This guest post is written by Gwen Hinze, from the Electronic Frontier Foundation, for our series of blog posts on the importance of online civil liberties as part of EFA’s 2010 Fundraising Campaign …

The Internet enables access to knowledge and new opportunities for freedom of expression for all the world's citizens. Digital communications technologies can empower citizens to live rich and rewarding lives, participate in civic life, take part in important decisions that affect them, and share with one another across borders. We have seen individuals use new communications technologies to democratize the creation of culture, up-end traditions, and create innovative new business models.

Citizens empowered with digital technology have changed the course of history, as evidenced, for example, by the worldwide scrutiny Iranian dissidents were able to bring to their country's election in 2009.

But empowered individuals can be disruptive to those who have traditionally been in control. More and more, Internet users find themselves in conflict with vested interests in the entertainment industry and governments trying to control their citizens' freedom of expression. For instance, the Iranian government was able to employ its considerable resources to censor and surveil its citizens' communications on the Internet.

While the Internet is global, it is rooted in a physical infrastructure that makes it vulnerable to national policies, laws, and technical measures.

In many countries across the globe, debates are currently raging over a suite of Internet policies, including government-mandated online censorship, whether ISPs should be required to police the speech of their users, and whether users should face disconnection from the Internet -- a type of digital exile -- on the basis of entertainment industry concerns. The results of these debates are important to all of us, because, unfortunately, short-sighted proposals adopted in one country often pop up again in other places. For example, the French HADOPI law that requires automatic Internet disconnection after a person has been accused of sharing copyrighted material three times is now being considered in the UK, New Zealand and in the global Anti-Counterfeiting Trade Agreement.

As you read this, many individuals and governments are watching to see whether Australia will be the first western democracy to adopt network-level Internet filtering that follows the approach taken by the Great Firewall of China.

Defending the free and open Internet and the rights and freedoms of technology users is an international task. It requires coordination and collaboration by a global network of organizations with a passionate commitment to citizens' civil liberties, and the technical and legal expertise to know how to fight and win these battles.

Electronic Frontiers Australia has always played a crucial role in fighting against Australian government Internet censorship threats and has been a key player in the global fight for digital rights. EFA played a key part in defeating Senator Alston's previous Internet censorship proposal.

EFA now needs your support to continue the fight to protect the free and open Internet and your right to use digital technology as you choose.

Gwen Hinze is International Director of the Electronic Frontier Foundation (EFF), a digital civil liberties organization based in the United States. Although not formally affiliated, EFF and EFA work together on many global initiatives in the fight to protect the free and open Internet and to defend the rights and freedoms of individuals in the online world.

Michael Geist is reporting that the text of the secret Anti-Counterfeiting Trade Agreement (ACTA) chapter on internet enforcement has been leaked. As suspected, the text is unlikely to require major changes to Australian law, but it does do two very concerning things:

• Increased pressure on intermediaries (ISPs) to monitor and police their networks: in the recent iiNet litigation, the Federal Court found that ISPs were under no obligation to terminate the accounts of subscribers that the film industry alleged (without proof) were infringing copyright. This is a contentious point, and we expect to see the copyright industry lobby for legislative change. The ACTA provides them with more ammunition to argue for a three-strikes policy, which is unfortunate.
• Increased entrenchment of the harshest level of copyright sanctions: my biggest concern with ACTA is what it means for the way that international copyright law is developed. Copyright is such an important part of the framework that governs the way that we interact online - it underpins nearly every aspect of modern communication. Because the balance between providing authors with an incentive to create and users with the ability to access is so critically important, the way in which copyright policy is made is also critically important for a society. The ACTA, a secret plurilateral agreement, ensures that the role of the public is minimised, allowing corporate rightsholders to set the agenda for copyright policy.

(more...)

The negotiations for the ACTA, the secret Anti-Counterfeiting Trade Agreement, are underway in Mexico this week, and there's been a lot of coverage around the world of the lack of transparency in these talks. For those who are not familiar with the agreement, I want to recommend Michael Geist's excellent five part ACTA Guide:

• The ACTA Guide, Part One: The Talks To-Date
• ACTA Guide, Part Two: The Documents (Official and Leaked)
• ACTA Guide, Part Three: Transparency and ACTA Secrecy

Parts four and five will be up later this week. So far, these posts do a great job of succinctly explaining the ACTA process, what we know of the content, and the concerns about the lack of transparency.

The next round of negotiations on the secret Anti-Counterfeiting Trade Agreement (ACTA) are due to begin this week in Guadalajara, Mexico. On the agenda this week are civil copyright measures, border measures, internet enforcement measures, and, very briefly, the issue of the lack of transparency in the negotiations.

While much of the text is hidden from public view, the EU’s analysis of the negotiations was leaked late last year. The leak confirms that the ACTA is designed to impose the tough sanctions developed by the US for copyright infringement on other signatories. The main goal of the ACTA seems to be to bypass the WIPO system and entrench US-style copyright regulations around the world. In this sense, a multi-lateral agreement may be more effective than the series of bi-lateral agreements that we have seen in recent years because it has the opportunity to bind several countries at once to implement US-equivalent law.

By doing away with the open international process that WIPO conducts, the ACTA poses a real threat to the reasoned modification of intellectual property laws worldwide. By doing so in secret, it ensures that democratic processes are marginalised; the public will only get to see the text once it has been finalised, at a point when it is likely to be too late, politically, for states to withdraw support.

(more...)

I spoke on Sunrise this morning about Joel Tenenbaum's case in the US; a young university student who will now pay around three quarters of a million Australian dollars in damages to four record labels after a judge upheld a jury decision that could've maxed out at $4.5m USD.

Joel's case is terrifying, only the second person in the United States to stand up to the record labels' campaign of suing their customers for copyright infringement under the particularly pointy US copyright laws.  Most people who have had action brought against them have settled out of court under the threat of galactic damages and legal fees for what amounts to copying songs for free when they should have paid $0.99 for them.

What's particularly unique about this case is the way Joel chose to defend, unfortunately the judge found that the way he and his legal team - headed by a Harvard Law School professor - didn't act with sufficient respect during the proceedings to have his particularly broad defence listened to.  Joel didn't argue that he didn't do it, or that he didn't do enough to warrant this sort of trouble, he instead tried to argue that each song that he downloaded was too insignificant to be considered an act of copyright infringement - a "fair use" defence.   This hasn't flown, at least in part due to Joel's insistence on filing silly motions like trying to have the case televised, and it unfortunately sets a precedent that of the two cases that have gone to trial in the US, both have ended with astronomical damages for the defendant.

What's this mean for Australia though?  We don't have these same laws, right?  Well not yet we don't.  Our latest round of copyright law changes were as a result of a free trade agreement with the United States, extending copyright terms from 50 to 70 years after the author's demise and polishing a bunch of other areas of our laws.  In order to have access to free trade with the US, a condition is that we make our copyright laws as nasty as theirs and a new round of negotiations on this issue are due to be completed next year with the first discussions being held in secret in Morocco (this is the 'ACTA' agreement).  It's not unreasonable to think that down the track, our habit of copying United States legislation will mean that an Australian family will be mortgaging their house to cover a $750,000 fine for downloading a few songs.

Joel's behaviour wasn't great, faced with a perplexing 30km/h speed limit on an 8 lane straight freeway, he sped.  That's not the way the law works, we don't get to break it just because it's stupid.  But EFA including myself, don't excuse the behaviour of the recording industry in nailing their second victim to bankruptcy.

The new round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations has started in Seoul. This round sees the introduction of the long-anticipated internet enforcement measures, which the US has drafted in secret. Michael Geist reports that the draft text is modeled on the US - South Korea free trade agreement, and focuses on five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required [to] establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.
5. Rights Management provisions, also modeled on U.S. free trade treaty language.

(more...)

Richard Giles has a few posts on his blog about a matter you may have heard about. Richard took some photographs at the Beijing Olympics and posted them on his Flickr account. Last week he was sent a rather forceful cease and desist letter from the IOC, which he also put up. The story was picked up by a number of influential sites, and people all over the world voiced their outrage at what they see as unfair restrictions on sharing personal photographs of the event.

Image by Tama Leaver, available under CC BY 2.0.)

This story makes a very interesting read. It raises significant issues about the ability of spectators to take and share photos of events, and the way in which contract law is used to override the explicit lack of protection in copyright law for spectacles. More interestingly, however, it reads as an educative guide on how not to enforce intellectual property rights. As Richard explains, the Media and Communications Director of the Australian Olympics Committee was not happy about the bad press that resulted after Richard publicly posted the letter he received. Richard's actions, however, seem reasonable - he was always calm and measured about his statements, and I see no reason that he is required to protect a rightsholder from potential criticism for the way in which they send legal threats. Interestingly, Richard shared a follow-up email from the IOC, in which the IOC explained their position in much greater detail and much more polite language.

The story ends in a way that's not quite satisfactory - Richard has had to change the licensing on his photos from a permissive non-commercial licence to 'all rights reserved', and the IOC and the AOC have weathered some substantial criticism for their actions.

The moral of the story, however, seems fairly clear: pick up the phone or send a personal email before sending a form cease and desist letter.

Read the story on Richard's blog: Part 1 and Part 2.

[ edit 01 Nov 2009: fixed a typo. ]

The QUT Faculty of Law and Queensland Public Interest Law Clearing House are running two free intellectual property and technology law advice sessions in October and November in Brisbane.

Professor Brian Fitzgerald and Kylie Pappalardo from QUT Faculty of Law, in conjunction with Queensland Public Interest Law Clearing House (QPILCH), have established an IP and Technology Law Clinic to provide free legal advice for members of the creative and technology sectors with limited financial resources. Ask legal professionals about copyright, recording and publishing agreements, media rights, digital distribution, business models, and much more.

Book now for the inaugural advice sessions: Thursday 29 October 2009 and Thursday 26 November 2009, Brisbane CBD from 5:30pm-7:30pm.

To make a booking, call (07) 3136 6836

This is an excellent opportunity for those who need free legal advice in Brisbane. If you're not in Brisbane, you may even be able to get the lawyers at the clinic to give you advice by telephone.

This week I was interviewed by Phil Dobbie for ZDNet's Twisted Wire program. Also interviewed were Peter Coroneos from the Internet Industry Association and Adrianne Pecotic from AFACT. You can listen to the podcast (direct link (mp3)).

One thing I found disturbing about this interview was AFACT's suggestion that the law was clear and that iiNet had a clear responsibility to monitor its subscribers' internet use and disconnect users who infringe. This is obviously a contested issue, and the law certainly is not clear. The particular requirement of the Safe Harbours are largely untested - both here and in the US - and particularly against ISPs. We have mostly assumed that ISPs were more like common carriers than the P2P networks that have been found responsible for secondary copyright infringement. The iiNet case challenges that assumption, but it is misleading to argue that the law is clear in any meaningful way.

A few weeks ago, I reported that ContestedFooty.com had received a cease & desist letter from the AFL over its use of original images depicting AFL players in the context of reporting and providing commentary on AFL news and events.

We were able to put the administrators of ContestedFooty.com in touch with a local solicitor who was willing to donate the time to examine the AFL's claims and demands. I am now happy to report that ContestedFooty.com has advised the AFL that they will continue to use images relating to Australian Rules Football in their independent coverage of the sport.

(more...)

Cory Doctorow is reporting that Australia is part of a group of countries that are opposing a treaty that would ensure that people with a print disability have greater access to published copyright material.

The draft treaty (MS Doc; Google cache here) includes several important clauses, including:

• an exception to copyright infringement for non-profit supply of accessible versions of works to which a person with a print disability already has access in a non-accessible form;
• a statutory licence for reasonable for-profit supply;
• an exception to anti-circumvention law to allow blind persons to break technological locks that make the work inaccessible; and
• most importantly, an exception that allows importing and exporting of accessible versions of copyright works, enabling them to be distributed to blind people in other countries.

Please help us ensure that people with a print disability have access to published copyright material in an accessible form by raising awareness and contacting the Attorney-General's Department.

(more...)

A few days ago, a Swedish court found the four figures behind thepiratebay.org guilty of criminal copyright infringement and sentenced them to pay approximately $5M AUD in damages and serve a one year prison sentence. The severity of the punishment is surprising, particularly as the operators of the Pirate Bay played a fairly loose role in any copyright infringements -- merely providing an index of torrents already posted and tracked elsewhere.

But whatever we may think of The Pirate Bay, this case raises another example of a very troubling period for copyright law. Pirate Bay and other public trackers are clearly responding to consumer demand, and tougher sanctions for copyright infringement are unlikely to change that. Over the past ten years, we have seen that these actions have rarely, if ever, been successful in curbing the volume of filesharing. New filesharing technologies developed after Napster, Aimster, Grokster, Kazaa, and the creators of other networks were successfully sued. This trend is likely to continue, because the underlying demand is not being addressed.

The goals of copyright are noble. We all want to ensure that professional creators have the ability to be paid for their work. But the current approach of imposing harsh punishments on users and intermediaries is not helping with that goal.

(more...)

Michael Geist is reporting that ”[t]he European Parliament has voted for a proposal to bring more transparency and public access to documents. The resolution includes specific language about the Anti-Counterfeiting Trade Agreement.”

Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.

Geist notes that ”[t]he vote sends a strong signal on the need to open the ACTA process and heightens the pressure on the negotiating countries to remove the veil of secrecy.”

(more...)

Thanks to an impressive campaign spearheaded by Creative Freedom NZ, New Zealand's controversial 'guilt upon accusation' clause, s 92A, will be delayed and may be suspended and may be abandoned.

Section 92A is a graduated response provision that requires ISPs to “adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.”

Unfortunately, the definition of 'repeat infringer' is not clearly defined. The provision states that “repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.”

This wording is familiar - it is almost word for word identical to the Australian limitation on safe harbours in s 116AH, which provides that “The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.”

There has been an incredible showing of online protest at the forthcoming introduction of s 92 in New Zealand, and a lot of international support. We at EFA are heartened by the change that New Zealanders have been able to achieve. This is a notable victory for users, and is very encouraging for similar action worldwide.

(more...)

EFA has lodged its submission to the Department of Broadband, Communication and Digital Economy's Future Directions review.

The submission tackles a number of important issues for the digital economy, including open access to public sector information, electronic accessibility of printed material to people with a print disability, broad-based ICT training, and copyright policy.

We conclude the submission with a reminder that our policy framework ought to empower Australians to access and build upon information in the digital economy:

As Australia transforms into a knowledge based economy, the policies we choose to adopt for the creation and dissemination of information become crucially important. It is becoming increasingly clear that greater access to information and greater technical and legal abilities to remix, build upon and improve that information are fundamental drivers of innovation. EFA believes that the single most important issue in an innovation policy is ensuring that Australians are empowered to innovate, and that the barriers we impose to innovation are justified with reference to our social goals.

Edit: This submission is available under a Creative Commons Attribution-Noncommercial-Share Alike 2.5 Australia License.

Electronic Frontiers Australa (EFA) today expressed concern about a lawsuit filed against Internet Service Provider iiNet in the Federal Court. A consortium of media companies have sued the ISP for allegedly allowing its users to download infringing movies and TV shows by failing to terminate their accounts after allegations of infringement by the copyright industry.

"This lawsuit is the latest attempt by the movie industry to bully Internet Service Providers into becoming copyright police," said EFA spokesperson Nicolas Suzor. "ISPs are not in a position to monitor and terminate internet access to users based upon unsubstantiated threats from copyright owners, and should not be asked to do so."
(more...)