EDRI-gram newsletter - Number 5.2, 31 January 2007

EDRI-gram newsletter edrigram at edri.org
Wed Jan 31 11:59:59 PST 2007



biweekly newsletter about digital civil rights in Europe

    Number 5.2, 31 January 2007


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 bnon-papersb, which
included a new language for the treaty, which he aimed to be a
bminimalisticb approach to the treaty. This approach did not have too
success as many of the delegates wanted to use the existing documents as the
basis of further negotiations.

>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
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)

Impasse at WIPO broadcasting negotiations: Our ship is sinking (19.01.2007)

First Special Session of the Standing Committee on Copyright and Related
Rights (SCCR)

Blogging the WIPO Broadcasting Treaty: Signal-Based Protection or Rights by
Any Other Name? (19.01.2007)

(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

Dutch consumer chief puts Apple through the mill (25.01.2007)

Apple ups the stakes with convergence play (29.01.2007)

Apple DRM illegal in Norway: Ombudsman (24.01.2007)

EDRI-gram: Sony loses DRM case in France (17.01.2007)

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

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
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
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)

Rivals accuse Microsoft before Vista's introduction (26.01.2007)

Rivals accuse Microsoft of bullying tactics (29.01.2007)

EDRI-gram - Microsoft Vista gets criticism before its launching in Europe

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 bruled not-for-profit file-sharing legal"

Italy's Corte di Cassazione decision (only in Italian, 9.01.2007)

(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, bsecurityb sub-prefect
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

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)

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 (bZicki 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

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
access. They also were wary of having their personal data centralized in
electronic form and available to unspecified third parties.

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

For Life without Stigma - Za zivot bez ziga (only in Serbian)

Public revolt quashes biometric ID chips (27.01.2007)

(Contribution by Aleksandar Pavic - Co-founder, bZa zivot bez zigab

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: bI 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)

Draft law implementation data retention directive (in consultation), (in
Dutch only, 21.12.2006)

EDRI-gram: Dutch study fails to prove usefulness and necessity data
retention (29.06.2005)

(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 bcybercrime lawb (Law 161/2003 - Title III) , but still
serious questions marks regarding the actual practical interpretation of the
baccess to computer systemsb in relation with the other definitions of
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)

Macovei's agency (18.01.2007)

DIICOT is playing with baccess to computer systemsb (only in Romanian,

SoJust : Comments on Emergency Government Ordinance 131/2006 (only in
Romanian, 22.01.2007)

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)

Turre Legal

(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

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)

Double blow dealt against Rapidshare (18.01.2007)

GEMA obtains injunctions against RapidShare (20.01.2007)

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

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

Radio interviews with Toine Manders (in Dutch only)

German Government Passes "Bill for Improving the Enforcement of
Intellectual Property Rights" (24.01.2007)

IPRED1 directive: overview by FIPR

EU adopts Big Brother directive, ignores industry and civil society

MP3 patents: Sisvel (Italian patent troll) v. Sandisk (11.01.2007)

Trademarks: Burger King v. Wholebake (11.06.2006)

UK Macrossan software patent case (30.10.2006)

(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.


13. Agenda

6 February 2007, London, UK
Free screening: Hacking Democracy

8 February 2007, London, UK
European Electronic Voting Activism Workshop - Sharing & Learning across

8 February 2007, London, UK
Electronic Voting: A challenge to democracy?

15-16 February 2007, Brussels, Belgium
Scientific Publishing in the European Research Area
Access, Dissemination and Preservation in the Digital Age

19-23 February 2007, Geneva, Switzerland
Provisional Committee on Proposals Related to a WIPO Development Agenda:
Third Session

23-25 March 2007, Vienna, Austria
2nd PhD E-voting Seminar

1-4 May 2007, Montreal, Canada
7th Conference on Computers, Freedom, and Privacy (CFP2007). The deadline
for proposals is 4 February 2006

18-19 May 2007, Brasov, Romania
eLiberatica - The Benefits of Open and Free Technologies - Romanian IT Open
Source and Free Software Conference

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
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