Control Freaks

A Swedish court has thrown out a request for a retrial by the four men behind The Pirate Bay website.

The four were found guilty of promoting copyright infringement in April and face jail sentences and hefty claims for damages.

The Pirate Bay's lawyers called for a retrial when it emerged that one of the judges in the case belonged to several copyright protection groups.

The Svea Court of Appeal said Judge Tomas Norstrom should have declared that he was a member of the Swedish Association for the Protection of Industrial Property and the Swedish Copyright Association before the case went to trial: The fact that he failed to shed light on this does not however mean that there was any wrongdoing during the proceedings that would require a retrial. This was not a case of bias.

No appeal is allowed against the judgement.

In response to the ruling Peter Sunde said The Pirate Bay would now file charges against Sweden for violating the human rights of the defendants.

Japan has toughened up its copyright law, making it illegal for users to download material that has not been uploaded with the permission of rights holders.

The Recording Industry Association of Japan (RIAJ) lobbied for the amendment to existing legislation, which was passed by the country's parliament.

The changes, which go into effect on Jan. 1, 2010, do not prescribe specific fines or jail time for violations. Also, those accused must be proven to have known the files downloaded were uploaded illegally.

Alongside the Digital Britain's headline announcement of a £6 tax per year for each landline, there was some more sinister messages concerning digital piracy. It appears as though the mafia are starting to get their own way a bit more with ISPs set to be mandated by Ofcom to provided a substandard service to alleged pirates (shouldn't be too hard for Tiscali to provide such a service!).

So that's the Government forcing individual households to lose a service they pay for due to allegations supported by evidence that almost certainly wouldn't stand up in a court of law. 1984, anyone?

Utter hypocrisy from Labour again. When BT and Phorm broke UK and EU legislation the Government were nowhere to be seen (and even colluded with Phorm in rewriting guidance on the matter), but a few people share some Britney songs and the Government feel compelled to step in and legislate. And we wont even go down the whole "benefit cheats steal money from the taxpayer and we are going to be taught and slap them in jail" quotes from MPs who committed fraud on their expenses.

The rights holders believe that every pirated song is a lost sale. It isn't and been proved as such. Research has shown, the people who pirate the most, also spend the most on music. Techies will move to getting their pirated material across obfuscated or untraced networks.

Basically:

Carter: Rights holders report file sharers, send letters and throttle Internet access. How do you like that?
Pirates: OK we'll use USENET, VPN, Darknets and obfuscated protocols.
Your move Carter.
Carter: Fuck!

Anyway, BIS (formally BERR formally DTI) are running a consultation on this at:
www.berr.gov.uk/consultations/page51696.html

Three strikes is out in France. And probably dead, too. After being passed last month by French lawmakers, the graduated-response HADOPI law has been ruled unconstitutional by the nation's Constitutional Council.

HADOPI, named for the high authority organization that would administer the law, would force Internet service providers to cut-off access for accused copyright infringers after the third warning was issued.

The Register reports the court said the law conflicted with France's 220-year-old 1789 Declaration of the Rights of Man and Citizen, articles 5, 9 and 11.

Freedom of expression and communication is all the more valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and that attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued, the council wrote.

So now, the law exists, but is toothless; entertainment rights organizations may still send out letters, as they have in the past to alleged copyright violators, but cannot threaten an ISP service cut-off and will have to pursue other legal means.

TorrentFreak notes that France's HADOPI also ran counter to the European Parliament, which found that that disconnection of accused infringers violates fundamental rights and freedoms of Internet users. The Constitutional Council did state that an Internet connection may be severed if a court rules that the accused actually conducted illegal file-sharing.

But the battle for Internet control in France isn't over yet. The government is also seeking to pass LOPPSI, a bill designed to filter Web content.

Sweden's Pirate Party, which wants an internet file sharing free-for-all, is one of the surprise entrants to the European Parliament after winning 7.4% of the vote.

The party, which also wants to beef up internet privacy, was founded in January 2006 and quickly attracted members angered by Swedish laws that criminalise file sharing and authorise the monitoring of e-mails. Its membership shot up after a court in Stockholm sentenced four men in April to a year in jail for running one of the world's biggest file sharing sites, the Pirate Bay. Voters had their revenge last night by electing at least one of the Pirate Party as an MEP.

They have been very lucky because the Pirate Bay verdict came at the same time as the start of the election campaign, but I think the Pirate Party had the potential to grow anyway, said Ulf Bjereld, a political scientist at Gothenburg University: The Pirate Party has taken advantage of a new cleavage in Swedish politics, about civil liberties, about who should have the right to decide over knowledge, and that's not a left-right cleavage. The traditional parties have been sleeping, they have underestimated the political potential in these issues.

The European Parliament has cast its final vote in favor of an amendment that will prevent member states from implementing three-strikes laws. Disconnecting alleged file-sharers based on evidence from anti-piracy lobby groups restricts the rights and freedoms of Internet users, according to the amendment.

In a vote, 407 Members of Parliament voted in favor of the amendment  while only 57 were opposed. The amendment of the Telecoms package is now likely to be signed into law.

This is a step in the right direction, and it clearly goes against Sweden’s IPRED and France’s HADOPI laws. Let’s hope this will at least prevent other member states of the EU following the lead of these two countries.

France's anti-file sharing legislation is back on the table in France as debates began again Wednesday in the nation's parliament.

The provisions of the latest submission would create a state-run agency to first warn users by e-mail if found guilty of engaging in Web copyright violations, followed by a certified postal letter if violations continue and then, suspension of Internet service. The previous bill would've made users continue to pay for service, but has now been removed from the law's language.

Opponents argue the new Internet Piracy Bill is intrusive, violates citizen privacy, would be difficult to put in place, is easy to get around by savvy Web users and sharing sites, and also would generate no new revenue for the artists, producers or telcom companies saddled with overseeing Internet suspensions. There are also concerns regarding those accused of piracy who may well be innocent, hackers using their service, yet still find their Internet service cut off.

Taiwan has just approved new legislation which effectively bans the use of P2P technology to facilitate the distribution of copyrighted works online. The legislation also requires ISPs to start a ‘3 strikes’ regime for file-sharers.

Taiwan passed revisions to its copyright laws which hit file-sharing pretty hard. The amendment makes it a crime to use P2P technology to facilitate the distribution of copyrighted works online, which sounds like pretty bad news for Taiwanese torrent sites who previously operated in a legal gray area.

For ISPs, the legislation provides a double-edged sword. The plus side is that in future ISPs will be exempt from taking responsibility for the copyright infringing actions of their customers, under a DMCA-style ’safe harbor’ provision, coupled with a ‘takedown’ system for alleged infringing content.

The downside is ISPs will have to introduce a ‘3 strikes’ regime for subscribers accused of infringement by copyright holders. After the third ’strike’, the ISP can take a range of measures against the user including throttling or disconnection.

It's possible to use Apple's iPods and iPhone with third-party software, and BluWiki's users wanted to make sure the world could find out how.

Apple, however, was not fond of the situation and threatened BluWiki with legal action if the information was not removed.

Now, BluWiki's operators are suing Apple in hopes of protecting the free speech of their users and getting a declaratory judgment that posting information does not violate the DMCA.

BluWiki, like most wiki platforms, is open to the public for the sole purposes of sharing information. In November of 2008, Apple's team of lawyers sent OdioWorks a letter demanding that the pages (referred to as the "iTunesDB Pages") be removed from BluWiki lest the company be faced with further legal action. Apple accused OdioWorks of disseminating information to circumvent Apple's DRM and enabling copyright infringement by hosting the pages on iTunesDB, which Apple believed was in violation of the anti-circumvention provisions of the DMCA.

OdioWorks complied with the request at that time, but says that it takes the First Amendment rights of its users very seriously. Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussion, OdioWorks owner Sam Odio said in a statement.

Wikis and other community sites are home to many vibrant discussions among hobbyists and tinkerers, added EFF Senior Staff Attorney Fred von Lohmann: It's legal to engage in reverse engineering in order to create a competing product, it's legal to talk about reverse engineering, and it's legal for a public wiki to host those discussions.

Update: Suit Filed

7th June 2009. See article from kpbj.com

The Electronic Frontier Foundation (EFF) have now filed suit against Apple to defend the First Amendment rights of an operator of a noncommercial, public Internet "wiki" site known as BluWiki.

EFF and the San Francisco law firm of Keker & Van Nest represent OdioWorks LLC, which runs the BluWiki website. Like many "wiki" platforms, such as Wikipedia, it is open to the public for collaborative authoring and editing on any topic. The site is entirely noncommercial, operated by OdioWorks as a public service.

Late last year, after BluWiki users began a discussion about making some Apple iPods and iPhones interoperate with software other than Apple's own iTunes, Apple lawyers demanded removal of the content. In a letter to OdioWorks, the attorneys alleged that the discussions constituted copyright infringement and a violation of the Digital Millennium Copyright Act's (DMCA's) prohibition on circumventing copy protection measures. Fearing legal action by Apple, OdioWorks took down the discussions from the BluWiki site.

OdioWorks filed the lawsuit in order to vindicate its right to restore those discussions. Filed in federal court in San Francisco, the suit seeks a declaratory judgment that the discussions do not violate any of the DMCA's anti-circumvention provisions, and do not infringe any copyrights owned by Apple.

I take the free speech rights of BluWiki users seriously, said Sam Odio, owner of OdioWorks. Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussions.

Update: Suit Withdrawn

15th July 2009. See article from arstechnica.com

Apple has officially backed off from legal threats made against OdioWorks, the operator of a wiki that hosted pages discussing how users might use an iPod with non-Apple media software.

Apple has now decided that the iTunesDB pages ain't no thang anymore—but not because of people's First Amendment rights. Apple has stopped utilizing the code in question, rendering the code obsolete for the purposes at issue in this action. Publishing that code is no longer of any harm or benefit to anyone, read an Apple's letter. Given this change of circumstances, Apple no longer has, nor it will have in the future, any objection to the publication of the iTunes DB Pages.

Apple decided to call off the dogs only because the code is now obsolete; what will happen when users inevitably start talking about Apple's new code and trying to get the Palm Pre to work with iTunes again?

Associated Press has announced an initiative to protect online versions of its news content from what it called misappropriation by a variety of online news outlets.

AP Chairman Dean Singleton said the news syndicate would pursue legal and legislative remedies against entities that it believes are unfairly borrowing its content.

At the heart of the AP's complaint are websites that provide editorial services to users by picking out and featuring the day's most important, interesting or sensational stories.

The Drudge Report, a news site with a conservative bent, is one of the Web's most successful aggregation sites; the Huffington Post provides a similar service for liberal-minded readers.

But it's Google News, the search giant's automated and constantly updating digital front page, whose relationship with the AP and its member newspapers is so complicated that distinguishing the harms from the benefits may be a matter of perspective.

From one viewpoint, Google News has been a boon to the imperilled newspaper industry, driving huge numbers of readers to the websites of the publications whose stories it features. Google also pays an undisclosed fee to the AP for the use of its material.

But just as a newspaper reader may casually glance at headlines without reading every story, readers of Google News may go to the site specifically to scan the news without clicking through to the originating site. Google News recently started running ads.

AP will now try to create a system for tracking the use of its content online. But no matter the implementation, attempts to police content on the Internet are both costly and leak-prone, especially for news articles, in which the underlying facts are not subject to copyright.

The French government have now passed a "three strikes" law against Internet violators who file-share and download or upload copyrighted material.

According to the bill, known as Hadopi -- as it proposes a High Authority for the Diffusion of Oeuvres and the Protection of Rights on the Internet -- a new government agency, Haute Autorité (High Authority), will be established to monitor and investigate file-sharing complaints made by copyright holders.

If the agency rules that infringement occurred, it will send out a warning letter to the Internet service account holder, also suggesting they check if their connection -- especially via WiFi -- is secure as hijacked service will not be a defence. A second letter will follow if there's another offence within a year. And if there's a third, the government body can order the Internet Service Provider to cut off access.

The new agency will also have wide berth with regard to who gets cut off and for how long. However, businesses will get a pass if the offender is an employee, a move that may not pass muster with the French constitution, just as the EU Parliament ruled that approach violates established civil and privacy laws.

TechDirt notes that perhaps the oddest part of the law is the Hallyday Clause , named for senior citizen French rocker Johnny Hallyday, a tax-dodging expatriate in Switzerland since 2006. The portion of the bill that uses his name says that downloading copyrighted material of those sheltered from taxes by living outside France or not properly paying taxes will bring a lesser punishment than downloading artists who fulfill tax obligations.

Internet traffic in Sweden fell by 33% as the country's new anti-piracy law came into effect, reports suggest.

According to figures released by the government statistics agency - Statistics Sweden - 8% of the entire population use peer-to-peer sharing. Popular BitTorrent sharing site, The Pirate Bay, is also based in Sweden.

The new law, which is based on the European Union's Intellectual Property Rights Enforcement Directive (IPRED), allows copyright holders to obtain a court order forcing ISPs to provide the IP addresses identifying which computers have been sharing copyrighted material.

Figures from Netnod, a Swedish firm that measures internet traffic in and out of the country, suggest traffic fell from an average of 120Gbps to 80Gbps on the day the new law came into effect.

Speaking to the BBC, Christian Engstrom, vice-chairman of the Swedish Pirate Party - said the drop in traffic was a direct result of the new law, but that it would only be a temporary fall: Today, there is a very drastic reduction in internet traffic. But experience from other countries suggests that while file-sharing drops on the day a law is passed, it starts climbing again. One of the reasons is that it takes people a few weeks to figure out how to change their security settings so that they can share files anonymously.

Engstrom acknowledged that the new legislation would scare a number off file-sharing, and that the odds of getting caught had increased, but said that the risks to illegal file-sharers were still quite low.