======================================================================= EDRi-gram biweekly newsletter about digital civil rights in Europe Number 10.9, 9 May 2012 ======================================================================= Contents ======================================================================= 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 ======================================================================= 1. Netherlands - first country in Europe with net neutrality ======================================================================= 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) ======================================================================= 2. France: Google sent again to court for its search suggestion service ======================================================================= 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... ============================================================ 3. Concerns regarding plans for a new EU United Patent Court ============================================================ 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... ============================================================ 4. UK High Court orders ISPs to block The Pirate Bay ============================================================ 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 ===================================================================== 5. Portugal: Suing users for copyright infringement does not work ===================================================================== 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... ===================================================================== 6. Slovakia: Mandatory e-forms work only on software from one vendor ===================================================================== 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) ============================================================ 7. ENDitorial: ACTA is not dead ============================================================ 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) ============================================================ 8. Recommended Reading ============================================================ 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.... ============================================================ 9. Agenda ============================================================ 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 ============================================================ 10. About ============================================================ 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 <edrigram@edri.org> Information about EDRI and its members: http://www.edri.org/ European Digital Rights needs your help in upholding digital rights in the EU. 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Translations are provided by 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 http://postbiota.org 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE