Techdirt. Stories filed under "europe"

European Court Puts Release Of Drug Safety Data On Hold

Glyn Moody — Wed, 8 May 2013 00:22:35 PDT

Last month Techdirt wrote about the case of the giant pharma company AbbVie seeking to prevent the European Medicines Agency from releasing basic health safety data that AbbVie claims contains commercially sensitive information. Unfortunately, an interim injunction has just been granted to that effect:

The European Medicines Agency (EMA) has been ordered by the General Court of the European Union not to provide documents as part of two access-to-documents requests until a final ruling is given by the Court. These interim rulings were made as part of court cases brought by two pharmaceutical companies, AbbVie and InterMune. The companies are challenging the Agency's decisions to grant access to non-clinical and clinical information (including clinical study reports) submitted by companies as part of marketing-authorisation applications in accordance with its 2010 access-to-documents policy.

As the EMA notes, it's not as if the release of this data is unprecedented: Since November 2010, the Agency has released over 1.9 million pages in response to such requests. This is the first time that the policy has been legally challenged.
That obviously raises the question of why AbbVie and InterMune have problems with drug safety data being released when other companies don't. Fortunately, there is very broad support for the EMA's attempt to make this important information available for other researchers to check and analyze: Since the two pharmaceutical companies filed these legal actions, the EMA has received more than 30 statements of support from various stakeholders, including the European Ombudsman, national competent authorities, members of the Agency's Management Board, Members of the European Parliament, academic institutions, non-governmental organisations, citizens' initiatives and scientific journals, some of whom have also applied to formally intervene in defence of the EMA at the Court.
There's a crucially important principle here, that public safety must outweigh any claims of commercial confidentiality. Let's hope that the General Court of the European Union recognizes that in its final judgment, which will have a major impact on health and safety not just in Europe but, as a knock-on effect, around the world too.

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Has Spain Just Slammed On The Brakes For Europe's Unitary Patent Plans?

Glyn Moody — Thu, 28 Mar 2013 00:05:08 PDT

Although the European Union finally approved the continent-wide Unitary Patent in December 2012, after decades of discussions, the story is by no means at an end. Science describes the root of the problem:

The final agreement introduced a complex arrangement for the oversight of patent matters by the Court of Justice of the European Union. Instead of being enshrined in the main patent regulation, the court's role will be mentioned indirectly in the Unified Patent Court agreement. Axel Horns, a patent attorney at the KSNH law firm in Munich, says the solution is "awkward." But it satisfies both defenders of the Court of Justice's supreme authority, such as the European Parliament, and those who want to limit its role, including some businesses and the United Kingdom's conservative government.

A key bone of contention is therefore what exactly the role of Europe's highest court, the European Court of Justice (ECJ) will have here, with different EU countries wanting very different things. But it's even worse than that, because two nations, Spain and Italy, refused to sign up to the Unitary Patent at all, after their respective languages were not included alongside the other official ones -- English, French and German. This has led to a Unitary Patent that doesn't actually unify Europe, but instead introduces yet another complicated layer on top of existing structures. Spain is now taking advantage of that fact to challenge the whole structure at the ECJ, as this story on The IPKat blog explains: By hiding the actual substance of the patent, its scope and its limitations, behind an -- admittedly clever -- system of legal referrals, the [Unitary Patent] regime has become even more complex. As a result, the ECJ is confronted with a patent which is in fact just an empty shell. This makes the Regulation [governing the Unitary Patent] either invalid for a lack of legal determination or it will force the Court to define the substance of the unitary patent out of the blue. It will however not prevent the Court from exercising its judicial review over the European patent system. The idea of keeping the ECJ out of the game by stripping down the Regulation was doomed to fail from the very beginning.
And if this lack of legal clarity is not enough to scupper the whole plan, Spain has two more lines of attack. Since it is not part of the Unitary Patent zone, Spain's companies are obviously at a disadvantage: Article 7 of the Regulation entails an indirect discrimination on grounds of nationality which results from the fact that unitary patents applied for by Spanish enterprises will always be governed by a foreign law.

It is also not unlikely that Spain will put its finger on the Court's greatest treasure, the Internal Market. There will almost necessarily be a distortion of competition between the Member States where the unitary patent is available and those where it is not.
In other words, the awkward compromise agreed to finalize the Unitary Patent last year actually contradicts the fundamental impetus behind the European Union: to create a uniform set of laws that apply equally across the whole continent. Probably for this reason the IP Kat blog suggests: the chances of success [for Spain before the ECJ] do look promising. The mutation from an autonomous patent for the European market to the hitherto unknown schizophrenic creature of a "European patent with unitary effect" has left deep scars, and every one of them could be taken up before the Court.
One thing is for sure: if the brakes have indeed been slammed on for the Unitary Patent project, they are unlikely to come off for a good while unless something dramatic happens. The IPKat blog reminds us that proceedings at the ECJ take about 22 months on average, so it may well be several years before we have the court's judgment, and things can move forward.

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Mexico Will Ask To Join US-EU Transatlantic Trade Agreement

Glyn Moody — Wed, 13 Mar 2013 16:39:55 PDT

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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Rejection Of The Pirate Bay Founders' Appeal Sets Dangerous Precedent On Liability & Free Expression

Mike Masnick — Wed, 13 Mar 2013 10:58:00 PDT

As others have noted, the European Court of Human Rights has rejected appeals from two founders of The Pirate Bay, Peter Sunde and Fredrik Neij, of their conviction under Swedish law. The decision is worth reading in its entirety, in that it tries to lay out a "balanced" approach concerning freedom of expression against other rights, such as copyright, and appears to come down on the side of saying copyright is more important than freedom of expression. That seems like a dangerous outcome in a variety of ways.

The court quite readily admits that forcing Sunde and Neij to block content from being exchanged via TPB violates their free expression rights, but says that this is a legitimate restriction on such rights:

In the present case, the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The Court considers that the actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants' convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was "prescribed by law", pursued one or more of the legitimate aims referred to in Article 10 § 2 and was "necessary in a democratic society" to attain such aim or aims.

They then look at whether or not the restriction of free expression was "prescribed by law" and conclude that it was, because it happened under the Copyright Act, and there was a "legitimate aim" behind the convictions. That's pretty broad, of course. It also looks at whether or not this restriction was "necessary in a democratic society," which is where it spends the most of its time.

The court seems heavily influenced by the fact that TPB did not remove torrents when asked to do so, despite no law requiring such actions. Furthermore, that sets a bizarre and dangerous precedent that just because someone "urges" you to remove content from an internet website or service, that you must do so or be held liable for it.

The part that troubles me most, however, is that the court more or less completely sidesteps the questions of secondary liability. While it mentions, a few times, that both Sunde and Neij have pointed out that TPB was just the service provider, and any actual infringement was done by users, it never properly addresses this issue, other than to suggest that secondary liability is perfectly reasonable. For those of us who have studied just how important protections for secondary liability are in promoting innovation, this suggests a very dangerous precedent for innovation in Europe. When service providers -- or even those who just worked on the platform -- are held directly liable for actions of their users, you create a very big chilling effect on other companies and services. While it may be more understandable for Neij, who worked directly on building and maintaining the site, Sunde's connection to the actual operations has always been remote. The EHCR reiterates the silly point that, among other things, Sunde "configured a load balancing service for TPB" as if that has anything to do with the overall operations of the site. While it does also talk about his minimal work in working with advertisers on the site, setting up a load balancer and advertising relationships are perfectly legitimate activities, and have nothing to do with any infringement that may have occurred on the site.

Having recently watched the documentary on the TPB trial, TPB AFK (and recognizing that it likely does not tell the full story in the short time frame allowed in a documentary flick), you begin to recognize that there is something of a language and technology literacy gap between those prosecuting the TPB founders and the founders themselves, and, if anything, I think that contributes to the situation the founders are in now. Many of their explanations make perfect sense from a technology standpoint, and are completely obvious, normal things that any online service would do. But, the founders seem to think that these things are so obvious and so non-troublesome that they don't appear to do a very good job of explaining them in ways that the court would understand. It's for that reason that I think the case has not gone that well for the founders. It often appears that they assume that those who are judging them (and prosecuting them) have a level of technological literacy and sophistication that they do not have. There would be ways to dumb down the arguments for why they should be protected under secondary liability theories, but it almost appears that the founders believe that it is the responsibility of those in the court to understand the more sophisticated arguments. I can certainly understand where such a position comes from -- and it makes sense in an ideal world. But in the real world, where that sophistication is lacking, the TPB founders glib explanations for the actions taken come off as semantics and rationalizations, rather than a compelling judicial argument. That is unfortunate, because the end result is a decision like the one today.

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European Copyright Society Says Hyperlinks (And Framing) Should Not Be Infringing

Mike Masnick — Tue, 19 Feb 2013 03:16:03 PST

The Spanish Pirate Party points us to a recently released opinion by the European Copyright Society concerning whether or not hyperlinks themselves may be infringing. The paper was written by 19 European legal scholars, concerning a specific case before the European Court of Justice, Case C-466/12 Svensson, which is yet another case of a news aggregator being sued for daring to link its customers to relevant articles. The reporter, Mr. Svensson, argues that even though the aggregator, Retriever, only posted links, they were "making available" the work. The European Copyright Society is not buying it, noting that hyperlinking is much more akin to a footnote:

Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.

This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):
“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
...
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”

Basically, since a hyperlink just points you somewhere it's not transmitting the work, there's no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it's vitally important to the health of the internet:

The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.

Also of note, is that the opinion paper says that the same reasoning applies equally to "framing." This is a bit more controversial, but we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information, and the EU Copyright Society agrees:

In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.

[...]

In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.

They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.

Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there's a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.

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Python Trademark At Risk In Europe: Python Software Foundation Appeals For Help

Glyn Moody — Mon, 18 Feb 2013 14:21:13 PST

The open source programming language Python -- named after the British comedy series "Monty Python" -- became popular in the 1990s, along with two other languages beginning with "P": Perl and PHP. Later, they formed a crucial part of the famous "LAMP" stack -- the GNU/Linux operating system + Apache Web server + MySQL database + Python/Perl/PHP as scripting languages -- that underpinned many of the most successful startups from this time.

Today, Python is used by some of the biggest names in computing, including Google, so you might assume things like trademarks were sorted out years ago. But this posting by Van Lindberg, Chairman of the Python Software Foundation, reveals that's not the case everywhere:

There is a company in the UK that is trying to trademark the use of the term "Python" for all software, services, servers... pretty much anything having to do with a computer. Specifically, it is the company that got a hold on the python.co.uk domain 13 years ago. At that time we weren't looking a lot at trademark issues, and so we didn't get that domain.

Given the rather unplanned way that free software projects have arisen and grown, it's perhaps not such a surprise that crucial domains and trademarks weren't always applied for in every jurisdiction -- after all, coders just want to code, and open source projects generally don't have any resources to pay someone to handle all the boring legal stuff. And so it often gets neglected, as here. Lindberg explains why that wasn't a problem until now: This hasn't been an issue since then because the python.co.uk domain has, for most of its life, just forwarded its traffic on to the parent companies, veber.co.uk and pobox.co.uk. Unfortunately, Veber has decided that they want to start using the name "Python" for their server products.

We contacted the owners of python.co.uk repeatedly and tried to discuss the matter with them. They blew us off and responded by filing the community trademark application claiming the exclusive right to use "Python" for software, servers, and web services -- everywhere in Europe.
That would obviously represent a real problem for the Python language there. The Python Software Foundation is therefore opposing the community trademark application, and submitting its own. But to succeed, it needs evidence that it has been using the name for many years, and should therefore be granted the trademark. Here's what it would like: According to our London counsel, some of the best pieces of evidence we can submit to the European trademark office are official letters from well-known companies "using PYTHON branded software in various member states of the EU" so that we can "obtain independent witness statements from them attesting to the trade origin significance of the PYTHON mark in connection with the software and related goods/services." We also need evidence of use throughout the EU.
The post goes on to list a variety of ways in which Python users, particularly those in Europe, can help bolster the Python Software Foundation's case and obtain the trademark in question. The good news is that communities based around free software like Python are likely to have a huge pool of people willing and able to help in these circumstances by providing evidence that throughout Europe, and for over two decades, "Python" has always meant the free software language. However, to avoid similar incidents, and similar mad rushes to gather the required evidence, it would probably be a good idea if other open source projects checked that they had registered all the obvious Web sites and trademarks.

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Europe's 'Database Right' Could Throttle Open Data Moves There

Glyn Moody — Wed, 13 Feb 2013 03:28:13 PST

One of the more benighted moves by the European Union was the introduction of a special kind of copyright for databases in 1996: not for their contents, but for their compilation. This means that even if the contents are in the public domain, the database may not be. Thanks to a recent court judgment in France, this "database right" now threatens to become a real danger for the burgeoning open data movement in Europe (original in French).

The case concerns the site NotreFamille.com ("Our Family"), which wanted to obtain a copy of various public records held in digital form by the department of Vienne in France. These were things like parish records and census information for the 1600s, 1700s and 1800s -- all clearly in the public domain. But the region refused to make the digital versions of the records available, even though NotreFamille.com offered to pay, on the grounds that it had a separate database right in the digitized collection that enabled it to withhold what would otherwise be released as open data:

in order to justify an exclusive right to its database, the department of Vienne told the court it had "committed more than €230,000 [about $300,000] to this project and that the digitization of documents archive had taken eight years." This concerns a normal investment made in the context of the public service mission of the department, but it is sufficient, according to the court, to establish that the department is indeed a "database producer" with an exclusive right on the latter that allows it not to meet the requirement of open data.

That's really bad news, since it effectively guts the requirement to make public information freely available as open data, if held in a database that required some effort to put together, as is usually the case. Moreover, other courts in the European Union may well take a similar view, since the database right is Europe-wide.

This is galling because, unlike most copyright legislation, the database right law was followed up with some research commissioned by the EU in order to examine whether the premise -- that providing an additional intellectual monopoly on the database separate from its contents would stimulate extra investment by European publishers -- was in fact true. The evidence was pretty clear (pdf):

Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases. Data taken from the GDD (see Section 4.2.3) show that the EU database production in 2004 has fallen back to pre-Directive levels: the number of EU-based database "entries" into the GDD6 was 3095 in 2004 as compared to 3092 in 1998. In 2001, there were 4085 EU-based"entries" while in 2004 there were only 3095.

So this new monopoly turned out to be a complete flop. Worse, as the current case in Vienne shows, it is now starting to have negative effects on other initiatives. Clearly, the time has come to repeal this legislation before it starts to throttle a potentially important new area for growth in Europe.

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US And Europe Move On To TAFTA: Yet Another Chance To Push Through ACTA/SOPA Style IP Maximalism

Mike Masnick — Fri, 8 Feb 2013 08:40:56 PST

ACTA and SOPA may have flopped, but minor setbacks like that won't stop the onslaught of abuses from the entertainment and pharmaceutical industries looking to use the international treaty process to try to pressure everyone to keep ratcheting up protectionist laws concerning copyright, patents and trademarks. Obviously, we've been talking about the still worrisome TPP agreement involving a bunch of Pacific Rim countries, but it's not stopping there. Back in October, we warned that the US and EU were preparing a new trade agreement as well, and the preliminary plans noted that it would include a "high level of intellectual property protection, including enforcement."

More details are starting to come out as the main EU negotiator for ACTA, Karel de Gucht, came to DC to see about getting things kicked off, on an agreement that's being called TAFTA -- the Trans Atlantic "Free Trade" Agreement. Of course, instead of recognizing the lessons from previous failed efforts to push for broken maximalist policies, it appears that the plan is to try, try again. Some are already saying that this is "the opportunity to try to set the gold standard" in copyright, patent and trademark protection. The goal, as with ACTA and TPP is to ratchet up the laws, and then put tons of pressure on China and India to "respect" those laws. To put it mildly: this is stupid. Both of those countries recognize how protectionism works. We've already seen that China is becoming exceptionally good at using patent laws to basically punish foreign companies, while helping domestic Chinese companies. It seems downright idiotic to provide them with even more tools to do so.

Of course, the real questions are why do we keep letting our governments negotiate these kinds of deals, and why do we let them do so in secret?

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European Court Of Human Rights: No, Copyright Does Not Automatically Trump Freedom Of Expression

Glyn Moody — Wed, 6 Feb 2013 07:28:00 PST

As many know, copyright had its origins in censorship and control. But over the last few hundred years, that fact has been obscured by the rise of the powerful publishing industry and the great works it has helped bring to the public. More recently, though, laws and treaties like SOPA and ACTA have represented a return to the roots of copyright, posing very real threats to what can be said online. That's not because their intent was necessarily to crimp freedom of expression, but as a knock-on effect of turning risk-averse ISPs into the copyright industry's private police force.

And so there's a growing tension between copyright law that seeks to limit unauthorized use of works on the one hand, and freedom of expression that aims to allow the maximum scope for creativity on the other. The question then becomes: which should have precedence when they clash? The European Court of Human Rights was asked just this question, and came up with the following important ruling:

For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention [on Human Rights]. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person's or an organisation's freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.

However, it's worth noting that the same blog post points out: Due to the important wide margin of appreciation available to the national authorities in this particular case, the impact of Article 10 however is very modest and minimal.
That's because there are many other factors that will need to be taken in to account for particular cases, as the rest of the blog post goes on to explore at some length. For example, one issue is whether the copyright infringement in question was for commercial or non-commercial purposes: the latter would be likely to benefit from the current ruling, while the former probably would not. Nonetheless, an important principle has been enunciated by a senior European court -- one that both reflects the evolving views on this subject, and that is also likely to help shape future decisions in this contested area.

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EU Commission Wants More Copyright Licensing, But Not Creative Commons Or Fair Use

Mike Masnick — Tue, 5 Feb 2013 08:36:07 PST

While there's no doubt that copyright licensing is a mess that is often holding back key innovations online, it's a bit worrisome to hear about how the EU Commission is exploring the issue. It has set up a "Licenses for Europe" campaign, but designed in a way that locks in a predetermined conclusion that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today is coming from individuals and not as a part of a larger industry.

La Quadrature du Net explains why the whole setup is a problem:

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.

Industry reps seemed to have absolutely no interest in discussing things like fair use or other "exceptions" to copyright. Someone brought up fair use, and apparently the response was that "fair use is from the 20th century" and then annoyance at the fact that "exceptions" were even being discussed since "we should just talk about licenses." Moderators obliged by shutting down any talk of exceptions.

Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something." We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something" or else.

Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).

All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question:

Attendee asks, who gives a licence for mining the Internet?

And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.

Yes, locked up content is a problem, and fixing licensing is one part of the solution, but it cannot be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.

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Dangerous: European Courts Considering Requiring Search Engine Filters Over Embarrassing Content

Mike Masnick — Thu, 31 Jan 2013 11:59:17 PST

Remember Max Mosley? He's trying to argue that search engines need to forget him. Mosley, the former head of motorsports organization FIA, got upset a few years back when UK tabloids, led by News of the World, published some photos of Mosley's "rendezvous with five sex workers" that involved some role playing -- the women were dressed as prison guards, and he as the "prisoner" who needed to be punished. One of the workers took some photos which leaked... and Mosley went legal. He sued News of the World on a couple of issues, and actually "won" on the more narrow issue of what kind of role playing he was involved in. The paper had described it as a "Nazi orgy," but Mosley (who is extra sensitive to this considering that his father, Oswald Mosley, was the leader of the UK Fascist party, and both Adolf Hitler and Joseph Goebbels apparently attended his parents' wedding) made it clear that the setup was merely a German prison camp, and there was nothing Nazi about it. He won that argument and News of the World had to pay up a fairly significant sum. The court also said that the story and the pictures invaded his privacy.

You can understand why he'd be upset about such private actions becoming public, but once they're public, then what? Most people would recognize that the best thing to do is to recognize that the information is public, and move on in life, allowing people to gradually stop caring. But not Max Mosley. He seems to have dedicated his life to forcing everyone to take overt actions to make sure that rich and famous people, such as himself, can never be embarrassed again. First, he argued that newspapers should be required to alert famous people before they are written about, allowing the famous people to then use the court to block any stories they dislike. Thankfully, the European Court of Human Rights rejected this request.

That did not stop Mosley, however, who first used the recent "Leveson Inquiry" (a response to the later story of News of the World hacking into phone lines) to push for new rules requiring search engines to delete the photos from ever being found online. And thus began phase two of Mosley's response to the article: he went on a campaign against search engines, believing that if he could somehow force search engines to ignore the photos from that original story, the world might forget about it. Even though, in the Leveson hearing, Mosley admits that he was warned that by taking this issue to trial in the first place, it would renew interest in the issue, including putting such private information into official public court documents:

I mean, when I had my first meeting with counsel, they explained to me very carefully that.... By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it.

And, yet, Mosley still believes that it's possible to erase such things from the public mind, and the way to do that, obviously, is to filter Google. Thus he began both a legal and publicity campaign arguing that Google must magically filter out the content in question. He's asked by Leveson about how many sites his lawyers have "been able to shut down" and he responds by blaming Google:

It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California.

But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines -- if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines.

And thus began his legal campaign for mandatory search engine filters to block out content that he doesn't like. Yes, one country, the UK, has ruled that the use of those photos in a newspaper story represented a violation of his privacy, but the photos themselves are out there, and in other parts of the world, we have a belief in the freedom of the press. And in discussing the legality of showing the images, it seems that there is a strong journalistic reason to include at least some examples of the images. For example, Gawker reported on the case and quite reasonably included some of the images, including the following:

While it may have been unfortunate (and upsetting) for the story to get out in the press in the first place, that doesn't change the fact that once the information is out there, it's out there. Resorting to outright censorship as a response is not reasonable, nor would it really help. Attempting to censor such information would only serve to call more attention to it in the first place. While it may be true that the UK allows ridiculous "injunctions" by famous people who don't like being embarrassed by the press, the public is increasingly fed up with such rules. They tend to anger the public, who feels that their own free speech rights are being restricted.

Furthermore, asking search engines (or anyone, really) to create specific filters to pre-block such content raises all sorts of concerns and consequences. Not only would it do little to hide the actual imagery or make people forget the story in the first place, but it sets a horrifying precedent, allowing people to seek to censor legitimate free expression all for the sake of trying to avoid embarrassment.

For example, if the French or German courts decide to force Google to censor access to the images above, then Google wouldn't just be forced to block and censor the images directly, but various stories that include the images too, such as the Gawker stories above. And those stories aren't about the initial "sex party," but rather the legal issues that were raised after the fact. Trying to silence discussion of the legal issues, such as in this article, starts to go deep into very concerning territory when we're talking about the freedom of the press. You can argue that the original article broke some UK rules, but many of the followup articles are important discussions on a topic of public interest, which news organizations need to be free to pursue.

And where do you stop with such filters? If he actually did get filters required on search engines, as with other injunctions on speech, you can imagine discussion and links quickly moving to social networks. So then what? Mosley goes back to court seeking mandatory filters on social networks like Facebook and Twitter? Anyone who links to or posts the images he does't like gets blocked? Add to this other famous rich people demanding similar filtering of stories, images and videos that they, too, find embarrassing, and you're talking about a complete logistical nightmare of censorship.

In addition, such filters present potential monitoring and data privacy issues, as they require extensive monitoring, rather than mere indexing of information. In fact, the European Court of Justice has already ruled that forcing social networks or search engines to set up automatic filters to catch "illegal" content is actually a violation of existing EU law, requiring way too much of companies' "freedom to conduct business", as well as leading to the blocking of perfectly legal communications. In one case, involving a court that had ordered a filter for Netlog, the EU Court of Justice said the unintended consequences were too great:

Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

Given that, you would have hoped that the courts in France and Germany would have already rejected these lawsuits, and told Mosley that his comments to the Leveson Inquiry committee remain true: the more he continues to bring this up in court, the more attention he, himself, is calling to the story. Perhaps the best thing to do is to let it go, rather than trying to impose a massive, wasteful, unworkable filtering system that would do little to stop people from knowing the story or seeing the pictures, but would have dangerous unintended consequences that impact free expression and privacy.

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Secondhand MP3 Dealer Redigi Expanding Into Europe... And Tangling With A Whole New Set Of IP Laws

Tim Cushing — Thu, 24 Jan 2013 23:04:00 PST

Redigi, the 'used' mp3 dealer, is now sending out invites for its expansion into Europe. While many may question how big the market is for secondhand mp3s, Redigi obviously feels there's more money to made overseas.

In the US, Redigi is operating in the shadow of a lawsuit filed by the RIAA (with EMI/Capitol Records taking the lead). The RIAA wanted the company shut down, but the presiding judge refused to grant the injunction, citing concerns about the right of first sale, as well as a lack of "irreparable harm," as claimed by EMI. However, he did note that EMI's arguments were "compelling," which likely means that sooner or later, the RIAA will get its way. (The outcome of Kirtsaeng vs. Wiley will also have some impact this lawsuit, should it reach its conclusion first.)

Over in Europe, Redigi is relying on a ruling against Oracle (who was taking on UsedSoft, a software reseller), which claimed its software couldn't be resold. "Copyright exhaustion" is the key here -- a concept related to the right of first sale -- meaning the copyright holder's control ends once the sale is made. More importantly, the European court declared that the software could be sold even if Oracle's contract with the end user prohibits resale.

Obviously, this doesn't sit well with many rights holders. As we're all too aware, when we buy a digital good, we're usually exchanging our money for a license, rather than something we can resell or transfer or even move from computer to computer. These licenses allow the control to remain with the copyright holder (or the retailer/distributor) for long after the famous "first sale." As Redigi's CEO points out, if you block the customers' right of first sale, then they have vastly overpaid for these licenses.

[M]ost lawful users of music and books have hundreds of dollars of lawfully obtained things on their computers and right now the value of that is zero dollars.

Whether or not Redigi will be successful in Europe remains to be seen, but its business model is applying pressure to rights holders and their representatives to define more clearly what they feel customers are entitled to when they purchase a license disguised as a digital download.

Oh, and Redigi's CEO mentions books for a reason. The company is hoping to expand its current offerings from mp3s to ebooks... and video games. Rolling up on Amazon and re-triggering the AAA game developers' distaste for the secondhand market means things could get interesting in a hurry.

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Announcing: Our New Sky Is Rising Report!

Mike Masnick — Thu, 24 Jan 2013 06:00:00 PST

A year ago, we announced our Sky is Rising report, sponsored by CCIA, looking at the state of the global entertainment industry over the last decade -- and seeing that, despite the doom and gloom that we heard from some legacy players, the story actually showed tremendous opportunity. There was massive growth in content being produced, growth in revenue (though often distributed differently than through traditional gatekeepers) and tremendous new opportunities for content creators. It also found that, contrary to the claims that people just wanted content for free, people were spending more on entertainment. All in all, the data showed a much more positive picture than some have been spinning. That said, it did also highlight many of the challenges that content creators faced, with two key ones being important: the massive growth in content meant much more competition for consumers' dollars, while the changing technology and services landscape meant that the specific road map was a lot less clear.

This year, we're back with our second edition of the report, The Sky is Rising Two, once again, kindly sponsored by CCIA. This time around, we focused much more specifically on a few key countries in Europe: Germany, France, the UK, Italy, Russia and Spain. After the first report, we received some very reasonable questions about whether or not the global data reflected the situation across every country, or if one or two places (such as the US) might dominate and distort the picture in other countries. We chose to look at six of the larger economies in Europe individually, to see what we might find, and that's the focus of the second report. Once again, we've got a nice infographic that summarizes many of the findings: What we found this time was that, as expected, there are some big differences within different countries -- with some doing better in certain areas, and some struggling in other areas. But, on the whole, the general picture was the same. The various industries were growing. The amount of content being created was growing. The number of new services enabling new business models and new ways to distribute content were growing massively. It's an exciting time, and the key point is, once again, that there is no "conflict" between tech and content. Rather the two work hand in hand together quite well, with new services enabling all sorts of growth opportunities for artists.

Of course, the same caveats that we saw last year still apply. There is more competition, and the path to success may be less clear. So for individual creators, it may seem like a much greater struggle -- though their overall slate of opportunities continues to increase. Similarly, with new services and new opportunities, there remain challenges for the legacy players (especially if they had gatekeeper roles) to remain relevant. Please check out the full report below:

The Sky Is Rising 2 (PDF)The Sky Is Rising 2 (Text)

Also, since the report covered countries where English was not the primary language, we also had the report translated into German, Spanish, French, Italian and Russian. You can find each of those versions at the bottom of the Sky is Rising 2 page.

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Some People Still Can't Seem To Question Their Car's GPS

Timothy Geigner — Tue, 22 Jan 2013 15:51:00 PST

Welll, it's been over two years since we've had one of these stories here at Techdirt, but some people will still follow their GPS blindly despite every bit of common sense available telling them to do otherwise. Admittedly, for my money, the Darwin-Awards-esque fashion in which some folks will literally follow their GPS over a cliff, up a mountain, or into a drowning-inducing resevoir provide some of the best entertainment bang for the click as far as I'm concerned. And while, for comedy purposes, it may be tempting to litigate against Tom Tom under the notion that these drivers were seriously seeking out Bespin, Mount Olympus, and a mini-Atlantis respectively, the unfortunate truth is that these drivers were just dumb.

Pictured: what happens when you type 'Hoth' as your GPS destination
Image source: CC BY 2.0

Now we can add a lovely elderly woman from Belgium to the list of people who toss common sense to the curb in favor of their GPS, though she admittedly performed this action in such distinctive fashion as to separate herself from the pack.

The woman identified by Het Nieuwsblad as the 67-year-old Sabine Moureau told the paper: "I was absent-minded so I kept on putting my foot down."

Sabine started her journey in Erquelinnes on the morning of last Saturday week. "I was going to pick up my friend in the Brussels North Station" she told the paper. The journey should have taken just over an hour, but she ended up 1,450km from her starting point.

Yes, instead of reaching her destination in Brussels, which Google informs me is in Belgium, she concluded her GPS-led journey in Zagreb, which Google likewise informs me is in Croatia. For those of you who are as European-geography-challenged as I am, this means she essentially drove from the North Sea to the Adriatic Sea. If that doesn't help you much (And why would it? You've already said you're geography-challenged, dummy!), consider that Sabine's trek caused her to touch Belgium, Germany, Austria, Slovenia and finally Croatia, taking something like 12 hours. Perhaps this Google Maps link will really drive home the point. Point C is where she began. Point B is where she wanted to go. Point D is where she did go. Think about that for a bit...

To Sabine's credit, she provides more than just the driving skills of an otter to laugh at. She has quotes, too!

"I saw tons of different signposts, first in French, later in German, but I kept on driving." Sabine had to fill up twice and slept a few hours by the wayside, but claims she never really caught on to the fact that she might be on the wrong track. "It was only when I ended up in Zagreb that I realised I was no longer in Belgium."

Well, I say bless your heart, you wonderfully trusting woman. Were it not for you, Techdirt may have gone 3 full years without a silly GPS story. On the other hand, one has to wonder if the friends you keep are cut from the same cloth as you, because I'd hate to think that your friend is still waiting at the Brussels North Station, wondering where the hell you are.

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Beatles' First Single Enters Public Domain -- In Europe

Glyn Moody — Tue, 15 Jan 2013 15:54:44 PST

The Beatles remain the iconic pop group, so news on VVN/Music that their very first single has now entered the public domain is something of a landmark moment in music:

The Beatles first single, Love Me Do / P.S. I Love You, has entered the public domain in Europe and small labels are already taking advantage of the situation.

The European copyright laws grant ownership of a recorded track for fifty years, which Love Me Do just passed. That means that, starting January 1 of 2013, anyone who wants to put out the track is free to do so.

Unfortunately, if you're in the US, you'll probably have to wait until 2049 or so. And things are about to get worse in Europe too. As Techdirt reported, back in 2011 the European Union agreed to increase the copyright term for sound recordings by 20 years, despite the absence of any economic justification for this theft from the public domain (yes, this is theft, because it's taking something away that people had.)

Once the relevant legislation is passed around Europe, that means that most of the later Beatles singles -- and many other famous pop music hits from the 1960s -- won't be in the public domain there until the 2030s, rather than in the next few years. It's not yet clear whether the new 70-year term will be applied retroactively to works that have already entered the public domain, so Europeans may want to enjoy their right to distribute free copies of "Love Me Do / P.S. I Love You" recordings legally while they can....

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The US's Public Domain Class Of 2013

Mike Masnick — Fri, 21 Dec 2012 19:39:00 PST

Every year, we talk about how January 1st is public domain day in many parts of the world, but thanks to constant copyright term extension, the US is left waiting and waiting and waiting -- kind of like the famous play by Samuel Beckett, which entered the public domain in many places around the world in 2011, but is still covered by copyright here.

The folks at the Public Domain Review have put together a nice list (and photo!) of the "Class of 2013": content creators whose works will be going into the public domain on January 1, 2013 in large parts of the world, including the EU, Brazil, Russia and many other places. To help out, I thought I'd put together the list of content creators whose works are entering the public domain in the US in 2013:

Yeah. It looks suspiciously like last year's list. And the year before that. And before that. And so on. Oh, and also... I hate to ruin the surprise, but next year's list? Pretty much the same. Year after that? Yeah, that too. For anyone who actually understands the value of the public domain in enriching and enhancing culture, the fact that the US -- at the behest of the entertainment industry, which has often mined the public domain for its own works -- isn't just shameful, it's downright despicable. We're stifling our own culture.

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European Court Of Human Rights Reinforces Right To Access Online Content

Glyn Moody — Fri, 21 Dec 2012 03:42:56 PST

Back in 2010, Techdirt reported on Turkey's habit of blocking Google over certain holdings on its various sites. Mostly these were YouTube videos it took exception to, but other services were banned too. An earlier case, from 2009, received less attention at the time, but has now led to a precedent-setting ruling from the European Court of Human Rights (ECHR) that could have a big impact on future cases in Europe, and maybe even beyond.

The case was brought by a Turkish PhD student named Ahmet Yildirim, who complained that he had faced "collateral censorship" when his Web pages hosted on Google Site were shut down by the authorities in 2009 as a result of a court action aimed at another set of pages held there. Open Society Foundations, which had filed a brief with the European Court of Human Rights in support of the applicant's claim, explains the background:

Yildirim's academically-focused site was blocked by the Turkish regulator, TiM, as a result of a court injunction that ordered it to close down local access to the entire Google Sites domain. The move was supposedly aimed at a single website hosted by Google which included content deemed offensive to the memory of Mustafa Kemal Ataturk, the founder of the Turkish Republic, in breach of Turkish law.

Yildirim's appeals against the injunction were turned down by the Turkish courts, which argued that the blanket ban was reasonable because it was not possible for the authorities to block a single Google-hosted site.

In its judgment, the ECHR noted that the regulator had not attempted to contact Google to seek the closure of the offending site, and that the 2007 law that allowed the regulator to close down foreign-hosted sites did not permit blocking an entire domain such as Google Sites.

As this makes clear, the problem was the over-blocking that resulted in all Google Sites being taken down, even though only one of them was accused of insulting modern Turkey's founder. The court's judgment (pdf) explains that such blocks are only compatible with the European Convention on Human Rights if they fulfil various strict conditions: The Court reiterated that a restriction on access to a source of information was only compatible with the Convention if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses. However, when the Denizli Criminal Court had decided to block all access to Google Sites, it had simply referred to an opinion from the TiB without ascertaining whether a less far-reaching measure could have been taken to block access specifically to the site in question. The Court further observed that there was no indication that the Criminal Court had made any attempt to weigh up the various interests at stake, in particular by assessing whether it had been necessary to block all access to Google Sites. In the Court's view, this shortcoming was a consequence of the domestic law, which did not lay down any obligation for the courts to examine whether the wholesale blocking of Google Sites was justified. The courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of Internet users and having a significant collateral effect.
The broader importance of this decision is explained in a comment quoted by the Open Society Foundations press release: Darian Pavli, a lawyer at the Justice Initiative who worked on the submission, said: "This is the first ruling by an international tribunal on wholesale blocking of internet content, and a very significant precedent. The court made clear that access to online content is a fundamental right, and that it can only be restricted in exceptional cases, subject to full judicial review."
Although there is a three-month period in which the ruling can be appealed, the fact that the court's verdict was unanimous among the seven judges, one of whom is from Turkey, suggests that any such appeal is unlikely to stand much chance of overturning this important decision.

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EU Opens Itself Up To Massive Innovation-Hindering Patent Trolling

Mike Masnick — Wed, 12 Dec 2012 13:04:00 PST

Ah, Europe. After years (decades!) of arguing about it, the EU Parliament has finally 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:

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.
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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US Government Agencies Will Soon Be Able To Access Foreign Medical Dossiers Due To Patriot Act

Ben Zevenbergen — Fri, 7 Dec 2012 02:07:57 PST

The US Patriot Act has suddenly scared an entire nation, and it's not the US itself this time. The Netherlands is currently going nuts about the US government being able to request medical details of all its citizens when the Dutch Electronic Patient Database (EPD) is implemented next month. This will not be the only country that freaks out because of the Patriot Act, as this sort of thing is likely to happen a lot more often. A recent study explained that US government agencies can secretly request anyone's data if they are using a cloud-computing service which 'conducts systematic business in the US'. It is already sufficient when the service provider is somehow a subsidiary of a US company.

That turns out to be a problem in the Netherlands, because the company that has developed the EPD and will be hosting the patients' data on its cloud computing systems is the US-based CSC. The Dutch government and the organization responsible for implementing the EPD are convinced there is no problem, because there are clear contracts which have assigned Dutch jurisdiction, and fortunately the Dutch have stringent data protection laws that will protect patients' sensitive data. Because that's what data protection laws do, right?

False! At least with regard to information law, researchers from Amsterdam University warn that this analysis is way too simplistic. According to the scholars, it is quite possible the US government agencies can circumvent data protection laws and could easily request access to medical information of every single person in the Netherlands. The study doesn't just cover the Netherlands (though it is especially timely for that), but rather looks at how these risks may apply more globally. Here are just a few of the findings that should raise eyebrows across the globe:

"When using a cloud service provider that is subject to U.S. jurisdiction, data may be requested directly from the company in question in the United States. […] From a legal point of view, access to such information cannot be denied and cloud service providers can give no guarantees in this respect. […] The possibility that foreign governments request information is a risk that cannot be eliminated by contractual guarantees. Nor do Dutch privacy laws offer any safeguards in this respect. […] It is a persistent misconception that U.S. jurisdiction does not apply if the data government requests for information do not apply to Dutch users of the cloud. […] legal protection under specific U.S. laws applies primarily to U.S. citizens and residents. […] Given the nature of intelligence work, it is not possible to gain insight into actual requests for information by the U.S. authorities […] Cloud providers will typically not be able to disclose whether such requests are made"

If the above doesn't yet lead to a new international outrage against the US Patriot Act, then the following sentence on the extra-territorial effects of the Patriot Act should at least send shivers down the spines of sovereignty-loving non-US government officials:

"The transition to cloud computing will, in principle, result in a lower degree of autonomy [...]"

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EU Report: The 'Right To Be Forgotten' Is Technically Impossible... So Let's Do It Anyway

Mike Masnick — Thu, 6 Dec 2012 05:36:51 PST

Every few months, it seems, we hear about yet another attempt in Europe to implement the absolutely ridiculous idea of the "right to be forgotten." We wrote about it in 2010, 2011 and again earlier this year. It's a silly idea for a variety of reasons. The general idea is that someone, say, who has committed a crime, but is then rehabilitated / served his time / whatever, deserves a "fresh start" and the stories of the crime and punishment should be erased from publications. Europeans who support this wacky idea argue that it's a form of a privacy right. But that's ridiculous. It has nothing to do with "privacy" at all, as the fact that someone committed and convicted of a crime is a public fact, not private info. Telling people (and publishers) that they can't talk about factual information, or even leave available factual stories written at the time just seems completely offensive to anyone who believes in the basic idea of free speech.

And, of course, there's an even bigger problem. The whole idea isn't just silly and complex, but it's totally impossible. And it's not just me saying that. As Stewart Baker points out, the European Network and Information Security Agency (ENISA) has put out a report making the basic impossibility of a "right to be forgotten" quite clear:

Consider Alice viewing Bob’s personal information on a computer screen, while she is allowed to do so (i.e., before Bob has invoked his right to be forgotten). Alice can take a picture of the screen using a camera, take notes or memorize the information. It is technically impossible to prevent Alice from doing so, or even to recognize that she has obtained a copy of Bob’s personal data.

They seem to make that clear just by the image they chose to put on the cover of the report: That said... given the very admission that this is impossible, you'd think the recommendation would be (perhaps) to find something a little more productive to work on. But, no, that would be wishful thinking. Instead, despite the admission that the whole endeavor is doomed to be a failure for the simple fact that it's impossible, they still discuss ways that it might be implemented. And their ideas? Well, to double down on the impossible with crazy regulations. Take for example, the following two "recommendations" in the final section, one right after the other:

For any reasonable interpretation of the right to be forgotten, a purely technical and comprehensive solution to enforce the right in the open Internet is generally impossible.
A possible pragmatic approach to assist with the enforcement of the right to be forgotten is to require search engine operators and sharing services within the EU to filter references to forgotten information stored inside and outside the EU region.

Got that? So it's impossible, but let's regulate the hell out of search engines and tell them what they can't link to. Perhaps if they'd stopped after the point at which they determined it was "impossible" we'd all have been better off.

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But Of Course: Ridiculous ACTA Provisions Magically Appear In CETA

Mike Masnick — Fri, 12 Oct 2012 03:15:30 PDT

There were plenty of rumors (and leaks) earlier this year about how, even after European protests effectively killed ACTA in the EU, it was clear that some of the worst, most outrageous parts of ACTA had been written into CETA, a similar agreement between Canada and Europe. EU officials claimed they were removing the most controversial provisions -- but now it's been confirmed that the ridiculously misguided criminal sanctions... had magically found their way into CETA. Given the public's response to ACTA, EU Commission officials either think the public is stupid... or just not paying attention.

The current attitude of the EU negotiators on CETA is an alarming repetition of the blatant denial of democracy of the ACTA negotiations. Despite calls from citizens and representatives, CETA remains confidential, both in the EU and in Canada. In this context of non-transparency, Philipp Dupuis, the European Commission negotiator, confirmed at a workshop held on October 10th 2012 that ACTA-like criminal sanctions were still in the CETA draft.

As Jeremie Zimmermann points out in the link above, this whole process of sneaking through protectionist IP policies in supposed "free trade" agreements needs to stop:

“The only hard evidence on which we can base our analysis suggests the worst: once again, the European Commission and the EU Member States governments are trying to impose repressive measures against cultural practices online. Broad criminal sanctions do not belong in a trade agreement. If they appear in the final CETA text, the agreement will lose all legitimacy and will have to be frontally opposed, like ACTA. This trend of sneaking repressive measures through negotiated trade agreements must stop.”

It needs to stop, but people don't realize how entrenched that process is, which is a big part of the problem.

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Cloud Computing To Save Europe, Or Just Iceland?

Ben Zevenbergen — Fri, 12 Oct 2012 00:08:03 PDT

Cloud computing has been presented as the new economic weapon for bringing economic prosperity to Europe, if you believe the new cloud computing strategy from the European Commission. An additional € 957 billion ($1,236 billion) is expected to be earned in the EU by 2020, along with an additional 3.8 million jobs created. These impressive economic forecasts are unfortunately just seen as a positive side effect of something much more important to the bureaucrats: a chance to update the regulation of the internet. Of course, all this might actually do is open up opportunities for other countries and regions to do a better job at it. And it appears that Iceland wants to be poised to step in where Europe is all too likely to fail.

Fixing the regulation of information and online services has been overdue for many, many years in Europe. Developers of both complex and simple cloud services are often being frustrated by current laws, which were enacted many years ago without much (or any) foresight into how information would be used today. For example, the consent of the user to allow a cloud service to handle his or her personal data often does not reflect the technical reality of how the data is handled by a service operating in a cloud. Even if the cloud system is technically secure and privacy measures are taken seriously, obligations or prohibitions in data protection laws inhibit efficient handling of personal data by modern services if the service provider wishes to fully adhere to the law.

Other policy areas that will likely be updated include consumer rights, security, competition and intellectual property. Officials also see this as a chance to address issues such as jurisdiction (applicable law, but also tax issues), liability of intermediaries, standards and interoperability. Techdirt has been reporting on the flaws of current legal systems and the frequently absurd consequences for many years now. Postponing the much needed regulatory update on these issues is like shooting yourself in the foot, over and over again.

The figures presented in the report above may be overstated, but significant investments can be expected as a result of increased legal security in cloud computing. The question is, then: Who will reap the benefit from this? There are many other countries and regions, which have been preparing themselves for the highly interconnected world and now see a chance to profit from new investments in cloud computing and related infrastructure.

For example, Iceland recently stepped forward and presented itself as a strong contender and ideal host for new server farms, which are needed for cloud computing. The Iceland Modern Media Institute (IMMI) presented a rather useful model to analyze a region's potential for becoming a modern information hub based on a few primary indicators. The report was requested by the European Greens party and models a region's suitability for information services based on energy (e.g. sources and natural cooling), connectivity (e.g. international network and security) and jurisdiction (e.g. local legal provisions and legal security).

Iceland was used as a case study to showcase the model, presenting the natural and societal advantages of the island over other countries in an impressive and convincing way. Iceland is ideally located between the US and the EU, has abundant natural cooling sources and, above all, has developed an impressive and progressive portfolio of policies related to the free and open internet.

Not all is lost for Europe, though. The Financial Times has spotted the necessary political frame for the cloud computing strategy to become a serious topic among European officials:

For Ms. Kroes and her colleagues, the cloud is the embodiment of the European Economic Community, eliminating obstacles, stimulating competition and opening up the market to new possibilities.

This 'European Dream' argument for cloud computing could entice some non-tech savvy politicians to take the issue seriously by enabling them to score media attention with their involvement in the new futuristic project which helps rebuild the economy. At least this enables a public, broad and open discussion on all types of internet regulation, where there is plenty of room for expertise and evidence-gathering about the internet to enter the debate.

Recent announcements pave the way for an increased "connectivity" score for the EU in the IMMI model. However, unless the European legislators seize this opportunity in policy making to update its "jurisdiction" score in the model and learn from Iceland's recent policy innovations for the free and open internet, investors may be enticed to build their infrastructure on the island nation, or elsewhere, instead of mainland Europe. The message is simple: Fail to make use of this chance to update the regulation of the internet intelligently, and countries like Iceland will profit most from Europe's cloud computing strategy.

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EU Copyright Holders Cling To Old Levies, As New Ones Start To Appear On Cloud Storage

Glyn Moody — Mon, 1 Oct 2012 03:16:30 PDT

Levies on blank storage media are a relic of older times when copying was a new possibility for copyright works. You no longer needed an LP pressing plant, say, you could copy music in the comfort of your own home, first on analog cassette tapes, then later on digital media like CDs and MP3 players. At that time, it was easy to see each of those copies as somehow replacing purchases, and so the argument for levies was born: people should pay indirectly for the "lost" sales their copying caused.

Fast forward to the Internet age, when everything online is copied multiple times as it traverses the nodes of the network, and where everyone is constantly copying files, regardless of copyright law -- with a potential annual liability of around $4.5 billion, according to a well-known study by John Tehranian. Basically, the idea that every copy of a digital file must be paid for is dead, which makes levies on storage media -- currently being pushed to absurd levels in some countries -- look even more unjustifiable.

Even the copyright holders are aware of this. A new "Declaration on Private Copying Remuneration" (pdf), pointed out to us by an article in Intellectual Property Watch, tries to convince people that levies are fair:

Private copying is becoming a more and more frequent subject of debate. The companies which market copying devices are systematically attacking the system through European and national courts, lobbying and through the press. On behalf of hundreds of thousands of creators we, the undersigned organisations representing authors, performers and producers of musical, audiovisual, literary and visual arts works, feel the need to give a reminder of why private copying combined with fair remuneration remains essential.

But its attempted justification fails right at the start: Over 50 years ago, the first commercially available recording devices created a dilemma. Copyright as it stood at the time required permission for each act of copying of protected works. It was practically impossible for private users to get permission whenever they wanted to copy something. At the same time, rightsholders were clearly entitled to remuneration for such use of their works.

To resolve this, the vast majority of European countries allowed private copying as long as remuneration was paid to the rightsholders. These national pieces of legislation were brought together at European level in 2001, reiterating the necessity of rightholder remuneration.
Well, no: they are not "clearly" entitled at all. When people pay for music or videos, they pay for the ability to enjoy them, possibly on a range of different devices. Making copies of CD tracks to an MP3 player, or of DVDs to a tablet does not entitle copyright holders to any more money, since they have done nothing extra to deserve additional remuneration. They produced the work, they were paid for the work, end of the story. The fact that copyright does not allow such reasonable, everyday actions without "exceptions" just shows that it is unfit for the modern world, where personal copies are ubiquitous.

Against this background of increasing irrelevance for copyright levies, it's a shame to see the European Commission meekly accepting their imposition on cloud-based storage systems. Here's what it writes in one of the documents (pdf) accompanying its new strategy for "Unleashing the potential of cloud computing in Europe":

Currently, depending on the national private copy levy system, private copy levies are being asked for the storage media and the hard ware used by consumers in the context of cloudservices.

But trying to impose a complicated set of differing national levies on cloud computing services will simply reproduce the huge problems that a fragmented copyright licensing market is causing for startups in the EU. Moreover, cloud computing actually reduces the need for levies altogether, as the same paper points out: Some of the technologies applied in the digital context, such as streaming, have the potential of reducing the number of copies which are actually made on consumer devices. Cloud computing services, where end-users are actually replicating less on their personal local devices have been seen as a game changer, making the private copy levy concept less appropriate, as digital technology advances.
Rather than permit an outdated system to throttle innovative cloud services in Europe, the Commission should use the shift to this technology to kill off the private copying levy once and for all.

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Amazon Has A Long Way To Go In Europe For Streaming

Ben Zevenbergen — Fri, 21 Sep 2012 03:05:02 PDT

It's great to see Amazon launch its music service (cloud player) in Europe. Normally we should be rejoicing the news of more competition in the user-friendly supply of digital content. However, European music and film fans have become accustomed to disappointment pretty much every time such an announcement is made for one obvious reason: you know you need to check into which handful of countries the service will actually be launched.

In the case of Amazon, the service is initially only offered in three countries: the UK, France and Germany. iTunes, similarly, had a very slow start in 2003 and dealt with 8 years of negotiations to overcome the insane hurdles the European copyright system poses. After 6 years of very gradual expansion, Spotify is nearly half way to getting there.

The snail’s pace roll out of online media services to other countries in the supposed “biggest single market in the world” is mainly due to the fragmented markets for copyright licenses. In the European Union, there are 27 different national copyright systems, one for each Member State. Each system has their own set of collecting societies, which represent the world repertoire of music exclusively for their territory.

For a music service such as Amazon’s cloud player to roll out into Europe, this means it has to negotiate licenses for each country. No pan-European licenses exist at this moment. To make matters worse, it's not just one license per country, but typically between three to seven licenses, each requiring a separate negotiation, in each territory. Terms need to be agreed with 1) several collecting societies, 2) publishers, 3) record companies and since 2005 – after an interesting EU initiative, which backfired hard – 4) with the big record companies setting up their own collective licensing companies for their publishing divisions. Multiply times 27. And try not to cry.

There is a proposal on the table, which aims to solve this chaos with multi-territorial licenses. However, as we have discussed before, there are many problems with collective rights management and the proposed legislation. It will probably take longer to officially adopt the legislation enabling multi-territorial licenses to be agreed upon than for Amazon to complete the arduous European negotiations.

Companies like Apple, Amazon and Spotify are able to pay lawyers and negotiators for these lengthy negotiations. But could a bunch of guys in a garage who have developed the (potentially) next big thing in digital content distribution accomplish the same? It is highly unlikely, and therefore a huge opportunity cost for innovation due to short sightedness.

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EU Commission VP Neelie Kroes Explains Why Copyright Is Broken: It Was Made In An Age Of Gatekeepers

Mike Masnick — Mon, 10 Sep 2012 10:33:00 PDT

While the EU Commission has been much more copyright maximalist at times (it was the major driver behind ACTA in Europe), some on the Commission have been pushing back on such views for a while. Neelie Kroes, who is VP of the EU Commission and in charge of "the digital agenda," has been speaking out on these issues for a while. Last year, she pointed out that new business models, rather than greater enforcement was the right path forward. She's also spoken out against kicking people offline and in favor of open innovation and creation.

She's now given another talk on copyright issues, in which she notes that the world has changed a great deal in the last 14 years since Europe last reviewed proposals to update its Copyright Directive. While many maximalists would say the same thing and focus on the struggles of particular subsector -- the record labels -- Kroes properly notes that the real change (which is, in part, why the labels have struggled) is that the world has shifted from one in which gatekeepers control the means of production and distribution, into one where everyone can create and distribute works:

The last major EU copyright instrument, the Copyright Directive, was adopted in 2001. The Commission proposals it was based on date back to 1998.

Let's remind ourselves what's happened since then.

In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas.

In 1998, YouTube didn't exist. Today, one hour of video is uploaded every second.

In 1998, most people listened to music on the radio, CD or tape. Now digital downloads often overtake conventional sales. New technologies allow downloading or streaming; easily, instantly, wherever you are. Not just to passively listen, but to interact and give feedback, to creators and friends.

But changes are not limited to the content business, they affect all sectors. Huge changes have taken place in the research area. Today, new scientific discoveries don't just come from new experiments, new drugs, new clinical trials: in fact, now, we can get new results by manipulating existing data. Data and text-mining techniques now lie behind a huge field of research, like human genome projects, potentially life-saving. They could hold the key to the next medical breakthrough, if only we freed them from their current legal tangle. Research activities are not clearly exempted from the copyright rules and there are many different rules in the 27 member states.

And here's the most important change since 1998. Back then, creation and distribution were in the hands of the few. Now they are in the hands of everyone: democratising innovation, empowering people to generate and exchange ideas, supporting and stimulating huge creativity.

From there, she notes that copyright may be holding back the real policy issues that they should be focused on -- which isn't just about setting up a system for artists to earn money, but also to "stimulate creativity and innovation, improve consumer choice, promote our cultural heritage and help the sector drive economic growth." But, with copyright designed for a gatekeeper society, and focused solely on a system for certain artists to get paid, you have a broken system. As Kroes points out "you have to look at how [copyright] fits into the real world" and she notes that it's clearly lacking. Everywhere you look, copyright seems to be getting in the way of the important policy issues she mentioned, rather than helping them along:

Well for one thing, you often find that online licensing restrictions make it impossible to buy music legally. Sometimes, for example, you can't buy an MP3 across an EU border.

We have already made a proposal on orphan works and recently one on collective rights management, to make multi-territorial licensing easier. The licensing proposal is a good step forward to make it easier to legally access the music you love, especially across borders. I hope legislators are able to agree it quickly. But this tackles only one aspect of the problem.

Because there are other problems too beyond licensing or orphan works. That's why the June 'Compact for Growth and Jobs' makes clear we need to focus also on substantive copyright reform.

And quite right too. For example, I ask myself, are current copyright rules favourable to potentially life-saving scientific research or do they stand in its way?

Do they make it easier or harder for people to upload and distribute their own, new creative content? And is that the best way to boost creativity and innovation?

It seems clear that Kroes -- like many of us -- recognizes the unfortunate answer today is "no, copyright does not help those things, it makes it harder for individuals to create content and it's not the best way to boost creativity and innovation." This is why we're seeing countries finally start to look at true copyright reform, rather than just doubling down on a broken system.

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