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Pirate Berlin

Early last August Pirate Party posters appeared in large numbers throughout Berlin in anticipation of the city elections in mid-September. Since the Federal elections of 2009, where they reaped much media attention as new contenders, things had been quiet. On that occasion their final vote came in just under 2% nationally, but this concealed a vote in Berlin that was nearly double that level, with local support in the constituency of Friedrichshain/Kreuzberg reaching 6.2%, promising them seats in the next local election.

The 2009 campaign marked the first time that online public sphere began to be taken seriously as a factor in the vote, and through a combination of their intense social media presence, popularity amongst young voters as expressed in online polls and the general emphasis on network politics the PP became positioned as the ‘party of the internet’. Germany has a distinct engineering culture due to the scale and centrality of its technology-driven industries, and the PP drew heavily from this pool both in terms of activists and policy relevance, but this narrow techno-fetischism also constituted an inbuilt limitation to their appeal.

2011 was different. What was immediately striking about the PP’s poster campaign was its playful tone, self-irony and lack of focus-group sleekness. So much so, that the whole thing looked initially as if it might be a prank. Notable also was the expansion of the issues addressed: this was not an agenda of pure technophilia: posters laid out their support for a guaranteed basic income, decriminalisation of drugs, secularisation and increased transparency in political administration. In addition they proposed the introduction of city-wide free public transport, and set out alternative ideas about education in a country witnessing declining graduation at third level in comparison with the preceding generation.

“Why am I hanging here? You’re not going to vote anyway!”

How the Right Came Unstuck
I think it’s difficult to grasp what happened in Berlin without an understanding of the wider national political climate as well as local factors in the city itself. Since their election in 2009 the CDU/FDP coalition has met a series of defeats on a regional level. Two issues in particular have occupied public attention with devastating consequences for the government.

The first is the fight over the construction of a new central train station, Stuttgart 21, in the regional capital of Baden Wurttemberg. Opposition by a broad alliance of environmentalist groups culminated in the occupation of a green area, subsequently evicted amidst massive police violence. Clashes on demonstrations are not unusual in Germany, but on this occasion the victims were not principally anticapitalist youth, but middle class ‘civilians’ – with disastrous consequences for the local junta. As a result the CDU lost control for the region for the first time in more than half a century.

Then came the nuclear accident in Fukushima, which intensified an already stormy and longstanding political debate on nuclear energy, leading to the reversal of the government’s policy postponing reactor closures. The most immediate beneficiaries of this events were the Green Party which saw instant growth both at the polling booth and in opinion polls. Combined with an array of smaller controversies the governments popularity sank, with the SPD also putting a floor on their recent decline in support.

Wir Sind ein Volk: Ihr Seid ein Anderes!

courtesy of http://www.flickr.com/photos/bopuc/


“We are One People: You Are Another!”
Anti-gentrification poster on the streets of East Berlin, 2009

A reminder is in order here that the German economy has significantly outperformed the rest of Europe in the last couple of years. 1998-2003 was a period of recession, after which growth improved until 2009 where there was a sharp contraction in GNP of 5%, directly linked to the fall in global demand for Germany’s exports. Since then however, exports have recovered both to other EU states and emerging markets. Low levels of home ownership and the difficulty of accessing mortgage finance sheltered Germany from the financial events which have unfolded since 2007, although German banks and investment funds have been damaged due to investments made overseas, notably in the US sub-prime market.

What is poorly understood overseas however is the regional nature of the German economy, and the degree to which it continues to be centered on key nodes in former West Germany: a Munich-Nuremberg axis in Bavaria, Baden Wurttemberg, Frankfurt (finance), Koln, Hamburg and the Ruhrgebiet. Berlin is cut off both in terms of human capital and infrastructure from these areas, and struggles as a result. The local economy is heavily reliant on public sector employment in government and administration, tourism, and construction. While there is some software, pharmaceuticals and media production, they are in relative terms discrete employers. The biggest new employer is the German intelligence agency, the BND! Consequently local unemployment remains stubbornly high, over 13% according to official figures, and wages are low.

A corollary of the weak economic situation has been the relatively low cost of living, especially in terms of rental rates. Notoriously this has attracted a lot of under-remunerated cultural producers to make the city their home. But in the last four years rents have increased precipitously, between 15-20% annually in some centrally located areas, and when combined with weakened tenant protections and reduced investment in social housing; the result has been significant levels of displacement. New construction is occurring but is confined to apartments marketed to investors from other areas of the country and abroad. In fact this process has been underway since the 1990s, but had abated during the 1998-2003 slump – now it is back with renewed vigor. Local conflicts over urban development and planning have intensified and drawn in wider tranches of the population. The failure of the local administration – a coalition of the Social Democrats and die Linke – to respond to the resultant insecurity, combined with the poor economic opportunities available have opened the door to other forces. Previously the Greens would have been expected to clean up in this scenario, but they are perceived increasingly as the party of a lifestyle-defined middle class which has jettisoned its radical DNA, and in Berlin this doesn’t play as well compared to prosperous regions in the west.

In sum the conditions for a new protest party were ripe, and the Pirate Party were there to capitalise. They took more votes off die Linke proportionally than from anyone else, especially in the constituencies in the east. In areas characterised by a high level of conflict over housing such as Friedrichshain, they scored their highest results in absolute terms, hitting up to 17%. This area had been the scene of a massive campaign in defense of a squatted ‘house project’ (where people live collectively and conduct cultural and social activism), Liebig 14, which was evicted in February of this year. One element of the PP’s programme is to enable access to loans for tenants who want to buy their houses out from their owners rather than there being released on the open market. Meanwhile, on the border of Prenzlauer Berg and Wedding one of the city’s most popular parks is slated to be partially developed as condominiums, provoking anger and regular demonstrations in which the PP have been active. Along the site of the former wall, what was once social housing (built during the massive architectural project of the 1980s, the IBA) is in the process of reverting to private ownership, with increases in rents of up to 200%. This does not mean that the PP is a new Tenants Rights Party, but simply that the failure of the historical ‘alternative’ and ‘left’ parties has alienated many and opened the door for others.

Aftermath
What I want to get across is the complexity of trying to analyse the Pirate Party’s extraordinary result. While no enthusiast for electoral politics, I have been involved in the fight against intellectual property expansionism and have thus paid attention to the progress of the various PP’s since the start. But the copyright question which instigated the organisation’s creation was a footnote in the election. Nonetheless there has been enough happening in the copyright and surveillance realms to steel activists attracted by this issue. Germany, in fact, has had one of the most frantic enforcement campaigns in Europe in recent years, with the development of what is widely referred to as an enforcement industry where IT companies are contracted to trace those sharing files online so that lawyers can then make demands of ‘compensation’, an approach exemplified by companies such as Constantin GMBH, rights owners responsible for the famous sweep of Downfall videos from youtube. In October CDU politician Siegfried Krauder floated a proposal for a three strikes style law also in Germany, even though this would go against the coalition agreement made with the FDP (which contains a determined civil libertarian faction). Elsewhere, the campaign against intrusive surveillance was enlivened by revelations that police in Dresden engaged in generalised interception and parsing of mobile traffic and SMS during popular demonstrations against a neo-fascist rally in Dresden last winter.

The Pirates took 8.9% in the Berlin election. So unexpected was this that they cannot in fact fill all their seats. Every candidate for the City was elected, but several of them were also elected to the local councils in their areas, and due to the prohibition on dual-mandates some will go unfilled. Opinion polls have put them on 8% nationally, but it will be difficult to sustain this if they do not transform novelty into meaningful intervention. The crucial question is what would a meaningful form be. Events elsewhere such as the Occupy movement reflect a general distrust of the political system and its modes, a humor which arguably is analogous to the motivation driving the Pirate Party’s success. If this is so, then there is a case that the PP would be best served not by playing the Parliamentary game with too much earnestness, but rather should expose it and demonstrate the castrated notion of participation which it represents.

Following the election a debate kicked off in the TAZ newspaper regarding the left-wing credentials of the party, or lack thereof. Opinions vary, as do the self-descriptions of prominent party members. Current leader Sebastian Nerz is a former member of the conservative CDU, and the party also includes many former liberals; he prefers to charcterize it as a socially liberal progressive party. From the other side of the spectrum the Pirates have picked up members from all over the left, including a former chairperson and MEP of the Green Party, Angelika Beer, and former MP Herbert Rusche.

Parallels have been drawn between the struggle between ‘vollis‘ and ‘kernis‘ in the PP and the earlier fight in the Green Party between ‘realos‘ and ‘fundis‘. In the PP context this refers to a tension between those favouring a minimal program based on technological issues and those who want the party to develop a full programme, including the thorny issues around the social state. A congress in Bingen in 2010 grappled with these issues unsuccessfully, but the question was resolved at another meeting later that year in Chemnitz. On that occasion the membership endorsed a proposal to support a guaranteed income and to back the introduction of a statutory minimum wage in the interim. This move was actually opposed by the then leader Jens Seipenbusch. The result in Berlin clearly favours the more expansionist current in the organization.

On the back of their gains, however, the PP has now also made itself a target for more calculated attacks. The Greens and die Linke will be ruminating on how to deal with the threat they pose, with Renate Kunast (the local Green leader) quipping to a business audience before the election that they could be ‘rehabilitated’, and presumably co-opted. This is unsurprising, seeing as in absolute terms the PP took more voters from the Greens than any other party.

Subsequent attempts to smear them mediatically may not be unrelated. One instance of this has been the attempts to link their activists with the far-right NPD, on the ground that a couple of their members had a previous involvement in that organisation. Having seen Pirate Party members in Berlin on grassroots antifascist demonstrations in the city, inches from braying boneheads, I would give this no credence. In every political organization there are those with flawed pasts – it’s no grounds to censure them forever. But the circulation of this story speaks to the new seriousness with which the Pirate Party are being treated, and they can afford to be sanguine about it. As disreputable friends in Italy would say: molti nemici, molto onore – many enemies, much honour. :)

October 31, 2011 Posted by | /, berlin, Germany, Pirate Party | 1 Comment

Consultations, Coming and Going…

July has been a busy month.

Arrived in Berlin only to discover that two copyright consultations are taking place in Ireland – what excitement!: a proposition to introduce a ‘fair use’ clause to local legislation (rerunning the Hargreaves inquiry), and regarding an amendment designed to enable rightsholders to obtain injunctions against internet service providers where their infrastructure is allegedly being by users for infringing purposes.

Although sceptical about such processes, I had worked on a submission to the EU Commission about the Enforcement Directive earlier this year, so I did throw in a rushed contribution. But the technical nature of these mechanisms largely elides the really crucial questions. What sectors are truly dependent on copyright, rather than just happy to take advantage of it? How extensive and significant economically are these sectors? What are the costs imposed on cultural users and consumers as a result? What way do these rules shape what type of culture is produced and the organisation of the industries that produce them?

On a narrower level of economic development the issue is basic: how can it be that in a country like Ireland, where Google employ more than 2000 people, there is no explicit protection of search engines, nor for the innumerable ways of aggregating and reusing information – the basic operating space for technological invention, innovation and diffusion – from copyright liability.

‘Fair use’ in the US functions as an affirmative defense for exactly these type of cases where works produced produced for one purpose or market,are transformed into something entirely different. Fair use is a statutory, general, defense to copyright infringement, applied on a case by case basis which renders it flexible and adaptable to unforeseen circumstances.

The Hargreaves report in the UK ultimately opted against advising the creation of this defense – why? Their argument was that it would create so much uncertainty, that the greatest beneficiaries would be lawyers paid to decipher the ambiguity for the interests involved. Further, due to the restrictions of European laws, agreed to by member states in blissful ignorance of their repercussions, the latitude to create exceptions and exemptions to copyright is limited to a list of about fifteen enumerated cases. Thus the introduction of such defense would require action at the level of the EU: an obviously unenviable prospect. Puzzlingly Hargreaves proposed the creation instead of another new European exception which would encounter exactly the same type of political obstacles:

“We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work…”
Digital Opportunity, p.47

Apart from the bureaucratic barriers to to its creation, it is also, well, vague, so maybe the lawyers still have something to look forward to. Go figure.

Google is so naturalised, through incessant everyday use ,that it may appear absurd to suggest that it could be under legal threat. Yet a review of case law in both the US and the EU shows the extent of the legally-manufactured obstacles faced by the company; various aspects of their services (image search, youtube, google news) been condemned in Belgium, France, Germany and Italy, amongst others. The search giant, of course, has more than adequate legal and policy resources to protect itself. My concern is for the next generation technologies threatened by copyright regimes: without either deep pockets or the anthropological dividend of mass adoption, they will always be under threat from those who hold economic power now.

Meanwhile the media companies are desperate to ease their access to injunctions against anyone deemed to be a ‘contributor’ to copyright infringement. Friday last, Hollywood had a victory in the high court in London, securing an injunction against British Telecom, forcing them to deny their subscribers access to a site called Newzbin. Having already already lost a copyright action Newzbin was an easy target, but the precedent it sets is diabolical: innumerable online spaces contain activity that may be deemed infringing – should they all be shut down? Youtube and Vimeo too, as well as any site with the temerity to index torrents? And how will the Star Chamber necessary to determines a site’s bona fides be selected?

Securing a space for the experimentation in both engineering and culture, acknowledging that the changed nature of cultural production and the basic alphabet for technological innovation have the same root, should be the object of any changes made to copyright law. This means liberation from copyright, both for computer users with a new capacity to produce and distribute meaning, and for the innovation necessary to economic change.

July 31, 2011 Posted by | / | Leave a Comment

Proposed amendment to Irish Copyright Law

Some months ago I wrote about the decision made in EMI V UPC in Ireland. In this case the music industry sought to force UPC to observe a private agreement made by the industry with another provider, Eircom, the former Irish Telecom monopoly, whereby users identified by music industry agents as infringing their copyrights would have their connections terminated after three alleged infractions.

EMI’s application failed. But ten days ago the Department of Enterprise and Innovation (the Irish ministry with legislative initiative in the sector), published a draft amendment to the Copyright Act of 2000, in an apparent attempt to provide the legislative basis for such judicial orders. A consultation period regarding the proposed amendment will continue until the end of July

Subsequent to his decsion in EMI v UPC, I had the chance to listen to the judge, Peter Charleston, give his impressions about the issues. He was thoughtful, but was also obviously somewhat at sea in a culture whose nuances he did not quite grasp. He recounted how the Irish police had visited him after the judgement, to warn him that his decision had displeased people on the internet in places like Kazakhstan and Uzbekhistan, and that they might seek revenge by stealing his credit card numbers or planting child pornography on his computer.

As he told this story I couldn’t judge whether he was being earnest or sarcastic. Perhaps Anonymous has managed to psych out the Irish police, as well as fooling them with a bit of proxying. More on this tomorrow, for now here is the text of the proposed amendment.

Draft Regulations
S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011.

I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:
1. These Regulations may be cited as the European Communities (Copyright and Related Rights) Regulations 2011.
2. In these Regulations -
“Act of 2000” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
“Directive” means Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society as amended by Corrigendum
3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:
(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
4.The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (9) of section 205:
(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
GIVEN under my Official Seal,
This day of 2011
Minister for Jobs, Enterprise and Innovation
[1] OJ No. L167, 22.6.2001, p. 10

[2] OJ No. L 006 10.1.2002 p.70

June 30, 2011 Posted by | /, copyright, ireland | Leave a Comment

Jean Bergevin Lands EU IP Enforcement Unit

After the controversy surrounding the appointment of Maria Martin Prat as head of the Copyright Unit at DG Markt, there has been less attention to another personnel change. Alvydas Stancikas, former head of Unit D3 on Enforcement, has headed off for other pastures to be replaced by Jean Bergevin. Tillman Lueder, incidentally, has been moved to the financial services directorate as head of unit for Asset Management. What a rum place the Commission is; staff who spend time years getting to grips with technical fields then get summarily redeployed in a totally different area – very logical!

Bergevin is an economist by background and was one of the main designers of the ECommerce Directive, and most recently head of unit E2, focused on services and including areas such as gambling and gaming.

His appointment suggests two things to me. Firstly it is perhaps welcome to have someone with the tools to think, if inclined, about intellectual property in a wider economic context as opposed to treating it as a good in itself (a problem especially with the lawyers). Secondly, as someone with significant experience in the design and management of directives, and specifically the ECommerce directive, his arrival may mean that they are going to get serious about IPRED 2, not least as it will have a an interface with the provisions limiting liability for ‘Information Society Service Providers’ set out in the aforementioned directive. You can read his take on intermediary liability here.

On June 7th in Brussels there will be a public hearing on “Directive 2004/48/EC on the enforcement of intellectual property rights: Challenges posed by the digital environment”, where there is scheduled to be a presentation by Unit D3, so we will soon get an idea of the flavour which Bergevin will bring to the debate.

His former unit also handled the 2010 consultation on the E-Commerce Directive which was criticised for its resistance to incorporating the views of NGO and user groups around the broader questions at stake in filtering and monitoring of online services.

May 12, 2011 Posted by | enforcement, european union, ipred | Leave a Comment

Hargreaves Review: A Spark in the Dark?

A week of sunshine in Florence, another week spoiled by the effusions of the European Union’s copyright vampires. Yes, that’s right, the music industry are back feeling chipper, this time with the news that the Danish government, which had previously been blocking the extension of the duration of copyright in sound recordings from 50 to 70, or even 95 years, has now reneged on their stance. This means the debate will recommence and the directive will go forward to the next stage…

Now for something more positive. In November, Toryboy David Cameron announced the launch of an inquiry into ‘intellectual property and growth’, premised on the concern that the current copyright regime might be impeding the UK from developing innovative companies like Google. Thus one of the directions to be investigated was the possibility of developing a broad fair use defense which would protect transformative uses, like that which exists in the US and which the big G has been able to take useful recourse to on any number of occasions. Of course ungenerous individuals like the record industry’s Alan Batt ascribe all this to the fact that one of his senior advisers, Steve Hilton is married to Google’s European head of communications, Rachel Whetstone. Obviously an unfounded suggestion of no merit, politics couldn’t possibly function like that, could it?

Former journalist and erstwhile professor of Digital Economy Ian Hargreaves was appointed to head up the Commission. Amongst his colleagues on the Commission is Jamie Boyle, an emigre Scot who has been at the forefront of IP criticism for twenty years, and author of one of the classic texts in the area: Shamans, Software and Spleens. Jamie also writes a column for the Financial Times on these subjects, and has turned it into a useful platform for demanding that changes in IP law be based on an evidence-based argument rather than on hysterical rhetoric or the power of lobbying. Of course he’s a bit mad, because important political decisions couldn’t really be made like that could they?

Five months thus was spent collecting submissions and ‘evidence’, and it makes for interesting reading if you have the patience – there were over four hundred submissions, and that from the Open Rights Group alone is 84 pages long. The various copyright industry trade associations pitched in with a lot of documentation as well. Google commissioned a report on the impact of copyright law on digital SME’s as well as a position paper of their own. On the other hand Getty images made a submission that wasn’t so enthusiastic about reform, but then they think that IP is the oil of the 21st century…

The report is due at the end of April, and should be pretty interesting. I have been arguing for some time that pushing on the fair use/dealing question could be fertile for copyright critics as it’s one of the areas where cost to innovation can be illustrated most clearly. Furthermore there are precedents for these type of propositions receiving support from other quarters. In recent years both the IVIR study on the EU Copyright Acquis and the UK’s Gower Commission floated/recommended the creation of such a defense, and as the nasty rumours about Google demonstrate there are signals that it has support in some powerful business circles. A sample of the debate engendered can be gleaned from a podcast produced by the RSA on the occasion of a public discussion organised on the topic of the review,

As i mentioned in my post about Ireland a few weeks ago, a similar proposal is afloat there as well. What remains to be seen is whether this would require an EU Directive. The problem derives from Directive of 2001/29 on Copyright which contained an exhaustive list of all exceptions and amongst them there is no mention of ‘transformative use’. In the Uk ‘fair dealing’ has traditionally covered the use of materials and commentary, thereby often effectively protecting a sub-section of cultural uses, but commercial uses can’t be shoehorned into that. In any case, it would be healthy to see the European debate on copyright shift its axis towards such questions. Needless to say the content industries will fight such a move tooth and nail.

April 13, 2011 Posted by | /, copyright, technology, UK | 3 Comments

Revolving Door Between Commission and Copyright Industry?

Unconfirmed reports claim that Maria Martin-Prat is to succeed Tilman Lueder as head of Directorate unit D1 at the European Commission, responsible for copyright policy. Martin-Prat took a sabbatical between 2000 and 2004 to work for the International Federation of the Phonographic Industry. As yet there has been no official confirmation, but the news is being relayed by french webzine PCinpact, Pirate Party MEP Christian Engstrom and consumer organization KEI (which includes a precis on the positions expressed by her whilst working for the IFPI such as her aggressive opposition to private copy rules). Being a high level appointment, i presume the decision was in the hands of Commissioner Michel Barnier.

People are understandably outraged at the appointment. While there is no question as regards her suitability to work for the Commission in general, it is grotesque that she should be put in charge of a policy unit in an area where she was previously a paid lobbyist. She is currently head of Directorate Unit E1, concerned with the Services Directive.

Whilst web commentary presents her as ringmaster for the new Enforcement Directive (IPRED2), I’m not so sure. As I wrote in February, there is now a unit dedicated specifically to Enforcement, headed by Alvydas Stancikas. His unit ran the legal sub-committee formed to report on the first IPRED and suggest modifications. Head of Directorate Margot Fröhlinger has also been prominent in the enforcement field.

Tilman Lueder was a pretty entertaining guy, rather wry, who also expressed some scepticism about the direction of copyright policy in recent years, pointing out the impossibility, for example, of the Google Books initiative in the EU due to the lack of a general fair use defense. Apparently he’s off to China.

March 31, 2011 Posted by | european union, ipred | 1 Comment

EU Contracts RAND for Piracy & Counterfeiting Study

Much of the EU’s output is not the work of officials but rather of thousands of firms contracted per project. Tender reference MARKT/2010/03/D requested proposals for:

A study to assess the scope, scale and impact of counterfeiting and piracy in the internal market, through a defined methodology for collecting, analysing and comparing data.

This study will be the flagship publication of the European Piracy and Counterfeiting Observatory. The tender process concluded in December and the winner was announced in January: the RAND Corporation (UK), and they will be paid half a million euros for their labours.

RAND has a certain fame as the birthplace of much of modern game theory under John Nash, and the doctrine of nuclear deterrence through mutually assured destruction (MAD). Launched an part of the cold-war security apparatus, RAND is now a massive organization heavily focussed on statistics and modeling for the devleopment of policy recommendations, often in ‘public safety’ fields.

Their selection warrants unease because although they would not be regarded as IP specialists, they do have form: in 2009, their US organization produced a lengthy report ‘Film Piracy, Organized Crime, and Terrorism’. This study was financed by the Motion Picture Association, and much of the documentation compiled was assembled by a consultant on ‘organized crime’ employed by the MPA. RAND did at least disclose the relationship with a vested interest.
Read more »

March 29, 2011 Posted by | /, ECPO, enforcement, european union, ipred | 2 Comments

Analysis of the IP Enforcement Directive Report

My intent initially was to publish this in January, but as the preceding posts make clear, there was considerable digging to be done to get a better picture of the context. In what follows, I begin with some comments with regard to shaky basis for the enforcement project, and then move on to a more detailed review of the Commission’s report.

1. The most noteworthy element of the Commission’s Report on the IP Enforcement Directive is what is absent. The Directive itself mandated the review, under Article 18, titled ‘Assessment’:

Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the
implementation of this Directive.

On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society (my emphasis).

Those interested in reading about ‘impact on innovation and the development of the information society’ will be disappointed, as such a section does not exist. Late transposition by several member states is offered as explanation for its absence. Yet this tardiness was no obstacle to a commentary on the efficacy of the Directive’s enforcement measures. A strange anomaly, but easily explained:

“… in the context of the European Observatory on Counterfeiting and Piracy, DG Internal Market and Services works with experts from the private sector to assess the application of the Directive and to complete the information received from the Member States.”
Commission Staff Working Document, p.5 (hereinafter CSWD)

So we’re in good hands. Elsewhere the Report relies on work commissioned by copyright industry players in support of its assertions, such as that produced by Tera consultants, whose methodology was questioned by the Social Sciences Research Network (SSRN).
Read more »

March 28, 2011 Posted by | /, copyright, enforcement, european directives, european union, intellectual property, ipred, patent | 1 Comment

Confusion and Dismay Strike EU Enforcement Overlords

The rather boring series of posts recently was triggered by the announcement last December of a consultation on the review of the Intellectual Property Enforcement Directive (IPRED 1) passed in 2004. Closing date for submissions is next week, March 31st. Before continuing with an analysis of the review and a summary of my concerns, two recent incidents are worth noting.

1. Michel Barnier’s Letter to Françoise Castex & Stavros Lambrinidis
In response to a written question from two MEPs about the ‘stakeholders dialogue on illegal uploading and downloading’, reported here, Commissioner Barnier of Internal Market responded with a letter on March 7th. Therein he states:

“In conformity with the Commission’s “Better Regulation” initiative, a public consultation has been launched on the Report of the IP Enforcement Directive, adopted by the Commission at the end of 2010. Participants in the stakeholders dialogue do not benefit from a preferential position during this consultation.”
(my trans.)

Regular meetings took place between the private sector and Commission officials for the preceding year and a half; the ‘stakeholders dialogue’ was held almost monthly. In addition there was also the of ‘legal sub-committee‘, representing the same sector of rightsholders (but with less interference from those pesky Telcos and ISPs). The contents of the Report mirror the subjects discussed at those meetings. so much is in fact acknowledged in Annex 2 of the Commission Staff Working document relating to the methodology of the review:

“Apart from the information contained in these reports, the Commission did not receive a substantial amount of additional information fromthe Member States’ authorities, neither during the implementation period, nor after the transposition of the Directive into the national law. As a result, and because of the reasons mentioned above, the information received had to be complemented from other sources, in particular through consultation with rightholders, and in particular through the consultation of legal experts from the private sector who meet regularly in the legal subgroup that has been formed in the context of the European Observatory on Counterfeiting and Piracy.”

So is it the case that the chance to continuously inject opinion and information during a documents assembly does not constitute ‘a preferential position’? Or was it just a matter of judicious reference only to the stakeholders dialogue, with the hope that the legal sub-committee (see details) might be forgotten?

He also claimed that Data Protection officials were present at any meetings where the identification of users by means of their IP address was discussed, and while I don’t know it for a fact, I would be interested in hearing if that was the case in February, April and July 2010 when these matters were discussed in the stakeholders dialogue. Reports I have read of these meetings are strangely omit to make any mention of their presence.

2. Fröhlinger Calls Halt

Better still, the very next day, Margot Fröhlinger, titular head of the stakeholders dialogue wrote to announce that it was over! Her apportionment of the responsibility of the blame is rather vague, as she bemoans how:

“An exchange of ideas on possible joint actions to promote access to legal offers and on user awareness could have brought new insights on how to assist consumers to legally enjoy premium content.”

Schade. Apparently some stakeholders are…

…less willing to continue with the dialogue. These stakeholders perceive the format of the stakeholder’s Dialogue, as well as its timing, as not appropriate and as not useful.

Which is just plain unsporting of them if you ask me. Presumably the stakeholders referred to are the ISPs and Telcos, although that’s a bit of deductive work on my part: consumers and users groups never participated, therefore they couldn’t leave; the content industry doesn’t pass up a chance to hang with their chums in the Commission.

Interestingly her letter also announces the intention to ‘reach out to the general public, through additional hearings, in order to take account of the public interest, to the maximum extent possible.’ Does that mean the consultation will be extended beyond March 31st?

Other views/responses: read Iptegrity’s take on events. Likewise PCimpact published a response (in French) from Jerome Zimmerman of La Quadrature du Net.

March 23, 2011 Posted by | ECPO, enforcement, european directives, european union | Leave a Comment

… and it Felt Like a Kiss? EU IP Expansionism Abroad

Due to its role in the advancement of of entertainment and pharmaceutical interests within the GATT-TRIPS negotiations of the 1980s, the United States is typically assigned the role of bully in the international intellectual property sphere (for an excellent account see Drahos and Braithwaite’s “Information Feudalism”). Viewed in combination with its bilateral trade agreements, foisting stringent IP rules on smaller, poorer nations, this is somewhat understandable. But such a reading obscures the role of the European Union. Since the 1980s, key business organizations within the EU such as UNICE have functioned as a key vector for the same policy messages. In more recent times these ideas have been fully integrated into numerous aspects of institutional activity at an EU level. In what follows I will outline some developments at the level of trade policy since 2002.

The new phase was confirmed in a 2004 communication from the Commission Communication Strategy for the enforcement of intellectual property rights in third countries (hereinafter Strategy), which listed eight elements considered essential to the campaign. Several of these recall practices long established in the US. The thrust of the strategy was confirmed in a major policy document issued by DG Trade in autumn 2006, “Global Europe: Competing in the World”, regarded as signalling the relaunch of a bilateral approach to trade negotiation, and marking the dimming of the multilateral phase which in the IPR sphere produced both TRIPS and the two treaties (WCT and WPPT) at WIPO in 1996.

Pursuing the New Approach
1. Watch Lists
The first task defined in the Strategy is the identification of ‘priority countries’, analogous to the s.301 report produced annually since the 1980s by USTR, deemed the source of egregious infringements of European rightsholders.
Read more »

March 22, 2011 Posted by | /, copyright, enforcement, european union, geographical indications, intellectual property, law, trade | Leave a Comment

Closed Door Policy Shaping at the ECPO

in July 2009, three months after the McCreevy’s announcement of the European Counterfeiting and Piracy Observatory (ECPO), a ‘stakeholder dialogue on illegal up and downloading’ was launched under its auspices and the direction of Margot Fröhlinger, Director for Knowledge-based Economy at DG Internal Market.

The goal was to achieve an accommodation between content owners and the infrastructural intermediaries. From the beginning the Commission have indicated that should the parties fail to come to voluntary agreements, the EC will amend one of its directives and impose a solution: E-commerce Directive (2000/31), the Infosoc Directive ( 2001/29) or the Enforcement Directive (2004/48).

Users and Consumers Missing from the Equation
Representatives of media companies, trade associations, collecting societies and ISPs have been involved in the monthly meetings. European Consumer group BEUC refused to participate, and, whether for wont of an invitation or lack of interest, no organization representing consumer or user interests was involved.
Read more »

March 10, 2011 Posted by | /, copyright, ECPO, enforcement, european directives, intellectual property, law, p2p | 1 Comment

Il Badalone; Brunnelleschi and an Early Patent

Normal service on boring enforcement related matters will resume later today, in the meantilme a little history. The initial draft stated the Badalone patent was the world’s first, this turns out to be incorrect, in a variety of ways! On a purely formal level, the first patent was granted to Francisco Petri in 1416 for the fulling of wool and was awarded in Venice.
*****
Having been in Florence for the last months, I discovered that it was the site of what was apparently the world’s first patents: a boat design created in 1421 by the builder of the Duomo’s famous cuploa, Filippo Brunelleschi, and christened “Il Badalone”. We don’t have the detail of the design, but thee is an image by Taccola in his book De Ingenis.

Il Badalone from Taccola's De ingenis

Read more »

March 9, 2011 Posted by | /, history, italy, patent | 1 Comment

Ireland: Three Strikes and Fair Use

Last week a chill ran through the irish blogosphere: former Green party minister Eamonn Ryan suggested that the outgoing Fianna Fail administration might introduce three strikes/’graduated response’ against file-sharing just as they were being kicked unceremoniously out of power. How would they do that? A statutory instrument, a diabolical device enabling the introduction by the executive of secondary legislation, based on a prior legislative act (in this case the Copyright Act as amended), without having to debate or pass it in the Dail (Parliament). Back-door legislation, in other words. This threat was quickly disavowed by the relevant minister, Mary Hanafin (who lost her seat anyway in the subsequent election). Alas this may not end the matter: the new senior government partner Fine Gael, are suspected to be favorable to a three strikes style solution.

Recent History of Online Copyright Shenanigans in Ireland…
The record companies first went on the offensive in 2005. That year the Irish Recorded Music Association (representing EMI, Warner et al.) sought and obtained a high court order to identify 17 individuals observed allegedly sharing copyrighted works (via their internet protocol addresses). Two further batches of identifications were granted in 2006 and 2007 against an additional 72 people, opening the way to civil infringement prosecution. According to IRMA defendants agreed to pay the plaintiffs around 2,500 euros each to settle out of court.

In March 2008 IRMA initiated action against the former telecoms monopoly Eircom, the largest supplier of broadband in Ireland, presumably based on a theory of contributory liability. The year before a Belgian collecting society had won a decision obliging an ISP to install filtering software in order to prevent copyright infringement. That case, Sabam v Scarlet was later referred to the European Court of Justice and a decision on the issue is expected this autumn.

Rather than confront this pressure in court, Eircom agreed to enter into a voluntary agreement with the music companies, whereby the ISP would take action against users identified by the plaintiff companies as having infringed their works. IRMA committed themselves to negotiating similar agreements with other ISPs so that Eircom would not be put at a competitive disadvantage due to their collaboration. That summer IRMA also sought a court order obliging Eircom to cut off access to the Pirate Bay, an application which was not opposed by the provider, and duly granted that September.

Concerns over the Data Protection aspects of the Eircom/IRMA agreement, the settlement was referred back to the High Court in April 2010, when it was given the green light by Judge Charleton. In the meantime other ISPs were proving to be less accommodating to IRMA’S demands, especially UPC, owner of a cable networks and formerly know as NTL. They refused either to block access ot the Pirate Bay or to make a private agreement against their users interests with IRMA. Predictably this ended up in court last October. The result was resounding victory for UPC. Justice Charleton acknowledged that there was nothing in Irish law requiring the ISPs to police their users in this way. ISPs are obviously ‘mere conduits’ for data operations, do not have any role in executing infringing activity, and are consequently protected from liability under the safe harbours for service providers under article 12 of the EU ECommerce Directive. He also conceded that there was no legal basis for grant of a blocking order as regards the Pirate Bay, and underlined that his previous decision to the contrary resulted from the fact that Eircom had not opposed the previous order nor seen fit to make any argument against it.

There is also an interesting business background to this series of events: Eircom have been haemorrhaging customers at a rapid pace, according to some estimates 1000 users per month. In the meantime UPC increased their number of phone subscribers by 60% last year. How many of those customers were attracted by the stance taken by UPC on users’ rights? Impossible to say, but it cannot have been irrelevant.

Meanwhile Eircom are having serious difficulty managing their debt levels and have warned that they may breach their covenants. Sad to say, but it’s hard not to feel some glee at their predicament; the highest line rental charge in Europe, negligible investment in the infrastructure, pathetic service and to cap it all, an unwillingness to defend their own customers legal interests in court against an industry that they were getting into bed with.

Given the recent scare, it is good to hear that there is now a ‘free culture’ group also in Ireland, launched on the initiative of Kevin Flanagan who I met at the last international meeting of EXGAE/LaEx in Barcelona in late October. They add some more attentive eyes to the trojan efforts of the people at Digital Rights Ireland, sentinels of digital civil liberties in Ireland…

.. and finishing on a Bizarrely Positive Note…
Fine Gael for Fair Use
?

This whole palaver roused my curiosity about current goings on in matters copyright in Ireland. And it was with some astonishment that I discovered that Fine Gael (the victorious party in last week’s election) have at least one decent policy: it seems that they are proposing a pan-European fair use defense. Surprised as I was at first, there is a logic to it, given that Google employ over 2000 people in Dublin and the technology sector (largely composed of US multinationals) remains one of the few parts of the economy to continue performing.

Now there has been endless blather as regards the ‘knowledge economy’ in Ireland over the years, so serious scepticism is warranted (the persistence of substandard connectivity is a monument to broken promises of shiny futures past), but on copyright flexibility at least they seem to be tiliting the right way. I read that DRI organised a day school on these themes at Google recently, it seems that some of that work may have delivered a yield. Fair play.

March 3, 2011 Posted by | /, copyright, enforcement, ireland, law, p2p, Pirate Bay | 1 Comment

Inside the European Counterfeiting and Piracy Observatory

Two spheres of activity have dominated the attention of the ECPO since its inception: the rather insipid sounding ‘stakeholder dialogue on illegal uploading and downloading’ and a subgroup working on a review of the implementation of IPRED1 and proposals for the future. Where the first attempts to broker agreements between corporate players on opposing sides of the policy battle, the second is dedicated to the generation of new legislative substance. In addition there is work being done on public awareness initiatives around the ‘problem’ of counterfeiting and piracy.

Preparing the Ground for IPRED2: Legal Subgroup; Whois?
This has a relatively small membership made up of Commission employees such as Alvydas Stančikas together with representatives from national anti-counterfeiting groups (France, Italy, Sweden, Belgium, Netherlands), their European counterparts (SNB REACT), the International Federation of the Photographic Industry, Motion Picture Association,Business Software Alliance and lawyers representing collecting societies such as BASCAP and major software producers. There are no participants from consumer or civil liberties groups, or indeed from any other NGO. Nominally the European Consumer Organization – BEUC – should have a member present as well, but this has not been the case, for reasons unclear.
Read more »

February 28, 2011 Posted by | /, copyright, ECPO, enforcement, european directives, law, p2p | 2 Comments

IP Enforcers Tool Up in Europe

The European Commission will soon launch a second intellectual property enforcement directive (IPRED2), which this time will contain those crimninal provisions removed during the passage of IPRED1 in 2004 due to doubts as to their legal basis. With the passage of the Lisbon treaty and recent ECJ legal decisions this uncertainty has been reduced. In the following posts I want to sketch out other changes at an institutional level and provide an update on the mustering of the forces behind the new directive.

The first of these is the creation in 2008 of a unit dedicated to IP Enforcement inside of DG Internal Market. Created under the direction of Alvydas Stančikas, this unit creates a section of the bureaucracy now wedded unconditionally to the ideology of expansionist IP laws. Functionaries, alas, are usually substantially indifferent to the content of their roles, preferring to see their task as to bring suggested initiatives to fruition (thereby accruing institutional prestige with the career advancement that accompanies it) rather than challenging the assumptions behind them.

For more than a decade the Copyright unit, long headed by Tilman Lueder, has been the epicenter for Commission action. Whilst attached to the shibboleths which insist that increased protection is necessary to protect innovation, it at least located enforcement in a wider context of copyright objectives. Removal of enforcement questions from any broader discussion of the ecology of innovation and creativity transitions the apparatus to a structural capture by content industry incumbents.

European Counterfeiting and Piracy Observatory
The first task of the new Unit has been to oversee the establishment of an ‘Observatory‘ to gather data about alleged IP infringements. Like so many other foul initiatives in the copyright sphere of late, it emanated from Sarkozy’s France. More specifically it was proposed during the period of the French Presidency in 2008. Given that he had made copyright protectionism a battle-cry in the previous year’s election, this came as no surprise. This campaign opened with a Communication by the European Commission on 16 July, mooting the need for better information collection and sharing. The following September the ECPO’S creation was mandated by a Council Resolution.

Sarkozy’s demands were realised on April 2nd 2009 saw the establishment of the ECPO’S launch by Charlie McCreevy, former irish finance minister, then Commissioner for the Internal Market. In September 2009 the Commission set out its aims in another Communication.

Methods
For some time those responsible for IP policy at a European level have bemoaned the unsolicited attention of external observers who criticise their policies on the basis of users’ interests or alternative visions of the innovation process. This was especially the case in the successful defeat of the EU Commission’s campaign for software patents. Part of their response has been to increase their activity in areas of soft law (communications, resolutions), try and effect change through closed-door dialogues between interested ‘stakeholders‘ (a lot more on this in my next post), and to either encourage or actively implement the mobilisation of administrative resources to attain their ends. The result is an immiseration of public discussion and a further dilution of democracy. The ECPO is a perfect example of several of these tendencies.

McCreevy’s speech at the launch spelled out the new approach:

“The mere existence of new laws, although important, cannot be expected to combat a worldwide infringement problem. So once again I stress the point that we must turn our attention towards supportive programs that can help bring to bear strong administrative commitments and resources, in conjunction with the flexibility and
resourcefulness of the private sector.”

Participation is limited to those invited by the Commission and industry involvement is obviously preferred: since the foundation of the ECPO there has been almost no involvement of consumer or civil liberties organizations (the BEUC did attend one meeting).

Tasks
Criticism of Commission’s reliance upon industry produced statistics with regard to infringement, which unsurprisingly exaggerate the scale of losses, means that the basic task is to produce defensible figures. The methodology and collection of the data collation will be determined by a private contractor who is to work closely with industry representatives (like the IFPI and the MPAA).

Secondly the ECPO functions as a forum for the a series of work-groups: legal reform (in preparation of IPRED2); on online copyright infringement (focusing heavily on the legal responsibility of ISPs as well as IPRED2); public awareness.

In general the plan is that the ECPO will be a clearing-house for exchange of ‘best practices’ derived both from the various jurisdictions and a transmission-belt for private-sector enforcement initiatives. And doesn’t it all sound somewhat familiar? Well it should, much of it is in the Anti-Counterfeiting Trade Agreement (ACTA) – even though it hasn’t been passed yet, the EU is behaving as if it’s already there!

These meetings are staffed by functionaries from the Knowledge Economy and IP Enforcement Units inside DG Internal Market. In order to access additional resources the Observatory will now be under the official auspices of the Office for the Harmonization of the Internal Market in Alicante, who are otherwise concerned with Trademarks and Designs.

With the departure of McCreevy in early 2010, the position of commissioner for internal market passed to Michel Barnier, a right-wing member of Sarkozy’s UMP; his cabinet can be expected to provide enthusiastic encouragement for all enforcement related efforts.

Why Should We Care?
The real target of all these efforts are ordinary computer users. The cloud of professed concern about organized crime and the hazards of fake medicines is really an alibi for a campaign around individual use and circulation of cultural works. The ECPO is about preparing the ground for a subsequent legislative campaign threatening massive damages and the obligation to employ censorware against intermediaries such as ISPs, and nonjudicial punishments against users (a la Hadopi) or worse, jail (but this more as a threat than a reality).

In addition to the crudely repressive aspect of this, what grates is the boneheaded commitment to monopoly rights as a means to promote some notional ‘knowledge economy’.

- The Commission has screwed up in the past on this and it knows it: their own report on the Database Directive demonstrates that.

- The software community in Europe showed them they were wrong about software patents as well, but had to defeat the Commission in Parliament due to their impermeability to rational argument.

- And today, how many innovative services will never be born in Europe because of the protectionist approach to copyright law? Google could launch googlebooks precisely because they had a broad fair-use defense to rely upon, that gave them a counterweight to the publishers’ threats and enabled a negotiation. Such a scenario was unthinkable in Europe and it’s the EU’s loss as an economy.

Will anyone inside the EU Commission will take the risk to launch processes which correct these failures?
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My next posts will deal with what is going on within the ECPO’s subgroups and the content of IPRED2.

February 18, 2011 Posted by | /, copyright, ECPO, enforcement, european union, intellectual property | 2 Comments

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