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EDRi-gram
biweekly newsletter about digital civil rights in Europe
Number 10.9, 9 May 2012
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Contents
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1. Netherlands - first country in Europe with net neutrality
2. France: Google sent again to court for its search suggestion service
3. Concerns regarding plans for a new EU United Patent Court
4. UK High Court orders ISPs to block The Pirate Bay
5. Portugal: Suing users for copyright infringement does not work
6. Slovakia: Mandatory e-forms work only on software from one vendor
7. ENDitorial: ACTA is not dead
8. Recommended Reading
9. Agenda
10. About
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1. Netherlands - first country in Europe with net neutrality
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On 8 May 2012, The Netherlands adopted crucial legislation to safeguard
an open and secure internet. It is the first country in Europe to
implement net neutrality into its national law. In addition,
it adopted provisions protecting users against disconnection and
wiretapping by providers. Digital rights movement Bits of Freedom
calls on other countries to follow the Dutch example.
The net neutrality law prohibits internet providers from interfering
with the traffic of their users. The law allows for traffic management
in case of congestion and for network security, as long as these
measures serve the interests of the internet user. A technical error
in the law might still be corrected in a vote on 15 May.
In addition, the law includes an anti-wiretapping provision,
restricting internet providers from using invasive wiretapping
technologies, such as deep packet inspection (DPI). They may only do
so under limited circumstances, or with explicit consent of the user,
which the user may withdraw at any time. The use of DPI gained much
attention when KPN admitted that it had analysed the traffic of its
users to gather information on the use of certain apps. The law allows
for wiretapping with a warrant.
Moreover, the law includes a provision ensuring that internet
providers can only disconnect their users in a very limited set of
circumstances. Internet access is very important for functioning in an
information society, and, presently, providers can, on the basis of
their terms and conditions, disconnect their users for numerous
reasons. The provision allows for the disconnection in the case of
fraud or when a user doesn't pay his bills.
Bits of Freedom, the Dutch digital rights movement which has campaigned
for these provisions, applauds the new law. It considers this a
historical moment for internet freedom in The Netherlands and calls on
other countries to follow the Dutch example.
The provisions are part of the implementation of the European
telecommunications rules. A translation of the provisions is provided
by Bits of Freedom. The translation does not include the technical
error in the law which might be corrected on 15 May.
Netherlands first country in Europe with net neutrality (8.05.2012)
https://www.bof.nl/2012/05/08/netherlands-first-country-in-europe-with-net-n...
Translations of the Key Dutch Internet Freedom Provisions
https://www.bof.nl/2011/06/27/translations-of-key-dutch-internet-freedom-pro...
(Contribution by Ot van Daalen - EDRi-member Bits of Freedom - Netherlands)
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2. France: Google sent again to court for its search suggestion service
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Four French associations have decided to take Google to court for its
automatic suggestion of the word b Jewb when searching for the names of
several French personalities.
Union des C)tudiants juifs de France (UEJF b union of Jew students of
France), J'accuse!-action internationale pour la justice (AIPJ-
international action for justice), SOS Racisme and Mouvement contre le
rasisme et pour lbamitie entre les peoples (MRAP- the movement against
racism and for the friendship between peoples) consider that Googlebs
feature (called Google Suggest) that suggests the association of the
word b Jewb with personalities users look for, may lead to the creation
of probably the largest Jew file in history.
The associations complain about the fact that the image of an
omnipresence of Jews leading France is thus largely shared and
amplified. According to them, by this association, Google infringes the
law preventing the creation of ethnical files. Therefore, based on
article L226-19 of the Penal Code they ask the court to forbid Google
"to store or keep as information memory, without the consent of the
people involved, the personal data which, directly or indirectly, make
the racial or ethnical origin appearb and to forbid the association of
the word b Jewb with the names of natural people occurring in Internet
usersb searches.
The Penal Code stipulates a penalty of 5 years of imprisonment and
300 000 Euro fine for the creation of such files. On the other hand, the
French Constitution says that the Republic b assures the equality before
the law of all citizens, irrespective of their origin, race or religionb.
This is not the first time the company is criticised over its Google
Suggests service. In 2010 and 2011, Google France was condemned because
its algorithms suggested expressions considered defamatory or injurious.
But those cases were specific to a certain search or name, and not to
the same keyword being used in various searches.
Google is presently limiting the range of the automatic suggestions by
applying strict rules on pornographic, violent or hate inciting content
and some terms apparently used to search for content that may infringe
copyrights (such as "bittorent"). The measure, which is not detailed in a
clear policy, has been heavily criticised for being actually a method to
censor the results.
During the hearing that took place on 2 May, the analysis of the
automatic word suggestions was delayed for 23 May in order to give the
associations the time to examine Googlebs arguments in the matter.
Google investigated for the suggestions of its search engine (only in
French, 28.04.2012)
http://www.lemonde.fr/societe/article/2012/04/28/google-poursuivi-pour-les-s...
Google investigated for the term "Jew" associated to personalities (only
in French, up-dated 2.05.2012)
http://www.numerama.com/magazine/22482-google-poursuivi-pour-le-terme-juif-a...
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3. Concerns regarding plans for a new EU United Patent Court
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The EU ministers have recently put up plans to create a United Patent
Court (UPC), a framework that will allow inventors to gain
cost-effective unilateral patent protection across the EU. Within this
framework, the inventors would only have to apply once in order to
obtain patent protection across the 25 countries and countries will be
able to preserve their current court system, but with the power to
remove products from the whole EU market.
British Telecom patent lawyer Simon Roberts warned about the
preservation of the existing systems stating that bifurcated court
systems (separating infringement and validity proceedings) such as the
German one, are unbalanced, favouring patent owners. A product can be
banned from the German market even if the patent is found invalid a year
later. "It is time for the software community to wake up. Ministers are
clueless about the dangers of the EU court agreement, and I am surprised
that top questions like bifurcation has not been fixed. German courts
are now a magnet for patent trolls, and the EU patent court will allow
them to stop products for a market of more than 600 million consumers.
German failed patent system will expand to the whole EU," Stated
Benjamin Henrion, president of the FFII.
In a hearing of the European Commission on the review of the 2004/48/EC
Enforcement of Intellectual Property Directive, John Mitchell from the
SME Innovation Alliance (UK) gave a very interesting presentation on how
the patent system is basically unusable for SMEs and who questioned if
the entire patent system had reached the end of its useful life.
Furthermore, the report of the House of Commons' European Scrutiny
Committee analysing UPC, reveals that small UK firms would face higher
costs for challenging or defending the validity of patents or alleging
or defending patent infringement claims in court. "This complex
structure of the UPC is likely to be far more costly and burdensome for
SMEs than the existing system in the UK," says the report adding that a
"UK SME engaged in cross-border trade may also be required to defend
itself against a pan-European injunction for patent infringement in the
language of the local division chosen by the patentee."
The system is meant to have local, regional and central divisional UPCs.
The UK Committee raised concerns related to the ability of the local and
regional UPCs to separate validity and infringement rulings on the same
patent, where parties choose where to initiate the legal action, based
on where they think they would more likely win. The committee warns over
the possible domination of the market by Germany in patent litigation.
If the German local division finds in favour of a patentee, the
judgement will be valid throughout the EU which will be inconvenient for
small companies having to deal with extra expense related to overseas
proceedings in a foreign language. A transfer from the local German
division of the UPC to the Central Division to avoid bifurcation would
cause additional trouble and expense as well.
The Committee considers it premature to conclude an agreement on the
newly proposed system as several issues should be first cleared up.
"Important open issues include ... the fees payable by the users of the
new system (this again is vital for SMEs), the allocation of costs and
revenues to the participating states (which will play a role in some
statesB4 decision on whether or not to create a local division of the
court which in turn again is of importance for SMEs), the draft
procedural rules, which presently contain more than 400 provisions, will
require an enormous effort to find compromises between the participating
states on fundamental aspects of civil procedure law to ensure a
harmonized, expeditious and appropriate procedure for all type of cases,
and, not least, the amount of recoverable costs that a successful
litigant may claim."
Italy and Spain have objected to the plans and referred the issue to
ECJ. Spain believes that restricting the language regime to English,
French and German is discriminatory and Italy considers the plans are
unlawful and would distort competition.
EU patent plans are a fuel for patent trolls, says British Telecom
(27.05.2012)
https://press.ffii.org/Press%20releases/EU%20patent%20plans%20are%20a%20fuel...
Unified patent court proposals would harm small businesses, committee of
MPs report (4.05.2012)
http://www.out-law.com/en/articles/2012/may/unified-patent-court-proposals-w...
European Scrutiny Committee - Sixty-Fifth Report - The Unified Patent
Court: help or hindrance? (3.05.2012)
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmeuleg/1799/1799...
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4. UK High Court orders ISPs to block The Pirate Bay
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The UK High Court has recently decided that The Pirate Bay (TPB) must be
blocked by 5 UK internet service providers. No technical details were
given in the ruling as, according to Mr Justice Arnold, the terms of the
court order (the technical implementation measures) had been agreed to
by the ISPs in question.
In November 2011, the British Phonographic Industry (BPI) asked the
group of the big ISPs to voluntarily block access to the site, after a
court order to block Newzbin2 had been issued. At that time, the ISPs
said they would not comply without a court order.
In February this year, the High Court ruled that operators of TPB
website and its users were both guilty of infringing the copyright
of music rights holders. And now, the court order has come, therefore
Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media are compelled
now to prevent the access of users to TPB. BT is still considering its
position.
"As a responsible ISP, Virgin Media complies with court orders addressed
to the company but strongly believes that changing consumer behaviour to
tackle copyright infringement also needs compelling legal alternatives,
such as our agreement with Spotify, to give consumers access to great
content at the right price," was Virgin Mediabs statement to BBC.
Jim Killock, executive director of the EDRi-member Open Rights Group
(ORG), considers the action "pointless and dangerous". "It will fuel
calls for further, wider and even more drastic calls for internet
censorship of many kinds, from pornography to extremism. Internet
censorship is growing in scope and becoming easier. Yet it never has the
effect desired. It simply turns criminals into heroes," said Killock.
ORG has also shown concern over the blocking of TPBbs public blog which
should not have been included in the court order and which is an act of
pure censorship, as there is no question of copyright infringement
there. b ...the blocking of websites should not be viewed as a silver
bullet," the ISPA said in a statement adding: "We hope that this
litigation will be followed by the continued development of innovative
fully-licensed online services by rights holders, which is the most
effective way to tackle online copyright infringement."
In the meantime, TPB has stated that any blocking technique may
be overcome by a range of measure, the simplest solution being that of
using a VPN. TPB is also advising people to change their DNS provider
switching to a DNS offered by the likes of OpenDNS and Google.
TPB also told Torrentfreak that the actual result of blocking was
unexpected, with the decisions of the High Court and the news on the
BBC bringing 12 million more users in the next day on TPB.
The Pirate Bay must be blocked by UK ISPs, court rules (30.04.2012)
http://www.bbc.co.uk/news/technology-17894176
We don't have to choose between freedom and copyright (3.05.2012)
http://www.openrightsgroup.org/blog/2012/we-dont-have-to-choose-between-free...
High Court orders ISPs to block The Pirate Bay (1.05.2012)
http://www.out-law.com/en/articles/2012/may/high-court-orders-isps-to-block-...
Pirate Bay Enjoys 12 Million Traffic Boost, Shares Unblocking Tips
(2.05.2012)
https://torrentfreak.com/pirate-bay-enjoys-12-million-traffic-boost-shares-u...
EDRi-gram: Finnish ISP ordered to block The Pirate Bay (2.11.2011)
http://www.edri.org/edrigram/number9.21/finnish-isp-block-piratebay
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5. Portugal: Suing users for copyright infringement does not work
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In a six-year long case brought by the Portuguese Phonographic
Association (AssociaC'C#o FonogrC!fica Portuguesa -AFP), the Lisbon
Criminal Court has recently given a ruling condemning a young men to a
2 month suspended jail sentence and a 880 euro fine.
Initially, AFP was after the 17 years old man (in 2006) for allegedly
having shared hundreds of songs online without permission. In the end,
for b technical and procedural reasonsb, meaning a lack of evidence, the
claims were reduced to three pieces of music.
Although since 2006, AFP has filed more than 40 cases with the Attorney
Generalbs Office, this is just the second case with a favourable result
for the association.
A good thing is that, realizing the uselessness of this type of action,
AFP has decided to give up on the strategy. The bad thing is that it has
decided to start pushing for new legislation. AFP president Eduardo
Simoes believes that the current legal framework cannot deal with online
file-sharing and calls now for the introduction of new legislation,
something similar to the 3-strikes French system.
The Portuguese movie industry has already attempted to stop piracy by
shutting down about 300 sites allegedly offering copyrighted material
without permission.
AFP, which has seen a drop of about 80% of its revenues during the last
decade, has however reached the conclusion that besides piracy and the
economic crisis, a cause of this decline may also be an undeveloped
digital offering and the artistsb growing tendency to self-publish.
Adolescent condemned to prison for illegal music sharing (only in
Portuguese, 23.04.2012)
http://sol.sapo.pt/inicio/Sociedade/Interior.aspx?content_id=47570
Youth fined for three pirated pieces of music (only in Portuguese)
(23.04.2012)
http://rr.sapo.pt/informacao_detalhe.aspx?fid=25&did=59435
Epic 6-Year File-Sharing Case Over Just 3 Songs Comes To An End (30.04.2012)
https://torrentfreak.com/epic-6-year-file-sharing-case-over-just-3-songs-com...
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6. Slovakia: Mandatory e-forms work only on software from one vendor
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In Slovakia, a law introduced to reduce red tape has led to injustice.
The state has mandated electronic means as the only way of fulfilling
certain statutory obligations. However the dedicated web solution
excludes some citizens from its use as it is not interoperable and runs
only on the software from one vendor. In the absence of any
non-electronic option, this means that, in fact, the state prescribed
the use of a certain product from a certain vendor. Who did not own the
copy, had to buy one. A Slovak textile importer has deemed that the
state should not force him to use a particular software programme for
his business and fulfilled its legal obligation on hard copy. Now the
company faces 5600 Euro fines.
The Slovak tax administration has already imposed 12 fines on EURA
Slovakia, s.r.o. which submitted its monthly tax returns on hard copy,
because the use of electronic forms was impossible as the state's web
application worked only on Microsoft's Windows operating system together
with Microsoft Internet Explorer. All other competing operating systems
such as Apple, GNU/Linux, BSDs failed to run the state's application.
The Slovak tax administration has, therefore, precluded citizens who use
competing products from fulfilling their obligations towards the state.
"This situation is absurd. If another public body decides to use an
Apple-only solution for its public services, should then everybody buy
Apple's products just to fulfil this legal obligation? How many
different products should citizens and companies have to buy just to
comply with all the different laws?" asks Martin Husovec, member of the
FSFE Legal, who now assists the Slovak company in appealing the fines
before the court.
State neglected web standards, company now faces EUR 5600 in fines
(9.05.2012)
http://fsfe.org/news/2012/news-20120509-01.en.html
Executive summary of the EURA case (9.05.2012)
http://fsfe.org/news/2012/news-20120509-02.en.html
(Thanks to Free Software Foundation Europe)
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7. ENDitorial: ACTA is not dead
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Next week, the European Parliament's Development Committee (DEVE), the
first of the five Committees responsible for providing opinions on the
proposed ACTA agreement will vote on its draft recommendation.
As of today, it appears more likely than not that the Development
Committee will vote in favour of ACTA. The Parliamentarian leading on
the dossier is Czech Eurosceptic Jan Zahradil. While there is an obvious
attraction for a Eurosceptic to support (ironically following the
European Commission's line very diligently) an EU proposal which is
deeply unpopular and flawed, a b yesb vote would come as a big shock to
many observers and risks creating political momentum that could
potentially breathe new life into the allegedly b deadb proposal. Of
course, a b yesb vote can only happen if the Parliamentarians, whose job
is to support policies that defend development, ignore the opinions of
organisations like MC)dicins sans FrontiC(res, ignore the analysis of the
dangers for development described by the German Ministry of Economic
Cooperation and Development and, last but not least, ignore the
political direction agreed in several of the political groups. To
contact Parliamentarians on the DEVE Committee to ask them not to vote
in favour of Mr Zahradil's position, please see the links below.
The dangers of splits in the political groups that have already declared
their opposition to ACTA are best illustrated by the amendments tabled
to the draft Opinion in the Industry Committee (ITRE). There, in line
with the majority of interventions in the Committee discussions, the
Parliamentarian in charge of the dossier, Amelia Andersdotter (Sweden,
Greens/EFA) proposed rejection. However, the Danish Liberal Jens Rohde
(who sat alongside his group leader at the press conference where the
Liberal group's against ACTA was announced) has co-signed an amendment
with the conservative EPP group, in order to delete the recommendation
to reject ACTA. In response to a blog article criticising him for this,
Mr Rhode said that, when preparing an Opinion for another Committee on a
proposal, it was not the role of the Committee to make a recommendation.
He did not explain what the purpose of an Opinion is, if it is not to
express an opinion.
The third Committee working on this dossier is the Legal Affairs
Committee (JURI), where Marielle Gallo (EPP, France) is responsible.
Unsurprisingly, as Ms Gallo is a staunch defender of repressive measures
to support IPR enforcement, her draft report is in favour of ACTA. Her
solution to ACTA's problems is to require the European Commission to
produce annual reports on ACTA's implementation and, where breaches of
fundamental rights are identified, to b immediatelyb persuade the
European Court of Justice to bring them to an end. And this would be a
good strategy if the European Commission did not have a long history of
failing to respect its reporting obligations (its data retention report
was seven months late), if the Commission had not proposed b voluntaryb
breaches of European law itself, if the mechanism for the European Court
to immediately end infringements identified by the Commission actually
existed, if ACTA was a purely internal instrument and if one of the
biggest risks to fundamental rights was not from foreign companies
regulating EU freedom of communication.
The Civil Liberties Committee (LIBE) published the draft Opinion from
the MEP responsible Dimitrios Droutsas (Greece, S&D). The Opinion raises
a whole range of dangers for fundamental rights created by ACTA,
strongly implying that ACTA is illegal under EU law. However, Mr
Droutsas appears to prefer to include that conclusion only after the
dossier has been fully debated in the Committee. The Committee will have
a public hearing next Wednesday morning (16 May) with invited experts
from civil society (including EDRi and La Quadrature), the European
Commission, the EDPS and others.
The fifth Committee, the International Trade Committee (INTA), will be
responsible for the final Committee vote, before the dossier is sent to
the Plenary sitting of the European Parliament in July. While the draft
final report by the MEP in charge, David Martin has been published, this
Committee's work on the dossier is at an earlier stage than the others,
as they are supposed to take the other Committee's opinions into account
before finalising their position. Mr Martin's draft recommendation
states that the costs of ACTA outweigh the potential benefits and it
should, therefore, be rejected.
EDRi's Stop ACTA page
http://edri.org/stopacta
MC)dicins sans FrontiC(res
http://www.msfaccess.org/content/msf-statement-ep-committee-developments-dra...
German Ministry position
http://www.ip-watch.org/2012/05/08/german-ministry-advises-developing-countr...
Danish blog article on Rohde's amendment
https://bitbureauet.dk/2012/05/jens-rohde-vil-redde-acta-i-europaparlamentet...
Zahradil draft opinion
http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-478.666&secondRef=02&language=EN
Andersdotter draft opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%...
Gallo draft opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-487.684+01+DOC+PDF+V0//EN&language=EN
Martin draft recommendation
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML%2BCOMPAR...
Infographic on the Parliament's procedures for ACTA
http://www.laquadrature.net/wiki/ACTA:_Procedure_in_the_European_Parliament
Detailed information on the EU's decision-making processes
http://www.edri.org/files/2012EDRiPapers/activist_guide_to_the_EU.pdf
Members of each Committee:
Development:
https://memopol.lqdn.fr/europe/parliament/committee/DEVE/
Industry:
https://memopol.lqdn.fr/europe/parliament/committee/ITRE/
Legal Affairs:
https://memopol.lqdn.fr/europe/parliament/committee/JURI
Civil Liberties:
https://memopol.lqdn.fr/europe/parliament/committee/LIBE
International Trade:
https://memopol.lqdn.fr/europe/parliament/committee/INTA
(contribution by Joe McNamee - EDRi)
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8. Recommended Reading
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ECJ decision: The functionality of a computer program and the
programming language cannot be protected by copyright (2.05.2012)
http://curia.europa.eu/juris/documents.jsf?num=C-406/10
The Directive on data protection and law enforcement: A Missed
Opportunity? by Steve Peers, Professor of Law, Law School, University of
Essex (04.2012)
http://www.statewatch.org/analyses/no-176-leas-data%20protection.pdf
Belgium DPA: Recommendation on Net Neutrality and Deep Packet Inspection
(only in French, 11.04.2012)
http://www.privacycommission.be/fr/docs/Commission/2012/recommandation_05_20...
(only in Dutch, 11.04.2012)
http://www.privacycommission.be/nl/docs/Commission/2012/aanbeveling_05_2012....
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9. Agenda
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14-15 June 2012, Stockholm, Sweden
EuroDIG 2012
http://www.eurodig.org/
18-19 June 2012, Dublin, Ireland
OSCE Dublin Conference on Internet Freedom
http://www.osce.org/event/internetfreedom2012
18-22 June 2012, Samos, Greece
Samos 2012 Summit on Open Data for Governance, Industry and Society
http://samos-summit.blogspot.com/
20-22 June 2012, Paris, France
2012 World Open Educational Resources Congress
http://www.unesco.org/webworld/en/oer
24-29 June 2012, Prague, Czech Republic
ICANN 44 meeting
http://prague44.icann.org/
2-6 July 2012, Budapest, Hungary
Policies and Practices in Access to Digital Archives: Towards a New
Research and Policy Agenda
http://www.summer.ceu.hu/sites/default/files/course_files/Policies-and-Pract...
9-10 July 2012, Barcelona, Spain
8th International Conference on Internet Law & Politics: Challenges and
Opportunities of Online Entertainment
http://edcp.uoc.edu/symposia/idp2012/cfp/?lang=en
11-13 July 2012, Vigo, Spain
The 12th Privacy Enhancing Technologies Symposium
(PETS 2012)
http://petsymposium.org/2012/
25-26 August 2012, Bonn, Germany
Free and Open Source software conference (FrOSCon)
Call for papers by 23 May
http://www.froscon.de/en/program/call-for-papers/
6-7 September 2012, Cluj-Napoca, Romania
CONSENT policy conference:
Perceptions, Privacy and Permissions: the role of consent in on-line
services
Call for papers by 7 June 2012
http://conference.ubbcluj.ro/consent/
12-14 September 2012, Louvain-la-Neuve, Belgium
Building Institutions for Sustainable Scientific, Cultural and Genetic
Resources Commons.
http://biogov.uclouvain.be/iasc/index.php
7-10 October 2012, Amsterdam, Netherlands
2012 Amsterdam Privacy Conference
http://www.ivir.nl/news/CallforPapersAPC2012.pdf
25-28 October 2012, Barcelona, Spain
Free Culture Forum 2012
http://fcforum.net/
6-9 November 2012, Baku, Azerbaijan
Seventh Annual IGF Meeting: "Internet Governance for Sustainable Human,
Economic and Social Development"
http://www.intgovforum.org/cms/
9-11 November 2012, Fulda, Germany
Digitalisierte Gesellschaft - Wege und Irrwege
FIfF Annual Conference in cooperation with Fuldaer Informatik Kollquium
http://www.fiff.de/2012
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10. About
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EDRi-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRi has 31 members based or with offices in 19 different
countries in Europe. European Digital Rights takes an active interest in
developments in the EU accession countries and wants to share knowledge
and awareness through the EDRi-grams.
All contributions, suggestions for content, corrections or agenda-tips
are most welcome. Errors are corrected as soon as possible and are
visible on the EDRi website.
Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 3.0 License. See the full text at
http://creativecommons.org/licenses/by/3.0/
Newsletter editor: Bogdan Manolea