Techdirt. Stories filed under "eu" Easily digestible tech news... http://www.techdirt.com/ en-us Techdirt. Stories filed under "eu"http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Mon, 20 May 2013 03:48:09 PDT EU Commission Sued For Refusing To Reveal Trade Agreement Documents They Shared With Lobbyists Glyn Moody http://www.techdirt.com/articles/20130517/09430123119/eu-commission-sued-refusing-to-reveal-trade-agreement-documents-they-shared-with-lobbyists.shtml http://www.techdirt.com/articles/20130517/09430123119/eu-commission-sued-refusing-to-reveal-trade-agreement-documents-they-shared-with-lobbyists.shtml A recurrent theme here on Techdirt is the lack of transparency when international agreements and treaties are being drawn up. That's increasingly recognized not just as problematic, but simply unacceptable in an age when the Internet makes it easy to provide both access to draft documents and a way for the public to offer comments on them.

Despite this growing pressure, nothing much has happened on either side of the Atlantic as far as providing greater openness for major negotiations is concerned. Perhaps frustrated by this lack of movement, the transparency organization Corporate Europe Observatory decided to take legal action against the European Commission back in February over the secret trade talks between the EU and India.

As the detailed history of this case (pdf) explains, the European Commission was apparently quite happy to pass on copies of certain documents to industry associations, but when Corporate Europe Observatory asked for the same, they only received censored versions. The lawsuit accuses the European Commission of discriminating in favor of corporate lobby groups and of violating the EU's transparency rules. As the Corporate Europe Observatory asks:

how can documents that the Commission has already shared with the business community at large suddenly become confidential and a threat to the EU's international relations when a public interest group asks for their disclosure? This is the core question raised by the lawsuit.
And it points out:
What is at stake in the lawsuit is whether the Commission can continue its habit of granting big business privileged access to its trade policy-making process by sharing information that is withheld from the public. This practice not only hampers well-informed and meaningful public participation in EU trade policy-making, it also leads to a trade policy that, while catering for big business needs, is harmful to people and the environment in the EU and the world.
 The European court will be handing down its verdict on 7 June. If the judges side with transparency, it could have a major impact on how the imminent TAFTA/TTIP negotiations between the EU and US are conducted. If they don't, then the battle for the public's right to know what is being agreed in its name will doubtlessly continue.

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]]> right-to-know http://www.techdirt.com/comment_rss.php?sid=20130517/09430123119 Tue, 7 May 2013 03:32:42 PDT EU Dings Google's Motorola Mobility Unit For Patent Abuse Mike Masnick http://www.techdirt.com/articles/20130506/15534222965/eu-dings-googles-motorola-mobility-unit-patent-abuse.shtml http://www.techdirt.com/articles/20130506/15534222965/eu-dings-googles-motorola-mobility-unit-patent-abuse.shtml stopping its aggressive patent licensing program via Motorola. After all, Google bought Motorola Mobility just a few weeks after the company appeared to be taking a strong stance against patent bullying. Ever since, it has seemed rather hypocritical for Motorola Mobility to have kept on being a patent bully.

And it seems to be backfiring all over the place. It was the one real area that Google got in trouble over with the FTC's antitrust investigation. And, the patent legal fight with Microsoft hasn't gone well for Motorola Mobility either. And, now, the latest bit of news is that the EU is coming down on Motorola Mobility for seeking an injunction over standard-essential patents as well.

Honestly, this whole thing has left me really confused. The patent aggression hasn't worked out at all for Google, is leaving them wide open to fines and complaints from various powerful government bodies, isn't doing much in the courts and (most importantly) is leaving the company itself wide open to charges of hypocrisy. Why not just do the right thing -- the same thing that Google itself has done in the past, and which it has spoken out about on numerous occasions: stop being a patent bully. It makes no sense that they company has continued down this path.

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]]> still-doesn't-make-any-sense http://www.techdirt.com/comment_rss.php?sid=20130506/15534222965 Tue, 7 May 2013 00:01:32 PDT Now US And EU Want To Apply Upward Ratchet To TRIPS Itself Glyn Moody http://www.techdirt.com/articles/20130502/10043622917/now-us-eu-want-to-apply-upward-ratchet-to-trips-itself.shtml http://www.techdirt.com/articles/20130502/10043622917/now-us-eu-want-to-apply-upward-ratchet-to-trips-itself.shtml Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies:
The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
 And as an article on infojustice.org notes:
Last November the LDCs exercised their legal rights under the TRIPS rules, and submitted a request to the TRIPS Council requesting an unconditional extension of the transition period for as long as a country remains an LDC. The current transition period expires on 1 July 2013.

Article 66.1 of the TRIPS Agreement grants LDCs a renewable exemption from TRIPS obligations. The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives.
 The US and EU routinely insist that countries follow TRIPS to the letter, but it seems they are only too happy to ignore their own obligations when it comes to granting a further exemption to LDCs:
Developed countries, particularly the United States and the European Union, have offered a poor and impractical deal of an incredibly short extension of 5 years with restrictive conditions to least developed countries that are entitled to be exempted from implementing the WTO TRIPS Agreement.

Particularly problematic is their demand that the LDCs agree to a "no-roll-back" clause, a TRIPS plus condition that will prevent LDCs from rolling back (i.e. providing a reduced degree of IP protection) their current laws, even if they adversely impact their development concerns.
 "No roll-back" is another way of saying upward ratchet. But the US and EU are trying to haggle over details of an agreement that was finalized and signed back in 1994. As infojustice.org puts it:
The US and EU demand, if agreed to, would actually amount to an amendment to Article 66.1, but without following proper WTO procedures as required by Article X of the WTO Agreement
 That is, the US and EU are not only trying to bully smaller countries into accepting unofficial changes to negotiated agreements, in this case to lock LDCs into a system with a built-in ratchet for intellectual monopolies, but they want the upward ratchet to operate on TRIPS itself.

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]]> once-a-maximalist,-always-a-maximalist http://www.techdirt.com/comment_rss.php?sid=20130502/10043622917 Thu, 2 May 2013 23:46:00 PDT New EU Regulation Threatens Rare Seed Varieties, Agricultural Independence And Food Supply Resilience In Europe Glyn Moody http://www.techdirt.com/articles/20130501/08595722907/new-eu-regulation-threatens-ancient-seed-varieties-agricultural-independence-food-supply-resilience.shtml http://www.techdirt.com/articles/20130501/08595722907/new-eu-regulation-threatens-ancient-seed-varieties-agricultural-independence-food-supply-resilience.shtml Unless we are farmers, we tend to take seeds for granted. But civilisation is built on seeds: it was the rise of large-scale agriculture, based in part on the skilful breeding of ever-better seeds, that eventually allowed towns and then cities to form; and with them, the trades, arts and sciences that were possible once enough food could be produced by just a fraction of the population. That makes national seed policies -- how governments regulate the production and sale of plant varieties -- a crucial if neglected aspect of our urban lives.

It seems that the European Commission has been working on a massive re-vamp of its regulations governing seeds, and people are increasingly worried by its plans. Here's what the Soil Association, a UK charity founded in 1946 that campaigns for organic food production and related areas, has to say on the matter:

The Soil Association believes the proposed new EU regulation on the marketing of plant reproductive material will put the future of our plant biodiversity at risk. It will have a disastrous effect on the availability of rare varieties and farmers' varieties, and stop the exchange and selling of traditional seeds. This will not only affect farmers and growers in the short term by outlawing exchange of seed not currently commercially available, but in the long term will erode the diversity of species that even the large seed companies, who are driving the proposal, need to provide their future varieties.
The draft of the regulation (pdf) is around a hundred pages of pretty dry rules, but the essence is as follows. The new regulation will apply to every kind of plant, and will impose strict rules on those producing or offering seeds and plants commercially. They must register, every plant or seed they wish to sell must be certified, and these must be packaged according to strict rules that even specify what color the attached labels must be.

The intent may be laudable: to ensure that plant material that is available in the EU is safe, and that problems can be tracked back to their source. But the bureaucratic burden and cost of compliance is likely to be well beyond most smaller seed producers. Here's what the Soil Association sees as the chief problems:

The proposed regulation goes even further than the current European seed law which favours the production of uniform varieties (protected by plant breeder's rights) and discriminates against less homogenous open pollinated varieties and populations. This has already resulted in a non-reversible loss of agro-biodiversity. The proposed regulation will require every seed to be registered and an annual license to be paid for each variety.

Under this law it won't be possible to register old and new niche varieties and populations (e.g. conservation and amateur varieties, landraces [naturally-evolved local variants] and farmers' selections) based only on an officially recognized description (ORD), without official registration and certification, as is currently practiced.

If this regulation is passed, not only will we lose a huge number of plant varieties , we will lose the amazing diversity of appearance, taste, and potential benefits such as disease resistance and nutritional content.

Furthermore despite assurances that this law will only apply to farmers the latest draft legislation suggests that every gardener will be subject to the regulation -- the effects will be disastrous for farmers and growers
As that makes clear, the new regulation will discriminate against traditional, unpatented varieties that don't have deep-pocketed companies behind them. That's crazy for at least two reasons.

First, it is precisely these older varieties that collectively have the greatest genetic diversity. That makes it more likely that some of them will be resistant to new diseases, and better able to cope with rapid climate change. By forbidding the sale of these varieties unless they are registered and certified -- something that is likely to be prohibitively expensive given the huge number of them -- the regulations will cause the plants used across Europe to become genetically less diverse, more vulnerable to disease and less able to cope with changes in the environment.

On the other hand, the big multinational seed companies with patented varieties will easily be able to meet the expense of registering and certifying their products. Since the unpatented alternatives that derive from ancient varieties or more recent landraces will no longer be permitted even in local flower and vegetable markets unless fully certified, the dominance of such giant seed companies in Europe is likely to grow. The EU will come to rely on a few very large companies and their limited selection of patented products. As well as increasing the likelihood of cartels forming, and higher prices, this shift will reduce both the independence and resilience of European agriculture.

What's particularly disturbing is that these far-reaching changes seem to have been drawn up almost entirely unnoticed. It is only now that a few organisations like the Soil Association are finally alerting people to what is happening. The bad news is that the European Commission is due to vote on the new regulation next week; but the good news is that a recent email campaign led by the Open Source Seeds site may be having some effect:

We have heard that due to the volume of people writing about this, last minute changes are being considered.
Let's hope so -- they're badly needed.

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]]> how-did-that-happen? http://www.techdirt.com/comment_rss.php?sid=20130501/08595722907 Wed, 24 Apr 2013 23:58:00 PDT Not Learning From ACTA: IPR Protection And Enforcement Seen As 'Less Difficult Issue' For TAFTA/TTIP Glyn Moody http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml Despite increasing calls for the imminent TAFTA/TTIP trade negotiations to be conducted as openly as possible, it seems likely that, as with ACTA and TPP, everything will be decided behind closed doors. That means the rest of us are forced to take our information about what is likely to happen where we can find it. For example, a new survey entitled "The Transatlantic Trade and Investment Partnership: Ambitious but Achievable" (pdf), carried out by The Bertelsmann Foundation and Atlantic Council, offers some interesting thoughts on the subject. Here's the description:
The Bertelsmann Foundation and Atlantic Council surveyed more than 400 potential respondents from business, academia, government, legislatures, and the media; 120 participated in the survey. Potential participants were selected on the basis of their expertise in trade policy and familiarity with the issues at hand in the TTIP negotiations. Respondents hailed from both sides of the Atlantic, with stakeholders from Washington, Brussels and Germany heavily represented.
 Even though the subtitle of the survey is "A Stakeholder Survey and Three Scenarios", that's not really true: the main stakeholder -- the public -- is not represented at all. For what it's worth, 88 per cent of respondents think that the US and EU will manage to come to an agreement, with the majority expecting a "moderate" result, rather than broader or narrower ones. The general view was that such an agreement might come into force at the end of 2016. But the section that will probably be of most interest to Techdirt readers is the following, which ranks areas in order of the likelihood they will be part of the final deal:
Perhaps surprisingly given the recent failure to ratify the Anti-Counterfeit Trade Agreement (ACTA) in Europe, IPR protection and enforcement on A/V materials and software is seen as a less difficult issue by stakeholders, ranking fourth.
 Indeed, that is surprising: the rejection of ACTA's measures by the European Parliament -- to say nothing of the tens of thousands of people who took to the streets of Europe -- was overwhelming: why do the "stakeholders" think this time will be different?

As well as "less difficult" issues, the survey also dicusses where respondents think there's little hope of achieving agreement:

Interestingly, an issue that touches on some similar policy provisions -- the alignment of regulations concerning data protection and privacy [--] is considered extremely difficult, ranking 15th out of 17 issues surveyed. Transatlantic regulatory process convergence is particularly challenging, deemed by experts as both one of the most difficult issues (16th out of 17) and the most important overall to the agreement. Alignment in the use of GMOs and hormone-treated agricultural products was deemed most difficult.
The first of these is no surprise: there is currently a fierce battle going on between the US and EU views on data protection, with US lobbyists using rather extreme methods to get some of their ideas adopted in the EU's Data Protection Regulation that is currently being discussed. Similarly, the gulf between US and EU views on the presence of genetically-modified organisms and hormones in the food chain is well known.

Obviously, not too much can be read into the views of a fairly small and arbitrary group of people selected by The Bertelsmann Foundation and Atlantic Council. The fact that they think re-introducing some of ACTA's ideas might be one of the "less difficult" issues for TAFTA/TTIP suggests that they are either completely out of touch, or know something that we don't -- which is precisely why it's worth reading the full document just in case they do.

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]]> what-do-they-know-that-we-don't? http://www.techdirt.com/comment_rss.php?sid=20130423/03514622805 Wed, 24 Apr 2013 20:29:00 PDT EU Free Trade Agreements With India And Canada Grind To A Halt Glyn Moody http://www.techdirt.com/articles/20130422/09403922802/questions-hanging-over-eu-india-free-trade-agreement.shtml http://www.techdirt.com/articles/20130422/09403922802/questions-hanging-over-eu-india-free-trade-agreement.shtml Techdirt has been covering the free trade agreement being negotiated between India and the EU for a while now -- that is, as well as anyone can report on something that is being conducted behind closed doors. Despite or maybe even because of that secrecy, one issue in particular has raised concerns: that India's crucial role as supplier of low-cost generics to the world's poor might be under threat. Against that background, this report on the Live Mint site comes as something of a surprise:
European commissioner for health and consumer policy Antonio Borg on Friday said the proposed trade agreement with India won't impose data exclusivity, patent extensions or linkages, in a bid to deflect criticism over the purported stance of the European Union.

Patient groups and other organizations have protested against the planned free trade agreement (FTA) between India and the EU on the grounds that it will lead to stricter patent laws, delaying the entry of generic drugs into the market and raising prices.
 Of course, given the secrecy, we still don't know what exactly the EU is now asking for, or what India is offering here. But what is significant is that the European Commissioner has tacitly acknowledged the impact of criticism from groups concerned about the supply of generics. That's an important signal for the future, since it will doubtless encourage more groups to speak up. As to why this major concession is being made at this stage, another story in Live Mint gives us a clue:
India and European Union (EU) will hold a crucial meeting on the proposed free trade agreement (FTA) on Monday in Brussels to iron out the impediments in concluding of the bilateral pact.

The meeting which is also seen as a last ditch effort to resolve the differences before India gets into the election mode where the manoeuvring of decisions regarding the pact will become difficult.
 Perhaps the EU has dropped its demands on strengthening drug patents in an attempt to conclude the deal quickly. But that second story was published on 14 April, and since then there has been no word of any breakthroughs in the talks, which suggests that there weren't any. As the Live Mint article notes, that means that India is starting to enter "election mode", when FTA negotiations will take a back seat as politicians concentrate their time and energy on local matters.

Meanwhile, signals are emerging that another major EU free trade deal, the one with Canada, is also going nowhere:

Talks to wrap up a multi-billion-dollar free trade deal between Canada and Europe have stalled, diplomats said, raising concerns the agreement could be put on hold as Brussels switches its attention to a much bigger pact with the United States.
As that notes, the problem here is the imminent TAFTA/TTIP negotiations, which are starting to occupy people's attention in Europe. Clearly, there are just too many free trade agreements trying to do too much. Which one will be the next to fail?

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]]> biting-off-more-than-you-can-chew http://www.techdirt.com/comment_rss.php?sid=20130422/09403922802 Thu, 18 Apr 2013 00:15:08 PDT Cambodian Activists Explain Why The EU-India FTA Is A Matter Of Life And Death Glyn Moody http://www.techdirt.com/articles/20130412/02574622687/cambodian-activists-explain-why-eu-india-fta-is-matter-life-death.shtml http://www.techdirt.com/articles/20130412/02574622687/cambodian-activists-explain-why-eu-india-fta-is-matter-life-death.shtml One of the many problems with the secretive nature of trade agreements is that it insulates negotiators from the real-world consequences of their actions. That's particularly true for the FTA talks between the EU and India, currently taking place behind closed doors. One of the key issues for the EU side is India's role as a supplier of generic medicines to the world, and India's tough stance on issues like the evergreening of pharma patents. From the various leaks that we have, it seems that the EU is demanding that India toe the line on drug patents, and cut back its supply of low-cost generics to emerging countries.

That might seem a reasonable request, since there is no doubt that India's production of generics reduces the profits of the pharma companies in Europe, which could charge far higher prices were there no competition from generics. But what that overlooks -- and what secret negotiations allow those involved to overlook -- is the impact such a move would have on millions of people around the world.

A letter from a group of Cambodian activists that struggle to supply much-needed medicines to those too poor to buy them, published on the infojustice.org site, provides us with a rare insight into what the EU's demands would mean for the world's poor:

We are saddened that behind the rhetoric of democracy, human rights and freedom the EU is in fact prioritising corporate interests to the lives of millions of people. It is needless to say that those affordable generic drugs are absolutely vital for the lives of millions who otherwise cannot afford expensive treatment of life threatening diseases such as tuberculosis, malaria and HIV-AIDS. Many suffering from such serious diseases would not be able to survive without these generic drugs produced in India.

…

Having seen the importance of made-in-India generic drugs for the lives of millions, we in no ways can express our frustration about the attempt of EU and European pharmaceutical giants to control the production of these cheap medicines. This must stop right now. It is a true example of putting profits before people's lives and take advantage of people's illness for corporate profits. Our lives should not be regarded as a business opportunity. We urge the EU to reconsider its pursuit of intellectual property rights for medicines and to realise that blindly protecting the interests of large European pharmaceutical corporations will lead to nothing but a subtle form of genocide of the poor, their families and children in developing countries across the world.
It's hard to believe the EU negotiators personally wish to kill thousands of the poor; but the secretive nature of the talks means that they can close their eyes to the fact that if they succeed in forcing India to cut back its production of generics, large numbers of people will certainly die as a direct result. That's another reason why these kind of talks must be held openly: not just so that we know what is happening and can give our input, but also so that those conducting the talks realize that what they are doing is not some abstract game, but a matter of life and death for millions around the world.

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]]> transparency-is-two-way-street http://www.techdirt.com/comment_rss.php?sid=20130412/02574622687 Tue, 9 Apr 2013 09:22:50 PDT Google Competitors File Ridiculous EU Complaint Arguing That 'Free' Android Is Anti-Competitive Mike Masnick http://www.techdirt.com/blog/wireless/articles/20130409/02120322631/google-competitors-file-ridiculous-eu-complaint-arguing-that-free-android-is-anti-competitive.shtml http://www.techdirt.com/blog/wireless/articles/20130409/02120322631/google-competitors-file-ridiculous-eu-complaint-arguing-that-free-android-is-anti-competitive.shtml failed miserably in convincing regulators that Google was an antitrust problem. Now it's filed a new attack on Google in the EU, arguing that its Android mobile strategy is anti-competitive because it gives Android away for free.
“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,” said Thomas Vinje, Brussels-based counsel to the FairSearch coalition. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

[....] Google achieved its dominance in the smartphone operating system market by giving Android to device-makers for ‘free.’
What's especially ridiculous here is that Microsoft, who is the major source behind FairSearch, dealt with this exact issue itself back during its antitrust fights, when people ridiculously accused it of the same thing for daring to give out Internet Explorer for "free." The idea that giving away some software for free is somehow anti-competitive is just laughable. That this is now being pushed by a bunch of companies who themselves use the exact same benefits of giving away free software to promote other parts of their business is just the height of cynical exploitation of the political process to try to hamstring a competitor in red tape, rather than competing in the marketplace.

Law Professor James Grimmelman, who is hardly a big Google supporter (he was among those who fought the hardest against the Google Books settlement) properly called this new filing by FairSearch "disgusting." It's a blatantly cynical attempt by Microsoft, Nokia, Expedia, TripAdvisor and Oracle to use a totally bogus legal complaint to just waste a competitor's time. All of those companies rely on free software in some form or another. No one in their right mind argues that offering free software is somehow anti-competitive. It seems that FairSearch has now reached hysterical desperation as it attempts to justify itself.

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]]> get-over-yourselves http://www.techdirt.com/comment_rss.php?sid=20130409/02120322631 Fri, 29 Mar 2013 12:14:55 PDT Even As US Continues To Push Stronger Intellectual Property Laws Through Trade Agreements, It Ignores Those Agreements At Home Mike Masnick http://www.techdirt.com/articles/20130326/16345222467/even-as-us-continues-to-push-stronger-intellectual-property-laws-through-trade-agreements-it-ignores-those-agreements-home.shtml http://www.techdirt.com/articles/20130326/16345222467/even-as-us-continues-to-push-stronger-intellectual-property-laws-through-trade-agreements-it-ignores-those-agreements-home.shtml ratchet up patents, copyrights and trademarks in international trade agreements, talking about how it's essential to protect the US's interests, it's amazing how the US ignores those same agreements at home. For years, we've talked about the still ongoing situation with Antigua, where the US was clearly found in violation of trade agreements, but has refused to do anything about it (other than unilatterally changing the free trade agreement in question in its own favor).

But that's just the tip of the iceberg.

Other countries are complaining that the US has lost at a variety of hearings in front of the WTO (handling disputes over those trade agreements) and then proceeded to ignore those rulings entirely.
“The conduct of the United States unscrupulously discredits the WTO dispute settlement system and also constitutes an affront to the intellectual property rights,” an ambassador from Cuba said today at the WTO.

At a WTO Dispute Settlement Body meeting today, a number of WTO members fired shots at the US delegation for its continued failure to change its laws to comply with WTO rulings that found it out of compliance on intellectual property-related issues.
The article lists out a bunch of countries all complaining that, while the US keeps pressuring them to adopt strict IP laws, the US routinely ignores the same clauses in the various free trade agreements it signs.
“It is very ironic to observe the United States projecting laws on intellectual property, despite keeping violations as egregious as Section 211,” under which the Bacardi Company continues to market rum labelled Havana Club, a mark which is otherwise owned by Cuba and partners. “This is one of the most famous cases of trademark counterfeiting and conducting misleading advertising by a company backed by the US legislation.”
And while a number of the countries complaining obviously have other issues with the US (Cuba, Venezuela), it's not just those countries. The EU also has complained that the US has been ignoring various agreements.
Even the 27-member European Union weighed in on the Section 211 case, thanking the US for its report and adding the hope that “US authorities will very soon take steps towards implementing the DSB ruling and resolve this matter.” The EU also urged that the US comply with another IP case – Section 110(5) of the US Copyright Act – which involved the US commercial practice of playing music recordings, such as Irish music, aloud in bars without paying royalties. “We refer to our previous statements that we would like to resolve this case as soon as possible,” the EU said.
Of course, the proper response to all of this isn't just putting more pressure on the US to change its laws to comply, but a more basic solution: stop agreeing to "intellectual property" issues in trade agreements. The US has now made it abundantly clear that it will pressure countries into rules that go against its own best interests and then will ignore any rules that go against its own interests. So the most basic response is that the US is clearly not trustworthy on "intellectual property" in trade agreements, and other countries should refuse to include such provisions in any agreement with the US. Don't reward hypocrisy and bullying by allowing the US to do more of the same.

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]]> good-for-the-goose http://www.techdirt.com/comment_rss.php?sid=20130326/16345222467 Tue, 19 Mar 2013 00:08:32 PDT Now US Wants Transatlantic Free Trade Agreement With European Union To Include Turkey: Who's Next? Glyn Moody http://www.techdirt.com/articles/20130318/11050622367/now-us-wants-transatlantic-free-trade-agreement-with-european-union-to-include-turkey-whos-next.shtml http://www.techdirt.com/articles/20130318/11050622367/now-us-wants-transatlantic-free-trade-agreement-with-european-union-to-include-turkey-whos-next.shtml Last week we wrote about the important news that Mexico is asking to join what began as a bilateral trade agreement between the US and Europe, with the suggestion that Canada might follow suit. Now, via @FFII, we learn that even before Mexico's announcement, the US has been encouraging other countries to join:
Turkish Foreign Minister Ahmet Davutoglu said Wednesday US Secretary of State John Kerry wanted Turkey to be included in Transatlantic Free-Trade Area (TAFTA).

Davutoglu said they would follow closely the process of Turkey's inclusion in TAFTA.
 As with Mexico's application, it would seem that the European Union doesn't get any choice in the matter. But what's really interesting here is that it confirms the impression that the US is keen to build out TAFTA to include many more countries, including some far from the Atlantic that originally defined it. The big question is now: who's next on the list?

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]]> interesting-geography http://www.techdirt.com/comment_rss.php?sid=20130318/11050622367 Fri, 15 Mar 2013 03:36:04 PDT UK Politician Says EU Site Wants To 'Brainwash' Children With Propaganda About Democratic Principles Glyn Moody http://www.techdirt.com/articles/20130312/10295122299/uk-politician-says-eu-site-wants-to-brainwash-children-with-propaganda-about-democratic-principles.shtml http://www.techdirt.com/articles/20130312/10295122299/uk-politician-says-eu-site-wants-to-brainwash-children-with-propaganda-about-democratic-principles.shtml The UK is famous for its tabloid newspapers and their particular brand of journalism. Here's a fine example from the Daily Express, under the headline "EU attempts to brainwash children with 'sinister Soviet-style propaganda'":
European Parliament chiefs are considering setting up a site to target young children with a "playful" presentation of their working methods and democratic principles.
 The Daily Express story is mainly built around a few quotations from the politician Paul Nuttall. He belongs to the UK Independence Party, whose policy in a nutshell is as follows:
the rescue of the British people depends on withdrawal from the EU to regain our self-governing democracy
 So it's no surprise that Nuttall has a slightly jaundiced view of anything the European Parliament does. Here are a few of of his comments in the article:
this exercise in funding kiddie propaganda really is cash for EU trash.

...

Our children need to be protected from this type of political propaganda because they are vulnerable and easily manipulated.

…

Political propaganda on vulnerable kids is a form of child abuse.
 What's fascinating here is his choice of words: "kiddie propaganda", "vulnerable and easily manipulated", "a form of child abuse". Whether consciously or not, clear parallels are being drawn here with pornography and even child pornography ("kiddie propaganda") through the use of phrases that are familiar from those fields.

It's also striking that the image chosen by the Daily Express to illustrate the story is the classic perplexed child staring at a screen whose contents we cannot see -- the implication being that there is something bad there, but that we are powerless to protect the innocence of the young viewer. That, too, is something of a cliché in articles about pornography, and it's disconcerting to see it being wheeled out here for an article about promoting democratic principles.

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]]> reading-too-much-into-it http://www.techdirt.com/comment_rss.php?sid=20130312/10295122299 Wed, 13 Mar 2013 16:39:55 PDT Mexico Will Ask To Join US-EU Transatlantic Trade Agreement Glyn Moody http://www.techdirt.com/articles/20130313/10181122311/mexico-will-ask-to-join-us-eu-transatlantic-trade-agreement.shtml http://www.techdirt.com/articles/20130313/10181122311/mexico-will-ask-to-join-us-eu-transatlantic-trade-agreement.shtml Things are moving fast with the proposed US-EU transatlantic free trade agreement (TAFTA). It was only a few weeks ago that the formal announcement was made, and already another country wants to join, as pointed out by @PostActa (original in Spanish):
The Mexican government wants to be part of the negotiations of the Transatlantic Association of Trade and Investment (TTIP, in its English acronym), which the United States and European Union will be negotiating, with the idea that there will be two blocks that make up the future pact.
 That is, alongside the EU block of 27 countries, Mexico is suggesting there should be a similar regional grouping in North America. Interestingly, the story says that the Mexican government will ask the US President for permission to join, with no mention of asking the EU:
"It is a sovereign decision of Washington as to the approach and the negotiation strategy to be adopted", and although the U.S. government has already referred to the idea, it is something that is not yet included in a formal dialogue, and needs to be defined.
 That suggests that the US is actively involved in this latest move -- maybe even its instigator -- and would look favorably on Mexico joining TAFTA. There's also a hint in the article quoted above that Canada too might join TAFTA. Having both Mexico and Canada on board would be consistent with the US's past approach, where it allowed them to join the TPP negotiations, but on fairly humiliating terms that limit their scope of action.

Whether or not Mexico and Canada become part of TAFTA, and under what terms, it's pretty clear what the US strategy here is. Just today we learned that South Korea is likely to join Japan in asking to sign up to the TPP talks. That would make TPP the defining international agreement for the entire Pacific region. TAFTA obviously aims to do the same for the Atlantic. As well as establishing the US as the key link between the giant TPP and TAFTA blocs, this double-headed approach would also isolate the main emerging economies -- Brazil, Russia, India and above all China -- if they refuse to join as presumably junior partners. That globe-spanning pair of trade pacts, it would seem, are what Obama hopes to be remembered for when he leaves office: his legacy to America -- and to history.

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]]> really-getting-serious http://www.techdirt.com/comment_rss.php?sid=20130313/10181122311 Thu, 7 Mar 2013 10:44:19 PST European Parliament Considers Banning All Pornography, Blocks Emails From EU Citizens Protesting Against Censorship Glyn Moody http://www.techdirt.com/articles/20130306/15203822230/european-parliament-considers-banning-all-pornography-blocks-emails-eu-citizens-protesting-against-censorship.shtml http://www.techdirt.com/articles/20130306/15203822230/european-parliament-considers-banning-all-pornography-blocks-emails-eu-citizens-protesting-against-censorship.shtml A few weeks ago we wrote about Iceland's thoroughly daft idea of trying to block porn there. Bad proposals for the Internet always seem to spread, and so it should perhaps come as no surprise that the European Parliament will be considering a similarly unworkable proposal, but in a rather more covert way, as the Pirate Party politician Christian Engström noted on his blog:
Next week in Strasbourg, probably on Tuesday, the European Parliament will be voting on a Report on eliminating gender stereotypes in the EU. To promote gender equality and eliminating gender stereotypes are of course very laudable goals, so my guess would be that unless something happens, the report will be approved by the parliament, possibly by a very large majority.
 That would be a good thing, were it not for the following detail:
Article 17 of the report says (with emphasis added):
17. Calls on the EU and its Member States to take concrete action on its resolution of 16 September 1997 on discrimination against women in advertising, which called for a ban on all forms of pornography in the media and on the advertising of sex tourism;
 There's no definition of "the media", but it's hard to believe that the digital world would somehow be exempt. Of course, banning pornography in this way simply won't work, but it will cause huge collateral damage to freedom of speech online in the EU. As if that weren't bad enough, the way the report wants this put into effect is deeply problematic too:
the resolution we will be voting on next week has other things to say about the internet. Article 14 reads (again with my highlighting):
14. Points out that a policy to eliminate stereotypes in the media will of necessity involve action in the digital field; considers that this requires the launching of initiatives coordinated at EU level with a view to developing a genuine culture of equality on the internet; calls on the Commission to draw up in partnership with the parties concerned a charter to which all internet operators will be invited to adhere;
This is quite clearly yet another attempt to get the internet service providers to start policing what citizens do on the internet, not by legislation, but by "self-regulation". This is something we have seen before in a number of different proposals, and which is one of the big threats against information freedom in our society.
 This is another example of "voluntary" measures that will in fact by compulsory, since any ISP that refuses to implement them will doubtless find itself responsible instead. As we've noted before, this allows all kinds of dangerous ideas to be implemented in ways that are not subject to judicial review or even challenge.

It's important to note that this is not a law as such, but a report, as Engström explains:

This means that it does not automatically become law even if it is adopted, but is just a way for the European parliament to express its opinion.

But the purpose of these own initiative reports are to serve as the basis for the Commission when it decides to present legislative proposals to the parliament. If this own initiative report is adopted by the parliament, it will strengthen the Commission's position if and when it wants to propose various"self-regulation" schemes in the future.
Equally, if the report is defeated next week, it will weaken later attempts by the Commission to bring in self-regulation. Recognising this, people like Rick Falkvinge have been asking Europeans to write to their representatives to urge them to reject the report, as Techdirt user rudeholm pointed out. But as Engström now reports, emails on these censorship plans are being blocked by the European Parliament's tech department:
around noon, these mails suddenly stopped arriving. When we started investigating why this happened so suddenly, we soon found out:

The IT department of the European Parliament is blocking the delivery of the emails on this issue, after some members of the parliament complained about getting emails from citizens.
 This is exactly what happened with ACTA, when the Parliamentary authorities decided that all emails on the subject would go straight into the spam folder. It's extraordinary to see how quickly politicians forget that hundreds of thousands of people took to the streets to defend their online rights back then, and how unceremoniously dumping their emails in the spam folder only made things worse.

Discussions have been taking place on Twitter around the hashtag #mepblock (disclosure: I've been part of these), and an e-petition has been created, calling on European politicians to drop their censorship and to listen to their constituents as they are supposed to, instead of just ignoring them. There are still a few days before the vote next week, so there's plenty of time for further developments in what looks like becoming an increasingly heated debate.

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]]> that's-democracy? http://www.techdirt.com/comment_rss.php?sid=20130306/15203822230 Fri, 15 Feb 2013 00:10:56 PST European Patent Office Gives Staff Bonus For Issuing Bumper Crop Of Patents: What Could Possibly Go Wrong? Glyn Moody http://www.techdirt.com/articles/20130117/08581821715/european-patent-office-gives-staff-bonus-issuing-bumper-crop-patents-what-could-possibly-go-wrong.shtml http://www.techdirt.com/articles/20130117/08581821715/european-patent-office-gives-staff-bonus-issuing-bumper-crop-patents-what-could-possibly-go-wrong.shtml The European Patent Office (EPO) is a curious body. Despite its name, it is not the patent office for the European Union (EU) in the same way that the USPTO handles patents in the US. As its history page explains:
In addition to all 27 EU member states, Albania, Croatia, Iceland, Liechtenstein, the Former Yugoslav Republic of Macedonia, Monaco, Norway, San Marino, Serbia, Switzerland and Turkey belong to the European Patent Organisation.
 This gives it an independence from the European Union that is problematic for patent law there. For example, back in 2005, the European Parliament voted definitively not to allow software patents in Europe. And yet as an excellent analysis published on the IPKat site explains, the EPO has continued to move steadily towards granting more and broader software patents in Europe.

Given the largely uncontrolled way the EPO has been issuing patents, this story in Intellectual Property Watch is noteworthy:

The European Patent Office Administrative Council in December agreed to award a controversial bonus of tens of millions of euros to EPO staff at the end of 2012, with 24 positive votes and 8 negative votes. Several stakeholders had protested the proposal and encouraged contracting states in the Administrative Council to vote against the measure.
The reason for the bonus? Because of all the extra money the EPO had made recently as the result of granting so many patents. But as a letter written to representatives of the 38 EPO contracting states in the Administration Council, and obtained by Intellectual Property Watch, pointed out (doc):
[The bonus] contributes to adverse incentive structures and conflicts of interest for the employees of the EPO. In linking the staff's wallet to the Office's surplus, it undermines the efforts to raise the bar in patent examination and fosters a mentality to increase fee revenues for the EPO by granting applications of low quality.
 The bonus is effectively rewarding the fact that the EPO's employees issued a particularly large number of patents in 2011. Human nature being what it is, the danger is that this will encourage them to issue even more patents in the hope of receiving another similar bonus.

As the letter goes on:

The EPO should not celebrate increases in patent filing rates as a success story but react to the worldwide critique of a global overheating of the patent system jeopardizing innovation and the proper functioning of the social contract with society upon which the patent system rests.
That is, rather than implicitly making the false equation that more patents automatically mean more innovation -- something that Techdirt has written about several times -- the EPO should strive to reduce the number, but increase the quality, and maybe offer bonuses for those who achieve that.

Sadly, it's in the EPO's interests to have more patents issued, regardless of their quality, since this will encourage yet more companies to apply for patents so as not to get "left behind" in the Great Patent Race. And that will produce yet more surpluses for the EPO, and presumably more bonuses for its staff. Everyone wins -- except, of course European businesses and citizens who have to suffer the knock-on effects of yet more unjustified intellectual monopolies.

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]]> perverse-incentives http://www.techdirt.com/comment_rss.php?sid=20130117/08581821715 Tue, 12 Feb 2013 11:46:00 PST How Lobbyists' Changes To EU Data Protection Regulation Were Copied Word-For-Word Into Proposed Amendments Glyn Moody http://www.techdirt.com/articles/20130212/04013421949/how-lobbyists-changes-to-eu-data-protection-regulation-were-copied-word-for-word-into-proposed-amendments.shtml http://www.techdirt.com/articles/20130212/04013421949/how-lobbyists-changes-to-eu-data-protection-regulation-were-copied-word-for-word-into-proposed-amendments.shtml Everyone knows that politicians are lobbied, sometimes massively. But it's rare to be able to track directly the detailed effects of that lobbying. That's why a new site called LobbyPlag is so interesting: it allows people to do precisely that in the case of the controversial data protection rules in the EU, which aim to regulate how personal information harvested from users of online services can be used. Naturally, many large Net companies -- mostly in the US -- are unhappy about these moves; some US diplomats are even talking of a possible "trade war" if the proposals go through in their current form. That's unlikely, not least because the lobbying is starting to pay off, as LobbyPlag's analysis makes clear.

The site takes two sets of publicly-available documents -- those prepared by companies or their lobbyists, and the amendments proposed for the Data Protection Regulation -- and compares them, showing the results in a highly visual way. It turns out that entire paragraphs have been copied word-for-word from the lobbyists' documents and put forward as suggested amendments. Similarly, some of the deletions that European politicians have proposed are precisely those asked for by various companies.

One amendment concerns what LobbyPlag terms "forum shopping":

This amendment allows companies to "designate" its main establishment. The previous version of the law would make the member state of the factual "main establishment" responsible. This amendment allows massive "forum shopping" -- companies can choose the member state with the weakest data protection authority or the littlest enforcement (e.g. UK or Ireland) while actually being situated in a totally different member state. Even Peter Fleischer (Google’s Privacy Officer) has recently criticized Microsoft for "forum shopping" in Luxemburg
Here's the original text from the European Commission (pdf), Article 4(13):
'main establishment' means as regards the controller , the place of its establishment in the Union where the main decisions as to the purposes, conditions and means of the processing of personal data are taken; if no decisions as to the purposes, conditions and means of the processing of personal data are taken in the Union, the main establishment is the place where the main processing activities in the context of the activities of an establishment of a controller in the Union take place. As regards the processor, 'main establishment' means the place of its central administration in the Union;
 Here's what Amazon (pdf) and eBay (Microsoft Word) wanted:
'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;
 Here's what several MEPs proposed as an amended version:
'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;
 As you can see, the last of these is identical with the companies' text. Of course, there's nothing wrong in using lobbyists' suggestions if they are valuable; and there's no reason why companies shouldn't come up with good ideas that could be used. But what's striking about the changes adopted by European politicians, as revealed by LobbyPlag, is that they seem to favor the companies, and to be detrimental to the European public -- not what you would hope for from the latter's representatives in the European Parliament, who should be protecting their interests, not attacking them.

Some have countered these accusations by pointing out that suggestions from civil groups moving things the other way have also been included; that may well be true, although I've not seen any proof that exactly the same wording has been adopted. But even if that were true, that doesn't represent balance of any kind: the money that companies like Amazon or eBay are able to put behind lobbying efforts in the European Union (and around the world) dwarf the very limited resources of cash-strapped citizen rights groups.

Given that lobbying will never disappear, perhaps the best we can hope for is what LobbyPlag provides us for the first time: real transparency. Using the powerful digital tools now available, we can easily compare huge numbers of documents to find similarities. That allows us as citizens to follow the threads that link lobbyists -- of all persuasions -- to the politicians that shape our laws. The hope has to be that by shining a light on those links, and letting politicians know that we are watching what they do and where they get their amendments from, the more blatant dependencies on external groups might be diminished, or at least made more subtle.

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]]> well,-just-look-at-that http://www.techdirt.com/comment_rss.php?sid=20130212/04013421949 Fri, 25 Jan 2013 08:25:56 PST EU VP On Aaron Swartz: If Our Laws Hold Back Benefits From Openness, We Should Change Those Laws Glyn Moody http://www.techdirt.com/articles/20130124/08113621779/eu-vp-aaron-swartz-if-our-laws-hold-back-benefits-openness-we-should-change-those-laws.shtml http://www.techdirt.com/articles/20130124/08113621779/eu-vp-aaron-swartz-if-our-laws-hold-back-benefits-openness-we-should-change-those-laws.shtml As Techdirt has reported over the last ten days, the death of Aaron Swartz has provoked an outpouring of grief from friends and colleagues, who understandably wish to express their shock and anger at what happened. You'd expect that. What you might not expect is for a Vice-President of the European Commission to add her voice, but that's exactly what Neelie Kroes did this week. Her post is short, and worth reading in its entirety:
You've probably seen the terrible news about the death of Aaron Swartz. It's always horrifying when someone so young and so clearly talented feels they have no option but to take their own life. I know that this is something that shook the internet community deeply. And my thoughts are with his family, and what they must be going through right now.

This was a man who saw that greater openness can be good for citizens, and good for society. Hugely disruptive -- but hugely beneficial.

For me, the case is particularly clear when there aren't copyright issues, when information was already paid for by taxpayers, and when more openness can help new innovations and scientific discoveries.

I would never condone unlawful activity. But in my view, if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed.

Agree or disagree with his methods, Aaron could see the open direction we’re heading in, and its benefits. In the meantime, those scientists who are paying tribute by making their own work legally, openly available aren't just showing their respects -- they are also benefiting scientific progress.
 Two points stand out there. First, the one regarding information "already paid for by taxpayers". That's a clear reference to the open access and open data movements, which seek to make precisely this kind of material available to all. In fact, the point that openness drives innovation and scientific progress is mentioned by Kroes not just once, but twice in her short post.

The other notable phrase is that "if our laws, frameworks and practices stand in the way of us getting all those benefits [of openness], then maybe they need to be changed". That's of a piece with her earlier frank comments about copyright being "a tool to punish and withhold, not a tool to recognise and reward," and her call for "flexibility in the system, not the straitjacket of a single model."

Given the stony silence from just about everyone in positions of power regarding Aaron Swartz's suicide, it's good that at least one politician had the decency to offer her condolences and admit that there's something seriously wrong with today's approach to sharing knowledge. It would be even better if more of her colleagues came to a similar realization and expressed it with equal honesty.

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]]> still-waiting-for-the-others http://www.techdirt.com/comment_rss.php?sid=20130124/08113621779 Fri, 11 Jan 2013 14:00:14 PST Do We Really Want EU Bureaucrats Deciding What Google Search Results 'Should' Look Like? Mike Masnick http://www.techdirt.com/articles/20130111/07473421641/do-we-really-want-eu-bureaucrats-deciding-what-google-search-results-should-look-like.shtml http://www.techdirt.com/articles/20130111/07473421641/do-we-really-want-eu-bureaucrats-deciding-what-google-search-results-should-look-like.shtml any evidence that Google's search results were somehow anticompetitive. All of the evidence pointed to the same basic thing: what Google did was for the benefit of its users. While some competitors were upset about it, antitrust should not be about propping up competitors who can't compete, especially if consumers are not being harmed. Besides, if you actually look at the "competitors" who complained the loudest, many of them are doing quite well these days.

Of course, those competitors who spent so much effort pushing to force Google through the antitrust gantlet were pretty upset about the end result. However, they knew what was coming next and warned that Europe would come out with an answer that was more to their liking. And the latest on the EU antitrust investigation suggests that, indeed, European bureaucrats somehow believe that they know better than Google what its search results should look like, and they're planning to force Google to change its results to the bureaucrats' liking.
[Europe's antitrust chief Joaquin] Almunia said in the interview: "We are still investigating, but my conviction is [Google] are diverting traffic," adding: "They are monetising this kind of business, the strong position they have in the general search market and this is not only a dominant position, I think -- I fear -- there is an abuse of this dominant position."
I'm not quite sure how one "diverts" traffic if the solution being provided is reasonably deemed to be better for the consumer. You can only show so many things on a search page, and Google spends a lot of effort figuring out which way seems to get the best results. No matter what, it's going to "divert" traffic from those it doesn't pick to those it does. But that's the business. The better it diverts traffic to help consumers, the better off the public is. And I'm not sure how the user is made "better off" by European politicians determining where Google needs to point people with its results.

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]]> this-won't-end-well http://www.techdirt.com/comment_rss.php?sid=20130111/07473421641 Thu, 27 Dec 2012 19:58:32 PST European Union's Data Retention Law Could Breach Citizens' Fundamental Rights Glyn Moody http://www.techdirt.com/articles/20121221/04453121464/european-unions-data-retention-law-could-breach-citizens-fundamental-rights.shtml http://www.techdirt.com/articles/20121221/04453121464/european-unions-data-retention-law-could-breach-citizens-fundamental-rights.shtml Back in April 2011, we wrote about the Czech Constitutional Court ruling that the country's data retention plans were illegal. As we noted then, many other EU countries had also run into similar problems trying to implement the European Data Retention Directive. In one of them, Austria, the issue was referred to the country's Constitutional Court, which has now commented on the case, as this story in PC Advisor explains:
"We doubt that the E.U. Data Retention Directive is really compatible with the rights that are guaranteed by the E.U. Charter of Fundamental Rights," Gerhart Holzinger, president of the Constitutional Court of Austria said in a statement.
 In view of this doubt and its potential implications, the Austrian judges have referred the matter to Europe's highest court, the European Court of Justice (ECJ), to determine the directive's validity. And they aren't the only ones:
the Irish High Court has also asked the ECJ to rule on whether the Data Retention Directive respects the rights of the user. That request stems from a case brought by Digital Rights Ireland against the Minister for Communications in which the group argued that forcing telecoms companies to retain information about how customers use their services breaches individual rights to privacy.
 These referrals are important, because a decision from the ECJ that the EU's data retention approach breaches citizens' rights would affect all countries in the EU -- including those that have already implemented the Directive. Moreover, it would presumably have a big impact on even more intrusive plans to store user data, such as the UK's Snooper's Charter.

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]]> that's-awkward http://www.techdirt.com/comment_rss.php?sid=20121221/04453121464 Wed, 26 Dec 2012 20:15:04 PST Classic Function Creep As EU Police May Gain Access To Asylum Seekers Fingerprint Database Glyn Moody http://www.techdirt.com/articles/20121226/07503321487/classic-function-creep-as-eu-police-may-gain-access-to-asylum-seekers-fingerprint-database.shtml http://www.techdirt.com/articles/20121226/07503321487/classic-function-creep-as-eu-police-may-gain-access-to-asylum-seekers-fingerprint-database.shtml As Techdirt readers well know, one of the problems with measures brought in for "exceptional situations" -- be it fighting terrorism or tackling child pornography -- is that once in place, they have a habit of being applied more generally. A case in point is the blocking of Newzbin2 by BT in the UK. That was possible because BT had already installed its "Cleanfeed" system to block child pornography: once in place, this "specialized" censorship system could easily be deployed to block quite different sites.

Another, more recent, case from the EU involves Eurodac, a database with fingerprint information provided by asylum seekers there. Here's the original justification for storing them:

The database was originally established in 2000 so EU nations could check whether an asylum seeker had previously applied for asylum in another European country or was receiving social benefits from another EU country. According to EU law, asylum seekers can apply for asylum only in the EU nation where they first entered the bloc.
But the politicians have noticed that this biometric data could be handy in quite different circumstances:
such a rich source of existing data has recently sparked the interest of other parties. If the EU Commission's requests are followed, Eurodac fingerprint data will be accessible to police officers during investigations. The commission's proposal envisions national law enforcement agencies and Europe's supranational criminal police commission, Interpol, being able to access the database.
 Of course, allowing the police to check people's fingerprints in this way would have serious implications for privacy. Indeed, Peter Hustinx, head of the European Data Protection Supervisor, has already weighed in on the subject:
"Just because data is being collected doesn't mean that it should be used for another purpose, especially since that can have a hugely negative effect on the lives of individuals," said Peter Hustinx, head of the European Data Protection Supervisor.
 And that really is the nub of the issue: people who agree to provide highly-personal data for one purpose, may then find it being used for another, without being asked. And if the European Commission gets its way, even more data will be shared:
"The Commission would generally like to widen its collection of data and make available any information regarding criminal prosecutions," [Green Party MEP] Keller said. "One example is the so-called 'Smart Borders' package, which actually wasn't proposed this round but has been in the pipeline for a long time. The idea there is that in the future anyone from non-EU countries that would like to travel into the EU will be recorded electronically, which also includes fingerprints."
 As more and more biometric data is collected around the world, this kind of function creep is likely to become increasingly common.

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]]> exceptionally-common-situations http://www.techdirt.com/comment_rss.php?sid=20121226/07503321487 Thu, 20 Dec 2012 00:02:37 PST EU Officially Pronounces ACTA Dead As Commission Withdraws Court Of Justice Assessment Mike Masnick http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml rejected ACTA, the EU Commission, who had helped negotiate the treaty, still held out hope that it would be vindicated by the EU Court of Justice. As you may recall, to try to appease those arguing against ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had submitted the agreement to the EU Court of Justice for a determination on whether or not it really went against EU laws, and he had insisted that even with the Parliament's rejection that he would push forward with that case.

Except... months later, the EU Commission has quietly dropped its request for the EU Court of Justice to weigh in, more or less putting that final nail in the coffin for ACTA in the EU. It's about a year late, but it appears that the EU Commission has finally realized that ACTA was a mistake for Europe.

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]]> pining-for-the-fjords http://www.techdirt.com/comment_rss.php?sid=20121219/15502521443 Wed, 12 Dec 2012 13:04:00 PST EU Opens Itself Up To Massive Innovation-Hindering Patent Trolling Mike Masnick http://www.techdirt.com/articles/20121211/14210821349/eu-opens-itself-up-to-massive-innovation-hindering-patent-trolling.shtml http://www.techdirt.com/articles/20121211/14210821349/eu-opens-itself-up-to-massive-innovation-hindering-patent-trolling.shtml approved a unitary patent system -- in which inventors will be able to file for a single patent across much of Europe. There are good reasons to want to do this, rather than having a fragmented system which required getting multiple patents in so many different places, having a single system could be a lot more efficient. But, of course, the devil is in the details and the details here are bad. There are two major concerns, both of which should have been easily avoidable because the EU can look at the absolute mess in the US. Instead, they seem to have decided to head in the exact direction of the US's mess.

The two key issues:
  1. Software patents: There's been growing support in the US to finally recognize that broad patents that cover software on general purpose computers are a problem, and that something needs to be done about it. Europe, for the most part, has had much more limiting rules concerning software patents -- but less so in Germany. The new unitary patent system will more or less default to the German setup, in which software patents are much more possible. And, as we discovered in the US following the State Street decision in 1998, when you suddenly clarify that an entire area is patentable after people long believed it was not, you leave open a huge space for trolls to rush in and patent everything under the sun to be used against companies which actually innovate.
  2. A patent specific court: This part may be even worse. Despite the clear evidence that the US's decision to set up a single appeals court for handling patent appeals resulted in a form of judicial capture leading to a massive expansion of patentable subject matter (and, along with it, the number of patents granted and the number of bogus patent trolling cases), the EU has decided that as part of the Unitary Patent, it will also set up a "specialist" court for dealing with patent disputes. The thinking here may appear to make sense on the surface: patent disputes can get technical quickly, and you worry about judges having little technical understanding. However, as we've seen quite clearly with CAFC, having a patent-specific court means having judges who deal an awful lot with patent lawyers, but rarely deal with actual innovators. The end result is that they often believe that the patent system works fine, and are happy to expand it (which also helps job security).
Of course, that doesn't even mention the fact that the new system will make patents a lot cheaper to get, meaning that there will be a lot more patent applications filed. Combine it all and you have a recipe not for increasing innovation, but for the opposite: massively increasing patent trolling and patent litigation that is a clear deadweight loss to society, innovation and economic growth. It's a bad, bad move for Europe. Rather than strike out on a clear path for open innovation, they're following the US's footsteps, despite all of the evidence that the path leads over a cliff, rather than towards some wonderful innovation nirvana.

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]]> a-big-step-backwards http://www.techdirt.com/comment_rss.php?sid=20121211/14210821349 Thu, 6 Dec 2012 00:09:00 PST EU Recognizes Need To Modernize Copyright, Announces Plan To Consider Reforms Ben Zevenbergen http://www.techdirt.com/articles/20121205/06361621237/eu-recognizes-need-to-modernize-copyright-announces-plan-to-consider-reforms.shtml http://www.techdirt.com/articles/20121205/06361621237/eu-recognizes-need-to-modernize-copyright-announces-plan-to-consider-reforms.shtml officially taking the lead in the worldwide discussions on copyright reform. This move may give much needed support to governments that have tried to touch on the topic, but for *some reason* withdrew or ignored good initiatives and advice.

Commissioner Barnier's recent speech about "Making European copyright fit for purpose in the age of internet" was a sign of hope, but closer inspection revealed that he was planning no more than some relatively predictable updates of the current rules. Although the gesture was nice, it was more likely a reframing of his untenable previous maximalist position and lacked any fundamental meaning.

It appears now that two colleagues of his, Neelie Kroes (Digital Agenda) and Androulla Vassiliou (Education and Culture), have expertly called Barnier's bluff and have taken the lead for full and much needed copyright reform. All three will sit on the board of a yearlong "structured stakeholder process", which will commence at the start of 2013. This exercise will assess whether "the market" is able to address the current deficiencies of copyright in the following six topics: "cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audiovisual works and cultural heritage."

In 2014 the three Commissioners will sit down again together, analyze the findings and decide whether concrete policy action is needed. Fortunately, we can already note that, indeed, substantial legislative reform will be needed to address the four areas the Commission is focusing on, namely:
1) Mitigating the effects of territoriality in the Internal Market;
2) Agreeing appropriate levels of harmonization, limitations and exceptions to copyright in the digital age;
3) How best to reduce the fragmentation of the EU copyright market;
4) How to improve the legitimacy of enforcement in the context of wider copyright reform.
Note how the first three areas are surprisingly similar, if not the same thing. The European copyright structure is based on territoriality, so addressing these three points requires extensive reform from many angles and on many levels.

The fourth area of concern (legitimizing enforcement) is the Commission admitting that ACTA was a bad idea. The Commission, just like Congress in the US after SOPA/PIPA, both realize they need to tread very carefully with any proposal that has an effect on fundamental rights on the internet, or internet freedom,as it we now call it. This is where the civil society and the actors who joined forces to stop ACTA, SOPA and PIPA can now step up and present a positive and realistic agenda for reform. Let's not have the "copyright reform" movement be hijacked by special narrow interests who think they're getting clever now by reframing the debate.

While the open democratic discussion on copyright reform will not commence today, hopefully this is a move in the right direction, which should open a window of opportunity for meaningful reform. Knowing the European Commission and their talent for delay-tactics, especially on the copyright dossier, it's not likely we'll have any real copyright reform any time soon. However, we do now have a firm commitment from a major international government that the copyright system is in dire need of a very close inspection.

Hopefully the British will now feel supported in implementing the recommendations of the Hargreaves report. Perhaps the Dutch will also feel justified to proceed with the idea to make their copyright system more flexible. Overseas governments may also feel reinforced to open the discussions on their copyright systems and join the EU in finding the new way forward. But will the EU's move encourage the GOP to republish their recent insightful report on copyright reform?

Whatever the knock-on effects may be, there's much more work to be done than suggested in this initiative to analyze the workings of the copyright system properly and to come up with a model for meaningful reform. However, this initiative deserves close attention by all interested groups to help steer it in the right way.

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]]> necessary-reforms http://www.techdirt.com/comment_rss.php?sid=20121205/06361621237 Thu, 29 Nov 2012 08:39:53 PST Outdated European Copyright Levy System Descends Further Into Disarray Glyn Moody http://www.techdirt.com/articles/20121123/11084321127/outdated-european-copyright-levy-system-descends-further-into-disarray.shtml http://www.techdirt.com/articles/20121123/11084321127/outdated-european-copyright-levy-system-descends-further-into-disarray.shtml A couple of months ago, Ben Zevenbergen explained how the Dutch Supreme Court was finding it difficult to reconcile different aspects of Europe's copyright rules. At the heart of the problem is the copyright levy system, effectively a tax on blank media that is supposed to compensate copyright holders for a supposed "loss" from copies made for personal use.

One issue is whether this system should also pay for the claimed loss from unauthorized copies. As Techdirt has reported, study after study suggests that people who share files spend more on culture. Despite this, copyright companies cling to the idea that they must be "compensated" for this sharing by yet higher taxes on blank media.

This has led to huge hikes in the German levy, and big increases in the Netherlands, where the manufacturers of equipment subject to the copyright levy have decided to fight back, as reported in this IT World story:

Hewlett-Packard, Acer, Dell and Imation are suing the Dutch government over new levies on hard disks, smartphones, tablets and MP3 players that are meant to compensate the music and movie industries for losses caused by home copying.
The copyright industries want 40 million euros, which the equipment manufacturers think is excessive for a couple of reasons:
The 40 million euros also incorporates damages for illegally downloaded music and movies which, according to the companies, legally cannot be recovered by a levy on devices. Furthermore the Dutch government established a levy on all devices including devices for professional use that are not used for private copying, they said.
 Nor are the Dutch companies the only ones that are deeply unhappy with the present copyright levy system. In France, industry groups have recently resigned from the country's copyright levy commission, not least because the latter's composition means that copyright industries there are able to set the levies which they themselves will receive (original in French.) As the industry groups point out, this is a crazy situation that naturally encourages fees to be set at unjustifiably-high levels.

It's hardly surprising that an unsophisticated system originally devised for cassette tapes is proving unworkable for the digital era, where storage is being embedded everywhere, and is constantly increasing in capacity. The tide is turning, as the copyright industries implicitly admitted recently. The latest moves by hardware manufacturers are simply the next stage in a battle whose ultimate outcome seems clear: the complete abolition of outdated and irrelevant copyright levies.

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]]> put-it-out-of-its-misery http://www.techdirt.com/comment_rss.php?sid=20121123/11084321127 Wed, 21 Nov 2012 03:47:52 PST Supplying The Missing Ingredient In Evidence-Based Policymaking: Evidence Glyn Moody http://www.techdirt.com/articles/20121106/12121720952/supplying-missing-ingredient-evidence-based-policymaking-evidence.shtml http://www.techdirt.com/articles/20121106/12121720952/supplying-missing-ingredient-evidence-based-policymaking-evidence.shtml It seems extraordinary that in the area of copyright it is only recently that people have started to consider the evidence before formulating policy. Even now, there is still resistance to this idea in some quarters. Elsewhere, though, there is a growing recognition that policy-makers must have access to the data they need when considering how to achieve given goals.

That's very much the impulse behind a new document entitled "Statistical, Ecosystems and Competitiveness Analysis of the Media and Content Industries". It has been prepared on behalf of the European Commission by the Joint Research Centre, which describes its role as follows:

to provide EU policies with independent, evidence-based scientific and technical support throughout the whole policy cycle.
The bulk of the report is filled with detailed tables of figures and charts attempting to show what's been happening over the last few years in the media industries. Here's a summary of what the Joint Research Centre hopes producing these will achieve:
This study aims first of all to gain a better understanding of the dynamics in the Media and Content Industries (MCI) and to produce an assessment of the current and future competitiveness of the European MCI sector. The study maps the economic value and growth potential of this sector, driven by increasing awareness of the economic value of the sector. The sector itself has grown considerably over the past decades, but it also contributes to the growth of the Information Society. It provides the content which, in digital form, requires high speed broadband networks and thus stimulates the roll-out of broadband networks. The MCI is also an important part of the creative industries, which stimulate a flourishing creative climate thereby attracting other highly skilled economic activities, leading to vibrant urban economies (Florida, 2002; UNCTAD, 2008; European Commission, 2010a).

Secondly, this study aims to gain insights into the fundamental changes in this sector, which have taken place over the past two decades as a result of the introduction of ICT in different parts of the production and distribution process. Some of these technological innovations were so fundamental that they caused changes in the production chain, in the roles and positions in the value chain, in business models and in market structures. In other words, they have led to a transformation of the whole ecosystem.

Significantly, much of the first half of the report is given over to exploring why it is so hard to draw up detailed figures on the media and content industries. Part of the problem is that such official statistics as are available -- and they are relatively limited -- follow older industry categories that don't really fit any more. Even relatively new ones are problematic:

The new OECD definition intends to give a better reflection of the current MCI sector structure. However, the underlying categorization of the Media and Content Industries can not account for one of the most apparent trends in the Media and Content Industries, i.e. its increasing interconnectedness and convergence with ICT (telecom, computer and software industries). Distribution is now separated from MCI and included in ICT category, but increasingly distribution companies are involved in acquisition of content and content rights, packaging and marketing of content, sometimes also adding added value by producing additional services (EPG, communication services etc.) The same is true for new entrants such as major ICT firms like Google, Apple, YouTube, which are also increasingly involved in not just dissemination of content but also in many content related activities.
It is this intermingling of media, content, computers and communications in the digital sphere that makes it so hard to establish what is really happening. For example, the decline bemoaned by many in the traditional copyright industries is in many ways simply a reflection of the fact that new forms of creation and distribution are starting to replace the established ones, but capturing that in official statistics is hard. One way around that is to turn to other sources:
In order to complement the data from official statistics, the study includes 'unofficial' statistics on developments in MCI. With the help of this data, it provides insight into the transformations taking place in MCI that are not immediately apparent in the official statistics. The main topics for which statistical evidence has been collected are the transformations resulting from the impact of ICT, or more specifically the impact of the internet and digitalisation on the production and distribution of media and content. This concerns especially the shift from offline (physical) to online digital distribution of content, and the impact of piracy, P2P networks and user-generated content in particular sub-sectors.
However, in this context the report makes an important point:
From investigating data found by screening major sources from industry associations, consultancies and research institutes specialised in media and content industries, an important conclusion is that it is impossible to directly compare or complement official statistics with unofficial statistics
One source of unofficial statistics is, of course, industry bodies. The report quotes some of their figures in a discussion of piracy:
The industry regards piracy as a serious threat for their business. Table 22 shows estimates by the film industry in 2005 for the losses incurred due to piracy. For the music industry, IFPI (2010) states that the music industry experienced a decline in sales of 30% from 2004 to 2009, which it mainly attributes to file sharing.
It's good to see that those figures aren't accepted uncritically, simply reported. Even more importantly, rather than accept the naïve view that unauthorized file sharing is necessarily harmful to the copyright industries, the report quotes one of the few studies available that looks at what the evidence says:
Although it is difficult to understand the true impact of illegal file sharing on the industry, it is clear that every file downloaded does not result automatically in one less CD or DVD sold. TNO conducted a statistical analysis and calculated the effect of illegal file sharing on the music industry for the Dutch market through a welfare-theoretical approach. They calculated the substitution ratio for the Dutch music industry, and estimated a substitution ratio of at most 5-7%. In other words: for every 15-20 downloads one track less is sold. However, the economic implications of file sharing for the level of welfare in the Netherlands were found to be strongly positive in the short and long terms, because downloaders buy the same amount of music as non-downloaders, and more games and DVDs than non-downloaders. Moreover, downloaders go to more concerts and buy more merchandise (TNO, 2009). It should however be noted that because of the fact that this study is focused on a single country, its conclusions can not be generalized to the EU as a whole without further investigation.
This is just one study, albeit a suggestive one, of what is happening in one country. Clearly many more are needing in order to establish the real impact of unauthorized sharing on the traditional copyright industries. Let's hope the Joint Research Centre can build on its current report and contribute to the gathering of more complete evidence on this crucial topic.

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]]> just-the-facts,-ma'am http://www.techdirt.com/comment_rss.php?sid=20121106/12121720952 Tue, 20 Nov 2012 03:24:28 PST Copyright Hardliners Adapt 'Copyright Reform' Language; They Just Mean In The Other Direction Glyn Moody http://www.techdirt.com/articles/20121108/13525520974/copyright-hardliners-adapt-copyright-reform-language-they-just-mean-other-direction.shtml http://www.techdirt.com/articles/20121108/13525520974/copyright-hardliners-adapt-copyright-reform-language-they-just-mean-other-direction.shtml Neelie Kroes has emerged as perhaps the most Net-savvy politician in the European Commission, with her repeated calls for a new approach to copyright in Europe that takes cognizance of the shift to a digital world. That's one measure of how mainstream the idea has become. Another is the fact that even copyright hardliners like Michel Barnier, the Commissioner responsible for the Internal Market in Europe, are starting to frame the discussion in a similar way. A recent speech, for example, is entitled "Making European copyright fit for purpose in the age of internet", where he asks whether Europe has found the optimum balance between a number of factors:
The widest possible access to quality content for Europeans;

Fair remuneration for creators;

Sufficient incentives for those that invest in creation,

And legal certainty for content distributors
 He rightly answers:
I do not think so.
 As well as the generally-accepted issue of Europe's poor cross-border licensing, he raises a more contentious area that is causing problems:
I want a copyright framework that provides the right incentives for those that create and invest in content and that ensures the right balance with other policy objectives such as education, research or innovation.

We need an equilibrium. Copyright enables rights holders to function in commercial markets. Removing rights goes quite far: it removes rights holders ability to authorise the use of their content, or to gain reward for their investments. So when can a limitation on these rights be justified? And when should users better acquire a licence to use others' rights for their own commercial gain?
 This betrays Barnier's perspective that this is all about money -- that if you are building on someone else's work there will naturally be profit involved somewhere along the line, and that profit should be shared. What this overlooks, of course, is the massive scale of online creativity that has nothing to do with money -- the sharing and mashups that are routine on social networks like Facebook and Twitter, with their often casual reworkings of existing material.

But Barnier will have none of this:

I do not share the view of those that think copyright protection should be weakened so others can develop new commercial services free of cost. This would simply amount to legislating for free-riding: shifting wealth from the content industries -- many of which are based in Europe creating jobs and paying taxes here -- to other industries. This cannot be right.
This is a clear dig at Google, demonized once more for allegedly building its business by exploiting the work of others, made worse by the fact that it pays little in the way of European taxes. But the fundamental problem here is that Barnier equates a "weakening" of copyright protection -- what should rather be called a rebalancing -- with generalized free riding. And even though he says he is open to evaluating "the need to update our system of limitations to copyright", the idea that the public might deserve a fundamentally better deal when it comes to copyright never seems to cross his mind.

He also makes clear that his "vision" includes the following:

A copyright framework that continues to provide incentives must include meaningful enforcement.

With the crisis it is more than ever necessary to eliminate illegal business models that are based on IP infringing activity. This is how we can pave the way for legal offers, especially by innovative start-ups and SMEs. This is also how we transform "informal" economy jobs into real, sustainable job opportunities.

Worryingly, this seems to subscribe to the copyright industry view that before there can be more legal services, illegal ones must be eliminated -- as if that were even possible. It flies in the face of the evidence that it is precisely through the provision of better digital offerings that serve the public's needs that people will be encouraged to turn away from unauthorized sources.

Sadly, in the end, Barnier's "copyright fit for the Internet age" looks depressingly like the current, dysfunctional version: one based on a non-existent scarcity, on treating the public as passive consumers, and on pursuing unachievable enforcement goals with ever-harsher punishments.

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]]> must-try-harder http://www.techdirt.com/comment_rss.php?sid=20121108/13525520974