Brazil Drafts An 'Anti-ACTA': A Civil Rights-Based Framework For The Internet

One of the striking features of the Anti-Counterfeiting Trade Agreement is that it is mainly being signed by Western/“developed” countries – with a few token players from other parts of the world to provide a fig-leaf of nominal inclusiveness. That's no accident: ACTA is the last-gasp attempt of the US and the EU to preserve their intellectual monopolies – copyright and patents, particularly drug patents – in a world where both are increasingly questioned. 

On Techdirt.

German Politician Who Wanted Two-Strike Copyright Law Should Disconnect Himself After Multiple Infringements Found

One of the most noticeable trends in copyright law around the world is the way countries tend to adopt similar approaches. So after the "three strikes" law was introduced in France, the UK followed suit, and other nations are at various stages of doing the same. A cynic might almost suggest the whole thing was coordinated somehow. 

On Techdirt.

The Great Copyright Conspiracy Laid Bare

My last post might have seemed slightly over the top - and indeed was meant to be.  After all, it's not as if the US really wants to subvert the entire edifice of European civil liberties simply to sell a few more albums and films, is it?

Well, those cables have delivered again, and suggested that is *precisely* what is going on here:

Among the treasure troves of recently released WikiLeaks cables, we find one whose significance has bypassed Swedish media. In short: every law proposal, every ordinance, and every governmental report hostile to the net, youth, and civil liberties here in Sweden in recent years have been commissioned by the US government and industry interests.

I can understand that the significance has been missed, because it takes a whole lot of knowledge in this domain to recognize the topics discussed. When you do, however, you realize that the cable lists orders for the Swedish Government to implement a series of measures that significantly weakens Sweden’s competitive advantage in the IT field against the US. We had concluded this was the case, but had believed things had come from a large number of different sources. That was wrong. It was all coordinated, and the Swedish Government had received a checklist to tick off. The Government is described in the cables as “fully on board”.

Since 2006, the Pirate Party has claimed that traffic data retention (trafikdatalagring), the expansion of police powers (polismetodutredningen), the law proposal that attempted to introduce Three Strikes (Renforsutredningen), the political trial against and persecution of The Pirate Bay, the new rights for the copyright industry to get subscriber data from ISPs (Ipred) — a power that even the Police don’t have — and the general wiretapping law (FRA-lagen) all have been part of a greater whole, a whole controlled by American interests. It has sounded quite a bit like Conspiracies ’R’ Us. Nutjobby. We have said that the American government is pushing for a systematic dismantlement of civil liberties in Europe and elsewhere to not risk the dominance of American industry interests, in particular in the area of copyright and patent monopolies.

But all of a sudden, there it was, in black on white.

It's a long post, from the indefatigable Rick Falkvinge, but I really urge you to read it, because it lays out in extraordinary detail how the US has pushed Sweden to meet six demands that will be all-too-familiar to readers of this blog:

1. Adopt “Three Strikes” making it possible to disconnect prople from the internet without a trial (“injunctive relief“), and implement the IPRED directive in a way that the copyright industry can get internet subscriber identities behind IP addresses (which was not mandatory, my note).
2. Prosecute to the fullest extent the owners of The Pirate Bay. (This doesn’t really need translation, except that it’s very noteworthy that the executive branch is ordered to interfere with the work of the judicial one, which is illegal in Sweden too.)
3. Transfer scarce police resources from investigating real crimes and devote them to safeguarding American monopolistic interests against ordinary citizens.
4. Take large-scale initiatives against people sharing music, movies and porn.
5.  Make it possible for the copyright industry to sue people (“pursue new civil remedies“) with a minimum of hassle.
6. Abolish the messenger immunity, making Internet Service Providers liable for copyright monopoly infractions happening in their wires, and force them to interfere with the traffic.

That is, the US has been driving the entire copyright legislation programme for Sweden.   And it would be remarkable if it had not made exactly the same demands to every other European country - indeed, we know from previous leaks that it has, at least for some of them.

In the face of this incontrovertible evidence that European governments have been abjectly serving the US government and copyright industries, not their own electorates, we must make sure that they are forced to explain this almost unbelievable betrayal of the political system that elected them, and must not allow them to pretend that nothing has happened, and that it is business as usual.

It would be nice to think that this final flood of cables from Wikileaks will clean Europe's Augean stables of all this stinking political manure, but I'm not holding my breath - just my nose....

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Why Did Wikileaks Fail New Zealand?

As I noted elsewhere, we now know that the US played a major role in pushing for tougher copyright regimes in Canada, Spain and Sweden. It seems that we must add New Zealand to the list of countries that were nobbled:

As you may recall, back in 2008, New Zealand politicians tried to sneak through a three strikes law, that would kick people offline based on accusations (not convictions) of infringement. A few months later, mainly due to massive public outcry, the government scrapped those plans and actually promised a complete rethink of copyright laws.

In a cable just after New Zealand decided to scrap the proposed law, the US embassy noted that it made it clear a new 3 strikes law needed to be put in place as soon as possible and saying that the US can help them write the new law.

...

The cables turned up a few other interesting tidbits from a bit further back, including the fact that a program -- run by the Recording Industry Association New Zealand (RIANZ) to set up a website and get people to snitch on their friends, reporting them as infringers -- was funded by the US government. Yes, the US government handed half a million dollars (New Zealand dollars) to the recording industry to get people to turn in their friends for copying music. Lovely.

Now, this is all pretty shameful stuff; but what makes it doubly so is the fact that New Zealand has recently passed precisely the kind of anti-consumer, pro-industry legislation that the US was demanding.

But consider what might have happened had these same cables surfaced *before* that crucial vote: doesn't it seem likely that quite a few New Zealand MPs would have been revolted by the massive US interference in their internal affairs? Might not enough have voted against the legislation to cause it to fall?

Maybe that wouldn't have happened, but given even the slight possibility, I have to ask why on earth Wikileaks held off publishing these cables that provided such crucial insights into what was going on behind the scenes?

Was this out of some new-found reluctance to influence the unfolding politics of a country? Given Wikileaks' track record, that hardly seems likely. Sadly, this looks more like a case of pure incompetence - only noticing what hugely important materials they had when it was too late for them to have much effect; or maybe - perhaps even worse - they just didn't care what happened in such a far-off land....

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File-sharing and the War on the Internet

Yesterday I attended the Counter Conference:

The COUNTER Project (www.counter2010.org), funded under Framework 7 of the EU SSHRC Programme, is a two year multidisciplinary project exploring the economic, legal, consumer and cultural dynamics of counterfeiting, piracy and filesharing. It aims to generate new knowledge which will contribute towards the development of evidence-based policy making at the European, national and international level. The project emphasises that effectively addressing this complex area requires a variety of strategic multistakeholder actions which recognise the importance of understanding and engaging with the psychological, social and cultural dynamics of consumer behaviour.

On Open Enterprise blog.

The Indispensable Background Twitter?

Nice observation:

The other remarkable thing that happened at the conference took place during the three-strikes session. This was a parallel session held in a very small, hot and crowded room with no more than 20 attendees. The panel included several twitterers, and the audience was clearly following what promised to be an interesting discussion. The end result pretty much exemplified to me why Twitter has become a must-have at conferences. As this was an emotionally-charged topic, the tweets emanating from the room were soon picked up by various other users, so much so that at some point we had journalists and even a Member of Parliament making comments about what was being said. What transpired in the little room spawned claims and counter-claims elsewhere, and even led to the MP asking questions via Twitter.

I might be guilty of overstating the importance of the technology, but I truly think that there is something important happening with social media. Opening discussion to the wider public is not a bad thing.

As it happens, I was there too. Since I wasn't twittering, I missed much of this, but a look at the Twitter stream afterwards showed just how much was going on. Which suggests, perhaps, that even people who were taking part needed to be on Twitter in order to take part fully. Exciting stuff.

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The Death of Open Wifi in the UK

If you needed proof that the UK government simply hasn't thought through the implications of its Digital Economy Bill, look no further than this:

Government admits cafes and open wifi providers will face disconnection but can appeal

Government notes from the Digital Economy Bill Team admit that cafes and other similar businesses will face disconnection: but say that a combination of blocking technologies and the right to appeal means they will be ok

Reading the rest of the government's reply to this point, it's clear that they simply have no idea about the technology. The fact that any blocks put on services can easily be circumvented means that open wifi will, inevitably, be used to download copyrighted material. Which means that those providing it will, inevitably, be disconnected.

This bill simply has "Fail" written all the way through it; the only good news is that once they realise the implications, the entire tourist and hospitality industries will be fighting against it...

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Three Strikes and You're *Not* Out?

Now this is rum.

A little while back, there was a petition on the 10 Downing site:

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

I didn't bother signing it because it seemed pretty hopeless in the face of the government's unbending statements on the subject. And now we have the response:

The Government wants as many people as possible to enjoy all the benefits that broadband internet can bring. New technology has changed the way people want to use and access media content, in some cases faster than products and services commercially on offer have developed. We are also clear that the benefits of the internet must include economic benefits for our creative industries and artists. We therefore take extremely seriously the problem of on-line copyright infringement, and have been working closely with rights holders, media companies and internet firms to develop practical solutions to reduce and prevent this.

Yes, yes, yes - *do* get on with it.

There then follows a long, and fairly intelligent commentary on the area and the issues it raises:

We also recognise the need to ensure proper education of consumers, for new attractive legal sources of content as well as a system of notifications. Notifications will play a significant part in that education role, but it is vital that there are attractive legal offers available so that unlawful behaviour is no longer the “default” for many seeking content on-line. Rights holders need business models which work in the new digital environment. That is why we welcomed the announcements such as the Virgin Media and Universal agreement, the development of Spotify and the music offers announced by Vodafone and Sky. These are the types of agreement which will play a critical role in moving the great majority of people away from piracy.

And then, tucked away at the end, there is this:

We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.

"We will not terminate the accounts of infringers": really? Do you think they mean it? Is it a trick? Answers on the back of a CD... (Via ZDNet UK.)

Update: Open Rights Group has a good explanation for what may be going on here: that, as usual, the UK government is simply playing with words, and has no intention of actually listening to reason... (via the Guardian.)

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Mandelson's Madness

The trajectory of the Digital Economy Bill has been extraordinary, constantly experiencing will-he-won't-he moments as successive consultations and comments and rumours have contradicted each other over whether “three strikes and you're out” would be part of the plan. Today, the Bill is finally published, but that particular element now looks almost mild compared to what is apparently coming...

On Open Enterprise blog.

Good Thoughts on Naughty Lord Mandelson

One of the heartening things about the disheartening three-strikes saga currently playing out in the UK is the quality of the opposition that has provoked. I've already tweeted today about Cameron Neylon's splendid polemic - written with a rigour that only a scientist can provide - which I strongly urge you to read.

Meanwhile, here's an important point made by Monica Horten:

What he [Lord M.] doesn't get is that the Internet is not an entertainment system. It is a public communications network. The powers that he could acquire have serious implications for civil liberties, in particular for freedom of speech. Under the UK's own Human Rights Act, freedom of speech may only be restricted where there is a genuine public interest objective, and any measures must be specific and limited.

I think this goes to the heart of the problem with Lord Mandelson's intervention: he thinks the Internet is like radio or television, and does not appreciate how much bigger it is than that. As Horten points out, the UK's Human Rights Act may well provide the coup de grâce to his plans.

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Fon and Games with "Three Strikes"

Interesting:

BT’s wifi network has reached half a million hotspots. Fon has made a major contribution toward its growth, since about 90% of the BT hotspots are BT Fon. The rate of growth is such that, together with BT, we are on the way to one million hotspots. This is the goal for February 2010.

Suppose, now, that people use some of those million hotspots to download copyright material: how easy is it going to be (a) establishing exactly who downloaded it and (b) cutting off that person?

Gives a new meaning to the term "hotspot"...

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UK "Three Strikes": Please Write to Your MP

Yesterday I wrote a quick analysis of the insane U-turn effected by the UK government over "three strikes and you're out". Below I've posted the corresponding letter that I've sent to my MP on the subject. I urge you to do the same if you're a Brit, since it's the only way we have of influencing the situation. I'm not holding my breath waiting for a result, but I feel it's my duty....

I am writing to express my deep disquiet at the UK government's U-turn over disconnecting those accused of sharing copyright materials on the Internet.

For the eminently sane and well-balanced conclusions of Lord Carter and his Digital Britain team, based on many months of hard work, to be thrown away in this manner is extraordinary. In the place of a carefully-considered view that access to the Internet is a right not to be removed lightly, and that doing so on the say-so of media companies would be an inappropriate response to alleged copyright infringement, we now have a diktat from on high that proposes precisely this punishment.

As the indecent haste clearly demonstrates, this has not been thought through.

First, it is completely disproportionate. Cutting off people's Internet connection for allegedly swapping copyright materials is not just, any more than cutting someone's electricity supply would be for watching the TV without a licence, or cutting someone's water supply off would be for brewing illegal spirits.

Secondly, it represents a fundamental assault on due process in this country. If people can be cut off from the most important communication medium of the 21st century on the whim of media companies, who don't even need to prove their accusations in court, then things have reached a pretty sorry state in this country.

Thirdly, the approach won't work from a technical viewpoint. All it means is that the more tech-savvy will start encrypting their traffic; those who can't take this route will simply buy a few huge external hard discs – ones able to hold a quarter of a million songs cost around £50 these days – and swap files personally when they visit their friends.

Fourthly, the idea is at odds with European legislation. Amendment 138 of the Telecoms Package currently being finalised in Europe forbids the cutting off of users without judicial oversight. And that's even before the ISPs start taking legal advice on other ways in which it breaks relevant laws. Moreover, the European Court of Human Rights would probably have something to say about legislation that allows what Viviane Reding has explicitly called a “fundamental human right” (http://opendotdotdot.blogspot.com/2009/05/internet-access-is-fundamental-fight.html) to be taken away so easily.

What's particularly bizarre about this move is that those who will suffer the most are likely to be traditional Labour supporters. For it is the poor who cannot afford to pay for high-priced digital downloads, and may therefore look for material on P2P networks. It is the poor who may well share an Internet across several families using a wifi connection in a block of flats, for example. If one user is accused of swapping copyright materials, several families will be severely disadvantaged – hardly something that fits with Labour's historical mission to help precisely these people.

For all these reasons - assuming this truly is a consultation and not just another rubber-stamping – I urge you to join your colleague, Tom Watson (http://www.tom-watson.co.uk/2009/08/filesharing-revised-consultation/), in passing on to Lord Mandelson and Stephen Timms the comments of myself and others who may write to you on this subject.

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The Curious Case of Karoo

Remember Karoo? They were the strange ISP in Hull that was going to put in place a *one* strike and you're out scheme for *alleged* copyright infringement. Then they changed their minds. Now it looks like they've thought about this some more:

“We will no longer suspend a customer’s service unless we receive a court order from a copyright owner taking legal action. As a result it is the responsibility of the legal system, not Karoo, to ensure the accuracy of the information provided by the copyright owners.”

I predict that this will happen increasingly, as ISPs realise the implications of what the content industries are demanding with their "three strikes and you're out" insanity. They would clearly be on very dodgy legal ground if they carried out this threat based on mere accusations. Yahoo for Karoo.

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Has HADOPI Had It?

Well, not quite, but this judgment that its sanctions are unconstitutional certainly punches its teeth out:

Le Conseil constitutionnel a censuré, mercredi 10 juin, la partie sanction de la loi Hadopi - la "riposte graduée" - sur le téléchargement illégal. Considérant qu'"Internet est une composante de la liberté d'expression et de consommation", et qu'"en droit français c'est la présomption d'innocence qui prime", le Conseil rappelle que "c'est à la justice de prononcer une sanction lorsqu'il est établi qu'il y a des téléchargements illégaux". "Le rôle de la Haute autorité (Hadopi) est d'avertir le téléchargeur qu'il a été repéré, mais pas de le sanctionner", conclut le Conseil.

[Via Google Translate: The Constitutional Council censored, Wednesday June 10, the sanction of the law Hadopi - the "graduated response" - on illegal downloading. Considering that "the Internet is a component of freedom of expression and consumption", and "french law is the presumption of innocence which prevails, the Council recalled that" it is justice impose a sanction if it is established that there are illegal downloads.""The role of the High Authority (Hadopi) is to warn the downloader has been spotted, but not to punish,"]

So what will that nice M. Sarkozy do now?

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"Internet Access is a Fundamental Right"

Not my words, but those of a certain Viviane Reding (NB: MS Word document):

The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process.

Surprising news that Amendment 138 was put *back* in its original, stronger form, is welcome indeed, although it looks like the technicalities of net neutrality were beyond the MEPs. Still, kudos to the latter for standing up against the "three strikes" legislation: it's a good start, and an excellent sign for the future.

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Last Chance to Save the European Internet

Believe it or not, this saga isn't over, and things are going badly again. The Open Rights Group has a good detailed summary of what's happening, but the short version is this: all of the hard-won victories on the Telecoms Package may come to nought in a vote tomorrow through some outrageous bullying and trickery by national governments (especially UK and France.)

This means we need to write - or, better, phone - our MEPs, and get them to vote as follows:

Here are crucial amendments you should tell MEPs to vote for:

* Trautmann's report
o Amendment 3=7: guarantee of access and distribution of any content/application/service
o Amendment 1CP=2=5=6=9: original 138

* Harbour's report
o Amendment 101=111=117: no discrimination in traffic management policies
o Amendment 102=112=118: regulatory powers against discriminated traffic management policies
o Amendment 62=94=104=119: original 166
o Amendment 96=106=120 : deleting cooperation between ISP and copyright holder about lawful content

As you can see, this has become hideously complicated thanks to the constant to-ing and fro-ing of votes and amendments. Perhaps it's simplest to ask them to vote for the "Citizen's Rights Amendments", and emphasise why it's important to do so. Basically, if they don't, we'll lost net neutrality in Europe, and also the right to judicial reviews before people are thrown off the net on the say-so of companies.

MEPs by country, complete with their direct telephone numbers, can be found on the excellent Quadrature du Net site, which has bags of background info. In the UK, you can find out who your MEPs are by entering your postcode into the WriteToThem service.

Update: This rather poorly-written piece ("digital copyright thieves"? - Sorry, you don't understand the law) suggests that a deal has been done:

Last month, MEPs voted for a bill that read: “No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities.” But, facing opposition from the Council Of Ministers, they on Tuesday rewrote the passage to read: “Recognising that the internet is essential for education and for the practical exercise of freedom of expression and access to information, any restriction imposed on the exercise of these fundamental rights should be in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms.”

This is particularly nauseating:

“The spirit of the amendment has been respected ... we have avoided the rejection of the amendment.” Trautmann said the compromise writes a “sense of a principle” in to the bill.

No, you just gave in to bullying, love.

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Taiwan Adopts "Three Strikes" Law

Bad news, bad law:

The Legislative Yuan ratified yesterday the latest revision of the Copyright Law to empower Internet service providers (ISPs) to "strike out" Internet surfers who have violated others' copyrights and posted unauthorized content on any Web sites.

The new rules will exempt the ISPs from any responsibility for offenses caused by pirating parties in order to avoid litigation by copyright owners.

But the service providers will be obliged to inform the pirating parties about the infringement on the copyrights.

They can suspend part or all services to the pirates after giving three warnings.

The pirates will still face lawsuits from the copyright owners.

No details on whether this needs judicial oversight, but don't hold your breath...

Battle for the Soul of the European Internet

Even though the internet is 40 years old, and the Web 20, it's only in the last couple of years that European politicians have started to take a deep interest in its workings – and implications for society. However, the flurry of activity we have seen in recent months more than makes up for that long neglect....

On Open Enterprise blog.

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French "Three Strikes" Law Unexpectedly Thrown Out

In an incredible turn of events, the French HADOPI legislation, which seemed certain to become law, has been thrown out:

French lawmakers have unexpectedly rejected a bill that would have cut off the Internet connections of people who illegally download music or films.

On Open Enterprise blog.

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HADOPI Law Passed - by 12 Votes to 4

What a travesty of democracy:

Alors que le vote n'était pas prévu avant la semaine prochaine, les quelques députés présents à l'hémicycle à la fin de la discussion sur la loi Création et Internet ont été priés de passer immédiatement au vote, contrairement à l'usage. La loi a été adoptée, en attendant son passage en CMP puis au Conseil Constitutionnel.

On peine à en croire la démocratie dans laquelle on prétend vivre et écrire. Après 41 heures et 40 minutes d'une discussion passionnée sur le texte, il ne restait qu'une poignée de courageux députés autour de 22H45 jeudi soir lorsque l'Assemblée Nationale a décidé, sur instruction du secrétaire d'Etat Roger Karoutchi, de passer immédiatement au vote de la loi Création et Internet, qui n'était pas attendu avant la semaine prochaine. Un fait exceptionnel, qui permet de masquer le nombre important de députés UMP qui se seraient abstenus si le vote s'était fait, comme le veut la tradition, après les questions au gouvernment mardi soir. Ainsi l'a voulu Nicolas Sarkozy.

...

Quatre députés ont voté non (Martine Billard, Patrick Bloche et deux députés non identifiés), et une dizaine de mains se sont levées sur les bancs de la majorité pour voter oui. En tout, 16 députés étaient dans l'hémicycle au moment du vote.

[Via Google Translate: While the vote was not expected until next week, the few members in the chamber at the end of the discussion on the Creation and Internet law were invited to proceed immediately to vote, contrary to custom.The law was passed, until it passes then CMP in the Constitutional Council.

It is difficult to believe in democracy in which we aim to live and write. After 41 hours and 40 minutes of passionate discussion on the text, there remained only a handful of courageous members around 22:45 Thursday evening when the National Assembly decided, on the instructions of the Secretary of State Roger Karoutchi to pass immediately to vote on the Creation and Internet law, which was not expected before next week. One exception, which allows you to hide the large number of UMP deputies who would have abstained if the vote had been, as tradition dictates, after the government issues Tuesday night. Thus wished Nicolas Sarkozy.

...

Pack is voted. Four members voted no (Martine Billard, Patrick Bloche and two unidentified deputies), and a dozen hands were raised on the banks of the majority to vote yes. In all, 16 MPs were in the chamber for the vote.]

So one of the most important, and contentious piece of legislation in recent years is passed by trickery. In this way, those pushing this law have shown their true colours and their contempt for the democratic process.

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