At the time when I first studied law, my interest in technology was entirely separate and parallel. On just one occasion they intersected, due to the requirement of a note from one’s tutor stating that the requested email address/shell account was necessary for purposes of scholarly activities; in those days emails were issued automatically only to maths and computer science students, everyone else had to demonstrate that they needed one.
There followed many all night sessions in the computer labs (the only buildings open 24 hours!) and conversations with nerds who began to drop in to the bookshop where I worked. Sometimes this just meant riffing about the exotic ideas encountered on Usenet (Ireland was seriously theocratic and very insular), but inexorably discussion would return to speculation on the political consequences of the new medium in two areas: copyright and surveillance/political control.
So when I later decided to return to law, it was natural to focus on these conflicts. My emphasis was originally on cryptography. In retrospect I guess this is because that moment was a kind of peak of political absurdity. Encryption technologies were still classed as dual use technologies by government, meaning that they had both civilian and military applications, and were thus subjected to a special regulatory regime limiting their export. At the same time the encryption software PGP (Pretty Good Privacy) was available for download from the net in flagrant breach of US export controls – the International Traffic in Arms Regulations (ITAR). Daniel Bernstein was challenging the constitutionality of these arrangements in the US while Phil Karn was filing requests with the US State Department to check whether a book, Applied Cryptography, and accompanying floppy disk were subject to export restrictions; it turned out the book wasn’t and the floppy was (I got a copies from amazon and never used either!).
Investigative journalist Duncan Campbell had already uncovered the first bits of information about a surveillance dragnet called Echelon. Meanwhile the US government had spent years trying to inject compromised encryption systems via hardware into the public’s computers and phones via its Clipper Chip proposal. This would have provided law enforcement with a side-door entrance to encrypted communications on foot of a warrant obtained as part of an investigation, but required that the secret keys necessary for this be stored at a location accessible to the police. Were they to be excluded from access to plaintext, we were told, the consequences would be dire: the four horsemen of infocalypse – terrorists, drug dealers, paedophiles and money-launderers – would ride forth unleashing their villainy on the innocent. A little later there was an international scandal involving a shady Swiss firm called Crypto AG, who were supplying compromised encryption systems to governments. When the exploit was revealed the Vatican was the first ‘user’ to change its system. … In short, these were exciting times, the rock and roll period of the so-called crypto wars.
Absurdly it was still possible then to imagine a field of ‘computer technology and the law’: the number of users was still small; the legal disputes actually reaching a judge were few: even the range of devices was limited. I gobbled it all up: digital signatures, data protection and copyright. Then I came across articles about Digital Rights Management systems and realized that where I had imagined a politically mobilized populace embracing PGP to engage in oppositional politics, it was more likely that users would encounter encryption as a lock preventing them from having access to the media cookie jar. Whereas the inability of governments to prevent civilian access to strong cryptography was foretold, the copyright and allied industries (mostly in the patent and trademark sectors) were well-organised, and had achieved considerable success in rewriting the law at both domestic (DMCA, European Copyright duration Directive) and international levels (GATT-TRIPS, WIPO-WCT). Thus in the United States the DMCA made it an offense both (a) to produce and distribute tools for the circumvention of DRM access controls on media and (b) to engage in the act of circumventing itself – irrespective of whether a breach of copyright occurred.
But the copyright industry’s victory turned out to be easier at the level of lobbying and legislation than it was in reality once these technologies were released into the wild. The dream of perfect technological control turned out to be a mirage. Worse, the internet ensured that once an access control technology was defeated once, it was effectively defeated everywhere, as the developers of the protection systems for DVDs and digital music formats were to discover at some expense. In 1999, just as the means to neutralize the DRM on DVDs was being made public, Napster, the first p2p system, appeared on the scene.
Thus at the turn of the millennium the struggle for public access to strong cryptography seemed to have been won, and the copyright industry’s efforts to retain control of distribution seemed to be skidding on the black ice of technological history. Such was the mood in January 2001 when Steven Levy’s celebratory account, Crypto, was published, with the unfortunate subtitle ‘How the Code Rebels Beat the Government Saving Privacy in the Digital Age ‘. By year’s end that tune would appear mistaken.
To be continued.
Since December the law office of Urmann + Collegen have become notorious in Germany due to their action against alleged users of Redtube – a streaming site dedicated to pornography. Copyright enforcement has hitherto been limited to users of file-sharing systems and the operators of streaming sites such as Kino.to. Pursuit of those using streaming facilities would represent a new escalation. Major questions about the plausibility of the offense, the manner of the evidence collection, and the bona fides of the plaintiffs are tied up in this litigation. Hopefully the affair will help discredit the current system.
First a word about one of the protagonists: this is not the first time the spotlight has fallen on Urmann + Collegen. In 2011 I wrote about how they attempted to sell-off the right to pursue alleged copyright infringers for compensation and legal costs under the abmahnung procedure (these are letters which demand the recipient desist from specific behaviour and pay both the costs of the letter’s production and some compensation). By 2012 they were threatening to publish the names of all those unwilling to cough up the amount demanded in the abmahnung for downloading porno movies using bittorrent. The German Data Protection office had other ideas.
1. Origins of the Redtube Affair
In the most recent episode abmahnungen were mailed to ten thousand users whose names and addresses were acquired following an order by the Civil Court in Koln (historically especially amenable to copyright owners requests). They were alleged to have infringed copyright by viewing porno movies on the streaming website Redtube. The action was launched on behalf of on behalf of The Archive AG, a Swiss registered company purportedly the owner of films being made available on the redtube website. dresses collected on behalf of the owners of the infringed copyrights. Multiple chambers of the court granted the plaintiffs request to require ISPs to identify the users behind IP addresses collected on behalf of the owners of the infringed copyrights.
Daniel Sebastian, a lawyer representing Archive AG, said that the IP data had been collected by a company called ‘itGuard’ who had used a piece of software called ‘GLADII 1.1.3’. This company was registered in Delaware in March 2013 but claims to be based in California. It turns out that The Archive AG’s website was registered that same month and that their website uses the same webserver as itGuard.
The Archive AG claimed to have purchased the rights to the infringed films in July of 2013. Around the same time the domain retdube.net was registered. Such site are often registered in order to capitalise on typing mistakes, or can be used by phishing/spam emails to draw traffic. One hypothesis is that this site (whose owners remain unidentified in a Panamanian registry) was set up to trap and track website users. Dates of the alleged infringements are consistent with this timeline.
The legal process began in August 2013 when Sebastian submitted a request for identifying information
The plaintiffs request for subscriber identification information was granted in September. The first letters went out in early December. There followed a flurry of actions including one undertaken by Redtube itself: on December 19th they obtained a decision from a Hamburg court ordering that no further abmahnung be issued to redtube users. However the real turning point came as the result of an appeal by four alleged Redtube users in mid-January. They argued that their information had been wrongly provided to the plaintiffs and in late January the Koln court upheld their appeal. For the moment this brings the substance of the case to a close. The flawed original decision by the various chambers of the Cologne Civil Court was based on numerous errors which it is worth itemising.
2. Confusion in Court: Streaming and Reproduction
Irrespective of the relationship between itGuard and The Archive AG, it appears that the Koln court which ordered that subscriber to be divulged was either confused or misled. They appear to have believed that Redtube was a filesharing system rather than a streaming service. Submissions to the court by their lawyer, Daniel Sebastian, reinforced this impression by referring to downloads rather than streams.
In a decision announced on January 27th the Court upheld an appeal by one of the recipients of the letters. They stated that they had been confused by the use of the term download in the original application and that streaming has not been found to constitute an act of reproduction.
3. More Confusion: Acquiring the IP Addresses
In his original submissions to the Court in Cologne, Sebastian included a document drawn up by a Munich patent attorney from the firm Diehl & Partner, verifying the proper functioning and reliability of the GLADII. Nowhere in this twelve page document is there any explanation as to how the software actually interacts with the target site to collect the user data.
When the Cologne Court issued its statement connected to the successful appeal by one of the abmahnung recipients, the Judge raised again the troublesome mystery of how the GLADII software functions and noted that requests for further information had gone unanswered:
“even after indication from the Court, the questions remains unanswered as to how the software program can access a two-sided communication.”
4. Doubts about Ownership
The Archive AG claimed that they had purchased the rights to ‘Amanda’s Secret’ and other clips from a Berlin firm, Hausner Productions, who supposedly bought them from their original producer, a Spanish firm Serrato Consultants. But Hausner Productions does not exist, and Serrato never produced these films, which were shot by a company in California who continue to commercialize them.
As each day passes the affair unwinds further. Urmann is now facing an action taken by a Berlin firm on behalf of abmahnung recipients alleging extortion and fraud. Meanwhile at the The Archive AG it’s all go: they moved their HQ to a Swiss village called Weisselingen and their director, the German Phillip Wiik, has been replaced by a certain Djengue Nounagnon Sedjro Crespin, a native of Benin. Oh, and their phone number no longer functions and the website is offline. apparently Swiss authorities have started an investigation into the directors for fraud. a reader of the German magazine Telepolis visited the office address of the software developer ‘itGuard’ in San Jose and found only a supplier of office services who had rented a letterbox to a company of that name.
Amusing as the details of this scam are, and unpleasant as some of the characters in this story may be, the real issue here is the mindless machination of a copyright enforcement industry. By the end of 2012 this apparatus had produced more than four million abmahnungen: it is a crazed monster and out of control. On the basis of sketchy evidence, possibly gathered illegally, multiple chambers of the Cologne Civil Court ordered the identification of tens of thousands of users to a firm who did not have to prove they owned the rights – this is evidence of institutional dementia.
Lawyers have cranked this apparatus up because the business model produces a lot of money for them in fees, far more than that earned by any notional rightsholder. Thomas Urmann didn’t even bother checking if his clients actually owned the rights they claimed, just sent out the 20,000 letters and waited for the cash to roll in. In early January he was promising further letters in relation to other streaming sites. And if there are further ‘issues’? No problem, he says, ‘we’ve got full liability insurance’.
For years now there has been discussion of reform to eliminate such abuse, but in the SPD/CDU Coalition agreement there is no commitment to do anything other than investigate how the current system functions. Until the next time folks.
2013 will be remembered as the year when Edward Snowden hauled the debate about state surveillance into the conditions of the 21st century. His revelations constitute a vast canvas made up of interconnecting elements, and the combination of scale and detail makes it difficult to fully find one’s bearings. It has often made me think of Plato’s famous Allegory of the Cave which he recounts in the Republic.
Plato used the allegory of the cave to illustrate the place of philosophers in society. He told of a people whose knowledge of the world was derived from the shadows of moving people and objects cast on a wall by firelight. One of the prisoners is freed and the illusion is revealed to him. When he looks at the fire it hurts his eyes. He sees the sun and it takes time for his sight to adjust, but it does and he can see the objects and people who were formerly only shadows.
Before May of this year we had some inkling of what was going on. After all it was sixteen years since the Science and Technology Options Assessment (STOA) office of the European Parliament commissioned two reports touching on global communications interception (including Echelon). This led eventually to a Parliamentary procedure in 2001. But investigations were based on piecing together and inference not documentary corroboration. Now we are confronted with the flow charts, slide-shows, and even doodles of the undertaking – a collision with the plumbing of modern power. Time is needed to take it all in.
Sovereign power is back on display, its capability multiplied by the rise of the data harvesting industries and the centralisation of data on their servers. Trust in these companies – Facebook, Google, Yahoo, Microsoft et al. – has been injured and the wound will fester, both amongst users and non-US governments. Meanwhile ‘users’ drift virtually naked in a sea of insecure communications and with precious little data that is still ‘personal’ …. That’s the bad news. The good news is that it’s going to get better from here, because now people know and will begin to respond through litigation, agitation in the public sphere and tool development.
There is much to say but for now I’ll recommend some other voices: if you haven’t followed Eben Moglen’s lecture series, Snowden and the Future, then take the time to read or listen to his four lectures and absorb his analysis of the broad picture. Those interested in an accessible presentation of the technical aspect should watch his dialogue with security expert Bruce Schneier. Good background on the recent expansion of the surveillance culture in the US is contained in Ryan Lizza’s article State of Deception from the New Yorker. Finally Glenn Greewald, who broke the story with Laura Poitras, gave the keynote at the Chaos Computer conference last week, check it out here.
If I had known earlier that Denny Chin was to deliver his decision on the fair use question in the Google Books case, I would made my way to Madison Avenue and lurk outside the office of the Authors Guild, the plaintiffs. There I might perhaps have heard a pitiful wailing and gnashing of teeth, sounds no doubt echoed in many a lawyer’s chamber around the city. For Denny Chin drop the bomb on their hopes, and found an affirmative fair use defense for Google’s scanning project. That the result was pronounced in the Federal District court of what has historically been the centre of the US publishing industry is also noteworthy. But this has been a never-ending saga of litigation so first let’s recap, check the reasoning, and lastly ponder the consequences.
1. Google Books comprises three classes of texts from a legal point of view: public domain works which can be made available in their entirety; books which are made available to preview through partner agreements between Google and publishers; and books which were scanned by Google without permission, the searching of which produces small ‘snippets’ of the text as results. This court case concerns the final group of books.
2. The Authors Guild and Association of American Publishers launched their legal action in 2005. In 2008 a settlement was announced by Google, it would be subsequently be amended, but the substance was to (a) make a payment to affected authors (b) pay the plaintiffs lawyers and (c) fund the establishment of a Book Rights Registry. This settlement was eventually rejected n multiple grounds by Denny Chin in early 2010. At this time he was a Federal District Court Judge in New York. Chin was subsequently promoted to the Court of appeals for the 2nd circuit, but as able to hold onto several cases from his previous post – including the Google Books case.
3. While the various parties involved attempted to reach a modified agreement which would be acceptable to the courts, Chin set a schedule for litigation of the original copyright infringement action. As the Authors Guild were to put the case for all the authors whose works were copied, they had to get ‘certification’ of the class – basically a decision from the court that it is appropriate that the plaintiff represent all members of the class and has the means to do so. Certification was issued by Chin in May and then appealed by Google in July. Obviously Chin did not hear the appeal of his own decision. The Court of Appeal sent the case back to Chin at the District Court to make a determination on the fair use defense to the charge of copyright infringement, as a decision in Google’s favour would make the certification issue irrelevant.
i. Google got access to the books from participating libraries, who received a digital copy of each of their books in exchange. All texts are processed for optical character recognition (OCR) so that a full word index can be constructed to enable search.
ii. Much emphasis was placed on the restrictions on access to those books scanned without permission, of which only ‘snippets’ are displayed. Each snippet is one eighth of a page and only three snippets are ever returned in the results field. In addition to this limitation, one out of the eight snippets is never displayed, and no snippets are available from one in ten pages. The upshot of all this is that the full text of the book is never displayed to users, even over long periods of time in a fragmentary fashion.
A. Chin found in favour of Google in the fair use determination. He analyzed the facts against the four factors of the fair use test codified in the law, but did so in the shadow of what his interpretation of copyright’s ‘very purpose’: “Copyright law seeks to achieve that purpose by providing sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences.” (page 16)
B. He then stressed that a key issue was whether the alleged infringement is ‘transformative’:
that is, whether the new work merely”supersedes” or “supplants” the original creation, or whether it: instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” (page 18)
In the recent past this approach has been used to provide the fair use imprimatur for the basic technology of search, the cases Kelly v Arriba and Perfect 10 v Google.
C. He then applied the four factors in turn (pages 19-25).
- ‘the purpose and character of the use’; Chin found the use to be highly transformative, as (a) its cross-corpus index of words in books had quickly become crucial for research as well as (b) making possible whole new types of research such as text and data mining base on the quantitative analysis enabled, whilst (c) the service did not offer a competing way to actually read the books. Given all this it was of less import that Google is a commercial enterprise and undertook the project motivated by profit.
- ‘the nature of the copyrighted work’; most of the books scanned were non-fiction works whereas ‘works of fiction are entitled to greater copyright protection’
- ‘amount and substantiality of the portion used’; Google copies the entirety of the work, and whilst the making of full copies does not exclude the possibility of a fair use finding, this is the only point which Chin felt went against a fair use finding.
- ‘Effect of Use Upon Potential Market or Value’; this is often the determinant part of the analysis. Here the plaintiffs claimed that the value of their works was being undermined, but Chin disagreed. He argued that given that Google was not selling the scans it produced as part of building the library, what they were effectively doing is helping to build potential sales by making it easier to discover forgotten, lost or neglected works.
The Fair Use analysis is followed by a summary of the social benefits of the service:
In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits. (page 26)
As far as Chin is concerned the same analysis applies to objections to the libraries use of their scanned copies. And that’s that, a knock-out for Google and the libraries in the Southern district of New York.
Momentous as it is, for now this is just a District Court judgement; endorsement by a higher court will be necessary before its full impact is felt. In the short term the decision will surely be appealed. How willing will the 2nd circuit be to reverse one of its own judges, and one who has been sleeping with this litigation for so many years? Does that mean it will go to the Supreme Court?
More broadly, the fact that this went to court meant that this defense is now open/applicable to others as well. A huge concern with the Google books settlement was that it was a private agreement granting them exclusive shield from liability with regard to the corpus of books – the path is now open to others to do the same, like the Internet Archive perhaps. Furthermore the concept of transformative use comes out of this emboldened, and available potentially to others working with different forms of archives, such as moving images for example.
Of course the problems for those who would follow in their footsteps is that the rules are different for Google. Not only do they have the money to fight infinite legal battles, but they have the reach into our habits such as to make their tools ‘useful’ and ‘socially beneficial’. They benefit from a presumption of legitimacy because of our reliance upon their services. Should this decision survive the coming challenges, the real test for it will be whether it provides a shelter for the next technologists developing tools that upset an incumbent industry.
The Granny-bag index of celebrity: this picture was taken in early September on the platform of Spingpfuhl station in Marzahn (East Berlin). The legend printed on the bag says: “Edward Snowden, a traitor in the USA, but a hero for humanity!”
Today the Copyright Review Committee in Ireland published its report, ‘Modernising Copyright‘ (beware, largish file). As mentioned elsewhere, I too made a submission to the committee. Eoin O’Dell (head of the CRC) posted an announcement of its release here.
Like the consultation paper which preceded it in 2012, the final report looks long at first glance. On closer inspection however, its analysis is confined to the first one hundred pages, thereafter follows seventy pages of draft legislative proposals, and the last ten pages are the skimpers’ delight – a precis of the report’s contents for the unmotivated.
Given that my nerdy interest in copyright is not equally distributed, I will not pretend to offer a full overview, but instead focus on the parts which strike me as most salient. these will be dealt with in the order that they appear in the paper, which means that Fair Use comes last, and whilst this initially seems strange, it makes sense with in the waft and warp of the Report’s own logic.
1. The consultation paper was enthusiastic about the creation of Copyright Council (CC) to serve as a policy talk shop open to the vying interests at play in the copyright arena, so no surprise to see a formal recommendation that it be created.
Its membership is to be drawn from all interested parties, which it is noted would distinguish it from analogous superficially similar organisations elsewhere whose principals tend to be rightsowners, or their licensees, or their friends or whatever.
The CC’s functions are to be many and varied, from promoting ‘awareness’ about copyright to researching the social and cultural consequences of the law, providing insight about technical issues and drawing up codes of best practice; all very worthy indeed.
The prospect of more serious responsibilities for the CC is also held out – as possible operators of the eventual domestic system to manage orphan works and of collective licensing agreements devised within a potential digital Copyright Exchange.
2. The cost of intellectual property litigation is a common complaint. The Report argues that the District Court should be enabled to hear cases up to its threshold of 15,000 euros. Another source of whinging is the shortage of Judges capable of tackling the complexity arising in IP cases, here it is suggested that a dedicated court be established at Circuit Court level.
3. Even on the part of those committed to maintaining the basic structure of copyright there has been discomfort at the scale of punishments being meted out to what are ultimately rather mild defendants, remember Jammie Thomas? (How quickly our martyrs fade back into obscurity.) The report has this to say:
there was a great deal of support in the submissions for the idea that remedies for breaches of copyright should be proportionate, and that civil sanctions (such as injunctions and damages) should be graduated. In this way, at one end of the scale, unintentional breaches would not be met with significant awards of damages, and that, at the other end of the scale, the most serious breaches would be appropriately dealt with by the award, for example, of restitutionary, exemplary or punitive damages.
4. The chapter dedicated to ‘Rightsowners’ contains nothing momentous. The request to make circumvention of digital rights management into an independently actionable form of infringement was rejected. A legislative lunar eclipse creating potentially perpetual copyright in the case of some unpublished works is listed for elimination.
Photographers receive a bone here: they were voluble during the whole process and have been especially worried that the Orphan Works proposals could be used as cover by their enemies and exploiters (everybody!) to strip the attribution from their work, declare it orphaned, and use it without payment. Actually although I’m a bit sarcastic about the tone of their contribution, I have some sympathy for them, caught as they are between a market ever more heavily populated by what were formally amateurs (now armed with high level equipment and the means to get their photos quickly to agencies over the web), an agency business ever more concentrated Getty etc munching all the competition, and cost-cutting publishers who really would screw them if they could. To allay their fears the Report argues that metadata should be protected, and stripping of same punished.
On a related point however no change is suggested regarding the use of photographs for news as part of fair dealing. I recall trying to research the logic behind this a year ago and could find no clear explanation, and that made me feel a bit dumb. So is it to serve the public interest in news access? To reduce the costs of reporting? Answers on a postcard please.
5. The real action begins in the section dedicated to ‘Users’. The tone is captured by the first proposed change: fair dealing is to ‘include’ rather than ‘mean’ the exceptions which follow thereafter – consequently the category is to be kept open, available for expansion in the future, in line with further technological change or opportunity.
A range of exceptions permitted under the EU Copyright Directive – but which had never been implemented into Irish law – are then reviewed and it is recommended that each be integrated into the statute, these include:
- private copies and format-shifting, including into formats for storage ‘in the cloud’
- non-commercial user-generated content
- extended exceptions for educational purposes (this is limited to ‘formal educational establishments’, something which seems flawed to me given the capacity and actuality of self-organised education online, by definition occurring in largely informal environments.
- enhanced exceptions for people with ‘disabilities’
6. The above exceptions are all derived from the language of the EUCD and thus of unimpeachable pedigree. In the following sections on ‘Entrepreneurs and innovation’, the Report moves into more creative territory. The crux of it is the proposal for a new exception for transformative works or uses of otherwise protected works. The opening part of the proposed legislative language is worth quoting:
(1) It is not an infringement of the rights conferred by this Part if the
owner or lawful user of a work (the initial work) derives from it an
(2) An innovative work is an original work which is substantially different
from the initial work, or which is a substantial transformation of the
(3) The innovative work must not—
(a) conflict with the normal exploitation of the initial work, or
(b) unreasonably prejudice the legitimate interests of the owner of
the rights in the initial work.
This is then followed by a series of sections limiting its applicability but the overall design represents something of a breakthrough. As an aside, it seems to me appropriate to point out that this move is to my knowledge based on the rather brilliant work of Prof. Lionel Bently at Cambridge University, who submitted a carefully argued submission to both the Hargreaves Report in the UK and then to our Irish Iteration. Therein he argued that whilst the reproduction right had been harmonised, leaving little wiggle room, the adaption right had not, and member states are free to do what they want within the limitations of the Berne Treaty. The proposed section 106 integrates the language and logic of the Berne Three Step test (the threshold legitimate exceptions must meet), but there is a strong case that this is not as stringent as might initially seem, otherwise the US’s fair use clause would already have been found in violation of Berne. Anyway, if one is going to read one technical submission in this whole process it should be Bently’s, IMHO.
7. Next up are proposals relating to heritage institutions, not my cup of tea.
8. Lastly, as if to conclude with a crescendo: fair use. And the Committee has decided that Ireland needs it, whilst being at pains to point out that this is a specifically Irish version rather than some US idea baldly imported.
The test as to whether a use qualifies as fair comprises eight criteria and the language is to be found under section 49A.
(a) the extent to which the use in question is analogically similar or related to the other acts permitted by this Part,
(b) the purpose and character of the use in question, including in particular whether
it is incidental, non-commercial, non-consumptive, personal or transformative in nature, or
if the use were not a fair use within the meaning of the section, it would otherwise have constituted a secondary infringement of the right conferred by this Part.
(c) the nature of the work, including in particular whether there is a public benefit or interest in its dissemination through the use in question,
(d) the amount and substantiality of the portion used, quantitatively and qualitatively, in relation to the work as a whole,
(e) the impact of the use upon the normal commercial exploitation of the work, having regard to matters such as its age, value and potential market,
(f) the possibility of obtaining the work, or sufficient rights therein, within a reasonable time at an ordinary commercial price, such that the use in question is not necessary in all the circumstances of the case,
(g) whether the legitimate interests of the owner of the rights in the work are unreasonably prejudiced by the use in question, and
(h) whether the use in question is accompanied by a sufficient acknowledgement, unless to do so would be unreasonable or inappropriate
These eight elements are structured into three groups: the first cluster (three factors) probes for elements which could legitimate the use; the next two criteria touch on general matters; the final group of three tests those elements which would weigh against a finding of fairness.
Overall i think there is a lot to like in this report. It display some fancy footwork in working with the constraints of the EU copyright acquis whilst responding to a need for flexibility which can serve as an incubator for economic opportunities. Let’s not fool around here: is still under the Troika and will be dealing with the fallout of the rabid tomcat and its property bubble for a long time to come.
The grand design and originality thus of ‘Modernising Copyright’ thus is the injection of targeted flexibility into the legal framework – this is no mere echo of the Hargreaves Report in the UK, which backed away from Fair Use out of fear at the uncertainty it would necessarily entail. If the Report’s authors have their way, contested uses in Ireland will first be examined to see if they fit the exceptions spelled out in the EUCD, or checked against the innovation exception if they are derivative works/adaptations. Only if they have fallen at those two fences, will the fair use test be their last chance saloon.
Now I’m curious to hear the responses of the various interests involved.
Later there will be time to ponder my reservations: the Report kicked for touch on questions around secondary liability, safe harbours etc and remained silent on the conflicts around enforcement.
And then there’s the politics – will Fine Gael and Labour actually do anything with it or will it just be buried?
III.-Les personnes coupables de la contravention définie au I peuvent, en outre, être condamnées à la peine complémentaire de suspension de l’accès à un service de communication au public en ligne pour une durée maximale d’un mois, conformément aux dispositions de l’article L. 335-7-1.
[Persons guilty of an infringement, as defined in section 1, may furthermore be sentenced to the additional punishment of the suspension of access to a service for communication to the public online for a maximum duration of one month, in conformity with the provisions of Article 335-7-1]
Décret n° 2010-695 du 25 juin 2010
Le III de l’article R. 335-5 du même code est abrogé.
[Section III of Article 335-5 of the same law is abrogated]
So goes the begining of the end of Hadopi. Having begun operation only in 2010, the abolition France’s newly minted institution for the application of ‘graduated response’ to acts of copyright infringement, was foretold in May this year. Closely associated with the persona of one Nicolas Sarkozy it was predictable that his successor Francois Hollande would jettison it.
The opportunity arose with the delivery of the Leclure report prepared by a committee operating under a former head of Canal+. Sections relating to this topics were but a small part of this mammoth document on the future of the media in France, but it provided the necessary ammunition for a government keen to pull the trigger.
The key argument the report made for a policy change was the failure of the Hadopi system to positively effect the take-up pf ‘legal offers.’ Over the last year sales of music in France have continued to fall, as have Video On Demand viewings, cinema ticket sales etc.
The authors made the case for the annulment of the ‘third strike’- disconnection for repeat offenders – and for a reduction of the fines for infringements. Thus disconnection was officially abolished in a decree published July 9th. Up until then only one person was actually disconnected – for two weeks – and this occurred in June after it became clear that the regime was to be abandoned!
But despite being on the brink of disappearance, Hadopi continues sending out mails castigating alleged infringers 92,000 more in July bringing them to a cumulative total of two million since inception. This figure encompasses only initial warnings. In addition, another two hundred thousand letters have been sent to repeat offenders, and seven hundred more escalated to the prosecutors. Not that many really, at least when compared with the larger number of threatening legal letters dispatched to theri peers in neighbouring Germany, demanding payment of up to 1,200 euros from each unfortunate recipient (with what level of success it remains unclear).
Another recommendation in the report that the fine for infringers be reduced from 1,500 euros to 60 was not implemented. However, in the sole case where a fine was imposed the amount came to 150 euros.
What remains of its competencies are to be passed on the CSA (Conseil supérieur de l’audiovisuel). When this will actually happen remians unclear, so Hadopi limps on for now, on a reduced budget and likely low morale.
Aurélie Filippetti (the new Minister in charge) & Co. were understandably keen to distance themselves from the toxic Hadopi brand, but copyright enforcement initiatives are far from dead – they’ve just changed target. In January the head of the Rights Protection at Hadopi, Mireille Imbert-Quaretta, will deliver proposals regarding measures to target online streaming and direct download providers facilitating large scale infringement. Such sites will be required to filter uploadeds and weed out unathorised works. Failure to do so will result in blacklisting by ISPs. Intermediaries providing advertising placement and payment services for sites deemed rogue would also be targeted. And as La Quadrature Du Net pointed out in their press release at the time the overall Hadopi apparatus in France remains in place, so while the most egregious elements have been killed there is more to do.
Nonetheless this development represents another setback for the copyright industry campaign against user. In addition to France one can add Britain (delays in implementing the DEA), Germany (where the regulations concerning copyright abmahnung are due to be reformed) and the US (where the 6 strikes concrete application looks distinctly vague). So while there is no room for complacency, some modest celebration is in order.
In June the Irish High court granted an application by four music companies to order six ISPs to block access to the Pirate Bay web site within thirty days. The decision was widely reported in the press at the time but the written judgement wasn’t published until July. It is notable that the country’s biggest ISP, Eircom, was not amongst the parties subject to the order, because they had agreed to block TPB voluntarily.
This case represents the first action taken on the basis of the amendment to the copyright law last year, controversially enacted by means of statutory instrument. The decision is brief, with McGovern J citing and accepting the analysis of Judge Charleton whose interpretation of the legislation in 2010 gave rise to the amendment process. It was specified that were the Pirate Bay to move to another web address the applicants will not need to apply for a new order, but simply inform the ISPs, who will be implementing the domain blocks at their own expense. IRMA – the trade organisation representing the music industry – has said that they plan to seek similar orders against up to twenty more sites in the near future.
In May an application by Digital Rights Ireland to be appointed amicus curiae was separately rejected by Justice Kelly. Their involvement had been opposed by music industry representatives and the court took the position that DRI could not be regarded as a neutral party, nor were they ‘charged in either domestic or international law with a public role in the area which is the subject of this litigation‘. DRI had argued that their participation was warranted due to the potential for decisions made under the amended legislation to impact on parties not represented in the proceedings. this was rejected.
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.
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.
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.
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.
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.
- Party Like it’s 2000: Revisiting Crypto
- test on IP and the economy etc
- Copyright Trolling, Streaming and The Archive AG v Redtube Users
- Snowden and the Cave
- Chin Drops the Bomb: Fair Use For Google Books
- Snowdenmania in Marzahn (bei Berlin)
- ‘Modernising Copyright’ Report Published in Ireland
- Hadopi and User Disconnections: Two Bugs Squashed, More Remain
- Irish High Court Judgement on Pirate Bay Blocking
- Commons Talk
- Pirates Languish, Rousing Occasionally to Devour Each Other
- civil liberties
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film