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

"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)

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)

Google blocking account

Quite an extreme measure for misplaced 'post', even if ordered by a court. I am unsure we would have acted identically had post mail been used. I don't see a court order for a citizen not to receive his mail until further notice. Is it because of the ease with which one can block e-mail accounts that we resort to such extreme measures?

Google deactivates Gmail account after bank error (ZDnet.co.uk, 29 September 2009)

Views on regulation on the net

Axel Pawlik, managing director of the Ripe NCC, writes about regulation on the net. He considers that ISPs should not take an active role in regulation, notably in relation to piracy. THey should be treated like telecom companies which list calls and that's all.
The article is definitely not a cybercrime perspective as such: there is piracy, but I think the issue of piracy is first of all an issue about what we want with copyrights; domain names attribution is looked at and again there is no incidence in criminal law for that.
However there is an interesting parallel with telephone companies when it comes to surveillance. We all know that surveillance of contents on phone conversation requires preliminary investigation: governments are not allowed to wiretap telephone conversations just to find out about illegal contents (or let's put it that way: in democracies, they are not supposed to do random wiretapping without warrant). Why should the net be treated different? Apart from the non feasibility of spying on all contents, it's nothing different and privacy is key.

Politicians should stay out of internet policing (ZDnet.co.uk, 22 July 2009)

which is obviously not what the UK Government does as it poured 10 millions pounds on monitoring.
"Gov't boosts spending on web monitoring" (ZDnet.co.uk, 13 July 2009)

whereas in France, Mr. Alain Bravo for the Assemblee Nationale (Parliament), published his report on security and digital economy to explain six scenarios, from no control apart from big firms' to too much control... http://www.assemblee-nationale.fr/13/rap-info/i1670.asp

ISPs and illegal contents in China

Not made to reassure about ISPs' behaviours towards China's regulations. It shows they ere on the side of caution, as usual. The only thing unusual is the Chinese Court's decision which was to condemn the ISP for not demonstrating that the content was illegal.
The information originates from the Financial Times with its correspondent.

Surprise: Beijing Court Sides With Victim Of Internet Censorship (TechDirt, 27 May 2009)

Victim of Beijing internet censorship wins landmark court ruling (FT, 26 May 2009)

"pro"-piracy policy, anti-piracy policy and distorted language and

Woman Who Owned No Computer, But Got Sued By The RIAA, 'Settles' Techdirt: "Woman Who Owned No Computer, But Got Sued By The RIAA, 'Settles'" (TechDirt, 19 June 2009)

As pointed out, one cannot settle when the facts established demonstrate an impossibility to commit the action. The RIAA is manipulating the language to appear victorious when its actions embody utter failure.
More troubling, is the issue of evidence. What would have happened if this woman owned a computer but never filed share? How is the RIAA collecting its evidence? Are we not here faced with illegal surveillance?

In that sense, Norway's position to avoid general surveillance for just an issue of IP makes much more sense.
Norway Decides Privacy Is More Important Than Protecting The Entertainment Industry's Business Model (TechDirt, 24 June 2009)

Obviously, Norway's position obliges to rethink piracy and the IP rules. The analysis of Shakespeare's work and how the famous poet and writer borrowed from traditional folk tales and their various interpretations by other authors is quite enlightening about the real issue IP legislation create, especially in a world which works on the basis of networks and sharing.
"Would King Lear Ever Have Been Written If Copyright Law Existed?" (TechDirt, 23 June 2009)
"The Guardian Embraces Crowdsourcing The News In Useful Ways" (techDirt, 24 June 2009) (The Guardian put online all the data on the MPs' expenses scandal - ordinary people digged out what they found interesting and journalists just check and put the information within a broader perspective

Filtering,

EC: New net-neutrality law is unnecessary - ZDNet.co.uk: "EC: New net-neutrality law is unnecessary"

The Conseil constitutionnel (French Constitutional Court) rejected part of the Bill nicknamed Hadopi in its provisions that were allowing an administrative authority to cut the right to access the internet. The Authority, although independent, did not provide sufficient safeguards to the internet user, given that was at stake freedom of expression. Only a court, as part of the judiciary with its own requirements of independence and impartiality, could take such decision.

The decision is interesting for several reasons:
1- in relation to the "independent administrative authority" system which France is so fond of, the decision puts a halt to a recurrent trend to transfer legal issues from the courts to non judicial authorities.
2 - it is a reminder that freedom of communication and expression are so intrinsic to the internet, that any measure curtailing it, whatever the justification offered, must be assessed by the courts. Compared with what is happening with ISPs taking down materials, the decision makes one think about the appropriateness of those take down notices procedure not validated by courts...
3 - I am not as sure as the Commission that net neutrality is not needed; resorting to courts is not the main method within Europe. Harmonisation at EU level should be certain before engaging into a dangerous path

control on the internet

Facebook filters (no!) so as not to be caught in the Pirate Bay issue. Once more, this shows how a lack of reflection on providers' roles creates intolerable situations violating liberties.

"Legal Questions About Facebook's Blocking Of Links To The Pirate Bay" (TechDirt 8 May 2009)

Piracy and ISPs' attitude in Sweden

Exploiting a gap in the law, Swedish ISPs do not keep any content nor any log on their customers. A radical stand to maximise privacy against the Governments' trend (like the UK) to want to keep data.

"More Swedish ISPs Decide To Keep No Logs To Protect Users" (TechDirt, 29 April 2009)

The movement is linked with the piracy case against Pirate Bay which is also a party with a seat in the EU Parliament "Swedish Pirate Party may win EU Parliament seat" (ZDnet.co.uk, 6 May 2009). Maybe there'll be a change in policy in the future?

For the origin of piracy, a truely international crime at the time, see "A Look Back At The History Of The Word 'Pirate'" (TechDirt, 30 April 2009) who refers to a SSRN paper "The Framing of 'Piracy': Etymology, Lobbying & Policy" from K. Matthews Dames

Private sector collaboration with investigatory forces

Two stories about the private sector wanting to or already collaborating with police forces, at least in the UK. That the firms stop avoiding the issue is a good sign and it is sad to say that it takes a financial crisis to lead the firms to realise that cybercrime is not a minor issue.
E-crime police see UK firms pledging techies' time (ZDnet.co.uk, 20 January 2009)
UK site offers bounty for DDoS attackers (ZDNet.co.uk, 22 January 2009)

MPAA Also Likes The Idea Of ISP Enforcers For File Sharing (TechDirt, 29 December 2008)

Copyrights infringement and duty to react from ISPs/social networking

A bit of French law here: a French comic who used to specialised in hidden cameras type of sketches in the high street (his nickname literally means Thebottom), sued and sues several companies/ISPs for holding pirated videos of his work. According to the article below, he has not been that succesful and often had to pay for expenses more than he ever gained when his complaint was accepted.
The interesting feature is the take down notice feature. Social networking like Dailymotion (videos like YouTube) was condemned to pay damages for not having removed contents before three months have ellapsed since given notice.
Lafesse lost another case, but on procedural grounds rather on the issue of whether MySpace is responsible as content provider or host.

"La cour d'appel annule la condamnation de MySpace par Jean-Yves Lafesse" (3 November 2008)

Net neutrality

Have The Big Internet Companies Turned Their Back On Net Neutrality? (TechDirt, 15 December 2008)

ISPs role: caught in fire?

A recent ruling from the European Court of Human Rights against Finland highlighted the crucial role ISPs can play in investigations and protection of the person. K.U. v. FINLAND (2 December 2008),
"The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of K.U. v. Finland (application no. 2872/02).
The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the Finnish authorities’ failure to protect a child’s right to respect for private life following an advertisement of a sexual nature being posted about him on an Internet dating site." (statewatch)

And yes, ISPs are policemen. Not such a bad thing as long as the courts are involved and criminal procedure respected, which is not always the case.
"Danish High Court Says ISPs Must Be Internet Policemen; Have To Block The Pirate Bay" (26 November 2008)

ISPs and search engines blocking accesss to content

1. It's a behaviour not peculiar to criminal law issues, but it is certainly troublesome when it comes to criminal law. Again, ISPs take action before any judgment has been passed, before any court involvement and the like. Such blocking of content by physically removing the materials does not comply with international standards of presumption of innocence; plus it means that the ISPs act as judges, especially if nobody challenges their decision, a route that could be explained for purely financial reasons.

Obviously, in addition there is the freedom of speech issue.

"Will YouTube Ban Videos Of Putting Your Head In The Sand Next?" http://www.techdirt.com/articles/20080917/1401402295.shtml (17 septembre 2008)

"Thousands Of Anti-Scientology Videos Taken Down From YouTube Via DMCA Takedowns" (8 september 2008) http://www.techdirt.com/articles/20080908/0221022195.shtml

"Google Taking Down Private Videos For Copyright Infringement?" http://www.techdirt.com/articles/20080904/0301492164.shtml (8 September 2008)

1. The dangers underlined above appear in the following case. A grandfather posting on windows live the images of his family, with no possible access by outsiders, was ordered to withdraw some photographs within 48 hours or the site would be shut down. Having no clue of what the problem was, he went to see which pictures were so problematic and it was his grandson taking the bath with his dad, so obviously child naked with adult (male - because if female, I am pretty sure the host would not have raised an eyebrow). Had the case been refered to the court, the ISP/host would have lost: impossibility to prove the mens rea of putting child porn images (the family context with restricted access to family members whose identity can be easily verified); impossibility for the pictures to be found constituting child porn given that the adult was not engaging in any indecent act.
2. and at the end, I think this is an infringement on privacy which is too great not to be noticed

ISPs as enforcers of the law

Nothing new really, but more obvious now. Section 230 (c)(2) CDA (the other part of section 230 is the infamous "child porn provision") allows for ISPs to filter contentious contents. Spam being illegal, ISPs are allowed to filter content, i.e. here e-mails and block the account holder. Law enforced by private companies which are probably quite happy about it because spam is a hindrance to their services. Decision of 10 April 2008 (Northern District Court of Illinois)
http://www.spamsuite.com.nyud.net/index.php?q=node/387
the PDF version (and full decision) is available on http://www.circleid.com/pdf/come360-counterclaim.pdf

From "Court Tells Spammer That It's Not Illegal For An ISP To Filter Its Emails" (11 April 2008) http://www.techdirt.com/articles/20080411/150256827.shtml

ISPs, prosecution and human rights

It seems that Yahoo! wishes to "clean up" its act: it offered $1m to study the link between the internet and international values, meaning human rights. After having contributed to giving in a chinese dissident, is Yahoo! willing to repent? The gesture could go into two different directions: a pure PR exercise destined to exorcise the bad name but with no real consequences and change of policy; or a strength to behave more responsibility and more in accordance with what the US and the West are supposed to embody, i.e. human rights. Where the wind will blow will undoubtedly depend on the quality of the research done, i.e. the methodology used and the people employed to do the work, as well as the lessons that will be learnt. There is no time frame given in the article, so we may well have to wait a while, forever? Because to declare there are "grey areas" which render doing business difficult international is an euphemism for not having the courage to stand by one's opinions and values and let greed take over. Yes fighting for freedom does not bring any penny in difficult situations, but that's the short term view is it?
"Yahoo CEO: Business overseas fraught with 'grey areas' " (4 April 2008)
http://news.zdnet.co.uk/internet/0,1000000097,39379891,00.htm

ISPs, when will we think about them in a different way?

The US Congress condemns Yahoo!, but this should not come as a surprise.What is amazing is that nobody rethinks the role of the ISPs in this particular situation.
Yahoo! claims: "The fundamental point remains unchanged: we did not know the case related to a journalist ... We did not know this was a political case." But this is not the point: China will never tell them that it is political! Nobody in an extradition case will ever tell the other country they want the extradition because the person is a political opponent: they know that doing so leads to refusal of extradition. So why is Yahoo! not thinking further ahead? and why lawyers in the Western world are not changing their perception of what Yahoo! is: Yahoo! is not a company anymore, it is a law enforcement agent! the same rules should thus apply to Yahoo!

http://news.zdnet.co.uk/internet/0,1000000097,39290605,00.htm

and for another case of helping law enforcement officers, this time by ... YouTube! http://www.techdirt.com/articles/20071129/105357.shtml (29 November 2007)

The ambiguity is probably at its peak when one sees that Yahoo! settles some cases. The ironic argument is that it probably costs Yahoo! pitance to negotiate the end of the court cases in comparison with the damaging effect of a court case in the public opinion. So people, be warned!
http://news.zdnet.co.uk/internet/0,1000000097,39290784,00.htm

At least, ISPs should wait for legal orders (although is legal compliance with HR, that is an other question) http://www.techdirt.com/articles/20071127/025958.shtml (November 2007)
or should be recognised as such as the French government bill suggests (26 Novembre 2007) http://news.zdnet.co.uk/internet/0,1000000097,39291067,00.htm "France cracks down on illegal file-sharing" and the enlighting TechDirt article http://www.techdirt.com/articles/20071126/021329.shtml (26 November 2007)

ISPs again: why responsible?

The following article from David Meyer is quite revealing about the role ISPs are now asked to perform: to be law-enforcement agents, but without the name, the rights and the duties. The objective is repression, laudable if human rights are not put aside. But is it always the case?
The other aspect of this call for ISPs co-operation is the emphasis put on IP materials, worth as much as child protection?

http://news.zdnet.co.uk/communications/0,1000000085,39290371,00.htm