CyberLaw Blog

Archive for October 28th, 2008

Belgian ISP wins reprieve in copyright infringement filtering case: “A Belgian internet service provider that had been ordered by the courts to filter out copyright-infringing material from its network has won a court reprieve. It will not have to pay the €750,000 in fines that have built up over the past year.”

(Via OUT-LAW News.)

Linking to defamatory material is not the same as publishing it, says Canadian court: “The publisher of a link to defamatory material does not have any liability for that defamation, a Canadian court has ruled. Liability could only exist if the link publisher made any statement relating to the defamatory material itself, the court said.”

(Via OUT-LAW News.)

YaGoogleSoft! adopt voluntary ‘code of ethics’: “

No more grassing up Chinese dissidents?

The US’s Center for Democracy & Technology has announced that after two years of negotiations, Google, Yahoo! and Microsoft will in the next few days adopt a voluntary code of ethics ‘intended to safeguard online freedom of speech around the world’.…

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(Via The Register – Public Sector.)

Official who lost secret al-Qaeda report pleads guilty: “

‘My bad’, says forgetful vomiter

The senior civil servant who left government documents detailing intelligence on al-Qaeda on a commuter train in June has pleaded guilty to a breach of the Official Secrets Act.…

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(Via The Register – Public Sector.)

The updated EFF report entitled Unintended Consequences: Ten Years Under the Digital Millennium Copyright Act which assesses the problematic application of the notice & takedown provisions of the US legislation is definitely worth reading. [Yaman Akdeniz]

EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences | Electronic Frontier Foundation

October 27th, 2008
EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences
Ten-Year Legacy of Harm to Fair Use, Free Speech

San Francisco – Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

‘Unintended Consequences: Ten Years Under the DMCA’ focuses on the most notorious aspect of the law: its ban on ‘circumventing’ digital rights management (DRM) and ‘other technical protection measures.’ Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. ‘Unintended Consequences’ collects reports of the law’s most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

‘Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it’s been a decade of costs, with no benefits,’ said EFF Senior Intellectual Property Attorney Fred von Lohmann. ‘The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn’t like. It’s time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws.’

For ‘Unintended Consequences: Ten Years Under the DMCA’:
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

Interesting initiative…

(Via Google Public Policy Blog.)

New steps to protect free expression and privacy around the world: “Posted by Andrew McLaughlin, Director of Public Policy and Government Affairs

(Cross-posted from the Official Google Blog)

In a world where governments all too often censor what their citizens can see and do on the Internet, Google has from the start promoted global free expression and taken the lead in being transparent with our users. We’ve pressed governments around the world to stop limiting free speech and made it possible for dissidents, bloggers and others to have their voices heard.

As part of those ongoing efforts to promote free expression and protect our users’ privacy, today we’re announcing Google’s participation as a founding company member of a new program called the Global Network Initiative. (The site, at globalnetworkinitiative.org, will be live within a day or so.)

This initiative is the result of two years of discussions with other leading technology companies, human rights organizations, socially responsible investors and academic institutions. Thanks to hard work and cooperation from all parties, the Initiative sets the kinds of standards and practices that all companies and groups should use when governments threaten internationally recognized rights to free expression and privacy.

The Global Network Initiative also offers an important commitment from all parties to take action together to promote free expression and protect privacy in the use of all information and communication technologies. We know that common action by these diverse groups is more likely to bring about change in government policies than the efforts of any one company or group acting alone.

Companies that join the Initiative commit to putting into effect procedures that will protect their users by:

• Evaluating against international standards government requests to censor content or access user information
• Providing greater transparency
• Assessing human rights risks when entering new markets or introducing new products
• Instituting employee training and oversight programs

These are things that Google does now, but joining the Initiative will help us refine our methods and maintain our leadership position. Down the road companies will be assessed on how they’re doing in implementing the principles and the Initiative will report those results.

This Initiative is by no means a silver bullet or the last word, but it does represent a concrete step toward promoting freedom of expression and protecting users’ privacy in the 60th anniversary year of the Universal Declaration of Human Rights. Now we’re actively recruiting more companies and groups to join the Initiative and advance these critical human rights around the world.

Thais block anti-royal websites: “Thailand plans to spend millions of dollars on an internet firewall, to block websites deemed insulting to the monarchy.”

(Via BBC News.)

(Via Techdirt.)

The Web Thrived In Spite Of The DMCA, Not Because Of It: “While I was pointing out all of the reasons why the DMCA needs to be re-examined from scratch, Wired has put up an article detailing the one single positive aspect of the DMCA: the safe harbor provisions that protect service providers from liability for copyright infringement done by users. However, I think Wired, and the various people quoted in the article, give way too much credit to the DMCA for a variety of reasons. In fact, Wired goes way too far in claiming that the DMCA ’saved’ the web and allowed it to become what it is today, suggesting (incorrectly) that things like blogs and YouTube wouldn’t be successes without the DMCA.

First, the claim by an MPAA representative that without the DMCA movie studios wouldn’t have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn’t have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it’s not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.

As for the safe harbor provisions, there’s plenty of reason to believe that we would have reached the same legal situation even without the DMCA’s safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It’s not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn’t extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.

Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).

So, yes, the safe harbors provided by the DMCA are a good thing — but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It’s quite likely that things wouldn’t be all that different in the absence of the DMCA — except we’d have a lot fewer abuses of it.

(Via Techdirt.)

Canadian Court Rules That Linking To Defamatory Articles Isn’t Defamatory: “You may recall the story of Wayne Crookes, a Canadian businessman who is active in the Green Party in Canada. In 2007, he sued Google, Yahoo, Myspace, Wikipedia and some other sites, claiming that all were liable for content that he found defamatory. It’s somewhat interesting to try to follow the trail of what the actual libel is — as many of the lawsuits for libel are focused on stories about (you guessed it) him filing for libel lawsuits (which certainly appears to be true, rather than libelous). With at least some of those lawsuits, the Canadian Supreme Court tossed them out, though over jurisdiction issues, rather than on the merits of the case.

In one case, Crookes sued the website P2PNet for just linking to the material that Crookes found libelous. It seemed like a huge stretch to say that merely linking to content (even if you grant that it was libelous) is also libel. And, the good news is that a court has now agreed. It has sided with Jon Newton, the operator of P2PNet in noting that simply linking to libelous material is not, in itself, libelous. The ruling does note that if the link text had been libelous, that might be a different story — but just linking to the text as part of a discussion about the lawsuits is hardly libelous. This is definitely a huge win for free speech in Canada — though, Canada could take a big step forward in updating its defamation laws to make it clear that the liability for libel should be on those who actually were libelous, rather than those who host it or point to it.

[Blog entry by Dr. Yaman Akdeniz]

It is now been reported by a media news source that the Diyarbakir First Criminal Court of Peace has removed the blocking order it issued on 20.10.2008 (order no. 2008/2761) and executed on Friday, 24 October, 2008 with regards to Blogger.com and Blogspot. The DNS servers should be updated by end of today so currently users may still be unable to access the popular blogging sites.

It is, however, unclear why the order has been lifted and it seems like the ban is lifted until Digitürk provides to the court further evidence with regards to its claims for football streaming piracy. Therefore, I would not be surprised to see the blocking order and the ban reinstated.

A detailed assessment of the Turkish approaches to Internet content regulation will be provided in an 80 page long report entitled Restricted Access: A Critical Assessment of Internet Content Regulation and Censorship in Turkey written by Dr. Yaman Akdeniz and Dr. Kerem Altiparmak. This bi-lingual (English/Turkish) report will be published during November 2008 and will be made available as a PDF file through cyberlaw.org.uk and cyber-rights.org.tr pages.