Over the last while I’ve been checking out cryptoparties. As a forum for the self-education of users regarding online risks it has potential as a useful format, although it will need to avoid the temptation to drift into security-flavoured machismo. As it happens I think that those who could most benefit from it are users who are either inexperienced, mildly technophobic, or both. But in order to serve that constituency the delivery needs to be pitched at a specific, actionable level. More on that another time, perhaps. For now I want to make a couple of comments about a frequent topic which arises in that milieu, namely filesharing and anonymity, and VPNs (Virtual Private Networks).
VPNs can help protect the security of your communications with the network, and allow you to circumvent geo-blocking (where access to a resource is limited to those in a specific country). So far, so good. But there is a misconception circulating that use of a VPN provides a fail-safe cloak for filesharing, an error which is cultivated by the VPN companies themselves trumpeting claims that they keep ‘no logs’. This is obviously false. Otherwise every kiddie-porn trafficker, carder, scammer and spammer would be good to go. Companies operating retail VPN services have an obvious need to prevent such uses of their networks. Otherwise they would be blacklisted by those they purchase services from upstream. Secondly they will have to deal with police investigations and court orders consequent to criminal prosecutions.
The delivery of subscriber data on Lulzsec participants to police in the UK last year by Hidemyass is a case in point. I doubt any other service would have behaved much differently, unless they’re so shady that such stuff pales in comparison with what they and their other customers are up to – and you might think twice about transacting with such people. There may also be a services out there which are currently following another policy and who have not yet been brought into line, but that’s a matter of time: the court cases will come.
When No Logs Means… Just a Little Logging
When VPN providers say they keep no logs, they mean that they are not watching your traffic, but they will certainly know when you *log on* and *log off* their service, because such information is useful for them in managing their own network, supplying consistent quality of service and identifying abusive users so as to eject them. In many jurisdictions they are required to keep logs by law, as is the case under EU Data Retention and US Anti-Terrorism legislation. That said, there are wrinkles as to how long the logs must be retained, and this is an evolving legal question (the situation in Germany for example is in flux). This log data connecting a user with an internet protocol address is the information required by copyright enforcement agents who will have collected the other information necessary by observing your activity on whatever protocol you use – they just need to identify you.
What VPNs can change is the jurisdiction to which your virtual identity will be subjected if observed by a potential complainant. Copyright law is territorial, not as is sometimes wrongly put ‘international’. There are international treaties, and in the EU a process towards harmonisation, but court cases will be held in national courts and decided under national law. There are countries where copyright enforcement is still not regarded as a priority, or where the media companies have not installed an efficient processing infrastructure. This may be useful if you live in a place with an enforcement apparatus industry. Even in Europe some jurisdictions may only require the handover of subscriber data if the complaint is criminal in nature, as has been the case in Spain, and thus will not stretch to common garden copyright infringement cases. But overall the situation of a VPN and an ISP are similar; they are both middlemen, the former is just more nimble in terms of setting its virtual location. In some cases ISPs are also willing to test the demands of complainants in courts because they have more resources, and interests, to do so.
With a little digging one discovers plenty of testimonies online by users who have had had their VPN service discontinued because their provider has received complaints under the Digital Millenium Copyright Act in the US. In fact, if one bothers to actually read (!) the Terms of Service, P2P and torrenting of copyrighted material is often listed as grounds for disconnection. Nobody is going to take serious heat to protect your mass entertainment supply – it’s not exactly wikileaks territory.
If you want to snarf the latest Hollywood blockbuster, there is no technical silver bullet to guarantee that will not get grief. It has always been the case that the best protection in such scenarios lies simply in the huge numbers of people doing it. The likelihood of getting caught is low, but some people will. Ultimately this will only end when the current copyright are repealed. Until then (!) the more obscure and bounded the place where you’re trading files, the less likely it is to come under the radar; the internet is a big place with plenty of poorly mapped territories – check it out!
What I find wretched is that VPNs are just the latest in a sequence of products shilled to P2P users. First it was companies giving out malware-infected p2p clients, and making millions. Then came the direct download sites, distorting filesharing into a form of FTP with a client/server architecture, and hitting the till register as they sold premium accounts – more millions. Next it was the turn of those peddling all you can eat Usenet subscriptions. Now is the time of the VPN spivs, trading on people’s fears.
What all of these companies have in common is that they want to sell you something you can either have for free, or that can’t be bought. Total anonymity in combination with high performance is simply inherently contradictory. You won’t enjoy torrenting over Tor! Anonymity ‘for hire’ is good only as long as you are faced with adversaries without sufficient motivation or resources. To believe otherwise is to delude yourself. As expert cryptoanalyst Bruce Schneier wrote:
“If you think security can solve your problem, then you haven’t understood security, and you haven’t understood your problem.”
ps No comments marketing commercial services please.
Over the last two weeks I have been catching up on developments in the copyright enforcement area with a view to writing another boring post about it. But an absurd and scandalous story from Germany requires an entry all to itself.
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.
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.
The early winter sunshine is sweeter still since the announcement of the European court of Justice’s decision (full text) in the SABAM v Scarlet litigation yesterday afternoon.
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  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.
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.
in July 2009, three months after the McCreevy’s announcement of the European Observatory on Counterfeiting and Piracy (EOCP), a ‘stakeholder dialogue on illegal up and downloading’ was launched under its auspices and the direction of Margot Fröhlinger, Director for Knowledge-based Economy at DG Internal Market.
The goal was to achieve an accommodation between content owners and the infrastructural intermediaries. From the beginning the Commission have indicated that should the parties fail to come to voluntary agreements, the EC will amend one of its directives and impose a solution: E-commerce Directive (2000/31), the Infosoc Directive ( 2001/29) or the Enforcement Directive (2004/48).
Users and Consumers Missing from the Equation
Representatives of media companies, trade associations, collecting societies and ISPs have been involved in the monthly meetings. European Consumer group BEUC refused to participate, and, whether for wont of an invitation or lack of interest, no organization representing consumer or user interests was involved.
Last week a chill ran through the irish blogosphere: former Green party minister Eamonn Ryan suggested that the outgoing Fianna Fail administration might introduce three strikes/’graduated response’ against file-sharing just as they were being kicked unceremoniously out of power. How would they do that? A statutory instrument, a diabolical device enabling the introduction by the executive of secondary legislation, based on a prior legislative act (in this case the Copyright Act as amended), without having to debate or pass it in the Dail (Parliament). Back-door legislation, in other words. This threat was quickly disavowed by the relevant minister, Mary Hanafin (who lost her seat anyway in the subsequent election). Alas this may not end the matter: the new senior government partner Fine Gael, are suspected to be favorable to a three strikes style solution.
Recent History of Online Copyright Shenanigans in Ireland…
The record companies first went on the offensive in 2005. That year the Irish Recorded Music Association (representing EMI, Warner et al.) sought and obtained a high court order to identify 17 individuals observed allegedly sharing copyrighted works (via their internet protocol addresses). Two further batches of identifications were granted in 2006 and 2007 against an additional 72 people, opening the way to civil infringement prosecution. According to IRMA defendants agreed to pay the plaintiffs around 2,500 euros each to settle out of court.
In March 2008 IRMA initiated action against the former telecoms monopoly Eircom, the largest supplier of broadband in Ireland, presumably based on a theory of contributory liability. The year before a Belgian collecting society had won a decision obliging an ISP to install filtering software in order to prevent copyright infringement. That case, Sabam v Scarlet was later referred to the European Court of Justice and a decision on the issue is expected this autumn.
Rather than confront this pressure in court, Eircom agreed to enter into a voluntary agreement with the music companies, whereby the ISP would take action against users identified by the plaintiff companies as having infringed their works. IRMA committed themselves to negotiating similar agreements with other ISPs so that Eircom would not be put at a competitive disadvantage due to their collaboration. That summer IRMA also sought a court order obliging Eircom to cut off access to the Pirate Bay, an application which was not opposed by the provider, and duly granted that September.
Concerns over the Data Protection aspects of the Eircom/IRMA agreement, the settlement was referred back to the High Court in April 2010, when it was given the green light by Judge Charleton. In the meantime other ISPs were proving to be less accommodating to IRMA’S demands, especially UPC, owner of a cable networks and formerly know as NTL. They refused either to block access ot the Pirate Bay or to make a private agreement against their users interests with IRMA. Predictably this ended up in court last October. The result was resounding victory for UPC. Justice Charleton acknowledged that there was nothing in Irish law requiring the ISPs to police their users in this way. ISPs are obviously ‘mere conduits’ for data operations, do not have any role in executing infringing activity, and are consequently protected from liability under the safe harbours for service providers under article 12 of the EU ECommerce Directive. He also conceded that there was no legal basis for grant of a blocking order as regards the Pirate Bay, and underlined that his previous decision to the contrary resulted from the fact that Eircom had not opposed the previous order nor seen fit to make any argument against it.
There is also an interesting business background to this series of events: Eircom have been haemorrhaging customers at a rapid pace, according to some estimates 1000 users per month. In the meantime UPC increased their number of phone subscribers by 60% last year. How many of those customers were attracted by the stance taken by UPC on users’ rights? Impossible to say, but it cannot have been irrelevant.
Meanwhile Eircom are having serious difficulty managing their debt levels and have warned that they may breach their covenants. Sad to say, but it’s hard not to feel some glee at their predicament; the highest line rental charge in Europe, negligible investment in the infrastructure, pathetic service and to cap it all, an unwillingness to defend their own customers legal interests in court against an industry that they were getting into bed with.
Given the recent scare, it is good to hear that there is now a ‘free culture’ group also in Ireland, launched on the initiative of Kevin Flanagan who I met at the last international meeting of EXGAE/LaEx in Barcelona in late October. They add some more attentive eyes to the trojan efforts of the people at Digital Rights Ireland, sentinels of digital civil liberties in Ireland…
.. and finishing on a Bizarrely Positive Note…
Fine Gael for Fair Use?
This whole palaver roused my curiosity about current goings on in matters copyright in Ireland. And it was with some astonishment that I discovered that Fine Gael (the victorious party in last week’s election) have at least one decent policy: it seems that they are proposing a pan-European fair use defense. Surprised as I was at first, there is a logic to it, given that Google employ over 2000 people in Dublin and the technology sector (largely composed of US multinationals) remains one of the few parts of the economy to continue performing.
Now there has been endless blather as regards the ‘knowledge economy’ in Ireland over the years, so serious scepticism is warranted (the persistence of substandard connectivity is a monument to broken promises of shiny futures past), but on copyright flexibility at least they seem to be tiliting the right way. I read that DRI organised a day school on these themes at Google recently, it seems that some of that work may have delivered a yield. Fair play.
Two spheres of activity have dominated the attention of the EOCP since its inception: the rather insipid sounding ‘stakeholder dialogue on illegal uploading and downloading’ and a subgroup working on a review of the implementation of IPRED1 and proposals for the future. Where the first attempts to broker agreements between corporate players on opposing sides of the policy battle, the second is dedicated to the generation of new legislative substance. In addition there is work being done on public awareness initiatives around the ‘problem’ of counterfeiting and piracy.
Preparing the Ground for IPRED2: Legal Subgroup; Whois?
This has a relatively small membership made up of Commission employees such as Alvydas Stančikas together with representatives from national anti-counterfeiting groups (France, Italy, Sweden, Belgium, Netherlands), their European counterparts (SNB REACT), the International Federation of the Photographic Industry, Motion Picture Association, Business Software Alliance and lawyers representing collecting societies such as BASCAP and major software producers. There are no participants from consumer or civil liberties groups, or indeed from any other NGO. Nominally the European Consumer Organization – BEUC – should have a member present as well, but this has not come to be, for reasons unclear.
Sarkozy’s grand plan against the pernicious plague of of p2p users came unstuck last june, when the Constitutional Court struck down the core of the law. Undeterred, his government immediately restarting the legislative process. Given the UMP’s large parliamentary majority, and the umbrage taken by their leadership at the opposition to this law, the process was fast-tracked, and ultimately approved by the National Assembly and Senate, who voted in favour of the new version last tuesday September 22nd. This post will cover developments up to the time of the law’s approval, while the next will detail the new challenge before the Constitutional Court submitted in recent days.
Change of Personnel at the Ministry for Culture
On june 23rd, Christine Albanel was replaced by Frederic Mitterand as Minister for Culture. the latter is the nephew of former president Francois Mitterand and comes from outside the ranks of the UMP. Steering the redrafted Hadopi law is his first assignment. Some critics of the law were initially hopeful that he might be more receptive to their objections, but this hope was misplaced. Christophe Tardieu, the Ministerial aide who saw fit to forward a mail critical of the law by Jermore Bourreau-Guggenheim to his erstwhile employer TF –resulting in him being sacked – was made head of the National Dance Council in August; is that a punishment or a reward? Meanwhile Bourreau-Guggenheim remains unemployed.
Constitutionality by the Back Door?
As described in a previous post, a key constitutional problem with Hadopi 1 was that it assigned power to negate a fundamental right (internet access) to a non-judicial authority, namely the Committee for the Protection of Rights. The purpose of such a system was to create an apparatus capable of issuing hundreds of thousands of warnings and disconnections per year, a volume possible only via an administrative rather than a judicial procedure. Forced to reintroduce judicial authority, the government has elected to use an expedited legal procedure know as the ‘penal order’ (ordonnance penale).
This mechanism is otherwise employed principally for dealing with minor road traffic offenses and in a couple of other areas. It relies on the fact that these are instances where there is little scope to dispute the facts: your car is clocked exceeding the speed limit, you break a red light on camera etc. These cases are dealt with by judges summarily, requiring on average about five minutes per case.
In the case of the alleged copyright infringements under Hadopi 2, it is sufficient that your internet protocol address is flagged transferring proprietary content, and that this is communicated to the Committee for the Protection of Rights. If satisfied by the claim, the judge can then order the suspension of the user’s internet connection for up to a year in the case of copyright violation, or one month where abuse of the line is deemed to derive from negligence (failing to prevent other parties from using the connection for infringement). Under the ‘penal order’ procedure the public prosecutor puts the defendant on notice, but the latter receives no actual hearing, has no legal representation, and the judge is not required to provides grounds for the decision. The judge may also make an order enabling the owners of the copyrighted work to make a damages claim – a facility normally unavailable under the ‘penal order’ and requiring an amendment of the penal procedural code in itself.
Users targeted under this procedure will have 45 days to make a challenge, in which case the charge will be dealt with in court under the adversarial procedure. Should they take this route they expose themselves to a greater range of sanctions. Under the 2005 DADVSI law, copyright infringement is punishable by up to three years imprisonment and 300,000 euros in fines, although in practice these have not been applied. According to the impact study prepared to accompany the law this expedited system aims to deal with 50,000 cases a year and will require 26 judges to be dedicated to its administration. The new legislation also provides for fines, both for ISPs who fail to implement disconnections, and for disconnected users who attempt to revive their access by switching to another provider.
Interestingly, despite the tam-tam of apocalyptic prophecies from the media industry regarding piracy, the most recent European cinema attendance statistics show growth of nearly 4% in the five major markets (1). At the policy level there remains no clear case that repression of p2p will lead to greater funding for cultural production.
Organizations such as UFC Que Choisir and La Qaudrature du Net, politicians from PS, Greens, Communists and the Centre, as well as public figure such as Jacques Attali have continued to oppose against the law, mourning its antiquated premises. Attali has underlined that artists in favour of a Hadopi style solution risk embracing an industry framework which will see them squeezed between the majors and the ISPs. Commenting on the government’s current prorities he remarked:
“It has a certain coherence. That of defending a few stars who are politically highly visible, but who represent nothing. And whom, if one really thinks about it, are overvalued with regard to their artistic utility, not to mention their social utility. They don’t represent the real french creativity.” (2)
In response to arguments that the new legislative framework will strengthen intermediaries rather than artists whilst failing to incentivize the expansion of legitimately available content online, Frédéric Mitterrand has commissioned a report on these topics by three grandees going under the name of the Zelnik Commission. Their report is due in early November. This is almost certainly a prelude to a proposal to introduce an additional tax on internet subscriptions, money which will be passed on on to collection societies. Notionally this would be an expansion of the rules currently applying to blank media. Such a levy on other media supports is considered as compensation for their use in the making of private copies – reproductions not permitted in the online environment. The upshot is that users will end up both taxed on their connection and face punishment should they share proprietary works.
But notwithstanding the continuing climate of unreason, history obstinately refuses to be repealed: users continue to share massive amounts of files and introduce new material into the networks.
Joseph Steglitz put it well in an op-ed in Liberation on September 16th, questioning the logic behind reliance on intellectual property perspectives and remarked:
“Those producers whose business consists in delivering music from artists to consumers have no reason to exist today. It’s like trying to save the coach and horse industry in the age of the automobile.” (3)
Good news from France: the Internet and Creation Law, pushed through the legislature by Sarkozy’s UMP, was found unconstitutional on several counts by the France’s Constitutional Council on wednesday. Below I have translated what I think are the most salient sections of the first part, concerning (1) the failure to comply with the presumption of innocence (paragraph 17), (2) reversing the burden of proof ( paragraph 18), and (3) imposition of punishments without involvement of the judiciary (paragraph 16). There are also others dealing with privacy which I will return to later.
What this decision means, is that right to internet access has actually been constitutionalized by the domestic authority. As a consequence, the fate of the campaign for Amendment 138 to the Telecoms Package at European level loses some significance, as it had basically the same aim. The whole purpose of Hadopi has now been negated: a judge will have to be involved where intenet connections are to be cut off. This will slow down the wheels of the administrative machinery, which was designed for the issuance of tens of thousands of warnings on a quasi-automated basis.
Christine Albanel, the Minister in charge of Hadopi has promised to amend the law to return it to constitutionality and has pledged that the first warnings to users will begin by the autumn. But we’ll see about that. This may be just the first sand in the motor of a tricky and unpopular process.
Meanwhile the collective “Pour le Cinema” welcomed the decision, and reaffirmed their commitment as part of the platform “Création Public Internet” (together with la Quadrature du Net, UFC QueChoisir, SAMUP and French branch of the Internet society), to organise a series of public hearings on digitalization and creation in the autumn, with the goal of devising solutions to enable cultural production without reliance upon repressive mechanisms against the public.
Decision 2009-580 DC, 10 June 2009
12.Taking into account the terms of article 11 of the Declaration of the Rights of Man and Citizens of 1789: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”; that in the current state of communications technology, and with due regard to the generalized development of online communications services, as well as the importance of these services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access such services:
13. Taking into account that property is amongst the human rights enshrined by articles 2 and 17 of the Declaration of 1789; that the aims and conditions for the exercise of the right to property have seen an evolution since 1789 characterized by an extension of their field of application to new domains; that amongst the latter appears the right, for the holders of copyright and neighboring rights, to enjoy their intellectual property rights and to protect them in a framework defined by the law and by France’s international commitments; that the fight against methods of infringement which are developing on the internet corresponds to the objective of safeguarding intellectual property;
16. Taking into account that the power to sanction enacted by the clauses under challenge empowers the commission for the protection of rights, which has no jurisdiction, to limit or prevent internet access to subscribers as well as other persons who may benefit from it: that the competence granted to this authority is not limited to a particular category of people but rather extends to the whole population: that its powers could lead to restrictions on the right to express oneself and communicate freely, notably from their own home; that in such circumstances, having regard to the nature of the freedom guaranteed by article 11 of the Declaration of 1789, the legislator could not, irrespective of the guarantees surrounding the pronouncement of punishments, grant such powers to an administrative authority with the purpose of protecting the rightsholders of copyright and neighboring rights;
17. Taking into account, moreover, that by virtue of article 9 of the Declaration of 1789, all men are presumed innocent until found guilty; that consequently the legislature cannot in principle institute a presumption of guilt; that nonetheless, in exceptional cases, such presumptions can be created, notably for petty offenses (matière contraventionnelle), so long as they are not conclusive in nature, that the rights of the defense are observed, and the facts reasonably infer the probability of liability
18. Taking into account, in this particular case, that it follows from the clauses under review that carrying out an act of infringement from the internet subscriber’s address constitutes, according to the second paragraph of article L.331-21, “the materiality of the failures defined in article L. 336-3 “; that only the holder of an internet access subscription can be the target of the punishment put in place by the clause under review; that in order to be exonerated, he must, by virtue of article L. 331-38, produce proof of such a nature as to establish that the injury to copyright or neighboring rights resulted from fraud on the part of a third party; that by thus inverting the burden of proof, article 331-38 institutes, in breach of the requirements of article 9 of the Declaration of 1789, a presumption of guilt against the holder of internet access, enabling the imposition of punsihemnets both privative and in restriction of rights against him;
The law was passed just a moment ago: 296 – 233.
Next stage in adoption is a vote in the Senate on May14. Given that the socialist senators supported it in previous readings, unlike the PS MPs in the Assembly, there will be little opposition.
Sunday’s Liberation reported an announcement from the French Ministry for Culture that they had identified the staff member responsible for passing Jérôme Bourreau-Guggenheim’s letter to his MP on to his employer TF1, leading to his sacking. According to Electronlibre, his name is Christophe Tardieu and he is Minister Christin Albanel’s assistant director. He offered his resignation, rejected by the Minister, and has been suspended for a month.
National Spyware Program
An element of Hadopi which hasn’t received much or enough attention as yet, is a section which specifies steps that can be taken by computer users to ensure that they will not be found liable under the new regime. The following is a rough translation of the relevant sections, taken from the text of the law in its current state, as found here (final version as amended and adopted by the Senate on May 13th, here). Bear with me, it is torturous, some explanatory notes are added in bold…
« Art. L. 331-30. – After consultation with those developing security systems designed to prevent the illicit use of access to a communication service to the public online (internet!), or electronic communications, people whose business it to offer access to such a service (ISPs) as well as those companies governed by title 2 of the book (Intellectual Property Code) and rightsholders organizations (ie SACEM etc), the High Authority will make public the pertinent functional specifications that these measures must comprise so as to be considered, in its eyes, as valid exoneration of the responsibility of the access subscriber (internet user!) as defined in article L. 336-3.
At the end of a certified evaluation procedure, and taking into consideration conformity with the specifications set out in the previous paragraph and their effectiveness, the High Authority will issue a list certifying the security software whose use will validly exonerate the access holder (internet user!) from their responsibility under the terms of article L. 336-3. This certification will be periodically revised.
Mmmh. So what the law intends is to set up a meeting between consultation with security software vendors, antipiracy organizations and ISPs to decide what software you need to install on your machine, so that they can be sure that you behave yourself. If you don’t fancy installing their device, then you’ll just have to swallow any liability consequent to someone else using your machine or accessing your connection.
Art. L. 336-3. – The access holder to an online service of communication to the public ( internet!) or electronic communications is obliged to ensure that thus access is not used for purposes of reproduction, display, making available, or communication to the public, of works protected by copyright or a neighboring right, without the authorisation of the holders of those rights set out in books 1 and 2 (of the Intellectual Property Code), where required.
Failure to satisfy the obligation set out in the preceding paragraph can result in a punishment according to the conditions defined by article L. 331-25.
No sanction can be taken regarding the access holder in the following cases:
1° If the access holder (internet user!) installed on of the security systems appearing on the list mentioned in the second paragraph of article L. 331-30;
2° If the attack on the rights set out in the first paragraph of the present article is the work of a person who has fraudulently used the access to the online communication service;
3° In case of force majeure.
The failure of the access holder to the obligation defined in the first paragraph will not have the effect of imposing criminal liability.
Apart from finding the last paragraph a bit puzzling – the list of exceptions exempts from all liability, the coda refers only to criminal liability – and the language atrocious, it’s obvious the whole framework is mad and unacceptable. Imposing such strict liability unless users agree to install spyware, almost certainly connected to remote databases, is intrusive as well as dangerous.
How can this not amount to a wholesale surveillance of online activity? Who will have access to the data collected and transmitted by these ‘security systems’ (sic), and how will that access be managed? Will the security systems be transparent (free software/open source), or proprietary black-box money-makers, prone later to surrender to a veritable orgy of exploits? If proprietary, how will it be interoperable with free operating systems such as GNU Linux?
‘Certification’ (labellisation) is a phrase commonly heard in recent weeks, and the government wants to ‘certify’ legal content providers (Article. L. 331-21-1), and ultimately looks forward to a set of digital fingerprints corresponding to the works in their repertoires. Presumably the approved ‘security systems’ are intended to be able to interact with a database of such objects.
The proposals were already criticized by the French Free Software advocacy group APRIL in March. Attempts by the opposition to have a member of the French data protection agency, CNIL, designated a seat on the Hadopi ‘High Authority’ were rejected, so there won’t be any reassurance coming from that direction.
With the clarification of the law, and its pending passage into the statute book, more attention needs to be focused on these technical provisions and the future process through which they will be defined.
For a guide to my various posts on Hadopi, please click here.
Rejected by a poorly attended chamber on 9th April, the government immediately vowed to reintroduce legislation against p2p users, a matter close to President Sarkozy’s heart. Consequently the Creation and Internet law (Hadopi) has been under discussion in the French Parliament, once again, since April 29th and will come to a vote on May 12th.
During the debates on the transposition of the EU Copyright Directive in 2005, known as DADVSI, clear differences in approach towards the filesharing phenomenon were manifest. Most of the UMP (conservative majority) saw the practice as a threat to be repressed through increased legal sanctions. The PS (soft left opposition), together with some centrist and UMP dissidents, preferred the imposition of a supplementary charge on broadband connections in exchange for a compulsory license giving the right to share media online. This would generate a revenue with which to compensate rightsholders, and would be distributed via existing collecting societies. To the government’s surprise an amendment inserting the compulsory license proposal garnered enough support to be carried in December 2005.
A second reading of the bill in March 2006 saw the amendment removed, and it was absent from the final text. But the debate did not disappear, and during the presidential election the two main candidates took opposing stances on the issue: Segolene Royal supporting the global license, Nicolas Sarkozy opposing it absolutely. He promised to establish a commission to review the effectiveness of DADVSI and propose additional measures, having already declared himself favourable to a system of graduated response – what has become known as “three strikes”.
Following his election, Sarkozy convened a sectoral summit at the Elysée, which led to a new set of proposals known as the Olivennes-Elysées accords in November 2007. Billed as a watershed agreement between ISPs, ‘creative artists’ and the state authorities, the proposals were presented as a means to provide a proportional deterrent to filesharing whilst expanding the availability of legitimate services. Hadopi is the deterrent, and is a pet-project of the French President. Its rejection was taken as a personal affront, and Sarkozy invited a group of sixty artists and producers to the Elysée on April 22nd to reassure them of his determination to get the law passed.
But in the interim, matters have been complicated on several fronts.
The first of these has legal significance: on Wednesday the European parliament voted in favour of the so-called Bono amendment 138/46 to the Telecoms Package (TP) (404 – 57, 171 abstentions). The wording is as follows:
“Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a “prior ruling by the judicial authorities,” notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”
This limits the power to disconnect a user’s connection to procedures involving the judiciary, an element absent from the process Hadopi is intended to establish. This obligation will undermine the whole purpose of Hadopi, conceived as a rapid means to deal with the huge number of p2p users in an administrative fashion. Involvement of a judge in each case of disconnection will slow the process down massively and make it more costly. Indeed this was the very aim of amendment 138, proposed not coincidentally by two french euro MPs, Guy Bono and Daniel Cohn-Bendit, so as to preemptively emasculate Hadopi. This is the second time 138 has been been endorsed by a large majority in the European parliament. On the first occasion the French government later blocked the amendment in the Council of Ministers. Thus when the telecoms package returned to Parliament, it had been stripped from the text and need to be reinserted by another vote.
Reintegration of 138 poses two problems for the French government. If the package is ultimately approved and becomes law, then Hadopi will be incompatible with its provisions. If, alternatively, they attempt to block it again at European Council level (whose next TP meeting is June 12th), it will generate further delays for a TP which addresses economic interests far greater than those of entertainment companies.
Scandal at TF1: Sacked for Expressing an Opinion
Yesterday’s Liberation carried a detailed report on the dismissal of a TF1 (Télévision française 1) employee for having expressed his opposition to the law. TF1 is a private TV network, whose boss Martin Bouygues is a close friend of Sarkozy. Jérôme Bourreau-Guggenheim was employed there in the web innovation unit. In February he wrote a personal mail to his MP, Françoise de Panafieu (UMP), expressing his opposition to the law and outlining his reasons as well as explaining his involvement in the sector. At the beginning of March he was summoned by his boss at TF1 online, Arnaud Bosom, who read his letter back to him, verbatim. Bosom explained that the letter had been forwarded to TF1’s legal adviser, Jean-Michel Counillon, by the Ministry of Culture! In April he was summoned to a disciplinary meeting and was sacked on April 16th.
On April 16th, Jérôme Bourreau receives his letter of ‘dismissal for clear deviation from the strategy’ of TF1′. A shocking letter, which Liberation has a copy of: the group criticizes their employee for his mail to Panafieu, ‘in which he emphasizes, as an employee of the company, his hostility to the Creation and Internet law. And TF1 writes black on white ‘This correspondence reached us through the cabinet of the Ministry for Culture who forwarded it that same day to TF1.’
Bu the best bit is still to come, the human resources department writes: “We regard this attitude as an act of opposition to the strategy of the TF1 group (for whom) the adoption of this law is a high priority”. Before criticizing Bourreau for having ‘put the group in difficulty, his position having given the appearance of a lack of agreement between a ‘web’ manager and the official position as expressed by the company’s directors.”
Bourreau has started proceedings for unfair dismissal. Even supporters of Hadopi have been shocked at this event and a real scandal is brewing.
TF1 is heavily involved in DVD business. Under pressure over the sacking, they issued a communique where they explained that he had been dismissed for the ‘particularly radical positions, repeatedly expressed in public’ against Hadopi. Such positions ‘are contrary to the official declarations of the the TF1 Group, famously favorable to the law‘ and ‘incompatible with his responsibilities within e-TF1, a subsidiary of the group responsible also for anti-piracy work on the internet.’
But note that there is no further explanation as to the source of their employee’s letter. Nor is there any specification regarding his ‘public’ expressions of opinion, nor, specifically, any utterances made in a context which could be construed as antithetical to his role within TF1. In fact, this man’s opinions were apparently not at all public, until they fired him after receiving personal correspondence between him and his MP. The guy was sacked for having the wrong point of view. Full stop.
Minister Christine Albanel insists that she did not relay the information to TF1, and word is that there is hunt on for the snitch. Given that the whole framework of Hadopi is built around identifying liability by means of IP addresses, one hopes that it should not be too hard for them to find out who forwarded the mail from the Ministry.
‘Artists’ Against ‘Socialists’ (PS)
I’ve already chronicled elements of the war of words conducted through the media between pro (Tavernier et al) and anti Hadopi factions (Branco/Deneuve, Sci-fi writers). In the last two weeks there have been further salvos: first, another letter from the Tavernier coterie  published in Liberation and titled, “A Bad Movie at the Parliament”, accusing socialist deputies of trickery (!) against the law. Alleging that the bill’s opponents had no feasible alternative to current copyright protections, they railed against the compulsory license (licence globale) as unsuited to cinema; here, they say, monetization relies upon exclusivity, and freedom to share works online would erode that to the point of collapsing their markets. They continue:
“It goes without saying that the meager offering of the ‘creative contribution’ (current formulation of the compulsory license) will never attain the levels of current financing, which the cinema needs to remain diverse and creative.
Or else it’s another type of cultural society that they want to build, a society where support for diversity in cinema is drastically reduced, and where the most fragile works, those least expected by the market, will be cast-off. We refuse that utterly.”
PS deputies replied, describing Hadopi as a framework that sets artists against users, and which does so whilst attempting a generalised monitoring of online activity. Secondly they argued that the law would provide no additional financing for creation in a situation where filesharing is guaranteed to continue. According to estimates, their proposed alternative – the ‘creative contribution’ – would generate a billion euros a year to finance creation and conclude:
“The digital world makes possible one of the Left’s dreams: access to culture for the all. It necessitates a rethink of outdated economic models, their rules and financing. The legislative prohibitions being attempted can merely delay this change. Do we wish to submit or to channel it? Do we want to guarantee freedom for creators and for internet users, or must everyone end up losers? Do we want culture to be a commodity or something different?”
A few days later another recriminatory letter attacked the PS’s position, this one signed by five self-identified ‘leftwing artists’. The French press has paid some attention to these critics largely because cultural circles have been historically on the moderate left, a tendency consolidated during the presidency of Francois Mitterand in the 198s. On coming to power in 1981 he doubled the budget of the Ministry of Culture and appointed Jack Lang, at that time involved in theatre, as Minister. Little wonder then the PS won so many friends amongst artists in the 1980s – they were giving away money! Many of the artists in the pro-hadopi camp are, well… ageing, and the line of division in the cultural world appears more generational than anything else, although there are obviously exceptions.
The Future of the Cinema (Theatre)
Next it was the turn of independent cinema operators to oppose the law. Repeating many of the criticisms made by others, they go on to meditate on the role of theatres in all this:
“If cinemas still have a future, it is to be a place of exchange and sharing, and not a place where cinemagoers are placed under surveillance with infrared binoculars (to catch people shooting ‘cams’)… cinemas have a reason to exist and that is to be a place for collective experience, and to be fully embedded in neighborhood life.
How could we have lost the sense of what we do to the point of limiting individual rights and the dissemination of works in the name of preserving creation? By setting artists against their public, Hadopi empties of meaning the goal of all creation: to be seen, heard and shared.”
Elsewhere their concerns extend to the technology for digital delivery and projection of films, worrying that ISPs may attempt to monopolise these services, but hoping that they can take advantage of digitalization to diversify their programs.
Geeks in the Streets…and the Fiasco to Come…
Meanwhile street demonstrations against the law took place in French cities on April 25th, and in Paris as part of 1st May. Organized online, they’ve succeeded in mobilizing decent numbers.
Notwithstanding all this opposition, it is inevitable that this bill will be passed. Sarkozy is full of wrath at the lèse majesté of its previous rejection, and the process now seems beyond rational analysis. The atmosphere was best captured by an anonymous MP from Sarkozy’s UMP, who stated:
“We’re headed towards a fiasco, but we’re obliged to go there.”
(1) see La Quadrature du Net for more detail.Back to post 1
(2) Somewhat surprising to find Costa-Gavras on the list; one time correspondent of the Uruguayan Tupamaro revolutionaries depicted in State of Siege, and director of Z, a compelling account of Greece just prior to the regime of the Colonels.
The full list of signatories: Jean-Jacques Annaud, Patrick Braoudé, Christian Carion, Alain Corneau, Dante Desarthe, Jacques Fansten, Costa-Gavras, Laurent Heynemann, Pierre Jolivet, Gérard Jugnot, Philippe Lioret, Radu Mihaileanu, Claude Miller, Jean-Paul Rappeneau, Coline Serreau, Bertrand Tavernier, Pascal Thomas, Danièle Thompson, Nadine Trintignant, Bertrand van Effenterre, Christian Vincent et Roschdy Zem. Back to post 2
Science-fiction writers have also gotten involved in the debate on Hadopi. On Monday a wide swathe of the sci-fi world – writers, critics and publishers – expressed their opposition to the law, below is a full translation of their open letter to the public.
To see my more recent posts on Hadopi, click here.
Who Will Control the Future?
We the people of science-fiction, writers, translators, illustrators, critics, commentators, essayists, bookshop-owners, bloggers, publishers and collection editors, must express through this text our opposition to the Creation and Internet law.
It would be a truism to state that science-fiction concerns itself with the future and that many of its participants have denounced the possible, even probable, pitfalls (dérives) of industrial and technological societies; George Orwell’s name comes immediately to one’s lips, but also that of John Brunner, Norman Spinrad, Michel Jeury, J.-G. Ballard, Frederik Pohl, Cyril M. Kornbluth, and many others besides.
Science-fiction can detect the seeds of these pitfalls in the present, because it is precisely from the present that possible futures emanate, and it is in the present that the world of tomorrow is decided every day.
The distrust of new technological developments and the changes which result, the fear of the future and the desire for control of a society obsessed with the discourse of security… all that has already been addressed in sci-fi, and if there’s one thing which it has taken into account it’s that the techno-sciences are the principal cause of change in modern societies. From such changes. in course or in germ-form, no-one can know the effects but we do know that erecting barriers or walls against them results only in seeing them fall one day, in a more or less brutal manner. So rather than forbidding, wisdom, but also realism, should spur us to allow free reign to the freedom to innovate and create. The future that we have to invent each day should not be based on fear, but on sharing and respect.
The Creation and Internet law, rejected by the National Assembly on the 9th of April last, will be presented again to our national representatives at the end of the month.
This law, which we are told will protect artists’ rights and copyright in general, seems to us a Trojan horse, deployed to try and establish control over the internet, and is thus a threat to freedom of expression in our country.
Artists, creators, all those cultural actors without whom that word would be emptied of meaning, are being instrumentalised for the benefit of a law which, we must remind everyone, contains measures to filter the net, install spyware on individuals machines, and suspend internet connections without the involvement of a judge on the basis of IP numbers (whose lack of reliability has long been established) collected by private companies, and the extension of measures initially conceived for police anti-terrorist activity to the sharing of files between individuals.
Whilst deeply attached to copyright, which represents the sole or principal source of income for many precarious intellectual workers in our ranks, we protest against those who brandish it incessantly to justify measures which, while technically unfeasible, are certainly dangerous, and whose potential to erode our rights is only too obvious in the eyes of those of us whose daily work involves the scientific, political and social thought which is at the core of science-fiction.
Likewise, conscious of the interests and value of creative communities, we also protest against the danger that this law poses to the universe of culture distributed and shared under free licenses, which constitutes a wealth accessible to all.
The internet is not a chaos but rather a collective work, where no actor can demand a privileged position, and it is aberrant to legislate on practices born from 21st century technologies on the basis of schemas taken from 19th. Think about it.
Because the future is our trade.”
Joseph Altairac, essayiste, Jean-Pierre Andrevon, auteur, critique, essayiste, Andoryss, scénariste (BD), Ayerdhal, auteur, Raphaël Bardas, auteur, Stéphane Beauverger, auteur, Geneviève Beduneau, auteur, blogueuse, Ugo Bellagamba, auteur, essayiste, Jean-Luc Blary, éditeur, Pierre Bordage, auteur, scénariste, Michel Borderie, illustrateur, Bruno B. Bordier, auteur, Charlotte Bousquet, auteur, Georges Bormand, auteur, critique, Alexis Brun, éditeur, David Calvo, auteur,
Via a comment on the blog I learned that the letter translated below was not drafted by Paulo Branco the producer, but in fact by his son Juan Paulo Branco, who is also the maintainer of the blog Pour le Cinema (For the Cinema). Sorry Juan Paolo!
Things are hotting up in France ahead of the reintroduction of the Internet and Creation Law (HADOPI) in the French Parliament on April 29th. As I’ve described elsewhere several groups of musicians and filmmakers have made public pronouncements in support of the law. While there have been dissidents to the industry line throughout, a serious crack has opened up in the last week. Below I’ve translated the letter (French original here) drawn up by Juan Paulo Branco, and signed by over thirty figures from French cinema. Arthouse fans will be happy to see Chantal Akerman on the list, Eva Truffaut – who holds the rights to all her father’s films – documentary and narrative filmmakers, producers, casting directors and actors. One name stands out however, because it’s loaded with serious cultural capital, and that’s Catherine Deneuve. Ah, one more thing, another signatory is a certain Jean Sainati, whom you probably haven’t heard of: he was executive director of the ALPA ie the Antipiracy Board, from 1988 until 2002. Is the penny dropping yet?
The call came late, but hey, it came. Paulo Branco put the delay down to the time required to collect the signatories and veiled threats made to him by other members of the film industry. Serious stuff given that he’s no industry ingenue, having produced more than 200 movies for directors including Wim Wenders and Raoul Ruiz.
When the entertainment industry marshaled its troops for public display at the Odeon in Paris the parade was largely composed of aging songwriters. Note the looks on their faces. They have the support of some younger musicians as well, and Luc Besson and Bertrand Tavernier have been busy penning open letters in favour of the law, but the emergence of this schism internal to the cinema world will complicate the public debate significantly.
Meanwhile Juan Paulo Branco has launched a blog around their call, and is collecting alternative proposals to Hadopi. Today’s contribution is from campaign group, La Quadrature du Net, titled “The necessary union between artists and internet users.” The same crowd who are coordinating an international campaign around the EU Telecoms Package. One imagines that the article must have caused some squeaky-bums moments in a few Parisian boardrooms.
An Open Letter to Citizen Viewers (Spectateurs),
Here is the open letter through which the opposition movement of the cinema world against the Hadopi law has begun. It constitutes a first step in the struggle for a more just system which takes into account the interests of all: the battle has just begun.
Committed (engagé) artists and producers, throughout our careers we have dedicated ourselves to a different cinema, a cinema which is open and challenging.
You have brought life to our work, heralding, acknowledging or rejecting it. Throughout our careers, we have pursued the same ambition: to spread our work and share it with you. Throughout our careers, we have faced a thousand obstacles, be they technical, material or economic.
Today we have the luck to live through a digital revolution which will allow us, in the very near future, to remove a number of these obstacles and open our cinema to all.
Today some fear this revolution, and fear for their monopoly. The Internet and Creation Law responds to a legitimate anxiety, which we share: that of seeing works devalued and degraded through distribution on the internet.
However this law, which claims to position itself as defender of creation, merely establishes a punishment mechanism of dubious constitutionality and opaque functionality.
Fruit of a massive exercise in lobbying and based on the presumption of guild, the Internet and Creation Law creates HADOPI, a high authority controlled by the executive which will be able to cut off an internet user’s connection for an infinitely extendible period, with neither the slightest proof nor the possibility of legal recourse,
Worse, and contrary to what has been widely written, no legislative provision enacts the substitution of criminal and civil charges with this procedure, making a ‘dual punishment’ possible .
Just as the European Parliament has almost unanimously characterized access to the internet as a fundamental right for the third time in just a few months; as ‘graduated response’ model crumbles in the United States; and while the rest of world emphasizes the pursuit of commercial pirates, the French government persists in treating users, viewers, as immature children at the root of all the cinema industry’s problems.
Demagogic, technically unfeasible, doggedly ignorant of the new methods of downloading, and purely repressive, this law is also a missed opportunity. Providing no new form of remuneration for rightsholders, the Internet and Creation Law addresses neither the cinema in its diversity, nor the viewers. Constituting just one last vain attempt to eradicate piracy through punishment, without concerning itself with the creation of legal alternatives, affordable and openly accessible via internet, it responds to none of the challenges posed today by new technologies, even though a strong and creative response is required by the cinema industry and those bodies dedicated to the protection of rights.
We do not identify with this approach, and call for a change of mentality. Fear of the internet is a mistake that we can no longer allow ourselves to make. It is time to accept that we must adapt ourselves to this “new world”, where access to culture loses its discriminatory character, and stop striving to create a society of virtual surveillance where everyone feels monitored.
Be it through a system of compulsory license (license globale) or by through the development of a unified platform for the downloading of works without DRM at reasonable prices, positive responses to this challenge are needed today, which measure up to the expectations of the audience. Now is the time for reinvention and amazement, rather than the introduction of the umpteenth repressive mechanism….
Conscious of the needs of rightsholders, as we are ourselves, to find new forms of remuneration and get rid of piracy…
Confronted by a mechanism which is essentially conservative, demagogic and corrosive of liberty, which does not deals with what is really at stake in the digital revolution, and pays no heed to the interests of auteur cinema (cinema d’auteur). And in response to the numerous public declarations, drawn up by institutions and lobby groups to speak in the name of a profession which they represent only in part….
We, filmmakers, producers and actors, mark with this declaration our refusal of the Hadopi system, and the Internet and Creation Law.
We call on all lovers of cinema and freedom, of creation and diversity, to make their voices heard to their representatives to abandon Hadopi while there is still time, and put in its place a more just system, taking into account the interests of all.
Victoria Abril (actrice), Chantal Akerman (réalisatrice), Agathe Berman (productrice), Paulo Branco (producteur), Catherine Deneuve (actrice), Louis Garrel (acteur), Yann Gonzalez (comédien), Clotilde Hesme (actrice), Christophe Honoré (réalisateur), JP Limosin (acteur), Chiara Mastroianni (actrice), Zina Modiano (réalisatrice), Gael Morel (réalisateur), Eva Truffaut (artiste cinéaste, ayant-droit de François Truffaut), Brigitte Rouan (réalisatrice), Françoise Romand (réalisateur), Laurence Ferreira Barbosa (réalisateur), Santiago Amigorena (réalisateur), Jeanne Balibar (actrice), Luc Wouters (SRF), Jean Sainati (ex délégué de l’ALPA général de 88 à 2002), Pierre Cattan (producteur), Gilles Sandoz (producteur), Pascal Verroust (ADR productions), Timothy Duquesne (auteur), Agnès de Cayeux (auteur), Antoine Moreau (auteur), Nathalie Chéron (directrice de casting), Gisčle Rapp-Meichler (cinéaste), Sylvain Monod (producteur, cinéaste), Richard Rousseau (directeur de casting), Fabrice Ziolkowski (réalisateur), Jacquie Bablet (réalisateur), Olivier Seror (réalisateur)
To see my more recent posts on Hadopi, click here.
Quite a bit of commotion has been unleashed by the conviction in Nordic climes (click here for analysis of the decision). There is a sort of cognitive dissonance when you look at the Swedish newspapers and see the topics covered: IPRED, ACTA, the EU Telecommunications package and of course, the Pirate Bay Trial. It’s as if through some weird alchemy Slashdot and the printed press have mated and given birth to a new hybrid. Today even the rather trashy Expressen took a moment out from the travails of pop stars and the hunt for tax tips to publish a love letter, ‘Beloved Internet‘, denouncing everything from the fight against filesharing to the new FRA surveillance law. For a moment I wondered if there might be an accompanying photo story, 1980s style, dramatizing the thoughts of the article…
In Stockholm 1000 people answered the Pirate Party‘s call to demonstrate against the court decision this afternoon, other demonstrations were held in Lund and Karlstad, yet another will take place tomorrow in Gothenburg.
Oscar Swartz provided detailed daily coverage from Stockholm for Wired during the trial. He managed to contact the elusive Anakata (aka Gottfrid Svartholm Warg) who wins the prize for most pithy reaction to the decision. Asked how he felt about his conviction, he replied, ‘Like a dog!’– the last words uttered by Josef K., Kafka’s protagonist in the novel ‘The Trial‘, just before he shuffles off his mortal coil.
While entertainment industry lawyers celebrated the result as a ‘victory for artists’, musicians are divided on its merits. Lasse Lindh applauded the conviction, noting that it was ‘good for her’, but rapper Timbuktu described it as a farce and stressed the disproportionate scale of the punishment. Anders Wendin (Money Brother) was shocked that a jail sentence was meted out but ABBA star Björn Ulvaeus celebrated the decision and said that TPB were simply thieves. Henri Vogel, editor of Musician magazine, had no problem with the decision in principle, but railed against the harshness of the sentence whilst doubting the ruling would have any effect on the scale of downloading in general. How long will it be before many people in the music industry share the view of former director of EMI Norway Eric Johansen that filesharing is not theft, and the war on piracy is useless?
Writer ‘Dick Harri PhD’ doesn’t have ambivalent feelings on the matter. He’s insistent that downloads of his books are destroying his livelihood, welcomed the sentence, and added that he’d like to have seen an even stiffer sanction. A position not shared apparently by novelist Unni Drougge, who addressed today’s pirate demonstration in Stockholm.
Away from the more general debate and back on the court decision: Rasmus Fleischer of Piratbyran has dedicated his last blog posts to the judge’s characterization of the TPB as a ‘commercial operation’. He points out that although there was no evidence that TPB made any profit from advertising (the defence argued it merely financed site maintenance), the finding that the site was commercial enabled infliction of a stiffer sentence. This is a good point, and indeed the last decade has seen a determined attempt on the part of lobbyists and legislators to blur the lines between what constitutes commercial and non-commercial activity.
The purpose of this operation is to generalise the use of legal instruments formerly used only against commercial infringers. The use of the ‘commercial scale‘ as the the defined threshold for a criminal copyright offence is the most concrete result, as it does not require that money is made, only that large numbers of copies are produced, bringing all forms of internet distribution and p2p within its fold. This legal innovation first saw the light in the 1997 No Electronic Theft act in the United States , – where it was defined as “‘for purposes of commercial advantage or private financial gain”; ‘gain’ also understood as embracing receipt of other files – and there have been determined attempts to export/import expansion of criminal responsibility by copyright expansionists ever since.
Meanwhile there are signs of life in the Swedish ISP galaxy. First TeliaSonera, a major broadband provider is refusing to block access to TPB (where business continues as normal), a position shared by Bahnhof, Bredbandsbolaget and Com Hem. Explaining their position Bahnhof CEO Jon Karlung said, “We will not censor sites for our customers, it’s not our job. Anything that violates the principle of a free and open internet, I think, is bad.”
In addition two ISPs have stated that they will not comply with IPRED provisions requiring operators to hand over information linking users to IP addresses for use in copyright infringement investigations. All Tele and Bahnhof have said that the requirements imposed by IPRED are at variance with their obligations under Data Protection legislation and that they will comply with the latter rather the former. Bahnhof has said that they simply do not keep such information.
This morning the district court in Stockholm announced the conviction of the four defendants in the trial against The Pirate Bay (TPB) – Peter Sunde Kolmisoppi (Brokep), Carl Lundström, Fredrik Neij (Tiamo) and Gottfrid Svartholm Warg (Anakata).
A Google translation of The court decision is now available in english from the IFPI website. What follows is culled from the Swedish press and a cursory examination of the court decision (from the Google translation of the original Swedish version).
The crux of the matter is that they were convicted on one charge, assisting in copyright infringement (violation of the ‘making available’ right), and cleared on the other – ‘preparing a violation of copyright law.’
Sentences handed out were in line with the request of prosecutor Håkan Roswall in March: one year in jail. In addition the defendants have also been ordered to pay 30 million SEK, around 2.72 million euros, in damages to the entertainment companies behind the case. That sum was calculated in relation to the 33 works listed on the indictment, distributed on TPB between July 2005 and May 31 2006. Marten Schultz, an expert on damages in Swedish law has criticised the scale of the award, and argues that it highlights the error in treating the criminal liability and the damages claim as part of the same proceeding.
Reactions to the Result
Naturally the lawyers and businesspeople involved in the prosecution are rejoicing at the result; Henrik Pontén from the anti-piracy office stated it removed any doubt as to the illegality of TPB as a site, and would pave the way for an expanded legal offering of entertainment works online. Per Sundin, CEO of Universal Music in Sweden, and former CEO of Swedish Sony BMG was also pleased – during the trial he had compared the defendants to ‘digital fences.’ Monique Wadsted, acting on behalf of the MPAA’s Swedish franchise expressed her satisfaction not only at the result, but at the written opinion, which she claimed would withstand higher court scrutiny. But she must have been a little disappointed, after all, she did request the judge to give the defendants two years each….
As for TPB, Peter Kolmisoppi held a press conference over the net from Malmo, where he declared that he’d rather burn everything he had than pay any of the damages, and expressed confidence that they would triumph on appeal. the two stream are archived at Bambuser here (nb first five minutes in Swedish) and here. The Pirate Party declared the decision a scandal, and have announced demonstrations in major cities for tomorrow. their web site has also slowed to a crawl under the traffic, and they say that 2000 new members have joined in th last 24 hours. Lawyers for the defendants were also shocked, and Peter Althin in particular was outraged that the decision had been leaked prior to its official release (there is now an investigation taking place in regard to the leak).
Meanwhile in Moscow, Pirate Bay supporters threw a street party…
Infringement of the Making Available Right
The court followed a series of steps in coming to the guilty verdict (see pages 56 and thereafter in the judgment).
First they stated that the works listed as having been infringed were in fact protected by copyright – this was undisputed.
Second, were the works made available without the consent of the rightsholder – again, there was no dispute on this point.
Third, had a communication/transmission to the public – a new element of the exclusive right of ‘making available’ introduced by the Swedish implementation of the EU copyright directive (July 1st 2005) – taken place? For that right to be violated, a user must have had the possibility to access the work at a time and in a place of their own choosing. The court deemed that this was what happened in the case of accessing a work via a torrent download.
IFPI and anti-piracy staff Magnus Mårtensson and Anders Nilsson had downloaded the specified files during the period, and this was taken by the judge as evidence that the works had been the object of a communication/transmission to the public.
Fourthly, although some of the downloads took place in other jurisdictions, the presence of TPB’s servers in Sweden meant that the violations were punishable in Sweden. Under section 4 of the Swedish criminal law, liability for a crime lies not only with those who committed it, but also those who ‘promoted’ it by ‘advice or deed’ (p.62).
To sum up, TPB:
“….encouraged the main crimes by making it possible for users to load up and store the torrent files to file-sharing service The Pirate Bay provided a database linked to a directory of torrent files, making it possible for users to search for and download torrent files as well as to provide functionality through which the users who wanted to share files could have contact with each other by sharing the service tracker function.” (p.62)
The court stated that TPB was liable for continuously assisting copyright infringement during the period alleged. Furthermore, they insist that in order for the making available right to be infringed, it is not necessary for a full copy of the work to be copied, a portion of a work is sufficient. (p.64)
Collective Responsibility of the Four
There was little doubt about the role of Fredrik Neij and Gottfrid Svartholm Warg in the site, as they admitted to having taken care of much of its technical functioning.
According to the Court, Peter Sunde Kolmisoppi’s liability stems from his involvement in the flow of advertising payments and the use of his company HAIQ for the issuance of invoices in relation to same. In addition his suggestions with regard to the site development were taken as a further indication of involvement.
Carl Lundstrom’s purchase of servers, provision of bandwidth and correspondence of Oded Daniel, specifically in relation to 8.25% share were considered sufficient to establish his involvement,
The judge stated that the defendant’s claims of ignorance regarding the works listed in the indictment is immaterial to their liability – it is enough that they knew that copyright infringement was taking place in general through the site.
Claim of Safe Harbour under the EU E-Commerce Directive
The court found that TPB was a commercial information service provider as defined by the law (the commercial element being derived from their advertising revenue). As they stored torrent files, rather than providing transient storage necessary for a given transmission, they would have had to have in place a process for dealing with copyright complaints in order to be exempted from liability. They didn’t do this, although they knew that some of the torrent files related to copyrighted materials. (p.77)
He concluded that TPB’s operations were conducted in a commercial and organised manner.
The last twenty pages of the judgment explain the formula used to establish the damages awarded to the plaintiffs.
For the individuals involved the situation is grave. The plaintiffs will begin immediately to pursue payment of damages. As the decision will be appealed, and the charge does not relate to serious violence, implementation of the prison sentence will be delayed or stayed pending the appeal. In any case, neither Fredrik Neij and Gottfrid Svartholm Warg nor Carl Lundstrom are currently resident in Sweden.
Thanks to its now decentralised infrastructure, TPB will certainly remain online.
A huge part of the Swedish population will feel alienated by this decision – out of the eight largest political parties in Sweden, seven of their youth wings support the decriminalization of filesharing and are sympathetic to the Pirate Bay. Sweden is an incredibly consensus-oriented society, and this decision, together with the local application of the Intellectual Property Enforcement Directive (making pursuit of filesharers easier), will create a significant breach in the consensus model. The hegemonic Social Democrats will pay a stiff price for this, but the most immediate impact will be felt at European Parliament ballot in the first week of June. My prediction is that the Pirate Party will succeed in electing at least one candidate. Top of their list is Christian Engström,, a former campaigner against software patents, who I’ve met, and who can probably start packing his bag for Strasbourg/Brussels today.
Lastly there will be a lot of people from the mainstram press talking up authorised services for accessing movies and music, expect to hear a lot about Spottify, Hulu etc. If the entertainment industry had a real strategy they would use this moment of maximum visibility to launch other new services, but I’m not holding my breath.
Further coverage on the reaction to the TPB decision can be found here.
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