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. Leader of the opposition, Micheal Martin, grotesquely described Sean Sherlock’s handling of the process as ‘perfect’, a remark less surprising if it is recalled that there was a desire amongst the last Fianna Fail/Green coalition to rush copyright enforcement orders through just as they were about to be booted out by the electorate.

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 ^[1].

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.

Why does Sherlock 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. 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 limiting the availability and cost of injunctions, and limits the 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. Interestingly all speakers referred to the huge amount of email they had been receiving on the subject from concerned individuals.

Objections ranged from the impact it would have on foreign direct investment, the costs which would be imposed on websites in order 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.

Sherlock was not having any of it. He parsed the alternative SI, insisting that all of the concerns were unfounded and that there were adequate safeguards in EU case law such as Sabam v Scarlet such as to guarantee that Judges would not grant abusive injunctions, by requiring that their acts and remedies to be proportional i.e. by 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.

As regards primary legislation, he expressed his 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) ‘Kenny met US online piracy campaigner’, Colin Coyle and Mark Tighe , The Sunday Times, 28th January 2012 (behind paywall).Back to post ¹

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.

****************

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.

3. A reference is currently before the European Court of justice which
addresses the complex interplay of the directives in the field of
copyright, electronic commerce, data protection, privacy and fundamental
rights protected under the Charter since the entry into force of the
Lisbon Treaty: SABAM v Scarlet. A decision in expected in the autumn. An
reading of the opinion issued by the ECJ’s Advocate General has already
indicated the the level of care necessary to ensure the protection of
fundamental rights in these situations. In addition, he has also spelled
out a requirement that any system of limitation on the transmission or
reception of information online reach a standard of clarity and
specificity that the ‘quality of law’ test of the European Court of
Human Rights.

This case is particularly important as it addresses the extent of the
obligations imposed on member states by the relevant directives. Courts
in European jurisdictions have diverged as to what the obligations, or
limitations on action, are.

Given the proximity of the full decision on this matter, this is not the
appropriate time to legislate.

4. The Scarlet/SABAM litigation regards proposals to restrict the
exchange of data between users, and does not address the subject of
restrictions on access to specific websites on the part of users, a
matter which has recently been the subject of much litigation. Judicial
decisions on applications to oblige ISPs to block access to specific
websites are divergent. Courts in Austria, Denmark, Italy, Sweden and
the UK, have granted such orders; Courts in Holland, Belgium and Norway
(which has implemented the relevant EU directives) have not. Where such
orders have been granted, this has usually involved websites found to be
infringing in a prior court decision.

Amongst legal commentators there is concern that, in those cases where
such orders have been granted, inadequate weight has been granted to the
interests of users whose use of such sites are non-infringing, and as a
consequence may be disproportionate to the interests sought to be
protected. On this subject, I recommend the excellent analysis
“Injunctions against mere conduit of information protected by copyright
- A Scandinavian Approach”, by Clement Salung Petersen and Søren
Sandfeld Jakobsen, recently published in the International Review of
Intellectual Property and Competition Law.

5. The amendment contains reference to the ‘due regard to the rights of
any third party likely to be affected’. Given that in this case the
third parties likely to be effected may comprise a substantial part of
the Irish computer-using population, a statutory instrument is not the
appropriate manner by which to introduce such changes. Any legislation
in this area should be the result of a public debate in Dail Eireann
which allows all interested parties to contribute to and observe the
debate.

6. The Department has described the UPC v EMI case as the background to
the need for these amendments. In the public notification regarding the
amendments it states that it “is not about the introduction of a
statutory regulatory regime in relation to copyright infringement such
as the French “Hadopi” system or the “Three strikes” regime set out in
the Digital Economy Act in the United Kingdom.” Given that the
motivation behind EMI’s action against UPC was the refusal to institute
a privatised version of “Hadopi” which indeed was a “Three Strikes”
regime as implemented by in a settlement made by IRMA with Eircom, the
attempt to deny a link with such regimes seems disingenuous. The
Eircom/IRMA scheme was merely the application through private
negotiation of an equivalent agreeable to both parties. This scheme
enabled the democratic process to be bypassed precisely because, one
suspects, of the widespread opposition to such schemes amongst the public.

7. Here I must note that under the existing legislation, copyright
holders have ample access to mechanisms for the pursuit of those
infringing their works. Irish courts have enabled plaintiffs to access
alleged infringers’ identities via Norwich Pharmacal orders, information
enough for them to be then prosecuted for acts of copyright
infringement. That rightsholders find this legal path to be inconvenient
is no excuse for the imposition of further obligations on service
providers, obligations which will imply additional costs, expense which
will in turn be passed on to consumers.

Expansion of secondary liability in this area will have the effect of
reducing the legal certainty of service providers and erode the
willingness to innovate in this field in the jurisdiction.

8. To conclude, this amendment is imprecise, untimely, and introduced in
a manner corrosive to the public debate urgently required on this
matter. As currently formulated, it represents a threat to legitimate
interests of users, an unjustified cost risk to service providers and
intermediaries and a hindrance to innovation.

Abmahnkanzlei: Shock Troops of the Enforcement Machinery?
In Germany there exists a form of legal practice known as as an “Abmahnkanzlei“, which would literally be a legal practice which makes orders to cease, desist and compensate (Abmahnung). These have been employed by copyright owners as agents to pursue filesharers. The procedure is familiar: internet protocol addresses are collected through online monitoring; rightsholders or their agents seek a court order directing the identification of the subscriber names behind the IP address. At this point the abmahnkanzlei sends a letter to the subscriber demanding compensation and a written commitment to stop the infringing activity. The sum demanded varies according to the copyright owner involved. Apparently porn producers insist on more money than the music companies, which figures, given the potential to implicitly blackmail subscribers by revealing their identities and alleged sexual proclivities in court.

The online news portal Heise has now reported that in the last days one of the large abmahnkanzlei, Urmann + Collegen in Regensburg, has announced that it is auctioning off the right to pursue 70,000 subscribers who have already been mailed two demands and have refused to pay up. Within their system a first demand was for a sum of 650 euros. If no settlement was forthcoming, a second letter was sent demanding 1286 euros. These 70,000 letters thus have a notional value of 90 million euros. Presumably whatever amount is coerced through this sum is to be split between the issuers of the ‘warnings’ and the owners of the copyright.

An additional, and perverse, twist to this process is that there are firms specialising in contesting these claims, who offer to handle pending and future cases for a fee which ranges between 500 and 650 euros – and thousands of people have signed up. The whole setup has become a racket whose only beneficiaries apparently are lawyers.

In a hearing hosted by the European Commission last June, the Association of the German Internet Industry, ECO, reported that German Courts are now directing the release of up to 5000 subscriber identities in one hearing. They also said, and I will try and verify these figures, that ISPs are being required to identify 300,000 people per month. Obviously these are huge numbers, and one wonders why this is not a bigger issue in public discussion.

Whither Privacy?
One also wonders where the German Data Protection Authorities are in all this; in 2010 the Swiss Supreme Court ordered a company, Logistep, which does network monitoring for copyright owners with a view to instigating enforcement proceedings, was ordered to cease (see also analysis from a Swiss legal practice and Ars Technica). The case was taken by the Swiss Federal Data Protection agency. Switzerland of course is not in the EU, and the law is different, but there have been cases refusing to release subscriber information in other EU jurisdictions such as Austria and Spain.

In any case, the gigantic scale of this campaign perhaps provides another element of the explanation for the sharp increase in support for the Pirate Party. Despite it not having been a widely discussed topic during the election campaign, there are undoubtedly a lot of people who are furious about all this.

This case began in 2004 with the Belgian copyright and collective rights organisation taking a legal action against the ISP Scarlet to implement measures to stop their users from violating copyright through use of p2p software. To this end they sought to oblige the ISP to institute a filtering system which would have intervened to terminate data transfers involving works identified as copyrighted.

Decisions in the Belgian courts went in SABAM’s favour, but no-one could come up with a feasible technical scheme capable of meeting the plaintiffs requirements. Eventually the national authority referred the matter to the ECJ.

The Legal Calculus
Argument at the ECJ centred around the following issues:
(1) Both Copyright directive and the Intellectual Property Enforcement Directive established that copyright owners should have access to injunctions as a means to halt ongoing infringements, the question was – and to some extent remains – to what extent and with what consequences.

(2) The eCommerce directive set out clear limitations to the liability of ISPs, including cases where they act as ‘mere conduit’ for data transactions in which they are not direct protagonists but merely instruments of their users. In addition to sveral enumerated safe harbours, the eCommerce directive also limits the legislative discretion of individual states as regards the obligations of ISPs in Article 15:

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating unlawful activity.

(3) Monitoring users’ data traffic involves the processing of personal data as protected by European Data Protection directives, which consequently must be taken into consideration in assessing the validity of any proposed filtering scheme.

(4) Multiple rights and freedoms protected under the European Convention on Human rights and the Charter of Fundamental Rights of the European Union (which became part of EU law in 2009) are implicated in the adjudication. On one side the property rights of the copyright owners, on the other the rights of privacy and freedom of expression of internet users, and the freedom to conduct business of the ISP.

Round 1: The Advocate General’s opinion
Cases sent to the ECJ are first analysed by the office of the Advocate General, who produce an advisory opinion for the Court, which is not however bound by either its mode of analysis or conclusions. The examiner in this case was the spaniard Pedro Cruz Villalón. His attention focused on the question of the consistency of such injunctive relief with the Charter, and his conclusion was that it was noncompliant and in breach of the principle of legality on several counts. At the core of his opinion (in french) was a criticism of the general nature of the surveillance system sought by SABAM, its lack of proportionality and indefinite duration. Having resolved the question by reference to the Charter, he did not delve into the conflicting provisions of the different directives.

Round 2: The ECJ decision
The ECJ however elected to approach the matter the other way around, dealing first with the question of Article 15 of the eCommerce directive. An indication of the result is already provided by the framing given by the Judges to the proposed filtering system, which abounds with red flags:

29. … a system for filtering
– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

Indeed it only takes another six paragraphs for the scheme to be definitively struck out:

36. In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as an ISP, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see L’Oréal and Others, paragraph 139).

The Judges then proceeded to deal with the vying rights and freedoms under the Charter.

43. The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44 As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.

45 More specifically, it follows from paragraph 68 of that judgment that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

46 Accordingly, in circumstances such as those in the main proceedings, national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.

Reference to Article 16 caught my attention as it was not mentioned at all in the Advocate General’s opinion. In addition it is raised as the first countervailing factor weighing against any absolute vindication of the copyright owners’ rights. Next up are the rights of individual users:

50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

Ringside Reaction
SABAM have issued a press release with the somewhat misleadinbg title ‘Authors worried about the decision by the Court of Justice of the European Union’ (which authors exactly?), wherein they announced that they are going to lick their wounds in private and reflect on the options left open to them by the decision.

Meanwhile the IFPI took the opportunity to emphasise that the decision reiterated the sanctity of copyrights online and that the problem here was merely in the overbroad nature of the injunction sought by SABAM, and would not undermine either their three strikes schemes or pursuit of so-called rogue sites.

La Quadrature du Net hailed the decision:

At a time of all-out offensive in the war against culture sharing online, this decision suggests that censorship measures requested by the entertainment industry are disproportionate means to enforce an outdated copyright regime.

They also point to the more general landscape in which the decision occurs, specifically the current passage of the Anti Counterfeiting Trade Agreement and the upcoming consent vote regarding the Treaty at the European Parliament.

Naturally Belgacom, the current owners of Scarlet also expressed satisfaction with the result, which comes more generally at a time when rightsholders have been trying to corner ISPs into more intense policing of their users, an operation to which the European Commission has also been party.

It’s a Knock Out
In sum this is a rare occasion to celebrate as regards legal developments concerning online freedom. This decision will have an important impact on national jurisprudence throughout the Union, and will put pressure on legislators to tailor any further copyright enforcement measures with at least some regard to proportionality and fundamental rights. Of course there are other fronts to this battle, notably the current hysteria about so-called rogue sites. At a later point I will provide an EU-wide survey of the situation in that regard, and of course there is legislation pending on the same theme in the US.

For other coverage see Glyn Moody’s report, IP Kat, and the reaction of the European Digital Rights Initiative.

The 2009 campaign marked the first time that online public sphere began to be taken seriously as a factor in the vote, and through a combination of their intense social media presence, popularity amongst young voters as expressed in online polls and the general emphasis on network politics the PP became positioned as the ‘party of the internet’. Germany has a distinct engineering culture due to the scale and centrality of its technology-driven industries, and the PP drew heavily from this pool both in terms of activists and policy relevance, but this narrow techno-fetischism also constituted an inbuilt limitation to their appeal.

2011 was different. What was immediately striking about the PP’s poster campaign was its playful tone, self-irony and lack of focus-group sleekness. So much so, that the whole thing looked initially as if it might be a prank. Notable also was the expansion of the issues addressed: this was not an agenda of pure technophilia: posters laid out their support for a guaranteed basic income, decriminalisation of drugs, secularisation and increased transparency in political administration. In addition they proposed the introduction of city-wide free public transport, and set out alternative ideas about education in a country witnessing declining graduation at third level in comparison with the preceding generation.

“Why am I hanging here? You’re not going to vote anyway!”

How the Right Came Unstuck
I think it’s difficult to grasp what happened in Berlin without an understanding of the wider national political climate as well as local factors in the city itself. Since their election in 2009 the CDU/FDP coalition has met a series of defeats on a regional level. Two issues in particular have occupied public attention with devastating consequences for the government.

The first is the fight over the construction of a new central train station, Stuttgart 21, in the regional capital of Baden Wurttemberg. Opposition by a broad alliance of environmentalist groups culminated in the occupation of a green area, subsequently evicted amidst massive police violence. Clashes on demonstrations are not unusual in Germany, but on this occasion the victims were not principally anticapitalist youth, but middle class ‘civilians’ – with disastrous consequences for the local junta. As a result the CDU lost control for the region for the first time in more than half a century.

Then came the nuclear accident in Fukushima, which intensified an already stormy and longstanding political debate on nuclear energy, leading to the reversal of the government’s policy postponing reactor closures. The most immediate beneficiaries of this events were the Green Party which saw instant growth both at the polling booth and in opinion polls. Combined with an array of smaller controversies the governments popularity sank, with the SPD also putting a floor on their recent decline in support.

Wir Sind ein Volk: Ihr Seid ein Anderes!

courtesy of http://www.flickr.com/photos/bopuc/

A reminder is in order here that the German economy has significantly outperformed the rest of Europe in the last couple of years. 1998-2003 was a period of recession, after which growth improved until 2009 where there was a sharp contraction in GNP of 5%, directly linked to the fall in global demand for Germany’s exports. Since then however, exports have recovered both to other EU states and emerging markets. Low levels of home ownership and the difficulty of accessing mortgage finance sheltered Germany from the financial events which have unfolded since 2007, although German banks and investment funds have been damaged due to investments made overseas, notably in the US sub-prime market.

What is poorly understood overseas however is the regional nature of the German economy, and the degree to which it continues to be centered on key nodes in former West Germany: a Munich-Nuremberg axis in Bavaria, Baden Wurttemberg, Frankfurt (finance), Koln, Hamburg and the Ruhrgebiet. Berlin is cut off both in terms of human capital and infrastructure from these areas, and struggles as a result. The local economy is heavily reliant on public sector employment in government and administration, tourism, and construction. While there is some software, pharmaceuticals and media production, they are in relative terms discrete employers. The biggest new employer is the German intelligence agency, the BND! Consequently local unemployment remains stubbornly high, over 13% according to official figures, and wages are low.

A corollary of the weak economic situation has been the relatively low cost of living, especially in terms of rental rates. Notoriously this has attracted a lot of under-remunerated cultural producers to make the city their home. But in the last four years rents have increased precipitously, between 15-20% annually in some centrally located areas, and when combined with weakened tenant protections and reduced investment in social housing; the result has been significant levels of displacement. New construction is occurring but is confined to apartments marketed to investors from other areas of the country and abroad. In fact this process has been underway since the 1990s, but had abated during the 1998-2003 slump – now it is back with renewed vigor. Local conflicts over urban development and planning have intensified and drawn in wider tranches of the population. The failure of the local administration – a coalition of the Social Democrats and die Linke – to respond to the resultant insecurity, combined with the poor economic opportunities available have opened the door to other forces. Previously the Greens would have been expected to clean up in this scenario, but they are perceived increasingly as the party of a lifestyle-defined middle class which has jettisoned its radical DNA, and in Berlin this doesn’t play as well compared to prosperous regions in the west.

In sum the conditions for a new protest party were ripe, and the Pirate Party were there to capitalise. They took more votes off die Linke proportionally than from anyone else, especially in the constituencies in the east. In areas characterised by a high level of conflict over housing such as Friedrichshain, they scored their highest results in absolute terms, hitting up to 17%. This area had been the scene of a massive campaign in defense of a squatted ‘house project’ (where people live collectively and conduct cultural and social activism), Liebig 14, which was evicted in February of this year. One element of the PP’s programme is to enable access to loans for tenants who want to buy their houses out from their owners rather than there being released on the open market. Meanwhile, on the border of Prenzlauer Berg and Wedding one of the city’s most popular parks is slated to be partially developed as condominiums, provoking anger and regular demonstrations in which the PP have been active. Along the site of the former wall, what was once social housing (built during the massive architectural project of the 1980s, the IBA) is in the process of reverting to private ownership, with increases in rents of up to 200%. This does not mean that the PP is a new Tenants Rights Party, but simply that the failure of the historical ‘alternative’ and ‘left’ parties has alienated many and opened the door for others.

Aftermath
What I want to get across is the complexity of trying to analyse the Pirate Party’s extraordinary result. While no enthusiast for electoral politics, I have been involved in the fight against intellectual property expansionism and have thus paid attention to the progress of the various PP’s since the start. But the copyright question which instigated the organisation’s creation was a footnote in the election. Nonetheless there has been enough happening in the copyright and surveillance realms to steel activists attracted by this issue. Germany, in fact, has had one of the most frantic enforcement campaigns in Europe in recent years, with the development of what is widely referred to as an enforcement industry where IT companies are contracted to trace those sharing files online so that lawyers can then make demands of ‘compensation’, an approach exemplified by companies such as Constantin GMBH, rights owners responsible for the famous sweep of Downfall videos from youtube. In October CDU politician Siegfried Krauder floated a proposal for a three strikes style law also in Germany, even though this would go against the coalition agreement made with the FDP (which contains a determined civil libertarian faction). Elsewhere, the campaign against intrusive surveillance was enlivened by revelations that police in Dresden engaged in generalised interception and parsing of mobile traffic and SMS during popular demonstrations against a neo-fascist rally in Dresden last winter.

The Pirates took 8.9% in the Berlin election. So unexpected was this that they cannot in fact fill all their seats. Every candidate for the City was elected, but several of them were also elected to the local councils in their areas, and due to the prohibition on dual-mandates some will go unfilled. Opinion polls have put them on 8% nationally, but it will be difficult to sustain this if they do not transform novelty into meaningful intervention. The crucial question is what would a meaningful form be. Events elsewhere such as the Occupy movement reflect a general distrust of the political system and its modes, a humor which arguably is analogous to the motivation driving the Pirate Party’s success. If this is so, then there is a case that the PP would be best served not by playing the Parliamentary game with too much earnestness, but rather should expose it and demonstrate the castrated notion of participation which it represents.

Following the election a debate kicked off in the TAZ newspaper regarding the left-wing credentials of the party, or lack thereof. Opinions vary, as do the self-descriptions of prominent party members. Current leader Sebastian Nerz is a former member of the conservative CDU, and the party also includes many former liberals; he prefers to charcterize it as a socially liberal progressive party. From the other side of the spectrum the Pirates have picked up members from all over the left, including a former chairperson and MEP of the Green Party, Angelika Beer, and former MP Herbert Rusche.

Parallels have been drawn between the struggle between ‘vollis‘ and ‘kernis‘ in the PP and the earlier fight in the Green Party between ‘realos‘ and ‘fundis‘. In the PP context this refers to a tension between those favouring a minimal program based on technological issues and those who want the party to develop a full programme, including the thorny issues around the social state. A congress in Bingen in 2010 grappled with these issues unsuccessfully, but the question was resolved at another meeting later that year in Chemnitz. On that occasion the membership endorsed a proposal to support a guaranteed income and to back the introduction of a statutory minimum wage in the interim. This move was actually opposed by the then leader Jens Seipenbusch. The result in Berlin clearly favours the more expansionist current in the organization.

On the back of their gains, however, the PP has now also made itself a target for more calculated attacks. The Greens and die Linke will be ruminating on how to deal with the threat they pose, with Renate Kunast (the local Green leader) quipping to a business audience before the election that they could be ‘rehabilitated’, and presumably co-opted. This is unsurprising, seeing as in absolute terms the PP took more voters from the Greens than any other party.

Subsequent attempts to smear them mediatically may not be unrelated. One instance of this has been the attempts to link their activists with the far-right NPD, on the ground that a couple of their members had a previous involvement in that organisation. Having seen Pirate Party members in Berlin on grassroots antifascist demonstrations in the city, inches from braying boneheads, I would give this no credence. In every political organization there are those with flawed pasts – it’s no grounds to censure them forever. But the circulation of this story speaks to the new seriousness with which the Pirate Party are being treated, and they can afford to be sanguine about it. As disreputable friends in Italy would say: molti nemici, molto onore – many enemies, much honour.

July has been a busy month.

Arrived in Berlin only to discover that two copyright consultations are taking place in Ireland – what excitement!: a proposition to introduce a ‘fair use’ clause to local legislation (rerunning the Hargreaves inquiry), and regarding an amendment designed to enable rightsholders to obtain injunctions against internet service providers where their infrastructure is allegedly being by users for infringing purposes.

Although sceptical about such processes, I had worked on a submission to the EU Commission about the Enforcement Directive earlier this year, so I did throw in a rushed contribution. But the technical nature of these mechanisms largely elides the really crucial questions. What sectors are truly dependent on copyright, rather than just happy to take advantage of it? How extensive and significant economically are these sectors? What are the costs imposed on cultural users and consumers as a result? What way do these rules shape what type of culture is produced and the organisation of the industries that produce them?

On a narrower level of economic development the issue is basic: how can it be that in a country like Ireland, where Google employ more than 2000 people, there is no explicit protection of search engines, nor for the innumerable ways of aggregating and reusing information – the basic operating space for technological invention, innovation and diffusion – from copyright liability.

‘Fair use’ in the US functions as an affirmative defense for exactly these type of cases where works produced produced for one purpose or market,are transformed into something entirely different. Fair use is a statutory, general, defense to copyright infringement, applied on a case by case basis which renders it flexible and adaptable to unforeseen circumstances.

The Hargreaves report in the UK ultimately opted against advising the creation of this defense – why? Their argument was that it would create so much uncertainty, that the greatest beneficiaries would be lawyers paid to decipher the ambiguity for the interests involved. Further, due to the restrictions of European laws, agreed to by member states in blissful ignorance of their repercussions, the latitude to create exceptions and exemptions to copyright is limited to a list of about fifteen enumerated cases. Thus the introduction of such defense would require action at the level of the EU: an obviously unenviable prospect. Puzzlingly Hargreaves proposed the creation instead of another new European exception which would encounter exactly the same type of political obstacles:

“We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work…”
Digital Opportunity, p.47

Apart from the bureaucratic barriers to to its creation, it is also, well, vague, so maybe the lawyers still have something to look forward to. Go figure.

Google is so naturalised, through incessant everyday use ,that it may appear absurd to suggest that it could be under legal threat. Yet a review of case law in both the US and the EU shows the extent of the legally-manufactured obstacles faced by the company; various aspects of their services (image search, youtube, google news) been condemned in Belgium, France, Germany and Italy, amongst others. The search giant, of course, has more than adequate legal and policy resources to protect itself. My concern is for the next generation technologies threatened by copyright regimes: without either deep pockets or the anthropological dividend of mass adoption, they will always be under threat from those who hold economic power now.

Meanwhile the media companies are desperate to ease their access to injunctions against anyone deemed to be a ‘contributor’ to copyright infringement. Friday last, Hollywood had a victory in the high court in London, securing an injunction against British Telecom, forcing them to deny their subscribers access to a site called Newzbin. Having already already lost a copyright action Newzbin was an easy target, but the precedent it sets is diabolical: innumerable online spaces contain activity that may be deemed infringing – should they all be shut down? Youtube and Vimeo too, as well as any site with the temerity to index torrents? And how will the Star Chamber necessary to determines a site’s bona fides be selected?

Securing a space for the experimentation in both engineering and culture, acknowledging that the changed nature of cultural production and the basic alphabet for technological innovation have the same root, should be the object of any changes made to copyright law. This means liberation from copyright, both for computer users with a new capacity to produce and distribute meaning, and for the innovation necessary to economic change.

EMI’s application failed. But ten days ago the Department of Enterprise and Innovation (the Irish ministry with legislative initiative in the sector), published a draft amendment to the Copyright Act of 2000, in an apparent attempt to provide the legislative basis for such judicial orders. A consultation period regarding the proposed amendment will continue until the end of July

Subsequent to his decsion in EMI v UPC, I had the chance to listen to the judge, Peter Charleston, give his impressions about the issues. He was thoughtful, but was also obviously somewhat at sea in a culture whose nuances he did not quite grasp. He recounted how the Irish police had visited him after the judgement, to warn him that his decision had displeased people on the internet in places like Kazakhstan and Uzbekhistan, and that they might seek revenge by stealing his credit card numbers or planting child pornography on his computer.

As he told this story I couldn’t judge whether he was being earnest or sarcastic. Perhaps Anonymous has managed to psych out the Irish police, as well as fooling them with a bit of proxying. More on this tomorrow, for now here is the text of the proposed amendment.

Draft Regulations
S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011.
I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:
1. These Regulations may be cited as the European Communities (Copyright and Related Rights) Regulations 2011.
2. In these Regulations -
“Act of 2000” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
“Directive” means Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society as amended by Corrigendum
3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:
(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
4.The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (9) of section 205:
(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
GIVEN under my Official Seal,
This day of 2011
Minister for Jobs, Enterprise and Innovation
[1] OJ No. L167, 22.6.2001, p. 10

[2] OJ No. L 006 10.1.2002 p.70

Bergevin is an economist by background and was one of the main designers of the ECommerce Directive, and most recently head of unit E2, focused on services and including areas such as gambling and gaming.

His appointment suggests two things to me. Firstly it is perhaps welcome to have someone with the tools to think, if inclined, about intellectual property in a wider economic context as opposed to treating it as a good in itself (a problem especially with the lawyers). Secondly, as someone with significant experience in the design and management of directives, and specifically the ECommerce directive, his arrival may mean that they are going to get serious about IPRED 2, not least as it will have a an interface with the provisions limiting liability for ‘Information Society Service Providers’ set out in the aforementioned directive. You can read his take on intermediary liability here.

On June 7th in Brussels there will be a public hearing on “Directive 2004/48/EC on the enforcement of intellectual property rights: Challenges posed by the digital environment”, where there is scheduled to be a presentation by Unit D3, so we will soon get an idea of the flavour which Bergevin will bring to the debate.

His former unit also handled the 2010 consultation on the E-Commerce Directive which was criticised for its resistance to incorporating the views of NGO and user groups around the broader questions at stake in filtering and monitoring of online services.

Now for something more positive. In November, Toryboy David Cameron announced the launch of an inquiry into ‘intellectual property and growth’, premised on the concern that the current copyright regime might be impeding the UK from developing innovative companies like Google. Thus one of the directions to be investigated was the possibility of developing a broad fair use defense which would protect transformative uses, like that which exists in the US and which the big G has been able to take useful recourse to on any number of occasions. Of course ungenerous individuals like the record industry’s Alan Batt ascribe all this to the fact that one of his senior advisers, Steve Hilton is married to Google’s European head of communications, Rachel Whetstone. Obviously an unfounded suggestion of no merit, politics couldn’t possibly function like that, could it?

Former journalist and erstwhile professor of Digital Economy Ian Hargreaves was appointed to head up the Commission. Amongst his colleagues on the Commission is Jamie Boyle, an emigre Scot who has been at the forefront of IP criticism for twenty years, and author of one of the classic texts in the area: Shamans, Software and Spleens. Jamie also writes a column for the Financial Times on these subjects, and has turned it into a useful platform for demanding that changes in IP law be based on an evidence-based argument rather than on hysterical rhetoric or the power of lobbying. Of course he’s a bit mad, because important political decisions couldn’t really be made like that could they?

Five months thus was spent collecting submissions and ‘evidence’, and it makes for interesting reading if you have the patience – there were over four hundred submissions, and that from the Open Rights Group alone is 84 pages long. The various copyright industry trade associations pitched in with a lot of documentation as well. Google commissioned a report on the impact of copyright law on digital SME’s as well as a position paper of their own. On the other hand Getty images made a submission that wasn’t so enthusiastic about reform, but then they think that IP is the oil of the 21st century…

The report is due at the end of April, and should be pretty interesting. I have been arguing for some time that pushing on the fair use/dealing question could be fertile for copyright critics as it’s one of the areas where cost to innovation can be illustrated most clearly. Furthermore there are precedents for these type of propositions receiving support from other quarters. In recent years both the IVIR study on the EU Copyright Acquis and the UK’s Gower Commission floated/recommended the creation of such a defense, and as the nasty rumours about Google demonstrate there are signals that it has support in some powerful business circles. A sample of the debate engendered can be gleaned from a podcast produced by the RSA on the occasion of a public discussion organised on the topic of the review,

As i mentioned in my post about Ireland a few weeks ago, a similar proposal is afloat there as well. What remains to be seen is whether this would require an EU Directive. The problem derives from Directive of 2001/29 on Copyright which contained an exhaustive list of all exceptions and amongst them there is no mention of ‘transformative use’. In the Uk ‘fair dealing’ has traditionally covered the use of materials and commentary, thereby often effectively protecting a sub-section of cultural uses, but commercial uses can’t be shoehorned into that. In any case, it would be healthy to see the European debate on copyright shift its axis towards such questions. Needless to say the content industries will fight such a move tooth and nail.

People are understandably outraged at the appointment. While there is no question as regards her suitability to work for the Commission in general, it is grotesque that she should be put in charge of a policy unit in an area where she was previously a paid lobbyist. She is currently head of Directorate Unit E1, concerned with the Services Directive.

Whilst web commentary presents her as ringmaster for the new Enforcement Directive (IPRED2), I’m not so sure. As I wrote in February, there is now a unit dedicated specifically to Enforcement, headed by Alvydas Stancikas. His unit ran the legal sub-committee formed to report on the first IPRED and suggest modifications. Head of Directorate Margot Fröhlinger has also been prominent in the enforcement field.

Tilman Lueder was a pretty entertaining guy, rather wry, who also expressed some scepticism about the direction of copyright policy in recent years, pointing out the impossibility, for example, of the Google Books initiative in the EU due to the lack of a general fair use defense. Apparently he’s off to China.