ACTA Not Dead Yet: Supporters Make Final Push For EU Approval, May Seek Secret Ballot

from the but-of-course dept

Even as key committees and a bunch of elected officials in the EU Parliament have come out against ACTA, all that really matters is the final vote. And the pro-ACTA forces are making a very big push to get it approved. Some are making arguments on its importance (and pretending that the concerns are overblown). Others are suggesting delays in the vote, in hopes of having more time to build support. Finally, some others have suggested "amendments" to ACTA that would remove some of the more controversial bits. Of course, that's a much more difficult move than you might think, since we're talking about an agreement that has already been in this "final" form for well over a year, and was the result of years of negotiation with a bunch of other countries, many of whom have already signed off on the document. Re-opening the negotiations at this stage would open up a huge can of worms (and would piss off the US negotiators). I just don't see it happening.

However, much more concerning is a rumor, passed along by MEP Marietje Schaake, that there will be a request for a secret ballot. In other words, elected officials know that their constituency, the European public, is vehemently against ACTA, but they don't want to be held accountable for their votes. A secret ballot on proposals like this only serve to support corruption and positions that go against the will of the people. Hopefully, enough in the EU Parliament realize just how bad it will look to the public (not just in Europe, but around the globe) should they agree to a secret ballot concerning ACTA.

One of the major complaints about ACTA all along was the lack of transparency in the negotiations. Concluding that with a lack of transparency in the voting isn't exactly a way to inspire confidence. It's almost guaranteed to backfire and alienate the public even more.

Filed Under: acta, european union, marietje schaake, transparency

Google Claims Microsoft And Nokia Are Using Patents To Violate Antitrust Laws

from the who-is-this-helping dept

I've pointed out a few times in the past that I don't think it really helps either company when Microsoft and Google to trade antitrust allegations against each other. Both companies are facing (or have faced) significant antitrust questions themselves, and raising them against each other just seems like sour grapes. A few months ago, Microsoft filed an EU complaint against Google, arguing that its plans for licensing the Motorola patents it acquired amounted to an antitrust violation. Now, Google has hit back, filing a similar accusation back at Microsoft (and Nokia), arguing that their deal, transferring some 2,000 patents and patent applications to Canadian patent troll Mosaid, represents an antitrust violation:

Nokia and Microsoft are colluding to raise the costs of mobile devices for consumers, creating patent trolls that side- step promises both companies have made.

I'm still pretty damn skeptical of either claim. The fact that both were filed in the EU is telling, as the EU generally has a much more aggressive interpretation of antitrust law, meaning that both of these filings really look like two giants slapping each other around for sport, rather than competing in the marketplace.

The only thing that I do find kind of interesting about both filings is the fact that they're focused on the use of patents as a lever for antitrust activity. Patents are, by their very nature, a government-granted monopoly. And there have been arguments made that, as such, their usage deserves extra scrutiny when it comes to antitrust analysis. Though, on the flip side, people might point out that, as government-granted monopolies, patents are immune from antitrust analysis, since by their very nature, they're a government-granted allowance for antitrust behavior. It is, after all, the government granting a monopoly. Should it really be any surprise that companies then do monopolistic things with them?

Either way, I don't see either filing ending well for either company involved. If anything, we can just hope that it helps demonstrate how patents themselves are tools of monopolistic antitrust behavior.

Filed Under: antitrust, european union, monopoly, patent troll
Companies: google, microsoft, mosaid, nokia

EU Politicians Snub European Commission: Do Not See IP Protection As Key To Internal Security Strategy

from the ACTA-backfires dept

One of the most dishonest aspects of ACTA was its attempt to equate genuinely dangerous products like fake medicines with totally harmless ones like unauthorized digital copies. Fortunately, that's such an absurd equivalence that more and more people have voiced their concerns over it -- including the Liberals and Democrats in the European Parliament, who cited it as one reason why they would be voting against ACTA:

ACTA wrongly bundles together too many different types of IPR enforcement under the same umbrella, treating physical goods and digital services in the same way. We believe they should be approached in separate sectoral agreements, and following a comprehensive and democratically debated mandate and impact assessment.

EDRI points out that the European Commission has just suffered a major defeat at the hands of the European Parliament thanks to this lazy kind of coupling in its proposed "Internal Security Strategy" (ISS) for Europe:

In a piece of what the Commission appears to have believed to be a piece of masterful political syllogism, it explained in its Internal Security Strategy (adopted at the end of 2010) that dangerous counterfeit goods are a threat for human health. These counterfeiting offences are infringements of intellectual property rights (IPR). "Piracy" is also an infringement of intellectual proprety rights. Consequently, the fight against "counterfeiting and piracy" must be included in the EU's Internal Security Strategy.

This is part of the wider strategy, as seen in ACTA, to treat all IPR as if it were the same, with dangerous medicines being considered as important as unauthorised downloading and vice versa. The obvious problem, as has become obvious in the ACTA, is that treating serious and trivial infringements as if they were of equal importance will inevitably result in either the serious infringement being treated as if it were trivial or vice versa.

But something that might have been simply waved through before ACTA has now been met with skepticism:

The European Parliament, however, far more sensitive now to the questionable approach of the European Commission to intellectual property rights as a result of the ACTA discussions, recognised this crude attempt to push its so far unsuccessful approach to an even higher level of hysteria. Whatever else one can say about downloading a song without authorisation, the number of deaths that it is likely to cause is, we believe, comparatively low.

As a result, and by a huge majority, the members of the European Parliament adopted a resolution on the ISS that includes the following major slap-down for the European Commission:

...it does not appear fully justified or appropriate to take action in the field of the enforcement of intellectual property rights – a matter which is part of a specific in-depth debate – within the framework of the ISS;

That is a noteworthy refusal, and suggests that ACTA's attempt to lump online sharing with counterfeit medicines, and to make them subject to the same severe civil and even criminal sanctions, has backfired badly. It might be too much to take this ISS snub as an indication of what will happen when the European Parliament votes on ACTA later this summer, but it certainly suggests a new-found wariness in this area.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, edri, european commission, european union

Three Key EU Parliament Committees Vote 'Just Say No' To ACTA

from the some-good-news dept

While some have believed that ACTA is already dead in Europe, there are still actual votes to be held, and there have been significant concerns that political trickery might lead to ACTA actually being approved. The first three key votes (from three specific committees) happened today, and while it was close, all three came out with recommendations to reject ACTA. As Rick Falkvinge points out, one telling point is if you look at the votes on the Committee on Legal Affairs (Juri) and the Committee on Industry, Research and Energy (ITRE). The winning proposal for ITRE was drafted by Pirate Party MEP (and occasional Techdirt contributor) Amelia Andersdotter. The losing proposal for Juri was written by Marielle Gallo -- author of the infamous Gallo Report a few years ago, pushing the EU Parliament to support massively draconian IP enforcement rules. In other words, "the pirate" vs. "the copyright maximalist" in an EU Parlimantary committee votes... and the pirate won. Not too long ago, such a result would be unthinkable. However, it shows how quickly things can shift when you have reality on your side...

Filed Under: acta, amelia andersdotter, european union, itre, marielle gallo, pirate party, rick falkvinge

Netherlands Pre-Warns EU Parliament That It Will Not Accept ACTA

from the good-for-them dept

With critical votes in the EU Parliament on ACTA quickly approaching, the Dutch House of Representatives decided to take a pre-emptive strike, and unanimously accept a motion that urged the Cabinet to reject ACTA, while also rejecting "any future treaty that may harm a free and open Internet." Of course, this is the same Netherlands whose courts are currently censoring a local political party for setting up an internet proxy, so it appears there's at least some confusion in that country. Either way, it's nice to see this pre-emptive strike, though it's not clear how much power the Dutch government would have to reject ACTA if the EU Parliament accepted it...

Filed Under: acta, eu parliament, european union, netherlands

European Parliament Member Marietje Schaake's Favorite Techdirt Posts Of The Week

from the the-eu-edition dept

This week's favorites post comes from Marietje Schaake, a Member of the EU Parliament, who has been called "Europe's most wired politician."

When Mike asked me to write a post about my favorite Techdirt posts of the past week, I was honored. Techdirt is one of the main blogs I read everyday to keep me informed about information law and policy developments. The Techdirt contributors focus on a number of areas of my work. That was the same this week.

ACTA & TPP
I met Mike about a month ago, when I hosted a hearing about ACTA in the European Parliament (EP). Mike was one of 12 speakers who explained the dangers of ACTA, which I consider a misguided agreement, and presented his research 'The Sky is Rising'. Although several commentators have already declared ACTA to be dead, I still see a lot of lobby efforts trying to get approval. The article, "Time To Realize That The Obama Administration Doesn't Even Have The Authority To Commit The US To ACTA Or TPP", also shows the way in which lobbying continues, if not for ACTA, then now for TPP. This post highlights how the ACTA negotiators tried everything possible to circumvent the democratic process. If ACTA doesn't bind the US, then why would Europe ratify a binding agreement and bend over backwards to get to that point?

There were a few posts about the Trans-Pacific Partnership (TPP). Although this agreement does not concern Europe directly, it will have global ramifications. The lack of transparency sets an undesirable precedent that treaties which are mostly enforcement treaties are increasingly classified as international trade agreements, thereby allowing negotiators to discuss the enforcement measures in secret, without democratic oversight. Rep. Darrell Issa was able to give some insight into the negotiations by posting a leaked version of the agreement online.

Copyright reform
One of the reasons I enjoy reading Techdirt is the realistic outlook on intellectual property rights. We should be critical of industry statistics and figures, which aim to strengthen copyrights further. I am a supporter of rewarding and incentivizing creators of cultural, artistic or literary content. Arts and culture are essential in open societies. A strong culture develops when we can all build on these works and use them for enjoyment, study or invention. The internet offers a great platform for cultural diversity, because it democratizes the cultural process, instead of leaving some gatekeepers in charge to decide which works are mass-marketable. It is also possible to bring content to users at a lower price, as long as there are no disrupting measures in the way.

Artists and inventors are realizing you don't necessarily need copyright to create works. Crowdfunding through services like Kickstarter (see "Biggest Kickstarter Project Ever Surpasses $10 Million; Cuts Off Funding") or Sellaband is becoming increasingly popular and leading to many success stories where the production of creative works is pre-funded by fans.

Of course, copyright is a useful tool to monetize created works, but it is not the reason works are made in the first place. However, copyright as it is currently enacted can threaten the open internet. As economist Dean Barker suggests, copyright is an antiquated relic that has no place in the digital age. Bear in mind the principles of the law were developed at the time of the printing press. We live in a different world today, and if we do not reform copyright, it risks losing legitimacy all together.

Copyright has benefited certain monopoly stakeholders since its inception, and those who benefitted are now lobbying fiercely to keep the old laws in place as they protect their business models. The downside is that this is to the detriment of society and the development of the internet. Online enforcement will most likely infringe on internet users' fundamental rights, as demonstrated by the Pirate Pay Bittorrent disruptor.

What politicians do not hear enough is that there is little relationship between stricter IP laws and innovation or economic growth. European politicians should also take note that spending on entertainment products and services is increasing, such as demonstrated by the record income of European cinemas and the record production of European films. In the end, even the American copyright office will circumvent rules that do not make sense in the real world.

Europe
The Pirate Party is quickly gaining popularity with this message. The party is currently being rewarded by voters in Germany for campaigning for copyright reform, transparency and many other necessary and important political changes, which have been enabled by the internet. My party in the Netherlands (D66) covers these issues well on both the national and the EU levels.

Currently there are many cases relating to copyright and the internet under way in European courts, and almost all raise a significant amount of controversy. Some have even called the judge, who deals with many of the anti-piracy issues in The Netherlands, corrupt. It appears that he and one of the main lawyers of the entertainment industry offer classes together teaching IP enforcement. Although calling this corrupt is a little unfair, I do agree with Mike that there is a conflict of interests here. No wonder this lawyer and his colleagues usually take their anti-piracy cases to the The Hague court.

On the other hand, a Finnish court displayed common sense and understanding of the open internet when it ruled that the owner of a WiFi network is not liable for copyright infringements by other users. It does send a signal however, that this case has been brought to court at all. Was it intended to set a precedent, whereby all European WiFi operators would feel the need to filter traffic?

Domain name seizures and blocking
The Finnish case is an exception to the general trend. For example, the US government seized two Spanish domains. In the current proceedings, the government claims it can "forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law." Mike rightly points out that this reasoning means that any website, including search engines, could be seized, since almost all information exchange online infringes copyright in one way or another.

Blocking and seizing domain names is supported by the movie industry, as shown in this article. According to the MPAA, blocking websites is good for consumers. I disagree strongly with the MPAA on this point and would like to point out that some great online services have been developed which compete very well with websites such as The Pirate Bay. Rights holders (whether artists or corporations) need to figure out how to monetize their works in the new digital environment. Computer nerds at IT companies are currently leading the way. Blocking has great collateral damage, which needs to be taken into consideration as well.

In the European Parliament I serve on the committee for Foreign Affairs. I’m currently drafting the report on Digital Freedom in the EU’s Foreign Policy. The post titled, "If You Meet A Censor, Ask Why They Haven't Become Moral Degenerates Themselves", makes a valid point with respect to blocking information which is deemed bad for society. If blocking becomes a mainstream method in the US or EU, it undermines our credibility in speaking to other countries about the way in which they block websites where an undesired (political) message is shared. We risk a slippery slope!

Cyber Security
Are we being attacked and spied upon via ICT networks, and should we increase public finances and resources to combat this threat? I have been trying to find good, independent and verifiable information or research to answer this question. Unfortunately, I have not found it. Most of the numbers and statistics about a security threat are compiled by companies who sell security software. As the post "Fearmongering About Cyberwar And Cybersecurity Is Working: American Public Very, Very Afraid" says, these tactics seem to be working for those companies.

Education
It is great news that Harvard and MIT will be offering courses virtually through EdX. In the committee for Culture & Education of the EP, I have been advocating to extend the European Open Data Strategy to include educational and research institutions. The initiative by the Boston-based American universities is a great step in opening up education for all.

Finally, the piece titled, "Something Is Wrong When A Judge Needs 350 Pages To Decide If A College's Digital Archives Are Fair Use", was interesting from several perspectives. First, I consider the fair use doctrine to be better for the digital age than the current, rigid, European system. In this case the judge gives a favorable ruling for uses of works in education, which in my view is right. However, I find it most interesting that the judge rejects the self-regulatory "Classroom Guidelines." In my work in the EP I have also warned that these types of regulations are often not desirable and can be used to circumvent the democratic process and infringe on fundamental rights.

You can get in touch with me via Twitter (@marietjed66) or via my website: http://www.marietjeschaake.eu

Filed Under: european union

Poland Betrays Its Past, Moves Closer To Allowing Software Patents

from the sad-day dept

Earlier this year, Poland played a crucial role in igniting street protests that pretty much stopped ACTA in its tracks. That's not the first time it has had a major impact on European tech policy. Half a decade earlier, it derailed a proposed EU software patent directive, which had sought to make software patentable in Europe -- something that Article 52 of the European Patent Convention had appeared to rule out. That led to a later vote in the European Parliament where software patents were decisively rejected.

Unfortunately, that's not the end of the story as far as software patents in Europe are concerned. Despite its name, the European Patent Office is not the patent office for the European Union: it is part of the European Patent Organisation, which is independent of the EU, and is therefore not bound by the EU's policies and decisions. This has enabled it to let in software patents by the back door, using the artificial concept of a "computer-implemented invention (CII)":

A CII is usually defined as an invention that works by using a computer, a computer network or other programmable apparatus. To qualify, the invention also needs to have one or more features which are realised wholly or partly by means of a computer program.

To be patentable, CIIs must fulfil the same basic patentability requirements as inventions in all other fields. These are set out in the European Patent Convention (EPC).

Accordingly, CIIs can be patented if:

They have technical character and solve a technical problem.
They are new.
They involve an inventive technical contribution to the prior art.

Some national patent offices in the EU have tried to hold back the wave of software patents being let through as CIIs by applying stringent conditions for granting them. That has led to a situation where the Polish Patent Office ruled against an application for a software patent that the EPO had approved:

Pursuant to its longstanding practice in the area of so-called software patents, the Polish Patent Office held that the invention was not of a technical character and therefore was not patentable, despite the fact that the European Patent Office had granted a European patent for the same invention. In other words, the Polish Patent Office refused to issue a patent to an applicant already approved by the EPO.

This incompatibility between the rulings of the Polish Patent Office and the EPO led a higher Polish court, the Polish Supreme Administrative Court, to intervene. It has now reviewed the case and issued a revocation of the earlier decision by the Polish Patent Office, implicitly giving precedence to the EPO on the matter. The reasoning of the Polish Supreme Administrative Court seems to be essentially that technology has moved on, and therefore the Polish patent system should take account of that by allowing software patents now, just as the EPO does:

The [upper] court also noted that great technological advances across many industries have been made in recent years, which must have an effect on the practice of the Polish Patent Office. Thus, the Polish Patent Office, while conforming to the provisions of Polish patent law, should change its approach on the subject matter of the technology.

But that's an absurd argument. Software has been around for half a century: the basic ideas underlying it haven't changed, nor have the sound reasons for excluding it from patentability been superseded -- it's just become much more widespread. If anything, that's a further argument against allowing software patents.

To grant software patents now would be like granting patents on written phrases simply because writing has "moved on", and literacy has become more widespread. Clearly that would stifle creativity, since writers would then have to worry about "infringing" on patented elements of their craft, and lawsuits would break out between authors claiming their ideas were "stolen", when in fact they were simply part of their cultural heritage.

Similarly, in the digital world, allowing software patents would mean that programmers would run the risk of "infringing" just for using basic programming building blocks in their creations. And that, of course, is precisely what is starting to happen on a massive scale in jurisdictions that do allow software patents: litigation is making innovation increasingly hard, especially for start-ups without the resources to fight long legal battles, or patent portfolios to use for striking licensing deals.

Given Poland's glorious recent past in defending Europe from dangerous ideas like ACTA and software patents, it's sad to see the country's courts trying to make its own citizens subject to the EPO and its maximalist views that more or less anything is patentable. Perhaps it's time to take to the streets again....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, european patent office, european union, poland, software patents

Pirate Bay Founder Takes Fight To EU, Argues Swedish Censorship Violates Human Rights

from the legal-challenges dept

While The Pirate Bay has lost all of its appeals in Sweden, one of the founders, Fredrik Neij, is apparently going to take his case to the European Courts, arguing that shutting down a site like The Pirate Bay is a violation of Article 10 of the European Convention on Human Rights. As Neij's lawyers point out, since TPB does not host or transmit any material covered by copyright, shutting it down (or fining and jailing Neij based on its usage) rejects his rights "to receive and impart information."

While I understand where he's coming from, I do worry that courts to date have been particularly bad at comprehending the fact that The Pirate Bay neither hosts nor transmits any unauthorized information. While they are seeking to make analogies, the courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage.

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Basically, it sounds like they're going with a typical secondary liability protection argument, which makes sense in theory. Once again, however, the courts have been pretty resistant to recognizing such an argument, especially when so much of the usage is for infringing purposes and (especially) when the operators of the site were quick to mock those who challenged how much of the usage was infringing. The courts just don't have very much sympathy there. Thus, I'm not confident this will turn out all that well -- and I actually worry that the end result may be a precedent that cuts of secondary liability protections for other sites as well.

Filed Under: european convention on human rights, european union, fredrik neij
Companies: the pirate bay

The Sky Continues To Rise: EU Gross Box Office Returns And EU Film Production Both Hit Record Highs In 2011

from the embarrassingly-successful dept

Even though just about every objective statistic suggests otherwise, the copyright industries still take turns bemoaning the terrible toll that piracy is supposedly taking on their markets. So it's good to come across some official figures that suggest the contrary, particularly because in this case they come from the European Audiovisual Observatory—not a market research company, but a public service body. Here are the latest numbers for the European film industry:

2011 was a year of stabilisation at the European box office as the marked upward trend of GBO [gross box office] of the past two years slowed down significantly, resulting nevertheless in an overall year-on-year increase. Based on provisional data the European Audiovisual Observatory estimates that EU gross box office returns increased marginally by 0.7% from EUR 6.37 billion [$8.14 billion] to EUR 6.4 billion [$8.18 billion], still the highest level on record. Cinema attendance remained stable with an estimated 962 million tickets sold.

Note that this is no mere one-off -- the report speaks of a "marked upward trend" of the previous two years that has slowed down significantly, but is still there, leading to what it terms "the highest level on record". That's about box office sales, but maybe the European film industry itself is suffering under the onslaught of popular US movies? It seems not:

2011 saw European films claiming back market share which they had lost to US 3D blockbusters in 2009 and 2010. Based on provisional figures, estimated market share for European films in the EU climbed from 25.2% to 28.5% in 2011, back to the ‘pre-3D’ levels of 2007 and 2008. Market share for US films on the other hand fell from 68.5% to an estimated 61.4%. This would be lowest level since 2001.

The best result for a decade, then. Now, that's all very well, but might still be the result of a few anomalous European blockbusters that have distorted the figures. According to the European Audiovisual Observatory, that's not the case:

EU production levels continued to grow to 1,285 feature films in 2011, 59 films more than in 2010 and a new record high.

In other words, in 2011, Europe note only saw record box office receipts at cinemas, but also record indigenous film production. It's a little hard to see how anyone could try to spin that as another "piracy is destroying the European film industry, we must bring in tougher copyright infringement laws" story, but I'm sure the usual suspects will try their darnedest.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: box office, european audiovisual observatory, european union, piracy

Now It's Switzerland's Turn To Call ACTA Into Question

from the and-another-one dept

When discussing ACTA, there's a natural tendency to concentrate on the bigger players -- the US or the EU -- but it's important to remember that there are many other countries involved. One of those is Switzerland, which has just joined the doubters' club by holding off from signing ACTA. Here's why (French original):

Since the conclusion of the negotiations, the criticisms regarding ACTA have multiplied in various countries. The [Swiss] Federal Council takes these fears seriously since they concern fundamental liberties and important points of law.

As a result, Switzerland will not be signing ACTA for the moment. Instead:

The Council will re-examine the question when new elements on which it can base its decision are available. These elements could include the deliberations of the five EU countries that have delayed signing ACTA, the results of the referral to the European Court of Justice by the European Commission, or the continuation of the EU's ratification procedure.

Clearly, the Swiss Federation is taking a wait-and-see attitude, and doesn't want to rush into ACTA when others are taking their time. In itself, this latest move by Switzerland doesn't change much, but it does add to the growing doubts about whether ACTA will ever come into force.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, european court of justice, european union, swiss federation, switzerland