From the NGOs-perspective, the positive side of the meeting was that there was finally a change: an intervention could be made at the plenary session. In its public address, EDRI strongly opposed any inclusion of technological

From June-December 2006 , a number of public discussions were held, with

============================================================ EDRI-gram biweekly newsletter about digital civil rights in Europe Number 5.2, 31 January 2007 ============================================================ Contents ============================================================ 1. Results of the WIPObs SCCR Special Session 1 2. iTunes under continuous attack in Europe 3. European Commission gets new complaints on Vista 4. Italian Supreme court decision on file-sharing case - nothing new ?! 5. French Big Brother Awards 2006 6. Serbia rejects biometric ID cards 7. Dutch DPA advises negatively on Dutch draft data retention 8. Romanian Prosecutors want easy access to communication data 9. EFFI won a court case about donation-pages in Finland 10. Temporary injunction against RapidShare.de 11. ENDitorial : Constitution by criminalisation 12. Recommended reading 13. Agenda 14. About ============================================================ 1. Results of the WIPObs SCCR Special Session 1 ============================================================ The broadcast treaty was the only item on the agenda of the three-day special session of WIPObs standing committee on copyright and related rights. (SCCR). At the meeting it became clear that no-one really knew how to proceed with the negotiations. The chairman Jukka Liedes (Finland) tried to solve the gridlock by distributing several b non-papersb, which included a new language for the treaty, which he aimed to be a b minimalisticb approach to the treaty. This approach did not have too much success as many of the delegates wanted to use the existing documents as the basis of further negotiations. protection measures (TPM) into the treaty. The organization also stressed that if a TPM-clause was to be added anyway, there had to be strong explicit provisions protecting the interest of the general public, especially with respect to access to information. Furthermore, EDRI pointed out that the text that the chairman had proposed would have made all general purpose computers illegal since they are b with a designed piece of software - capable of decrypting an encrypted broadcast. However, the NGOs were sent out from the plenary room for almost a day as the governments wanted to discuss the matters by themselves. Apparently the closed session did not really help since after the NGOs were allowed to go back in, the situation was still as confused as it had been before. Manon Ress describes the situation at the end of the meeting in CPtechbs blog: b .. The chair did not want "too many to speak" but had to let India make its statement. Asking for clarification, India describe how the list of matters did not reflect agreement and was just a list of matters that have been discussed for years. According to the mandate, only matters where agreement was reached should be listed. The plenary ended on that note. People here are puzzled. If you only point to agreement (on or off the record it seems), the non-conclusions might end up very very short. Would that mean that this meeting did not really happen? Like a non-meeting?b After the non-papers, here come the "non-conclusions" (19.01.2007) http://www.cptech.org/blogs/wipocastingtreaty/ Impasse at WIPO broadcasting negotiations: Our ship is sinking (19.01.2007) http://fromgeneva.blogspot.com/2007/01/impasse-at-wipo-broadcasting.html First Special Session of the Standing Committee on Copyright and Related Rights (SCCR) http://www.wipo.int/meetings/en/details.jsp?meeting_id=12043 Blogging the WIPO Broadcasting Treaty: Signal-Based Protection or Rights by Any Other Name? (19.01.2007) http://www.eff.org/deeplinks/archives/005082.php (Contribution by Ville Oksanen - EDRI-member Electronic Frontier Finland) ============================================================ 2. iTunes under continuous attack in Europe ============================================================ More consumer protection organizations from across Europe have initiated complaints against Apple in order to obtain a more friendly end user license agreement (EULA) for iTunes. The consumer protectionists are concerned about the interoperability of purchased music, contractual terms and liability rules. They consider that iTunes should renegotiate its contracts with the music industry that would allow customers to play the music they buy, on the devices they choose, by downloading music from the Internet without DRM systems. They ask from the sellers to exclude from their EULAs clauses that stipulate that the agreement provisions may be altered unilaterally without the consumerbs consent and to eliminate the technical restrictions. Following a complaint from Forbrukerradet, the Norwegian Consumer Council against Fairplay DRM system, the Norwegian Consumer Ombudsman BjC8rn Erik Thon has ruled that iTunes violates Norwaybs consumer law and has set a deadline for Apple to change its iTunes conditions by 1 October 2007. "If we form a united front, we will have a stronger hand in negotiations and give iTunes the support it needs to negotiate better terms with music labels," said the Ombudsman. The Norwegian Consumer Council considers that Apple could license Fairplay to any manufacturer that wants iTunes songs to play on its equipment, co-develop an open standard with other companies or abandon DRM entirely. Taking the example of his Norwegian colleague, the Dutch Consumer Ombudsman also filed a complaint with the Dutch anti-trust agency as well as with the new Dutch Consumer Authority (ConsumentenAutoriteit) that will enforce the European directives on consumer protection. He said that Apple did not advise the buyers that iTunes software only ran on iPods, which, in his opinion, was "misleading". As previously reported by EDRI-gram, after its success in court with Sony, the French Consumer Association UFC Que Choisir has initiated a similar procedure against Apple for its services iPod and iTunes. The German Association of Consumer Protectionists has also raised concerns about the Apple iTunes service. Apple has stated lately that it is aware of these issues and willing to solve them as rapidly as possible and that some negotiations have been carried out with some individual organizations. "Apple hopes that European governments will encourage a competitive environment that lets innovation thrive, protects intellectual property and allows consumers to decide which products are successful" has been Apple spokesman Tom Neumayrbs recent statement to AP news agency. European consumer protection organizations join forces against iTunes (23.01.2007) http://www.heise.de/english/newsticker/news/84138 Dutch consumer chief puts Apple through the mill (25.01.2007) http://www.theregister.co.uk/2007/01/25/dutch_out_of_tune_with_apple/ Apple ups the stakes with convergence play (29.01.2007) http://www.theregister.co.uk/2007/01/29/appletv/ Apple DRM illegal in Norway: Ombudsman (24.01.2007) http://www.theregister.co.uk/2007/01/24/apple_drm_illegal_in_norway/ EDRI-gram: Sony loses DRM case in France (17.01.2007) http://www.edri.org/edrigram/number5.1/drm_sonyfr ============================================================ 3. European Commission gets new complaints on Vista ============================================================ A group of Microsoftbs rivals has filed a complaint against the Seattle-based company for using its new product Vista, under release these days, to unfairly continue and even strengthen its dominant position on the market. The group including IBM, Nokia, RealNetworks, Sun Microsystems, Adobe, Corel, Opera, Oracle, Red Hat and Linspire complained to the European Commission saying that the computer language used in the Vista software, called XAML, was "positioned to replace HTML," the standard language used to publish documents on the Internet. XAML would be dependent on Microsoft Windows thus discriminating against other systems like Linux. The group also stated that OOXML, a platform file format that governs the way in which files are stored and formatted, was designed to run only in the Microsoft Office software. Simon Awde, chairman of the European Committee for Interoperable Systems (ECIS) stated that: "Microsoft has clearly chosen to ignore the fundamental principles of the Commission's March 2004 decisionb. The respective decision was saying that Microsoft had used its market dominant position to force out RealNetworks and other makers of audio and video streaming software, and that Microsoft desktop Windows system had on purpose been designed to be incompatible with other software. ECIS also stated that "Vista is the first step of Microsoft's strategy to extend its market dominance to the Internetb and "The end result will be the continued absence of any real consumer choice, years of waiting for Microsoft to improve - or even debug - its monopoly products and of course high prices". On the other hand, Linux considers that Vista could be a good opportunity for promoting its own operating system, as the new characteristics and the slightly different feel and look of the software may create disruptions in the working place when moving from an older Microsoft version to Vista. While Microsoft, which has challenged the 2004 decision and waits for a decision by the EU's Court of First Instance, has made no comment on the new accusations, a spokesman for the European Commission stated that the complaint made by the competitorsb group was being examined. Rivals attack Vista as illegal under EU rules (26.01.2007) http://news.com.com/2100-1016_3-6153671.html Rivals accuse Microsoft before Vista's introduction (26.01.2007) http://www.iht.com/articles/2007/01/26/business/vista.php Rivals accuse Microsoft of bullying tactics (29.01.2007) http://news.zdnet.co.uk/itmanagement/0,1000000308,39285666,00.htm EDRI-gram - Microsoft Vista gets criticism before its launching in Europe (27.09.2006) http://www.edri.org/edrigram/number4.18/vista ============================================================ 4. Italian Supreme court decision on file-sharing case - nothing new ============================================================ There has been wide reporting, in Italy and internationally, that an Italian court "ruled not-for-profit file-sharing legal". That statement is grossly overstated, if not completely wrong. The "dismal" state of Italian copyright legislation remains, unfortunately, unchanged. One might argue that the media hype, per se, is an indicator of wider awareness of how overly strict copyright laws and rules stand in the way of free expression. In time this might indicate a shift in the public opinion, and even some hope that legislators and legal courts will be more aware of the problem. But it would be exaggeratedly optimistic to expect any truly relevant changes in the next few years. The decision by Italy's Corte di Cassazione ("Supreme Court") that was published on 9 January 2007 concerned one specific eight-year old case, which happened in 1999, when two students in Turin made some copyrighted materials available for download on a University bulletin board. They were acquitted because they didn't gain any money by doing so, and therefore their behaviour was not judged by the Cassazione to be "criminal" (while it remains a "civil" offence that can be pursued for alleged "damages"). A hideous peculiarity in the Italian law, unfortunately replicated in other countries, defines the use of unlicensed software, or the unauthorized copying or sharing of text, music, video etc, as a "criminal" offence. This has led to countless abuses, including seizures of computers and servers, website blackouts, and prosecution of people who were not guilty of any crime - including the famous (infamous) "Italian crackdown" in May 1994, which was reported internationally as "the largest police seizure of bulletin board systems in world history" . That case was not based on censorship, or on any suspected crime, but on the alleged use of unregistered software. The law states that copyright violations are to be treated as criminal if and when they are "for profit" ("a scopo di lucro"). A landmark decision by a judge in Cagliari in 1996 established that "profit" is generated by unauthorized selling or trading of copyrighted materials, while personal use (even for work) cannot be considered a criminal offence. Later legislation, obviously inspired by major industry lobbies, counteracted that decision by changing the law to define "profit" as any kind of advantage, including the savings gained by not paying for copyrighted materials, or any other personal "satisfaction". The recent Cassazione ruling is somewhat similar to the Cagliari decision in 1996. It is based on the state of the law as it was in year 2000, when that particular case was started, before the changes that are now in force and that make personal use criminal. Of course it is practically impossible to take all the assumed violations to court. The instigators of the legislation are counting on scaring by aggressively persecuting a few people. In that sense, this widely publicized case could be seen as a momentary setback for the lobbies' propaganda. The real effect, if any, of this in the practice of law will be impossible to measure until new cases come to court after the recent Cassazione decision. And, with the notorious slowness of Italian legal procedures, that may take several years. As things stand now, it seems unlikely that there will be any real improvement. So the hype, in a way, may be welcome, because it exposes the problem. But it is wrong to report, or assume, that there is any improvement in the state of the law, and its effects, in Italy. That could even lead to "complacency" by believing that the problem is solved, while legislation needs to be substantially changed to really make it a bit more reasonable. Italian courts have not b ruled not-for-profit file-sharing legal" (30.01.2007) http://www.alcei.org/?p=26 Italy's Corte di Cassazione decision (only in Italian, 9.01.2007) http://www.ictlex.net/?p=565 (Thanks to EDRI-member ALCEI - Italy) ============================================================ 5. French Big Brother Awards 2006 ============================================================ The French Big Brother Awards event that took place on 20 January 2007 has brought the exclusion from this competition of Mr. Sarkozy, for having already won three of the Orwell prizes during the last three years and thus by far outclassing his competitors. This year, the jury decided to eliminate Minister Sarkozy, the only personality having been nominated 6 times in 7 editions of the event, for multiple attacks to private life and for having actively promoted surveillance in general. The organizers of the event, in creating the diplomas for the awards were inspired by a real picture of a fossil found in Niger in 2000, of the biggest crocodile that lived 110 million years ago, called by US palaeontologists, "Sarcosuchus imperator". The specialists considered that the reptile disappeared completely for not having intelligently foreseen the future and adapt. The organizers of the French Big Brother Awards considered that the resemblance with a present character was not fortuitous. The winner of the State award was Jacques Lebrot, b securityb sub-prefect of Seine-St-Denis for having deprived of jobs several thousand of people with police records created just on the basis of suspicion and discrimination, violating their right to the presumption of innocence. Sony-BMG company took the enterprise award for its "rootkit", a spy software installed in the sold CDs in order to control the usage of the CD, ironically, by those who had became the rightful owners by buying the respective CD. The Locality Orwell prize was given to Paul Anselin, Mayor of PloC+rmel in Morbihan, for having installed more than 50 video-surveillance cameras in a locality with 9000 inhabitants and zero degree of delinquency and for the creation of a green number encouraging denunciations. Orwell Novlang prize was awarded to FrC)dC)ric PC)chenard, director of the Judiciary Police who supports the genetic filing of the entire population arguing that the innocent persons could thus be rid of any suspicion. For the entire work, the award was won by Minister of Justice Pascal ClC)ment, who had previously been nominated and awarded in 2004 for being a strong supporter of the electronic bracelet for delinquents and for having imposed it retroactively to the sexual delinquents after their liberation. He won the award for 2006 for his entire work having in view his disrespect for institutions and human rights and for his determination to imprison and control. The Voltaire prize for vigilance was taken, ex-aequo, by the school directors who have refused to fill in the children database (Base-eleves) and by Pierre Muller, the webmaster of Ordinateurs-de-vote.org (ex recul democratique.org), for his permanent work in showing why the electronic vote is a false good idea and a threat to democracy. Big Brother Awards France (only in French, 20.01.2007) http://bigbrotherawards.eu.org/Palmares-2006-des-Big-Brother-Awards-France.h... ml ============================================================ 6. Serbia rejects biometric ID cards ============================================================ A grass-roots campaign in Serbia successfully pressed the Serbian government to back off on a plan to make biometric data compulsory in the country's new ID cards. The decision followed a pitched battle prior to the 21 January 2007 election as opponents criticized the accompanying plan for a centralized database of citizen information and the taking of fingerprints. The campaign against the Government plan practically started in December 2004, when the Dveri NGO organized a public debate at the College of Mechanical Engineering in Belgrade. In March 2005, the Zhicha Bishoprie of the Serbian Orthodox Church organized a scientific forum, from which a number of IT professionals, university professors and intellectuals sent a signed appeal, the so-called Zhicha Appeal (b Zicki apelb) to the Serbian government, asking for a delay in the introduction of the new ID card law until a public and expert debate could be organized. The Serbian Computer Science Society (Drustvo za informatiku Srbije) organized a highly visible public debate in mid-July 2006, with participants from the Serbian Police Ministry, IT professionals, Serbian Orthodox Church representatives, sociologists and political scientists, whose conclusions were critical of the governmentbs scheme. As the government plowed ahead with its project, the NGO Za zivot bez ziga (For Life without Stigma) was organized in May 2006, as an umbrella organization unifying various NGOs and individuals opposed to the scheme. The NGObs website, became the main mouthpiece of the resistance, becoming a vehicle for educating the Serbian public on the pros and cons of biometrics, centralized databases, the coming global surveillance society etc. But the law on ID cards was adopted by the Serbian Parliament on 14 July 2006. The Interior Ministry suggested that "such ID cards were already widely used in the European Union" and that the biometric ID would ease the introduction of government electronic services. Large public outcry developed over the way the law was passed b without prior public debate b and a scandal inside the Interior Ministry itself arose from the purchase of equipment for more than $100 million outside of regular procurement procedures and a full three years before the law itself came before the Parliament. The other government statements were dismantled. "Electronic government services do not require an ID card at all," insisted Oliver Subotic, a computer expert and theologian, who has written two books on the ethics of IT technology and on biometrics. "Accessing e-government services by way of an ID card is a needless intrusion of privacy. Many European Union countries have well-developed e-government services without having issued electronic ID cards at all." During its bi-annual Holy Assembly of Archpriests in early October 2006, the Serbian Orthodox Church issued a decision delegating the Holy Synod b its executive body b to "intervene with the relevant authorities in order to prevent the recently-passed Law on ID cards from being put into practice." The Serbian Church followed the pattern of similar protests in 2000-2002 within the Greek and Russian Orthodox Churches, when their respective governments attempted to institute compulsory electronic ID cards and tax numbers. Many church members raised objections to having an object b the "smart chip" b on their ID cards tied to data to which they didn't have free access. They also were wary of having their personal data centralized in electronic form and available to unspecified third parties. participation of the civil society and two other scientific forums under the auspices of the Serbian church. A couple of prominent Serbian political publications, NIN and New Serbian Political Thought (Nova srpska politicka misao) published a number of critical texts regarding the governmentbs scheme. In mid-December, a petition was launched asking the government to halt the introduction of the new ID cards with biometric contact chip until the law could be amended. Thousands of signatures were gathered, which, together with intensified media interest for the story, and the fact that the governing coalition was in the middle of an election campaign, led to the change of the 2006 law. Prime Minister Vojislav Kostunica's administration adopted a government decree on 11 January 2007 thus taking an unusual step of announcing a change of the ID cards law. Serbian Interior Minister Dragan Jocic told the press that "due to privacy concerns raised by citizens" the Law on Identification Cards would be modified to ensure the chips, with a digitalized photo and fingerprint, would be included only upon the card holder's specific request. Citizens' groups and non-governmental organizations applauded the concession but vowed to continue the fight until the entire law was struck down. Attorney Dragoljub Djordjevic, a founder of the group that spearheaded the anti-biometric media campaign (Za zivot bez ziga), says his organization plans to challenge the law in the Serbian Supreme Court. "That would have been our first step if not for the fact that the court has had a vacancy for months and cannot legally convene," said Djordjevic, who is also vice president of the Serbian Bar Association. "As soon as it does, however, we shall challenge the centralized database the police plan to set up as an unconstitutional invasion of privacy. We shall also challenge the taking of fingerprints of normal, law-abiding citizens as though they were convicted criminals." For Life without Stigma - Za zivot bez ziga (only in Serbian) http://www.zazivot.org/ Public revolt quashes biometric ID chips (27.01.2007) http://wnd.com/news/article.asp?ARTICLE_ID=53945 (Contribution by Aleksandar Pavic - Co-founder, b Za zivot bez zigab Serbia) ============================================================ 7. Dutch DPA advises negatively on Dutch draft data retention ============================================================ The Dutch Data Protection Authority (DPA) has made a strong case against the Dutch draft law regarding the implementation of the data retention directive. In its advice of 22 January 2007 the DPA comes to the conclusion that the draft disregards the requirements of article 8 of the European Convention on Human Rights, which protects the fundamental right to respect for onebs private life. The draft introduces a retention period of 18 months, both for telephone and Internet traffic data. The arguments for this almost maximal retention period are mostly borrowed from a report of the Dutch Erasmus University of 22 June 2005, about which EDRI-gram previously reported. This report was the first public research in Europe into the actual use by law enforcement of historical traffic data. The researchers looked at 65 police investigations that were provided by the Dutch Ministry of Justice as good examples of the usefulness of traffic data for law enforcement. They concluded that 'in virtually all cases' the police could get all the traffic data they needed, based on the average 3 months availability of telephony traffic data. The researchers also warned they could not qualify the usefulness of these data as direct or indirect evidence, or the representativeness of the sample of cases for law enforcement in general. But after failing to meet this essential test, the researchers organised talks with several anonymous police representatives. Based exclusively on those talks, the report recommended that a 1 year mandatory data retention term would be desirable. This report did not fully convince the Dutch Parliament of the necessity of data retention at the time of EU negotiations about the directive. At the beginning of 2006, after a final compromise between the Council and the European Parliament had been reached, the Dutch minister voted in favour of the final data retention directive compromise against the wish of a majority of the Dutch Parliament. Former Minister of Justice Donner then stated in the Parliament: b I have indicated [in the Council] that I wanted room for the Netherlands for a retention period of one year, and for Internet data a period of half a year. That has been realised; that is possible now. That other Member States lay down longer terms in their national law is up to them.b The draft gives no account of this change of plans from rather minimal implementation to almost maximal, as regards the retention period. The DPA further points out that by extending the retention of mobile telephone location data to all the location data generated during a communication, and not only the location data at the start of the connection, the draft goes beyond the demands of the directive. The DPA notes that this extension implies surveillance of the movement of large amounts of innocent citizens and points to the agreement in the European Parliament and the German implementation draft, where it is explicitly stated that the directive does not demand the retention of these location data generated during a mobile communication. Another point of critique of the DPA are the limitations on access to the retained data. The DPA concludes that these provisions are too broad and need to be drafted more strict and precise. The Dutch DPA finally criticizes the use of delegation provisions. According to the DPA, the details on the specific data to be retained should be included in the law itself. The law should also be more specific about the obligation to provide the statistical data on the actual use of the retained data. The draft law is not at all clear about these essential ingredients of the data retention regime and delegates these matters power to the government. The draft, now in the phase of consultation, was made public on 21 December 2006. It also provoked a strong reaction of a large coalition of telecom companies and ISPs. After this consultation phase the draft law will be sent to the Council of State. Advice Dutch Data Protection Authority (in Dutch only, 22.01.2007) http://www.cbpweb.nl/documenten/adv_z2006-01542.shtml Draft law implementation data retention directive (in consultation), (in Dutch only, 21.12.2006) http://www.justitie.nl/onderwerpen/wetgeving/over_wetgeving/actueel/#paragra... h1 EDRI-gram: Dutch study fails to prove usefulness and necessity data retention (29.06.2005) http://www.edri.org/edrigram/number3.13/retention (Contribution by Joris van Hoboken) ============================================================ 8. Romanian Prosecutors want easy access to communication data ============================================================ A new normative act regarding the competence of the Prosecutors dealing with terrorism and organized crime adopted by the Romanian Government in the last days of 2006 created rumours among the press and civil society that accused the Ministry of Justice of breaching the citizens privacy. The new act (Emergency Government Ordinance 131/2006) was adopted in the last government meeting in 2006, without any public debate on the new provisions being introduced. The Ordinance entered into force on 1 January 2007 and gave more powers to the Prosecutors Department for Investigations on Organized Crime and Terrorism (DIICOT). According to the press and civil society groups, the new law would allow prosecutors to monitor banking accounts and IT systems without warrant, which may lead to a whole lot of abuses. Georgiana Iorgulescu, head of the Juridical Resource Center, commented on this: "I don't think it is normal for such a normative document to pass as emergency ordinance, because it actually restricts the right to private life.b The text of the new act, which is in fact very ambiguous in some respects, needs to be interpreted in correlation with the Romanian Procedure Penal code and the b cybercrime lawb (Law 161/2003 - Title III) , but still raises serious questions marks regarding the actual practical interpretation of the b access to computer systemsb in relation with the other definitions of the normative acts The Ministry of Justice has tried to clarify the issues through some press releases and discussions with civil society, but the case is still open since the text has not been modified. The Ministry of Justice underlined that the access to computer data or phone calls could and will be made only with a specific judge warrant and this is a situation that will not be changed. They pointed out that the text would refer only to the traffic data from electronic communications providers and that a similar provision of the Anti-corruption Prosecutors from 2002 had in fact never been used. The Ministry also insisted that the present procedure just tries to clarify the situation, because the traffic data could be accessed with a simple notification from the Prosecutor in a specific case until now. The civil society groups have expressed their reserves even in the case of the access of Prosecutors to traffic data, considering that citizen privacy is in danger. One of the civil society NGOs, SoJust (Society for Justice) has also petitioned the Ombudsman for a case with the Constitutional Court for the breach of the constitutional right to privacy. It is very possible that the present text will be changed in the near future, since the Emergency Government Ordinance needs to be discussed by the Parliament. Also the Ministry of Justice has admitted that a clarification of the terms used could be beneficial. Recently, the Prime Minister has announced that a new public debate will be initiated on those specific provisions. Although the discussion will be probably focused on the clarification of the access to traffic data, including who has the right to access these types of data, nothing was publicly mentioned in relation with the implementation of the European directive on data retention. The ministry who has the obligation to present a first draft is the Ministry of Communications and Information Technology but, so far, not a single draft document was publicly made available, even though several meetings have taken place behind closed doors with the major electronic communications providers. Ministry of Justice - Remarks on the Emergency Government Ordinance 131/2006 (only in Romanian, 18.01.2007) http://www.just.ro/comunicate.php?idc=345 Macovei's agency (18.01.2007) http://www.ziua.ro/display.php?data=2007-01-18&id=214396&ziua=5e47317b5a2b332 6eafbfcb11fc0745a DIICOT is playing with b access to computer systemsb (only in Romanian, 16.01.2007) http://legi-internet.ro/blogs/index.php?title=diicot_ul_se_joaca_cu_accesul_... a_sisteme&more=1&c=1&tb=1&pb=1 SoJust : Comments on Emergency Government Ordinance 131/2006 (only in Romanian, 22.01.2007) http://www.sojust.ro/content/comment.php?comment.news.71 ============================================================ 9. EFFI won a court case about donation-pages in Finland ============================================================ Helsinki district court released 31 January 2007 Electronic Frontier Finland (EFFI) from charges on illegal fund raising on the Internet. The board members faced criminal charges and it was further demanded that EFFI transfers all illegal donations totalling over 4000 euros to the state. The prosecutor, supported by a statement from the Ministry of Interior Affairs, claimed that EFFI's unregistered donation-page as part of their homepages was against the law on the regulation of donation campaigns. The law requires that all campaigns are registered and must report to local police. Many other countries do not have this kind of laws at all. Mikko VC$limC$ki from law firm Turre Legal, who defended EFFI in the court, comments: "The case sets a precedent that the law requires activity such as stopping people on the streets. This kind of campaigns must be registered and make reports. However, a passive webpage such as EFFI's does not count as a 'campaign'. I am happy to report that this law will not adversely affect donation webpages of Finnish NGOs in the future. It was a major threat before this case." EFFI's blog on the subject (in Finnish only, 31.01.2007) http://www.effi.org/blog/2007-01-31-Tapani-Tarvainen.html Turre Legal http://www.turre.com/ (Contribution by Mikko VC$limC$ki - Electronic Frontier Finland) ============================================================ 10. Temporary injunction against RapidShare.de ============================================================ The Germany society for musical performing and mechanical reproduction rights GEMA has obtained temporary injunctions from the District Court in Cologne against the operator of data exchange services RapidShare.de and RapidShare.com. The so-called "sharehostersb services operate in a similar way, allowing users to upload content on virtual storage space, thus making the respective content publicly available. They are considered to have used copyrighted works of GEMA members "in an unlawful fashion". GEMA asked from RapidSharebs operator to reveal the number of copyrighted files of GEMA artists presently stored without license. According to GEMA spokesman Hans-Herwig Geyer, RapidShare.de has boasted of having some 15 million files available to its users. RapidShare has claimed to have no control or knowledge of the content uploaded by the users considering it had no legal responsibility. Through its injunction the District Court in Cologne has now however made it clear to the company that the fact that the users and not the operator of the services were the ones that uploaded the content onto the sites did not, from a legal point of view, lessen the operator's liability for copyright infringements occurred within the context of the services. GEMA obtains injunctions against data exchange services (19.01.2007) http://www.heise.de/english/newsticker/news/83948 Double blow dealt against Rapidshare (18.01.2007) http://www.gema.de/engl/press/press_releases/pm20070118.shtml GEMA obtains injunctions against RapidShare (20.01.2007) http://www.afterdawn.com/news/archive/8460.cfm ============================================================ 11. ENDitorial : Constitution by criminalisation ============================================================ Instead of scouts cookies, evildoers sell copied Britney Spears CDs and counterfeit medicines manufactured using child labour, and that must be stopped, in particular since legit Britney Spears CDs cause enough harm as it is and everyone is tired of Viagra spam. The Criminalisation Directive, also known as IPRED2 or the directive on "criminal measures aimed at ensuring the enforcement of intellectual property rights", is officially geared at combating these organised criminals and terrorists by hitting them where it hurts: fund raising. The Commission proposed to concretise this aim by going after secondary telephone directory providers, farmers with fields cross- pollinated by genetically modified crops, and MP3 player manufacturers who refuse to pay Italy's most famous software patent troll. In spite of a commendable Industry Committee report by David Hammerstein MEP, the European Parliament currently seems to be headed towards brandishing every second company as a criminal organisation, their customers as fences, ISPs as abetters and many teenagers as common criminals. And all this because the French and the Dutch rejected the proposed Constitutional Treaty. Now that will surely make them see the wrongs of their way! But first things first. The directive starts from the premise that every infringement of any "intellectual property right", alias IPR or exclusion right, is inherently a crime if committed intentionally and on a commercial scale. Many of these rights, such as design rights, database rights and utility models, are however not substantially examined at all, and therefore often invalid. Macrossan just saw one of its software patents invalidated in a UK court, and a Welsh vegetarian snack company selling a "Whopper" flapjack is not necessarily trying to be associated with Burger King's trademark, let alone that it is comparable to someone counterfeiting Gucci bags. And the exceptions to copyright law are equally numerous and complex as the cases where it does apply. The World Trade Organisation's TRIPs treaty from 1995 takes these points into account and only requires commercial scale "copyright piracy" and trademark counterfeiting to be punishable by criminal sanctions. Since both the EU and all EU member states are party to TRIPs, this is in fact already the case in the entire EU. Any alleged lacking in enforcement can moreover be brought before the WTO TRIPs Dispute Settlement Body. This directive also adds that judges must be able to impose maximum penalties of at least 100,000 to 300,000 Euro, because according to its supporters fines are currently too low in Eastern Europe. Surprise: for example Czech Republic already has a maximum penalty of 750,000 Euro for selling counterfeit goods. It has become clear that this directive is not really about organised crime or even about helping Rolex. The reason that we have this directive at all and that most MEPs have not yet resoundingly directed it to the dustbin is mainly a political one: competence extension. Criminal law is currently part of the Third Pillar of the EU, which means that the Council of Ministers holds all the power and must decide with unanimity. The Commission and many MEPs would like it to be transferred to the First Pillar, which would give them codecision power and reduce the Council decision requirement to a qualified majority. This is one of the things the Constitutional Treaty would have taken care of if it had been approved. And as someone in Parliament told us, "some idiot in the Commission had to pick this one out of all directives" as spearheading vehicle to get that change through after all. Unfortunately, it doesn't stop there. The music publisher's association, the IFPI, handily hopped aboard the Institutional Power Transfer Express to ensure it pleases at least one other stakeholder. They said they did not like the initial proposal because it did not apply to private, not-for-profit infringements. This means they have to sue in civil courts rather than the police doing the job for them, which is bad PR. So they started claiming that this directive says it is ok to download music without permission and that this should be stopped. In response, Janelly Fourtou MEP, wife of the Chairman of the Supervisory Board of Vivendi Universal, Nicole Fontaine MEP and Klaus-Heiner Lehne MEP have tabled amendments in the European Parliament's Legal Affairs Committee (JURI) to take out the "commercial scale" requirement. Toine Manders MEP even tabled the following amendment: "2a. Member States shall take the necessary measures to ensure that any purchase of goods infringing an intellectual property right is considered as fencing." Manders was unable to explain in a radio interview how a customer in a supermarket is supposed to know whether a product's packaging infringes on the trademark of another brand. He did state that he intends the amendment to apply to downloaders though. "Purchasing" can also mean "to acquire by effort", so he may be right. He noted that he sees this directive as a way to entrench "our European moral values", to teach people about "respecting intellectual property", although he does not believe it will actually be enforced against individuals. The IFPI presumably think otherwise. Normally, JURI would have voted on the tabled amendments on 29 or 30 January. Last week, the vote was however suddenly taken off the agenda by the Christian Democrats (EPP). The reason turned out to be that the German government has decided to waste no time in resolving "the ratification crisis surrounding the constitutional treaty". They have started informal negotiations with MEPs for a first reading compromise with the following basic premise: if the Council gets to keep the sole decision power over the level of the sanctions, they will pass the directive and thus effectuate the competence transfer from Third to First Pillar concerning criminal law as provisioned by the Constitutional Treaty. The fact that a bunch of companies and citizens are caught in the crossfire is obviously of secondary importance. If this manoeuvring sounds familiar, the reason might be that it was also done with the IPRED1 and Big Brother/Data Retention directives. In both cases the then Council Presidency made a pre-first reading compromise with Parliament -in the latter case even behind the back of the rapporteur - in order to rush through a harshly criticised and fundamentally flawed directive. And in both cases the official pretext was also fighting organised crime and protecting the children. In the end, everything even seems to come together: the German implementation of IPRED1, the predecessor of the current directive which allows for very harsh sanctions in case of alleged civil infringements, explicitly allows for the data gathered via the Big Brother directive to be used in civil court cases concerning patents, utility models, trademarks and design rights. The decision of whether or not that data can be used is taken by a non-specialist judge, who is not necessarily aware of the validity of the asserted rights or their scope. Yes, you too can be the target of an "anti-terrorist" directive, or even several at the same time. All you have to do is start up a business and join the knowledge economy. To Lisbon or to Prison? The way it looks now, you do not decide. The Commission, Council and a few morality masters in Parliament will do so for you. All you have to do is think of the children and be afraid of the terrorists, and everything will be fine. FFII IPRED2 directive analysis and background information http://action.ffii.org/ipred2 Radio interviews with Toine Manders (in Dutch only) http://people.vrijschrift.org/~dieter/audio/kassa-070117.mp3 http://people.vrijschrift.org/~dieter/audio/radio-online-20061219.mp3 German Government Passes "Bill for Improving the Enforcement of Intellectual Property Rights" (24.01.2007) http://www.ipjur.com/2007/01/german-government-passes-bill-for.php3 IPRED1 directive: overview by FIPR http://www.fipr.org/copyright/draft-ipr-enforce.html EU adopts Big Brother directive, ignores industry and civil society (14.12.2005) http://press.ffii.org/Press_releases/EU_adopts_Big_Brother_directive%2C_igno... es_industry_and_civil_society MP3 patents: Sisvel (Italian patent troll) v. Sandisk (11.01.2007) http://eetimes.eu/design/196900047 Trademarks: Burger King v. Wholebake (11.06.2006) http://news.bbc.co.uk/1/hi/wales/5169520.stm UK Macrossan software patent case (30.10.2006) http://www.out-law.com/page-7429 (Contribution by Jonas Maebe - Foundation for a Free Information Infrastructure - FFII) ============================================================ 12. Recommended Reading ============================================================ Revenue from online content will reach b,8.3 billion by 2010 in Europe, a growth of over 400% in five years, says a new study for the European Commission. For the most advanced sectors, online content will represent a significant share of total revenue: about 20% for music and 33% for video games. Thanks to the spread of broadband, the roll-out of advanced mobile networks, and the massive adoption of digital devices, the study shows that mass market online content distribution is becoming a reality, creating unique opportunities for Europe. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/95&format=HTML& aged=0&language=EN&guiLanguage=en ============================================================ 13. Agenda ============================================================ 6 February 2007, London, UK Free screening: Hacking Democracy http://evotingfilmscreening.eventbrite.com/ 8 February 2007, London, UK European Electronic Voting Activism Workshop - Sharing & Learning across Europe http://globalevotingworkshop.eventbrite.com/ 8 February 2007, London, UK Electronic Voting: A challenge to democracy? http://globalevotinglessons.eventbrite.com/ 15-16 February 2007, Brussels, Belgium Scientific Publishing in the European Research Area Access, Dissemination and Preservation in the Digital Age http://ec.europa.eu/research/science-society/page_en.cfm?id=3459 19-23 February 2007, Geneva, Switzerland Provisional Committee on Proposals Related to a WIPO Development Agenda: Third Session http://www.wipo.int/meetings/en/details.jsp?meeting_id=11926 23-25 March 2007, Vienna, Austria 2nd PhD E-voting Seminar http://www.e-voting.cc/stories/3154903 1-4 May 2007, Montreal, Canada 7th Conference on Computers, Freedom, and Privacy (CFP2007). The deadline for proposals is 4 February 2006 http://www.cfp2007.org/live/ 18-19 May 2007, Brasov, Romania eLiberatica - The Benefits of Open and Free Technologies - Romanian IT Open Source and Free Software Conference http://www.eliberatica.ro/ ============================================================ 14. About ============================================================ EDRI-gram is a biweekly newsletter about digital civil rights in Europe. Currently EDRI has 25 members from 16 European countries. 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 visibly on the EDRI website. Except where otherwise noted, this newsletter is licensed under the Creative Commons Attribution 2.0 License. See the full text at http://creativecommons.org/licenses/by/2.0/ Newsletter editor: Bogdan Manolea <edrigram@edri.org> Information about EDRI and its members: http://www.edri.org/ - EDRI-gram subscription information subscribe by e-mail To: edri-news-request@edri.org Subject: subscribe You will receive an automated e-mail asking to confirm your request. unsubscribe by e-mail To: edri-news-request@edri.org Subject: unsubscribe - EDRI-gram in Macedonian EDRI-gram is also available partly in Macedonian, with delay. Translations are provided by Metamorphosis http://www.metamorphosis.org.mk/edrigram-mk.php - EDRI-gram in German EDRI-gram is also available in German, with delay. Translations are provided Andreas Krisch from the EDRI-member VIBE!AT - Austrian Association for Internet Users http://www.unwatched.org/ - Newsletter archive Back issues are available at: http://www.edri.org/edrigram - Help Please ask <edrigram@edri.org> if you have any problems with subscribing or unsubscribing. ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE [demime 1.01d removed an attachment of type application/pgp-signature which had a name of signature.asc]