We've written plenty of times about ridiculous European plans to create a so-called "snippet tax" which is more officially referred to as "ancillary rights" (and is really just about creating a tax on Google). The basic concept is that some old school newspapers are so lazy and have so failed to adapt to the internet -- and so want to blame Google for their own failures -- that they want to tax any aggregator (e.g., Google) that links to their works with a snippet, that doesn't pay for the privilege of sending those publishers traffic. As you may remember, Germany has been pushing for such a thing for many, many years, and Austria has been exploring it as well. But perhaps the most attention grabbing move was the one in Spain, which not only included a snippet tax, but made it mandatory. That is, even if you wanted Google News to link to you for free, you couldn't get that. In response, Google took the nuclear option and shut down Google News in Spain. A study showed that this law has actually done much to harm Spanish publishers, but the EU pushes on, ridiculously.
As discussed a year ago, some in the EU Commission are all for creating an EU-wide snippet tax, and as ridiculous and counterproductive as that is, the Commission is about to make a decision on it, and the public consultation on the issue is about to close (it ends tomorrow). Thankfully, many, many different groups have set up nice and easy systems to understand and respond to the consultation -- which you should do. Here are just a few options:
There's also a good detailed discussion of why this snippet tax is the wrong solution from European copyright lawyer Remy Chavannes. Here's just a... um... snippet (that I didn't pay for):
In fact, there is precious little indication that the challenges currently being faced by press publishers are due to the lack of sufficiently broad intellectual property rights. And if insufficient IP rights are not a significant part of the problem, increasing IP rights is unlikely to be a significant part of the solution. At a recent conference in Amsterdam, speakers from publishers, academia, politics, civil society and the internet sector were in near-total agreement that a neighbouring right for publishers would solve nothing at best. It would seem more fruitful to investigate other ways in which the position and prospects of publishers of quality journalism can be increased, e.g. via subsidies, tax facilities, the partial repurposing of public broadcasting funds, or other measures that reflect the significant value to a democratic society of having a vigorous, free and independent press.
Implementation of a neighbouring right would bring significant uncertainty, costs and risks, not just to authors and publishers, but also to the eclectic group of platforms, intermediaries and other service providers that play a role in facilitating the publication, discovery and consumption of press content. Larger, existing broad-based platforms will be incentivised to reduce or remove service features that might trigger the new neighbouring right. New entrants are likely to be discouraged, particularly new entrants who want specifically to serve the market for finding and consuming press content. Depending on the scope of any neighbouring right, moreover, it could also negatively impact providers of social networks as well as providers of access, caching and hosting services. Increasing costs, complexity and uncertainty for such a broad category of service providers threatens the free flow of information and investment in – and availability of – innovative digital services, as well as the commercial prospects for publishers and authors.
Good stuff, and I urge you to read the whole thing -- and to respond to the consultation before the EU Commission destroys the link.
This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.
The weird saga of the insanely thin-skinned Turkish President Recep Tayyip Erdogan continues. As you'll recall, he's on a legal crusade against a German comedian who recited a purposely ridiculous insulting poem about Erdogan on TV (as a response to the stories about Erdogan's thin skin). Erdogan's lawyers found a little used (and little known) "lese majeste" law on the German legal books that makes it a crime to insult representatives of foreign nations. The comedian, Jan Bohmermann, admits that the poem in question was over the top, but that was the point. When you hear about a foreign leader spending so much effort on trying to sue anyone who insulted him, no matter how slight, it's actually pretty tempting to add to the pile of insults.
In Tuesday's ruling the court found that "Erdogan does not have to put up with the expression of certain passages in view of their outrageous content attacking (his) honour."
Why not? While it may sound flip, it's a serious question. He's the leader of a country of almost 80 million people. Shouldn't we be at least a little concerned that he apparently turns into a cowering puddle of emotions the second people make fun of him? Most people put up with other people insulting them just fine, and we aren't leaders of a major nation state. Why is a German court so willing to toss out any basic free speech rights around satire just to please a foreign leader who can't take a joke?
The court didn't ban the entire poem, but even just picking what can and can't be said seems like a ridiculous thing for a court to be involved with at all:
The court ruled that only six lines of the 24-line poem by German comedian Jan Boehmermann could be recited, offering the Turkish leader a partial legal victory.
from the no-wonder-authors-struggle-to-make-a-living dept
Techdirt has been writing for some years about the illogical mess that is the European copyright levy system -- effectively a tax on blank media that is supposed to compensate copyright holders for an alleged "loss" from copies made for personal use. Last November, the Court of Justice of the European Union (CJEU), Europe's highest court, issued an important judgment in this area. It said that Belgium's levies on multifunctional printer sales were incompatible with EU law because they failed to distinguish between private use and commercial use, and between legal and illegal copying. Along the way, the CJEU said that copyright levies must be paid to authors only, and not go to publishers.
As Boing Boing points out, the effects of that decision are now being felt in Germany. An organization set up in 1958, called Wort (literally "word" in German), receives a portion of the German copyright levies that are collected, which it has been sharing between both authors and publishers in roughly equal amounts. The CJEU's decision last November ruled that was illegal, and Germany's top court, the Bundesgerichtshof, has confirmed that position in a recent judgment (original in German). As a result, German publishers now find themselves obliged to pay their authors the copyright levies the industry received over the last few years -- more than €100 million according to the German site Übermedien.
That same article notes the cries of despair in the wake of this decision, as German publishers claim that they are doomed, and that the end is nigh for books in Germany, etc. etc. What's extraordinary is that there is no sense of regret that for years they have been depriving authors of considerable sums of money. That omission is made worse by the fact that publishers have been happy to use the difficulties that authors face in scraping together enough to live on as an excuse for demanding longer and stronger copyright. But as in the music and film industries, the problem is not that copyright is too weak or too short, but that many publishers -- like many recording companies and film studios -- have been only too happy to rip off authors while simultaneously claiming to have their best interests at heart.
Every time you think that the thin-skinned, insecure freakouts of Turkish President Recep Tayyip Erdogan can't get any more crazy, they do. If you don't recall, Erdogan has a notrious thin skin, and a long history of censorship of views he doesn't like. But since becoming President, this has gone into overdrive, with him filing over 1800 cases against people in Turkey for insulting him -- including the famous case in which someone passed around an internet meme comparing Erdogan to Gollum.
That kind of nuttiness jumped international boundaries recently, when Erdogan's lawyers discovered a long-forgotten German law that made it illegal to insult the head of a foreign country, and demanded that the law be used against a satirical German comedian, Jan Bohmermann, who purposefully read an insulting poem about Erdogan, in order to mock his thin skin. Some might find suing over that poem to be... well... a bit on the nose in making the point the poem was intended to make. But, to Erdogan, it appears that suing over insults is just something he can't stop doing. More recently, Erdogan discovered that Switzerland has a similar law and went after people there too (while also getting a Dutch reporter arrested).
Apparently, the fact that the most commonly mocked aspect of Erdogan these days is his inability to handle people mocking him hasn't made Erdogan realize that the more he freaks out, the more people are going to mock him. His latest move is especially crazy. It appears that the CEO of German mega-publishers Axel Springer, Mathias Dopfner, wrote an "open letter" in support of Bohmermann, which stated that he "laughed out loud" at Bohmermann's poem, and suggested that the case against Bohmermann is a problem for free speech. This is obviously a reasonable opinion held by many.
Erdogan's response? Apparently, it's to use the same law that was used against Bohmermann, to demand an injunction against Dopfner for publishing the letter, in order to get it taken down. Thankfully, this request was quickly rejected by a German court, saying that the open letter was "a contribution to building public opinion in a controversial debate."
Erdogan and his lawyer, Ralf Hocker, seem to only want to double down on this. In one article he says (prior to the injunction being denied) that if it were denied, he would appeal the decision to a higher court. And Hocker has some weird ideas about free speech and human dignity:
“Mr Erdogan is a human being and human dignity is inviolable,” Hocker said, adding that this was placed above the freedom of press, art and opinion in the German constitution.
Uh, no. Dignity is very much violable. If you do something that trashes your own dignity. Like suing comedians for making a joke about you. Or suing nearly 2,000 other people for making jokes about you. The loss of dignity is not from the poem or the insults. It's from Erdogan's own actions.
In the NY Times link above, Hocker, makes some even more ridiculous statements:
Ralf Hocker, a lawyer representing Mr. Erdogan in Germany, said he had a mandate to seek an injunction against anyone who publicly insults the Turkish president, to try to stop what he described as an “avalanche” of scornful abuse.
“Everyone thinks they are allowed to insult Mr. Erdogan in any way that they want because they do not find him very sympathetic,” Mr. Höcker said. “But this is not about sympathy, it is about human dignity, namely to protect it.”
Of course, seeking an injunction against people mocking Erdogan for trying to silence all this criticism isn't going to stop the avalanche. It's just going to make it bigger. And, no, the reason people think they are allowed to insult Mr. Erdogan is because they believe in freedom of expression and that Erdogan has done things worthy of scorn. Stop doing those things -- like suing people over meaningless jokes -- and the scorn goes away. And, again, suing over "protecting human dignity" seems like an odd way to improve your dignity.
from the if-you-can't-take-criticism,-get-out-of-politics dept
The insanity around Turkish president Recep Tayyip Erdogan and his insanely thin skin is getting worse. As we've discussed, Erdogan has been going crazy suing anyone in Turkey who he claims insults him (over 1800 cases in just 18 months). And he's tried to take things internationally as well. Even when visiting the US, his team tried to silence the press. And then he whined about a song on a German TV station mocking him. That resulted in a German comic writing some more direct insults, and Erdogan somehow discovering a nearly forgotten German law that allows for criminal cases against anyone who insults a foreign leader.
People are completely up in arms over the fact that German Chancellor Angela Merkel made the political choice and gave in to Erdogan's request, allowing the comedian, Jan Bohmermann, to face charges that could land him in jail. Merkel, the pundits claimed, "needed" to do this because she needs Erdogan's support in dealing with the refugee crisis going on right now. The one bone she threw to critics was that the law in question should be changed -- a process that is moving forward rapidly.
Of course, all this has really done is increase attention to all of this (gee... doesn't that sound familiar?) and create more people mocking Erdogan and his thin skin. Bruno Kramm, the head of the German Pirate Party, went to the Turkish Embassy in Berlin and conducted a "literary analysis" of Bohmermann's satirical (if over the top) poem -- leading to Kramm being taken into custody by the police.
The Turkish consulate in Rotterdam has urged Turkish nationals to report examples of president Recep Tayyip Erdogan being insulted and denigrating comments made about Turks in general, Dutch media say on Thursday afternoon.
Various Turkish organisations in the Netherlands have been emailed by the consulate, urging them to make a note of the insults. The call comes a day after the Dutch government said it would scrap legislation which makes insulting a friendly head of state a criminal offence.
And, it appears, the Turkish authorities are not messing around. Just as all of this was happening, Turkish police arrested a Dutch journalist, Ebru Umar, who was vacationing in Turkey, but who had just written a column critical of Erdogan (and had criticized Erdogan's supporters on Twitter). If Erdogan thinks this will actually suppress criticism, it appears he may have miscalculated. The biggest newspaper in the Netherlands released Monday's paper with a giant caricature of Erdogan as an ape crushing free speech:
And, that's not all. The Turkish consulate in Switzerland has filed an official complaint about an art exhibit in Geneva because, it turns out, Switzerland has a law like Germany and the Netherlands. It's quite amazing how Erdogan became such an expert on these laws in Europe so quickly...
The Genevan authorities have confirmed that they have received a complaint from the Turkish consulate to Switzerland. Just like Germany, Swiss law contains a clause prohibiting insults towards foreign leaders.
The offending photograph is part of an exhibition from photographer Demir Sonmez. The photo in question shows a protest in Istanbul in which a banner proclaims that Erdogan was responsible for the death of a teenager.
Thankfully, it does not appear Erdogan has discovered a similar such law over in the UK, where The Spectator has launched a contest asking for the most offensive and insulting poetry about Erdogan. The prize is £1,000 (and, I assume, a lifetime ban from visiting Turkey).
Meanwhile, back in Turkey, a court in Istanbul has told the editor-in-chief of a local publication, Cumhuriyet, that he must pay approximately $10,000 for "insulting public figures" because the publications released some details on a probe into corruption. But the guy, Can Dundar, is still facing other charges around "espionage, attempting to overthrow the government, and revealing state secrets." He may be sentenced to life in prison for that. So, yeah, as amusing as this is from miles away, actual people doing basic things like reporting on facts are facing their entire lives being destroyed.
In the end, a quote from a Turkish expat, Orhan Selim Bayraktar, living in the Netherlands and working for the main opposition party to Erdogan's made the most sense -- asking why someone so thin-skinned is in politics at all. As Bayraktar told Sputnik News:
"If the president does not want to be criticized and insulted, he should leave the political arena. Because for me, as a politician, it's obvious that if you choose to enter politics, you will have enemies who will insult you, and friends who praise you. If you cannot get used to this, you have no business being in politics. The Turkish president should abandon the persecution of his own citizens. He must serve as the guarantor of our freedoms, instead of assisting in their limitation."
Seems like common sense. But there's apparently no room for that in Turkey.
from the insulting-organs-or-representatives-of-foreign-states dept
Techdirt has been following with interest the ways in which the delicate sensibility of Turkey's President, Recep Tayyip Erdoğan, is being wounded. First there was Gollum; then the filing of 1,845 cases of allegedly insulting the Turkish President; and finally, a mild satirical video that Erdoğan didn't want you to see. The last of these not only caused the Streisand Effect to kick in with a vengeance, but has provoked a German comedian to take things up a notch, as reported here by the Guardian:
In a short clip from a late-night programme screened on the German state broadcaster ZDF at the end of last month, comedian Jan Böhmermann sits in front of a Turkish flag beneath a small, framed portrait of Erdoğan, reading out a poem that accuses the Turkish president of, among other things, "repressing minorities, kicking Kurds and slapping Christians while watching child porn".
Exactly as Böhmermann doubtless intended, this has caused a huge political stink. The broadcaster ZDF took down the video, and the German Chancellor, Angela Merkel, told Turkey's prime minister that the poem was a "deliberately offensive text" that she personally disapproved of. Most significantly, the Turkish government has filed a formal request for Böhmermann's prosecution. So what? you might ask. Germany isn't Turkey, and so surely there's no way that somebody would be prosecuted just for a few rude lyrics about a foreign leader. Well, it turns out that's not the case:
On 6 April it emerged that Germany's state prosecutor was investigating Böhmermann for violation of the little-used paragraph 103 of the criminal code, which concerns insulting organs or representatives of foreign states. At worst the comedian was facing a prison sentence of up to three years.
Although some people in Germany have condemned Böhmermann for being coarse, an attention-seeker and even racist, Merkel does not want to be seen as a world leader who harms freedom of speech:
In a government press conference on Monday, [Merkel's spokesperson] Seibert said Merkel wanted to make it unequivocally clear that freedom of speech was "naturally the highest good", irrespective of whether she considered a satirical piece "tasteful or tasteless".
On the other hand, Merkel desperately needs Turkey's help in dealing with the huge numbers of refugees from the Middle East flooding into southern Europe. A deal between the EU and Turkey has been agreed to help address this problem, although doubts remain about whether it is a realistic solution. In any case, Erdoğan is in a very strong position -- and knows it. This really puts Merkel and the German government on the spot, and it will be intriguing to see how -- or even if -- they manage to reconcile the conflicting pressures.
A few months back we noted that various German publishers, including publishing giant Axel Springer kept suing adblockers, claiming they were illegal... and they kept losing. AdBlock Plus notes that German publishers are now 0 for 5 as yet another legal challenge to ad blocking has been rejected:
We received news late last week that we’d won our fifth straight lawsuit in Germany. This time it was brought by one Germany’s top newspapers, the Süddeutsche Zeitung (think a German version of the New York Times), and it follows victories over Axel Springer, RTL Interactive, ProSieben/Sat1 and Zeit/Handelsblatt. (That’s a veritable who’s who of old guard German publishing btw.)
The setting was Munich this time round, but the outcome was the same as the four times previous: it is indeed legal for users to block ads and our Acceptable Ads initiative is not a detriment for publishers but rather a potential benefit to them.
The judge clearly recognized the issues, noting that there's no contract between users and a site that requires them to view ads, no matter how much publishers may want to pretend that what they refer to as a "social contract" is somehow a legal contract. The court also, rightly, noted that the law is not designed to pump up a business model that is failing, and that it's up to the publishers themselves to create better business models.
Even though we're a publisher who relies on ads for some of our revenue, we've never been shy about recognizing that ad blockers are an essential form of freedom for users, to control what goes into their computers, and an important security tool as well. Would our own lives be easier if ad blockers didn't exist? Perhaps. But, as always, the onus needs to be on us to build business models that work, and not rely on forcing people into doing things they're not comfortable doing.
The sooner more publications realize this, the sooner we can get past the broken system we have of online advertising today.
It's kind of catchy, honestly. But would anyone really be talking about it if Erdogan and the Turkish government hadn't freaked out about it? This is The Streisand Effect in action. A total nothing of a mocking video that very few people would have cared about if Erdogan hadn't turned it into an international incident, which in turn makes the video news. As of this writing the video is quickly approaching a million views, and I imagine it'll end up with quite a bit more than that before long.
And imagine how much more effective it would have been if Erdogan and the Turkish government (a) ignored the video or (b) laughed it off? Instead, in freaking out about it, it only makes people think that it's worth taking seriously.
Back in 2010, there was a troubling ruling in Germany, saying that people who ran open WiFi access points needed to secure them, or they could be held liable for people using those connections to download infringing content. This seemed to contradict with the European Ecommerce Directive that gives safe harbors to internet service providers (similar to our DMCA safe harbors in the US). In the fall of 2014, we noted that the EU Court of Justice was taking up that case and now that court's Advocate General has recommended that the court allow open WiFi, in saying that, yes, those who operate WiFi access points can be considered ISPs under the law, and are thus protected from liability.
The specific case involved a shop owner (who also happens to be a Pirate Party member -- and whose shop offered lighting and music equipment for music events), who had an open WiFi access point in the shop, where someone apparently downloaded some music. Sony then sued him and argued he was liable for having the open WiFi.
A lot of the focus was on whether or not offering a free WiFi access point in a shop counted as economic activity, to be covered by the Ecommerce Directive, and the Advocate General said that it pretty obviously is, despite the fact that Sony Music argued it did not.
In my view, where, in the course of his business, an economic operator offers Internet access to the public, even if not against payment, he is providing a service of an economic nature, even if it is merely ancillary to his principal activity.
The very operation of a Wi-Fi network that is accessible to the public, in connection with another economic activity, necessarily takes place in an economic context.
Access to the Internet may constitute a form of marketing designed to attract customers and gain their loyalty. In so far as it contributes to the carrying on of the principal activity, the fact that the service provider may not be directly remunerated by recipients of the service is not decisive. In accordance with consistent case-law, the requirement for pecuniary consideration laid down in Article 57 TFEU does not mean that the service must be paid for directly by those who benefit from it.
Sony Music’s argument, by which it disputes the fact that the service in question is ‘normally’ provided for consideration, fails to convince me.
Admittedly, Internet access is often provided, in a hotel or bar, free of charge. However, that fact in no way contradicts the conclusion that the service in question is matched with a pecuniary consideration that is incorporated into the price of other services.
I see no reason why the provision of Internet access should be viewed differently when it is offered in connection with other economic activities.
Sony Music even tried to claim that because the shop owner at one point changed the name of the access point to "Freedom, not Fear" (in German) that it demonstrated that it wasn't an "economic" effort. The Advocate General then explains to Sony Music the difference between "free as in speech and free as in beer."
Mr Mc Fadden probably changed the name of his Wi-Fi network to ‘Freiheitstattangst.de’ (freedom, not fear) so as to show his support for the fight against State surveillance of the Internet, that fact in itself has no bearing on the definition of the activity in question as ‘economic’.
And, based on that, the safe harbors should apply, and someone who operates an open WiFi network, as part of a business, can't be forced to lock it up.
Still, the AG does still suggest that injunctions could be possible, just not to the level of password protecting the access point. The opinion suggests that injunctions can be put in place if they are "effective, proportionate and dissuasive" and that they be targeted at specific infringement, rather than a general kind of injunction. And even with an injunction, the access point owner should still not be considered liable for user actions.
Another key point raised in the opinion is that open WiFi has plenty of value, and to argue that all WiFi should be locked up, or that open WiFi is just a tool for infringement is unfair:
First, public Wi-Fi networks used by a large number of people have relatively limited bandwidth and are therefore not particularly susceptible to the risk of infringement of copyright protected works and objects. Secondly, Wi-Fi access points indisputably offer great potential for innovation. Any measures that could hinder the development of that activity should therefore be very carefully examined with reference to their potential benefits.
Of course, as this is just the opinion of the Advocate General, the EU Court of Justice could still go in another direction. It quite frequently does accept the AG's opinion, but does not always do so. Hopefully, this time, it listens.