CyberLaw Blog

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Archive for February 7th, 2009

EU Plots Pirate Bay Ban and Piracy Clampdown

Saturday, February 7th, 2009

Post from: TorrentFreak

EU Plots Pirate Bay Ban and Piracy Clampdown

The proposals in the report, drafted by the 73 year old Spanish socialist Manuel Medina Ortega, show many similarities to the wish lists of the RIAA, IFPI and MPAA we published earlier. The report calls for more responsibility and liability for ISPs, while copyright infringing content has to be filtered from the Internet.

Even though the European Parliament has voted against so called ‘three-strikes’ proposals twice before, this is also suggested as a viable measure against piracy. It’s proposed that ISPs should disconnect subscribers who share copyrighted content, based on information provided by the entertainment industry.

In addition, national courts are encouraged to take action against BitTorrent sites such as The Pirate Bay. Apparently, the report deems BitTorrent sites to be illegal – which is a bold statement without any legal backup. Last year, Italy imposed a nation wide block on The Pirate Bay, but this was reversed in court due to a lack of jurisdiction; this might change if the new proposals are adopted.

In a draft of the report we read ‘The activities of websites that are part of the peer-to-peer phenomenon and which allow downloading of protected works or services without the necessary authorisation are illegal, and no exception can be applied to them. So the activity of internet users who send files to their peers must be regarded as an illegal act of communication to the public without the possibility of exceptions being applied.’

ISPs are further encouraged to identify and filter copyright infringing content on their networks. As we’ve said before, this might work on networks such as FastTrack/Kazaa, but it remains unclear what methods the ISP will have to implement to distinguish between copyright infringing and legal content on more tricky networks, such as BitTorrent. That will be a tough job, if not impossible. In common with RIAA recommendations, the report suggests that ISPs should be held liable for the actions of their customers.

More details are available on La Quadrature, with Jérémie Zimmermann, co-founder of the site commenting, ‘The Medina report is ridiculous and full of repressive measures. It is in total contradiction with what MEPs voted twice against ‘graduated response’ and with the realities of Internet. It only favors entertainment industries and doesn’t contain anything for culture, the artists, or their public.’

Of course, we encourage all of our European readers to write to their representatives in the European Parliament, as this is clearly not the right path to take.

ISP Code of Practice Aims to Quell New Zealand “3 Strikes” Fears

Saturday, February 7th, 2009

Post from: TorrentFreak

Code Aims to Quell New Zealand “3 Strikes” Fears

Scheduled for introduction at the end of February 2009, Section 92 of the Copyright Amendment Act 2008 is causing concern for many in New Zealand, with the threat of Internet disconnection for those accused of sharing copyright works looming large. The Telecommunications Carriers’ Forum (TCF) has declared that its members believe that Section 92 ‘is seriously flawed’ but nevertheless has just released a draft of its ISP Copyright Code of Practice for public consultation.

‘The Copyright Act was amended in 2008 to include s92A which requires Internet Service Providers to have a policy to terminate the accounts of repeat copyright infringers in appropriate circumstances,’ said TCF CEO Ralph Chivers. ‘This Draft Code is intended to be a template policy for ISPs, to assist them in meeting their obligations under the Act.’

The draft has been created by a group of New Zealand’s largest ISPs, the Internet Service Providers Association of New Zealand (ISPANZ) and Internet NZ, with input from the entertainment industries. It puts some much-needed ‘meat-on-the-bones’ of how allegations of infringement under Section 92 could be handled in practice, along with clarification of what would constitute someone being labeled as a ‘repeat infringer’ for example.

This is how TCF propose that part of the system will work. First off, a copyright holder would identify an infringement and notify the ISP of the infringing customer immediately. The ISP would check to ensure that the complaint meets the standards required by the draft code and ensure that the evidence provided would be of such a quality that it would stand up in court. If it does not meet the standards, it will be returned to the copyright holder. If it is discovered that the copyright holder hasn’t already been ‘pre-approved’ to participate in the scheme, they are given the opportunity to join by paying a fee. The claim is then processed.

At this point the ISP checks to see if the customer has already been complained about. If they have received less than two complaints already, they receive what is known as an ‘Education Notice’. If they have received two of such notices, the ISP well then active the ‘Termination Process’. In either event, the copyright holder is notified of the action taken.

The definition of a ‘Repeat Infringer’ (and one who will be disconnected) is an Internet user who has received three Education Notices in any given 18 month period. Education Notices expire 18 months after being issued, effectively giving the user a clean sheet again.

There are also systems proposed for dealing with the actual termination of a customer’s ISP account, with provisions for taking extra caution over so-called ‘Vulnerable Customers’ (someone ‘who for reasons of health, disability or safety, or that of a member of their household, is reliant on their Internet Account’) and ‘Essential Service Providers’ (a ‘person who requires their Internet Account in order to deliver an essential service referred to in Part A of Schedule 1 of the Employment Relations Act 2000‘)

Customers accused of infringement will also have the right to dispute the allegations made against them and the draft details the procedure clearly.

The draft Internet Service Provider (ISP) Copyright Code of Practice is available for viewing here. Submissions to the draft should be emailed to or posted to: Telecommunications Carriers’ Forum, PO Box 302469, North Harbour, Auckland.

The closing date for submissions is 5pm, Friday 6th March 2009.

TorrentSpy to Appeal in MPAA Court Case

Saturday, February 7th, 2009

Post from: TorrentFreak

TorrentSpy to Appeal in MPAA Court Case

torrentspyFor years, TorrentSpy has been a well known player in the BitTorrent community. In 2006 the site attracted more visitors than any other BitTorrent site, but this quickly changed in 2007 after a federal judge ruled that the site had to log all user data.

The judge ruled that TorrentSpy had to monitor its users in order to create detailed logs of their activities. Even worse, the BitTorrent site was ordered to hand these logs over to the MPAA. TorrentSpy owner Justin Bunnel didn’t want to give up the privacy of the site’s users, and decided that it was best to block access to all users from the US instead. In March 2008 he went further still, taking the decision to shut down completely.

‘We have decided on our own, not due to any court order or agreement, to bring the search engine to an end and thus we permanently closed down worldwide on March 24, 2008,’ Bunnel wrote in a message to users of the site. A month after this decision the case against the MPAA was terminated and his company was ordered to pay a $110 million fine, which it has now appealed.

TorrentSpy’s lawyer, Ira Rothken, told CNET News, ‘We’re arguing the court was wrong in procedures and wrong in judgment. In a one-hour hearing regarding discovery issues, the court terminated the case and didn’t give TorrentSpy a trial. We believe the court was wrong and abused its discretion. We believe the court ordered TorrentSpy to do things that was in violation of the site’s privacy policy and we believe that the tension between the court’s discovery orders and user-privacy rights is an important issue on appeal.’

The MPAA wont be too happy that TorrentSpy hasn’t given up the fight yet. At the time, MPAA’s Dan Glickman was very pleased with the outcome of the case, as he said: ‘The demise of TorrentSpy is a clear victory for the studios and demonstrates that such pirate sites will not be allowed to continue to operate without facing relentless litigation by copyright holders.’

With the appeal, filed at the 9th Circuit Court of Appeals, TorrentSpy aim to overturn this earlier judgment, and restore hope for other BitTorrent site owners in the US.

Danish ISPs to Fight the Pirate Bay Block

Saturday, February 7th, 2009

Post from: TorrentFreak

Danish ISPs to Fight the Pirate Bay Block

pirate bayIn a court case initiated by the IFPI, a Danish judge ruled last year that Tele2 had to block its users from accessing The Pirate Bay. IFPI argued that Tele2 was assisting in mass copyright infringement, and that access to the site therefore had to be blocked.

At the time, The Pirate Bay co-founder Brokep told TorrentFreak: ‘I hope the torrent community understands what this will do to Danish people. It will also act as a very bad precedent for the European Union, and I hope everybody will fight this.’

Unfortunately for the many Danish Pirate Bay users, it got even worse. Last month TDC, Denmark’s largest ISP and owner of most of the cables, decided to block access to The Pirate Bay as a preventive measure. And now, a Danish court has ruled that all ISPs will have to do the same, or else they will face a hefty fine.

The ISPs, however, are not planning to accept the court order without a fight. TDC, Telia and Telenor have announced that they are going to appeal the decision, and they will take the case to the Supreme Court. One of their arguments is that they are not responsible for the potential copyright infringement of their subscribers.

‘Accessing The Pirate Bay is not in itself a violation of copyright,’ Jens Ottosen of Telia told ‘We make access possible for our subscribers, and they have to decide if it is illegal. It is not our task. If so, we also contribute to illegalities on YouTube, Myspace and Google. It is completely cluttered,’ said Ottosen, who is also Chairman of the Danish telecom industry.

Indeed, this case is about more than just The Pirate Bay, it is about censoring the Internet. Will YouTube with all its copyright infringing content be next on the list? Despite the argument whether it is fair to block a BitTorrent site or not, it is completely ineffective. It is fairly easy to circumvent, and all the publicity will only drive the traffic figures up.