:00

Don't trust anonymous sources when it comes to anti-trust: Microsoft tried it again and by contract "told manufacturers of iPod-like portable audio devices that they were not allowed to distribute rivals' music player software, but then pulled back after one company protested." There's a lot of outside amazement and little mea culpa about this good old Microsoft muscle flexing, except from some anonymous lawyer:

The disputed contracts were drafts sent to manufacturers before Microsoft's lawyers reviewed them, said one lawyer familiar with details of the incident. This lawyer spoke on condition of anonymity because this person was not authorized to make public statements about the antitrust case.

Since when does Microsoft sent out drafts without legal review? This sounds like either a major glitch or authorized PR. I bet it's a twosome: anonymity and authorization.

The more interesting question is in how Microsoft seems to try to get at its rival by playing the trust card on software, where its the hardware (iPod) that's the killer. Any anonymous sources on this one?

Belgium Court Confirms: Private Copying Not a Right

2005-10-13T18:02:00.000+02:00

I'm pretty late on this one - as the blogging is generally slower due to a (great) change of work - but it still is interesting for the private copying debate. Not that the following ruling of a Belgium Court of a Appeals brings much news. It follows the general legal trend away from the 'private-copying-is-a-right'-mantra together in its confirmation of the ruling of a lower court that private copying is not a right, but a "legally granted immunity against prosecution." Those are words from the confirmed ruling. If you want to read the latest one of the Court of Appeals, get out your dictionary and start reading the French judgment [PDF]. The tables are getting turned in a DRMed world: now it is the user who has to secure his interests through an often costly procedure.

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Botswana: Manadatory Payment for Mandatory DRM?

2005-10-05T23:40:00.000+02:00

Botswana is working on a bill to amend the Copyright and Neighbouring Rights Act. I'd like to get my hands on it, because its content seems like a plain violation of more than one fundamental right and just sounds plain weird:

Under the proposed law, every sound and audio-visual recording made available to the public by sale, rental, lending or distribution for commercial purpose in Botswana will have a security device affixed to it. The copyright office will issue the device once the person who wants to make it available to the public has paid. The device will only be approved if the owner of the copyright has made authorisation. The device will be the only indication that it is not a pirated work. Any person who contravenes the set requirements shall be liable upon conviction to a fine not exceeding P20, 000 or to an imprisonment for a term not exceeding two years. Any person who reproduces the device without the authorisation of the copyright office shall be liable to a fine not exceeding P50, 000 or imprisonment for a term not exceeding five years.

Coco.eu Smells Like Chanel No. 5

2005-10-05T22:54:00.000+02:00

Finally! A date has been set for the registration of the .eu domain name. I'm so excited! At last the wait is over: here comes coco.eu, for all your insights from European soil. Well, that is if a French fasion house and cosmetic concern, or some coconut manufacturer, doesn't get the idea to registrate before I get a chance. Because, "to prevent that organisations and companies will be the victim of cybersquatters", the rules of commerce have been laid out to dominate the .eu domain.

These so-colled Sunrise rules devide the resistration in three phases:

First phase: public organisations and trademark holders can apply for registration
Second phase: others that have legal claims can apply (company name, artistic name)
Third phase: four months after the start of the first phase anyone can register (April 7th 2006)

I'll let you know if I can ~~beat~~ ~~commerce the French coconut farmers~~ make it. Till then, same or alternate place for a long time.

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Background paper sunrise rules [PDF]

Operator French Lyric Site Gets Fine and Risks Jail Time

2005-10-05T22:10:00.000+02:00

Remember the days you had to spin your record ten times to write out the indistinguishable lyrics of your favorite artist, because all his psychedelic artwork did not leave any room for song texts on the sleeve? That old game may be back...in France. The criminal court of Nanterre has sentenced the operator of a song lyrics website to a 20,000 euro fine and six months imprisonment on probation. Additionally the operator has to pay damages to the plaintiffs: the music association of publishers CSDEM and three publishing houses. Apparently the site, miditext.net, had mirrored the site miditext.com, which was shut down in may 2002 over copyright infringement charges.

Back in April I reported on cease and desist notices sent to German song lyrics sites. A website that resisted such notice did take its song texts offline after a German court ruled that the copyrightholders had case. That rightholders have a case is no surprise. That they actually make a case out of their copyright keeps surprising me somewhat. But then, maybe they just want to give the digital generation they joy of penning down their favourite chansons in the candle light of a cheese & wine diner. I'm not sure what they are: nostalgic or romantic. Maybe just not from this time...

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Thru Institut fur Urheber- und Medienrecht [German]
CSDEM press release [PDF, French]

Disney & Verizon: When Content Meets Code

2005-09-21T23:32:00.000+02:00

In the U.S. Disney and Verizon have announced a long-term programming agreement, whereby Verizon will transmit twelve of Disney's TV channels over its broadband network. Of course the cooperation on this merging of content (Disney) and code (Verizon's network) would be nothing without the sunny side of American copyright: the Digital Millennium Copyright Act (DMCA). Disney and Verizon have agreed, of course, that copyright protection is of upmost importance in this case. Just as important as the privacy of Verizon users

Under the agreement, Verizon would forward and track notices to its subscribers allegedly engaged in the unauthorized distribution of Disney's copyrighted works, without identifying the subscribers to Disney. Verizon would either provide subscriber-identifying information pursuant to lawfully served subpoenas or terminate Verizon Internet service provided to subscribers who have infringed Disney copyrights and received multiple notices.

That seems fair, doesn't it? No more Verizon for you, if you ignore those "copyright infringement" notices. Provided that your identifying information hasn't been handed over to Disney on the basis of a subpoena. Fair it seems, but as a Verizon customer you may wonder how important your privacy would be if Verizon had not made this great deal with Disney giving you even more of the same TV content to choose from.

Where the provision of a (hardcore) network service gets softened by (Verizon's) interests in content and related copyright protection, the privacy of users is likely to become less of a commitment. How much is the privacy of a customer really worth when you consider a multi-million dollar deal with Disney "a significant step forward in the effort toward inter-industry cooperation in addressing the serious problem of copyright infringement over the Internet," as Verizon Chairman and CEO Ivan Seidenberg said. Not worth the litigation, I would guess.

University Supports Google over Print Lawsuit

2005-09-21T23:09:00.000+02:00

Yesterday the American Authors Guild filed a copyright infringement lawsuit against Google over its Google Print Library project. The first university library that comes with a supporting statement for Google is...the University of Michigan:

"We continue to be enthusiastic about our partnership with Google, and we are confident that this project complies with copyright law. The overarching purpose of copyright law is to promote progress in society. In doing so, it is always a balancing act between the limited rights of the author and the rights of the public."

Scientology to Face Judgment Day

2005-09-20T22:14:00.000+02:00

The Dutch Supreme Court will provide a ruling on the Church of Scientolgy. That is, if the Court will follow the advice [Dutch - PDF] of its independent counsel, Advocaat-Generaal Verkade., which is more than likely. Verkade wrote that the Supreme Court could and should judge the Scientology-case at least in the interest of the unity and development of law and the general interest.

Scientology tried to withdraw its appeal to the Supreme Court at the last moment after the same Advocaat-Generaal Verkade dismissed Scientology's crafting of copyright to suppress the freedom of speech in an earlier advice. His latest advice is great news for ISP XS4ALL and writer Karin Spaink, which have been involved in legal proceedings against Scientology for over ten years [Background is provided in the last link provided above]. Finally Scientology's legal scare tactics will be judged at the highest instance, and likely condemned.

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Press release XS4ALL [Dutch]

Filtering Free: Skype Blocker to Aid Business Models

2005-09-19T09:23:00.000+02:00

The Inquirer reports on Skype Filtering Technology, what's the name used by company Vesco for a carrier grade application that "blocks bandwidth drains such as Skype™, P2P messaging, streaming media and instant messaging," says Vesco's press release. That's pretty nice in itself, but the interesting part is in the why?. In an interview with the Inquirer Vesco CEO Monty Bannerman is blatantly honest about the motivation behind the Skype Filter:

As a "free" service, Skype is raiding the business model of service providers that want to roll out VoIP services for their customers. "They're all telling me they hate Skype and they're telling me that they want to do something about Skype," said Bannerman in a telephone interview. "If you have something in your network that is costing you money and raiding your business model, I assure you you're going to do something about it."

Also interesting is that Bannerman argues that a lack of state regulation leaves Skype out in the open to filter. A distinction with the (minimally) regulated Vonage service is made:

Bannerman drew a distinction between the more heavily US-regulated Vonage and Skype, saying that they were "different," with Vonage required to provide E-911 service and abide by other FCC regulations, while Skype had no such state-side regulation.

One can admirer one thing about the guy: he really, really wants to sell. Not in the US due to possible future regulation prohibiting applkication bloackage, then anywere else in the world:

"The World Wide Web isn't just about America, plunk yourself anywhere else," he said. "This is a product for the world market."

It may be getting hard to Skype China if Bannerman's sales pitch works: there they may just want to filter another kind of free. That's not the gratis kind.

Jot: Grokster Talks to Mashboxx

2005-09-19T09:19:00.000+02:00

Grokster is apparently in talks to be acquired by Mashboxx, which is on the road to establish a ''legal" P2P company.

Swedish MP3 Manufacturer Refuses to Pay Copying Charge

2005-09-14T23:15:00.000+02:00

There must be some copyright cowboys working at MP3 manufacturer Jens of Sweden. First they reported the Swedish anti-piracy organisation Antipiratbyrå to the Swedish Data Inspection Board for collecting and storing IP addresses of file-sharers, and Antipiratbyrå was actually condemned. Now the company refuses to pay a "copying charge" on its products, and faces legal proceedings for doing so.

The charge, a levies known in many European countries, was introduced in 1999 to compensate for private copying, but the owner of Jens of Sweden thinks that "It's not our problem that the record industry hasn't come up with its own solution," and that "In my opinion the compensation should be built into the price. To be able to transfer a song to an mp3 player should be included in the purchase of the music.".

The collector of the charge, CopySwede, obviously has a different opinion and takes Jens of Sweden to court. It will be another small but interesting chapter in the European levies discussion, and the related issue of (European Commission level) proposals to phase out levies and rely on Digital rights Management in the future. An issue Jens has yet to cowboy around.

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Thru The Local

Jehova's Sue Website Out of Embarrassment

2005-09-14T22:43:00.000+02:00

Back in June I wrote on how a site called Quotes.Watchtower.ca was pressured by the American Jehova's Watch Tower Bible and Tract Society (WTBTS) to take down its Canadian website that contains various quotes from works published by WTBTS in an attempt to illustrate some of the failed prophecies that organisation has made over the years. The pressure cooker used by the WTBTS was the Digital Millennium Copyright Act (DMCA), and resulted in the ISP taking down the site for a short moment. I thought it was interesting in that it showed how the notice & take down system of the DMCA and (unfounded) legal threats may result in silencing speech without judicial review.

Apparently that judicial review is on its way now: the Quotes.Watchtower.ca site has been sued by the WTBTS in the Ontario Superior Court. Claims are copyright infringement of the original WTBTS texts, trademark violations in the URL and breaking End User License Agreements (EULAs) of the WTBTS' CD-ROMS where the quotes were taken from. Most revealing is the claim that also blows the cover of this suit, embarrassment of the WTBTS:

[Paragraph] 31. The Defendant's main purpose in operating the website is not "fair use", but rather to try to embarrass the Plaintiffs by quoting selectively from some of the Religious Works in a manner that misleads Internet users as to the teachings of Jehovah's Witnesses

I thought selective quoting, rather than plain copying of the whole text, is exactly in line with fair use for the purpose of criticism. And whatever can be said of the alleged copyright infringement, trademark violations, EULAs breaching claims, it seems like poor litigation to drag embarrassmentment into te claim. I don't think it takes the air out of this lawsuit, but it does not make the Jehova's claims anymore believable. Like their faith, Quotes.Watchtower.ca might say.

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Later Law professor Michael Geist has more on the lawsuit at his site:

In breaking down the fair dealing argument, it is difficult to see how the trademark complaints are relevant to the analysis. Similarly, the absence of restrictions on the site and the availability of a search engine don't provide compelling reasons to lose a user right. The remaining two issues, which amount to claims of too much copying, will likely be the bigger questions and they turn on a legal analysis of evidence yet to be presented. A cursory review suggests that much of the content would be viewed as fair dealing since there are a large number of limited length quotations that would benefit from the SCC's [Supreme Court of Canada-RL] liberal interpretation of fair dealing.
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Quotes.Watchtower.ca news on the lawsuit
WTBTS' Statement of Claim
Thru The Inquirer

Turkish Government Bans Publishing Mein Kampf

2005-09-14T10:22:00.000+02:00

Hitler's Mein Kampf hit the bestsellers list in Turkey last March. Now the Turkish government "has refused permission for future printing of" the work:

While no reason for the reprint ban was given, Radikal [magazine- RL]speculated that it may be due to pressure from the German state of Bavaria, which holds the copyright for the all editions of the book except for those in English and Dutch. Copies of Mein Kampf, or "My Struggle" in bookshops at the moment have not been ordered off the shelves.

I've got no idea why publishers would need to get permission to publish in the first place. The copyright & censorship issues surrounding Mein Kampf were explored in these earlier posts:

CoCo: Copyright Censorship: Mein Kampf

CoCo: Mein Kampf & Copyright

Jot: Vodka Piracy

2005-09-14T09:16:00.000+02:00

The Intellectual Property restoration in Russia starts with the government incresing its efforts to enforce its rights on the state-owned vodka brands Stolichnaya and Moskovskaya.

U.S. Customs' Counterfeit Clothing the Naked of Katrina

2005-09-13T09:24:00.000+02:00

Barbara Bush, spoke on her visit to victims of hurricane Katrina that "so many of the people in the arena here, you know, were underprivileged anyway, so this--this (she chuckles slightly) is working very well for them." It is even getting better for those underprivileged people. Filed in the Only in America-dossier, this news article reports that:

Monday afternoon, U.S. Customs and Border Protection announced they are donating seized clothing, to victims of the hurricane. About 1.7 million dollars worth of counterfeit clothing, shoes, towels, and toys are being donated to the state. Many of the clothing pieces were confiscated because they violated copyright infringements. Normally they would have been destroyed.

Thomas Winkowski, with U.S. Customs and Border Protection, says, "Under statuatory authority during these times of disaster our commissioner has the authority to waive that, in other words we don't have to go back to the trademark and say, can we have that, our commissioner can do that unilatterally during these times of difficulty."

What a sight! Those poor, underprivileged people will be carrying what's left of their home and family in a China-made Luis Vuitton bag, while walking the flooded streets on a pair of five dollar Nikes in a fancy Lacoste shirt. At least the change of getting shot for alleged loothing must be smaller in your counterfeit Armani suit.

Finnish "Voluntary" ISP Filter

2005-09-12T13:17:00.000+02:00

The Finnish government has studied the mandatory implementation of a filter at ISP level to combat child pornography. Possible constitutional problems have shifted the focus to voluntary implementation by ISPs, which still is pretty much mandatory for users, since they cannot choose to turn off the filter. The news letter of European Digital Rights has more.

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German Constitutional Court: Private Copying Unlikely a Right

2005-09-11T22:38:00.000+02:00

The Federal Constitutional Court of Germany (the Bundesverfassungsgericht) has rejected a complaint by a consumer about copy protection measures on CDs and DVDs. The Court did not see such a serious disadvantage in the copy protection mechanisms for the consumer, that it should give a decision before the consumer had followed a normal civil procedure against the manufacturer. The interesting thing about the rejection of the ruling is that the Court added some considerations about the private copying "right": it doubted that the constitution provides such a right.

The consumer had complained about provision 95a German Copyright Law that allows rightsholders to use copy protection measures and prohobits their circumvention. While there aren't any criminal sanctions (jail sentence / fines) for the circumvention for merely private use, consumers are often not able to make such a circumvention and thus a private copy in the first place.

Although the Court's consideration is vague, it's an indicator of what has been said often: there is little indication that there is something like a private copying right, or that it will be granted against copy protection measures. Interestingly, a French court took a different stand last April: reversing an earlier decison, which denied that private copying was a right, it prohibited the use of copy protection measures on DVDs, since they were considered to be incompatible with private use. For the proponents of private use as an enforceable right the French decision offered some hope, but now it looks even more like courts (and governments) will probably not move to the "private copying is a right"-mantra in the future.

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Thru Institut fur Urheber- und Medienrecht [German]
Related Heise article [German]
Ruling Bundesverfassungsgericht [German]

Taiwanese Criminal P2P Convictions Set the Example

2005-09-11T21:40:00.000+02:00

Kuro, Taiwan's largest file-sharing service, has bitten the legal dust. That is, three of its executives were sentenced to two to three year in jail and fines, because "Kuro had violated copyright law in offering its members programs to download MP3 music," according to a spokes person of the court. One of Kuro's 500,000 paying members was jailed to four months imprisonment for making 900 songs available for upload.

Like the US Supreme Court in the Grokster case the Taiwanese court did not rule on the legality of the P2P service as such and relied on some sort of inducement theory. Kuro allegedly runs

"advertisements that had encouraged members, who pay a monthly fee of NT$99, to swap copyrighted music files via its Web site. [The ruling] said Kuro was therefore party to infringement of the Copyright Law"

The ruling is somewhat surprising, considering that file-sharing service ezPeer won their court case back in July. I'm not sure if there are any (technological) differences with Kuro that have lead to a different legal outcome, but maybe the political IP pressure cooker has been on for the last two months:

John Eastwood, a co-chairman of the Intellectual Property Committee of the European Chamber of Commerce Taipei, said the ruling may help Taiwan be taken off the US Trade Representative's Watch List of IPR violators next year. [link]

Let's watch that list next year and see if the convictions have made a difference. In the meantime Kuro is going to appeal the verdict and the market is having its own opinion: Kuro's shares climbed NT$0.10 to NT$20.30.

Disney's DRM Is a Happy, Happy World After All

2005-09-07T09:09:00.000+02:00

Much in line with the superficiality of his happy, happy world, Disney executive Peter Lee suggests consumers should be treated like the unknowledgeable children that visit his fairy tale parks:

"If consumers even know there's a DRM, what it is, and how it works, we've already failed," says Peter Lee, an executive at Disney.

From this piece in The Economist on the digital home and format incompatibilities.

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Thru INDICARE Blog

KaZaA: Install Filters, and / or Die (Anyway)

2005-09-05T20:04:00.000+02:00

Today the KaZaA lawsuit in Australia has finally come to the end of the tunnel: there's some light, but potential dead for the file-sharing software. KaZaA's software is not illegal per se, but it will have to be adapted by installing filters. Together with the plaintiffs (music industry), KaZaA will have to work on a protocol to be included in a new version of its software, and put up the pressure on its users to install this filters-included version. While one can argue that users won't have to update to keep sharing, and KaZaA may stay in its (spyware infected) business for now, this is still a loss for the company. Let's see how fast (new) users will migrate to other file-sharing platforms that are not bothered by filters.

The ruling can be found here (42 page rtf)

Baigoo: Baidu + Google

2005-08-09T23:23:00.000+02:00

In the slipstream of the Baidu IPO comes Baigoo: the Google and Baidu hybrid, searching in both engines, presenting results in a split screen (compare the different results). As Danwei asks: a question of time for some nice trademark litigation? Probably not worth the hype.

Diving in to Resurface

2005-08-07T00:19:00.000+02:00

Blogging has cooled off here for the last few weeks. It will be getting cooler. A year ago this month, I started my first post by writing: "I'm jumping into the death pool. Ready to swim some laps between the forgotten and soon-to-be forgotten voices in the blogosphere. Don't know where I'm heading, or how fast I'll sink to the bottom."

The death pool has proved to be more alive than I initially thought and experienced. And the swimming will continue, but in wilder waters. From the relative tranquility as a researcher, I'll start to work at a law firm specialized in technology tomorrow. Leaving the ivory tower, to dwell where the law is bent, formed and tested to breaking point. Maybe less opportunities for reflection, but more action and, in the end, more satisfaction.

I'll have to see how this plays out for blogging, since time will become a luxury more than ever. Probably less postings, and possibly on other topics. So, yet again, don't know where I'm heading, but I'll frequently resurface from the bottom to present some shiny coral from the fields of law and technology.

Copyright's Doomspeakers and Healers

2005-08-07T00:01:00.000+02:00

I'm somewhat fascinated by research reports that cater to subjective interests and promise doom or golden mountains if some sort of solution is (not) implemented. The solution, or part thereof, is usually included in the report, available at several hundreds or thousands of dollars.

The title of the following report captures it all: The Global Copyright Pandemic: A First-Aid Kit for Publishers and Information Providers. Even if this title has the ingredients of doom and salvation, I think it is not particularly well-chosen. Judging on the title alone one would think that the world is about to collapse under an apocalyptic copyright epidemic, and all the report offers is a first-aid kid. Some disinfectors and bandages to put on a stinking wound that spreads like wildfire.

Luckily there's more than a title to judge on: a press release, since I can't afford to spend $695.00 to read "startling statistics on common user behaviors and attitudes" and get into the safe zone. A taste of what's upon us:

The Internet has led to a copyright infringement pandemic that is sweeping the globe, and the information industry has failed to respond, according to Outsell, Inc. The analysts estimate that 89 percent of workplace information users forward Web content -- including text, pictures and video -- without knowledge of or concern for copyright protections. This puts employers at risk and robs the information industry of big revenues.

Yes, big revenues, the gold that's lost by unrestrained sharing of information due to the internet. I can only wonder if the report touches on the extra work productivity and revenues provided by this sharing, but I have to do it with a snip of the salvation that's in the first-aid kit:

"What's missing from the industry associations is a coordinated effort to clarify the mixed messages about copyright that leave users befuddled and indifferent. It's not about being a bad guy, or aggressively pursuing litigation, or clamping down on distribution with technology or burdensome copy restrictions, but rather about taking a stand, setting boundaries, and eliminating the ambiguity that users experience. That unified industry approach to copyright is missing today."

That's the tue preacher's message: don't come down with force, but spread a clear, unified message to change user behaviour. Don't fix technology that allows widespread sharing with legal and technological measures, but tell users they shouldn't reach for the apple of knowledge that's right at their finger tips. I would consider this an ambiguousus message, if I was an "industry association": take a stand, but don't get hated for doing so. But then, I would make sure to buy this report, for you don't want to miss out on a possible antidotede to the copyright pandemic and the golden mountains on the horizon.

Austrian ISPs Have to Hand Over Customers' IDs

2005-07-28T16:04:00.000+02:00

Back in April an Austrian court decided that legally an (dynamic) IP address was the equivalent of a telephone number, thus covered by the low(er) privacy protection regime for metadata, instead of the telecommunications law regime. Now the Austrian Supreme Court (Oberste Gerichtshof) has confirmed this reasoning and decided that ISPs must hand over the names and addresses of their customers to rightsholders in case of infringement (decision July 26th). The Supreme Court thought it irrelevant whether the IP address was static or dynamic, and that constitutional, data protection and telecom provisions were deemed no barrier to the obligation of the providers.

A jubilant Austrian music industry has said that the Supreme Court has given a substantial decision, which will take effect immediately, "in the fight against file-sharing, but also other law breaking on the internet". The head of the Austrian division of the International Federation of the Phonographic Industry, Franx Medwenitsch, said in a press release [German]: "For law breaking there is definitely no anonymity on the internet, with which many file-sharers obviously speculated".

For a background on other European court decisions related to ISPs and customers' IDs, see the following posts:

CoCo: Dutch ISPs Don't Have to Provide Customer's IDs to BREIN
CoCo: Irish High Court Orders Release IDs File-Sharers
CoCo: Sweden: Anti-Piracy Group Broke Data Protection Laws
CoCo: European ISP's Liability Battles (Also on German court decisions)

- - -

Thru Heise [German]

Spanish EUCD Implementation: DRM v. private copying

2005-07-28T14:36:00.000+02:00

Two weeks ago the European Commission started infringement proceedings against Spain for its failure to implement the European Copyright Directive (EUCD) on time. Now European Digital Rights (EDRI) reports that the Spanish government has issued a press release on a new draft Intellectual Property Law, which sees on the EUCD implementation. EDRI provides an overview of the main points of the law, amongst which:

The right to make a private copy is specifically acknowledged. [...]

The law creates a legal context for digital rights management (DRM). Spain has chosen for penal sanctions on circumvention. It also turns into a crime to publish about the very existence of systems to elude copyright protection. The press release however promises some extra measures in order to assure that DRM won't collide with basic user rights.

I wonder how the private copying "right" and the protection of DRM will interact. This interaction has lead to collisions and subsequent lawsuits in the past, for example in France: CoCo: French Court: DVD Protection Incompatible with Private Copying Exception

Nitke v. Ashcroft: Back to the Future

2005-07-26T16:36:00.000+02:00

Nitke v. Ashcroft was decided yesterday. Barbara Nitke was the main plaintiff in this 'intern speech case', and her website depicts "A Twenty Year Exploration of Sexual Relationship and Desire". This exploration is captured in photographs of pornography and SM, amongst others. This is again speech "that's on the periphery of what's socially accepted".

Social acceptance played a major role in the Nitke v. Ashcroft case under its theoretical, legal term 'local community standards'. These community standards are part of the challenged Communications Decency Act's (CDA, 1996) obscenity test, which was applied on Nitke's speech. A first a take on yesterday's judgment is provided by case lawyer John Wirennius (via Seth Finkelstein, who was an expert witness in the case and provides a one-stop resource for related documents, including the opinion):

"[On July 25, 2005], the three judge panel of the Southern District of New York issued a 25 page per curiam opinion finding against the plaintiffs--us, to be clear--in Nitke v. Ashcroft. The decision is a stunner--as much for what it doesn't say as for what it does. The Court found that Barbara and NCSF (through The Eulenspeigel Society) had been chilled in their speech and had censored themselves because of the statute allowing the Government to choose which venue any artist using the Internet may be prosecuted in, and applying that local community's standards to all art on the Internet. The Court also found that Barbara and NCSF could not rest easy on the obvious social value of their speech, because not all prosecutors and not all juries see social importance the same way. Then they found we had not produced enough evidence as to how many artists would be chilled, and how local community standards varied. Thus, we had not shown to what extent the standards varied from community to community, and how much speech was effected."

I haven't read the judgment myself, so let me just give some background on the community standards, which have haunted (regulation of) internet speech for almost a decade. The concept of local or contemporary community standards is a part of the three-step Miller-test to judge obscenity, established by the US Supreme Court (Miller v. California 1973). This step was transposed into the CDA, and its section 223(d) provides that anybody displaying to a person under 18 any communication (images included) that "depicts or describes, in terms patently offensive as measures by contemporary community standards, sexual or excretory activities or organs [....]" shall be fined.

In the landmark Reno v. ACLU case (1997) the US Supreme Court struck down the applicability of the CDA for regulation of indecency, but left the community standards provision in place for obscenity, which is unprotected under the First Amendment. With that it did not answer a problem that is caused by applying community standards on internet speech: local communities setting the local legal boundaries for a global medium. The result can be that the community with the lowest threshold to deem something obscene, and thus unprotected by the First Amendment, will set the rules for the whole internet, noting that (geo)localization of content is (still) not a feasible option.

The impossibility of this (geo)localization of content on the internet was part of the question the US Supreme Court concentrated on in another case about the constitutionality of the Child Online Protection Act (COPA), alias Son of CDA, (Ashcroft v. ACLU, 2002): "whether this technological limitation renders COPA's reliance on community standards constitutionally infirm". The Supreme Court's majority opinion was that it does not believe that "the medium's 'unique characteristics' justify adopting a different approach". And it also noted that "If a publisher wishes for its material to be judged by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities." Justice Kennedy rightfully criticized this exclusion of an entire medium in his concurring opinion. But in a dissenting opinion Justice Stevens, writer of the Reno v. ACLU majority opinion, pointed to the real issue:

"Because Web speakers cannot limit access to those specific communities, the statue [COPA - RL] is substantially overbroad regardless of how its other provisions are construed".

The US Supreme Court remanded the COPA case to a Court of Appeals, which virtually trashed the statue (ACLU v. Ashcroft, 2003). The Court of Appeals concluded, as in its first opinion on the COPA:

"COPA essentially requires that every Web publisher subject to the statue abide by the most restrictive and conservative's state's contemporary community standards in order to avoid criminal liability."

Now, in Nitke v. Ashcroft, the community standards come out on top again. What does this mean for the future? Besides prosecutors possibly doing some forum shopping between communities, the future brings the US back to the past. The US's first obscenity test came from Victorian England: the so-called Hicklin rule. In Regina v. Hicklin (1868) Judge "what's in a name" Cockburn wrote:

"The test for obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This rule judged 'obscene' content by its effect on those who were most open to it (and not to its effect 'on a person with average sex instincts', for example). Those most vulnerable, most easily offended, set forth the conditions for what the majority could rightfully express and receive. It has taken a long time, but this judgment subjects (internet) speech again to the most puritan of heart: a Victorian victory.

Denmark's National Child Porn Filter

2005-07-26T13:37:00.000+02:00

Denmark is apparently going to get a national child porn filter. The article reporting this is extremely low on details, but it says that the introduction comes after the introduction of a national child porn filter in Sweden in May "with great success". I know nothing of Sweden of having such a filter, but Norway's largest telecommunications group came up with one in October last year in cooperation with the national crime investigation service. I haven't read anything since if that was "a great success", but the scheme had some potential technological and related legal problems inherent to filtering, as I pointed out here.

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Thru Michael Geist's BNA's Internet Law News

DRM Candy

2005-07-26T13:11:00.000+02:00

On the Wireless Japan 2005 Show (Tokyo, July 13-15) Gerhard Fasol saw the latest and sweetest DRM innovation: DRM candy. As Fasol reports:

Digital rights management (DRM) concept study. Digital rights are sold in the style of wrapped sweets, and can be played or eaten. Dropping a digital-right-sweet into the receptacle plays the music or the video corresponding to this right. The sweets/DRMs can be eaten up after their value has been used up.

Maybe it makes the DRM pill that's so biter and hard to swallow for some just a bit more tasty.

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Thru Lenz Blog

Jot: German Intranet Copyright Paragraph Dispute

2005-07-20T15:17:00.000+02:00

Heise runs a small article on the ongoing discussion about paragraph 52a of the German Copyright Act, which specifies

"the conditions under which teachers and scientists are allowed to make "small parts" of works "publicly available" via Intranet to "certain circumscribed circles of persons - participating in lessons" or "for the sake of their own scientific research."" [quote from the article-RL]

The paragraph is under a time limit, and might cease to apply.

Dutch Collection Organisation Sets Podcasting Rates

2005-07-20T14:46:00.000+02:00

The Dutch collection organisation for composers, lyricists and music publishers, BUMA/STEMRA has come up with licensing rates for podcasting. The license structure looks much like that for webcasting, of which the organisation thinks podcasting is a comparable form. Commercial podcasters will have to pay a minimum of 85 euros, and amateurs can get a license for 35 euros per month for an unlimited amount of podcasts.

The rate for amateurs seems rather high, coming to 420 euros per year. (And other collection organisations might set their own, additional rates.) BUMA/STEMRA has said it will trust podcasters that they will notify the organisation of podcasts that include music and pay the set rate. If enforcement of this license system will follow in the future, how many amateur podcasters will stop playing music (and making some promotion for the musicians they plug)? Are amateur podcasts set to become the new talk radio? Or will amateurs start to pick up some instruments themselves?

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Thru Emerce [Dutch]

South-Korean Music Labels Target Blogs

2005-07-19T15:00:00.000+02:00

In South-Korea, sixty domestic music labels are preparing a collective lawsuit against 4,000 people: not for file-sharing through P2P networks, but by offering music files for download on a popular blog service, Naver:

"We demanded Naver force its personal blog service users to delete music files they illegally uploaded on their blogs," a representative from the labels told reporters. "But Naver passively reacted to our demands, and we decided to file a lawsuit against 4,000 Internet users for violating copyright law."

This is the first action after a recent copyright reform, which apparently outlawed both the illegal uploading and downloading of copyrighted material.

Chinese Search Engine Drops Links to Pirated MP3 Files

2005-07-18T23:23:00.000+02:00

The introduction of a Financial Times article (reg. required):

Baidu.com, China's biggest online search company, has agreed to delete thousands of links to internet sites that offer pirated pop songs, leading Chinese digital rights management company R2G said.

R2G, which tracks piracy and manages licences for music publishers, said complaints by it to Baidu based on recently strengthened copyright regulations had prompted the search company to drop the weblinks to pirated MP3 music files from its music search platform. [link added-RL]

For a background on R2G and its increasing role in the Chinese music market and copyright enforcement efforts, see these earlier posts:

CoCo: R2G: Dredging the Chinese (P2P) Flood
CoCo: Interview R2G on Online Music Distribution & Piracy

TV Commercial Day for the Content-Commercial Hybrid

2005-07-18T23:10:00.000+02:00

Get out your party hats and be ready to do the couch potato: 28 August will be "TV Commercial Day". Well, that's if you live in Japan and are actually willing to give attention to an attempt by the National Association of Commercial Broadcasters "to highlight the benefits of TV advertising to viewers." Its President, Hisashi Hieda, has pointed out that commercials and programs should be viewed as one combined, inseparable unit and said that: "Skipping the commercials would amount to a violation of the Copyright Law.”

Hieda seems to be running high on a TiVo -fever, or at least a fear of the ad skipping machinery. Leaving his "copyright violation" remarks for what they are, what to think of his commercial & content-are-one mantra? It's a mindset that follows from the increasing empowerment of consumers to skip ads, and the reaction of advertisers to reach for more intransparent advertisement measures, trying to make the distinction between content & commercials harder and thus still reaching the masses. At least in Europe there's been a body of legislation which proscribes distinctions between content and commercials for broadcasting, now set to be transposed to internet broadcasting. A murky field (of law), but increasingly interesting, and a reason to celebrate indeed.

Creative Commons: Eye-Rolling Dumb

2005-07-18T22:59:00.000+02:00

PC Magazine runs a column by John C. Dvorak called Creative Commons Humbug. A little snip:

This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes.

Follow the obvious points in a poorly executed analysis. At INDICARE Péter Benjamin Tóth does a (bit) better job under a strangely similar title: Creative Humbug. Start there, forget Dvorak, if you feel to discuss/read on the topic.

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Later Two comments on the article by

Karl Lenz: Dumbest Creative Commons Article Ever

and

Joe Gratz: Dvorak on Creative Commons: "Humbug!"

Jot: African IP & IT Discussion Forum

2005-07-18T22:57:00.000+02:00

Want to find out what's going on in the African Intellectual Property / Information Technology sphere? Got some spare time on your hands? The next five weeks you can drop in, read and discuss about a variety of topics at this forum. Topics will include, amongst others:

Free/Open Source Software; digital rights management (DRM); learning materials; protection of local content and indigenous knowledge; Alternatives to the existing IPR regimes Copyleft - Creative Commons; International IPR mechanisms; pros and cons of IPR enforcement for developing countries.

More in this article.

EU Internet Broadcasting Regulation

2005-07-15T14:07:00.000+02:00

The European Commission has released five issue papers on its revision of the regulation of audiovisual content, which will bring a replacement of the Television without Frontiers Directive. The revision will also extent broadcasting regulation to the internet, with main obligations for all audiovisual services on:

Protection of minors and human dignity
Identification of commercial communications
Minimum qualitative obligations regarding commercial communication
Right of reply
Basic identification / masthead requirements.

The regulation would exclude all non-commercial or private, and individual communications.

The papers make a bit of a distinction between linear and non-linear audiovisual communications, with the first also being subject to "lighter and modernized" rules of the Television without Frontiers Directive. The first paper explains the distinction:

[N]on-linear audiovisual services would cover on-demand services where users/ viewers are able to choose the content they wish at any time, e.g. video-on-demand, web based news services, etc., whatever the delivery platform.

The notion of linear audiovisual services would only cover services that are scheduled, i.e. where there is a succession of programmes arranged throughout the day by the responsible editor and the viewer does not control the timing of the transmission.

An attempt of even regulating anything internet is set up to criticism, as outlined in this Times Online article. From America comes the Technology Liberation Front, under the headline "And We Thought things Were Bad Here [...]", with:

[I]t's hard to predict what, if anything will sprout out of Brussels bureaucratic maze. Still, it kind of makes you glad that over here we have that pesky First Amendment to protect us (well, usually) from such regulatory musings.

From both articles speaks a fear of state involvement in internet regulation. While this may be benign, and the "bureaucratic maze" has resulted in some intransparent and sometimes overbroad regulation, one might aks why to shoot down any regulatory initiative, because it's by the state (or the European Commission, for that matter). I haven't yet gone through the proposals at length, and more than likely they will be open to criticism, but they focus on problems that not just have no merits because the internet is involved. Commercial communications will have a growing impact on the future of the internet. To reach the user's attention commercial parties will increasingly use manipulative measures, relating to the technological process, rather than the content. Identification of these measures, of the involvement of a commercial party that seeks to manipulate for commercial gain, may ask for more extensive protection of user interests. Regulation of commercial speech is a difficult subject, and will be hard to tackle. And as always with regulation on a European level, a question will be in how far users, and not the commercial interests against which these proposals seek to offer protection, will be the real winners. Only in recent years there is a tendency to increase consumer protection, but more than often it were the core principals of the EU (free movement of goods and services) that came out on top really. So, things can go bad here, by misplaced regulations, but also by a lack of protective intervention out of fear for state involvement.

Irish High Court Orders Release IDs File-Sharers

2005-07-14T18:45:00.000+02:00

The Irish High Court has ordered several ISPs to release the names of 17 file-sharers in a July 8th decision. The Irish Recorded Music Association (IRMA) will now offer the file-sharers a settlement, and if not accepted, pursue the alleged copyright infringements in court.

The run-up to this decision is interesting, as IT Law in Ireland pointed out, quoting the Irish Times:

The High Court was told yesterday that Eircom and BT are not opposing the "substantive" proceedings by four music companies aimed at securing the names of persons who have uploaded thousands of music tracks onto file-sharing networks.

The proceedings could lead to actions for damages being brought against those persons.

Yesterday, while not opposing the action, John Gordon SC for BT Communications Ireland Limited said he wanted to make submissions as to how the court should exercise its discretion regarding the form of order in the case. It is believed those submissions will relate to how the rights of the music companies should be balanced against consumers.

[...]

Mr Gordon said he proposed to file an affidavit by tomorrow for the purposes of assisting the court as to how its should exercise its discretion in the matter.

His client was not opposing the proceedings, but believed the submissions would assist the court in exercising its discretion in the correct manner in relation to how consumers were affected.

In plain words: the ISPs involved, Eircom and BT, did not put up a legal fight for the privacy rights of their customers. Instead, they chose for legal cooperation, and tried to influence the decision with "an affidavit". I haven't seen this affidavit, but one might think that the ISPs weighed their own possible liability against the interests of their customers, with the last loosing out. This stands in contrast to the recent Dutch court case, which resulted in ISPs not having to hand over their customer's IDs.

Not just users' (privacy), but also the law in general looses here. With claims uncontested and not put to the test, the music industry may have reached a fine result, but it provides little more clarity on the current legal standing of file-sharing issues. A missed chance. A question is now if customers will find a chance to hold their ISPs liable for putting up no opposition.

- - -

Later The Irish-Dutch connection is a bit stronger: according to European Digital Rights (EDRI) both the Irish and Dutch music industry organisations used the services of the American company MediaSentry. For the Dutch judge this was (under Dutch regulations) unacceptable. The Irish High Court apparently has less dificulty (maybe due to a lack of opposition) to make another judgement . According to the Irish Times (June 9th) it

"noted an undertaking by the record companies that the information would be used only for the purpose of seeking redress for alleged infringement of the copyright of sound recordings and granted the order on that basis."

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Thru Afterdawn

Autralian Hyperlinking Copyright Infringement Conviction

2005-07-14T13:40:00.000+02:00

Another copyright infringement conviction based on hyperlinking, this time from Australia:

Stephen Cooper, operator of the mp3s4free Web site, was found guilty of copyright infringement by Federal Court Justice Brian Tamberlin.

Although Cooper didn't host pirated recordings per se, the court found he breached the law by creating hyperlinks to sites that had infringing sound recordings.

This is the first such judgement against hyperlinking in Australia.

Tamberlin found against all other respondents in the case, namely ISP Comcen, its employee Chris Takoushis, Comcen's parent company E-Talk Communications, and its director Liam Bal.

Now it's count down to the KaZaA verdict Down Under.

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AllofMP3 Fallout Hits German Sites

2005-07-13T12:28:00.000+02:00

The German branch of the International Federation of the Phonographic Industry (IFPI) is creating a legal wave from the AllofMP3.com decision and riding it all the way to iRights.info [German]. A wave, since it's sending out warning notices to sites for linking to AllofMP3; all the way, because iRights is arguably an informative website, providing critical but independent background to digital copyright issues. The German IFPI already sent a notice to online magazine Heise demanding a link to AllofMP3 to be removed from one of its articles. The German IFPI bases its demands on the court decision that prohibited the making available of unlicensed music files within Germany by the Russian AllofMP3. In the notice to Heise, similar of that sent to iRights, the IFPI claims:

"By establishing a hyperlink to the Internet page in question you are enabling the acquisition of copyright protected sound recordings of our clients via the illegal download offer. By illegally providing public access you are thereby objectively supporting the illegal dissemination of copyright protected sound recordings [...] or even aiding and abetting such activity."

The IFPI also referred to an earlier case involving Heise, in which the linking to a site that provided circumvention software in a news article was deemed illegal. That ruling was appealed by Heise, and will likely be decided later this month. In the meantime iRights notes that not only did it already take down the link to AllofMP3 before the IFPI sent out its notice, but that the AllofMP3 decision can not yet be legally enforced, since it has not yet been served to the operator of AllofMP3.

The IFPI's tactics are understandable from an enforcement perspective. It is questionable whether the operator of AllofMP3 will stop making downloads available within Germany, let alone if he is able to do so at all. So, while the decision establishes the illegality of AllofMP3's practice under German copyright law, and provides a prohibition thereof, more importantly is its (intended) side-effect: a derived enforcement tool against portals within the German jurisdiction. Overall the effectiveness of this tool may be doubted, and using it against informative/news sites may harm its "public relations" value. A question is how far (private parties like) the IFPI will be allowed to go to (effectively) enforce copyrights. The prohibition of linking is one thing, but there are other, and possibly more effective (technological) measures, such as DNS poisoning. These measures represent different levels of regulation in the internet chain, and raise different legal questions. One can only hope that courts and regulators provide answers that look beyond the direct impact of copyright infringement, and consider the long term influence on the internet infrastructure.

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AllofMP3 decision [German, PDF]
iRights.info press release [German]
Thru Netzpolitik.org [German]

Jot: European Commission Starts Infringement Proceedings Against Member States

2005-07-13T11:21:00.000+02:00

The European Commission is taking the first steps in an infringement procedure under the EC Treaty against France, Spain, Finland and the Czech Republic for their failure to implement the European Copyright Directive (EUCD). The press release is frank about the rightsholders' centered focus of the EUCD:

The 2001 Copyright Directive is an essential plank in updating EU copyright law and providing an adequate level of copyright protection for authors and other right-holders in the digital environment. In this respect, the Copyright Directive requires Member States to provide adequate legal protection against “hacking” or other disabling of that “anti-copying” devices and other equipment used to protect copyright when works are published digitally.

Dutch ISPs Don't Have to Provide Customer's IDs to BREIN

2005-07-12T13:19:00.000+02:00

Today a Court in the Netherlands has ruled in a summary proceeding that Internet Service Providers don't have to hand over the identifying information of their customers to anti-piracy organisation BREIN. BREIN had requested that the ISPs provided the identifying information behind the IP addresses of alleged file-sharers. The Court ruled that BREIN's collection of IP addresses was not in line with Dutch data protection law, amongst others because BREIN used a professional, American company for the collection.

The premise in this case is that IP addresses are personal data under the Dutch Personal Data Protection Act (WBP), as was confirmed by the main Dutch Data Protection Authority (CBP). BREIN did not contest this, thus accepting the stringent regime that comes with the Personal Data Protection Act. ISPs have to judge if a request by BREIN would be in line with the Personal Data Protection Act, balancing the interests of their customers against BREIN's and weighing the legitimacy of providing identifying information on itself. The ISPs claimed that BREIN's request didn't fulfill the conditions of the Personal Data Protection Act, most importantly in this case because BREIN used a (professional) third-party to collect and process the IP addresses: the American organisation MediaSentry. Last year the CBP decided that the collection and storage of IP addresses may only be legitimate if BREIN would do this themselves. The CBP has not ruled about BREIN's practice of using a third party, but the Court considered that in the current situation the third-party collection can not be deemed legitimate and it is likely that the CBP will rule it illegitimate in the future. Especially, because MediaSentry is an American company and "the United States can't be considered a country with a fitting protection level of personal data". MediaSentry also has not signed a so-called Safe Harbour agreement, conforming to the level of privacy protection under European law. The Court additionally noted that MediaSentry's software scanned all the content of the "shared folder" on the customer's hard disk, which could also contain non-infringing data and personal information. This strengthened the suspicion that BREIN's outsourcing was more privacy invasive.

On these grounds the Court decided that the ISPs not just don't have to hand over the identifying information to BREIN, but that they even "are obligated to deny the request to provide identifying information. The ISPs have to guard that they process personal data [i.c. IP addresses- RL] that have an illegitimate source." Additionally the Court noted that to grant a request like BREIN's it has to be beyond reasonable doubt that the IP addresses are actually connected to customers that really offer illegal music- or other files on their computer. The ISPs showed that BREIN had made considerable errors in making the right connection.

All in all this is a considerable defeat for BREIN, which will appeal the decision. However, the decision is not entirely unfavourable to the organisation. The Court also noted that under the European E-Commerce Directive and the Dutch Civil Code BREIN may request identifying information in a civil case. This was contested by the ISPs, which pointed to criminal proceedings as the road to follow. Also, it is unclear what will happen if BREIN starts to collect and store IP addresses themselves and does not outsource it to (an American) third-party, and is able to match IP addresses to "infringing" customers without substantial error. All questions for future legal deliberations, but for now it's up to BREIN again to make its case.

- - -

Dutch Personal Data Protection Act (unofficial English translation) [PDF]
Court decision [Dutch]
MediaSentry site

Germany: Levies on Multi-Functional Devices

2005-07-12T12:45:00.000+02:00

After computers and printers a German court has now confirmed that levies should also be fully applicable on multi-functional devices, which combine scanning, copying, printing and sometimes faxing functionality. The Higher Regional Court of Stuttgart followed the German Patent and Trademark Office's proposals on the amounts of levies to be applied. This would bring between 38,35 and 306,78 euros for black & white reproductive devices, and a double amount for color reproductive devices, according to Urheberrecht [German].

The exploitation organisation VG Wort sees its demands for remuneration confirmed. It notes that the Court decision has clarified that multi-functional devices have to be treated like copying machines under copyright law and that this also means that users may make copies that fall within the private sphere, having paid a fair remuneration. Branch organisation BITKOM thinks that the amounts for remuneration are excessive, pointing out that for a color multi-functional device of less than 100 euros, at least an additional 76,80 euros would have to be paid. It suggests that it will appeal the decision to Germany's highest court, the Bundesgerichtshof.

Jot: The Copyright Defense

2005-07-12T11:28:00.000+02:00

A man has been attempting to use a novel defense - he copyrighted his name, and when government officials sent citations for traffic violations and property taxes, he claimed the government officials infringed upon his copyright.

Prosecutors were not deterred, cited an obscure law to counter the "copyright defense", and the man was sentenced to two years in jail.

German File-Sharing Round-Up: TV P2P & Advertisement

2005-07-08T19:36:00.000+02:00

The news site of the German Institut für Urheber- und Medienrecht provides three decisions on file-sharing. No commentary, just a short round-up:

Apparently a Hamburg Court has prohibited the distribution of the P2P TV software CyberSky TV, again. The software reaches download rates of 400-600 kBit per second so that television broadcasts can be swapped in realtime. Pay channel Premiere feared that its programs would be decoded on a PC and disseminated over the internet using the software and claimed that copyright law doesn't allow the distribution of software that makes the free distribution of its programs over the internet possible. The court followed Premiere's reasoning. Background on the case in this earlier post on the related temporary injunction.
Link [German]

The German music industry was victorious in a lawsuit against the Russian site allofmp3, which offers unlicensed music downloads for 2 eurocents per MByte. A Court in Munich has now prohibited allofmp3 to make copyrighted data publicly available within Germany. In the same press release that brought this news, the music industry also stated that it is going to take action against site that support allofmp3, or similar sites, with advertisement or links (see next point).
Link [German]

On June 14th a Berlin Court confirmed an earlier injunction and decided that internet portals that provide links to pay sites with downloads of illegal MP3 music files, may be subject to cease and desist orders. The court considered that the portal in question could only claim relief under the Telecommunications law for liability from damages, not for the cease and desist order. A Hamburg court decision that excluded liability for external links could also not be a base for the claimed relief. This decision was also restricted to liability flowing from damages.
Link [German]

Decision Scientology Case Delayed

2005-07-08T18:38:00.000+02:00

Today the Dutch Supreme Court should have given its decision in the highly anticipated Scientology-case. Over ten years ago the Church of Scientology invoked its copyright against writer Karin Spaink and XS4ALL to prevent the (re)publication (on the internet) of the so-called Fishman Affidavit, a critical testimony from a former Church member about Scientology's treatment of opponents, containing materials copyrighted by Scientology. Legal proceedings have been unwinding ever since, with Scientology's claims being rejected time and again by every court.

XS4ALL now claims in a press release [Dutch] that

"on the last moment Scientology tried to withdraw [its appeal to the Supreme Court]. XS4ALL and Spaink have resisted this with all their strength. [...] It's in line with Scientology's strategy to withdraw itself from lawsuits it has started. XS4ALL hopes that the Supreme Court will not accept this tactic."

Scientology obviously hopes that it will be let off the hook, because it was set up for a defeat by the Supreme Court's main legal counsel, the "Advocaat-Generaal". In March he noted in his advice to the Court that Scientology's copyright might not only yield for the freedom of information, as set out in art. 10 of the European Convention of Human Rights. More subtle, he advised that Scientology can not prohibit the "further communication to the public or reproduction" of the material, since it had been available for two years in the library of an American District Court (based on art. 15 b of the Dutch Copyright Act, which sees on prior publication by a public authority). For an analyses of his advice and the Scientology case, see this earlier post: Scientology Set for Defeat at Dutch Supreme Court.

Now the "Advocaat-Generaal" has to write another advice: whether Scientology may withdraw from the case, after which the Dutch Supreme Court will make its definite decision. One may expect the "Advocaat-Generaal" to judge this request fairly and keep his cool, seeing his well-crafted and laborous advice being give the procedural finger by Scientology. Still, I'd put my money on a just a delay for another defeat of the Sci-Fi sect.

Samuelson on Grokster: Speak No Evil, Hear No Evil

2005-07-06T21:53:00.000+02:00

Pamela Samuelson analyzes the Grokster decision in her forthcoming article for CACM's Legally Speaking column (Oct. 2005): Did MGM Really Win the Grokster Case? [PDF].

Her answer to the title, or at least part of it, is in the second paragraph:

MGM didn’t really want to win Grokster on an active inducement theory. It has wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.

And Samuelson isn't all that worried about Grokster's inducement test for (P2P) technology developers:

MGM is concerned that developers of p2p software will articulate a plausible substantial non-infringing use, such as downloading open source software, for their technologies and will be careful not to say anything that directly encourages infringing uses. MGM believes that they will nonetheless secretly intend to benefit from infringing uses that ensue. If there are no overt acts of inducement and no proof of specific intent to induce infringement, and if the Sony safe harbor continues to shield technology developers from contributory liability, MGM will find itself on the losing side of challenges to technology developers for infringing acts of their users. That is why MGM didn’t really want to win the Grokster case on this theory.

- - -

Thru Not Quite a Blog 2.0

French Anti-Piracy Videos: C'est Fun!

2005-07-06T10:59:00.000+02:00

Check out these new anti-piracy videos (QuickTime) from the French AFA (Association des Fournisseurs d'Acces et de Services Internet - the association for ISPs) and the SPPF (Société Civile des Producteurs de Phonogrammes en France - a collecting society for independent music producers). Apparently the videos have been tested on their target group (10-19 year olds) and "treating the subject with humour was particularly appreciated and allows a good reception of the message". The message is: "La musique c'est pas gratos !" (Music isn't free!). The messenger is a hysterical laughing skull dressed up as a pirate: Hahahahahahahaaaaa!

The videos:

L'anniversaire

&

Le scooter

- - -

Thru WeBlogs P2P & NTINC [French]

DNS Poisoning Requested From Providers by Rights Organisation

2005-07-04T13:52:00.000+02:00

The German rights organisation for composers, lyricist and publishers, GEMA, has asked 42 access providers to poison their DNS servers in order to block sites that provide links to eDonkey files. In short, DNS poisoning obstructs the process of converting a URL to a numeric IP address. The GEMA apparently expects the access providers to configure their DNS servers so that "inquiries by end-users are not passed to the correct server, but to an invalid or another pre-defined side." The GEMA also demands that the providers sign a testimony,with which they commit themselves to ensure full blockage under a contractual penalty of 100.000 euro if any of their customers can still reach the targeted site after July 25th.

There's a good reason for the GEMA to target access providers. These are located at the end of the internet chain (source-ISP-"internet"-ISP-user), and usually fall within the (German) jurisdiction, which eases enforcement. However, the effectiveness of this measure may be questioned: users can still enter the numerical IP address of the sites (URL-IP address converters are easily available on the net), and other DNS servers may be used. The GEMA probably thinks that an average user may not be able to take these steps. It also has high expectations of the ability of providers to block the sites, or at least of providers in general, setting a huge sum of 100 000 euro for failure to comply.

The providers in question are still doing their legal evaluations of the request, or have said right out not to comply, because the GEMA is not the kind of judicial instance that can set these kinds of demands. They're considering to bring GEMA's actions to court, in order to see if GEMA has any standing. This question, and GEMA's actions that propel it, are a sign of the times: private parties (rightholders) seeking direct enforcement through private parties (ISPs), stripping down the constitutional protection of speech from the largest (third) private party (users).

In the Pennsylvania child pornography case, slightly reminiscent of this one, new legislation allowed the government to aks access providers to block sites, using DNS poisoning amongst others. In that case there was a law to challenge, constitutional restraints to invoke, a court to review the pressure put on the public (government) - private (users) relationship. While laws may be applicable in the German case, users could "constitutionally" loose out if private demands are enforced by private parties. A judicial review is appropriate here, if for one thing, to test how far decisions to block the information flow can be pushed and taken within the private realm. Even if there's arguably illegal activity involved. Because there always is....arguably.

- - -

Thru Heise [German]
Also DE-BUG Blog [German]

Chilling Effect of Anti-(Child) Pornography Rules

2005-07-04T11:08:00.000+02:00

On June 24th title 18, Section 2257 of the U.S. Code, created under the Child Protection and Obscenity Enforcement Act, took effect. For a background on this section, that threatens to swap pornography and other (explicit) sexual depictions into the realm of child pornography, see this earlier post. Section 2257 will not be enforced until September 7th due to a stipulation between the US Department of Justice and the Free Speech Coalition, which challenges the regulations in court.

The Body Modification Ezine (BME) decided not to wait for the outcome of the challenge and moved all its servers "back into Canada which has far broader protection of speech and the press, as well as the required privacy protections". In this letter the publisher explains his motivation:

The specific laws in question are the "18 USC 2257" regulations, a set of record-keeping rules which the US government claims have been put in place to combat child porn. They stipulate that for all photos published, copies of ID and other information must be kept and that these must be made available to the US Department of Justice for at least twenty hours a week, without warning or warrant required for inspection of the records or our place of business (ie. our home).

This doesn't affect only photos or video directly produced by BME; this would also affect content produced by BME members - so every photo on BME and every photo on IAM could have these requirements applied to it. Any photo that is "sexual" in nature or of a "sadistic" or "masochistic" subject matter (even if the photo is blurred or behind a password wall) is affected - this would certainly include suspension, play piercing, nipple piercing, genital piercing, and of course everything in BME/HARD and BME/extreme.

Whatever one might think of the likelihood that BME' s site will be eyed by the US Department of Justice, the effect of the regulation is clear: its broad scope chills speech that should not be covered and is more than likely protected under the First Amedment. It shows how not just mainstream pornography can be a target, but speech that's on the periphery of what's socially accepted. Section 2257 may be another tool to cut off the edges of the market place of ideas and create a clean, air-conditioned shopping mall. Something the architects of this legislation may have intended all along.

Jot: Brazil's AIDS Drug Patent Breaking

2005-07-04T10:15:00.000+02:00

AP article on Brazil's threat to break AIDS drug patents with patent holders claiming that the country only wants to strengthen its own pharmaceutical industry and export position.

Sweden Implements EUCD, Downloading Illegal

2005-07-01T15:48:00.000+02:00

As of today the unauthorized downloading of copyrighted material from the internet is illegal in Sweden. Not just uploaders, but also downloaders (on P2P)networks), may be prosecuted for copyright infringement. That, while downloading is generally considered private copying and deemed legal within the EU.

The downloading prohibition is part of a new set of laws, which implements the European Copyright Directive. These laws also bring the prohibition of anti-circumvention tools and distribution thereof, and establishes a levy on blank digital media.

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Taiwanese P2P Wins Copyright Infringement Case

2005-07-01T14:24:00.000+02:00

While the week started with a loss for Grokster, it ends with a legal victory for the Taiwanese file-sharing service ezPeer. The International Federation of the Phonographic Industry (IFPI) in Taiwan had filed a lawsuit for copyright infringement against ezPeer, which offers unlimited donwloads to paying subscribers. Yesterday a District Court ruled that ezPeer "did not engage in reproducing or publicly distributing works of copyright holders," according to this news report. "The court also said that current laws and regulations do not specifically ban or limit file-sharing activities." A lawsuit against Taiwan's largest P2P service, Kuro, has yet to be decided.

Of course, the IFPI Taiwan is hugely disappointed, and legal experts are already mentioning the Grokster decision as an example to follow. Considering that ezPeer actually generates money directly from its subscribers, I guess the Grokster standard would not even be needed...if US law would apply.

- - -

Background: Battle against music piracy heats up in Taiwan (The Industry Standard)
File-sharing sites plan to form P2P group next year (Tapei Times)

Jot: Russia to Introduce Internet Monitor Commission

2005-06-30T23:15:00.000+02:00

In its efforts to protect intellectual property rights the Russian government:

will introduce a new Internet commission that will monitor the web for illegal sites and violations of authorship rights, said Aslan Yusufov, a senior prosecutor in the legal department of the general prosecutor's office.

I guess this is also an effort to reduce the unemployment rate, considering the work this commission will have on its hands, monitoring the (Russian) internet for copyright infringing content. Maybe it will do a little overtime and get rid of some non-copyrighted speech that it might deem illegal nonetheless.

Jot: Korea's Gamers Anonymous

2005-06-30T17:54:00.000+02:00

New South-Korean laws come to the aid of game addicts:

And the ministry of culture and tourism has to come up with solutions for the problems related to games, such as addiction to games and youth gambling.

New laws encourage the ministry to set up clinics and educational centers for game addicts and related policies

RealNetworks Markets Grokster

2005-06-29T21:44:00.000+02:00

RealNetworks apparently uses the Grokster decision to market its own Rhapsody 25 music service. According to Brandweek it ran a full-page ad in the LA Times, New York Times and USA Today. I haven't seen it, but here's a description:

Creative for the print ad shows the names of bands forming a judge's gavel. Copy reads: "THE DECISION IS IN. THE BEST CHOICE FOR FREE, LEGAL DIGITAL MUSIC IS RHAPSODY. www.rhapsody.com. On Monday, the Supreme Court made its decision. Now you can make yours by going to www.rhapsody.com. It's the only place where you can get free and legal access to over 1,000,000 songs, and share music with your friends. Great music whenever you want it. No hassles."

If you haven't seen it either, don't worry that you might miss out on making your own decision. RealNetworks also plans to lure you to its service by deploying "an aggressive search-term campaign that capitalizes on the ruling". They're at it again: the big words of "free(dom)" and "choice" and the capitalization on another company's success. Or in this case, legal missery. Makes no difference to RealNetworks; just playing the game.

P2P Monitoring by French Rights Organisation

2005-06-29T16:50:00.000+02:00

In April the French Data Protection Authority CNIL authorized the software lobbying organisation SELL to track and monitor file exchanges on P2P networks. Now SELL's sister organisation for copyrightsholders, SACEM, is likely to obtain the same permission. It will use the company Advestigo, which has asked CNIL for an authorization to collect IP addresses and send anti-piracy messages to file-sharers.

SACEM's action would consist of three phases:

both up- and downloaders will be located and receive an automatic message to inform them of the illegal character of their acts (that's illegal in SACEM'S view when it comes to downloading)
if these users continue their infringing activities SACEM may ask a judge to order their ISP to terminate the subscription
after that the SACEM may file a complaint against the file-sharers with the authorities, which can lead to a criminal investigation and prosecution

This is all not very new and surprising. More and more the push for P2P monitoring seems to overcome privacy protections. In France SELL provides a precedent for SACEM. In Sweden the Data Protection Board ruled that the national anti-piracy organisation broke data protection laws by collecting IP addresses, but it also made clear that private organisations can apply for an exemption to the data act. Dutch anti-piracy organisation BREIN already collects IP addresses and sends warning messages to file-sharers. Authorization of these activities is taking the first privacy hurdle in the longer run to the second: obtaining the identities behind the IP addresses. It now seems like the first hurdle gets lower and lower to the benefit of the second. In the end there may be little privacy protection to jump over before reaching the finish line: a lawsuit for copyright infringement.

- - -

Thru WeBlogs P2P & NTINC [French]

French Minister Greets Grokster Decision

2005-06-29T03:43:00.000+02:00

Grokster has crossed the Atlantic and hit the shores of France. The French Minister of Culture and Communication, Renaud Donnedieu de Vabres, came with an official reaction to the decision yesterday [French - (rough translation mine]:

Renaud Donnedieu de Vabres, Minister of Culture and Communications, thinks that the decision of the Supreme Court establishing responsibility for the owners of software that allows the illicit exchanges of files (peer to peer: "poste à poste") is likely to move the debate in France forward.

He hopes that this decision can contribute to aid the deliberation of all the actors involved.

He notes with interest that it constitutes a useful and important stage in the fight against illegal file-sharing and contributes to the emergence of a protected legal offer, which is in constant progression.

In this perspective and in the wake of the parliamentary debate on the [draft] bill on copyright in the information society, which will be examined at re-entry, the Minister of Culture and Communication has asked his staff for a legal evaluation of the American decision.

I doubt that the French Minister has actually read the decision, but apparently his staff will. That is probably the most interesting part of his rather flat reaction: the American decision is not just deemed a useful guide for the national debate (in which the Minister chooses sides), but also for the deliberations on the regulatory changes in the French copyright law. It is not stated, but suggested that MGM v. Grokster may be used as a source, or even inspiration in the parlimentary debate on copyright reform as part of the implementation of the European Copyright Directive. Has the European echo started?

- - -

Thru WeBlogs P2P & NTIC

Cashing In On Grokster's Footnote 12

2005-06-28T18:09:00.000+02:00

Grokster is cashed in by Digimarc, the first company to give yesterday's US Supreme Court's ruling a commercial twist. In the lead of a press release this DRM corporation states:

Court ruling in MGM v. Grokster identifies digital watermarking as a technology that P2P file-sharing companies could deploy to deter copyright infringement.

Together with encryption and fingerprinting technology, watermarking is directly referred to on page 16 of the Supreme Court's opinion [PDF] as one of the "new technological devices that will help curb unlawful infringement". However, more indirectly, Digimarc refers in its press release to the now (in)famous footnote 12 of the opinion and the attached paragraph that describes one of the three indicators of intent within the inducement test [see p. 22]:

The paragraph:

Second, this evidence of unlawful objective is given added significance by MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.12

And footnote 12:

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.

Much has been said about this paragraph and footnote. If you haven't already, read the posts linked to in the previous sentence for the bigger picture. Just focussing on this specific passage, the Supreme Court tries to keep its breath, while breathing; to suck and blow at the same time: a failure to prevent copyright infringement through technological measures does not bring intent in itself, but in combination with indications of marketing efforts (e.g. advertising) this failure may become the straw that breaks the file-sharing system's neck.

Digimarc, and the content industry, now burn this straw as part of their push for the implementation of technological measures that prevent copyright infringement and assist enforcement efforts after a copyright infringement. The message is clear: P2P file-sharing companies better patch footnote 12. They better deploy (DigiMarc's watermarking) technology, not just to prevent infringement, but to prevent being shut down just because they fail to deploy watermarking, fingerprinting, encryption. Show good intentions, instead of intent. Redesign you open infrastructure, join the DRM club and legalize. In this light the failure to develop technological measures becomes a bit more than an extra, propelling footnote to intent by indications of marketing.

Footnote 12 and attached paragraph (in that order) cater to the drive for closed, DRMed P2P networks by the content industry. And Digimarc, like other companies, are reaping the fruits and willing to cater to both parties: "Digimarc and its business partners stand ready to support copyright holders and the P2P industry as they consider the implications of this important ruling." In the meantime the catering Digimarc got today was a "coincidental" victory banquet with the Motion Picture Association of America "at a luncheon discussion with the Congressional Entertainment Industries Caucus". It must have had the sweet taste of success.

Google Video Viewer Launched & Patched

2005-06-28T00:36:00.000+02:00

Yesterday Google introduced an in-browser video player for its Google Video Search: Google Video Viewer. One of its features apparently prevents users playing videos that are not hosted on Google's servers. The usual suspect, Jon Lech Johansen, rises to the occasion and provides a patch "to remove this restriction".

Grokster Loses...Unanimiously

2005-06-27T16:34:00.000+02:00

From the SCOTUS Blog:

The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.

Unanimously

Update:

The opinion by Justice Souter [PDF]

A snip:

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Justice Ginsburg concurred [PDF], joined by the Chief Justice Rehnquist and Justice Kennedy

&

Justice Breyer concurred [PDF], joined by Justices Stevens and O'Connor

Some (European) reflections later on, after the frenzy has calmed down (in the (US) blogosphere)

(Thru The Importance Of...)

Two roundups of commentary on the decision: Furdlog & EEJD

Dutch Supreme Court Advised: ISP Must Provide Personal Data

2005-06-24T16:01:00.000+02:00

The Dutch Supreme Court has been advised to decide that the ISP Lycos has to hand over the personal data of an anonymous customer to a private third party. The so-called "Advocaat-Generaal", a neutral counsel to the Supreme Court on cases brought before the court, apparently follows the conclusion in an earlier ruling by the Amsterdam Court of Appeals in the Lycos v. Pessers case.

Pessers, a Dutch lawyer and stamp trader that offered stamps for sale on eBay, was accused of fraud by a Lycos customer on a website hosted by Lycos. Pessers demanded the personal data of this customer to take legal action, and a court of first instance ordered Lycos to comply. Lycos appealed the decision, but the Amsterdam Court of Appeals decided that the ISP did have to provide the data, even while it acknowledged that the accusations on the website were not "apparent unlawful". This condition for website removal by ISPs derived from the European E-Commerce Directive was not met, and the decision was criticized for bringing an a less strict test for providing personal data by the ISP:

a) that it is likely that the information is unlawful against the third party
b) the third part has a genuine interest in obtaining the personal data
c) that there are no other, less-intrusive means to obtain the personal data
d) weighing the interests of the third party, the ISP and the subscriber

If the Dutch Supreme court takes over the advice of the Advocaat-Generaal, this may have important consequences for both annymous speech on the internet, the (liability) position of ISPs and, related, the provision of personal data of file-sharers by ISPs to anti-piracy organisation. In relation to the last pooint, it was the Dutch anti-piracy organisation BREIN that financed Pessers defense before the Supreme Court by providing two lawyers. BREIN is currently in court to obtain the personal data of file-sharers from five Dutch ISPs, and a confirmation of the Lycos v. Pessers case by the Dutch Supreme Court would undoubtedly provide it with a (legal) advantage. In his advice the Advocaat-Generaal apparently rejected Lycos' view, as also argued by the ISPs' attorney in the current file-sharing case, that criminal proceedings would be the path to follow to obtain personal data. This will be a very interesting (legal) summer for anymous speech, the position of ISPs and the crystalisation of legal issues surrounding copyright enforcement against file-sharers. There has been a heat wave in Holland the past few days, and there will be a second, legal one in the coming months.

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Decision Lycos v. Pessers, Amsterdam Court of Appeals [PDF - Dutch]
Extensive commentary on the Amsterdam Court of Appeals' decision [Dutch]
Thru webwereld [Dutch]

Machiavellian Picture Association of America

2005-06-23T18:17:00.000+02:00

The Motion Picture Association of America (MPAA) has reportedly issued a correction to its disputed claims that it shut down an illegal DVD/CD replicating plant and seized $30 million in illegal stampers and DVDs:

In response to the company's objections, the MPAA issued a release correcting its assertion that the plant was shut down.

The trade group said the $30 million figure was reached by estimating the value of the DVDs that could be produced by the stamping machines that were seized.

That's right, could be produced. The MPAA presented potential losses as actual losses. Possible future infringements as current infringements. I wonder if this exemplary for the MPAA's calculation of damages allegedly brought by P2P networks and private copying, for example. Believing that the possible worst is the reality that is. This is not just bad math, this is a mind set: if users can steal, they will steal, thus they actually steal. If users can copy, they will copy. If users can share, they will share. It is in human nature to do so, to do bad.

"Thus, you must know that there are two kinds of combat: one with laws, the other with force. The first is proper to man, the second to beasts; but because the first is often not enough, one must have recourse to the second."

That's Machiavelli speaking in The Prince, and the MPAA seems to be taking his view of human nature and advice on ruling the public to its heart: it's a combat, with lawsuits and with technological force. It's for the better of man, if not in its own princely interests: to gain, maintain and expand its power through fear and love.

Jot: No copyrighted Characters on Library Mural

2005-06-23T17:37:00.000+02:00

In '89 Disney threatened to sue three day care centers in Florida for having painted Mickey Mouse on their walls. The Mickey Murals were removed. No wonder a muralist, working for a public libary, chose a jungle theme instead of her original idea:

“I had a lot of designs, and I talked to the head librarian about what I had in mind,” she said. “My first idea was to have a perspective painting of library shelves going off into the distance, with books lying open on the ground and different kids’ book characters popping out of them. That would have been really hard to do because of copyright law."

US Federal Trade Commission P2P Report

2005-06-23T16:25:00.000+02:00

The day the US Supreme Court's decision in MGM v. Grokster did not come down the US Federal Trade Commission issued a report on its December 2004 workshop on P2P file sharing: Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues [PDF]. At a first glance it doesn't seem to bring much exiting stuff, though it tries to present the opposing views of the debate. A little less prudence would have been nice:
Given the legal uncertainties pending the [Supreme] Court’s [MGM v. Grokster] decision, FTC staff concludes that it would not be prudent to draw conclusions or make recommendations regarding the intellectual property issues raised by P2P file sharing.

Online Anti-(Child) Pornography Rules to Take Effect

2005-06-21T23:34:00.000+02:00

Next Thursday Title 18, Section 2257 of the U.S. Code created under the Child Protection and Obscenity Enforcement Act will take effect. That is, unless the Free Speech Coalition, a trade organisation of the adult entertainment industry, is heard in its complaint and motion seeking a Temporary Restraining Order enjoining enforcement of the Title 18, Section 2257.

The section in question sets out rules for the registration of the identity and age of performers in adult (read porn) magazines and movies, which should be handed over to federal inspectors on demand. Not jus producers of the content are covered, but also so-called "secondary producers" like websites that distribute it. While aiming to battle child porn, the regulation is said to be part of a politically motivated crack down on porn in general. As an anonymous technology provider said in this August 2004 Wired article:

"Unlike enforcement of obscenity laws, which require vetting of community standards, this is 'yes or no, do you have the documents?' for webmasters," said one technology provider close to the matter who requested anonymity. "This is a much more efficient way to wipe out online porn, a goal Ashcroft has already stated."

Ashcroft has now been replaced by Gonzales as Attorney General, but the goal stays the same. As do the concerns and emotions. Says Will Doherty of the Online Policy Group:

"Unilaterally changing interpretation of the law to require that every Web site owner check and record IDs from all those who appear in explicit images is an outrageous attempt by a repressive administration to effectively halt the publication and exchange of many images of adults -- including those of lesbian, gay, bisexual and transgender persons -- engaged in consensual explicit activity."

Both the scope of the proposed rules and the likeliness of an anti-pornography agenda using such an important and delicate subject as anti-child pornography regulation, is troubling. By pushing pornography in the realm of child-pornography the needed subtlety for an effective, constitutional enforcement gets lost in the crudeness of generalization.

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See also Little-Known Anti-Pornography Statute Threatens Free Speech by Ernest Miller (Aug 26, 2004)

Jot: Debunking MPAA's Crack Down Claims

2005-06-21T23:14:00.000+02:00

The Motion Picture Association of America cracks down on a DVD plant, apparently makes up some bogus claims and the plant owner has to do damage control in a press release:

"The MPAA release falsely claimed that the 'High Tech Task Force stamped out an illegal DVD/CD replicating plant.' This is categorically not true. Our business is to duplicate material for customers who own the copyright and material that is in the public domain. By these false allegations, the MPAA has slandered our name and reputation and damaged the business that my husband and I spent 14 years to build"

Publishers Ask Google Library Project Moratorium

2005-06-21T22:51:00.000+02:00

The Association of American Publishers (AAP) has sent Google an unpublished letter in which it asks to stop scanning copyrighted books for six months till concerns over copyrights are cleared. R. Adler, vice president of legal and governmental affairs of AAP

[S]aid the letter was sent because members of the publishers' association feel they have not "gotten satisfactory answers to their questions about copyright infringement." Many publishers say that Google does not have the right even to scan a copyrighted book -- they argue that making a digital copy of a volume for any commercial purpose requires the permission of the copyright holder.

Google is scanning the libraries of several universities, of which Harvard and Stanford have allowed copyrighted books to be included in the process. Google has not yet answered to the requests, but thinks that their "program is fully consistent with fair use under copyright law." Six months sounds like a short term to get "satisfactory answers". Might this be the prelude to a fine-tuning lawsuit over Google's Library Project?

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Jot: Webcast Copyright Office On Music Licensing Reform

2005-06-21T14:53:00.000+02:00

If you can spare the time, and possibly some growls, the US House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property has a (live) webcast of the Oversight Hearing on "Copyright Office Views on Music Licensing Reform." Star of the Hearing: the Copyright Office's Marybeth Peters. Start: 10.00 AM EST / 16.00 CET.

Amazon DRM Labeling Falls Short

2005-06-20T13:15:00.000+02:00

Apparently Amazon has started to label the new CDs that contain DRM: [COPY PROTECTED CD]. As noted by Joseph Hall on his Not Quite a Blog 2.0:

This is the first time I've ever seen a CD on Amazon listed as [COPY PROTECTED CD] (they're usually listed as ENHANCED or something else). It's the upcoming CD of Amici Forever, Defined. This is likely due to Amazon customers complaining about CDs not working in their devices after purchase.

The (mandatory) labeling of CDs/DVDs has been a subject of legislation and litigation on both sides of the Atlantic. Article 95(d) of the German Copyright Law, which states that content protected by technological measures should be clearly marked and indicate the properties of these measures. The proposed US Digital Media Consumers' Rights Act (DMCRA) would introduce a comparable provision.

Whether Amazon's trying to avoid liability for unplayable DRMed CDs and/or increasing the transparency for consumers so that those can make a more informed purchasing decision, the current labeling falls short. At least, in light of some of the French court case(s) on the subject. In Association CLCV / EMI France (2003) a French Court considered the "DRM label" on EMI CDs: "This CD contains a technical measure limiting the copying possibilities." That the CD was unplayable on certain car stereos was not indicated, and the court considered that EMI had been guilty of misleading the public vis-à-vis the scope of playability of the CD. The court mandated a new text for the label: "Attention, it cannot played on all devices or car stereos."

In another French court case, Françoise M. v. EMI France (2003, confirmed this year), the court considered: Françoise M. (the consumer) established that the CD in question was not playable on all her devices, that this anomaly restricted its usage and constituted a hidden defect within the sense of Article 1641 of the French Civil Code. The French court confirmed that Françoise M. was entitled to cancel the sale against the distributor (citing INDICARE Report, p. 59 - PDF). In other words, as outlined in this earlier post, "one of the main characteristics of the purchased product (playability) is not present and the consumer's legitimate expectations towards the use of the CD have not been met. This could be considered a "breach of contract" between the retailer and consumer, and lead to a liability related to Article 3(1) of the European Sale of Goods Directive (lack of conformity)."

This is all European law, and I'm not sure which (US) provisions could be applicable on an online retailer like Amazon. Still, Amazon's [COPY PROTECTED CD] seems not specific enough to adequately inform consumers of the characteristics of the purchased good. And it is possibly too general a label not to be considered misleading.

Jot: Pinatas Hit with the Copyright Stick

2005-06-20T12:53:00.000+02:00

The LA Times runs a story on copyrightholders, notably Disney, coming down on stores that sell pinatas resembling copyrighted (cartoon) characters: Winnie the Pooh, SpongeBob, Shrek, The Incredibles, Nemo, for example. An interesting insight in the pinata cottage industry, and how some try to avoid copyright infringement:

They know about the lawsuits against the sellers in Los Angeles and do not make character replicas, although they sometimes staple party plates of characters to their pinatas.

MPAA's Glickman Rhetoric Redux

2005-06-16T23:27:00.000+02:00

The full P2P-Communist speech of Motion Picture Association of America's President Dan Glickman is now available in webcast and word document. While he closes his speech with the "hope we can work together in a non-polarizing way", his rhetoric does exactly the opposite, of course:

[I]f you peruse the Internet, you can find advocates for a radical new movement that believes that all intellectual property should be commonly owned.

These people think that copyright laws are too constraining and that the Internet should be seen as a "global commons" with little regulation and no enforcement of intellectual property laws.

Who is he talking about? Who are these radicals that believe in public ownership of "all intellectual property"? Global commons or Creative Commons? For Glickman dissent apparently means radicalism. Even if those radicals actually don't believe in a total maximalisation of common ownership.

Glickman on the other hand has some great lessons for Elementary and Secondary school childeren on Intellectual Property rights:

"There is not much difference...or any difference in terms of legal protection between them and physical property rights." [from webcast]

Yeh, Intellectual Property = Physical Property --> Downloading = Theft

But let's close with some nice words from Glickman, The Great Uniter. He twists his own rhetoric and suggests that movies create ~~communism~~ communities, where technology has a harder time to win over the individual for a collective mindset (And, yeh, movies are apparently no technology.):

"Movies are a way that bring people together. Technology is a wonderful thing. But in many respects what we found is that technology not necessarily resolves in a sense of community. Sometimes it does and sometimes it doesn't." [from webcast]

Warner to ISPs: Content for Names

2005-06-16T16:25:00.000+02:00

During a seminar on "online piracy" in the Netherlands last week a representative of Warner Home Entertainment made it clear that Internet Service Providers won't get movie content licensed, unless they provide the indentifying information of their customers on demand.

In a concluding panel discussion at the seminar a representative of one of the Dutch ISPs said they declined to hand over the IDs of its file-sharing customers to anti-piracy organisation BREIN to protect their privacy. Warner Home Video's Ruud Lamers responded that as long a the providers stick to this opinion they don't have to expect any content from the major players. That is, Warner does not want to be confronted with "anonymous" IP addresses in case of copyright enforcement, and puts the delivery of identifying information as a condition for licensing deals!

This threat came a week before BREIN took five ISPs to court today to obtain the identities behind the IP addresses of 42 file-shares. The ISPs requested a procedure on the merits instead of today's normal summary proceeding. Whatever will be decided, a final outcome is yet unclear, especially since the ISPs have counter-sued BREIN themselves. In the meantime apparently no movie content for them till they stop to protect their customers' privacy.

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Thru Solv [Dutch]

DMCA Copyright Censorship Mess-Up

2005-06-16T13:03:00.000+02:00

In what looks like another attempt by a religous group to use copyright to shut down online criticism, the Watch Tower Bible and Tract Society (WTBTS) apparently pressured an US ISP to take down the Canadian website of a critical former Jehova's Witness. The site called Quotes.Watchtower.ca contains various quotes from works published by WTBTS in an attempt to illustrate some of the failed phrophecies that organisation has made over the years. From Quotes.Watchtower.ca's press release:

For example, one of the most recent additions to the collection is Watch Tower's 1932 claim that the "theory of gravity" is thoroughly in error and that electrical forces, instead, hold the planets in orbit and hold everything down on the earth's surface -- a remarkably ludicrous claim, even when compared to the limited scientific knowledge of the 1930s. Also included were quotations demonizing the Internet, the Media, the United Nations, and other non-Witness entities as ‘tools of the Devil.’

The WTBTS invoked Digital Millennium Copyright Act (DMCA) provisions against the site back in January, which led to some adjustions by quotes.watchtower.ca and a legal correspondence, available in the site's News & Update section. Still, the site was taken offline by the ISP in May, apparently due to some administative mix-up: "Your e-mail leads me to suspect that the original [January-RL] notice was stored in the fax machine's memory and mistaken for new, since something similar has happened once before," says the web host's attorney.

What's striking to me about this story is that the ISP apparently did not take the time to check the validity of the notice or inform (in advance) that the website would be taken down. It saw DMCA on an outdated fax, feared possible vicarious liability and steered for the DMCA's safe harbour provisions instead of putting up a fight for its customer. A choice that can hardly be blamed, since possible litigation and liability costs outweigh the displeasement of one customer. It's the DMCA's notice & take down system that brings a privatized shoot first - check later situation, in which you have to pay up for an ISP that's not so trigger happy.

This case has some relation to the copyright censorship that was used by the Church of Scientology. This sci-fi sect has been particularly aggressive trying to prevent the spread of their copyrighted works and connected criticism. In The Netherlands Scientology's practices have been part of a long legal battle, in which its attempts to get the so-called Fishman Affidavit removed from Dutch writer's Karin Spaink site have failed. This summer the Dutch Supreme Court will likely put Scientology's legal claims next to where their reli-fiction belongs: in the trash can.

Macrovision DMCA Lawsuit Targets DVD Copying Products

2005-06-15T21:57:00.000+02:00

Macrovision announced today that it has filed a Digital Millennium Copyright Act (DMCA) lawsuit against Sima and Interburn. According to Macrovision's press release:

[Their] infringing products allow users to make new unlicensed DVD disc copies by stripping Macrovision's patented ACP technology. The suit charges that Sima and Interburn therefore violate both Macrovision's patents and the DMCA, which prohibits circumvention of copy protection mechanisms.

The image above is of Sima's C-2, one of units products targeted in the lawsuit. Sima writes on its site that these "units allow you to preserve your family memories to DVD and enhance their video image at the same time", and has a notice on its site:

Use of this product for unauthorized duplication of copyrighted material from DVD, VHS or other media is prohibited under federal copyright laws unless the copy qualifies as a fair use under the Copyright Laws.

Circumvention of copy protection mechanism for fair use is not allowed under the DMCA. (The DMCRA seeks to change this.) If the products would actually rip Macrovision's Analog Copy Protection scheme, and the press release claims that they "have very limited commercial uses other than to circumvent Macrovision's copy protection technology [...]", another DVD X Copy like ruling could follow. DVD X Copy also happens to be the main product Interburn is selling on its site. A site that stands on the blacklist of the manufacturer of DVD X Copy for allegedly

"selling licenses that either CANNOT be activated or are cracked versions that DO NOT WORK properly and/or that contain spyware. Product purchased from these sites will be deactivated and are not eligible for support or updates and should be returned for a refund." [bold in original-RL]

Nice. But I guess those who buy their DVD ripping software from a well-used international DMCA (lawsuit) bypass called the internet, can't be bothered if they download their copying software from a non-US site.

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Later Be sure to read Ernest Miller's post on the lawsuit, explaining something I just very slightly touched upon: "This isn't about digital anti-circumvention (the most commonly invoked), but analog anti-circumvention." As a backgound he provides article 1201(k) of the DMCA, which sees on "Certain Analog Devices and Certain Technological Measures" and, according to Miller, "makes it quite clear that Congress considers this technology copy protection technology, and because it is mandated for VCRs, makes arguing around it quite difficult."
Also interesting is his follw-up to the post: Mark Cuban Has Questions About the Macrovision DMCA Lawsuit.

MPAA President Sees Communist Connection with P2P

2005-06-15T15:56:00.000+02:00

The President of the Motion Picture Association of America, Dan Glickman, spreads more of the same rhetoric at the eve of the MGM v. Grokster decision by the US Supreme Court. In a speech yesterday he suggested a link between P2P and communism, heated up the cold war and warned for a decline of freedom.

"Shall we keep in place legal protections that promote the free market, or shall we tear down those protections in such a way as to allow the black market to prosper and dominate?" he asked. "If we have learned anything over the past 50 years with the collapse of communism and the triumph of free-market capitalism, we have learned that abusing private property rights actually leads to less creativity, less technological development and less freedom."

Yeh, black-white, capitalism-communism, control-freedom, left-right, up-down. More constructive polarization for a better digital age. Will somebody ever start the fire to melt down the copyright poles?

Swiss Copyright Reform Eyes Europe

2005-06-15T14:54:00.000+02:00

Switzerland is working on a new copyright law, with a first draft expected at the beginning of 2006. One of the key issues will be the implementation of anti-circumvention legislation in accordance to Switzerland's obligations under the World Intellectual Property Treaty. Apparently the WIPO's provisions provide "no consensus on "how consumers are to be protected from the misuse of such control possibilities." The draft is now to be designed closer to European law", says this Heise article.

I'm not sure what that means. Are the Swiss searching for more consumer protection towards DRMs, and do they expect to find it in the European Copyright Directive (EUCD)? That is not the most enlightening example to follow. When it cones to protection of technology (article 6 EUCD) vs. the protection of consumer interests (article 5 EUCD) the EUCD does not live up to its statement in Recital 31: "a fair balance of rights and interests [...] between the different categories of rightsholders and users of protected subject-matter must be safeguarded." The EUCD is a rightholders centric piece of legislation, and unless the Swiss take some of the European consumer protection law into consideration, eyeing European law does not bring more protection against 'misuse of such control possibilities".

More noteworthy developments:

-There has been considerable opposition against the extension of levies beyond blanck CD's/DVD's (to, for example, computers). This extension might now be stopped.

-Under current copyright law downloading of copyrighted material is considered to be an act of private copying, while the unauthorized uploading of copyrighted material is deemed illegal. This is likely to be codified in future legislation.

Jot: Jack Valenti Finally Turns Into Concrete

2005-06-15T13:26:00.000+02:00

Motion Picture Association of America's headquarters to be named The Jack Valenti Building.

[Link to MS Word press release.]

Norway: From Playback to Setback Under EUCD Implementation

2005-06-14T14:14:00.000+02:00

Over at INDICARE a new article has been published on Norwegian's efforts to get its copyright laws in line with the European Copyright Directive (EUCD), especially in relation to technological protection measures: Norwegian implementation of the EUCD article 6 by Thomas Rieber-Mohn. The author reviews the recent White Paper of the Ministry of Culture and Church Affairs which contains various amendments to Norwegian's Copyright Act [unofficial english translation].

I think the article is a bit hard to follow at times, but it lifts out some interesting aspects. They're summarized in the article's conclusion:

Further, the ban [on circumvention of technological protection measures-RL] shall not apply to acts of circumvention that are needed in order to enjoy the work within the private sphere on so-called "relevant playback equipment". The proposed "interface" [to copyright exceptions-RL] obliges right holders to respect the relevant copyright exceptions while shaping their technological measures. If they do not do so, the beneficiary can file a complaint to a specialist tribunal empowered with the authority to - ultimately - grant a permission to circumvent.

On "relevant playback equipment": consumers may circumvent DRMs on, for example, CDs, if these DRMs prevent the enjoyment in the private sphere of the CD. The interesting part is that the White Paper restricts this limited circumvention to "relevant playback" equipment. This means that DRMs on a CD may be circumvented to "enjoy in the private sphere" on a CD player, not for conversion to MP3 players. I don't know the background to this lock-in to relevant playback equipment, but the reasoning might be that a subsequent ripping of CDs to MP3 player or computer, after circumventing their DRMs, puts the music files up for grabs through P2P networks. The prevention of this kind of "unsecured" platform-shifting has been part of the strategy to prevent the dissemination of copyrighted material. Rightly so, I think, the Norwegian parliament has criticized the proposal in its first hearing, and it is probable that conversion to MP3 (players) will be part of a revised, future proposal.

Interesting is also that for on-demand-services, such as online music stores, the determination of what is relevant playback equipment is governed by the contract in place between the service (e.g. iTunes Music Store) and the client. Contractual freedom thus overrides limited circumvention by the consumer. I'm only pondering here, but would this mean that consumers can be tied by contractual terms to a specific playback platform? Proprietary songs for proprietary players, where DRM does not already pave a path to this direction?

On "interface towards copyright exceptions": this interface refers to the requirement under article 6(4) EUCD for member states to take measures that rightsholders provide users with the possibility to benefit from certain copyright exemptions (private copying being not one of them): e.g. for teaching, archiving, library use. As stated in the article, article 6(4) does not apply to online on-demand-services if exemptions are excluded by contract. The White Paper proposes a failsafe mechanism in case the rightsholder does not provide the possibility to enjoy copyright exemptions: the "beneficiary" can make a request to a committee appointed by the Ministry that can set a time limit for the rightholder to comply, after which the committee can allow the benificiary to circumvent the used technological protection measures. This "failsafe" is exemplary for the change of (legal) position of rightholders and users in the enforcement of (copy)rights under technological protection measures. Now it is the user that has to actively seek to secure its interests, confronted with a technological barrier in first and a procedural barrier in second instance. The article says that for consumers this procedural failsafe is an "effective means to enforce her copyright exception privileges" and that it is important that "it lies with the consumer to trigger this right." While the Norwegian proposal seeks for a balance between rightholders and user rights, one might question the "effectiveness" and the "importance" of the proposal. The existing fulfillment of user interests is prevented by the implementation of DRMs, and users are forced to negotiate with rightholders to secure their interests, having a possibly time-consuming procedure with an uncertian outcome as a failsafe. This makes the path of enfocement of interests a long and winding road.

Sweden: Anti-Piracy Group Broke Data Protection Laws

2005-06-10T13:29:00.000+02:00

The Swedish Data Ispection Board has ruled that the anti-piracy group Antipiratbyrån has broken the personal data act by recording the IP addresses of file-sharers, their alias, the file name and the server through which the connection was established. The Data Inspection Board argued that if an IP address can be linked to an individual user it is should be classed as personal information and thus be covered by the personal data act.

Antipiratbyrån monitored and tracked the IP address in their effort to crack down on the file-sharing of copyrighted material through P2P networks. This crack down can hardly be called a great success for the anti-piracy group, especially from a public relations perspective. Starting with a raid by Antipiratbyrån on an ISP Bahnhof back in March the organisation has been under constant scrutiny and legal complaints. Its email correspondence with American counterparts was published on the internet, it was discovered that an infiltrator linked to the group might have planted evidence on the ISP's server, before thousands of Swedes reported the group to the Data Inspection Board. It is not yet clear if under today's ruling Antipiratbyrån's collection could be classed as a criminal offence. For some time now the group has been giving the IP addresses to the police directly, instead of storing them themselves for later prosecution.

The Swedish ruling stands in contrast with a decision by the French Data Protection Authority (CNIL) last April. CNIL decided that the software lobbying organisation SELL was allowed to send "piracy prevention messages" to file-sharers and collect their IP addresses in databases. As outlined in this earlier post CNIL said that

IP addresses will only get a "personal character within the framework of a legal procedure". It also thought that the actions presented by "SELL were likely to preserve a balance between the protection of the rights of the people of which data are processed and the protection of the rights from which the authors and other rightsholder profit." [translation mine-RL]

The Swedish Data Inspection Board has now expressed another opinion. However, it made clear that "an organisation may apply for exemption from the personal data act." Antipiratbyrån is expected to have their application for examination with the Data Inspection Board on Monday. So, one of Europe's liveliest P2P stories continues, and, compared to other countries, is just to start

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Pooh & Pokemon P2P Porn Pimps

2005-06-09T23:52:00.000+02:00

No mascot, just lame jokes for the latest round of propaganda. Parental anti-P2P propaganda from Childnet International, which closely cooperated with the International Federation of the Phonographic Industry (IFPI) for their Young People, Music and the Internet - a guide for parents about P2P, file-sharing and downloading. Childnet seeks to inform parents of the potential (legal) risks of P2P use by their children trough a brochure, and while trying to pose objective, spreads more fear than balanced facts: viruses, open doors, spyware, chat room lurkers, zombie pc's spreading personal medical information and of course porn, porn, porn. The threats from P2P are numerous and imminent and even that the most trusted of child's friends are into the scheme: "Even files named “Winnie the Pooh” or “Pokemon” have been found to contain pornography."
After such a revelation what to say of arguable claims like "Downloading music without permission from p2p is illegal in most countries"? I just can't get that honey drivrn bear out of my head.

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Copyrighting Race & Gender

2005-06-09T22:07:00.000+02:00

Copyfight refers to a post by Professor Michael Madison on a "case in which a stage production of Grease was halted by the rights organization because the female cast was going to play female students in an all-girls school putting on a performance of Grease." The stage production reacted with Grease and Desist, a musical answer to the legal threat. It reminded me if a snip in an article on cross-casting that had a less amusing outcome:

Cross-casting along gender and racial lines has been used in the theater for years, starting with productions of Shakespeare. On Broadway now, Denzel Washington is playing Brutus in "Julius Caesar" and James Earl Jones and Leslie Uggams headline "On Golden Pond." In 2001, a film version of "Hamlet" set in the post-Civil War South included a black Polonius played by Roscoe Lee Browne.

Such casting does not always go smoothly. In Glenelg, Md., last month, a high school production of "Huckleberry Finn" had a black Huck Finn and a white Jim, but the copyright holder objected to the cross-casting and the performances were edited out of a C-SPAN talent show.

Lack of P2P Control Threat to Asian Governments

2005-06-08T14:49:00.000+02:00

The deputy director-general of WIPO's regional Asian office, Geoffrey Yu, has a hard time with the increasing internet access and predict governments will have so too:

"It’s only a matter of time that illegal downloading becomes the longer-term threat to the governments in Asia,"

[...]

"Soon, we won’t be having large scale commercial operators pirating music and movies in large concentrated warehouses but we'll see millions of individuals doing the same in their own homes. That's actually a bigger threat because it's harder to control."

Set aside the questionable equation of large scale commercial pircay and individual file-sharing, one can wonder about the suggestiveness of this "hard-to-control" threat (to governements even). Should the threat be countered by imposing controls? Should increased internet access come with increased control over that access? A tuned-down internet for the masses that are getting a taste of the "forbidden fruits" of file-sharing? I guess Yu is only expressing his frustration, but coming from a represenative of a supra-national IP body this kind of unsubtle talk is something to watch. Even if it isn't that surprising.

Chinese Internet Registration Flow Chart

2005-06-08T14:40:00.000+02:00

This is a picture of the (interactive) flow chart the Chinese Ministry of Information Industry has set up to register all China-based internet sites. Danwei provides clause 57 of the Telecommunications Regulations to which the terms for registration refer. Unsurprising the clause is more than a little broad.

CDT: Stick & Carrot for the Digital Consumer

2005-06-07T23:11:00.000+02:00

The US civil liberties and public policy organization The Center for Democracy and Technology (CDT) has released a policy paper today called Protecting Copyright and Internet Values [PDF]. The CDT believes that there is a path forward in the polarized copyright debate and argues that three components are essential to come to a satisfactory balance for all stakeholders:

Punish the bad actors: setting examples to discourage infringement
Digital Rights Management (DRM): a light, consumer friendly version
Copyright education: "Reaching young consumers is particularly important"

The CDT calls this the "carrot-and-stick approach". A method that brings the image of a donkey to mind, but the CDT is actually talking about consumers. Some organisations and individuals with more "unbalanced" views about the internet and copyright might say this paper treats consumers as donkeys and consumers must be donkeys to follow the policy it sets forth. I wouldn't go that far, though I think the CDT offers more stick than carrot.

The stick of punishment is vastly gripped by the CDT. It is clear about its position on the RIAA and MPAA lawsuits against individual file-sharers and p2p networks like Grokster: they are bad actors and the first should be punished for infringement and the second for inducing this infringement. It calls the lawsuits "a dinner‐table conversation for families all over the world". It must realize that those families also dwell in the sensationalistic stories of the RIAA/MPAA suing dead people and prosecuting grandma's and children. To prevent "a consumer backlash" the CDT stresses the importance of due process and the acceptance of "fair settlements" ($4000) by copyrightholders. It offers no solutions for the current cost of litigation, which makes "due process" a hollow phrase for individuals and makes $4000 dollars look like a fair settlement indeed.

Digital Rights Management is hailed as providing price differentiation and extended consumer choices. To achieve this the CDT argues that "content owners are generally within their rights to put out restrictive DRM. In a functioning market, DRM that fails to provide an attractive bundle of rights at an attractive price will fail." This promise has accompanied DRM from the start, but until now consumers are more than often confronted with several issues pointed out by the CDT: privacy, transparency, informed purchasing decisions, and something it calls "First Amendment uses of content". This refers to the fair uses of (online) review and commentary, political ads and scholarly use. With this phrasing the CDT seems to want to avoid the inclusion of the fair use of private copying. It is mentioned nowhere in the paper, while it is a hot consumer issue related to DRM (see e.g. DMCRA deliberations). Maybe it is too much to ask from a small, general policy paper like the CDT's, but a balance for all stakeholders asks for more than (rightfully) raising (some) consumer interests, while taking the premise that restrictive DRM is okey since the market will fix it.

The paper breaths a fear of governmental intervention, e.g. ISP blocking and filtering mandates and technological mandates. These surely are worrisome, and the CDT has used its stick to fight them in the past (e.g. Pennsylvania child porn case). However, it seems to envision that the market will provide consumers with a juicy carrot if mostly left to itself. That can do, if at the same time consumer interests are safeguarded by both copyright and consumer protection laws and technology. Till that time it's hard to blame some unbalanced people for not eating the carrot and balking at the stick.

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Later Ernest Miller at The Importance Of... analyses the CDT paper in more depth and also thinks it offers more stick than carrot. He notes that the paper doesn't mention the Digital Millenium Copyright Act (DMCA) once. That's indeed a (conscious?) omission, which is more striking than the lack of reference to the Digital Media Consumers' Rights Act (DMCRA) I pointed to. The last would update the DMCA to to treat users not just like mere consumers but more like, what Miller calls, "citizen-creators" (implementing a fair use circumvention right).

Miller also higlights a sentence that seems more clear now: "Other legal tools, such as consumer protection laws, should be used aggressively against those who trick others into violating copyright law." That is, to my reading, consumer protection law should be used to battle copyright infringement, not so much to protect consumer interests. This stand may explain why consumer protection law is not applied to what it is relly ment for: protection against possible (DRM) intrusion in consumer interests related to privacy, transparency and (sale) contracts, among others. I'm not that familiar with the US situation, but Europe has a fairly fragmented collection of consumer protection law that could be applicable on DRM issues. (For a short overview I shamelessly plug INDICARE'S Report + Update, specifically chapter 3 [PDFs]).

In the comments to Miller's post, Seth Finkelstein explains why CDT's treatment of the interests of consumers/creator-citizens is so shallow:

It's important to understand that CDT is basically a business-oriented policy organization, mostly telecomm. Not that that's a bad thing per se. But that's what they are.
The report is "balanced", from their perspective - it's balanced between the interests of the business of big copyright-owners, and in the interests of the business of big tech/bandwidth companies. These are somewhat in conflict, and CDT outlines the issues.