File sharing and piracy

three articles recently, two showing the opposite approaches that can be adopted by courts and one the absurdity of trying to get rid of the file sharing via the ISPs

ISP Tries To Charge Users To Block File Sharing... Ends Up Installing Malware That Exposes Private Info (TechDirt 14 June 2010)

Dutch Court Says Just Publishing Links To A Movie Is Illegal And Must Be Blocked (TechDirt, 04 Jun 2010)

compared to

Yet Another Spanish Court Finds File Sharing Site Legal; Compares File Sharing To Book Lending (TechDirt, 08 June 2010) - the source in English language is Torrent Freak which has a link in Spanish to the interview given by the Lawyer Carlos Sanchez Almeida to Publico.es (04 June 2010) - research in Spanish gives access to the text of the judgment available on what seems to be the website of Almeida's law firm. http://www.bufetalmeida.com/602/caso-cvcdgo-pagina-de-enlaces-la-audiencia-provincial-de-madrid-confirma-el-auto-de-archivo.html The Google translation is not bad at all and confirms the translation made. It also reveals more clearly than my now poor understanding of Spanish could grasp. The Judges have referred to various cases, acknowledging that the law is not settled on this issue. Yet, for them

"since ancient times has been the loan or sale of books, movies, music and more. The difference now is primarily on the medium used was previously the paper or analog and now everything is digital format which allows an exchange much faster and higher quality and also a global reach through the Internet. And this exchange takes place in the network through file-sharing systems "P2P (or peer network) where there are no fixed clients and servers have a global reach as any Internet user can connect to your computer and share files that are divided, in turn, a large number of parties.

To use file sharing programs (Emule, etc.) Running the link or link to the document that is on the website so that the user's computer connects to a computer but not many who have various stages of This same document being shared among many users at once without anyone perceived why any financial reward."

In most English newspapers/blogs, the first part is quoted. Yet I find the second paragraph equally interesting: it is saying that file sharing is not about holding the copyrights of the book and making money on it. It is just like a village market place providing the platform for users to exchange.

How Much Do Most People Really Care About Privacy? (TechDirt, 02 June 2010) -

Piracy: looking at IP in other ways

three articles in a week to remind us that we have to rethink IP because of the new technologies, the same way printing forced us to rethink IP. Interestingly enough, Sage publishers are conducting a survey online about open access journals: whether people are in favour of it and on which terms (free of charge or pay to publish type of model)

"EU Digital Agenda Commissioner Admits That 'Piracy' Has Created The Market That Legislators Did Not", TechDirt, 11 May 2010

Swedish Police Say Anti-Piracy Law Has Harmed Ability To Catch Criminals (TechDirt, 18 May 2010)

"Does Intellectual Property Go Against Traditional Views Of Knowledge In India?", TechDirt, 14 May 2010

Criminalisation of DRM bypassing - ACTA becoming transparent?

If the process was certainly not transparent, the draft is at last published. Will comments be published and listened to?

"Acta copyright treaty draft gets first public airing" (ZDnet.co.uk, 21 April 2010)

and earlier on, the EU Parliament's rejection of the treaty by 633 to 13! "European Parliament votes down Acta treaty" (ZDnet.co.uk, 11 March 2010)

Copyrights

Just a few additional links about posts published earlier on:

"Copyright A Priority For The DOJ; But Identity Fraud Has Fallen Off The List" (TechDirt, 8 April 2010)

which contrats with the EU Parliament's perception: Parliament threatens court action on anti-piracy treaty (Euractiv, 10 March 2010)

and the side effects of wanting more inforcement in non-democratic countries: "Careful What You Wish For: Greater IP Enforcement In China Being Used Against Foreign Companies..." (TechDirt, 8 April 2010)

Circulation of information and saving of

The Economist On Why Copyright Needs To Return To Its Roots (TechDirt, 20 April 2010). The argument is that the Statute of Queen Anne granted copyrights for only 14 or 21 or 28 years maximum. It was not during the artist/writer's lifetime. Well, I would like to introduce a nuance here: the life expectation of people was probably at the time around 40 years old. If one writes the book in their twenties and one adds 14 years, that is roughly 34 minimum, so prettry much the author's lifetime. What is true though, is that the limited period made it impossible to transfer the copyrights to the descendents/heirs.
for life expectancy: http://www.napoleon-series.org/research/abstract/population/vital/c_heights1.html which cites a book

Related to this is the post on TechDirt. The clip is cleverly made, but I am still not convince completely by it. No one has ever been able to copy what one wants without 1) acknowledging the author..., 2) in some cases (commercial use mostly), ask permission from the author. So yes copying can be theft, but not always. "Copying Is Not Theft" (techDirt, 15 April 2010)
Incidentally, acknowledging an author was not an inherent practice to writers. It started when the library of Alexandria opened and started to collect 'books'. They needed to reference the books and started to enquire about their authors... In parallel, in order to get all the books of the world at the time, the scribs did not hesitate to copy the books without permission and then they would reference them.
See also: "Content Creation Is An Evolutionary Process" (TechDirt, 22 February 2010) and the more recent post: "Innovation By Imitation: Study Shows That Success Comes From Imitation" (TechDirt, 22 April 2010)
and the very interesting comment/analysis of another's post: "Understanding What's Scarce And What's Not..." TechDirt, 09 February 2010

The Library of Congress seems to want to save all Twitter feeds on the grounds that ordinary people participate, giving historians a unique insight into day-to-day moods and understanding of issues. Not bad, but I wonder to which extent: it violates privacy, it is that useful for historians. Library Of Congress To Store Your Inane Twitter Chatter For All Eternity (TechDirt, 16 April 2010)

Google, China, HK

"Google Approach In China: Redirect To Hong Kong", TechDirt, 22 March 2010
with the original post from Google also from 22 March 2010.
What I was intringued by in Google's statement was the following sentence: "We believe this new approach of providing uncensored search in simplified Chinese from Google.com.hk is a sensible solution to the challenges we've faced—it's entirely legal and will meaningfully increase access to information for people in China. " I wonder what Google meant by "legal": legal to uncensor in China? or legal to redirect links?
I also noticed that after the English version of the post, other links to the same content are posted in different languages. Quite interesting to see how Google is catering for his non-anglophone users


"If ACTA Gets Approved, Expect China To Use It As Justification For Censorship", TechDirt, 22 March 2010

Copyrights: our level of acceptance in surveillance and prosecution techniques

Self-explanatory and completely in line to my point of view about the level and type of surveillance we accept online being disproportionate to what we would tolerate offline; it is like the spirit of the Enlightenment being swallowed by the new technologies.

"Would UK Politicians Support The Digital Economy Bill If It Applied To Offline Activities As Well?" TechDirt, 19 March 2010

It is especially worrying when one sees those types of headlines and attitudes:

"More ACTA Leaks: Would Create Special Organization To Manage Worldwide Copyright Laws", TechDirt, 19 March 2010

"EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google", TechDirt, 18 March 2010 - it is the EU commission, not the Parliament; and it continues the general trend in EU Law of wanting to edict criminal sanctions whereas criminal law is not supposed to be a competence for the EU institutions

"If ACTA Gets Approved, Expect China To Use It As Justification For Censorship" - TechDirt, 19 March 2010 - well China will indeed always use whatever possible to reinforce surveillance

Copyrights

The bug in HADOPI 2 (French version of three strikes law for piracy) was "patched" by governmental decree or statutory instrument, with the possibility to ask for damages in the criminal proceedings. But some more difficulties have been highlighted, mainly due to the administrative status of HADOPI which does not have the quality of police officer and thus can't receive complaints linked to criminal charges and torts claims as an officer would.
"L’argent du beurre des ayants droit : Hadopi 2 bientôt patchée" PC INpact 5 March 2010

"French Government Looking To Set Up The Great Firewall Of France?" TechDirt 18 February 2010

While most European countries are happy with the secrecy surrounding ACTA (and the EU COmmission also), Sweden, the EU data protection agency, and the EU Parliament are quite worried about it.
"Parliament threatens court action on anti-piracy treaty" EurActiv 10 March 2010
"La « Cnil européenne » demande plus de transparence sur l'Acta", 01net, 23 February 2010
And yet, Sweden accepted that the expert who has worked for the music industry in the Pirate Bay case could be head of the IT crime unit.
"Swedish Investigator Hired By Warner Bros. During Pirate Bay Investigation Now In Charge Of IT Crime In Sweden" TechDirt, 26 February 2010

THose copyrights claim are becoming ridiculous, as even a video of PRof. Lessig has been taken done on YouTube. Ironically, Prof. Lessig was in favour of copyrights in Second Life
"Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation" TechDirt, 2 March 2010

Plagiarism

Although I would agree that there is a difference between a print mindset and an internet mindset, I disagree strongly with somebody who argues that the internet is about linking and that not to acknowledge sources is OK. Of course, links are essential, but date and place (blog or author's name) is also important for people to check the info; after all, that is why we instaured referencing vs plagiarism. Plus I don't believe that the non-linear way the internet works is an excuse for what is basically lazyness.

"Print Mindset vs. Internet Mindset: Do You Link? Do You Credit Sources?" TechDirt, 9 March 2010

Murdoch's NY Post Continues To Source Articles From Bloggers With No Credit | Techdirt

Murdoch's NY Post Continues To Source Articles From Bloggers With No Credit Techdirt 5 March 2010

I like the irony of this info. Championing IP rights but not even having the decency to acknowledge authorship. It made me think of a book I am currently reading about openness, secrecy and authorship. The author looks at those issues from the Greek and Roman times to nowadays and tries to understand who information and knowledge were transferred. So far I read only the first two chapters (out of 9) and more or less, there is no secrecy, no willingness to restrict the flow of information. the only evolution has been to acknowledge authorship. Secrecy exists only for magical formulas and what we would consider nowadays as religious writings. But for example military writings (about weapons...) were open to all even though the audience was obviously restricted by lack of education of the masses. The reason was that war was seen as the skill, personal characters of men, of generals, rather than the result of good weapons. Exactly, good weapons were acknowledged as a factor to win a war, but the skills of a leader were seen as more important to use those weapons at their best (and to improve them).

also originality was not key: what was important was the possibility for knowledge to be available with acknowledgments of sources

The Myth Of Originality... Tech Dirt 5 march 2010

Piracy

"Lord Lucas Keeps Wanting To Chip Away At Digital Economy Bill: Exempt Search Engines" (TechDirt, 28 January 2010).
"Insult To Injury: Mandelson Wants Those Wrongly Kicked Off The Internet To Pay To Appeal" (TechDirt, 28 January 2010)

seriously, first time I ever heard that one, but it is so crazy it just highlights the financial issue behing the fight against piracy by big companies "Seriously: Where Is The Link Between Copyright Infringement And Terrorism/Organized Crime" (TechDirt 29 January 2010)

This will be worth reading and transferring to other types of offences than piracy: it corresponds exactly to what I said if I believe the comment:
"Decision In iiNet Case Explains Why ISPs Cannot Effectively Be Copyright Cops" (TechDirt 4 February 2010)

Copyrights bill in the UK

Sorry but don't have time right now to analyse:

"Lord Lucas Proposes That Copyright Holders Detail Actual Damages From Infringement Under Mandelson Bill" (TechDirt, 7 january 2010)

"UK Ministers 'Concede' Some Ridiculous Points in Digital Economy Bill In Attempt To Get Other Ridiculous Measures" (TechDirt, 13 January 2010)

reinforcement what I said earlier "If Banning The Internet For Sex Offenders Is Unfair, Is Banning The Internet For Copyright Infringers Fair?" (TechDirt, 13 January 2010)

New report in France to reflect on digital economy

Well, I have just scrolled through the report and the least we can say is that the committee did not really engage with the issues at a deep level. The report is disappointing:
- for a summary in English, "France's Latest Plan: Tax Google, Microsoft And Yahoo To Fund Record Labels" (TechDirt, 7 january 2010)
-for an equally sanguine account, in French, "Mission Zelnik : les principales propositions du rapport" (Numerama, 7 January 2010)
- for the report itself (in French), in La Documentation Francaise

Privacy, piracy, copyrights and censorship

The theme of the week seems to turn around protecting privacy.

"Hacking Surpassing Human Error For Data Breaches?" (TechDirt, 19 January 2010). For the author, the answer is actually positive: hacking is a major threat, more that insiders leaking data.

In the fight against piracy, will privacy be waived? "Swedish ISP Refuses To Give Up Info; Says IPRED Violates EU Privacy Rules" (TechDirt, 18 January 2010)

"The Similarity Between ACTA And Chinese Internet Censorship" (TechDirt, 20 January 2010) in that both requires strong involvement from ISPs. I also think that both infringed on privacy. But the issue of ISPs involvement is also close to more traditional searches and seizures: "Once Again, FBI Caught Breaking The Law In Gathering Phone Call Info; But Real Issue Is Why Telcos Let Them" (TechDirt, 19 January 2010)

Obviously, all this debate supposes there is such thing as privacy about data online. Hence the issue about cloud computing and expectations of privacy. "Do You Have Any Legal Right To Privacy For Information Stored Online?" (TechDirt, 19 January 2010) THe US have actually articulated that notion of expectation of privacy, even though the answer is not satisfactory: it is not because it is online that there is no expectation of privacy. It all depends on where and what was intended to be done with the data.

France Considers 'Right To Forget' Law, Apparently Not Realizing The Internet Never Forgets (TechDirt, 8 January 2010)

Digitalisation of books - comparing France and the UK

Already yesterday I thought of writing a post about it, while I was discovering the poverty, I would nearly say the misery if the word had been appropriate, of digitilased books in the UK accessible free of charge. I wanted an old book from 1824 printed in London about criminal libel; so one can guess that copyrights should not be an issue. Well, where do I find it online? Certainly not on the British Library website; it is appallingly bad as far as digital collections are concerned. Despite the hype about the Online Gallery, there is absolutely nothing. Compared to its English counterpart, the French Bibliothèque Nationale de France is light years ahead of the British Library. On its Gallica website, also accessible in English and Spanish, there are hundred of thousands of old books (mainly pre-1930s) having been scanned with often a text search available. In my fields, I have all the old books that I need and still use; I even have the first issues of the main French law journal on criminal law. And the RSS feed allows me to keep up to date with the new books added to the digital collection, all that free of charge to the user.
So one can criticise the French Government for sponsoring the programme, but frankly, I would prefer my taxes to go into the programme than leaving it to private companies to do the job. Why? because the 1824 I mentioned earlier was scanned by Google and available at Google books, but frankly, half of the information displayed on the search result is inaccurate, the references not corresponding to what has actually been digitalised.

"Sarkozy To Throw Another Billion At Digitizing Books" (TechDirt, 17 December 2009)

"Now France Fines Google For Scanning French Books" (TechDirt, 18 December 2009)

and the European policy in the same lines as France's http://www.euractiv.com/en/infosociety/web-inventor-snooping-authorities-threaten-internet/article-187987 (14 october 2009/25 November 2009)

Now, on Jan 12, having received a newsletter from a French website, I post the following. It is about an article from Le Monde (The newspaper in France) dating from 19 december 2009. It confirms what I have described about the poor quality of the digitalisation of books. One author said his book was digitalised without his authorisation and Google used non corrected/checked proofs of the book. In other words, it was worthless. In the article, is also mentioned the work of the BNF and its willingness to digitalise but with quality and with compliance with the copyrights law. "

Livre numérique : la justice française donne raison aux éditeurs face à Google (Le Monde, 19 Dec 2009)

Good wishes, piracy and censorhip: happy new year!

I cannot believe it is already the new year and ... that I have not written for the past month. I only took two weeks of holidays, but being busy elsewhere did not give time to sit down in front of the computer with an actual internet connection.
So here I am, wishing you a happy new year, with the best for 2010 and maybe less snow that here in Suffolk and Essex we receive!

Back to business: 2010 will probably be like 2009 for piracy. The same debates and the same lack of innovative thinking about creation, authors' rights and distribution when it comes to legal reforms.

1 - So for the UK, "UK Government Report Shows That Digital Economy Bill Will Cost More Than Highest 'Piracy' Estimates, Drive 40,000 Offline" (TechDirt, 28 December 2009)

"Lord Lucas Wants UK Digital Economy Bill To Include Remedy For Bogus Copyright Threats" (TechDirt, 22 December 1009)

"UK Digital Economy Bill Section 124H Would Give Ability To Silently Censor Websites" (TechDirt, 18 December 2009)

For the text of the Bill, its different amendments and the parliamentar process, one can have a look at the UK Parliament website which is improving on a regular basis: http://services.parliament.uk/bills/2009-10/digitaleconomy.html

2 - and France: "Will France's Three Strikes Law Matter?" (TechDirt, 4 January 2010) The story is as follow. The database to be created with the names of the offenders has to be approved by the CNIL (the French quango established years ago to protect freedom of expression and privacy) which is careful in the methods used to hold the data, the length of time it is held, who has access, for which purposes etc... The problem is that the CNIL decided not to assess anything until it receives the details of the procedure that will be used, details awaiting finalisation in a decree (i.e. statutory instrument). Given the reputation of the CNIL, the French Government is stuck and just has to wait if it does not want to be seen as bypassing the CNIL's protecting role. See the text in French of the newspaper La Tribune, 23 December 2009

see also "French Government's Plan To Help Book Publishers Adapt: Have Them Embrace Three Strikes Plan" (TechDirt, 7 December 2009)

3 - I came accross the issue yesterday while working on the same article as last month. Reading again Levy's book on Becoming virtual: reality of the digital age, the passage on the changes brought by the acceleration of virtualisation in cyberspace struck me as ahead of his time (he wrote in 1998). He more or less noticed that the difference publishers, distributors and creators is abolished, or at least blurred, and that the model we rely upon, that of the printing press, is outdated and needs to be rethought. Technology should be used to promote distribution with fair use of authors' creations (= not charging like we do with publishers benefiting, but charging with authors receiving directly the money!).

The new UK piracy Bill and the anti-piracy lobby

The new Bill works on the model of the three strikes law, with obviously no intervention of an independent body. Anybody can request the ISP to file a notice and it is the ISP that makes the decision. What about a fair trial in the UK?
Moreover, the list of 'offenders' can be requested by anybody victim of copyrights infringement. But in the past, did we not need a search warrant? i.e. a judge assessing the claim made by prosecution/victims?
For the bill itself, http://www.publications.parliament.uk/pa/ld200910/ldbills/001/10001.i-ii.html

For a preview before the Bill went to Parliament, "Mandelson puts 'three strikes' internet plan in motion" (ZDnet.co.uk, 28 October 2009)

"Digital Economy Bill gets tough on file-sharers" (ZDnet.co.uk, 20 November 2009)

"Digital Economy Bill: Industry disputes gov't claims" (ZDnet.co.uk, 20 November 2009)
"Web giants attack Digital Economy Bill" (ZDnet.co.uk, 02 December 2009)

"GCHQ supplier pans government file-sharing plans" (ZDnet.co.uk, 27 November 2009) and
"UK Politicians Pushing Back On Mandelson's Digital Economy Bill" (TechDirt, 03 December 2009) but on the contrary, "Virgin Media to monitor traffic for file-sharing" (ZDnet.co.uk, 26 November 2009)

"Yes, But Will Sergey Brin Take Peter Mandelson Out To Dinner At A Fancy Resort?" (TechDirt, 02 December 2009)

The funny side of things is that mobile industry cannot identify offenders. So guess what? do not use your home computer. Use your smartphone! "Mobile industry 'cannot identify pirates' " (ZDnet.co.uk, 24 November 2009)

To put the whole debate in perspective, read this interesting article that shows how powerful is the lobby against piracy. There is nothing about morals here, but only about economic gain, and some cynics may add, about economic greed. "European ISPs attack secret Acta copyright talks" (ZDnet.co.uk, 02 December 2009)

See also, more generally on the use of the internet for surveillance purposes but without the traditional safeguards of a warrant, the interview of Tim Berners-Lee, the "Web inventor: 'Snooping' authorities threaten Internet" (Euractiv.com, 03 December 2009)

And the EU stand against this new trend of legislation, even before the UK Bill was drafted: "European 'internet freedom' law agreed" (ZDnet.co.uk, 05 November 2009) "One promise needed for internet freedom" (ZDnet.co.uk, 05 November 2009)

Origins of copyrights -

I am just in the middle of writing an article on criminal law and virtual worlds and I am reviewing quite a bit of materials to understand the offences of theft, larceny and the related offences. That meant reviewing the concept of property. Two interesting bits came up:

1. first, Blackstone's understanding of property was that of physical property (one author calls it physicalisation of property, Vandevelde K, "The new property of the nineteen century: the development of the modern concept of property", (1980) 29 Buffalo Law Review 325 ; most of us still use the term of tangibility) and that of exclusivity of property. Obviously, with information, the two paradigms are challenged: full intangibility with no possibility to transform it into something tangible; no exclusive control that would exclude per se the (legal) intervention of another
2. secondly, the origins of copyrights are indeed into protecting the printing guilds. They had the right to copy; protection of the book trade. With the licensing system being abolished in 1694, the printing "firms" could not benefit from copy rights. Hence, they demanded that the authors should be granted copyrights, a request made with the hope that they, as printing press, would benefit indirectly from this right in the same way that they benefited from the original copyrights existing prior to 1694. The lobbying of Parliament resulted in the Statute of Anne 1709. Hammon G., "The legal protection of ideas", (1991) 29 Osgoode Hall Law Journal 93. I found this piece of history fascinating because most articles published (but not books!!!) do not bring a single penny to their authors, but do allow publishers to make a living out of it ... like in the good old days of the licensing system enforced at the time when printing was invented. Not that everything is bad with the new system, but, as I highlighted earlier, copyrights are not simply about the authors. The problems we face with online piracy should be seen under that light.
   

Hadopi 2; the piracy matter in France

As already pointed out, France enacted its legislation after the first censorship by the Constitutional council. Except that the law went back to the Council a second time (22 October 2009)... and Parliament was censored for not having explained in details what the procedure will be (incompetence negative). Hence, a third version of the statute: a future Hadopi 3.

Frankly, given the short comings of the Hadopis, one really wonders whether Parliament should not have just paused and thought a bit, rather than rushing about.



See (all in French) Marinese http://www.juriscom.net/actu/visu.php?ID=1157 (3 november 2009)
Rojinsky, http://www.juriscom.net/actu/visu.php?ID=1155 (28 October 2009)
Thoumyre being interviewed, 3 November 2009 http://www.pcinpact.com/actu/news/53927-claire-chazal-reponsabilite-diffamation-hadopi.htm
And for a longer analysis by V. Benabou, Glose de la loi favorisant la création et la protection de la creation (dite HADOPI) (Juriscom.net. 7 november 2009)

And the link towards the two Acts: http://www.service-public.fr/actualites/001268.html?xtor=EPR-140 that are on Legifrance

Obviously, the UK contemplates introducing similar legislation and does not seem to be put off neither by the peripetieas of French law, nor by the criticism the system attracted/attracts.
UK Gov't Official: Innocent People Won't Get Kicked Off The Internet; Trust Us (TechDirt, 12 November 2009)

On the international dimension of piracy, there is the Anti-Counterfeiting Trade Agreement (Rees, 9 November 2009, http://www.pcinpact.com/actu/news/54030-acta-hadopi-riposte-surveillance-internet.htm)

Three strikes law in the UK?

France having enacted its legislation after the Constitutional Council's disapproval of the original draft, the UK is thinking of adopting the same law despite the EU's opposition.

Will Three Strikes Ever Really Get Implemented In The UK? (TechDirt, 30 October 2009)

As Expected, Mandelson To Introduce Plan To Kick File Sharers Off The Internet (TechDirt, 28 October 2009)

UK Law Enforcement Tells UK Gov't: Please Don't Kick File Sharers Offline (TechDirt, 27 October 2009)

France Agrees To Kick File Sharers Off The Internet Again; Lobbyists Call It 'Consumer Relief' (TechDirt, 22 October 2009)