Control Freaks

A French anti-piracy bill that would punish Internet users who illegally download music, films or video games by cutting off their web access, faces a tough parliamentary battle this week.

Record and film industry executives back President Nicolas Sarkozy's government over the bill, saying the crackdown will help protect the creative industries whose sales have been slashed by online piracy.

Under a three-strikes system, illegal downloaders would be sent two warnings, by e-mail then registered letter, after which they would lose their Internet connection for up to a year if they are caught again.

The bill would create a new state agency to track and punish suspected file sharers, acting on tip-offs from music and film companies and with the help of ISPs.

The bill faces a stormy battle when it goes before the lower-house National Assembly from Wednesday, with Socialist lawmakers denouncing the new surveillance measures as an assault on public and individual liberties.

Suspected offenders, the Socialists complain, would be cut off before having a fair chance to challenge the accusations. Opponents warn the bill could unfairly punish businesses or families if the downloading is done by an employee or a child. Others have attacked the suggestion that universities, libraries or cafes with Wi-Fi Internet points could block access to downloading websites, saying it amounts to censorship.

Consumer group UFC-Que Choisir has dubbed the bill a monstrosity , while dozens of French websites have launched a black-out operation in protest.

France's culture ministry expects the new High authority for copyright protection and dissemination of works on the Internet (Hadopi) to send out up to 10,000 warnings a day. Ultimately, it expects up to 1,000 people a day could face access bans.

An online campaign to protest against moves to block access to certain websites by Irish ISPs gets under way today.

Blackout Ireland is encouraging Irish internet users to contact their service providers and Minister for Communications Eamon Ryan to voice their opposition to the planned restrictions which are being spearheaded by the Irish Recorded Music Association (Irma).

Internet users are also being asked to black out their profile pictures on social networking sites such as Twitter, Bebo, Facebook and MySpace for a week to show support for the campaign.

Irma, which represents EMI, Sony, Warners and Universal, has begun contacting ISPs asking them to sign up to an agreement similar to the one made with Eircom as part of an out of court settlement in a recent copyright infringement case. Under the agreement, record companies will give Eircom the IP addresses of those they say are illegally uploading or downloading copyrighted works. Eircom has agreed to warn users to cease copyright infringement, and will ultimately disconnect subscribers who ignore the warnings under a three strikes and you're out policy.

Eircom also agreed not to oppose moves by the industry group to block access to websites such as The Pirate Bay, which is the subject of court action in Sweden. The Swedish website provides links to music, films and other content that can be downloaded by third parties. Irma is trying to get other ISPs to agree to similar measures.

Blackout Ireland says it is a group of Irish internet users concerned by the prospect of Ireland having a censored internet. We do not think private companies should be allowed dictate what websites the Irish people are allowed to visit, its website says.

The campaign is inspired by a similar one in New Zealand.

News articles based on a survey indicating public opposition to Phorm's web snooping and advertising system have been withdrawn after the firm made legal threats to their publishers.

The independent consumer watchdog Which? sent a press release to newspapers earlier this week entitled Internet users say: Don't sell my surfing habits. It detailed survey findings that UK internet users are opposed to plans by BT, TalkTalk and Virgin Media to monitor and profile their browsing in collaboration with Phorm.

The findings contradicted market research repeatedly cited, but not published, by Phorm that the majority of people want the more relevant web experience it claims its Webwise -branded technology will provide.

The Which? survey was covered by the Press Association, Channel 4 News, The Telegraph, and The Daily Mail. The press release, however, was swiftly followed by a retraction of the press release.

The Press Association, Channel 4 News and Telegraph stories have all been removed whilst the Daily Mail has edited its story to online to remove all references to the negative survey findings.

A Phorm spokesman said that the survey had been based on inaccurate information and that the press release itself contained inaccuracies. It repeatedly stated the Webwise system collects and sells on data which is misleading. We also wouldn't allow the creation of advertising channels on sensitive subjects such as for medical products.

The Irish ISP Eircom has caved in to the pressure of the music industry, and without any argument will block all file-sharing related websites - starting with The Pirate Bay.

Last month, Eircom announced that at the behest of the music industry it will disconnect customers who are allegedly sharing copyrighted material. Initially the ISP planned to stand up for its customers in court. However, it didn't have the courage of its convictions and the case was aborted. Capitulating to the music industry's demands, Eircom agreed to start disconnecting those accused of illicit file-sharing.

But that wasn't enough. Now the industry wants more and is ordering Eircom to block access to any sites it wants blocked. And it doesn't end there.

Smelling blood, the music industry is ratcheting up the pressure and they are now demanding that all ISPs censor the Internet by blocking access to all file-sharing related websites.

And the worrying news is it's already a partially done deal. The Irish Recorded Music Association (IRMA) has already convinced Eircom to comply, and is warning the other Internet providers in Ireland that they should follow suit, or face legal action.

Late last year, Wikileaks obtained a copy of one of the copyright infringement letters sent by the infamous law firm Davenport Lyons. The law firm, at the time, had been sending tens of thousands of these letters which threatened to take the recipients to court if they don't pay just over £500.

The law firm is now actively trying to censor the letter itself claiming that the letter is protected under British copyright law.

The legal threat letters themselves contain a file hash value, and IP address and a time stamp that is being used as evidence – flimsy evidence according to many people who have observed the legal side of file-sharing. The reason it is seen as flimsy is that many files may have the same hash value. Second of all, there is no evidence provided that verified that the file name matched what the actual work was. For all we know, it could have been a 5 minute porn clip rather than a music video. Thirdly, there's no evidence to suggest that an IP address is linked to an individual. The computer could be used by someone other than the owner of the connection. There could be a wifi connection that other users, including unauthorized ones, could be using that IP address. Finally, a time stamp doesn't contribute much into proving that a copyrighted work has been uploaded.

One might argue that the reason that Davenport Lyons don't want the letters published in the first place is because they don't want their letters subject to public or any real legal scrutiny. It's much easier to attack a single individual singled out rather than attacking a single individual with the public sphere watching. It's little wonder why the copyright industry has been seen as a bully throughout the years really. If they truly feel they are in the right, why the need to hide their activities in the first place?

The shutdown of Napster forced the development of decentralized networking. When targeting centralized networks no longer bore fruit, the entertainment industry tried flooding networks with corrupt files. When the file-sharing community responded with verified files, lawsuits became the norm. When lawsuits failed to make a dent in the P2P population, the next great vision of copyright enforcement came forth: 3 strikes and you're outta here!

France was the first country to drive this policy forward. While the 3 strikes policy has yet to become law in France, New Zealand was the first to sign it into law. The domino effect extended to Italy, which has indicated a willingness to follow the French model.

Ireland's largest ISP Eircom was forced into a similar agreement, when it finally relented to the IFPI. It appears the ISP was attempting to put up a legal fight, but settled 8 days into litigation. It was the first time an ISP was sued for copyright infringement and forced to adopt the policy.

In Germany, the tide appears to be turning decidedly against the entertainment industry. As reported by P2P Blog.com and the German blog Spreeblick, German ISPs are breathing a sigh of relief after an statement from Secretary of Justice Brigitte Zypries sided with their cause.

I don't think that (Three Strikes) is a fitting model for Germany or even Europe. Preventing someone from accessing the Internet seems like a completely unreasonable punishment to me. It would be highly problematic due to both constitutional and political aspects. I'm sure that once the first disconnects are going to happen in France, we will be hearing the outcry all the way to Berlin.

In a few weeks time, members of the European Parliament will vote on the Medina report, which proposes a wide range of anti-piracy measures and regulations. The report specifically mentions The Pirate Bay , and it approves actions by national courts against the popular BitTorrent tracker.

The proposals in the report, drafted by the Spanish socialist Manuel Medina Ortega, show many similarities to the wish lists of the RIAA, IFPI and MPAA. The report calls for more responsibility and liability for ISPs, while copyright infringing content has to be filtered from the Internet.

Even though the European Parliament has voted against so called three-strikes proposals twice before, this is also suggested as a viable measure against piracy. It's proposed that ISPs should disconnect subscribers who share copyrighted content, based on information provided by the entertainment industry.

In addition, national courts are encouraged to take action against BitTorrent sites such as The Pirate Bay . Apparently, the report deems BitTorrent sites to be illegal - which is a bold statement without any legal backup. Last year, Italy imposed a nation wide block on The Pirate Bay, but this was reversed in court due to a lack of jurisdiction; this might change if the new proposals are adopted.

In a draft of the report we read The activities of websites that are part of the peer-to-peer phenomenon and which allow downloading of protected works or services without the necessary authorisation are illegal, and no exception can be applied to them. So the activity of internet users who send files to their peers must be regarded as an illegal act of communication to the public without the possibility of exceptions being applied.

Of course, we encourage all of our European readers to write to their representatives in the European Parliament, as this is clearly not the right path to take.

The Premier League will this summer face a potentially devastating challenge in the European courts, after lawyers said there was a strong possibility that the little-noticed case would undermine the principle that UK landlords must pay Sky or Setanta for the right to show live football in their pubs.

Legal experts said that the case, the latest round of a long-running battle with publicans over showing overseas broadcasts, could overturn the basis on which the Premier League sells its TV rights.

Last year, the high court passed a test case involving several UK publicans to the European Court of Justice for advice. It is due to reach a decision by the summer.

European law prevents pirated decoder cards being used to access broadcasts illegally. But the publicans will argue that their decoders were legitimately bought in Greece and imported by a distributor. Under free-trade laws, they will argue that they should be allowed to import decoders and cards from other member states. Lawyers at Denton Wilde Sapte said the challenge was significant.

The firm's senior associate Alex Haffner said: The strong possibility of the ECJ and the UK high court finding in favour of the publicans is a direct challenge to the right to license media rights on a territory-by-territory basis and to the willingness of pay-TV operators to pay handsomely for exclusive rights within their markets.

The Premier League is expected to argue that if the ECJ finds in favour of the publicans it would destabilise the market and disadvantage consumers. It is expected to argue that the devices are obtained using false names, and point to links with organised crime. If it were to lose the case, then not only would pubs be able to avoid paying an average of ฃ9,000 a season to showSky and Setanta matches, with a knock-on effect on the amount broadcasters were prepared to pay.

Based on article from morningadvertiser.co.uk

But in the meantime it's the enforcers that are adopting the intimidatory language of organised crime.

Anti-money laundering laws will be used to pursue foreign satellite suppliers that let pubs show football, under new plans. That’s according to a new chief at the agency that probes the screenings in pubs. Retired policeman David Eyles also revealed that prosecutions are currently being brought against up to 30 licensees for screening games via foreign satellites.

Eyles, operations director at Media Protection Services (MPS), was the director of operations at the Metropolitan Police Clubs and Vice Unit until December. Eyles said the Proceeds of Crime Act 2002 will be used to trace and seize assets from foreign satellite suppliers, if licensee Karen Murphy loses her case at the European Court of Justice (ECJ). To use the 2002 Act, it must be shown that income from suppliers was generated by criminal activity. He said the process of prosecuting licensees is on-going, with case papers being brought against around 30 hosts for using non-EU cards to screen games last football season.

MPS boss Ray Hoskin said there were plans to recruit others with similar background to Eyles.

Apple Inc has agreed to start selling digital songs from its iTunes store without copy protection software.

At present, most music downloaded from Apple's iTunes store can only be played through an iTunes PC program or iPod.

The new agreement with Sony BMG, Universal, and Warner Music will end digital rights management (DRM)software currently attached to iTunes music.

By the end of this quarter, all 10 million songs will be DRM free according to Phil Shiller, Apple's senior vice president of worldwide product marketing: Over the last six years songs have been $0.99 [79p]. Music companies want more flexibility. Starting today, 8 million songs will be DRM free and by the end of this quarter, all 10 million songs will be DRM free .

Apple has also revised its pricing structure, offering a two-tier system with songs available for $0.69 and The better quality iTunes Plus   at $1.29 (will be 99p in the UK).

The move could potentially spell the end for DRM limited music, which was never popular with users or the record industry.

Next month, New Zealand is scheduled to implement Section 92 of the Copyright Amendment Act. The act provides Guilt Upon Accusation, which means that if a file-sharer is simply accused of copyright infringement, they are immediately guilty. The punishment - summary Internet disconnection.

However draconian other country's 3 strikes policies are, they are nothing compared to the proposed Section 92 of the Copyright Amendment Act in New Zealand. Scheduled for introduction at the end of February 2009, the act assumes that any individual simply accused of sharing copyright works on the Internet, is guilty. The punishment for guilty is summary disconnection from the Internet.

Understandably, this proposal hasn’t been well received by many outside of the entertainment industries. One group voicing dissent is the Creative Freedom Foundation. On January 2nd the group launched with the aim to unite artists who are against the removal of New Zealander’s rights through proposed changes in Copyright law, done in the name of protecting creativity.

Foundation Co-Founder and Director, Bronwyn Holloway-Smith is strongly opposed to Section 92, which she says threatens Internet disconnections without evidence or even a trial. The result of this law could be that one rogue employee or even one virus infected computer could bring down a whole organization’s internet and it’s highly likely that schools, businesses, hospitals, and phone services will be harmed by this.

Hollyway-Smith warns that as the government has shown support for the bill, unless there is a major public protest against it the proposals will roll over into law - just 54 days from now. To this end, the foundation has started a petition and campaign against the Guilt Upon Accusation laws, called Not in my Name . The petition can be signed on the Creative Freedom Federation website.

Update: S92A Not to be Repealed

1st February 2009

The new National government finally made their intentions clear: they will stick with S92A, removing New Zealander's right to due process and court trial before being found guilty.

Communications and Information Technology Minister Stephen Joyce announced that the government would take no action to repeal the law.

It seems that NZ is the only one remaining willing to punish citizens before a trial and before any evidence has been held up to court scrutiny.

Ars Technica are reporting that FCC Chairman Kevin Martin has declined to accept the MPAA’s request to allow selectable output control flags in streaming content during his tenure.

This is an undeniable win for consumers, as potentially up to 20 million HDTVs could have suddenly stopped working for new on-demand movies had the FCC gone the other way.

Further, it poses little to no additional piracy threat to movie studios, since the proposed release timeline would have been months after those movies already became available on other publicly-accessible pirate outlets.

Selectable output control (SOC) is a technology that would restrict a consumer’s ability to use particular output plugs on their devices for certain types of content. For example, a movie studio could stop you from using your composite jacks to view a legally purchased on-demand movie over cable.

In his press conference, Chairman Martin acknowledged the analysis, indicating that he … wasn’t ready to move forward with [SOC] in light of some of the concerns that were raised by the public interest groups.

Update: Selectable Output Control Freakery

8th February 2009:  See article from arstechnica.com

It looks like Hollywood's bid to take over your home video system got a second wind this week. On Tuesday two top executives from Sony Television and Sony Pictures, accompanied by an influential lobbyist, met with the Federal Communications Commission to talk up (PDF) "the advantages of expanded consumer choices in the marketplace" which would supposedly come with a waiver on the agency's ban on Selectable Output Control. That bright idea originates with the Motion Pictures Association of America.

Update: Trying again under Obama

5th September 2009:  See article from arstechnica.com

Hollywood's bid to force a yet-to-be-agreed-upon number of households to buy new home theater gear is back in business.

The Motion Picture Association of America has once again asked the Federal Communications Commission for the right to selectively control output streams to the TV entertainment systems of consumers. The pro-consumer purpose (!) request is to enable movie studios to offer millions of Americans in-home access to high-value, high definition video content, three MPAA biggies explained during a meeting they recently held with seven FCC Media Bureau staffers.