copyright

In the digital era, copyright should be implemented in a way which benefits creators and society. It should support cultural work and facilitate access to knowledge. Copyright should not be used to lock away cultural goods, damaging rather than benefitting access to our cultural heritage. Copyright should be a catalyst of creation and innovation. In the digital environment, citizens face disproportionate enforcement measures from states, arbitrary privatised enforcement measures from companies and a lack of innovative offers, all of which reinforces the impression of a failed and illegitimate legal framework that undermine the relationship between creators and the society they live in. Copyright needs to be fundamentally reformed to be fit for purpose, predictable for creators, flexible and credible.

22 Oct 2014

ENDitorial: Malmström – Always there to protect US

By Joe McNamee

Now that Commissioner Cecilia Malmström will be taking over as the EU’s Trade Commissioner, and as the Commissioner in charge of negotiating the controversial TTIP trade deal with the USA, it is a useful time to cast our minds back to her achievements as Commissioner with responsibility for Home Affairs in the European Union.

Commissioner Malmström’s generosity when negotiating with the United States is, to say the least, very consistent. The deal she reached with Australia on processing and storing of passenger name records (PNR) allows processing with regard to crimes that have a minimum four year jail term. She agreed to only three years in a similar deal with the United States. In the deal with Australia, the data must be deleted after five and a half years. She generously agreed to the data being stored for a full ten years in the agreement with the United States. This does leave one question, however: If storing the data for five years is all that is needed, how can it be necessary, proportionate and, therefore, legal, to agree to 10-year data retention with the USA? Now, despite the lack of evidence of usefulness and proportionality, and despite the European Court’s ruling that long-term, suspicionless storage of EU citizen’s data is contrary to EU law, a new Directive on EU PNR Data has been proposed by Malmström’s services and a push is expected shortly to have it adopted by the European Parliament.

Malmström’s reaction to allegations of abuse of financial data of EU citizens shared with the US authorities was perfectly consistent with her generosity in the PNR agreement. In 2013, reports revealed by the German news magazine Der Spiegel indicated that the USA was tapping European data stored by the inter-bank financial telecommunication company SWIFT. Subsequently, the European Parliament voted by majority to suspend the agreement for financial data sharing (“TFTP agreement”) with the United States. The Commissioner leapt into action, politely asking the US if they had breached the agreement. As the US denied the claims, the Commissioner felt that no further action was needed, and so none was taken.

In 1999, US President George W. Bush asked the EU to introduce mandatory retention of communications data “to permit the retention of data for a reasonable period”. Thanks to the tireless work of the UK government in the subsequent seven years, the US got its wish and the EU introduced the Data Retention Directive. In 2009, Commissioner Malmström took responsibility for the Directive. Before her services had a chance to collect any analysis from Member States, without any evidence to back up her position, Commissioner Malmström, who took a personal oath to uphold the European Charter of Fundamental Rights, made her position very clear: “We have to recognise that data retention is here to stay, and for good reasons. Access to telecommunications data are, at least in some cases, the only way of detecting and prosecuting serious crime. And in some cases it can be vital to exclude individuals from crime scenes and clearing them of suspicion. We do need data retention as an instrument to maintain security in our Member States.” Subsequently, Commissioner Malmström, who took a personal oath to act independently in her function as Commissioner, added that she believed that Member States would “not accept any proposal to abolish it.”

It subsequently transpired that she ignored specific legal advice from inside the Commission that the Directive was illegal. Having chosen not to propose either repeal or reform of the Directive, once the Court of Justice of the European Union (CJEU) ruled this year that the data retention directive was incompatible with European law, Malmström inexplicably declared that the judgment confirmed “the critical conclusions in terms of proportionality of the Commission’s evaluation report of 2011 on the implementation of the data retention directive”.

More worryingly, bearing in mind her new function as Commissioner responsible for negotiating with the USA on the TTIP proposals, documents recently made public by EDRi-member Access indicate that Malmström actively conspired with the US authorities to undermine or delay the draft reform of the EU’s data protection reform package – weeks before any elected European politician received an official copy of the proposals.

Finally, Malmström’s cooperation with the USA on internet blocking deserves a mention. In 2012, she was convinced by the US to jointly launch a “global alliance against child pornography”. This encourages, among other things, the promotion of “voluntary” internet blocking, outside any legal framework, by the governments involved. Turkey, that has repeatedly been condemned for excessive and unclear blocking obligations accepted the invitation to join. Malmström confirmed at the press conference launching the event that Russia had been invited, but declined to join. Coincidentally, Netclean, one of the leading internet blocking/filtering companies is heavily promoted by Swedish politicians (and the Swedish Queen). Coincidentally, Turkey has agreed to invest heavily in Netclean products and has, even since signing up to the Global Alliance, been condemned again by the European Court of Human Rights for its excessive, disproportionate blocking practices.

Agreement between the EU and Australia on the processing and transfer of PNR data (13.09.2011)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010093%202011%20INIT

Agreement between the USA and the EU on the use and transfer of PNR to the US Department of Homeland Security (08.12.2011)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2017434%202011%20INIT

European Union set to vote on data law – George W. Bush’s request for data retention (13.11.2001)
http://www.nytimes.com/2001/11/13/technology/13NET.html

Legal advice against data retention (23.08.2012)
http://www.vorratsdatenspeicherung.de/images/2012-08-23-dg-just-on-data-retention.pdf

European Commission Press Release: EU-US agreements: Commission reports on TFTP and PNR (27.11.2013)
http://europa.eu/rapid/press-release_IP-13-1160_en.htm

A global alliance against child sexual abuse online
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/global-alliance-against-child-abuse/index_en.htm

Malmström acknowledges validity of compromising document (08.10.2014)
https://www.accessnow.org/blog/2014/10/08/malmstroem-acknowledges-validity-of-compromising-document

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22 Oct 2014

Balancing rights (unless we are talking about copyright)

By Diego Naranjo

Recently Google was asked (spiced up with a threat of a 100 million dollar lawsuit) by an attorney representing “over a dozen” celebrities to take down pictures of his clients which had been hacked from their respective iCloud accounts and published in different websites.

Google quickly reacted removing those pictures from its blogging and social media services, although the attorney still complained saying it took too long and that the delay had led to Google making millions “profiting from the victimisation of women”. It is to be noted that Google’s explanation to remove the pictures was because of the “community guidelines and policy violations (e.g. nudity and privacy violation) on YouTube, Blogger and Google+”. In reality, nothing really matters except copyright – because Google will always automatically delete content, if they receive a valid notice under US law. Unsurprisingly, therefore, Google added that, concerning the search engine, they remove images when they receive “valid copyright (DMCA) notices”.

When a copyright complaint was made about illegally copied naked pictures of celebrities, Google, consistent with its policy, rapidly de-indexed the content in question. When Google received a Tweet indicating that a trade-mark was the subject of an unfair search result in Google image search, it resolved the problem within 59 minutes. When Mario Costeja González reported an unfair search result, it took over four years and appeals to the highest EU court before Google could be persuaded to take action.

Sadly, the concept is spreading that, if you cannot assert their rights through copyright or trademark rights, you are a second class citizen. The current Italian Presidency of the Council of the European Union also follows this logic. A “paper” sent by the Presidency on 11 September to Member States on enforcement of copyright and other rights suggested various measures that could be imposed by intermediaries – such as “know your customer”, “follow the money” and a more expansive use of injunctions. So, when such measures are used to enforce copyright, they are acceptable and collateral damage to fundamental rights of citizens can be ignored.

But the Italian Presidency decided to follow Groucho Marx’ famous statement “these are my principles; if you don’t like them I have others”. In a subsequent communication from 29 September, the Italian Presidency urged a balancing of rights when dealing with Data Protection matters in the so-called “right to be forgotten”. Delegations worried, it explained, that the “interest of the public at large to have access to information may end up being “underweighted” in the balancing process by the controller in particular where the latter is a search engine”. It is definitely important to ensure that fundamental rights are not “underweighted”, but it is important that this happen in relation to all fundamental rights. Otherwise when laws need to be enforced in the EU we would end up with two different categories of rights.

Enforcement of intellectual property rights – Presidency paper (11.09.2014)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013076%202014%20INIT

Comments from the Italian Presidency on the right to be forgotten and the Google judgment (29.09.2014)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013619%202014%20INIT

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22 Oct 2014

Web-blocking in Austria – law with the law taken out

By Joe McNamee

Following the European Court of Justice ruling on the UPC Telekabel v Constantin in April 2014, Austrian internet access providers have started “blocking” several websites. In the case in question, the Court established that an injunction may be imposed on an internet access provider (ISP) “prohibiting an internet service provider from allowing” its customers access to a website “when that injunction does not specify the measures which that access provider must take”.

The Court made its ruling on the basis of EU legislation from 2001. Faced with the impossible task of implementing legislation which is wildly out of date, the Court had an impossible task.

The 2001 Copyright in the Information Society Directive establishes that injunctions must be possible against intermediaries whose services are being used by a third party to infringe copyright or a related right (Article 8.3 of Directive 2001/29/EC). However, since that Directive was adopted, the Court has developed a substantial body of case law determining that laws imposing excessive filtering or monitoring are in breach of the European Charter of Fundamental Rights. So, as the European legislator has abdicated responsibility for this issue for the past 13 years, how was the Court going to implement a law that is no longer fit for purpose?

As the Court understands that it is not actually possible for an Internet Service Provider not “to allow” a customer to access a particular website, a different solution had to be found. The solution was a non-specific injunction. The European Court ruled that national courts can simply ask internet access providers to… well, do things,.. “reasonable” things… to make it difficult… or difficult enough… to stop its customers for accessing specific online resources. The access provider can then “avoid incurring coercive penalties for breach of that injunction” by showing that it has taken all reasonable measures”.

To “avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures”, the ISP must guess what measures are good enough to satisfy a court in the future and then impose these measures.

But what about if the internet access provider takes measures that are excessive? What about if the measures infringe its customers’ fundamental rights to privacy and freedom of communication? Well, the European Court ruled that the measures imposed by the internet access provider are only permissible if they “do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available”.

This, then, leaves just one question – what happens if the Internet Service Provider changes its terms of service in a way that does unnecessarily deprive internet users of the possibility of lawfully accessing the information available? Well, the access provider is not subject to the Charter of Fundamental Rights and so is not clearly breaking the law – although if someone has the financial means to do so takes a case, if a clear causality between the injunction and the restrictive measure can be drawn and if the national court agrees that the ISP’s enforcement measures are indeed disproportionate, then it is possible that a national court may eventually rule that the measure is excessive and demand that it be brought to an end. If there was no specific national law prohibiting the measure imposed by the ISP, it could not, obviously be held liable for breaking a law that did not exist, however.

The national court is imposing an injunction which is explicitly permitted by the European Court, so it is clearly acting within the law. The European Court of Justice is the EU’s highest court and therefore the options for appeal are very limited. In other words, the citizen has rights, the rights would be infringed and somehow, nobody is would be liable for this.

Consequently, that just leaves the Member States and European Commission – are they at fault for not establishing clear limits as to what sort of enforcement mechanisms may be imposed by intermediaries that are asked to balance enforcement rights with citizens’ rights? Well, the Italian presidency of the EU seems to think so. In a recent paper on the Google/Spain case, it stated that “…some delegations have referred to the risk that the freedom of expression, and the interest of the public at large to have access to information may end up being “underweighted” in the balancing process by the controller in particular where the latter is a search engine.”

In sum, the Member States are clear. Yes, there is currently a gap in European law because, in such an exercise, the citizens’ rights are “underweighted”. An upcoming “Council Conclusions” document is now set to confirm that the Council of the European Union doesn’t care – promoting rather than restricting the role of intermediaries in “balancing” rights and obligations in the digital environment. Will the new Commission care, when it takes office in November? Time will tell.

Italian Council document (29.09.2014)
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013619%202014%20INIT

European Court ruling: 2001 Copyright in the Information Society Directive
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

UPC Telekabel v Constantin case (27.03.2014)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=149924&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=103318

Provider must block pirate sites (only in German, 03.10.2014)
http://derstandard.at/2000006347840/Provider-muessen-unverzueglich-Piratenseiten-kinoxto-und-movie4-sperren

Austrian provider blocks streaming portals (only in German, 06.10.2014)
http://www.heise.de/newsticker/meldung/Oesterreichische-Provider-sperren-Streaming-Portale-2412254.html

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22 Oct 2014

France to follow Turkey’s lead on lawless Internet censorship

By Kirsten Fiedler

Despite many setbacks, bad publicity, budget cuts and a change of government, France is persisting with its Hadopi, a “three strikes law” and government agency to enforce copyright laws and fight online “piracy”. Even more worrying, the country’s Minister of Culture is now making moves to curb online rights even further.

In the past years, the budget of the Hadopi agency has slowly been reduced from 12 to 6 million euro for 2015 which will obviously have consequences for the capacity of the institution and the handling of the graduated response system. Faced with this challenge, the agency’s President Mireille Imbert-Quaretta held a meeting with the Minister of Culture, Fleur Pellerin, to discuss the agency’s report from May 2014
and the agency’s future.

As in the previous year, the agency’s report includes a longs wishlist of privatised enforcement measures. These include a review of the status of intermediaries, an introduction of a “notice and stay down” system as well as non-generalised filtering measures that rightsholders claim to be in line with the Scarlet/Sabam decision of the Court of Justice of the EU.

And the cosy meeting was all it took. During a session of the cultural affairs committee of the National Assembly on 14 October, the Minister of Culture Fleur Pellerin announced to be ready to renegotiate the budget of the agency. She even seems to be planning the creation of a new set of tasks for the Hadopi, such as the maintenance and publication of blacklists of allegedly illegal websites. In response to a question from a Member of Parliament regarding the Hadopi report, the minister responded:

There is a certain number of things in this report that appear to be extremely interesting and sensible. The Hadopi could probably implement certain of them. I’m now looking at those that would need legislative modifications or an inter-ministerial dialogue with the Minister of Justice. For example, the establishment and the publication of blacklists appear to be perfectly in line with the competencies of the Hadopi.

On the surface, the goal appears to be to educate the user of the sites to avoid visiting “illegal” websites. However, this proposal becomes more interesting when looking at it from a technical and legal perspective. According to the e-commerce directive and Article 6 of the French Confidence in the Digital Economy Act (loi sur la confiance dans l’économie numérique) intermediaries are not responsible if they are passively allowing the transfer of content between third parties. However, once the intermediary obtains actual knowledge of content which is declared “manifestly illegal” by the Hadopi agency, it would become liable if it is not acting fast enough to block access to such content.

More worrying still is the fact that the establishment of such blacklists by an administration (instead of on the basis of a court decision) strongly resembles censorship measures made in Turkey where a state agency – and not court orders – would determine the legality of a website. A similar system in Italy is now the subject of a review by the Constitutional Court.

Hadopi report: Operational tools to prevent and fight against online counterfeiting (only in French)
http://static.pcinpact.com/medias/rapport-outils-operationnels-fevrier-2014-vd.pdf

NextInpact: Fleur Pellerin promises backlists and a shining future for Hadopi (only in French, 15.10.2014)
http://www.nextinpact.com/news/90423-fleur-pellerin-promet-listes-noires-et-vie-en-rose-a-hadopi.htm

EDRi: After 3 Years: French authority Hadopi keeps proving its uselessness (23.10.2013)
https://edri.org/after-3-years-french-authority-hadopi-keeps-proving-its-uselessness/

EDRi: Hadopi wants to turn to privatised enforcement measures (13.03.2013)
https://edri.org/edrigramnumber11-5hadopi-wants-privatised-law-enforcement/

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22 Oct 2014

Macedonian investigative magazine fined in defamation case

By Heini Järvinen

On 27 September, 2014, the Skopje Court of Appeals, Macedonia, confirmed the decision of a lower court, and ordered a critical independent magazine “Fokus” to pay a nearly ten thousand euro fine to a high government official for defamation. The ruling was another setback to country’s media freedom.

Sasho Mijalkov, the Director of the Security and Counter-Intelligence Directorate, and a cousin of Macedonia’s Prime Minister Nikola Gruevski, sued Fokus in January 2013 for defamation after it had published an article including a statement by Igor Ilievski, Macedonia’s former ambassador to the Czech Republic, suggesting Mijalkov’s involvement in various forms of corruption. The court ruled the magazine’s editor-in-chief Jadranka Kostova to pay 5000 euro, and journalist Vlado Apostolov 1000 euro to Mijalkov for non-pecuniary damages, and to jointly cover court costs of 3300 euro. The average monthly net salary in the country is around 350 euro.

The Association of Journalists of Macedonia (AJM) condemned the verdict, arguing that that it is unfair, directed against critical journalism, and in breach of the Defamation Law in Macedonia. AJM pleaded with Mijalkov to waive the 6000 euro fine. He did not respond directly to the appeal, but announced through his lawyer that the money he would receive from the journalists would be donated to an orphanage.

On 8 October, AJM started a fundraising appealing to journalists and citizens to help the two journalists to pay the fine, which is risking to cause financial ruin both for the journalists and their families, as well as the magazine. Fokus is one of the few publications in the country continuing to publish investigative pieces. The editor-in-chief of the magazine has publicly stated that they have been forced to institute self-censorship, to avoid lawsuits for defamation, such as this one, that threaten to destroy the its finances. The call for solidarity highlights the importance of the support of the press and public to safeguard the freedom of expression in the country. On 21 October, less than two weeks after the launch of the fundraising, AJM announced that the target sum covering the fine and the court costs had been nearly reached.

Macedonian investigative magazine “Fokus” fined thousands of euros in defamation case (16.10.2014)
https://www.ifex.org/macedonia/2014/10/16/fokus_magazine/#.VEDHKRT-3YA.twitter

Call for solidarity for journalists of Macedonian weekly “Focus” (08.10.2014)
http://www.znm.org.mk/drupal-7.7/en/node/805

Macedonian appellate court confirms defamation verdict for independent magazine (07.10.2014)
http://globalvoicesonline.org/2014/10/07/macedonian-appellate-court-confirms-defamation-verdict-for-independent-magazine/

Macedonian Court Fines Journalist and Magazine for Quoting Source (23.02.2014)
http://globalvoicesonline.org/2014/02/23/macedonian-court-fines-journalist-and-magazine-for-quoting-source/

Critical Macedonian weekly faces “draconian” fine (20.01.2014)
http://www.balkaninsight.com/en/article/critical-macedonian-weekly-faces-draconian-sentence

EDRi-gram: Macedonian media freedom in freefall (12.03.2014)
https://edri.org/macedonian-media-freedom-freefall/

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22 Oct 2014

EU Parliament promises a better document register

By Guest author

In 2011 the Foundation for a Free Information Infrastructure (FFII) discovered that some European Parliament decisions regarding the ratification of the Anti-Counterfeiting Trade Agreement (ACTA) were not recorded in any known document. A hidden class of documents (“coordinators’ minutes”) seemed to exist, but the Parliament denied their existence. The FFII filed a complaint with the European Ombudsman.

The Ombudsman found a systemic failure regarding the listing of documents in the Parliament’s registry. In response, the Parliament took measures to better comply with EU law. However, the Parliament’s measures are still limited as it did not take measures to ensure all its documents are properly registered. Questions remain.

The European Parliament has committees, which usually meet in public and produce committee minutes. In each Committee, each political group has one “coordinator” and the coordinators are collectively responsible for preparing Committee meetings. The coordinators meet behind closed doors and can take certain decisions, such as which Parliamentarian is responsible for each political file. The FFII requested minutes of coordinators’ meetings, but the Parliament denied the existence of these minutes. If it were correct that there were no minutes, this would mean that certain decisions of the Parliament were not recorded in any way.

On 1 February 2012 a complaint (262/2012/OV) was filed by FFII to the European Ombudsman against the European Parliament for systematically lying about the existence of documents. The Ombudsman formulated the complaint as follows:

“Parliament should register all existing Parliament documents in its electronic Register of documents, in particular the minutes of the meetings of Parliament Committee Coordinators.”

In its draft decision the Ombudsman found a “systemic failure by Parliament to mention, in the public register of documents, the existence of a whole series of documents that relate to the work of Members of the European Parliament (MEP)”, and found that the failure amounts to an instance of maladministration, and recommended: “When minutes of meetings of Committee Coordinators are drawn up, Parliament should include the minutes in its public register of documents and make them, in principle, directly accessible, in accordance with Article 12 of Regulation 1049/2001″.

It is important to note that the draft decision is more limited than the original claim. The claim stated “Parliament should register all existing Parliament documents”, but the draft decision only refers to coordinators’ minutes.

The Parliament stated that the recommendations or decisions adopted by the coordinators will be included in the public committee minutes.

The European Ombudsman announced in its decision closing the inquiry into complaint as follows: “Parliament has taken appropriate measures to implement the Ombudsman’s draft recommendation,” and added a further remark: “In the light of Parliament’s positive reply to the draft recommendation, the Ombudsman trusts that, for the sake of consistency with its new policy adopted after the draft recommendation, Parliament will include in its public register existing minutes of meetings of Committee Coordinators adopted during the 2009-2014 parliamentary term.”

The Parliament declared that “in principle the committee secretariats will not prepare any separate minutes of coordinators’ meetings”. But many questions remain unanswered. What will happen if they act contrary to the principle, if they do prepare separate minutes? Will the document(s) be recorded in the register of documents? The Legal Affairs committee made a coordinators’ workspace, accessible only to the coordinators, political advisers working with the committee on Legal Affairs and the staff of the secretariat. Are the documents in this workspace recorded in the register of documents? Are coordinators’ notes recorded in the register, or is this a hidden class of documents? How many committees have a coordinators’ workspace? And are there any further “walled gardens” out of sight of the registry?

EU Parliament promises to better register its decisions (14.10.2014)
http://acta.ffii.org/?p=2252

Decision of the European Ombudsman closing the inquiry into complaint 262/2012/OV against the European Parliament (06.10.2014)
http://www.ombudsman.europa.eu/cases/decision.faces/en/57773/html.bookmark

European Parliament / Register of Documents: 2014 – Finalised minutes – Committee documents
http://www.europarl.europa.eu/RegistreWeb/search/typedoc.htm?codeTypeDocu=TPVD&year=2014

Maladministration complaint against the European Parliament (01.02.2012)
http://acta.ffii.org/?p=1103

(Contribution by Ante Wessels, EDRi-member Vrijschrift and FFII, The Netherlands)

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22 Oct 2014

Google pushes forward with its voluntary pro-copyright policing

By Joe McNamee

For the past number of years, Google has chosen to impose US copyright law on the world, completely de-indexing any website which fulfils the non-judicial criteria of a valid order under American law. Last year alone, it removed 222 000 000 links, which means 74 links per second. In addition to applying US copyright law globally, it also applies national law nationally. So, Google will also delete or de-index in any European country, on the basis of the national law of that country as well as deleting or de-indexing in any European country on the basis of US law.

In addition to this, Google also voluntarily “demotes” entire domain names that have been included in a “substantial number” of complaints that have been filed under US law. In addition, Google also contracts with US company “legitscript” to identify “bad” pharmaceutical advertising. This arrangement has been heavily criticised by Pharmacy Checker, an online pharmacy review/comparison service, which alleges various breaches of competition and ethics.

On 17 October, Google announced that it would do what it had previously claimed that it is already doing – demoting search results for entire domains in relation to which “substantial” numbers of complaints had been received under US law. They also promised not to use auto-complete of search terms in situations where those searches would have produced searches that had been accused of being in breach of US law.

The UK newspaper The Guardian also reported that UK rightsholder organisation, the British Phonograpic Industry wants Google to “remove” entire domains. So, if, for example, Tumblr or WordPress were subject to a large number of complaints, instead of de-indexing the specific Tumblr or WordPress sites that were accused of breaking US law, Google would simply make Tumblr.com or WordPress.com unfindable.

Demotion of search results – Correspondence between state attorneys general (10.12.2013)
http://s3.documentcloud.org/documents/1109251/correspondence-between-state-attorneys-general.pdf

Google to state AG’s: We’ve blocked over 3 million bad ads from “rogue online pharmacies” (20.06.2013)
http://searchengineland.com/google-response-to-mississipi-subpeona-weve-blocked-over-3-million-ads-from-rogue-pharmacies-164054

Call for an investigation of John Horton, President of LegitScript, for possible government ethics violations
http://pharmacycheckerblog.com/call-for-congressional-investigation-into-government-ethics-violations-by-john-horton-president-of-legitscript-com

Google says latest search changes will ‘visibly affect’ piracy site rankings (20.10.2014)
http://www.theguardian.com/technology/2014/oct/20/google-search-changes-piracy-rankings

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08 Oct 2014

Ex parte domain name seizures in Denmark

By Guest author

At the beginning of October, news media in Denmark reported about the seizure of the domain name raybansolbrillerudsalg.dk, which allegedly had been used for selling counterfeit products to Danish consumers. The Danish e-commerce Foundation, which administers the official Danish accreditation for safe online trading (the e-mark), has compiled a list of 1141 domains accused of selling counterfeit good to Danish consumers, and raybansolbrillerudsalg.dk is the first domain on that list to be seized by the Danish State Prosecutor for Serious Economic and International Crime (SØIK).

The domain name seizure was done in an ex parte proceeding against the Danish domain registry, DK Hostmaster, and was based on section 804(1) of the Danish Administration of Justice Act. DK Hostmaster did not provide any objections in the court case. An English translation of the court order is available at the seized domain.

Under section 804(1), a third party who is not suspected in the case, can be ordered by the court to hand over an object which could serve as evidence in a case subject to public prosecution. After considering screen dumps of the website, the court ruled that the domain name should be transferred to SØIK on grounds that the requested information may serve as evidence of copyright infringements (the design of Ray Ban sunglasses is protected by copyright).

The logic of the ruling is somewhat inconsistent. The domain name itself does not contain any evidence of copyright infringement, and by transferring the registration of the domain name to SØIK, the link to the website containing evidence of the infringement is effectively removed. This leaves SØIK with less evidence, as they now only have screen dumps rather than a domain name that routes to the actual website. Section 804(1) can also be used against a third party to ensure that a final confiscation order by the court can be enforced (assuming that the domain owner is convicted, and that confiscation of the domain is part of the punishment), but this is not mentioned in the court ruling. Moreover, a confiscation order can always be enforced since DK Hostmaster can transfer ownership of a domain at any time.

The real effect of the court order is that section 804(1) of the Administration of Justice Act is used to obtain a preliminary injunction against the website in an ex parte proceeding, where the owner of the domain cannot produce a defence. This clearly violates normal due process procedures. In this respect, the Danish court order is similar to the domain name seizures in the United States, where several hundred domains have been seized by federal authorities in ex parte proceedings.

The present case is not the first domain name seizure by SØIK in Denmark. There have been at least two previous cases, the first one in 2012, where a domain name was seized using the same legal procedure, namely the “evidence rule” in section 804(1) of the Administration of Justice Act. This list was compiled by searching for domains registered to SØIK at the Danish domain name registry. It is possible that more domains have been seized by SØIK and later deleted from the domain name registry.

Needless to say, the number of seized domains in Denmark may soon increase substantially if SØIK is going to apply the same legal procedure against all .dk domains on the list that SØIK has recently received from the Danish e-commerce Foundation.

Furthermore, the use of section 804(1) is not limited to cases of IPR infringement. A domain could potentially be seized ex parte in any case subject to public prosecution. In Denmark, for example insults against a person acting in a public office are subject to public prosecution (section 121 of the Danish Penal Code). Section 804(1) of the Administration of Justice Act could be ostensibly used to seize the domain as evidence of the insult, but in reality to obtain an ex parte injunction against the website containing the insult. Section 805 contains some limitations as the court would be required to consider whether its ruling under 804(1) is proportionate to the effect on freedom of speech, but in practice, there is no guarantee that this will be considered in an ex parte proceeding.

Danish police closes internet scam store after TV consumer program, Danish Broadcasting Corporation (only in Danish, 01.10.2014)
http://www.dr.dk/Nyheder/Penge/2014/10/01/101709.htm

English translation of the court order for the domain seizure (transfer)
http://raybansolbrillerudsalg.dk/raybansolbrillerudsalg-engelsk-kendelse.htm

Website of DK Hostmaster, the Danish (.dk) domain name registry
https://www.dk-hostmaster.dk/english

ICE domain name seizures threaten due process and first amendment aights, ACLU (20.06.2012)
https://www.aclu.org/blog/free-speech-national-security-technology-and-liberty/ice-domain-name-seizures-threaten-due

(Contribution by Jesper Lund, EDRi-member IT-Pol, Denmark)

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08 Oct 2014

Italia: procedimento amministrativo incostituzionale sul diritto d’autore?

By Heini Järvinen

Read this article in English here: https://edri.org/italy-admin-copyright-enforcement-unconstitutional

Il 26 Settembre 2014, un tribunale amministrativo italiano ha rinviato la questione relativa alla costituzionalità del procedimento amministrativo previsto dal nuovo Regolamento sulla violazione del diritto d’autore online alla Corte Costituzionale Italiana.

Il Regolamento sulla Violazione del Diritto d’Autore Online é entrato in vigore il 1° aprile 2014. Questo permette all’Autorità per le Garanzie nelle Comunicazioni (AGCOM) di esigere, attraverso un procedimento amministrativo, il blocco dell’accesso ai siti web che ospitano materiali che violano il diritto d’autore. Il blocco o la rimozione ha effetto entro cinque giorni (o 72 ore, nelle procedure accelerate) dal ricevimento del reclamo. Già dalla sua stesura, la costituzionalità del Regolamento é stata ripetutamente messa in discussione dal mondo accademico e dalla società civile italiana.

All’inizio del 2014, l’Open Media Coalition (OMC), un gruppo di organizzazioni non governative italiane, ha intentato una causa per contestare la validità del Regolamento. Il 26 settembre, il Tribunale Amministrativo Regionale del Lazio (TAR) ha posto gli atti del caso in attesa di giudizio ed ha rinviato il caso alla Corte Costituzionale Italiana chiedendo se gli ordini di blocco emessi da AGCOM siano compatibili con i principi costituzionali quali la libertà di espressione, la libertà economica e di proporzionalità.

Il TAR ha inoltre messo in dubbio il sistema delle procedure di notice and takedown ed ha chiesto alla Corte Costituzionale di esaminare se le disposizioni europee che servono da base legale al Regolamento, permettendo l’esecuzione amministrativa delle violazioni del diritto d’autore online, siano incostituzionali.

Il TAR ha osservato che:

“Il “doppio binario” amministrativo e giudiziario, previsto dalle Direttive europee a cui AGCOM fa riferimento, deve essere valutato considerando la necessità che le limitazioni imposte alle comunicazioni via internet al fine di tutelare il diritto d’autore, dovrebbero essere bilanciate da altri diritti tutelati dal diritto europeo, come il principio di proporzionalità.

Tuttavia, tali limitazioni dovrebbero essere soggette a revisione giudiziaria preliminare. In ogni caso, occorre ricordare che l’attuazione di tali direttive nel sistema giuridico italiano non puo’ compromettere la tutela prevista dalla nostra Costituzione ad altri diritti fondamentali potenzialmente in conflitto.”

La Corte Costituzionale risponderà in via pregiudiziale, ma ci vorranno almeno due anni. Dato che il TAR non ha sospeso il Regolamento, si prevede che AGCOM continuerà ad attuarlo fino a quando la risposta della Corte Costituzionale arriverà a chiarire la situazione. “E’ assurdo che venga ordinato il blocco di interi siti web sulla base di un Regolamento sospettato di essere incostituzionale” ha dichiarato Guido Scorza, rappresentante dell’OMC.

La Corte Costituzionale Italiana deciderà se il procedimento amministrativo di violazione del diritto d’autore on line é incostituzionale (solo in inglese, 28.09.2014)
http://cyberlaw.stanford.edu/blog/2014/09/italian-constitutional-court-decide-whether-administrative-enforcement-online-copyright

L’Autorità per le Garanzie nelle Comunicazioni italiana approva il procedimento amministrativo sulla violazione del diritto d’autore online (solo in inglese, 17.12.2013)
https://cyberlaw.stanford.edu/blog/2013/12/italian-communication-authority-approves-administrative-enforcement-online-copyright

Il regolamento AGCOM in materia di tutela del diritto d’autore sulle reti di comunicazione elettronica:
http://www.agcom.it/documentazione/documento?p_p_auth=fLw7zRht&p_p_id=101_INSTANCE_kidx9GUnIodu&p_p_lifecycle=0&p_p_col_id=column-1&p_p_col_count=1&_101_INSTANCE_kidx9GUnIodu_struts_action=%2Fasset_publisher%2Fview_content&_101_INSTANCE_kidx9GUnIodu_assetEntryId=771920&_101_INSTANCE_kidx9GUnIodu_type=document

Il diritto d’autore online, AGCOM si fermi e ascolti la lezione di Parigi (30.09.2014)
http://www.ilfattoquotidiano.it/2014/09/30/diritto-dautore-online-agcom-si-fermi-e-ascolti-la-lezione-di-parigi/1137954/

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08 Oct 2014

Italy: Administrative copyright enforcement unconstitutional?

By Heini Järvinen

Leggi l’articolo in italiano qui: https://edri.org/italia-procedimento-amministrativo-incostituzionale-sul-diritto-d-autore

On 26 September 2014, an Italian regional administrative tribunal referred a question regarding the constitutionality of the administrative enforcement procedures foreseen by a new regulation on online copyright infringement to the Italian Constitutional Court.

The Regulation on Online Copyright Infringement entered into force on 1 April 2014. It allows the Italian Communication Authority (AGCOM) to demand that internet access companies block access to websites hosting allegedly copyright infringing materials, following a short administrative procedure. The blocking or removal takes effect within five days (or 72 hours, in expedited proceedings) from the receipt of the complaint. Even while the Regulation was being drafted, its constitutionality was repeatedly questioned by Italian civil society and academics.

Earlier in 2014, the Open Media Coalition (OMC), a group of Italian non-governmental organisations, filed a lawsuit that challenged the validity of the Regulation. On 26 September, the Regional Administrative Tribunal of Lazio (TAR) placed the proceedings of the case on hold, and referred the case to the Italian Constitutional Court. It asked if blocking orders issued by AGCOM are compatible with constitutional principles, such as freedom of expression, economic freedom and proportionality.

The TAR also questioned the constitutionality of the entire notice and take down system, and asked the Constitutional Court to review whether the European provisions which serve as the legal basis for the regulation, allowing the administrative enforcement of online copyright infringements, are unconstitutional.

The TAR noted (unofficial translation):

“The “double track,” administrative and judicial, provided for by the European Directives that AGCOM referred to, should be assessed by taking into consideration the necessity that the limitations imposed on internet communications in order to protect copyright should be balanced with other rights protected by European law, such as the principle of proportionality. However, those limitations should be subject to a preliminary judicial review. In any event, it should be borne in mind that the implementation of those Directives in the Italian legal system may not undermine the protection provided by our Constitution to other potentially conflicting fundamental rights.”

The Constitutional Court will give the answer to the question referred to it, but may take up to two years. As the TAR did not suspended the regulation, it is expected that AGCOM will continue to implement it until the answer from the Constitutional Court clarifies the situation. “It is absurd that entire websites are ordered to be blocked on the basis of a Regulation that is suspected to be unconstitutional,” stated Guido Scorza, representative of the OMC.

Italian Constitutional Court to decide whether administrative enforcement of online copyright infringement is constitutional (28.09.2014)
http://cyberlaw.stanford.edu/blog/2014/09/italian-constitutional-court-decide-whether-administrative-enforcement-online-copyright

Italian communication authority approves administrative enforcement of online copyright infringement (17.12.2013)
https://cyberlaw.stanford.edu/blog/2013/12/italian-communication-authority-approves-administrative-enforcement-online-copyright

AGCOM regulation on online copyright infringement (only in Italian)
http://www.agcom.it/documentazione/documento?p_p_auth=fLw7zRht&p_p_id=101_INSTANCE_kidx9GUnIodu&p_p_lifecycle=0&p_p_col_id=column-1&p_p_col_count=1&_101_INSTANCE_kidx9GUnIodu_struts_action=%2Fasset_publisher%2Fview_content&_101_INSTANCE_kidx9GUnIodu_assetEntryId=771920&_101_INSTANCE_kidx9GUnIodu_type=document

Copyright online, stop and listen to the lecture of Paris, AGCOM (only in Italian, 30.09.2014)
http://www.ilfattoquotidiano.it/2014/09/30/diritto-dautore-online-agcom-si-fermi-e-ascolti-la-lezione-di-parigi/1137954/

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