Last week, Torrents.ru, a massive Russian BitTorrent site had its domain name suspended by order of the authorities. It quickly returned with a new URL but with accusatory fingers being pointed at Autodesk, questions raised over the .RU domain, DDoS attacks and a petition to the Russian President, the drama isn’t over yet.
This week, an Italian magistrate convicted three Google employees for an Internet video that none of them had produced, uploaded, or even seen. The case arose from an Italian video that was uploaded in 2006 to Google Video, which showed a disabled child being bullied by other schoolchildren. An advocacy organization and the boy’s father in Milan pushed for a criminal prosecution; a local prosecutor decided to pursue a case against four individual Google employees. In the decision, a defamation charge was dropped, but three of the named executives were found guilty of a charge related to Italy’s privacy laws, and each sentenced to a six month suspended sentences.
We may not see the Italian decision stand for long, and cannot imagine a similar case happening in most Western countries. But it represents a growing temptation of courts and lawmakers worldwide: to find excuses to strip away the protection the law grants to Internet intermediaries. It’s also an intimation of the very serious consequences to the Net and free speech if those safe harbors are weakened.
Europe has, in theory at least, at the EU level, strong protections for Internet intermediaries in its E-Commerce Directive: Article 14 of that directive provides that hosting providers are not responsible for the content they host, as long as they are not informed of its illegal character, and they act promptly when informed of it. Article 15 clarifies that hosts do not need to monitor hosted content for potentially illegal content.
This judgement guts both these principles. The court dismissed the allegation of criminal defamation but upheld a charge of illegally handling personal data on the basis that a video is personal data, and that under EU data protection law, Google needed prior authority before distributing that personal data.
This interpretation of the law means that Google is co-responsible for the legality of content containing the images of persons — before anyone has complained about the content. That effectively means to comply with the decision, any intermediary working within Italy must now pre-screen every piece of video with anyone who appears within it, or risk prosecution. As the judgement stands, it also presents such a wide definition of personal data that it might effectively require that all hosts pre-screen all content be it video, text, audio or data.
The unconscionable fact that this prosecution is of individuals, while devastating for those involved, is only part of the problem. The whole Internet relies on the fact that third-parties can carry messages without having to self-police, interfere with those messages or take responsibility for millions of others’ communications.
The Net is made of intermediaries, and attacks on the safe harbor protections for those intermediaries is under way across the world. In China, it’s called ISP “self-discipline”. In the United States, it’s rightsholders demanding secondary or even tertiary liability for infringement by users, or loopholes in net neutrality, or attempts to weaken the protections of CDA 230. Italy may choose to unfairly victimize three American executives in this case, but the openness of the entire Internet risks becoming a victim if the safe harbors are compromised elsewhere.
For the first time in five years Mininova is about to disappear from the top 10 of most visited torrent sites. This exit is due to a traffic drop that resulted from the removal of most of the site’s torrents following a lost court battle. Newcomer KickassTorrents is still gaining momentum and has already surpassed Mininova in terms of traffic.
Another brand new episode of TorrentFreak TV. This week’s episode covers the latest Pirate Bay news, Olympic pirates, Twitter’s BitTorrent crush, Flattr, LG’s pirate manual and much more.
Yesterday, Microsoft used a Digital Millennium Copyright Act (DMCA) takedown notice to demand that a copy of the “Microsoft® Online Services Global Criminal Compliance Handbook” (the Compliance Manual) be removed from Cryptome, a security website. As a result, Network Solutions felt obliged to takedown the entire Cryptome.org domain, a repository for thousands of important and controversial documents.
As is often the case, the ensuing uproar simply called more attention to the document in question. Yesterday evening, Microsoft wrote to Network Solutions and withdrew its takedown demand, while insisting that its copyright concern was nevertheless legitimate.
We appreciate that Microsoft acted quickly to correct its error, but are still disappointed that Microsoft nonetheless insists that, in the words of Evan Cox, outside counsel for Microsoft, “Microsoft has a good faith belief that the distribution of the file that was made available at that address infringes Microsoft’s copyrights.”
To the contrary, as we explain below, Cryptome’s publication of the Compliance Manual is a clear fair use under the Copyright Act.
To determine whether a use of a work is fair, courts engage in a case-by-case analysis, starting with the four factors set out in the Act: the purpose and character of the use; the nature of the work; the amount and substantiality of the work; and the harm to the market for the work.
On the first factor, Cryptome used the manual for a noncommercial, transformative purpose—to educate the public on how the government and Microsoft work together and to illustrate how much information is available about internet users. Cryptome did not stand to profit, and was not seeking to exploit the work for money.
Cryptome’s use is also transformative because it does not merely supersede original, but instead “adds something new.” Cryptome took a work designed to inform law enforcement how to work effectively with Microsoft, and, by putting it in a new context, formed the basis for newsworthy criticism of Microsoft and its compliance practices.
The “nature of the work,” factor also favors fair use: factual works like the Compliance Manual receive only thin protection under copyright law, especially where the material has been published.
The extent of permissible fair use copying varies with the purpose and character of the use, and, as the Ninth Circuit has held, “[i]f the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her.” While Cryptome copied the whole work, the whole work was necessary for the public to understand Microsoft’s policies for allowing the government to obtain personal information about them.
The market harm factor balances the benefit the public will derive if the use is permitted and the financial gain the copyright owner will receive if the use is denied. Here, the public, many of whom have personal information stored by Microsoft, benefits by being informed of Microsoft’s compliance practices. And, since Microsoft does not sell or license the manual, posting it on Cryptome didn’t cost Microsoft a penny. As explained by the Supreme Court, a “use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.” This factor favors fair use as well.
The four factors are balanced in light of the purposes of copyright. And here, Microsoft does not need any copyright incentive to create the manual—it has plenty of business incentives to create a guide that will reduce the costs of its interactions with law enforcement. At the same time, Cryptome’s publication serves the welfare of the public by allowing the public to know how their information may be involuntarily disclosed to the government.
Evaluating all the factors together, a court should find that Cryptome’s publication of the Compliance Manual is a fair use.
After an ISP refused to hand over the identity of a customer to anti-piracy lawyers who claim him to be the first uploader of a pre-release movie, they took the case to court. Shrouded in secrecy the case is heading for the Supreme Court but even if the anti-piracy group wins, they’re going to get the ID of the wrong guy.
Yesterday evening, the U.S. House of Representatives voted overwhelmingly to renew three expiring provisions of the USA PATRIOT Act, after the Senate abandoned the PATRIOT reform effort and approved the extension by a voice vote on Wednesday night.
Disappointingly, the government’s dangerously broad authority to conduct roving wiretaps of unspecified or “John Doe” targets, to secretly wiretap of persons without any connection to terrorists or spies under the so-called “lone wolf” provision, and to secretly access a wide range of private business records without warrants under PATRIOT Section 215 were all renewed without any new checks and balances to prevent abuse. Despite months of vigorous debate, when PATRIOT renewal bills providing for greater oversight and accountability were approved by the Judiciary Committees of both the House and the Senate, Democratic leaders’ push for reform fizzled in the face of staunch Republican opposition buoyed by recent hot-button events such as the attempted bombing of an airliner on Christmas Day and the shooting at Fort Hood.
The renewed PATRIOT provisions were originally set to expire on December 31, 2009, but Congress ran out of time last year and temporarily extended them until February 28th, this coming Sunday. The new extension is expected to be signed by the President before then.
The one silver lining? Despite a push by Republican leaders for a four-year extension, the renewed provisions are now set to expire in one year. So, although this battle’s been lost, the effort to roll back PATRIOT’s worst excesses is far from over. Thank you to everyone who took action to support PATRIOT reform this past year; we hope that you’ll continue the fight with us in the next year.
The Ministry of Justice has published guidance to European Regulations on which law applies in international disputes. The guidance relates to new rules that came into force in December.
Jim Keyzer, a police IT forensics specialist who was leading the Pirate Bay investigation while he was also working for Warner Bros. is back in action. Despite all the controversy he is now leading the IT Crime Unit which is tasked with various anti-piracy efforts.
The Government should drop its 50p per month tax on phone lines and put its plans to increase superfast broadband coverage on hold, MPs have said. The tax is regressive and unfocused, they said.