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Monday, 29 March 2010

What a week! A weak copyright!



The Counter 2010 Conference in Manchester where there was talk about Privacy issues around copyright regulations
;
The IpKat Google Adwards Trademarks Seminar in London
 ;
The Child Protection event at the House of Lords with Mark William Thomas
.
These three followed last week's Privacy International's 20th birthday celebration in London.
Together they resume my main areas of interest as a lawyer specialized in Internet and New Technologies from intellectual property and privacy angles.
Another angle was not highlighted as such, but was present all over the debates: that of consumer rights.
And yes I also have a personal connection with all of this, being a French citizen, living in England and married to an Australian - this puts me at the cross-roads of the debates:
France invented the graduated response;
Australia filtering and internet censorship;
United Kingdom the Three Strikes law.
I might add that I have many acquaintances in the US who follow the ACTA negotiations.
I have been involved in the past with child safety on the internet, working with European Research into Consumer Affairs (ERICA).
I was at some point in contact with Parry Aftab from WIred Safety to represent the organisation in UK. Child safety has long been, and remains, a major concern for me.
On the other hand I am convinced that the internet is one of the greatest media of communication, knowledge share and democracy and there are many other ands...
At the Counter 2010 Conference we listened to industry, EU representative and academic points of view on copyright protection with The UK Three Strikes law, the French HADOPI and ACTA. How can all these rights be reconciled and balance copyright holders' interests with the general public's privacy rights in the digital world? The fundamental right of internet access need not be discussed any more. Neither does the private individual's expectation of retaining control of personal information.
At the House of Lords we listened to the research results on internet child grooming and child pornography from academic and sanctioning points of view. The latter were presented by Julia Davidson, Professor of Criminology at Kingston University and Antonia Bifulco, Professor of Health and Social Care at Royal Holloway University. Elena Martellozzo from Middlesex University and criminologist Mark Taylor-Williams presented the research results of 18 months of police operations relating to internet abuse. Mark Taylor-Williams considered a number of child pornographic materials being transmitted through peer to peer networks such as LimeWire.
That brings the discussion to network surveillance and conflicts with envisaged copyright regulations. 
The key point that I spot here is : when should we, or should we not, monitor net communications?
Do we consider the situation of representatives of copyright holders in the music, film and software industries to be sufficiently in danger to justify a level of surveillance that will lead to a modification of peer to peer network communication as we know it today?
The French edition of the "ReadWriteWeb" online magazine has published its own theory that you might consider.
Many technical experts that I have  personally met - from Ralf Bendrath
 whom I met at the Privacy conference in Brussels to Chris Parsons
 who did a presentation at Counter Conference or the inventor of the World Wide Web itself, Tim Berners Lee
) consider that there is a high likelihood that illegal file sharers (and it's important at this point to mention that file sharing is NOT necessarily an illegal activity) will modify their behavior by using encryption technologies and Virtual Private Networks to escape the censorship of copyright protection.
What does that mean exactly?
Putting it In other words, the speed of technological evolution will not make it easy for regulation to keep pace. The heavy, tech savvy illegal downloaders will use the appropriate technology to escape the censors.
Why child protectors should be concerned?
Simply because this repression will not only generalise, but also encourage, the advance of encryption technologies which will not allow the monitoring of internet communication for the sake of child protection.
If copyright law enforcement advances then this involves further Deep Packet Inspection and this is where privacy advocates should be alarmed.
Why Privacy should be concerned?
Simply because Deep Packet Inspection or filtering of online communication will allow a 'deeper' look at packet transfer although we are re-assured that no one is actually looking at the content of the packets but instead simply scrutinizing the 'headings'.
I can't see what would stop the process once it has been legalized (engaged or generalised). There is a lack of transparency at the moment on the use of Deep Packet Inspection by ISPs and this can only get worse if the Three Strikes law and like measues are passed.
In our judicial systems, a balance of rights is essential. Article 8 of the European Court of Human Rights, as 'guarantor' of Fundamental rights, has strict rules on the limitation of individual's privacy
. The storing and processing of personal data for the purpose of copyright protection constitutes an interference with the right to private life. The test of proportionality has to be applied in order to justify invasion of privacy and collection of data. 
From that point of view, there are three major obstacles for the adoption of the measures:
1-  there is no evidence that the action can achieve its purpose;
2-  the action is not necessary to accomplish the purpose;
3-  there are alternatives available for accomplishing the same purpose with a lesser cost in terms of individual privacy.
In parallel, the ISPs have expressed their limitations
:
1 - It would be technically impossible or unreasonably expensive to block peer to peer downloads even with the filtering technique.
2- There would be no totally secure network as anyone could hack the network or snoop an IP Address.
The ISPs are asked to be judge and jury.
How could we handle the balance of rights in a context in which it is unclear what should be considered a valid notice of take down. I refer here to two research results, one run by the Oxford University - the Liberty experience - and the "Multatuli Project" experience by "Bits of Freedom" on a larger scale
. In both cases material that was obviously out of copyright was posted by the researchers. However, in most cases the ISP followed the injunction to take down without any sort of verification. This bogus take down is against individual rights and freedom of speech.
I could also mention the controversial French HADOPI law
. The font characters used for the HADOPI logo have been registered and belong to Orange of France Telecom. Also, the brand 'HADOPI' itself  is copyright protected
. An irony that merits reflection.
Giving more voice to consumers
At the European meeting of the Family Online Safety Institute Conference in Paris where I was invited to speak on Privacy, we discussed net-citizenship. FOSI and other family organizations promote awareness of internet users from kids to parents and carers to the education system.
The EU Consumer group recently organised a meeting in Brussels which unfortunately I could not attend on ‘web 3.0:what's in it for consumers? Challenges and Opportunities for Consumers in the Future Internet.
I strongly believe internet is still at its early stages and users have not yet learned how to master it.
By analogy, the situation can be compared to that of drivers of automobiles. When first invented, few owners were on the road and they were able to deal with the relatively minor  issue of cross-roads. Once the automobile became a democratic means of transport the need of regulation arose. This regulation came in parallel with education.
I am not saying we necessarily need an internet driving license. The internet needs to find its own way of reaching a balance of rights that needs to be discussed democratically and not behind closed doors as was the case for the secret ACTA negotiations.
Today, it is unclear even for many academics what is copyright infringement and what is fair use.
This is an area of cross-roads of law and technology where many lawmakers and political representatives have no actual knowledge of the technical impact of the regulations. Prior to the vote of the HADOPI law in France, the members of parliament interviewed actually had very little knowledge and many false conceptions of peer to peer file sharing. They can't be blamed as many people are still not using all of the potential of the net. However this, plus the limited number of representatives engaging in the parliamentary debates, show the lack of real debate.
The lobby of the film and music industries is exercising a strong influence.  It is regrettable that the consumer point of view, as well as the individual artists’ rights themselves, are under-represented.
In my view, the threat to privacy and the principle of Net neutrality do not justify the rush to protection of the lobbyist.
The lawmakers need expert advice on the actual functioning of the internet and the legal consequences of the new regulations. Legal experts need to work in parallel with technical experts to measure the consequences of the measures of censorship and Deep Packet inspection or any other measures of traffic monitoring.  
While these measures can be justified on the basis of protection against personal harm, this has to be exceptional and under judicial scrutiny. However at this point I do not feel the economic interest of fairly wealthy organizations could justify such a restriction of fundamental rights of internet access and privacy.
All the more as  there is no evidence that the goal could not be achieved by other means. Even more as there is evidence that the measures are unable to achieve their aim as the file sharing will bypass the measures by the use of encryption technologies and Virtual Private Networks harmful for crime investigation. 
It could be added that the ISPs have expressed deep concern, technical as well as financial, about the implications of the Three Strikes Law.
Ultimately, if the graduated response was applied, it would impose a collective level of responsibility of the account holder, held liable for the use and abuse of its network by others.
The view of the French Association, 'La Quadrature du Net'  has been the limit of security of private individuals  to secure their networks
.
There are multitude hacking technologies to access networks for the sake of illegal downloads from accessing the network or using IP addresses. As mentioned by Orange Senior Legal Counsel the actual design of dynamic attribution of IP addresses is in total contradiction with the new measures.
While the policy has been reducing the digital divide and encouraging a more democratic access to the internet, copyright repression will take a reverse path creating a general fear among many parents to even allow access to the internet for fear of being cut off. What we need is better education, encouraging safer access to the net, adopting net-citizenship attitudes.
I remain confident that education and awareness are the key to many of these issues.
The American Law scholar, Lawrence Lessig, initiator of the Creative Commons whose videos have been silenced twice for including a few seconds of protected music, has used this to demonstrate the re-mix concept
. I agree with him that it cannot be expected from your users to respect copyright law while it remains unclear for the specialist what is actually being protected.
Are we certain that the ipod offered by the President of the United States to the British Queen with itunes downloaded files was or was not copyright infringement?
Coming back to the Google Adwords seminar, I share the view of my colleagues expressing concerns about the effect of the quasi-monopoly of one institution in the digital world. The Search Engine is the central key of internet knowledge. Being at the two first pages of the search result is determinant for many users.
Taking a more general view, it is unhealthy to have one organisation becoming dominant to this extent and aggregating so many private data.   
My very last argument is the climate of repression that such a measure could create: the escalation of attacks and ripostes. Many security experts believe the file sharer would simply resort to more sophisticated, less discernible means of file sharing.
The deterrent will only discourage small individual file sharer that hardly caused any harm to the industry.
 They might face many unscrupulous law firms that will threaten them with legal action to push users to settle to avoid court action. Already concern has been expressed about ACS:Law and now Tilly, Bailey & Irvine schemes to chase alleged file-sharers.

The professional downloader will only modify its behavior.
Some believe that this could actually create an organized 'mafia' of professional file sharing in parallel with child abuse related activities. Our society should remember the presumption of innocence principles where the rights of individuals are protected unless and until infringement has ben proven. Reversing the burden of proof is a dangerous path against democracy.
We risk to create a climate of war and anti-trust resulting by escalation of measures of surveillance always by-passed.
Instead we should promote, education, awareness and citizenship to find the right balance of netiquette and financial protection for copyright holders but not surveillance or internet cut off.
The hierarchy of rights should place privacy and child protection above copyright considerations

The Privacy Implications of Deep Packet Inspection Danielle Keats Citron
How Deep Packet Inspection Changed the Privacy Debate - Ronald W. Del Sestro Jr. and Jon Franket
See Liliane Edwards on her blog PanGloss 'Filtering round up: French filtering, Ireland backs off, UK slide steps?'
Telegraph UK 'Terrorism and Child Pornography used to justify surveillance society says academic'
28th March 2010
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