26 May 2011

One Breach To Compromise Them All


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Image: Demon Dog by Samuel Cockman on Flickr

5416537777_ed546d8bf9_z

This is a watchdog. A very cute one.
Its job is, nevertheless, to bark to alert its owner of an intruder’s presence and scare away the intruder.

France, the country which advertised the three strikes rule on a large scale and did eventually adopt it, has also a watchdog.
A dog to watch for file-sharing and online piracy of any kind.
Not a very cute one.

In fact, the French government represented by HADOPI, the executive agency established to enforce the three strikes rule, has commissioned the private company Trident Media Guard (TMG) to scan file-sharing networks and gather the IP addresses of alleged copyright infringers.

However, this watchdog was hacked and suffered a massive

Data Breach

some ten days ago.

I found the information about the breach on Ars Technica which have been continuously covering (click and click) the issue.
It appears that not only the unguarded servers were TMG’s Achilles’ heel. Their anti-piracy software was full of faults as well.

What a negligence, huh?

But that would not be all!

Imagine that this poorly managed company, empowered by the order of a special government agency and, employing a software that would very likely fail during a diligently conducted acceptance test, has the means to count your three strikes and

Send You Off

the digital playground?

The good news is that HADOPI must have considered this state of affairs unacceptable and has thus (temporarily) suspended TMG’s authorisation to collect the IP addresses of French Internet subscribers.

If the Court of the European Union follows Advocate General’s opinion in Scarlet vs SABAM, it could rule such Internet scanning outdated.

Either way, TMG’s data breach did its deed – it managed to harm the three strikes policy’s image and to (hopefully) ultimately and entirely compromise it.

6 May 2011

VPR v John Does: IP Subscribers ≠ Copyright Infringers


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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?


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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”!

 

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27 January 2011

All Quiet On The IP Enforcement Front?


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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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1 April 2010

ISO Hunted Down


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Stories involving file-sharing networks and copyright enforcers have become easily predictible: the latter commence court proceedings against the former and after a lengthy judicial argy-bargy (almost always) prevail thereby having the enabling network shut down. Unfortunately for all file-sharers among my readers, this post tells a story that makes no exception to the foregoing. It is dedicated to isoHunt and its legal battle against Columbia Pictures and its yesterday’s announced probable death.

 

Courtesy to Ars Technica

The first proceeding in which isoHunt and its founder Gary Fung took the role of the defendants commenced somewhere in 2006 and has brought some legal clouds over that network. Notwithstanding, in this post I would like to more properly address the last ruling of the US District Court for the Central District of California which is capable to eventually provide the defendants with their Hemlock cup.

In the instant case claimants had moved for a summary judgment against the defendants on the grounds that defendants’ users have infringed claimants’ copyrights and defendants are therefore liable for such infringement under the theories of inducement, contributory infringement, and vicarious infringement. Not surprisingly, Judge Wilson granted claimants’ motion for a summary judgment. What makes this ruling noteworthy is Court’s profound discussion of the torrent technology concerned and its findings on defendants’ liability.

A good starting point in the discussion could be made by the fact that the ruling in question was delivered by the Honorable Stephen Wilson – the judge who presided over the original Grokster case. Whether therefore or not, but his Honour seems somewhat exerted to make as many references to the Grokster cases as only possible. Thus, in his view, defendants’ torrent sites, albeit demonstrating a unique download process, represent an evolutionary modification of traditional “peer-to-peer” sharing sites such as Napster and Grokster. They would only differentiate in that the files, awaiting to be shared, are hosted locally on the file-sharers’ computers and not on a centrally operated server. In order to accesss the files, the file-sharers would need a “library” that maintains an index of torrent files available to download. These files do not contain copyrighted materials themselves, but the data used by a torrent client to retrieve copyrighted materials through a peer-to-peer transfer. Such files have been previously uploaded by (other) users who host the copyrighted materials locally. Once a user downloads a given content file, he also becomes a source for future requests and downloads.

In its liability analysis the Court found that defendants’ inducement liability was so overwhelmingly clear, and that a discussion on the remaining two liability theories, ie secondary and vicarious liability, would be unnecessarily duplicative.

The Court stated that claimants have used IP-address data to locate defendants’ users and show that particular infringing downloads took place in the United States. Further, claimants have provided, in Court’s view, sufficient evidence that, contrary to defendants’ wholly unsupported (arg!) assertions, torrent files downloaded from defendants’ sites correspond to and automatically cause the downloading of claimants’ copyrighted materials.

In determining defendants’ inducement liability, Judge Wilson quoted one of US Supreme Court’s dicta in MGM vs Grokster, according to which “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” In citing the Supreme Court in Grokster anew, the Court stated that the classic instance of inducement was by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. By the same token, claimants, in Court’s determination, presented a variety of undisputed evidence that defendants disseminated a message “designed to stimulate others” to commit infringements. Thereafter, the Court found, defendants’ liability for inducement was no longer open to any doubt. Moreover, claimants engaged in “purposeful, culpable expression and conduct” aimed at promoting infringing uses of the torrent websites.

In a next procedural step, the defendants had raised a defence based on the Digital Millenium Copyright Act (DMCA) that favours providers of certain internet services. However, upon stating that claimants had established defendants’ knowledge of their users’ infringing activities and, as defendants (i) failed to show they were not aware of facts or circumstances relating to infringement, and as defendants (ii) failed to evidence that they had removed the infringing material once they became aware of an infringing activity, the Court dismissed the defence and denied claimants’ entitlement to statutory safe harbour under the DMCA.

In its conclusion, the Court once again quoted Grokster and ruled that defendants’ technology is nothing more than “old wine in a new bottle”, consequently the outcome in the instant case could only be the same as in Grokster.

In my personal view, the above ruling is in full compliance with the currently applicable US legislation and judicial authority. Notwithstanding, developments such as in this case show at least two things. First, there is an ever-growing demand to access copyrighted material online and the shutdown of, say, Grokster did not prevent the establishing of isoHunt and Pirate Bay and it is very likely that their shutdown shall be accompanied by new creations in the file-sharing realm. Second, the rights’ owners should more extensively and, within the boundaries of applicable law, consider opportunities that employ the new technologies and lead to, maybe less excessive, but still good earnings, instead of prosecuting its own prospective customers.

 

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12 February 2010

German court discharges family accused for file sharing


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The District Court of Mainz has recently dismissed phonorecord producers’ charges against a family although their

Subscriber Line Was Demonstrably Used to Access, Download and Make Music Files Available

on a file sharing platform. The Court’s ruling bears the file reference 24.9.2009 – 2050 Js 16878/07.408ECs and has been published in the German journal Multimedia und Recht (MMR). The family’s attorney, Dr Jan Peter Müßig, has prepared an abridgement that is publicly accessible on MMR’s website.

The accused faced a criminal charge for having made available a certain amount of music files whose copyright was owned by different phonorecord producing companies.  Representatives or agents of those companies managed to download some of the files and

Succeeded To Detect The IP Address

and consequently the subscriber line of the accused. The subscriber line led to a family consisting of two adults and two minors. The Court ordered the search of the family’s home and thereafter the seizure of the computers and an external hard drive that the enforcement officers retrieved. The mother in the family could be identified as the principal of the subscriber line.

Initially, the Court found that identifying the subscriber line used for file sharing purposes equated the identification of that line’s principal as perpetrator and ordered  the mother to pay a fine of 1.500 Euro. On appeal she referred to the doctrine “in dubio pro reo” as she was not the sole user of the computers and the line in suit.  She further pointed out that the prosecution could not demonstrate her presence at home while songs were made available to the public and successfully downloaded by the right owners.

Failing to determine a proper perpetrator, the Court accepted the reasoning of the accused, vacated its previous order and did eventually

Dismiss The Charge Against Them

Having done so, the German court has demonstrated that it abides by nothing, but the law.

22 November 2009

Data retention in Austria becomes even likelier


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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.

25 July 2009

British ISP disonnects customers for file-sharing suspicion


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IMG_5139photo © 2004 Guenter Mandl | more info (via: Wylio)

 

The Khoisan word Karoo refers to a semi-desert region of South Africa.

According to the information BBC brought yesterday, the British ISP landscape is threatened by a sort of

Desertification

Karoo, a local internet service provider based in north eastern England intends to adopt a

Three Strikes

rule, in which suspected file-sharers will receive three written warnings prior to disconnecting them from the internet.

By doing so the ISP hopes to comply with “copyrights holders’ expectations” in terms of customers treatment.
Quit interesting what the customer reaction will be.

10 April 2009

Catch the Ipredator if you can


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Ipredator setupphoto © 2009 Espen Klem | more info (via: Wylio)

The music and entertainment industry representatives have very often during the, say, last decade set up the theory that the growth of broadband internet access has a causal connection with the more and more increasing

File Sharing

Some recent developments demonstrate the falling internet traffic in Sweden following a more rigid legislation in the course of IP rights enforcement, obviously dictated by the trial against the Pirate Bay.

The operators of the Pirate Bay have thus decided to technically enable an anonymity service for their users, called

Ipredator

The idea behind the Ipreadtor is not to log the users’ data in order not be obliged to provide right holders therewith. I am wondering as to whether this act does not conflict with the general obligation to retain communication related data imposed by the Data Retention Directive 2006/24/EC.

But even assuming the prevailing provisions of the Directive, a further maybe much more interesting question arises: does an alleged copyright infringement constitute a

Serious Crime

in the sense of the Directive, which would entitle law enforcement agencies to process user related information on the grounds of the Directive?

20 February 2009

How to kill a headless snake or about the prosecutor’s troubles with Pirate Bay


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Apoyando a The Pirate Bayphoto © 2009 Enrique Dans | more info (via: Wylio)

 

No doubt, copyright infringement is a serious thing. And whether Pirate Bay’s torrent technology infringes copyright in digital works is currently to be decided by a Swedish court.

No doubt, many of you know or are aware of Pirate Bay, but maybe also of other possibilities to download and upload digital works.
Unlike other technologies, the Pirate Bay does not host any content itself but acts as a search engine for video and audio information held on users’ computers.
Thus, it has so far successfully dodged lawsuits for a number of years, arguing that it is a not-for-profit site. Unlike Napster and other file-sharing sites like Kazaa (which both now sell music legitimately after being on the end of a string of lawsuits), the Pirate Bay does not have a central hub that can be closed down. Besides, the Pirate Bay does not have a typical hierarchy structure and this is about to become the prosecution’s nightmare.

As the present case has the potential to get a leading one in the course of (authorised) copyright infringement, I secretly support the prosecution and hope it will not give up quickly allowing also the court to derive a sound ruling on that serious thing!