Chile Leads The Way On Intermediary Liability Protections

As Techdirt reported, the European Commission is conducting a major consultation on the "procedures for notifying and acting on illegal content hosted by online intermediaries" that could radically affect the liability of online service providers in the European Union. Other parts of the world are doubtless examining this area too, and one at least -- Chile -- has already come up with a novel approach. 

On Techdirt.

EU Official Caught in the ACTA

As more and more people write about the global scandal that is ACTA, a question naturally forms itself: is it worth it? After all, however many times people ask for more transparency, or attempt to probe what exactly is going on and going into ACTA, all we get are the usual fob-offs: maybe it's time to give up?

I don't think so.

In what seems to be a case of constant dripping wearing away the stone, more and more tiny informational breakthroughs are occurring that together are beginning to reveal the bigger picture. Here's the latest one:

An upcoming global trade agreement on copyright and counterfeiting, known as ACTA, will not rewrite EU rules on the liability of internet service providers, a leading European Commission official told EurActiv, denying media reports that suggest otherwise.

Oh, no? So why have we got the wrong impression?

The leading Commission official said media reports were oversimplifying the Anti-Counterfeiting Trade Agreement (ACTA), which wrapped up one stage of a series of negotiations in Mexico last week.

Oh, I *see*: those naughty journalists have been "oversimplifying* things. Mind you, that's quite an achievement, since they are essentially "oversimplifying" nothing, which is more or less what the ACTA negotiators have so far deigned to distribute to hoi polloi.

But then we get a little more detail on why ACTA will not "rewrite EU rules" on ISP liability:

A leaked Commission paper on ACTA in October allegedly showed that negotiators at the global talks were attempting to rewrite current EU rules on the liability of internet service providers (ISPs) for pirated content on their networks.

The official denied those allegations and added that under the EU's eCommerce laws, ISPs can already be held liable for content on their network if they do not meet certain requirements.

For example, if an ISP is defined as a "mere conduit," a carrier of content, then it is not responsible for pirated content if it does not "initiate or modify" it and has no say on where it ends up, the official explained.

Ah-ha: what this reveals is that the reason ACTA won't "rewrite" the rules is because the rules are *already there*, according to this interpretation: ACTA will simply foreground them. It's tacitly admitting that there are latent ACTA-like provisions in the eCommerce laws; the big difference is that ACTA will activate them, so to speak.

In which case we need to look carefully at what exactly those laws say to find out whether that "mere conduit" definition is quite so, er, water-tight as the EU official would have us believe. [Added: more specifically, as Rui Seabra points out on Twitter, "ISPs technically initiate [and] modify many connections."]

If this is new information, as it seems to me, it shows the virtue of pressing ACTA officials again and again, because they often let slip what seem to them to be insignificant information that is actually more important than they realise.

Follow me @glynmoody on Twitter or identi.ca.

Should Software Developers Be Liable for their Code?

Should Microsoft pay for the billions of dollars of damage that flaws in its software have caused around the world? It might have to, if a new European Commission consumer protection proposal becomes law. Although that sounds an appealing prospect, one knock-on consequence could be that open source coders would also be liable for any damage that errors in their software caused....

On Linux Journal.

German Court Gets It Badly Wrong

Bad decision, bad news:

the Court states that operators of Internet forums are liable for all comments posted there, even if the operator has no knowledge of their content.

OK, we'll just close the Internet down, then.

Alan Cox Stands up for Closed Source

These aren't words you'd expect to issue from the mouth of one of the most senior Linux hackers:

Cox said that closed-source companies could not be held liable for their code because of the effect this would have on third-party vendor relationships: "[Code] should not be the [legal] responsibility of software vendors, because this would lead to a combinatorial explosion with third-party vendors. When you add third-party applications, the software interaction becomes complex. Rational behaviour for software vendors would be to forbid the installation of any third-party software." This would not be feasible, as forbidding the installation of third-party software would contravene anti-competition legislation, he noted.

But, of course, he's absolutely right - which emphasises how lucky we are to have someone as sane as Alan representing the free software community when too many self-styled supporters present quite a different image.