Commons Talk

Last week I attended the Economics and the Commons conference in Berlin at the invitation of Mike Linksvayer. Funnily enough almost exactly a year earlier Marcell Mars had me down to Zagreb to speak on the same subject, so it was useful to have a pretext to pick up the thread again.

At the turn of the Millenium the language and historical cargo of the commons excited me as an alternative framework through which to think about copyright and patent issues, but at some point I lost interest. In part this was down to alienation at how I felt the term was misused within Creative Commons, reduced to a meaningless slogan in a licence which usually ‘granted’ users no more than they could have taken for themselves. In short it was legalistic, lacking in ambition, and signally failed to define an idea of user freedom in the realm of cultural goods akin to accomplished by the GPL in software – happily some other people took that challenge on.

Another reason for my estrangement was that there was a steady inflation of commons talk. Suddenly it seemed there were commons everywhere, anything even mildly desirable which the speaker determined everyone should have access to was a ‘commons’; an echo of socialism in a time which scarcely dares to utter its name. And the reason for my unease was that it seemed to me that this was happening in a pretty casual manner which delivered no political gain whilst significantly diluting any contemporary analytical power the idea of commons might have.

In the interim, two somewhat notable intellectual developments occurred, and an important material fact. The first regards Elinor Ostrom: even before she won a Nobel prize in 2009 hew work was widely read but the award of the prize brought a sense of public recognition to people working in some way within her paradigm. On a more minor register, Negri & Hardt’s political trilogy ended up focusing on the ‘common’ as a key terrain of political conflict and potential. From being a sideshow in the first volume, Empire, the commons had moved centre stage by the third volume – tellingly titled Commonwealth. And lastly there is the fact of the political and economic cyclone of 2007/2008, marking the end of neoliberal conceptual hegemony and a renewed interest in alternative frameworks. Due to the the 20th century’s ideological products having been widely discredited, interest in the commons has grown.

Over the next few weeks I want to begin to tease out whether there is something useful to be drawn from all this, or if we are simply witnessing the manufacture of an ideology of the commons.

Pirates Languish, Rousing Occasionally to Devour Each Other

Last January the Pirate Party polled its lowest vote in eighteen months in the regional elections in Niedesachsen: 2.1%. Some commentators  minimized the significance of this because the region is relatively rural and somewhat short on the demographic which has comprised the core of Pirate support: (male), young and urban dwellers. But even where such voters were to be found in numbers – Hanover, Braunschweig, Oldenberg and Göttingen – they scored very badly, rarely exceeding 3%. Overall they did not even approach the 5% threshold required to enter the regional Parliament.

More ominously for the Pirate’s future prospects the Green Party vote grew strongly, a source from which they have successfully syphoned quite some support in the last eighteen months. Federal elections take place this September (alongside regionals in Bavaria and  Hessen) but the PP’s chances of success are fading; opinion polls in recent months have them languishing around 3%

Recipe for Disaster

In part it’s a familiar story: a party, propelled to success by a generalised alienation from the political class, finds itself the beneficiary of protest votes and the falls out of fashion. Here it must be said that their elected representatives have attempted to transform themselves into ‘serious politicians’ in a most boring fashion, and without any success. Instead, the effort to define themselves coherently on a national level has led them to disintegrating.

This fragmentation derives from the lack of a clear (or even vague?) ideological framework framework. This is encapsulated in the tension over the policy demand for the basic income – as supported by the Berlin party – and the vision of the pirates as a social liberals in some other regions. This latter position would include party leader Bernd Schlumer, as well as the vice Sebastien Nerz (a former member of the Christian Democrats), and is now evolving its own internal organisational caucus in the form of the so-called the Frankfurt Kollegium. Meanwhile Johannes Ponader, the former political secretary  perceived as being on the left, has committed hara-kiri, after having been subjected to a public lynching cheered on by a media scandalised at his unashamed drawing of social welfare and pruriently fascinated by his ‘polyamorous lifestyle’.  All this has been accompanied by regular resignations from the collective leadership exposing a serious lack of solidarity from bottom to top. Mantras about the modernisation of politics through technology, participation and transparency are evidently not adequate.

To make matters worse the Pirates will go into the September’s election at a major financial disadvantage. Party financing in Germany is sourced largely from the state. The amount received is based on a formula whose essential elements are (i) number of votes received (ii) amount of money raised from own members. Because the Pirates have few fee paying members (perhaps as low as 11,000) they will get just 800,000 euros, despite their recent electoral success. To put this in context, two extreme right parties the NPD and Republikaner will receive a million and a half each – neither of these parties are in the Federal Parliament and both have been massively outvoted by the Pirates in regional elections over the last eighteen months. The CDU will receive 46 million! Elections are about money, and the PP not having much means that they cannot afford full time employees and all that stuff.

And while 2011 it was enough for the PP to be the ‘party of the internet’ in order to attract some support, but their sweep of victories awakened the other parties to the branding upgrade they required. In the last year both CDU and SPD have launched their own digital associations in an attempt to close the modernity deficit. In the debate over the introduction of a neighbouring right for newspapers even the CSU’s digital politics speaker opposed the so-called Google tax.

When in Doubt, Digital Rights are Always Good…

Now I’m sceptical about elections and representative democracy etc but if you’re going to play the game, hey, be smart about it, rather than behaving like a bunch of ingenues. Instead, even on issues which they should own they appear incapable of communicating their positions.

Most recently Telekom has been kite-flying the end of flat-rate broadband in a move which spells a clear threat to net neutrality and likely also a move to increase the gouging of consumers. Likewise the Government has failed to put an end to the copyright shakedown industry knows as the ‘abmahnung process’ whereby as many as 4.3 million internet users have received demands from lawyers for copyright infringement payments (between 400 and 2000 euros) in the last seven years. In all of the fractiousness they might want to get back to what they know to be shared ground. More will be revealed at the next party conference which takes place this month in Neustadt.

Boas, Malinowski, Musil enter the Public Domain

No doubt somewhere there is a blog which rigorously documents works brought into the public domain by the expiration of their copyright – but I haven’t found it yet. In Europe the rule for print is simple: seventy years after the death of the author. For our purposes that means that the books/articles etc of authors who died in 1942. Three authors from the long list here caught my eye.

Franz Boas spent a lot of time in Berlin before leaving Germany for the US, partially driven by anti-Semitism. There he became one of the founders of modern anthropology and an important opponent of those who sought to legitimise racial inequality on the basis of biology. Boas died in the company of Levi-Strauss after lunch in Columbia University where he had taught for many years. A couple of his texts are up on Project Gutenberg, but rather little considering the scale of his ouput.

Sticking with anthropology I came across the work of Bronislaw Malinowski while reading Marcel Mauss’s “The Gift” where he is cited as authority on the patterns of gift circulation in Melanesia. He did extensive fieldwork on the Trobriand Islands and is credited for coining the term of ‘participant observation’. Notwithstanding his fame Malinowski has been heavily criticised by other anthropologists for his racist attitudes towards the Trobrianders whom he treats ‘primitives’ in his diaries.

Lastly Robert Musil, born in Austria, he lived for much of the 1920s in Berlin but returned to Vienna in 1933, where he remained until the Anschluss when he and his Jewish wife fled for Switzerland. His “Man Without Qualities”, an unfinished trilogy, is a much admired modernist novel, and has been lingering on my endless reading list for some time now. The first two parts were published prior to his death, but the last instalment was released posthumously by his wife in 1943.

All entered the public domain on January 1st this year, although in the case of Musil this obviously applies only to the German original of his works – the english translations which appeared int he 1950s will have separate copyrights of their own.

Guangzhou By Night

A Long Night, Near the Bay

1. Encounter

In 2007 we were in the San Francisco area to shoot interviews for Steal This Film 2. One of our point people in the Bay was our friend Peter Eckersley and we had planned to film with him in his house over a few drinks. At some point Jamie King came in having collared Aaron Swartz somewhere out on the street, and he agreed to go on camera as well. In addition to these two there was also Raph Levien, a programmer and creator of Advogato. We settled in for a marathon session.

See a transcript for “On Peer To Peer, Digital Rights Management and Web 2.0″.

The others drank vodka, I stuck to wine, and Aaron, if memory serves, kept it straight edge on milk. Luca Lucarini took care of the camera work whilst I did most of the interviewing, although there was some alternation, with interviewees occasionally becoming interviewers and Jamie taking over some times as well. Proceedings did not come to a halt until about 4.00 in the morning, by which time the bodies of all involved littered the room, curled up and asleep.

See a transcript for “The Network Transformation”

After the film’s release, I sat down with the tapes to see what material could be extracted to be made available online as part of our footage archive. Later I wrote to the interviewees to ask their agreement to make it available under a fairly permissive CC-BY-SA license. Aaron gave me his consent by mail shortly afterwards.As these clips make clear Aaron was extremely articulate and a compelling speaker. Although I knew about him by reputation beforehand, it after this interview that I started to pay attention to what he was saying and  doing.

2. Lockout

I learnt about his data extraction escapades at JSTOR because my own means of accessing it, via MIT, was blocked following the alert triggered by his activity. But this minor inconvenience was trivial in front of the admiration I felt for his wide-scale data liberation.

From the time of his arrest Aaron had many supporters, but not all of them felt comfortable with what he was alleged to have done. Some argued that his energy would be better invested in further attempts to reform the copyright system via campaigning and legislative amendment. Others, such as Orin Kerr, regard the actions of which he was  accused — brute force data-dumping of a proprietary database whilst concealing his identity — as placing him outside the boundaries of an implicitly ‘virtuous’ civil disobedience: where the protagonist sacrifices himself at the altar of the law in order to draw public attention to an intolerable wrong.  Kerr continues:

In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a  fait accompli.   That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress. In his words, he wanted to act so that the democratically-enacted laws that allowed privatization of knowledge would become “a thing of the past.”

While I disagree with what Kerr has to say, I like the way he phrases the second part of it, it has the ring of a synthetic manifesto to it. And on the net we really are millions who abide by the spirit of such a manifesto.

ps Mako has written a nice piece recalling some quirky moments with Aaron.

Christmas Reading

This month I’ve been chipping away at a few books which touch on different aspects of copyright politics. The only one which I have finished is Cory Doctor’s latest offering, Pirate Cinema. Back in 2002 I got my hands on a couple of Cory’s books before they were commercially released, Down and Out in the Magic Kingdom and Eastern Standard Tribe. I enjoyed both of these tales from the near future but thereafter encountered him principally as an articulate advocate for the EFF and neglected his fiction work. But I could not ignore his Pirate Cinema, especially as it bears the same name of a real-life network dedicated to the public screening of films acquired via p2p networks, a meme launched in Berlin by friends of mine. So I was curious.

Cory’s fiction is pitched at ‘young adults’, a group whom has has apparently addressed with some success in works such as Little Brother, and this book’s protagonist is a seventeen year old from the north of England with a penchant for remixing video materials of his favourite actor, a practice which requires him to download copious numbers of films from the net. In the new climate of repressive copyright policy this results in his family’s internet connection being terminated. And the effects of the disconnection are not felt only by our hero, but also his family: his father relies upon the net for temporary jobs, his sister needs it for her schoolwork. Ashamed at the disaster he has brought upon them, he flees the nest, and the north, for London. Arrived in the city he is befriended by a wily elder, who introduces him into a low-cost, high-quality  existence lived off the fat of the metropolitan land.

TBC

 

Who Fears To Quote the Studio System?

Earlier this year TV3 broadcast a two-part series tiled “Banned in Ireland“. The first episode contained a basic survey of the structure and practice of censorship in film, video-games, music-videos and literature.

Whilst pretty untaxing in the main there were some interesting factoids – 2000 films were banned and 11,000 more cut under the regime established by the state in 1923. These works seem tame and tepid to us who have lived in a different period, so it is bizarrely fascinating to learn that Gone With the Wind was cut in no less than eleven different sections. Film historian Kevin Rockett then goes on to relay how the State’s first censor, James Montgomery:

“…eliminated the childbirth scene, because films that depicted childbirth, even the word ‘maternity’ being put on a hospital ward was actually cut. So the whole broad policy of Montgomery was to ensure that any expression of the physical body was denied to the Irish audience.”

And I thought to myself: this moment is crying out for an extract excised from the movie, some steaminess or childbirth on the screen quick sharp. But the was nothing. Likewise when they got around to discussing Natural Born Killers – banned in 1994 – there wasn’t a frame of the opening Diner scene which according to the then censor was the reason for his decision (the film was subsequently unbanned).

So in the entire fifteen minute sequence there wasn’t a single frame from any of the films referenced. Instead what were viewers served up? A parade of talking heads, irrelevant shots of people walking on nondescript Dublin streets, closeups of the Censor’s office Nameplate, and a small portion of Pathé newsreel from undefined days gone by. That TV3 is cheap does not come as unexpected, what bothers me is something else.

Ignoring the Censorship of the Present

It troubles me that this segment on film censorship was in itself a scandalous example of censorship. In its form.  What mean is the refusal to use film clips without authorisation, out of fear of being sued for copyright infringement by the studios.

Both the video-games section and that on music videos used ample images from the subjects under discussion (we were shown almost the full video for ‘Girls on Film’, Frankie’s ‘Relax’ , and Prodigy’s ‘Smack Your Bitch Up’). There were thanks in the credits to the games companies for their images, and there is probably a blanket licensing agreement for the music videos. The film section was thus exceptional in its blandness.

Worse still the producers have apparently naturalised this constraint to such a degree that the fact that censorship  is exercised today via copyright and trademark law  is not deemed worthy of discussion (or alternatively there is an editorial decision not to discuss it). This gives me an Orwellian shudder.

Channel 4, TV3s, RTE and the Copyright Consultation Review

The interim report of a committee investigating copyright reform was published in the spring. Since then additional submissions have also been published on the Consultation’s website, including contributions from broadcasters RTE, TV3 and  Channel 4 et al. Interestingly they are silent as regards the use of film extracts in the creation of new works. This is a problem for the public, because these TV stations are of course the principal avenue through which audio-visual works reach the public.

In the UK Channel 4 have nurtured an organizational policy of robustly defending the reuse of copyright works under fair dealing provisions. This boldness was demonstrated as long ago as 1993 in the ‘A Clockwork Orange’ litigation, where they repelled an attempt by the copyright owners of the film to suppress a work comparing the changing standards of violence on television. Following the refusal of Stanley Kubrick and representatives to be interviewed for the program they used extensive extracts, amounting to 12 minutes of a total program duration of 30 minutes.

In addition Channel 4 has produced and broadcast other programs which rely on extensive excerpting, such as Sophie Fiennes’ The Pervert’s Guide to the Cinema and Mark Cousins more recent The Story of Film: An Odyssey. One can only suppose that their interest in fair dealing extends only to the jurisdiction out of which they operate – the UK.
No works in the vein of Fiennes and Cousins have been produced in Ireland to my knowledge, although it would be interesting to know more about the copyright issues with a program like Reeling in the Years. According to its FAQ the series’ incomplete release is due to copyright complexities and costs but its composing elements are principally newsreel and music, which anyway places it in a different category to the works mentioned above. In addition the form is essentially historical and chronological without voice-over or meaningful montage, rendering it peripheral as criticism and commentary.

Meanwhile the only subject in TV3s submission is its interest in being able to license materials from providers anywhere in the EU. Not a word about fair dealing, innovation or anything else, bar a little self-promotion.

In their submission to the CCR, RTE took the opportunity to bang the anti-piracy drum, complaining at the lack of effective deterrent to internet piracy.  Given that RTE is largely a publicly funded organization financed by the television license fee, it is telling that they do not feel that this might imply that their financiers should have any rights over the material produced with their money.

Some Users More Equal than Others?

RTE also consider themselves, rightly, to be users, and have commented on the both their reliance upon fair dealing and the desirability of extending the exceptions contained in the copyright act to the extent thought permissible under EU law.

However they do not grasp that the distinctions between different classes of users, nor accept that RTE is a unique user in an Irish context. When convenient it presents itself as custodian of the public interest. But its advocacy position is determined by skin it has in the game as dominant broadcaster and possessor of the most important moving image archive in the state. This archival position allows it to dictate terms, for example, to independent documentary producers with expensive rates for archival research and licensing.

They opposed the introduction of a ‘fair use’ clause on the grounds that it would introduce uncertainty.

Given that the broadcasters did not push the issue it is not surprising that the CCR did not take the issue on its report (understandably given the degree of detail under which they are buried), so when fair dealing with images does arise it is limited to  user generated material. In their report the CRC summarise the current conflict between reality and statute:

“Notwithstanding these exceptions, the law is increasingly out of step with users’ expectations, relating to matters such as format-shifting, parody, satire, pastiche, caricature, fan-fiction, and so on, and with the realities of user innovation.”

I am curious to see if and how they will analyse the situation as regards commercial broadcasters, where in many cases the argument is just as strong. Furthermore these broadcasters function as gatekeepers and as long as they follow a restrictive policy, challenging critical work will be kept off the channels to the mass public.

European Observatory on Infringements of Intellectual Property Rights, RAND etc.

I have previously written about a new sub-institution established by the European Commission in the field of intellectual property enforcement – European Observatory on Counterfeiting and Piracy. In February the name was altered to the European Observatory on Infringements of Intellectual Property Rights (EOIIPR, perhaps).

This second baptism coincided with its transfer to a new home in sunny Alicante, at the Office for the Harmonization of the Internal Market (OHIM), and organisation better known for its administration of EU Community Trademarks and Designs. At birth the EOIIPR was located within the Enforcement Unit at the Internal Market directorate without much in the way of staff or money. The move to OHIM changes this and they will now have 15-20 people on an annual budget of three and half million euros. A Regulation officialising the transfer was passed by the European Parliament in February.

That this transition unfolded without any great ruckus will have been a great relief to both Commission officials and private sector lobbyists for the Trademark and Copyright industries: public commotion over the ACTA treaty raised the worry that the re-establishment of the Observatory could be sunk as collateral damage in the shit-storm.

Function of the Observatory

Once installed the EOIIPR began a consultation with interested parties to devise its programme for the next year, which was presented at its Plenary meeting in Alicante two weeks ago. I find it notable that once again the only consumer or user group present was the European Consumers Organization (European Digital Rights did make a submission as part of the consultation in July). Otherwise this has been a conclave of bureaucrats and lobbyists.

In the short term the Observatory is tasked with sourcing of data regarding piracy, counterfeiting etc which can be used to demonstrate that the Intellectual Property Rights Enforcement Directive is insufficient as stands, and thus requires some form of successor. That the Commission has already decided that this is the case is evident from its review of that legislation.

Consequently the Observatory put out a tender, and duly commissioned RAND to devise a methodology which could generate a set of figures which could be presented as objective (in contrast to the research reports bought and paid for by vested interests).

RAND Report

I was initially cynical about RAND’s involvement. So imagine how refreshing it was to discover that industry ‘stakeholders’ were not satisfied with how the work was developing. Had the research outfit gone off reservation? Decide for yourself: here is a short presentation made in Alicante, and the full report is here. If you don’t have the stomach for it, here are a few things that I gleaned:

(i) Firstly, it contains no estimates as to the size of the market in counterfeits or the impact of  file sharing – referred to as unauthorised use of protected content (UUPC) – on the relevant industries or wider economy but is focused on building a methodology. As a result they address the lack of methodological and data transparency inherent in previous reports:

“Often the lack of clarity in fully describing the methods, assumptions and data underlying them constitutes a major barrier to an independent assessment of the statistical consistency of the results. This issue was also highlighted by earlier research efforts on the topic (e.g. OECD, 2008, p.78). In other cases, in the reports that produce the estimates reviewed above, more substantial issues remain poorly addressed from a scientific point of view” (P.17)

Later they extend their criticism to the limitations of the analytical frameworks more generally:

Overall, one of the main weaknesses of some of the existing estimates of the effects of counterfeiting and piracy on macro-economic variables such as GDP and employment is the assumption of a 100 percent substitution rate between counterfeit and genuine products – see for example the OECD (2008) critique of a 2005 IDC study. In addition, one aspect that seems to be systematically excluded from existing studies is consumer surplus. Consumer surplus refers to the welfare benefit of getting access to a substitute good at a lower price, while many studies consider the negative effects of counterfeiting and piracy on consumers (unemployment and health and safety risks) and on producers (lost revenues). Huygen et al. (2009) provide an example of a comprehensive treatment of the distribution of welfare effects and of their net balance (i.e., the balance between costs and benefits) in the case of file sharing (Huygen et al.,2009). From an economics point of view, any study that neglects consumer surplus in a welfare analysis is incomplete. (p.34)

(ii) Their own model (outlined in pages 41-65 of the full report) uses of sales forecast data generated internally by companies in affected sectors. Actual sales achieved are then deducted from the forecast numbers to identify the difference. Part of this discrepancy will be explicable retrospectively due to changed market conditions (e.g.  the arrival of new competitors, foreign exchange rate variations etc.) But one part will remain, an ‘unpredicted forecasting error’ some of which will derive from the substitution of product sales by counterfeit alternatives.

The result of this first process is then object of a second analysis to try to identify the amount attributable to counterfeiting for a specific product and national market. A series of factors are used in the regression: (i) rule of law (ii) corruption (iv) government effectiveness (iv) customs (v) tourism ; relevant metrics are obtained from international organisations such as the IMF/WB. These factors are presumed to have an effect in encouraging or deterring counterfeit trade.

(iii) Their assessment is  that the model is better suited to dealing with physical rather than digital goods, principally because of the difference in the utility and reliability of sales forecast data, but also because of the ease of supply and movement of digital goods.

(iv) Few firms were willing to cooperate with them to test drive the model, largely because of fears regarding control over commercially sensitive data. No digital media companies took part. Ultimately only one physical good manufacturer (unnamed) provided a full data set. The results obtained initially diverged strongly from the firms own research which had been conducted using mystery shoppers, whereby goods are purchased and then analysed for authenticity (apparently the gold standard in this field, but expensive to operate). Once the data was cleaned of severe outliers, it tracked the mystery shopping research more closely.

Consequences?

The Commission is now in a tricky position: they’ve paid RAND at least half a million for this and cannot simply sweep the results under the carpet. RAND have designed a model for use in real markets and products, rather than simply accepting that ‘piracy and counterfeiting’  are costing ‘Europe’ trillions of euros and hundreds of thousands of jobs. My guess is that it will now be minimised. What if any effect this will have on the IPRED review, due imminently, is uncertain.

On VPNs, Filesharing & Illusions

Over the last while I’ve been checking out cryptoparties. As a forum for the self-education of users regarding online risks it has potential as a useful format, although it will need to avoid the temptation to drift into security-flavoured machismo. As it happens I think that those who could most benefit from it are users who are either inexperienced, mildly technophobic, or both. But in order to serve that constituency the delivery needs to be pitched at a specific, actionable level. More on that another time, perhaps. For now I want to make a couple of comments about a frequent topic which arises in that milieu, namely filesharing and anonymity, and VPNs (Virtual Private Networks).

VPNs can help protect the security of your communications with the network, and allow you to circumvent geo-blocking (where access to a resource is limited to those in a specific country). So far, so good. But there is a misconception circulating that use of a VPN provides a fail-safe cloak for filesharing, an error which is cultivated by the VPN companies themselves trumpeting claims that they keep ‘no logs’. This is obviously false. Otherwise every kiddie-porn trafficker, carder, scammer and spammer would be good to go. Companies operating retail VPN services have an obvious need to prevent such uses of their networks. Otherwise they would be blacklisted by those they purchase services from upstream. Secondly they will have to deal with police investigations and court orders consequent to criminal prosecutions.

The delivery of subscriber data on Lulzsec participants to police in the UK last year by Hidemyass is a case in point. I doubt any other service would have behaved much differently, unless they’re so shady that such stuff pales in comparison with what they and their other customers are up to – and you might think twice about transacting with such people. There may also be a services out there which are currently following another policy and who have not yet been brought into line, but that’s a matter of time: the court cases will come.

When No Logs Means… Just a Little Logging
When VPN providers say they keep no logs, they mean that they are not watching your traffic, but they will certainly know when you *log on* and *log off* their service, because such information is useful for them in managing their own network, supplying consistent quality of service and identifying abusive users so as to eject them. In many jurisdictions they are required to keep logs by law, as is the case under EU Data Retention and US Anti-Terrorism legislation. That said, there are wrinkles as to how long the logs must be retained, and this is an evolving legal question (the situation in Germany for example is in flux). This log data connecting a user with an internet protocol address is the information required by copyright enforcement agents who will have collected the other information necessary by observing your activity on whatever protocol you use – they just need to identify you.

What VPNs can change is the jurisdiction to which your virtual identity will be subjected if observed by a potential complainant. Copyright law is territorial, not as is sometimes wrongly put ‘international’. There are international treaties, and in the EU a process towards harmonisation, but court cases will be held in national courts and decided under national law. There are countries where copyright enforcement is still not regarded as a priority, or where the media companies have not installed an efficient processing infrastructure. This may be useful if you live in a place  with an enforcement apparatus industry. Even in Europe some jurisdictions may only require the handover of subscriber data if the complaint is criminal in nature, as has been the case in Spain, and thus will not stretch to common garden copyright infringement cases. But overall the situation of a VPN and an ISP are similar; they are both middlemen, the former is just more nimble in terms of setting its virtual location. In some cases ISPs are also willing to test the demands of complainants in courts because they have more resources, and interests, to do so.

With a little digging one discovers plenty of testimonies online by users who have had had their VPN service discontinued because their provider has received complaints under the Digital Millenium Copyright Act in the US. In fact, if one bothers to actually read (!) the Terms of Service, P2P and torrenting of copyrighted material is often listed as grounds for disconnection. Nobody is going to take serious heat to protect your mass entertainment supply – it’s not exactly wikileaks territory.

Fool’s Gold
If you want to snarf the latest Hollywood blockbuster, there is no technical silver bullet to guarantee that will not get grief. It has always been the case that the best protection in such scenarios lies simply in the huge numbers of people doing it. The likelihood of getting caught is low, but some people will. Ultimately this will only end when the current copyright are repealed. Until then (!) the more obscure and bounded the place where you’re trading files, the less likely it is to come under the radar; the internet is a big place with plenty of poorly mapped territories – check it out!

What I find wretched is that VPNs are just the latest in a sequence of products shilled to P2P users. First it was companies giving out malware-infected p2p clients, and making millions. Then came the direct download sites, distorting filesharing into a form of  FTP with a client/server architecture, and hitting the till register as they sold premium accounts – more millions. Next it was the turn of those peddling all you can eat Usenet subscriptions. Now is the time of the VPN spivs, trading on people’s fears.

What all of these companies have in common is that they want to sell you something you can either have for free, or that can’t be bought. Total anonymity in combination with high performance is simply inherently contradictory. You won’t enjoy torrenting over Tor! Anonymity ‘for hire’ is good only as long as you are faced with adversaries without sufficient motivation or resources. To believe otherwise is to delude yourself. As expert cryptoanalyst Bruce Schneier wrote:

“If you think security can solve your problem, then you haven’t understood security, and you haven’t understood your problem.”

Word.

——

ps No comments marketing commercial services please.

Pirate Effect Rolls Through Nordrhein-Westfalen

This post will be updated as more statistics become available. Otherwise I want to ignore the PP for a while, although it’s difficult being currently in Germany.

As predicted the Pirate Party surpassed the 5% hurdle yesterday in Nordrhein-Westfalen (NRW), winning an estimated 7.8% of the vote. This is their fourth successful election since the breakthrough in Berlin last September. That boost entirely changed their fortunes; just two weeks beforehand they had scored under 2% in the regional elections in Mecklenburg-Vorpommern, a figure around which they orbited in polls in Bremen, Rheinland-Pflaz and Hamburg earlier in 2011. But since Berlin they have entered regional Parliaments in Saarland and Schleswig-Holstein, and the NRW result is of particular significance due to its size – with 18 million inhabitants it is Germany’s most populous region by far, and has a greater population than all the former GDR regions combined.

Foreign media coverage understandably focuses on the scale of the CDU’s defeat and its consequences for Angela Merkel – its 26% represents its worst result in NRW ever – and the attainment of an absolute majority by an SPD-led coalition with the Greens. Once again, however,  the Greens have failed to capitalise on the weakness of the government and the return to prominence of environmentalist themes after Fukujima. Once the voter analysis comes in the reasons for this will be clearer, but it is certain that the alternate pole of attraction constituted by the Pirates is in part responsible.

Analysis of the PP Vote in Schleswig Holstein

Research produced after last week’s election in Schleswig-Holstein sourced the PP votes as follows:

CDU 14,000

FDP 14,000

Green: 13,000

SPD 10,000

Left 6,000

Others 6,000

Non-voters 11,000

First-Time Voters 6,000

Source: Infratest-dimap.

An analysis of voter choices correlated to social position suggested that the Pirates strongest constituencies are amongst workers and the unemployed, where they took 14% and 15% of the vote respectively. Interestingly the two parties most likely to lose votes to the PP were the Greens and the FDP (liberals), but the basic lesson of this research is the capacity of the PP so far to gather voters from across the ideological spectrum.

Copyright Bunfight

In response to the electoral emergence of the PP the debate around copyright in Germany has restarted in earnest. On Thursday the weekly newspaper Die Zeit published a letter titled “We are the Creators” where they condemned the ‘profane theft’ of intellectual property – characterised as a ‘great achievement of bourgeois freedom against the dependency of feudalism’ – defended the role of the publishers and other intermediaries commercially exploiting copyrights, and decried those who would use the net as an excuse for ‘stinginess and malice’. The coordinator of the letter campaign is himself not a ‘creator’ but rather a literary agent, suggesting a simple, albeit cynical, explanation for the vehement justification of the publisher’s function. In any case more than 3000 ‘creators’ signed up to the cause.

How such generalised reprimand of the public will be digested amongst the hoi polloi remains to be seen. History may have created a class of authors and publishers with the coming of bourgeois society, but it might be that in the digital era the masses have decided that they themselves are creators, and that the time for a further alteration of property and power relations has arrived …

For the moment however the talk is not of a revolution in property rights,  but rather copyright reform: ‘We are the Citizens‘. Likewise the PP’s current copyright policy is distinctly moderate:

• shorten the term of protection from the (current) life of the author plus seventy years to life plus ten;
• terminate all  transfers to an intermediary for exploitation after 25 years, returning the rights to the author;
• make any licensing assignment valid for those media known at the time
• stop prosecuting/pursuit of filesharers on the basis that it is merely reflects the current industry’s incapacity to satisfy demand.

Henceforth the policies of all political parties as regards the internet and communications will be a matter of public scrutiny, and irrespective of how one may feel about the Pirates in a more general sense, for this at least we have them to thank. Effectively they have attached a cost to coziness between political parties and the vested interests who would seek to have the net regulated for their profit. Last autumn members of the CDU were still floating proposals for a local version of the Hadopi/3 Strikes regime, but in the light of the election results, and the scale of the protests against ACTA, such a proposal is now clearly toxic and can be excluded.

While the political strategies of the copyright lobby find themselves blocked, the situation in the courts remains a concern. In April, for example, the regional court in Hamburg found in favour of the German rightsholders organisation GEMA, imposed a form of secondary liability (Störerhaftung) on Google  for works posted on Youtube without authorisation. The court required that they institute measures in addition their existing content-id system to keep works off the site, specifically a word filter which would block other versions of songs for which GEMA hold the rights, and that GEMA are not obliged to use content-id as a means of controlling infringing uses. The continuing failure of GEMA and Google to reach an agreement on royalties means that pop music available on the platform elsewhere in the world remains blocked on the German site. Other authorised services such as Hulu and Netflix are not available either.

Domestic Trifles Over: Please Return to the Economic Meltdown

With the elections are over discussion will return to the Eurozone clusterf*ck, a matter to which most Germans seem to pay little heed at least while the economy remains strong. This week however the matter may receive some attention as social movements mobilise for demonstrations against the European Central Bank and financial sector in Frankfurt, protests already forbidden by the city…

More Booty for the Pirate Party in Germany

Last Sunday state elections took place in Schleswig-Holstein (SH) in Northern Germany. When the votes were counted the Pirate Party had taken 8.2 % of the vote, thus entering its third State Parliament after earlier successes in Berlin (8.9%, September 2011) and the Saarland (7.4%, March 2012). Next weekend is the turn of the biggest German region to vote, Nordrhein Westfalien, current polls put the PP at around 9%. On this form they will easily surpass the German electoral threshold of 5% and enter the federal parliament in 2013.

Losers in this election were the liberals (FDP) and the Left (Die Linke). The Green Party increased its vote only marginally, haemorrhaging support to the PP – amongst the six Pirate representatives elected in SH is Angelika Beer, a former national chairperson of the Greens. Given the latter’s intention to form a coalition government with the SPD in 2013, the continuance of this slippage to the Pirates is the most significant fallout of the election. In the case of SH, the SPD & Greens will now only have a majority with a third coalition partner, the Danish minority party, SSW.

Who Are the Pirates Anyway?

So far the actual political character of the PP has remained unexplored. In the first place because media attention has focussed on their novelty, a sort of ‘party of the internet’, and predictable jokes about, well…. pirates. Secondly, their development of a full electoral programme is recent and their membership is increasing rapidly, so it’s difficult to anticipate where things will settle. Thirdly  they have not been cónfronted with the dilemmas of power such as to force them to reveal what unnegotiable convictions, if any, they hold. As the current beneficiaries of the floating vote, this enigmatic aspect is undoubtedly useful.

The strange alchemy of the organisation is indicated by the composition of its new national leadership. Bernd Schlömer, the new party chairperson, studied criminology and is now employed at the Department of Defence, responsible for academic training at the University of the Federal Armed Forces. Meanwhile Johannes Ponader was elected as political secretary, an unemployed actor who has a past in the Basic Income Network and was a prominent representative at the Occupy Berlin! encampment last winter.

Buzzwords: ‘Participation’,'Feedback’, ‘Transparency’.

What binds together the disparate elements seems to be an enthusiasm for process, modernising zeal, and a jejeune conviction in the possibility of rational solutions to social problems. And of course affection for machines.

This process enthusiasm is materialised in Liquid Feedback, a software tool for grassroots policy formation and debate. The system enables a multi-level delegation of one’s vote to others whose opinion one trusts. This is understood as an instrument of internal democracy and a channel for ‘feedback’ – a term rooted in cybernetics where information outputs are recycled for purposes of system self-correction.

‘Engineering culture’ is also visible in the party’s emphatic attachment to evidence-based positions; against drug prohibition; secular; in favour of markets where they work; open to alternatives where they don’t. Questions cannot be answered in the absence of data, consultation and logic. Such a mode of discourse allows a form of self-presentation as pragmatic and beyond left/right – a profitable attitude for a group currently taking voters from all parts of the political spectrum.

Paradoxically, for a party nominally identified with pirates, its members express great enthusiasm for citizenship, ethics and reason in a period where such traits seem a bit quaint and certainly in decline. It will be thus interesting to observe how the PP deals with the irrational, shady, treacherous reality of Politics, where being just piratical is common coin.

Debugging Democracy?

So what of this cybernetic rhetoric of deliberative democracy?

Critics of cybernetics have argued that taking the machinic as the metaphor for the social leads its adherents to relegate agonistic politics to an anachronism, capable of being transcended or side-stepped via technical refinements and better information. Fred Turner has offered a critical history of the utopian rhetoric of ‘cyberculture’, tracing its rhetoric of participation, frictionless markets and self-organization to the encounter of one part of the sixties counterculture with the post-war scientific community, an encounter enabled by the universalizing metaphor of systems analysis and the language of cybernetics.

In “All Watched Over by Machines of Loving Grace”, filmmaker Adam Curtis takes Turner’s narrative and extends it to critique the claimed political potential of network orchestrated action, taking the failed uprisings (?) in the Ukraine & Kyrgyzstan in 2004/5 as emblematic. In his view, the weak structures of technologically enabled self-organisation form an inadequate counterweight to the power  of the vested interests who currently dominate decision-making.

What this analysis elides is that self-organization need not be limited to online ‘movements of opinion’ and occasional mass theatre. Digital tools are, and will be, central to any  mobilization which entails the formation of real-world social bonds. Recent social movements such as M15 in Spain and Occupy Wall Street prefigure this, as does the PP in the realm of classical politics. Whether either can be effective in achieving their ends is another matter.

Reality is not a Perfectible Machine

Any temptation towards cybernetics in the PP is leavened by the desire for a new public sphere – the net as the new coffee-house of bourgeois democracy – and experience of political institutions and processes which have impeded or warped the potentials enabled by technology and networks.

Nine pieces of European legislation have extended the scope and duration of copyright in the last twenty years, fruit of private sector lobbying. Their beneficiaries, owners of the media platforms which have dominated public imagination (and politicians’ careers) since the war, are understandably unreceptive to arguments as to their own obsolescence. In Germany copyright enforcement has become a veritable industry of ‘notice and shake-down’. Elsewhere, the PP are deeply opposed to the collection of personal data by state and private parties, and to the extension of surveillance culture.

These issues are enough to provide a thorough lesson in the dynamics of politics and the non-neutrality of state action. Should the PP hold the balance of power in 2013 I would expect these two themes to be the ones on which they refuse to budge, and if they play hard they could achieve a result. But the limits to their oppositional nature are illustrated in Schleswig-Holstein where they have offered limited support to the new coalition provided neither increased state surveillance or data retention are part of the programme for government. Some of those who voted for them as a protest may be disappointed, ultimately the PP are more pragmatic than refusenik.

Library Closure of Type .nu

Apparently now is a time of reckoning for the ‘one click’ hosting services which have come to dominate filesharing since around 2005. While attention has focussed on supersized Megaupload operator Kim Dotcom and his bizarre universe, other more discrete circuits have also been closed. Library.nu, an enormous collection ranging from bestsellers to truly arcane academic titles in all formats, yesterday announced its own epitaph .

Books have always been available online; when I first got access to Usenet in 1992, some of the first things I came across were Bruce Sterling’s ‘The Hacker Crackdown’ and Hakim Bey’s ‘Temprary Autonomus Zone’, cult titles amongst early internet users. Books were inputed laboriously via keyboard and posted as .txt, first on usenet, then the web and ftp. Scanners were still in short supply at that point, and OCR software underdeveloped, but as they dispersed and improved the number of works mushroomed. But the delivery method was inconvenient, requiring the reader to remain at their screen or print to dead tree. Other larger collections were assembled, such as textz.com, which eventually ended up in legal wrangles with rightsholders.

With the growth of file-sharing into a mass phenomenon in the middle of the last decade, dedicated book sites appeared, sometimes linked explicitly to complaints about access and cost. This was the case with the Danish vidensdeling.nu founded in August 2005 to provide a platform for students to share course books. Publishers immediately shut the site down. A similar site in the US, Textbook Torrents launched in 2007, was closed in the summer of 2008 after an article in the Chronicle for Higher Education led to threats of legal action against its creator.

Ebook Readers, Meet Direct Downloads
Prior to the release of mass market book readers, the mainstream publishing industry felt relatively unaffected, but they understood that as the devices made their way into users’ hands they would find themselves losing control in a replay of the music and film sectors. As torrent sites came under sustained pressure, and their users were targetted with legal action, many closed or became private clubs. Direct downloads filled the gap left in their wake: requiring no software installation they were simple to use, and due to their FTP structure their users were not connected to a network transparent to monitoring and potential identification. Whilst these sites limited the quantity non-paying users could access, the small size of books vis a vis movies made such sites playgrounds for book fans. As Amazon ramped up marketing and volume on the Kindle, and then tablets like the iPad took off in popularity, the bumpiness in the user experience of digital text diminshed, and the protective buffer around the publishers receded.

With this in mind the German Boersenverein developed a strategy in winter 2008 which was subsequently circulated to Publishers’ organisations internationally the following spring. Here they outlined an approach which combined political lobbying with stigmatization of unauthorised copying of books. Parallel to this they proposed to increase the availability of authorised ebooks, and to instigate a legal campaign against “systematically ‘suitable’ services”, one-clicks hosts in particular. In this manner the demand then flowing towards pirate sites could be intercepted and rerouted by an industry doing a better job at supply.

To this end a relationship was established with the Lausen legal practice in Munich. The first target was Rapidshare: in 2009 they campaigned to have the site blocked by German ISPs. Unsuccessful on this score, a group of national and international publishers initiated legal proceedings, represented by Lausen. In February 2010 an injunction was obtained from a court in Hamburg ordering the removal of 148 works from Rapidshare (many of them also text books) and further monitoring to ensure that the works did not reappear. As some titles continued to be available, the plaintiffs brought rapidshare back to court, where the latter were fined 150,000 euros in December of the same year for failure to comply with the terms of the injunction, and not having introduced adequate filtering mechanisms.

Curtains for Library.nu
In 2011 Lausen and the publishers turned their attention to library.nu, a site providing a central register of books available for download from a series of direct download sites and active since 2006. An article published in the Sunday Times in mid-December last reported that the operators of the site had been traced to Galway, Ireland, and that one of the addresses provided to the domain registrar was the headquarters of Anglo Irish Bank (the administrator obviously has some sense of humour as Anglo was the biggest crap-out of the property bubbble collapse).

Between Christmas and New Year the publishers successfully applied for a series of court orders at the Landesgericht in Munich. Apparently the orders to cease and desist were passed then to Ireland in the last week. The plaintiffs are claiming that library.nu was a massive commercial piracy operation making eight million pounds a year, an improbable figure given that virtually all of their income derived from advertising and donations. According to an article in torrentfreak premium membership was introduced for purchase only in November last, which didn’t leave them with much time to make hay.

Whilst the library.nu domain has not been seized, the operators have decided themselves to take it offline. According to a press release from the American Association of Publishers, the operators will now be pursued:

One positive outcome from this complicated process is that the platform operators themselves are now being held responsible as perpetrators for the copyright infringements on their sites and will therefore not merely be liable for the illegal conduct of their users. All four copyright chambers at the LG of Munich I who dealt with this issue and who promptly issued the 17 interim injunctions were in agreement on this matter.

Although how this is being dealt with jurisdictionally remains unclear.

A Blip or the End?
The tiny size of contemporary epubs makes them incredibly easy to store and distribute. As is the case with much online enforcement activity this is more about the show than the substance, intended to scare other operators and send a message to errant users. It is true that as long as these sites are structured in a centralized manner they will have a limited half-life. One would expect the recent closures to lead to a renewed interest in distributed and even quasi-anonymised systems, such as i2p.

Centralisation constitutes a honey-pot for profit-focussed pirates: without it there is no audience whose attention can be sold to advertisers, nor a fixed infrastructure on which a toll can be charged for access or better performance. It is a great irony that what began as a campaign against p2p has now had the unforeseen consequence of creating a market for a client-server system of unauthorised media distribution, thereby offering significant incentives for a particular type of entrepreneur. This client-server architecture is the very negation of the potential of the net, returning users to the role of passive customers.

On a final note, the case of library.nu is significant because the demand for the works offered there demonstrates that filesharing is not just about pop music, porn and cams of action movies, but also those forms and sources of knowledge whose acquisition are ritually celebrated within ‘enlightenment’ culture. Many of those whose works were offered derive income not from royalties, but from related activities such as teaching and research. Such people were themselves an important component library.nu’ user base. Some have other means to access the same materials, others, especially those in countries with weaker education infrastructures and more emaciated library budgets, do not. Outside of formal education, the millions of online autodidacts may be denied access to material, seriously impinging on their lives and possibilities. When one considers the cost of text books and more especially scholarly articles, that is no hyperbole, and applies not only to the global south but the post-industrial north as well, awash in its dreams of knowledge economies and human capital.

But maybe such a concern is sheer melodrama, given the likelihood of the same works becoming freely available elsewhere. Time will tell.

ACTA Hits Turbulence (Berlin Edition)

Later I will take a more analytical look at the opposition to ACTA, but having attended the protest in Berlin on Saturday last it feels important to take note of what an unprecedented success it was. Similar dynamics are in play elswhere and understanding them is going to take some dowsing as well as reason, so a few observations on the mood appear pertinent.

The Long March of the Internetz

On Saturday I took part in the demonstration against the Anti Counterfeiting Trade Agreement in Berlin, a Treaty which has not yet been either signed or ratified by Germany. In advance my guess was that the numbers would be modest, a couple of hundred maybe. I had noticed the demonstrations in Poland attract tens of thousands and turn tumultuous in the city of Kielce, but wrongly interpreted it as a Polish particularity, perhaps fueled by the thusfar successful campaign against the Stop Online Piracy Act in the US together with the especially blatant flouting of any impression of democracy in Poland’s adhesion process.

In any case the size of the crowd amassed at Neptunbrunnen left me aghast, easily ten thousand. Without an aerial photograph it is difficult to convey the scale of the crowd but this video gives some idea. The video-still below is my own and shows about a quarter of the crowd.

What was striking about the composition of those present was the large proportion of teenagers and, interestingly, many young women; the Pirate Party, who have been ridiculed for their atrocious gender imbalance, will have glimpsed some potential for salvation… Other than a few knots of guys who looked like they could be in a German version of the “IT Crowd”, those braving temperatures of -8 degrees were an unexpectedly heterogeneous lot, defying the tendency of protests in Berlin to attract only the usual suspects.

Since the anti-SOPA blackout ACTA has garnered attention that must make its proponents very concerned, up until recently it seemed destined to roll through amidst the disinterested complacency which usually accompanies the ‘creative works’ of the bureaucracy. The raid on Megaupload, the rejection of an appeal application in the Pirate Bay case, and the ongoing legal racket demanding ‘compensation’ from German computer users accused of file-sharing, cumulatively provided ample grounds that any treaty touching on copyright was grounds for concern.

Anonymous helped bring the thunder to the online propaganda, and V masks to the party on the street, as ever an admixture between circus, mischief and ambivalent gravitas that is ‘their’ hallmark. In addition to denizens of online communities, the Chaos Computer Club and Occupy Berlin, the protest was supported by several political parties: Pirates, Greens and the Left (Die Linke), and even the youth wing of the SPD. Although the PP’s result in the last city elections was almost incredible, this is the first time there has been a mass mobilisation around the issue at its core. But those on the streets were by no means all PP supporters, and other Parties support for the protest suggests the reverberation of the vote is making an impact: the PP will not be left the copyright field to themselves.

En Marche
After speeches by a cabaret artist, a wikimedian, and some digital civil rights activists, it was time to hit the bricks. Somehow at the moment of departure two banners ended at the front, the first one, modest in size, stated: “Save Europe from ACTA” and was branded with the website of the clicktivists, Avaaz. Behind was a larger block with a more contestational message: “Property is Still Theft!” This was borne by a rather large group of left-libertarian teenagers (Out of Control?), and they remained at the head of the demonstration all afternoon chanting “Liberty, Liberty, Total anarchy!”, “We want… to copy… everything!” and “State, Nation, ACTA – Shit!” . post-nationalism, here we come?!

The route was selected to pass by the HQ of the pharma lobby and the national affiliate of the IFPI (music industry). Initial attempts to get to the latter were blocked by police and a gentle fracas ensued. Subsequently the second half of the crowd was allowed to reach the IFPI office, where a speech (by a member of the intriguingly named Hedonist International) lambasted the music majors for both encroaching on users’ online freedom and siphoning off the lion’s share of revenues for themselves, rather than the artists they purport to support.

Obviously overwhelmed by the numbers, neither organisers nor police were adequtely prepared; for the former this meant that the speeches were not heard from where I was positioned; for the latter it was a bigger problem as the crowd started to slip out of control, perodically charging ahead, gleefully, on the count of three, as if determined to get the forces of order out of breath.

Die Fahrt ins Blaue, or, Just for Lulz
At Hausvogteilplatz – official end-point of the procession- the advance section of the crowd found itself blocked from proceeding towards the Foreign Ministry. A large group decided not to linger, descending instead en masse into the subway station, pursued by harried riot police. Re-emerging five minutes later after some antics on the platform, they took off on an impromptu wildcat march, shutting down a major boulevard, and breaching the enclosures around an enormous building site to invent an unmapped route to the museum district before returning, panting, to Alexanderplatz. All, of course, accompanied by a continuous chants of “ACTA – Scheisse!”, and pursued by police. There was however no confrontation, instead it was like a game, the city as funpark, and a brisk wander attentuates the effect of icy temperatures.

Further speeches (in German) were held at Hausvogteilplatz, which might tempt a comparative assessment of the relative efficacy of sober pronouncements and instinctual creative chaos, but this doesn’t seem particularly germane as no contradiction materialised between the different styles. Stephan Urbach spoke of how the net was built on the sharing of data, its remixing, and further redistribution thereafter. A rave then broke out amongst a part of the crowd. Elsewhere in Germany the demonstrations ranged from massive in Munich and Hamburg to just ‘very big’ in others such as Frankfurt, Nuremburg, Cologne and numerous others. Similar gatherings took place all over the continent.

In Europe the last obstacle to the formal passage of the Treaty is the approval of the European Parliament, anticipated to climax in early summer. Current president of the EP is Martin Schulz, who has already started making disapproving noises about the treaty. If events of the last month are any guide, the outcome may not be as certain as was thought. And irrespective of the fate of ACTA itself, this campaign is going to make the introduction of further copyright enforcement measures a matter of heated public contention in the future.

Ireland’s Post-SOPA Tsunami

I have made two corrections to this post in response to comments received after intial publication. They relate (a) to Micheal Martin’s comments in the Dail, a matter clarified in the accompanying footnote and (b) the fact that the Greens had already left the coalition government when allegations arose in February 2011 that new copyright enforcement measures were to be rushed through before the election. Happy to correct any further inaccuracies.

1. Is the Statutory Instrument and Irish SOPA?
The labelling of the copyright amendment as Ireland’s SOPA has been contested by some as inaccurate. There are differences, it is true. Most obviously SOPA is designed to target ‘foreign’ websites, whereas the Irish SI (Statutory Instrument) makes no distinction between foreign and domestic web sites.

Secondly the SI focuses on copyright questions whereas SOPA takes aim at a broader range of alleged ‘intellectual property’ infringements. Participants in the counterfeit medicine trade as well as suppliers of counterfeit materials to the military and federal agencies are made subject to increased punishments. In addition SOPA is more forensic, and paradoxically thus, transparent in the terms of the anticipated consequences: IP (internet protocol) blocking (probably jettisoned at this point), exclusion from search engine results, isolation from financing via advertising or payment systems.

But it is precisely as a result of the open-ended language of the Irish legislation that there is a justifiable fear that such means could be deployed at the discretion of an Irish judge. IRMA’s behaviour – from the negotiation of private enforcement agreements with Eircom to their current suit against the Irish state for the losses sustained as a result of unauthorised uses – indicates how ill-advised it is to make available such an unbounded instrument for their use – these people have just got a bad attitude.

Fianna Fail’s leader Micheal Martin said Sherlock was ‘perhaps not perfectly’ handling the ‘issue’^[1], which might appear unduly mild unless one recalls the allegations published in Siliconrepublic last February. Therein it was rumoured that the then Fianna Fail/Green coalition minority government intended to rush through copyright enforcement orders via Statutory Instrument just as they were about to be booted out by the electorate (this claim was later rejected by then minister Mary Hanafin).^[2]

Apart from the concerns about the substantive questions about legal consequences, there is a problem with method. When it takes a Freedom of Information request to discover that Enda Kenny held a private meeting last summer with the new head of the Motion Picture Association of America, former Democrat Senator Chris Dodd, then the suspicion that vested interests are intervening in a surreptitious manner to shape the law is fully justified. All the more so when it happens quietly in Castlebar ^[3].

A pattern emerges in the history of attempts to prevent users from sharing files, that of keeping the public at a safe distance from decision-making: private agreements between companies in the digital media market, closed-door audiences for lobbyists with political leaders, secondary legislation requiring no official vote so as to give form to the policy conclusions.

2. The Fight Against ‘SOPA Ireland’
StopSopaIreland went live on the evening of January 23rd, providing information on the amendment, a petition to register opposition, and appealing to users to contact local politicians. Within a week the petition had garnered 75,000 signatures, 50,000 of them identified as coming from Irish internet protocol addresses.

On the night of January 25th, a series of government websites were targeted and shut down by means of a distributed denial of service attack; twitter account AnonOpsSweden identified it as a response to the copyright proposals. In response to a question by independent TD Catherine Murphy, a fifteen minute exchange took place in the Dail on January 26th, and Sherlock later announced that a longer debate was scheduled for the 31st. As the campaign picked up steam a call circulated for a demonstration in Dublin on January 28th.

Demonstration against SOPA/ACTA & the Copyright Amendment, Dublin, January 28, 2012.
Photo by Dara Robinson.

Another demonstration has now been called in Dublin for next saturday February 4th, a day which will see coordinated protests against ACTA worldwide.

In an echo of the SOPA campaign there is an interesting contrast between the mood in online and offline media, and the a perceivable shift in the sense of how influential they are respectively. Forums such as boards.ie, and online only news operations such as thejournal.ie and broadsheet.ie have been important platforms for criticism of the proposals, whereas an earlier generation’s not especially informed attitudes can still call the print press home.

3. Empty Disavowals
For the reasons explained in section 1, Sean Sherlock’s protestations that the amendment is nothing like SOPA are unconvincing. He and his department have issued a bizarre commentary to accompany their draft amendment, which nominally purports top demonstrate why it is not like SOPA. This statement opens with the patently untrue claim that

‘We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with’

because online copyright enforcement by definition means a limitation on that freedom. And there could be a reasonable argument as to whether or not that is appropriate, just as there is, for example, in the area of child pornography.

So why dissimulate, why can he not just spit it out and say ‘we are going to limit the freedom to do what you want on the internet and place obstacles to the free exchange of data because we believe that copyright protection wins out’? The answer of course is that the politicians are fearful of how that will make them appear in the public eye. They have watched the anti-SOPA tsunami break land in Washington DC and don’t like the look of what it has left in its wake.

Of course were they to be clear about this they would have to provide a justification for their reasoning. As pointed out by ALTO the government has not carried out any Regulatory Impact Assessment to assess the results of the proposed change. Therefore any economic basis for the change can only come from figures provided by one or other of the industries implicated (and the figures bandied about seem to emanate exclusively from the music industry), or else from some other source which has not been made public.

Rather than acknowledging what is obvious to even the most cursory examination of the copyright debate, that there is a fundamental disagreement as to the legitimacy and necessity for copyright as currently constituted, the commentary continues with a massive bluff:

“Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.”

But the SOPA saga demonstrates that this is untrue. So does the long fight against the HADOPI three strikes law in France. As do the massive demonstrations against ACTA in Poland last week. And so does the continued popularity of filesharing as a phenomena despite a massive and sustained attack on its participants through legal action and propaganda presented as ‘education.’ And what about the legions of lawyers and economists opposed to measures strengthening and extending copyright, some of whom are against it altogether? Don’t pretend there is a consensus of ‘reasonable people’, that’s a fiction. The ease with which these initiatives previously passed had more to do with how their content and consequences were concealed from the public, and the lack of enthusiasm on the part of industrial era media companies, themselves amongst the greatest beneficiaries of the copyright ratchet, to aerate these debates fairly,

4. Dail Debate, January 31st
Undoubtedly the full debate will shortly be available online, but the crux of it was simple enough. All of the opposition parties (FF, SF and independents) opposed the SI, albeit for different reasons, arguing that it was inappropriate subject matter for executive fiat and merited primary legislation with a full debate, or that it should be delayed and a special committee set up to investigate.

As a practical matter independent TDs Stephen Donnelly and Catherine Murphy also submitted an alternative SI in consultation with TJ McIntyre and Simon McGarr. It contains safeguards for data protection and other fundamental rihts; limits availability of injunctions to cases where damages would be inadequate; shifts the legal and technical costs of the injunction from intermediary to applicant (copyright owner), and requires that lawful data transactions be unimpeded by any order of the court. In addition the SI would be applicable time period for the instrument to two years, during which time they would expect there to be a debate over, and drafting of, primary legislation.

Objections ranged from the impact it would have on foreign direct investment, the costs which would be imposed on websites willing to contest injunctions, that it was an error to target intermediaries rather than ‘perpetrators’ of copyright infringements, and more general concerns about the impact on individual rights and freedoms. Interestingly all speakers referred to the huge amount of email they had been receiving on the subject from concerned individuals.

Sherlock was not having any of it. He parsed the alternative SI, insisting that these concerns were either unfounded or inherently integrated in European Court of Justice cases such as Sabam v Scarlet. These limits would as a constrain against any judgicial temptation to grant excessive injunctions, and require their decisions and remedies to abide by the principle of proportionality i.e. balancing the interests involved. This insistence on judicial discretion was perhaps the most outlandish aspect of his speech. Whilst asserting that the SI did not mark any change in government policy, he went on to say that given the unpredictable nature of future scenarios, they would prefer to deal with them on a case by case basis. What he means then is that there is a new policy: judges will invent the policy on the basis of how they ‘feel’ about the matter whenever the cases should arise. Justice Charlton himself outlined the danger in this approach in the very EMI/UPC decision which sparked all this.

As regards any future primary legislation, Sherlock expressed a preference for the affected parties ‘getting together’ and listeners got a good dollop of the stakeholder palaver. Of course parties like IRMA/EMI/MPAA won’t be quite as motivated, having got a measure in the bag and satisfied themselves they can get what they want.

And In Conclusion?
Light comedy, amidst general cluelessness, was injected when FG TD Jerry Buttimer spoke of the online activists as ‘keyboard warriors, some bordering on anarchism’. But only a moment later we were brought back to reality with a bang: asked whether he planned to sign the SI or consider alternatives, Sherlock announced that he’d dealt with all concerns, would not change the wording and would be signing it into effect. He did not say when exactly.

To be continued?

¹ This section originally read: “Leader of the opposition, Micheal Martin grotesquely described Sean Sherlock’s handling of the process as ‘perfect’”. This report was contradicted in comments by Paul Sammon, (see below), based on the official record. Whether my mistake derived voices in my head or the result of poor audio is unclear. I can always hope an eventual review of the audio will vindicate me, but in the meantime gracious concession seems fitting

According to the official record Micheal Martin’s comment was:

“The Minister of State, Deputy Seán Sherlock, is handling the issue of on-line copyright, although perhaps not perfectly at this stage. So far the handling of it is giving rise, correctly or otherwise, to a damaging perception of how this country views Internet freedom.”

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² The first version of this post was corrected after a reminder from commenter Paulie Doohan that in the Green Party had in fact left the government, leaving FF on their own by the end of January 2011. Green TD Eamonn Ryan (formerly Minister for Communications, Energy and Natural Resources), blew the whistle on attempts to sneak copyright enforcement measures through the back door. Back to post

³ ‘Kenny met US online piracy campaigner’, Colin Coyle and Mark Tighe , The Sunday Times, 28th January 2012 (behind paywall). Back to post

Submission on Changes to Irish Copyright Law

See also a later post here.

In Ireland an amendment to the copyright law which might otherwise have passed unnoticed has encountered unprecedented opposition in the tailwind of the massive campaign against SOPA in the United States. Stop SOPA Ireland collected 50,000 signatories from Irish IPs for their petition in just a few days, and on saturday there was a demonstration in Dublin against both it and ACTA (which the Irish ambassador signed in Tokyo last thursday).

The change in the law will enable Copyright owners to get injunctions against any intermediary whose facilities are being used to commit copyright violations. this is achieved using language so broad as to constitute a charter for copyright owners to undertake fishing expeditions to see how far they can go in bending network enablers to their will.

In addition the law is being changed not by means of primary legislation, but through a statutory instrument, which means that its adoption does not even require a vote in either parliament or seanad (senate). Under scrutiny from the public however Sean Sherlock has scheduled a debate on the matter tomorrow in the Dail (Irish Parliament).

Last summer, I submitted the objections below to the responsible Department. I received an acknowledgment email but the content was obviously disregarded as the latest draft of the amendment is basically unchanged. Similar objections were made by groups such as Digital Rights Ireland and trade associations such as ALTO.

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I am writing to express my opposition to the proposed amendments to the
Copyright act 2000 by statutory instrument. As the same formulation is
adopted in the drafting of proposed subsections 5 (a) and (b) of section
40, and section 9 (a) and (b) of section 205, the comments refer to both
changes.

1. Due to the open-ended nature of the provisions, the way is cleared
for actions against both service providers and websites of all types
which due to their technical design may also find themselves dragged
into infringing activity. The correct means to address this is to
require the implementation of a notice and take-down procedure, as
envisaged by the legislation, but never put into effect by the Minister.

Given the history of overbroad claims of copyright infringement by
copyright holders, such a system should also include the possibility for
the alleged infringer to issue a counter-notice allowing them to defend
uses which they believe to be non-infringing. In such cases, the
targeted material should be made available online again if legal action
is not commenced within a brief period after the initial complaint.

2. The wording of subsection 40 (5) (a) and 205 (9)(a) is overly broad,
setting out no limiting conditions on circumstances where injunctions
may be imposed. It is to be noted that equivalent provisions (giving
effect to the requirement that injunctions be available) in UK
legislation require ‘actual knowledge’ of infringing activity on the
part of the service provider.

Such language is present in Statutory instrument 68 of 2003 by which the
minister implemented the relevant provisions of the Electronic Commerce
Directive. Whilst the amendment is proposed in the context of mere
conduit this is not specified in the proposed amendment, leading to a
concomitant blurring of the position with regard to the limitations on
liability for hosting and caching.