"Free Ride"

If you are looking for something to read over Christmas, you might enjoy "Free Ride,' by Robert Levine.

It's not the kind of book I would usually read — I tend to an anti-copyright stance — but I thought it was well-written, and really quite interesting. It did make me question whether creativity would flourish or fail in the absence of copyright, although I was not convinced by the argument that Internet access providers should pay rightsholders on the basis that they profit from infringement (perhaps not unsurprisingly).

Worth a look if you are interested in a slightly different approach to copyright in the digital age.

Unified Patent- Finally

The EU has finally approved the unitary patent after decades of debate. The system is due to come into force in January 2014 and will enable a patent to be gained in 25 Member States from one application. Agreement was finally reached after Advocate General Bot in joined cases C-274/11 and C-295/11 recommended that the Court of Justice dismiss the action brought by Spain and Italy amid concerns over language requirements. Applications will have to be made in English, French or German however the scheme will not apply to Spain or Italy after both countries opted out. It is expected that the agreement could cut costs by up to 80% in comparison to applying to each Member State individually with the hope of increasing the number of patents in the EU. The Unified Patent Court will be based in Paris with secondary offices in London and Munich.

Link- http://www.epo.org/news-issues/news/2012/20121211.html

http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-12/cp120163en

Ofcom Update: Research on online copyright infringement

From Ofcom:

Ofcom has today published a consumer research study, carried out on its behalf by Kantar Media, into both lawful and unlawful access and use of online, copyrighted content. This follows a recommendation in the Hargreaves Review of Intellectual Property and Growth that Ofcom should start gathering independent data and establishing trends in the area of online copyright before its formal reporting duties under the Digital Economy Act 2010 begin. The report contains details about the methodology used, and the underlying data is being made available for further analysis.

There is also a news release summarising the research.

The Software patent Wars

I came across an excellent article in the Guardian newspaper which gives one of the most readable accounts of the current patent wars that I have seen.

You can access it from here

Google and news

Two interlinked stories this week about Google and its news service — news of a potential "news tax" in France, and Brazilian newspapers boycotting Google News because Google will not pay them...

From the BBC:

Google has threatened to exclude French media sites from search results if France goes ahead with plans to make search engines pay for content.

In a letter sent to several ministerial offices, Google said such a law "would threaten its very existence".

French newspaper publishers have been pushing for the law, saying it is unfair that Google receives advertising revenue from searches for news.

 From Journalism in the Americas:

Brazil’s main newspapers abandoned Google News after the world’s top search engine refused to compensate them for the rights to their headlines. The mass rush started last year when the National Association of Newspapers in Brazil, or ANJ, began recommending its members to opt out of the service.

What do you think? Revenue thief or revenue driver? To what extent should copyright cover this activity — should it be fair game, or a restricted act?

EU green-lights 'copyright land grab' law on orphan work

EU ministers backed new laws to allow libraries, museums and universities - among other organisations - to digitise works that have become "orphaned" from their creators.

Orphan works are copyrighted material, such as books, films and music, which have no identified owner. At the moment many orphan works lie in storage in libraries and other institutions and because of copyright law cannot be digitised or used without permission until the term of copyright expires.

full text here and also here.

Second hand sales

An interesting story on the BBC Web site concerning legal proceedings which are starting in the United States regarding the legitimacy of sites providing a market place for the resale of on-line media. With the seemingly inexorable growth in the numbers of legitimate audio visual web sites and that of e-books we are moving towards a situation where physical products constitute a minority of sales.

But what can purchasers do when they have viewed a film or read a book enough times . I should declare some sort of interest. We have recently (at my wife’s instigation, engaged in major  de-cluttering at home and large quantities of books have been sent to charity shops and DVDs offered for sale on eBay.

These second hand markets are to a considerable extent distinct from the original sales environment. A second handbook will not have the crisp, pristine feeling of a new copy whilst a well used DVD (especially when exposed to the hanks and nails of our children) is susceptible to minor blemishes.

As a family we are moving more to the digital environment. I cannot remember the last time I bought a book in a bookstore but my collection of e-books – all legitimately acquired -  is expanding steadily. What though, about resale? I suspect it has always been the case that 95% of the books I read I never return to but as has been said, ‘books do furnish a room’. I like the well filled bookcases in my office even if I seldom consult them. I don’t feel the same attachment to my e-books – or indeed the films   that I have downloaded on Apple TV.

But what can/may/should I do? Models that worked in the old analogue world do not apply to the digital one. If I resell my e-book or the file of a film or sound track, it will be as perfect as the day I purchased it. Why should it sell for less that the original price? But there is also the issue of the copyright owner’s legitimated need for protection. As we all know, a wide range of sites offer access to illegal copies of works. If I sell my second hand book, I more or less unequivocally lose possession of the work. I think the interesting aspect of the current US litigation is that the site which is planning to offer a second hand market place for digital works is planning to incorporate mechanisms to check that a seller has removed it from his/her computer.

There are, of course, a number of issue. We have around 10 computers, iPads, iPods and iPhones in our house. With the emergence of cloud computing, it seems to my technologically  challenged mind that it would be very difficult to establish that all copies had been removed. Perhaps we need more of a shift from models involving sale of works to rental for a specified period after which the work self – destructs?

Dutch Court: hyperlinks on website can constitute copyright infringement

From the "Future of Copyright" blog:

Yesterday, the Court of Amsterdam decided that publishing hyperlinks to copyrighted content is, under certain circumstances, a copyright infringement. It’s a pioneering decision, as it is the first time that a Dutch court rules in proceedings on the merits that hyperlinks can constitute a breach of copyright and formulates clear criteria in order to test if the circumstances of a case lead to an actual infringement.

...

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

Publishing hyperlinks in the Netherlands might constitute publication, whilst doing the same / similar in the UK might constitute authorising infringement?

Apple v. Samung: Samsung ordered to pay $1 billion

It's been widely reported, and widely discussed — not to mention widely criticised in some parts of the press — but, if you have not already seen it, Samsung has been found to have infringed Apple's patents, and has been ordered to pay $1 billion in damages. Samsung was not found to have infringed all the patents alleged by Apple.

Samsung has said it will appeal.

Squabbling EU heads force Council to split patent court in 3

The UK, France and Germany have removed the last obstacle to the formation of a unified European patent system by divvying up the court between them.

Paris gets the seat of the court, which will be called the Court of First Instance of the Unified Patent Court, and it will get the president of that court's office as well.
The Council then claimed that "given the highly specialised nature of patent litigation and the need to maintain high quality standards", it thought it might have two "thematic clusters" as well. In other words, London will hear cases on chemistry including pharmaceuticals and life sciences, while Munich gets mechanical engineering.

Full text here.

UK.gov proposes massive copyright land snatch

Photographers, illustrators and authors will be amongst those to lose their digital rights under radical new proposals published by the Government on the 2nd July. New legislation is proposed that would effectively introduce a compulsory purchase order, but without compensation, across an unlimited range of creative works, for commercial use.

Full test is here.

Harvard: too much copyright harms innovation

Reaching what I can only think of as an obvious conclusion, a Harvard Business School professor has published a paper arguing that interpreting copyright exceptions narrowly harms investment in innovation. The paper is here.

This ties in nicely with an editorial piece here, which argues that the protection of business models — as copyright does — promotes the protection of profits in the face of change. It does not cite all of its facts, but the theory is interesting to consider nonetheless.

New Internet Domain Names

A topic which probably straddles a few modules - and I'll try to cross post.

You have probably seen reports of the ICANN initiative to allow (for a very significant price) organisations to bid for their own top level domain name. The link below

http://newgtlds.icann.org/en/program-status/application-results/strings-1200utc-13jun12-en

should take you to the current state of affairs. What do you think? My own feeling is that many of the names applied for will never be commercially successful. In itself perhaps not new with ICANN. There have been a number of top level domain names - such as .biz - which have been established and failed miserably in the market place.

The British Library UK Web Domain Research Project

Looking through the stats on my website this morning, I noticed an entry I had not seen before — a crawler from the bl.uk domain:

Mozilla/5.0 (compatible; heritrix/3.1.0 +http://www.bl.uk/aboutus/stratpolprog/digi/domresproj/index.html)

Investigating, it seems that the British Library is attempting to "assess the feasibility of archiving the UK domain," in a project

This seems like a huge project — to capture and store *everything* stored on a website with a UK domain pointing to it.

The British Library goes on to say that:

This work is undertaken in anticipation of forthcoming Legal Deposit regulations that will make it the Library’s statutory responsibility to collect, preserve and provide long-term access to the UK’s online intellectual and cultural heritage.

Is something really the "the UK’s online intellectual and cultural heritage" simply because it has a UK domain pointing to it? I note that my primary web server is not in the UK, but has a .uk domain name, so it seems like the country in which the material is hosted is (currently) unimportant. If I were to register example.co.uk and point it to a site hosted in — say — South Korea, does this make that South Korean site part of the UK's heritage? When one considers the rules around "targeting" and making something available in another market over the Internet, the Alpenhof case sets out several factors to be considered, of which the choice of URL is perhaps one, but that perhaps overlooks that anyone can buy a domain name and point it anywhere they like, rather than needing to control the webserver to which the DNS resolves.

It is perhaps also interesting that crawling websites for content is now a key part of storing our heritage — huge swathes of information, potentially to be held on an ongoing basis, rather than a more selective harvesting of material.

I was not aware of this project, but it sounds very interesting indeed.

"O2 porn filesharers to be sent letters from film-maker"

Here's a story on the BBC, that, following a successful Norwich Pharmacal application in March, the rightsholders (one hopes...?) in a series of pornographic films are to contact individuals suspected of having uploaded the content in question, to extract some money from them.

(You can read the judgment granting the order here, but it's one of Arnold J's now pretty common lengthy judgments!)

The producer of the content in question claims, rather reasonably, that, whilst someone who downloads a mainstream film may be using it as a quality testing process before going to the cinema, and thus supporting production in that way, pornographic content does not have the same alternatives for reaching an audience, and thus a download is less likely to lead to revenue.

It's still apparent to me that, under English law, there is nothing to indicate that one should be liable for another's use of their Internet connection (at least, in terms of a duty to prevent — if one were to authorise the infringement, then liability as a primary infringer under copyright law might be made out) and that, in any case, the only "evidence" is an IP address purporting to indicate that the traffic originated from a machine behind a given router, and says nothing about the individual in question. For those in houses with multiple occupants, proving who downloaded (or uploaded) the content is likely to be very difficult.

The second notable aspect here is that, perhaps following the ACS:Law fiasco, the court has approved the wording of the letter which is to be sent out — with certain phrases watered down or removed, it seems. This seems more than appropriate, as the ACS:Law letters were, in my opinion (having advised on the response to one of the letters), bullying and aggressive — a view seemingly shared with Arnold J.

Oracle's Java APIs are Not Copyrightable

Groklaw is covering the US decision that Oracle's Java APIs are not copyrightable — a decision which, to my mind, can only be described as a common sense interpretation of the both the wording of the US copyright laws and international obligations, and also the stated purpose of copyright law for the US.

The judge held:

"The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability....

Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be. The Act confers ownership only over the specific way in which the author wrote out his version. Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright."

Now, one can only hope that a European court would reach a similar conclusion...

"Google guilty of infringing Oracle's Java copyright"

According to the BBC, Google has been found "guilty" of infringing copyright in Oracle's Java APIs. The BBC piece is so woefully short on detail that it's hard to discern what has actually been held, but it doesn't sound promising for Google...

According to the Wall Street Journal:
"The jury decided Google did make use of Oracle's Java interfaces, but was unable to reach a decision on whether that was protected under the so-called fair-use doctrine."

It would seem to throw even more questions over whether an API is protectable as a copyright work or not — Google's argument seems to be that the interfaces were not covered by copyright, which was not accepted by the jury (although I'd be surprised if a jury decided a question of law, rather than fact).

Depending on what was actually held, it will be interesting to see how this correlates with EU jurisprudence, given directive 2009/24/EC — whether it will be safer to develop software within Europe than in the US!

Apple wins U.S court sanctions against Samsung

Samsung failed to produce source code in a patent infringement case. Read the whole topic here

The future of books?

I recently re-discovered a piece from 2004 by science fiction writer and digital activist Cory Doctorow, on eBooks — called "Ebooks: Neither E, Nor Books," it looks at the differences between eBooks and traditional books (this being an evolution in itself), and talks about the future of publishing.

It's short and well-written, and I'd highly recommend it as being worth a look if you are interested in the overlap of technology and intellectual property for the future of books.

For me, electronic books are my preferred form of reading — I've read everything for the eLLM so far in electronic form, and nearly all my personal reading is electronic, too. Nowadays, when I come to buy a new book, if something is not available in electronic form, there's a high likelihood that I'm not going to buy it — whether this is an "official" eBook, or an "unofficial" eBook, I don't really mind, although my preference is for the former, even if it means I need to invest time stripping the DRM from the book.

The ability to have a whole reference library with me when I travel, to be able to search through books on my computer, to be able to cut-and-past quotations, to be able to make my own annotations and comments searchable and so on have made hard-copy books pretty much redundant for me — things which take up shelf space.

Have a look at Cory's article, and see what you think. Do you see much of a future for printed books? Or are electronic books the way forward?

SAS v Worldwide

In August 2010 Mr Justice Arnold sitting in the High Court, stayed proceedings in the above case and referred a set of 8 questions concerning the nature and extent of copyright protection in software to the European Court of Justice which has now handed down its preliminary ruling in the case.

 The claimant in the original case had developed and marketed a very successful software system for use in data analysis. It consisted of core software packages to which users could link scripts written by themselves. The defendant produced a competing system which (essentially if it were to stand a chance of being commercially successful) was functionally compatible with the claimant’s system. This it was alleged by the claimant was unlawful

 The claimant’s case was essentially threefold and was reflected in the questions posed to the European Court. First that the defendant's software infringed copyright in the SAS system, second that in analysing the operation of the system, the defendants had breached the terms of a licence associated with a copy of the SAS software which they had acquired and, third, that the defendant had, by producing their own user manuals, infringed copyright in the claimant’s manuals and also thereby indirectly infringed copyright in their software. . Although Mr Justice Arnold had posed a set of 8 quite detailed questions to the European Court, it's answer focused on these 3 more general issues.

The Scope of Copyright Protection

Subsequent to the decision in the case of Navitaire v Easyjet the view has been widely held that copyright does not protect the look and feel of software. It would have been a major surprise had the European Court ruled in favour of the claimants on this point. It did not. The was no evidence that the defendant had enjoyed any form of access to the source code of the claimant’s system. It had observed to manner in which it functioned and produced its own software to replicate its features and functionality.

 Following its own judgment in the case of  Bezpečnostní softwarová asociace  the Court, following the opinion of the Advocate General, ruled that

 39      On the basis of those considerations, it must be stated that, with regard to the elements of a computer program which are the subject of Questions 1 to 5, neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250.

40      As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

 It now seems clear beyond doubt that whilst the particular expressions used in producing software will be protected, the underlying ideas and principles will not be. As the European Court concluded this section of the judgment:

 46      Consequently, the answer to Questions 1 to 5 is that Article 1(2) of Directive 91/250 must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

Licence Restrictions

 The second point at issue concerned the validity of a software licence which accompanied a copy of the claimants's software which the defendant had lawfully acquired and used in order to study the operation of the software. Purchasers were presented with the following screen displays

 "Important: Please carefully read the terms and conditions of this License Agreement ('Agreement') before clicking on the 'Yes' button. By clicking on the 'Yes' button, the individual licensing the Software ('Customer') agrees to these terms, and SAS Institute Inc ('SAS') will authorize Customer to use the SAS Learning Edition Software ('Software') in accordance with the terms and conditions of this Agreement. If Customer does not agree to all of the terms of this Agreement, click on the 'No' button and return the Software to the supplier from whom Customer obtained it. Customer will receive a refund of licence fees applicable to and paid by Customer for this Software, if any, provided Customer returns the full Software package with proof of purchase within thirty (30) days of date of purchase or the supplier's return period, whichever is the longer.

1. Licence Grant

1.1 In exchange for Customer's payment of all applicable fees and compliance with all of the terms and conditions of this Agreement, SAS hereby grants Customer a[n individual] nonassignable, nontransferable and nonexclusive license to use the Software on one (1) workstation at a time, for Customer's [own self-training] non-production purposes only. Concurrent usage or use on a network is not authorized.

1.2 Customer may not use the Software in any outsourcing, facilities management or service bureau arrangement or any data or information technology management operation by or for third parties. … Customer may not distribute the Software to any third party in modified or unmodified form.

…

2. Intellectual Property Rights

The Software is copyrighted. ... Customer may not reverse assemble, reverse engineer, or decompile the Software or otherwise attempt to recreate the Source Code, except to the extent applicable laws specifically prohibit such restriction….

 That seems reasonably clear.  Article 5(3) of the European Software Directive provides, however, that:

 The person having a right to use a copy of a computer  program shall be entitled, without the authorisation of the right­holder, to observe, study or test the functioning of the program  in order to determine the ideas and principles which underlie any element of the program if he does so while performing any  of the acts of loading, displaying, running, transmitting or  storing the program which he is entitled to do.

 This is a very obscure formulation. In the High Court, Mr Justice Arnold described it

 It is also common ground that the drafting of Article 5(3) of the Software Directive is less than pellucid in its clarity. As Professor Blocher observes in Walter and von Lewinski (eds), European Copyright Law: A Commentary (OUP, 2010) at §5.5.43:

“Like the previous one, this paragraph is also not drafted satisfactorily. Taken literally, it essentially states a pleonasm, namely, that the person having a right to use a copy of a computer program shall be entitled to do all the acts he is entitled to do.”

 The Court of Justice was less critical of the draftsmanship and identified a clear meaning to the provision  (which was not included in the UKs implementation of the Directive).   Article 5(3) it was held had to be interpreted as meaning that a copyright owner could not use contractual techniques to restrict a user’s right to determine ‘the ideas and principles which underlie all the elements of the program’.  Such terms will be null and void.

Copyright in Manuals

 Anyone walking into one of the fast diminishing number of High Street bookshops will almost inevitably be faced with shelf upon shelf of third party manuals offering advice and instruction as to the best way to utilize software packages. Producers such as Apple and Microsoft seem almost to pride themselves on offering little in the way of printed instructions for their products.

 The situation between the parties in the present case is, of course, somewhat different in that the defendants were seeking to compete at the software level rather than simply providing an add on product.

 With functional works such as instruction manuals there is a clear link between the manual and the underpinning product. Any software instructional manual must

 66      In the present case, the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts which, considered in isolation, are not, as such, an intellectual creation of the author of the computer program.

67      It is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation (see, to that effect, Infopaq International, paragraph 45).

68      It is for the national court to ascertain whether the reproduction of those elements constitutes the reproduction of the expression of the intellectual creation of the author of the user manual for the computer program at issue in the main proceedings.

A somewhat similar situation arose in the case of Elanco v. Mandops. ([1979] FSR 46) .Here the plaintiff had invented and patented a herbicide. When the period of  patent protection expired the defendant produced a competing version of the product. This was perfectly legitimate but it was claimed that they had copied the instructions accompanying the product  concerning the manner in which the product was to be applied and the optimum doses. The plaintiff had expended considerable effort in determining the best method to use the product and developed a set of instructions. The defendant initially produced what was seen as a blatant copy of these. Following complaints from the plaintiff, the instructions were rewritten twice and at the stage of legal proceedings had few literal similarities although the data relating to dosage and application was the same. Almost all the data was available from other sources but the Court of Appeal granted an injunction preventing the use  of the defendant’s instructions. The basis lay essentially in the fact that the first version had been copied.

 There has to be a measure of caution in reading too much into Elanco. It was concerned with an application prior to trial – and frustratingly the trial does not seem to have occurred, presumably the parties settled out of court. One issue which the Court of Appeal indicated would require to be settled at trial was whether there was sufficient intellectual creativity in the plaintiff’s leaflet to allow it to qualify for copyright protection.

 It will be interesting to see how this issue is determined when the case returns to the High Court. It does seem to me that there may be an issue whether the defendant’s user manual drew too heavily on that produced by the claimants but it is hard to see how this could impact on the software itself.

SCL Meeting: "Demystifying Open Source" - 28 May 2012 - London

A bit of a plug — for anyone in the UK who might be interested in a discussion of open source, I am one of the speakers for the Society of Computers and Law's upcoming presentation on "Demystifying Open Source." I'll be speaking on the practical implications of open source usage in a commercial context.

If I'm honest, it seems rather expensive, but I mention it just in case.

Getting rich off iPhone apps is difficult

An interesting report on the Register, commenting on a briefing to MPs representing the Science and Technology Committee in the UK.

"Almost no apps cover their development costs and software services only make money in "extremely unusual" cases, some proper engineers have told MPs."

The article goes on to reflect the view that:

"Some innovative software-based services have been commercialised extremely successfully – Facebook and Google being the leading examples – but the commercial model is extremely unusual, as it requires huge investment to provide free services so that a vast population of users is developed and monetised through advertising revenue and added-value services."

Perhaps the Internet is not a solid basis for economic growth, and the commercialisation of research?

Oracle thinks you can copyright a programming language, Google disagrees

Google and Oracle will start their courtroom fight next next Monday on whether a computer language is copyrightable or not.

Read the article here and here too

Trans-Pacific Partnership Agreement

a very interesting topic I read about TPP, and how it may impact citizens' rights by imposing more restrictive requirements than current international ones.

read the whole topic and a leaked version of one of its chapters here

Copyright lectures on Youtube

In search for more sources to have a full view on copyright topic, I found this material on Youtube, and I thought it would help me and my E-classmates.

a short lecture titled as "copyright in the 21st century" you can find here

Open Rights Group conference 2012

The Open Rights Group conference was a very interesting affair this year — too many interesting sessions running in parallel, so it was not possible to see everything I was hoping to see.

The highlight of the day, without a doubt, was Larry Lessig’s closing keynote. It was a very lively (Larry is an excellent speaker) presentation on the need for action to resolve the current copyright situation.

He focussed on the differences between authors and publishers, and between artistic works and scientific works — he considers that copyright is justified to the extent that it encourages authors to create works which they would not otherwise create, but does not consider publishers in need of copyright.

In terms of artistic v. scientific, his main point was the notion of the “knowledge elite” — a category into which we would fall, given the resources to which we have access through Southampton — and how information is available and distributed. Whilst some of us might be able to find all we need online, for many around the world, that is not possible, because of the costs of accessing online journal articles and the like. Perhaps different types of work should be treated differently?

(Although not a topic on which Lessig touched, I’ve been thinking quite a lot recently about reliance on online resources for our news and our general information needs, as well as for discussion and debate — in particular, the risk that personalisation of online content leads to a decreased awareness of wider social issues in favour of what advertisers and content publishers believe we would like to see, as well as being informed by what our friends “like” on Facebook. See Eli Parser’s excellent book “The Filter Bubble” if this interests you.)

A second major theme was spectrum licensing, and whether a closed policy of selling spectrum rights was an inferior solution, motivated by the desire to make money and reserve power to big companies — he talked about the concept of a "spectrum commons" as another way of managing the resource. Separately, Yochai Benkler has argued that spectrum is not a scarce resource, but that the computer power to separate huge volumes of simultaneous transmissions was not available until relatively recently — a related argument, promoting the value of unlicensed spectrum for innovation, without obvious disbenefit.

Lessig closed with a powerful call to action, arguing that lobbying corrupts the legal process and that, until there is less corruption and greater transparency in rule making, we will continue to see destructive copyright legislation, led by niche commercial interests. I was not expecting an audience of digital rights advocates to leave the conference talking about politics and corruption — Lessig obviously hit the mark.

Other topics which came up which might be of relevance to the course were open hardware licensing, interception and surveillance of communications, online content filtering and may others.

All the sessions were recorded — without any notice or warning as to what was to happen with the recordings, which was odd given the privacy-centric nature of the event — and the recordings (once edited) should be available on the Open Rights Group website relatively soon. If your Internet connection supports it, I’d strongly recommend watching the Lessig keynote — I’ll certainly be catching up on some of the sessions which I missed.

ISP liable from wrongly (but rightly?) removing material.

An interesting post on the Register, which seems to indicate that a website has been found liable for inappropriately removing content, despite following a DMCA takedown procedure.

It's an Australian decision, and the reporting is not quite clear as to who was found liable, but it's an interesting one indeed — where a regime sets out an NTD approach, and a company follows it, should it be liable for the results of that removal? I would have to argue "no," as to argue otherwise would mean the ISP exercising some form of discretion, which is entirely inappropriate. Similarly, if this principle is followed, an ISP may be damned if they do, damned if they don't.

Lastly, there is the interesting question of applicable law and jurisdiction!

EFF Urges Court to Reject Record Labels' Effort to Rewrite Copyright Law

Staggering Financial Penalty for Sharing 24 Songs Is Unreasonable, Unpredictable, and Hurts Innovation

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of libraries and public interest groups have asked an appeals court to affirm the downsized copyright damage award in Capitol v. Thomas-Rasset – the first individual file-sharing case to go to trial.

read the whole post here

Southampton pub threatened for "copyright infringement"

A matter of grave importance, given the quirkiness of this particular pub in Southampton, the BBC is reporting that "US lawyers" are threatening The Hobbit pub in Southampton for copyright infringement — although frankly this would seem better suited to a trade mark action on the face on it — by virtue of its name.

The claimants allege that they have "exclusive worldwide rights to motion picture, merchandising, stage and other rights in certain literary works of JRR Tolkien including The Lord of the Rings and The Hobbit" — although whether this precludes a pub using its name, or the image of one of the actors on their loyalty card (perhaps more indicative of copyright infringement) is perhaps more questionable...

Home Secretary approves extradition over authorisation of copyright infringement

The BBC is reporting that Richard O'Dwyer, the student who set up the TVShacks website, is to be extradited, after the Home Secretary signed the extradition order, following a court case.

I am entirely unconvinced that this is appropriate.

The Digital Economy Act - Again

I've posted this on my IT Law blog and will crosspost it to other IT law blogs. I'm not at all sure that I have got things right but these are my early thoughts

Introduction

Another stage has now been completed in the long running challenge to the legitimacy of the Digital Economy Act 2010 and the provisions of the draft Copyright(Initial Obligations) (Sharing of Costs) Order 2011. Following  rejection of most of the challenges  in the  High Court. , the Court of Appeal, British Telecommunications Plc , R (on the application of) v BPI (British Recorded Music Industry) Ltd & Ors  has now confirmed this ruling in all significant respects.

Permission had been granted for the appeal on four grounds.  As laid down in paragraph 6 of Lord Justice Richards judgment (which was adopted by the other appellate judges) these were

1) Ground 1: whether the contested provisions should have been notified to the EU Commission in draft pursuant to Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC, ("the Technical Standards Directive"), with the result that they are unenforceable for want of notification.

(2) Ground 2: whether the contested provisions are incompatible with provisions of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ("the Electronic Commerce Directive" or "the ECD").

(3) Ground 3: whether the contested provisions are incompatible with provisions of Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ("the Data Protection Directive" or "the DPD") and/or of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector ("the Privacy and Electronic Communications Directive" or "the PECD").

(4) Ground 4: whether the contested provisions are incompatible with provisions of Directive 2002/20/EC of 7 March 2002 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC, ("the Authorisation Directive" or "the AD").

The first and fourth grounds are perhaps rather technical – although of course technicalities can be very important in the law. The second and third grounds do perhaps raise more in the way of issues of substance

Notification of technical standards

Under EU law where a Member state proposes to  make compliance with technical standards  (other than existing international of European standards), the text of the measures much be notified to the European Commission. The provisions of the draft Code had not been notified and the appellants  contended that this constituted a breach of the European Technical  Standards Directive which requires in article 8  that

Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard …; they shall also let the Commission have a statement of the grounds which make the enactment of such technical regulation necessary, where these have not already been made clear in the draft.

The term draft technical regulation is defined in Article 1(2) as ‘the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made‘.

After referring to a number of decisions of the European Court of Justice Lord Justice Richards upheld the decision of Mr Justice Parker in the High Court. The chief basis for the ruling was that the contested code (which provided for mechanisms to determine how the costs of operating systems of enforcement under the Act should be shared between right owners and ISPs, would not come into effect until a further code, the Initial Obligations Code which, at the time of the case, had not been made. As was suggested by counsel for the respondents ‘there is not a lot of point in troubling the Commission and other Member States with something that is inchoate. Informed comment depends on there being a worked-through draft, especially as consideration of issues of proportionality depends on the detail.’ (at para 41).

Essentially this part of the judgment appears to relate to questions of time. As Lord Justice Richards noted, it would be quite feasible to notify the contested code to the Commission as and when a draft of  the more substantial Initial Obligations Code was created (by OFCOM)

The E-Commerce Directive

Objections to the provisions of the Digital Economy Act centred on the immunities which are conferred on Information Society Service Providers  by the E-Commerce Directive; in particular where they act as a mere conduit, as a host, or provide caching services.

The extent of the immunities varies slightly across the various activities but there are few differences of substance. It may be enough to summarise the complaints relating to the mere conduit ground. The basis of this is found in Article 12 of the E-Commerce Directive which provides that

Where an information society service is provided that  consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the

transmission.

Under the Digital Economy Act, ISPs are required to cooperate with copyright owners in the service of copyright infringement reports and lists and face a range of legal sanctions in the event that they fail to act.

As was noted in paragraph 48 of Lord Justice Richard’s judgment:

The appellants contend that the set of responsibilities imposed on them by the contested provisions with regard to notification of copyright infringement reports and the provision of copyright infringement lists, together with the related financial burden and exposure to liability for costs, compensation and penalties, renders them “liable for the information transmitted” within the meaning of Article 12(1) and is therefore incompatible with the article.

This contention was rejected. Lord Justice Richards quoted with approval the works of Mr Justice Parker in the High Court:

Without the underlying infringement, there would be no CIR or CIL: but the legal test is not whether a liability has arisen because there was an initial infringement of copyright; the liability must arise in respect of that underlying infringement, so that the liability is for the information transmitted.

Essentially, ISPs could face legal sanctions not in respect of the transmission by users  of information over their networks but as a result of their failure to comply with legal requirements imposed directly on themselves.

A further argument advanced for the claimants was that, in contrast to the position under Articles 13 and 14 dealing with the caching and hosting immunities, there was no mechanism requiring ISPs to receive complaints from right owners and remove infringing material. The lack of such a provision in Article 12 was seen as giving a wider level of protection. This contention was also rejected on the ground that a ‘mere conduit’ has less direct control over information than a party who hosts material or maintains cached copies. although the issue is perhaps related to the other major legal issue regarding the extent to which ISPs might be required to use filtering software to block access to specific web sites.

A further challenge to the legitimacy of the Digital Economy Act was based on the provisions of Article 3 of the E-Commerce Directive. This provides in part that:

Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

(2) Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.

The appellants’ contention here was that the provisions of the Digital Economy Act might restrict the freedom of ISPs from other Member States from offering their services  to UK users.

The prime difficulty for the appellants was that article 3(3) provided that the preceding paragraphs  were not to apply in respect of services  listed in the Annex to the Directive. This makes specific reference to copyright and neighbouring rights.

The appellants argued that this provision referred to substantive issues of copyright law – the nature of the works which might be protected and the extent of protection. At the time the E-Commerce Directive was adopted, there was little in the way of harmonization across the Member States. The Directive on Copyright in the Information Society which was adopted a year later (and whose coming was prophesised in the recitals to the E-Commerce Directive) had brought about a good measure of harmonization and therefore the exclusion was no longer necessary or valid at least in respect of measures for copyright infringement. .

Again, upholding the High Court ruling, Lord Justice Richards disagreed:

At the time when the Electronic Commerce Directive was adopted, “copyright” in the Annex to the directive must in my view have had its normal meaning, encompassing all aspects of the law of copyright under national laws, and cannot have had the elaborate meaning attributed to it by the appellants. At that time there was no harmonising directive at the Community level in the field of copyright protection. It would be unrealistic to impute to the Community legislature, at least in the absence of clear, express language to this effect, an intention to give “copyright” a meaning related to provisions of a copyright directive that had not yet been adopted. But if “copyright” did not have the appellants’ meaning at the outset, I do not see how it can have come to acquire that meaning subsequently. The later adoption of the Copyright Directive cannot of itself have had the effect of changing the meaning of the expression. It would have needed an express amendment of the Electronic Commerce Directive to achieve that result, but no such amendment has ever been made.

There is perhaps the sense of the appellants clutching at straws in respect of this argument. At the very least we might look at Commission sponsored reports highlighting the very limited nature of cross border services in the sector. This might be due to a range of courses but the Digital Economy Act might – at least at its present state of implementation – come low on the list.

Data protection issues

Two issues were raised in this context relating to the basic Data protection Directive (95/46) and to the electronic communications Directive.

In respect of the data protection Directive, attention focused on the provisions of article 8 which prohibits the processing of sensitive personal data unless fairly strict conditions are complied with.  This might be seen as pushing a case to far although the fault may lie more with the concept of sensitive data than with the appellants’ arguments. It may certainly be the case that the materials we download unlawfully may say something  about our political or religious views etc, but the connection appears a little tenuous.

One of the conditions laid down in the directive for justifying processing  is where this ‘relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims’. The appellants pointed to Government impact assessment statement produced  during the Digital Economy Act’s passage to the effect that the new procedures would persuade 70% of infringers to stop infringement without the need for further legal proceedings. How then could the provisions meet the conditions for legitimate processing.

Another cross reference may be helpful here and readers may recall the ALTS case where a law firm was the subject of heavy judicial and regulatory criticism for threatening legal proceedings against alleged copyright infringers without having any intent to turn the threats into reality. Blackmail is such an ugly word but the view was clearly that the conduct was akin to this..

The electronic communications Directive refers, inter alia,  to the processing of traffic data – relating to the source and origins of communications. It authorises processing of such data where the processing is:

a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system

Here the complaint was that processing of data would be in connection with the institution of civil (rather than criminal) proceedings. The answer to the challenge came principally from decisions of the European Court of justice in file sharing cases such as  Case C-275/06, Productores de Musica de España

(Promusicae) v Telefonica de España SAU [2008] ECR I-271. The Court of Justice drew a link between the general and electronic communications data protection Directives and ruled that:

It is clear, however, that Article 15(1) of Directive 2002/58 ends the list of the above exceptions with an express reference to Article 13(1) of Directive 95/46. That provision also authorises the Member States to adopt legislative measures to restrict the obligation of confidentiality of personal data where that restriction is necessary  inter alia for the protection of the rights and freedoms of others. As they do not specify the rights and freedoms concerned, those provisions of Article 15(1) of Directive 2002/58 must be interpreted as expressing the Community legislature’s intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings.

It might be asked why, if it was so clearly the legislature’s intention to allow discosure for the purposes of civil proceedings it did not make the effort to add a 2 word phrase to the provision.

The Authorisation Directive

The final ground of complaint advanced before the Court of Appeal related to the provisions of the European Authorisation Directive. This is one of the key planks of the European electronic communications legislative packages and provides in large part that systems of individual licencing or authorisations for those providing electronic communications networks or services are to be replaced by general authorisations – akin to sets of general terms and conditions.

For the United Kingdom, OFCOM has drawn up General Conditions of Entitlement. Two key issues arose in the present case, whether the provisions of the Digital Economy Act and the draft code should have been brought within the ambit of the general conditions and, if so  whether they could be seen as compatible with the requirements of the Authorisation Directive.

Such an approach which would require every sector specific provision to be brought within the general conditions of entitlement  would be extremely restrictive. It would effectively require that all legal requirements relating to ISPs should be included in the general conditions – which would then become very bulky documents. The electronic communications sector is certainly important but it has to coincide with other policy areas – such as copyright – and cannot claim a monopoly of competence in the field.

In one, limited field, the appellants did succeed in their claim. The Authorisation Directive has extensive provisions concerning the amounts of costs which can be imposed on those providing electronic communications networks or services. Effectively, costs imposed have to equate to those incurred by regulators. As stated above, however, many of the controls imposed upon ISPs might fall outside the scope of the Directive. Cost provisions might apply however with particular reference made to the provisions of Article 12 which refers to the imposition of ‘administrative charges’.  At trial it was conceded that this provision would apply and the judge divided the costs into 3 categories

(1) “qualifying costs”, namely the costs incurred by Ofcom or the appeals body in carrying out functions under the copyright infringement provisions, including costs incurred by Ofcom under those provisions in appointing the appeals body or in establishing a body corporate to be the appeals body; (2) “relevant costs”, namely costs which would be reasonably and efficiently incurred by a notional qualifying ISP in carrying out its obligations under the provisions; and (3) “case fees” charged by the appeals body in respect of each subscriber appeal which it receives (in relation to each appeal, the appealing subscriber’s ISP would be required to meet 25% of the fee, with the other 75% being recovered from the relevant copyright owner).

At trial it was held that the first requirement would apply to ISPs but that the concept of ‘relevant costs’ would not as these related to costs which would be incurred internally in complying with any requirements imposed under the Digital Economy Act rather than costs which would require to be paid to some third party. This contention was upheld in the Court of Appeal but a further finding that ‘case fees’ would also be excluded was rejected, Lord Justice Richards concluding that:

If, as the judge found and is accepted before us, “qualifying costs” are “administrative charges” within Article 12, I can see no sensible reason why “case fees” should not be treated in the same way. As Mr White submitted (for the appellants) , they are in substance a supplement to “qualifying costs”, comprising that part of the costs of the appeal body which is not covered by “qualifying costs”.

Discrimination and Distortion of Competition

A final (and unsuccessful challenge to the lawfulness of the legislation was based on the above grounds. The initial proposals are that obligations should be imposed only on ISPs providing services over fixed line connections and, even here, only in respect of the leading six providers. This was, it was claimed unfair to those ISPs affected and might also lead to a migration of customers to smaller ISPs who would not themselves (and by inference their customers) be subject to the same legislative regime. Effectively the wisdom might be that if a user wished to minimise the possibilities of being detected and acted against in respect of online piracy, a contract with a small ISP or a mobile network might be advisable.

The exclusion of mobile networks is driven largely by technical considerations. Unlike fixed line connections when each connection will be given a specific IP address, mobile networks have a pool of dynamic address one of which will be allocated to each connection. Technically, it is much more difficult to map a particular IP address to a particular connection at a particular point in time.

Exclusion of smaller ISPs is perhaps  more contentious. It was recognised that there were pragmatic reasons for the selection of a 400,000  subscriber thresholds. As was stated in the High Court:

The six ISPs who have more than 400,000 subscribers together account for 93.4 per cent of the residential and SME business broadband market. There is a natural break point below the big six, in that the smallest of the big six is still twice the size of the next in line. In my view, it is reasonable and proportionate to concentrate on the larger ISPs in the first instance, and to identify any other individual ISPs where there are high levels of copyright infringement on a case by case basis. Any alleged ‘migration’ of infringers to smaller ISPs is speculative at this stage and could be addressed if it began to present real problems.

This conclusion was upheld by the Court of Appeal. As was stated:

The judge did not rely on the possibility of review and amendment of the regime as an answer in itself to the appellants’ case, but he made the valid point that if circumstances changed there existed mechanisms for ensuring that any future problem of disproportionate effect could be avoided.

Conclusions

We will have to wait to see whether the appellants seek to take their case to the Supreme Court – or are granted leave so to do. We are now approaching the second anniversary of the Digital Economy Act receiving  Royal Assent but in spite of an OFCOM consultation period on the contents of the initial obligations code expiring in July 2010, we await even a draft instrument. There seems to be serious doubt whether these provisions of the Act will ever be brought into force.

In some important respects it seems that the emphasis of right owners is switching to seeking to act directly against ISPs to compel the blocking (or attempted blocking) of access to specified sites. Recent weeks and months have also seem major activities by law enforcement agencies in a range of countries, including the UK and the UK seeking to disrupt the activities of sites associated with large scale copyright infringement.

A number of European countries have sought to implement legislation along the lines adopted in the Digital Economy Act. It is perhaps fair to say that success has been limited. And perhaps it is time to recognise that the model may be lawful but is flawed.