4 August 2013

Bulgaria’s ambassadors receive ban to use Facebook

Image: Borys Tarasuk and Kristian Vigenin together with Gerben-Jan Gerbandy
by European Parliament on Flickr

Borys Tarasuk and Kristian Vigenin together with Gerben-Jan Gerbandy

The smiling gentleman to the right is Kristian Vigenin – Bulgaria’s current minister of foreign affairs.

Recent media reports say he has directed all ambassadors of the small eastern European republic to refrain from using the most popular social network.

“Why is that?” one might ask and the answer is quite simple – for the last 50 days Bulgaria has been facing the largest anti-government protest since January 1997 and statements posted on Facebook show that some of the ambassadors side rather with the #ДАНСwithme participants than with their employer.

In other words, Vigenin’s instruction is nothing but a gag order on Bulgaria’s diplomats abroad and speaks volumes about this government’s preference to deal with plurailty of opinion and public criticism.

25 April 2012

Bulgarian TV Station Accused Of Censorship

Some two weeks ago, bTV which is held to be the largest TV station in Bulgaria, broke with Global Vision, the producer of one of bTV’s most successful shows called Gospodari Na Efira (Masters of the Airwaves in English).

At breakup

Global Vision gave a press conference

in which they alleged that bTV attempted to censor the show they have been producing.

A copy of the press conference’s broadcast was uploaded onto YouTube and remained accessible – according to statuses of Facebook users – until it was taken down today.

The awkward thing

is that not only did YouTube take down the video, but they also terminated the account of the user who had previously uploaded it.

The image I have put on the top of that blog post evidences of what I am telling you.

As you can see, YouTube reasons the take-down and termination with multiple third-party notifications of

copyright infringement

obviously filed by the bTV Media Group.

That is really awkward. No, it is rather disappointing.

It is so obvious that

bTV are abusing their copyright

if any, in order to gag the guys from Global Vision and the user’s freedom of expression.

YouTube’s “Sorry about that.” underneath the notice does not make good the damage.

I would be glad to support the user, whose account has been unlawfully terminated, in filing a counter-notice and restoring both, the accessibility to the video and his subscription to YouTube’s service.

9 February 2012

ACTA: First Debate In the Bulgarian Parliament

Image: Ministers Traikov and Rashidov talking to each other during the parliamentary hearing on ACTA. By Konstantin Pavlov – Komitata

Bulgaria was one of the 22 member states to the European Union that signed ACTA at a recently organised ceremony of the Japanese Ministry of Foreign Affairs in Tokyo.

This very act

managed to attract great interest in the public

and to cause a huge societal debate.

Following a week during which the media nearly overexploited the issue, four committees of the Bulgarian Parliament summoned the ministers Vezhdi Rashidov and Traicho Traikov to a hearing.

The hearing occurred yesterday and was well visited by right holders´ organisations as well as by representatives of the non-governmental sector and the civil society in general. Being one of the latter, I attended the hearing too.

Needless to say that while

the Bulgarian right holders´ organisations endorse ACTA

the representatives of the civil society are more or less strictly against it.

By the way, I made big efforts to broadcast the hearing on Twitter and you might want to visit my stream, in order to see who has said what in greater detail.

My impression from yesterday´s event is that GERB – Bulgaria´s currently ruling party – endorses the trade agreement too and is willing to execute the necessary parliamentary ratification.

By the same token, however, the government is aware of the

public animosity towards ACTA

and is ready to make the ratification conditional upon some reservations mainly with respect to the digital enforcement.

I hope that yesterday´s hearing was just the beginning and that many others will follow. I might get the chance to participate in a working party to deliver an expert opinion to the Parliament, but shall in any case remain focused on the matter and make information available on that blog!

24 November 2011

Scarlet vs SABAM: Do Neither Block, Nor Filter!

Image: …E O VENTO LEVOU (Gone With The Wind) by jonycunha on Flickr
...E O VENTO LEVOU (Gone With The Wind)

If you have landed here, I guess you are interested to find out more about today’s ruling of the Court of Justice of the European Union in the case Scarlet Extended vs Société belge des auteurs compositeurs et éditeurs (SABAM).

Some months ago I blogged on the opinion of the Advocate General Cruz Villalón, in which he asked the Court to declare that

the EU law precludes a national court from making an order that an ISP installs a system for filtering all electronic communications. 

I suggest that you read this older post of mine in order to be familiar with the background of the case.

So,

what did the Court decide?

The Court basically backed the Advocate General’s opinion and held that

1. while the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’),  it has no absolute protection;

2. national authorities and courts, when undertaking measures to protect copyright holders, must strike a fair balance between the protection of copyright and (i) the protection of the fundamental rights of individuals who are affected by such measures and (ii) the protection of the freedom to conduct a business enjoyed by ISPs such as Scarlet pursuant to Article 16 of the Charter;

3. the obligation of ISPs (such as Scarlet) to install and maintain a complicated, costly and permanent filtering system in the interests of copyright holders (such as SABAM) without any limitation in time, directed at all future infringements and intended to protect not only existing works, but also future works, would well infringe both, ISPs freedom to conduct a business and 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.

Consequently, the Court held that an injunction ordering an ISP to filter its network traffic in the manner of para 3 above would represent a

serious infringement of EU law

and any national court, having issued such an injunction, would disrespect the legal framework of the European Union.

In my previous blogpost I predicted that Advocate General`s opinion, if followed by the Court, would create a bomb blast to sweep away the adversaries of fundamental human rights.

Did I promise you too much? I hope not.

Anyway, although the Court did in fact light a fuse that will eventually cause an explosion, it will not be a hurting one. It will rather provide ISPs such as Scarlet with the necessary shell to protect them in the performance of their most important services to the information society.

What does this mean in practical terms?

Basically and since the ruling heavily relies on Article 15 of the Directive 2000/31/EC, an ISP is protected only to the extent that it does not filter or modify its network`s traffic. Should the ISP – be it by means of an excessive compliance or an anticipatory self-regulation – begin to filter or block traffic, it would then lose the abovementioned privilege.

So, ISPs all over the EU – do simply enjoy the new dawn of the ruling and do neither block, nor filter, because otherwise you might be gone with the wind!

4 July 2011

Star Wars Coloured Green

Image by JD Hancock on Flickr

3524876304_3aa13f3d05_z

We all do care for the environment, do we not?
Not surprisingly, Greenpeace cares even more.

The green multi cares so much that some weeks ago it started attacking Volkswagen over latter’s environmental credentials.
Using a Star Wars influenced get-up, the environmental activists accused the Wolfsburg company to be on the dark side and to abuse the force

to lobby against key environmental laws despite making claims that it wants to be the most eco-friendly car automaker in the world.

The funny thing is that Greenpeace expressed its criticism by uploading a video on its channel on YouTube. The video is a heavy parody of a previous Star Wars based advertisement of VW.
Shortly thereafter, however, not only did the parodying video disappear from YouTube, but the Google affiliate quickly shut up the entire Greenpeace channel.

Whose dark force should one suspect behind such a Sith-esque act?
The one of VW?

Believe it or not, but it was

Lucasfilm Who Rushed To Aid

the German car manufacturer in their conflict with Greenpeace.

Reportedly, Lucasfilm has claimed the infringement of their copyright by Greenpeace and has served YouTube with (probably) a DMCA takedown notice.

I was curious why YouTube elected to comply with Lucasfilm’s request since the parody of Greenpeace falls clearly under a

Fair Use

defence and the broadcast-it-yourself platform, in similar instances, has fought legal proceedings against right holders in order to protect both, its users and its business model.

A closer look into the DMCA drew my attention to its Section 512 (g) (1) that gives Greenpeace the opportunity to respond to the notice and takedown by filing a

Counter Notification

It turns out that, if Greenpeace serves YouTube with a counter notification complying with statutory requirements, including a statement under penalty of perjury that the parodying video was removed or disabled through mistake or misidentification, then unless Lucasfilm files an action seeking a court order against Greenpeace, YouTube will have to

Put The Video Back

up within 10-14 business days after receiving the counter notification.

See whether my prediction will hold true.

18 May 2011

Who Wants To Dam Online Streaming?

Image: Brownlee Dam by WaterArchives.org on Flickr

5642421956_6b83b92356_z

Do you stream content from the Internet?
Could it be that you fall under the category of users involved in an illegal streaming? Well, if you do and are also identifiable as an US resident, this blog article may contain some bad news for you.
Why?
Because Victoria Espinel, Obama administration’s IP Enforcement Coordinator, has recently published a white paper on legislative recommendations that asks lawmakers to declare streaming a

Copyright Infringement

and hence a felony.
Not exactly the sort of good news blogs usually provide, huh?

When I first saw the story at Ars Technica, my first reaction was to ask

Who Needs A Change In Legislation?

Then I read the white paper and found that Ms Espinel’s recommendations very clear:

It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work. Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.

It turns out that the current US copyright framework is to some extent ambiguous as to whether streaming should be considered a distribution or performance of a work. This ambiguity results in a loophole which Ms Espinel is now proposing to fill.

This is strange, because the US have ratified the

WIPO Copyright Treaty

(WCT) and implemented it by the Digital Millenium Copyright Act (DMCA). The US nevertheless omitted to introduce the so called “right of communication to the public” or also known as the “making available right” in their legislation. Ms Espinel would not have the problem now, had the Clinton administration taken care back in 1998.

Having said that, one might ask how the legislation of the

European Union

does classify streaming?

Well, the EU has also implemented the WCT and introduced the “making available right” in its Info Society Directive (2001/29/EC).
This means that the legislations of the single member states define streaming as either a broadcast (in the case of point to multipoint) or a communication to the public (in the case of point to point or the on demand use).

Either way and even though it is so popular among Internet users, (illegal) streaming falls foul of the law on copyright.

However, what is

Illegal Streaming

anyway supposed to mean?

Right holders speak of illegal streaming each time when their content is distributed, performed, broadcast or made available on the Internet without said right holders’ permission.

It seems, however, that streaming has become an important part of our online consumer behaviour. We consume content every day and the rise of new technologies has made this type of consumption quite convenient. The reason why some users are lured into illegal offerings basically lies in that they are not offered legally sound ones.

In that respect, right holders should reconsider their business models and keep pace with their “potential” customers and not attempt to dam the streaming instead.

What is your opinion on Ms Escivel’s recommendation? How is streaming regulated in your jurisdiction and what impact does this regulation have on illegal or lawful offerings?

6 May 2011

VPR v John Does: IP Subscribers ≠ Copyright Infringers

Anonymous-Suit-black High Resolution PNG (2404 x 3890)photo © 2010 OperationPaperStorm | more info (via: Wylio)

Who remembers Depeche Mode’s People Are People?
It basically says that people are different: they are different colours and have different needs.
In a more or less similar spirit, a court order issued by the Honourable Harold H. Baker, justice at the United States District Court for Central Illinois, says that people are different from IP Addresses.
Not that we did not know it, but now it is official.

I guess that, during the last couple of months, you have obtained knowledge of the much criticised mass litigation conducted by (alleged) right-holders in Europe and, particularly in the United States.

In fact, one could speak of an

Emerging Business Model

that had some success, but now seems to have been dampened.

Why? What happened?

VPR, a Montreal-based producer of adult entertainment content (claimant) filed a complaint against 1,017 John Doe defendants who had allegedly involved in file-sharing. Claimant was not aware of the identity of the alleged infringers, but was in the possession of their Internet Protocol (IP) addresses. Since Internet Service Providers (ISP) assign IP addresses to their subscribers, claimant moved to obtain so-called Doe subpoenas directed to the ISP with the clear aim to determine the identity of the Does.
ISP would have been under an obligation to reveal their subscribers’ identity, had claimant only been granted the subpoenas.

Yes, you may trust your eyes:

His Honour denied

claimant’s motion in an outright manner.

Justice Baker reasoned upon his order citing a press article which reported how a family was falsely raided by federal agents after a neighbour of that family had misused their WiFi connection to share illegal material. Not surprisingly, the agents had obtained a Doe subpoena prior to the raid.

Having carefully scrutinised the list of IP addresses attached to VPR’s complaint, His Honour found that it suggested, in at least some instances, a disconnect between IP subscribers and copyright infringers and that such disconnect could occur in another family or individual entering into a conflict with the law.
He thus refused to assume responsibility for causing harm to (very likely) innocent Internet users.

I say Justice Baker’s approach

Deserves Acclaim

Why?
Because mass-litigation conducted by copyright trolls relies on the speed kills principle: the proceedings must go fast, involve thousands of defendants and be cheap. Claimants seek to identify their victims and serve them with settlement agreements to make them pay amounts that undercut the cost necessary to procure legal defence. The victims must be put under pressure and have no or just very little time to react.
Hence, every obstacle on the way to a settlement agreement may prove decisive for a copyright troll’s business model.
Justice Baker’s dismissal is such an obstacle and it can make the Canadian copyright troll drop its claims.

Therefore, three cheers to His Honour and his responsible finding.
After all, IP subscribers and copyright infringers are not necessarily the same.

Or have I missed something?

16 April 2011

Scarlet vs SABAM: Gone With The Wind?

Interiorsphoto © 2009 jaci Lopes dos Santos | more info (via: Wylio)

In Margaret Mitchell’s novel Gone with the Wind, the novel’s protagonist, Scarlett O’Hara wonders to herself if her home on a plantation called “Tara” symbolising the pre-civil war South is still standing, or if it was “also gone with the wind”.

I must say that I had similar thoughts when I read the opinion of Advocate general Cruz Villalón in the case Scarlet vs SABAM.
I bet you want to know why?

Good, before I share them with you, however, I will present you with the

Background

In 2004 the Société belge des auteurs compositeurs et éditeurs (SABAM) applied for interim relief against the Belgian ISP Scarlet on the ground that Scarlet’s users had shared musical works contained in SABAM’s repertoire without SABAM’s permission, thereby infringing the copyright in the works.
In 2007 the Brussels Tribunal of First Instance ruled that Scarlet was under an obligation both to block the accounts of its users and to implement a mechanism to filter out infringing content. According to this decision, Scarlet was obliged to make it impossible for its customers to send or receive a P2P file that would include works from SABAM, and faced fines of €2,500 a day if it failed to comply within six months.

In 2008 the Tribunal of First Instance in Brussels decided, on an application for “absolute impossibility of compliance” filed by Scarlet against its decision of 2007, that the Tribunal had been badly informed when it decided that appropriate filtering technologies were available on the market. Scarlet had argued that it was technically impossible or unreasonably expensive to block the P2P traffic and that the solution developed by Audible Magic, a filter mechanism, did not work. Additional technical options were considered and implemented but none of them led to a satisfactory solution.
The Tribunal declared itself not competent to deal with the question as to whether filtering can be made compulsory for ISP and referred the case to the Brussels Court of Appeals.

The Court of Appeals sought a ruling from the Court of Justice of the European Union on whether EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to install a system for filtering and blocking electronic communications.

Advocate General’s opinion

Advocate General Cruz Villalón considers that a court order to install a system to

1. filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement and
2. block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent

constitutes a general preventive obligation that would apply in abstracto without determining whether there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

This obligation, says the Advocate General, would also delegate the legal and economic responsibility for combating illegal downloading of pirated works to the ISP.

In the light of the above, Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. Equally important, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

To say it with Cruz Villalón’s own words: “As far as we can tell, no system of filtering and blocking seems to guarantee, in a manner that is consistent with the requirements of Articles 11 and 52, paragraph 1, of the Charter, that it will block only content specifically identifiable as illicit”.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order that an ISP installs such a filtering system.

This is not just a wind, no, it is a real bomb blast!

Nuclear Blast 1945photo © 2005 Thomas Williams | more info (via: Wylio)

 

Consequences

As you might know, the Court of the European Union follows Advocate General’s opinion in about 80 percent of its decisions.
This means there is more than just a fair chance that the Court rules against the requested filtering system.

In fact it is not a simple ruling that we need.
We need the Court to sweep the adversaries of fundamental human rights away and make them “gone with the wind”!

 

Did you like this article? If yes, do not forget to share your thoughts with me!

27 January 2011

All Quiet On The IP Enforcement Front?

Intellectual Property Zonephoto © 2008 Robert Nunnally | more info (via: Wylio)

As recently as on 22 December last year the European Commission issued its long awaited report on the application of Directive 2004/48/EC that deals with the enforcement of intellectual property rights (“IPRED”). The report represents a very interesting read and is accompanied by another, no less interesting, paper – the Commission staff working document. I strongly recommend reading those two records or, alternatively, the analysis thereof outlined in this very blog post.

If you are still reading this article, I assume you are definitely aware of the IPRED and I will skip its introduction. And since the above documents almost sound a charge against the Internet and its users, I will limit my explanation only to the Internet relevant issues.

Not surprisingly, the Commission stresses on the difficulties rightholders have been experiencing while pursuing IPR infringers on the Internet. Accordingly, those difficulties are attributable to “the relative anonymity of the Internet” as well as to the fact that the IPRED “does not sufficiently address this constantly growing, serious problem”. The latter appears somewhat inconsistent, since the IPRED equipped rightholders with a set of strong weapons – the so called right of information and the specific injunctive relief. The staff working document refers to the right of information as “an important tool for the rightholders to pursue … IPR infringements committed via the Internet such as illegal file-sharing of protected works through peer-to-peer protocol.” Further, and with respect to the injunctive relief the same document reads “Internet service providers, being the intermediaries between all the users of the Internet, on the one hand, and the rightholders, on the other, are often placed in a compromising position due to the infringing acts of their customers….It results from Member States’ reports that injunctions against intermediaries are used relatively often as the infringers are often unknown.

No doubt, these measures were clearly adapted to bring “intermediaries” (mainly Internet service providers, ISP) down to knees so they eventually provide the rightholders with the personal data of infringers on the Internet. So where are the difficulties?

Hmm, let us think about this one: what used to be the shield that (nearly always) managed to block rightholders’ weapons’ attacks?

Bingo, it is the law on privacy and data protection!

Indeed, the Commission notices that in some member states, pointing out Spain and Austria, ISP are practically not in the position to disclose the relevant information  in infringement proceedings. The reason therefor would often lie in that ISP are under data protection obligations resulting in the erasure of the data they might have previously gathered.

This is the point where the Commission touches the sore spot of the IP enforcement on the Internet – the fairly notorious conflict between the fundamental right to property and that to privacy. The Promusicae landmark decision is quoted as Community law’s requirement to fairly balance those two rights. However, this is followed by a caveat stating that “the European legal framework on the protection of personal data/privacy on the one hand and enforcement of intellectual property rights on the other is neutral, in that there is no rule that would imply that the right to privacy should generally take precedence over the right to property or vice versa” . I understand it like Commission’s reluctance to enter the territory of the Court of Justice of the European Union. What do you think?

Interestingly, but the Commission is very careful and even anxious on data retention. Nevertheless, their statement evidences that the purpose of data retention has never been directed to perpetrators of “serious crimes”, but rather to file-sharers.

A word should be dedicated also to the current absence of harmonized protection through criminal law. The Commission submits the fact that almost all member states provide for criminal measures to protect IPR, but the national definitions and level of penalties vary. That is, in the view of the EC, a “serious obstacle and may hinder the cross-border cooperation between the law enforcement agencies.”

All in all: the report has many bad news to tell. What could be its impact on the Internet users? Well, I guess that the Commission will initiate a new legislation to deal with the points and outcomes made in the report. Consequently, we should prepare to face more stringent civil sanctions, data protection undermining information requests and harmonized criminal measures.

Will they be capable to fight “Internet piracy”? I doubt it, unless the entertainment industry comes up with suitable lawful offerings. It is odd, but even the report admits that “file-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content.”

In the end, is there anything that Internet users can do in order to prevent the impact of the report? Yes, there is! You can all participate in the consultation the Commission set up on the report.

Raise your voice, because it is not all quiet on the IP enforcement front!

 

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