3 February 2010

ACTA – a much ado about nothing or a real menace to our digital freedom?

2propuestas para el #TwitterShowcase 24 #ACTA #openACTAphoto © 2010 Neto González  | more info (via: Wylio)

In the last couple of weeks I have been confronted with numerous and contradictory information on the Anti-Counterfeiting Trade Agreement (ACTA), its ongoing negotiation rounds, and – of course – its possible impacts on our digitised society.

Curiously enough, the information flow appears to be largely one-sided, as it originates from critics of the planned agreement at the utmost. Official European authorities’ statements are either rare or more or less expressionless. The Intellectual Property Watch has quoted the Commissioner Designate for International Trade, Karel de Gucht, saying “If there is confidentiality, I will respect it and I have to respect it.  It is impossible to change the terms during the negotiations”. Clearly, confidentiality obligations – when assumed – need be abode by. However, why should an issue of such importance be kept under secrecy?

ACTA is meant to be a multilateral trade agreement whose framers claim it to be a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.”

The Scope of ACTA is Broad

including counterfeit physical goods, as well as “internet distribution and information technology”. In regards to the latter, ACTA is feared by many to bring the so called “three strikes and you are out” rule that would eventually lead to an internet denial for, say, users of infringing file sharing platforms. Such rules, for instance, are currently reported to be either implemented or seriously discussed in France, the United Kingdom, New Zealand, South Korea, and Taiwan.

ACTA is further frequently pulled together with the Directive 2004/48/EC (IPRED). Allegedly, the European Institutions await ACTA’s coming into force in order to align it with the IPRED II that was proposed in 2005 and aims to introduce criminal measures to ensure the enforcement of intellectual property rights.

Put it another way and given the validity of the above, ACTA will provide for

Some Atrocious Amendments

of the intellectual property legislations around the globe.

Indeed, I acknowledge that we live in an intellectual property driven society. Peterson J’s dictum “what is worth copying is worth protecting” in the University of London Press vs University Tutorial Press case seems to be as relevant today as it was in 1916.  And yes, it is true that the advent of Internet brought an inexpensive way to copy digital works and to distribute them without suffering any loss in quality. It is thus understandable that authors and right owners sought and are still going to seek sufficient protection for their works. Legislation on intellectual property, however, has always sought to

Provide for a Societal Balance

i.e. a balance between right owners’ limited monopoly over their works and society’s interest to access these works. The changes considered to be introduced by ACTA will, in my humble opinion, cause an imbalance in favour of the right owners.

As a consequence, ACTA is to be viewed – at least on the realm of Internet –  as a

Menace to Our Digital Freedom

rather than as much ado about nothing. If I were asked to advise the content industry, I would emphasize on business models and licensing schemes somewhat different than the current ones instead of employing a “seek and destroy” strategy to fight digital infringement.
There are many voices out there presenting good ideas, the content industry should just listen up.

18 December 2009

GPL enforcer brandish their sword in a lawsuit

FSF Wallpaper (blanco)photo © 2007 izamo | more info (via: Wylio)


The Software Freedom Law Center has undertaken proceedings against 14 hardware vendors, among which Samsung, Best Buy and JVC, for their alleged infringement of the GPL‘s license terms. Pursuant to claimant’s press release they attempted to approach the defendants giving them the opportunity to comply with the GPL prior to starting court proceedings, but those attempts were in vain.

The claimant asserted that the companies in suit have sold products containing BusyBox in violation of the terms of its license, the GPL (v2). In particular, the defendants faced the charge that they have distributed their products or firmware that contain BusyBox without claimant’s approval or authorization, since defendants had made the BusyBox in their distributions available in object code only. The defendants thus failed to include either (i) the “complete corresponding machine-readable source code” or (ii) a “written offer … to give any third party … a complete machine-readable copy of the corresponding source code.” Interestingly, the claimant forborne to question the interaction between the firmware and the BusyBox, especially as to whether the firmware were to be considered a “derivative work” of the BusyBox.

BusyBox has been referred by many to as the “Swiss Army Knife” for Linux and is thus a common component of numerous household devices that employ Linux as an operating system. Not surprisingly, the present lawsuit discovers how many commercially offered devices and appliances embody open source software.

22 November 2009

Data retention in Austria becomes even likelier

Austria’s DerStandard informs that the data retention bill to amend the existing Austrian Telecommunications Act was in place. In a consultation procedure, the responsible minister Doris Bures has called upon the appraisal of the participants (eg regional authorities, chamber for commerce and industry, trade unions). She thereby vowed to apply “the highest standards under the rule of law” in drafting the bill.

Austria has not implemented the data retention directive yet, wherefore the European Commission threatened the government with the launch of infringement proceedings. Austrian politicians have used the data retention related set of problems in their last election campaign in 2008. For some period thereafter and, since the subject matter is highly controversial, no one appears willing to cease the delay in implementation.

Quite often, the enforcers of intellectual property rights have been viewed as the real beneficiaries of the data retention becoming a fact. Many of their lobbyists and legal representatives utilized the duration caused by the governmental delay in addressing the public and stating the necessity to access retained internet traffic data that evidences, for instance, illegal file sharing.  However and given an implementation, it is still unclear as to whether such enforcers shall have access to data so retained.

According to recent cases on file sharing, Austrian courts seem to opine that file sharers’ interest in the protection of their traffic and identity data outweighs the enforcers’ interests to access such data.

It is clear that the data retention could easily change the so established balance. I hope to soon have certainty on that.

13 September 2009

New Commission’s communication on enhancing the enforcement of intellectual property rights in the internal market

The European Commission has published a new communication (COM 2009/467) to the Council, the Parliament and the Economic and Social Committee. In this communication the Commission acknowledges that the Union is the home of some very large and successful businesses in the world, who consider IPR to be amongst their most precious commercial possessions. The Commission further acknowledges that counterfeiting and piracy have a dramatic and damaging effect on business in Europe, wherefore certain measures Enforcement Directive, Customs Regulation) to better combat such counterfeiting and piracy were undertaken in the past.

The Commission

Seeks to Support and Enhance the Enforcement

by complementing the existing regulatory framework with non-legislative measures to make for more collaborative and focused enforcement across the Internal Market, in particular by:

  • supporting enforcement through an EU Counterfeiting and Piracy Observatory;
  • fostering administrative cooperation throughout the Internal Market;
  • facilitating voluntary arrangements between stakeholders.

The Commission suggests that the Observatory serve as the central resource for gathering, monitoring and reporting information and data related to all IPR infringements.

The Commission views s greater administrative cooperation in the field of IPR enforcement in the wider context of a partnership between the Commission and the Member States in implementing a borderless internal market.

Concerning its last point, arrangements between stakeholders, the Commission stresses that such solutions have to be

Compliant with the Existing Legal Framework

and should neither restrict in any way the fundamental rights of EU citizens, such as the freedom of expression and information, the right to privacy and the protection of personal data.