We've been covering Russia's moves towards increasing censorship of the internet over the past few months, including passing a dangerous new law that appears to be focused on being able to directly censor sites that the government doesn't like.

Now the Russian Supreme Court may have just made it even easier for Russia to stifle speech online. A new ruling has said that ISPs need to proactively block access to "illegal content" or they could "lose their license" to operate. Specifically, the court found that there is no difference between allowing access to illegal information and disseminating it yourself. The law firm Baker & McKenzie summarized the findings which had to do with whether or not it was illegal for an ISP to allow access to an online gambling site, despite gambling being illegal:

The Supreme Court ruled that is it unlawful to disseminate information that is restricted in accordance with Russian law, including, but not limited to, on gambling. The court further concluded that provision of access to restricted information is equal to dissemination of this information. The court thus found that a telecoms company de-facto disseminates restricted information by providing access to websites containing this information.

The court concluded that Rostelecom must take measures to technically block its clients’ access to restricted information. Following the Supreme Court’s rationale this requirement applies irrespective of the location of the servers containing such websites.

That's a startling and dangerous finding. Basic common sense would suggest that there's a world of difference between merely being the conduit to information and actually putting forth that information yourself. In the US, this is why we have various safe harbors, to avoid ridiculous situations where the platform/service provider is blamed for the actions of users. But, apparently, the Russian Supreme Court has no concept of secondary liability and has squashed it all down into primary liability. If you're a Russian service provider, you should be afraid. Very afraid.

A ruling like this could quite easily stifle Russia's internet industry, as it will make it prohibitive for most companies to operate, given the potential liability -- especially given the new rules about what might be considered illegal online.

As for why it will likely increase censorship, beyond the obvious, you need look no further than China, where the famed "Great Firewall" tends not to be based on a blacklist of "illegal" sites, but by a similar belief that an ISP is liable for any "bad" content that users are able to access. As such, the default is to overblock. Basically block anything that the government might deem to be illegal, just to avoid legal liability. Given Russia's recent crackdowns, it seems quite likely that ISPs will take a similar "block first, deal with any questions later" approach, rather than risk liability.

To hear the MPAA and RIAA tell the story, they represent "the entertainment world." They like to pretend that they represent all of the actual content creators, but more and more people are realizing the truth: they represent the legacy gatekeepers, who have often done more to screw over the actual artists than to help them. So, as we get closer and closer to the silly "six strikes" plan that the MPAA and RIAA worked out with ISPs, it's good to see that some of those they pretend to represent are speaking out against the plan. Actress Rosario Dawson has taken to Twitter to speak out against the plan:

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...! bit.ly/VRNLFa via @demandprogress

— Rosario Dawson (@rosariodawson) October 11, 2012

If you can't read that, it says:

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...!

And then it links to DemandProgress' petition to the ISPs telling them not to support the six strikes plans or subscribers will take their business elsewhere. Of course, for too many customers, "elsewhere" isn't an option, thanks to a lack of a truly competitive market. Either way, as we saw with the SOPA fight, more and more artists -- musicians, actors, writers, etc. -- are making it clear that the RIAA & MPAA don't represent them, and they know part of these crazy plans that are being pushed in their names. Kudos to Dawson for speaking up.

The idea of holding service providers responsible for the actions of their users is pretty absurd. Mostly because a website owner or ISP has very little control over what their users do, and to hold the providers responsible for potentially harmful or illegal actions of users would be akin to holding a hammer manufacturer or hardware store responsible when someone kills someone else with a hammer.

Of course this hasn't stopped people from attempting to drag service providers into legal complaints. For instance, we have the occasions when Twitter is sued for the actions of its users because it is mistakenly thought to be the publisher of the tweets. Or when the entertainment industry wants to hold Google responsible for Android apps that may allow for file sharing. There are many many more stories like these. Luckily, courts and most law makers understand that service providers cannot or should not be held liable for the actions of their users. Most, anyway.

Jeffrey Nonken Has alerted us to a recent law passed in Malaysia that would hold everyone from the website to the ISP to the coffee house with open wifi to the owner of a borrowed computer responsible for the online postings of a single person.

Section 114A of the bill seeks “to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.” In other words, the section makes it easier for law enforcement authorities to trace the person who has uploaded or published material posted online.

According to the amended law, however, the originators of the content are those who own, administer, and/or edit websites, blogs, and online forums. Also included in the amendment are persons who offer webhosting services or internet access. And lastly, the owner of the computer or mobile device used to publish content online is also covered under section 114A.

This language had the internet-using public in Malaysia in an uproar, and they protested this law in much the same fashion as the protests over SOPA and ACTA. When these protests were finally heard, the Prime minister had the law reviewed, but to no avail.

When the petition was ignored by the government, netizens and media groups organized an online blackout on August 14, which succeeded in mobilizing thousands of internet users. The global attention which the action generated was likely what convinced the Prime Minister to agree to have the cabinet review the controversial amendments. Although this announcement was initially welcomed by opponents of the amendments, the Cabinet ultimately upheld the amended law.

As we know, these kinds of laws have a strong potential for abuse -- one of the primary reasons US citizens opposed SOPA and CISPA. Giving a government the ability to prosecute a whole string of people only tenuously connected to a potential crime is a recipe for disaster. It will open up the ability for the government to stifle free speech even if it doesn't have to lift a finger. What will happen is that sites will now over-filter comments to avoid liability. Businesses that offered free wifi will potentially cut the service in an effort to avoid prosecution. This law will cause damage to the ability of Malaysian citizens to communicate freely over the internet.

This move to apply such harsh secondary liability is nothing surprising from a nation that supports internet filters which it promises will not be used to punish political dissent. Or the country whose courts, as part of a sentence for defamation, ordered a man to post his apology 100 times on Twitter. With the record that Malaysia has on internet freedom, it is no surprise that the outcome was what it was. However, we hope that the citizens of Malaysia continue their protests, and that those who support and passed this law will repeal it. 

We've written about judge Beryl Howell a few times before. She's the recently-appointed judge whose immediate job prior to that was as a lobbyist for the RIAA. Before that, she worked for the Judiciary Committee and was apparently a key player in drafting the DMCA. It seems pretty damn clear that she holds a strong viewpoint on the nature of copyright law and copyright infringement -- but that hasn't stopped her from taking those cases, even when her rulings appear to be exactly the opposite of nearly every other court. For example, while most courts have been throwing out copyright trolling lawsuits for improper joinder, Judge Howell had no problem with the practice and ordered various ISPs to cough up names based solely on IP addresses.

The ISPs asked her to reconsider back in April, noting how pretty much every other court has ruled otherwise. The specific case involves well known trolling firm, Prenda Law, which is connected to one of the larger jokes in the copyright trolling business: John Steele. Steele's lawsuits have been laughed out of court and he's even been told to stop filing these bogus lawsuits, where the clear purpose is to use the judicial system as a weapon to force people (innocent or guilty) to pay up.

But apparently copyright trolls have found a friend in Judge Howell, who not only is welcoming them with open arms, but seems to be using these trolling cases to further the goals of her former employer. She's released her decision on the motion to quash the subpoenas, and it's basically a 42-page screed on the evils of infringement and how ISPs should be responsible for stopping piracy (much of which has absolutely nothing to do with the case at all). The only nod towards the other side seems to be a weak acknowledgement that "the Court recognizes that other Judges on this Court have reached different conclusions with respect to the legal questions posed by the ISPs" and thus she's agreed to stay her decision until the appeals court weighs in.

But she makes sure to get her arguments in for the appeals court to read, and it certainly feels like she reverted back to "lobbyist" mode, rather than "impartial judge."

She kicks off the polemic with a grand history of the DMCA, and how the task force that was created to write the DMCA originally wanted to pin liability on ISPs for actions done by their users. And while she admits that eventually the DMCA did include such liability protection, it seems clear she would have preferred it the other way. She then highlights the important court decisions from a decade ago, against the RIAA and in favor of Verizon and Charter, that ruled that the RIAA could not demand ISPs identify users without actually filing a lawsuit against them first. This, of course, was a basic recognition of basic privacy rights, and the fact that if you are going to expose someone's private info, you ought to at least file a lawsuit against them first. But, in the world of Judge Howell, apparently this was a bad decision. She approvingly cites the dissent in one of the key cases, claiming this somehow "unraveled" the balance struck in the DMCA. Nothing, of course, is further from the truth. That's a total rewrite of reality.

She also seems to suggest -- contrary to the very law she was just citing -- that ISPs have some sort of responsibility to "deter infringing activity."

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

This is a fascinating interpretation of the law. Basically, she says that if they're going to claim that copyright trolls are showing up with tens of thousands of IP addresses, demanding they all be identified, then that means they also have to show that they've taken "steps" to "deter infringing activity on their networks." In other words, if it's burdensome to the ISPs to identify users to copyright trolls, it's their own damn fault for failing to stop infringement. Seriously.

Oh, and then she flat out misrepresents the GAO's findings from a few years ago that found that all of the entertainment industry's claims about the impact of "piracy" were complete bunk. Yet, in the world of former RIAA lobbyist Judge Howell, the GAO actually came to the opposite conclusion:

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Uh, no. Go read what the GAO actually said. While the report does cite Siwek's widely discredited report of $58 billion in losses -- it does so only to say that Siwek did these studies and they claimed to show "ripple effects" beyond the immediate industry. However, most of the rest of the report highlights how those numbers, and others like them, cannot be substantiated and that most experts they spoke to found the methodology questionable. Furthermore, the report specifically calls out the reports that only try to calculate the negative impact, without even considering any possible positive impact, as being clearly misleading. That describe's Siwek's research exactly. Specifically, the GAO report noted:

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

In other words, sorry, but the Siwek claim of $58 billion is hogwash. And yet Judge Howell pretends that the GAO has blessed this number.

The ruling goes on to defend its position, but basically says that there is no burden on the ISPs and if there is one, it's their fault. It also says that there is no issue of improper joinder to consider until after everyone's identified (at which point it won't matter, since that's all the copyright trolls want, so they can then shift to demanding cash from them). The whole thing, once again, raises significant questions about why a judge who had such a vested stake in pushing for an extreme maximalist view of copyright now gets to judge cases where key decisions are made about the interpretation of copyright law.

With there being renewed interest in the questionable deal between the RIAA/MPAA and the US's largest ISPs to set up a "six strikes" graduated response plan to cause trouble for those accused (not convicted) of file sharing, some are beginning to realize that the whole plan deserves serious antitrust scrutiny. After all, you have the representatives of two major industries getting together in a room to collude on a plan that will make internet access more expensive for users.

On top of that, since it's based on mere accusations (not convictions) -- and those accusations will come from a company with a terrible track record for accuracy -- you'll have to pay to challenge a strike and (most ridiculous of all) if you do challenge it, you are limited to just six defenses -- significantly less than are allowed under copyright law. That is, if the work is in the public domain, but published after 1923, you have no official defense under the plan. In other words, not only does the plan involve collusion among multiple big industries, but at the outset it assumes guilt before innocence, makes you pay to claim you're innocent, and won't even let you use basic defenses afforded to you under existing copyright law.

All of that seems of questionable legality. It also makes the White House's direct involvement in brokering this plan look even worse. And, once again, it makes us wonder why the real stakeholders, internet users, weren't given a seat at the table. If they were, perhaps this would have been avoided.

Of course, given the White House's involvement in brokering the deal, there doesn't seem much likelihood that the Attorney General will bother to scrutinize the agreement, since it would effectively be challenging his own boss.

That said, the article linked above suggesting that an antitrust inquiry seems necessary is written by Sean Flaim, and is based on his even more thorough research paper detailing why this program needs to be reviewed for antitrust violations. Unfortunately, the chances of that actually happening are still pretty slim.

UK ISPs BT and Talktalk challenged the Digital Economy Act soon after it was passed, complaining about how the law was approved, about the implementation details and how it would put them at a competitive disadvantage. Unfortunately, the final appeal in that lawsuit has been rejected, and the ISPs may now be forced to start cutting off users and playing the role of copyright cops for the entertainment industry. The court's basically said that there's nothing against European law in the Digital Economy Act. Even worse, it found nothing wrong with putting a significant chunk of the costs (about 25%) on the ISPs themselves. In what world is it reasonably to force an industry to pay to protect another industry from innovation? The only point where the ISPs won was on not having to pay 25% of regulator Ofcom's costs in setting up an appeals body.

What's somewhat ridiculous, however, is to then watch the entertainment industry practically gloat about this result. Geoff Taylor from the BPI responded by claiming that:

"The ISPs' failed legal challenge has meant yet another year of harm to British musicians and creators from illegal filesharing."

That's ridiculous on multiple levels. First of all, prove the harm. We'll wait. And wait. Because BPI can't do it. But, second, that assumes that kicking people off the internet will actually solve "the problem." It won't. The problem is with the fact that the companies represented by BPI refuse to adapt in a significant way, and thus users move towards more convenient, more efficient and better priced offerings.

PACT -- a UK trade group representing "independent creative content producers," the kind of folks who rely on an open internet and who should be terrified about the impact of something like the DEA, again, was extremely condescending to the legitimate concerns of ISPs:

John McVay, CEO of Pact, said: "Rather than needlessly spending more time and money on further legal challenges, BT and TalkTalk now need to focus on working with rights holders and the Government in implementing the Digital Economy Act with immediate effect."

Immediate effect to raise costs and decrease access -- none of which will do a damn thing to get people to pay more for content. Others were equally condescending and obnoxious. There was Equity general secretary Christine Payne:

“Once again a judge has made it extremely clear that the Digital Economy Act is a fair, focused, proportionate and efficient system for consumers and the creative industry,” she added. “Rather than individuals being hauled into court, the DEA makes it possible to conduct a mass consumer education programme. BT and TalkTalk need to stop fighting and start obeying the law.”

Hint to Christine: no "education programme" involves legislation requiring one industry to police users to stop them from doing what they want because a different industry is too lazy or clueless to adapt.

The Film Distributors’ Association president Lord Puttnam CBE hoped the court decision would put an end to “a long chapter of uncertainty, and the DEA can now help in implementing a mass consumer education programme so that people, especially young people, can come to appreciate the damage piracy inflicts on the whole of the creative community”.

Kicking people offline and making ISPs copyright cops is not an education program, and the "problem" the industry faces is not an education problem. People know that copyright infringement is illegal. It's not because of ignorance that they're doing what they do. It's because the industry refuses to offer what they want in a convenient manner at a reasonable price.

The British Video Association’s director general Lavinia Carey added: “Several other countries are adopting this measure and it would be bad for Britain’s creative industries to be left behind more forward thinking nations who are supporting their creative economies at this difficult time of transition towards increased digital consumption during this period of recession.”

Not that many countries, actually, and there's widespread opposition where it's happening, as well as significant concerns about the collateral damage. Over in France, of course, there are efforts under way by opposition parties to dump Hadopi as soon as possible. Pretending that this is some sort of widespread, agreed upon strategy that other countries are adopting widely is simply false.

But, in the end, this reaction shows how the industry continues to have its collective head in the sand on this particular issue. They think that users just need "education." That's wrong. It's the industry that needs education. It needs innovation on how to adapt, on how to meet consumers needs and on how to actually embrace what the technology allows. Until it does that, no "education program" is going to help... and the collateral damage of the DEA's program is only going to make things worse, and make sure that another generation of young people have no respect at all for the entertainment industry.

Remember how EMI sued the Irish government for failing to pass a SOPA-like law that will force ISPs to act as copyright cops and censor and block access to websites that the entertainment industry doesn't like? Well, apparently, the end result is that the Irish government has now signed the bill into law. This happened despite widespread protests in Ireland against the bill.

The Irish Minister for Research and Innovation, Sean Sherlock, is insisting that the final version of the bill is much more limited than earlier proposals, and that it took guidance from recent EU Court of Justice rulings that say ISPs shouldn't have to be proactive about blocking. That still means that copyright holders can petition to force ISPs to block all access to various websites, and as we've seen in other countries in Europe, you can bet that the major record labels and studios will be doing just that very soon (if they haven't already) -- though their track record on properly calling out infringement isn't very good.

Sherlock, apparently realizing just how bad this looks to the citizenry, is trying to balance this announcement out by also saying that he's launching the "next stage" of the process to review copyright in Ireland, with the goal of "removing barriers to innovation." This is an ongoing process that we first wrote about last year, when the country realized that existing copyright law was holding back innovation.

Of course, the end result is that the government appears to be trying to move in two different directions at once. On the one hand, it's catering to the legacy entertainment industry interests and hindering the internet as the platform that enables new business models... while at the same time paying lip service to how it has to increase such innovation. Here's a tip: the first thing towards increasing innovation in business models online is not putting misplaced liability on service providers, not setting up a censorship regime, and not removing the incentives for the entertainment industry to actually embrace innovative business models.

A couple of weeks ago, Techdirt reported on UK politicians calling for ISPs to "take down" terrorist content. Now it seems that the idea has not only spread to other European countries, but even acquired a cheesy name: "the Clean IT Project".

The internet plays a central role and is of great strategic importance for terrorists and extremist networks. These networks know that propaganda is a critical tool for generating funding, recruits and support for their cause within these communities. Historically they have used a variety of media channels, such as television, radio and publishing, in order to communicate their views. During the past decade of huge global growth of the internet, Al Qaida influenced extremists for example, have made increasing use of this medium. The internet and its fast and anonymous means can contribute to individual radicalization processes. There are concerns about the illegal use of the internet for terrorist purposes and the misuse of legal / neutral websites. The question is if we can limit the use of internet for terrorist purposes, without affecting our online freedom. Therefore this project is based on a public-private dialogue.

Those last two sentences are particularly ominous. First, because they show no awareness that any attempt to "clean" the Internet inevitably affects everyone else's online freedom. Given that there are no hard and fast rules about what is terrorism, the past teaches us that there is always collateral damage in the form of over-reaction -- not least because people understandably err on the side of caution in this area.

The other reason we ought to fear this new initiative is that it is based on getting the private sector to act as online police, using a "non-legislative" approach:

The main objective of this project is to develop a non-legislative 'framework' that consists of general principles and best practices. The general principles will be developed through a bottom up process where the private sector will be in the lead. Through a series of workshops and conferences, the private and public sector will define their problems and try to draw up principles. These principles can be used as a guideline or gentlemen’s agreement, and can be adopted by many partners. They will describe responsibilities and concrete steps public and private partners can take to counter the illegal use of Internet.

This is of a piece with similar attempts to get ISPs to spy on their users, or search engines to censor their results: since everything is done through a non-legislative 'framework', there is no oversight and no formalized legal recourse. It's part of a general move to control the Internet through extra-judicial means, thus avoiding all the risks of a democratic debate or the need to produce any evidence that the measures are effective and proportionate. Significantly, it's also one of ACTA's key (bad) ideas.

Even though the project is being sold as a voluntary "gentlemen’s agreement", the reality is that lurking in the background is the usual implicit threat:

The covenant, the principles and the practices should be non-legislative because they will be adopted on a voluntary basis with support from the industry. It should also be possible to implement them quickly in any European Member State, or even worldwide. Nevertheless, it is possible that one of the results will be a call for better regulation by governments.

That is, if industry doesn't adopt the principles and practices -- and implement them "quickly", too -- it will be forced to do so through legislation.

It's not even clear that "limiting terrorist use of internet" is the best way to fight terrorism. There is an argument that it would be better for as much terrorist activity as possible to take place where security agencies can keep it under close surveillance. Shutting down the more obvious sites and means of communication will simply drive terrorists deeper underground, and make it harder to monitor and thus counter them.

So once more, we have the worst of both worlds: while the rights of the general public are diminished further in the name of "combatting terrorism", the actual fight will be made more difficult.

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It appears that technologically clueless, reactionary politicians blaming the internet for terrorism and demanding ways to censor content are not just limited to US Senators named Lieberman. Nope, it appears that some elected officials over in the UK have similarly allergic reactions to the internet. The Home Affairs Committee in the UK Parliament has released this fear mongering report about how the internet is somehow radicalizing the youth into being terrorists, and how ISPs need to pull down content.

All of these reports seem to assume that because some kids used the internet to learn about terrorism, that it's the internet's fault they became terrorists. There's no thought to the idea that these disenfranchised kids were likely to seek out whatever way they could to join a terrorism organization. That would involve actually understanding the root causes of terrorism, though, and it's much, much easier to just point a finger and blame the internet. Of course, since it appears these luddites don't understand the internet at all, it's no surprise that they confused ISPs with hosting companies -- and demanded that the ISPs "take down" content, when the only thing they really could do would be to block content. Hosting companies would be able to remove it. David Meyer, the ZDnet UK reporter who wrote the story linked above, asked a spokesperson for the committee to explain this rather glaring error, and the person "was unable to explain." That should tell you just about everything you need to know about this report, and it should be laughed out of any further discussion should it ever be brought up again.

While some Dutch ISPs have been ordered by a court to block access to The Pirate Bay (after fighting it in court for years), the order only applied directly to two ISPs: xs4all and Ziggo. BREIN, the local anti-piracy group, had then demanded that other ISPs also start blocking access. However, it appears that KPN and T-Mobile are refusing, saying that they will not do so without a direct court order:

“KPN sees the blocking of websites as a drastic measure for which a court order is required,” KPN said in a statement, adding that innovation is needed to curb piracy.

“KPN doesn’t believe a blockade is the right solution. What is needed are robust, attractive business models that are easy to use and offer a fair deal to both producers and consumers of content.”

T-Mobile also said that it will only respond to court orders, while it emphasized the value of an open Internet.

“T-Mobile strongly supports an open Internet and is fundamentally against shutting off access to websites. Dutch law is very clear when it comes to blocking access to the Internet. T-Mobile will only respond to a court ruling, not to demands from a private party such as BREIN.”

It's good to see that these ISPs are standing up for the right to an open internet. Of course, I do wonder how such block orders work under Netherlands' (first of its kind) net neutrality law.

In the meantime, the two ISPs who were subject to the court order have begun the blockade, with Ziggo pointing users to an information page... in which they tell users that it's easy to get around the blockade.