Dutch Research Reveals Wide Scope For Copyright Flexibilities In EU Laws

from the didn't-know-you-could-do-that dept

A couple of weeks ago, Techdirt wrote about a surprising initiative by the Netherlands to introduce new flexibilities into its copyright law. Given that leadership from the Dutch government, it's probably no surprise that a few days later, the Dutch Parliament also showed itself in the political vanguard by voting not to ratify ACTA for the time being.

The full text of the Dutch minister's speech is now available, and it's well worth reading for its clear analysis of the problem facing European copyright, and its suggested solution:

The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives.

As the minister mentioned in his talk, those exceptions are explored in some depth in a report by Professors Hugenholtz and Senftleben, entitled 'Fair Use in Europe. In Search of Flexibilities.' The conclusion gives an idea of just how much scope there is within existing European law to introduce a wide range of copyright exceptions:

As our analysis has demonstrated, the EU copyright acquis [body of law] leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions prima facie suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation, as is confirmed by actual legislative practice in various Member States. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized.

A Member State desiring to take full advantage of all policy space available under the Information Society Directive, and thus maximize flexibilities available at the EU level, might achieve this by literal transposition of the Directive’s entire catalogue of exception prototypes into national law. In combination with the [Information Society Directive's] three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. For less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, we recommend exploring the policy space left by distinct exception prototypes.

The ability to add all kinds of flexibilities to copyright law without breaching the Information Society Directive is clearly a real boon for EU governments who want to update their legislation for the digital age. But there is another notable advantage to taking this approach, as the authors note:

Member States aspiring to introduce flexible copyright norms are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize -- a process that could easily take ten years. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.

The hope there seems to be that forward-thinking countries like the Netherlands might be able to set an example for Europe's future copyright legislation, and move it towards greater flexibility. A good place to start in that respect would be for the European Parliament to emulate the Dutch politicians and to ditch ACTA, one of whose pernicious effects is to limit the freedom of signatories to modify their own national copyright laws.

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Filed Under: copyright, copyright exceptions, eu, fair use, flexibilities, netherlands, research

Dutch Economics Minister Says ACTA Is Designed To Shut Down Child Porn Sites... Even Though That's Not True

from the outright-lies dept

If you've been paying attention lately, you've probably heard SOPA/PIPA/ACTA supporters insisting that anyone against those bills is involved in a misinformation campaign. This seems pretty ridiculous, considering the level of misinformation that has been spewed for decades in support of these kinds of laws. But it's reaching a new level of crazy over in the Netherlands, where the Dutch Econimics Minister Maxime Verhagen has apparently announced that "ordinary" people have nothing to worry about concerning ACTA because its focus is to take down child porn sites. Talk about misinformation. ACTA is about intellectual property infringement and has nothing to do with child porn.

Because the Google translation was weird, I asked a native Dutch speaker to confirm the original translation, and, though he provided a bit more context, he confirmed the basic statement. Apparently Verhagen brings up child porn not once, not twice, but three times in the course of the interview. Sometimes it's just to provide an analogy, about how blocking internet sites is okay if it's child porn, so there's no problem if it's also done under ACTA, but that's a totally separate issue because child porn and infringement are extremely different situations. But on the third mention, as the article suggests, Verhagen does, in fact, link ACTA to child porn:

"Regarding internet users that download - this treaty doesn't cover that at all. It's about, for instance, the possibility to shut down a child pornography site (not the person who goes there, but the person who puts it online). Or when there's big-scale commercial abuse in such a way that the labor of the creator is taken away from him"

I recognize that he's saying the purpose of ACTA is to go after sites not users, but that really is besides the point. People are concerned about the wrongful censorship of sites, and ACTA itself has nothing to do with child porn. Using that and claiming that's what ACTA is about is simply fear mongering. Of course, it's become all too typical these days to wrap other forms of legislation in "child porn" claims. This comic from over a decade ago remains all too true, as we're seeing with politicians around the glob using child porn to press for draconian legal changes.

Filed Under: acta, censorship, child porn, copyright, maxime verhagen, netherlands

Dutch Government: Make European Copyright Exceptions More Flexible

from the didn't-see-that-coming dept

Well, here's a turn-up for the books. At a time when the European Commission is insisting that the copyright ratchet should be tightened up a few notches by bringing in ACTA, with its perilously vague terms that potentially criminalize even low-level acts of online sharing, here's the Dutch government planning to go in the opposite direction:

The Dutch government wants to change copyright law so new media users can continue to do "creative remixes" of protected content. [It] will no longer wait for the European Commission to find a compromise.

The Dutch government made that clear at a conference it had organized, entitled "Towards Flexible Copyright," where one of the speakers was Bernt Hugenholtz of the Dutch state committee on copyright law. On the subject of YouTube, he said:

"Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things."

Also speaking at the conference, Netherland's Deputy Justice Minister Fred Teeven said he was exploring "a more flexible system of copyright exceptions that would also work in a European context." One solution would be to replace the limited set of European exceptions to copyright, which are laid down by law and allow no flexibility, with a system more akin to US fair use, which gives courts a certain leeway to determine what exactly is permissible.

Of course, that's an eminently sensible thing to do, not least because it wouldn't require a radical overhaul of European copyright, just some tinkering at the edges. Despite that, the idea is likely to meet stiff resistance -- and not just from the industry dinosaurs that reflexively resist any change that might reverse the copyright ratchet by even a few degrees.

At a time when the European Commission is hell-bent on getting ACTA ratified by the European Parliament, it won't take kindly to national governments going their own way on exceptions. That's particularly the case since the Commission is also drafting a new directive specifically designed to harmonize EU copyright law.

The Dutch government will be well aware of all those countervailing pressures, which makes this unexpected move all the more bold. Let's hope it inspires other EU countries to lend their weight to this much-needed initiative to make European copyright laws fit for the digital age.

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

Filed Under: copyright, exceptions, flexibility, government, netherlands

Dutch ISPs Refuse To Block The Pirate Bay Without A Direct Order

from the good-for-them dept

While some Dutch ISPs have been ordered by a court to block access to The Pirate Bay (after fighting it in court for years), the order only applied directly to two ISPs: xs4all and Ziggo. BREIN, the local anti-piracy group, had then demanded that other ISPs also start blocking access. However, it appears that KPN and T-Mobile are refusing, saying that they will not do so without a direct court order:

“KPN sees the blocking of websites as a drastic measure for which a court order is required,” KPN said in a statement, adding that innovation is needed to curb piracy.

“KPN doesn’t believe a blockade is the right solution. What is needed are robust, attractive business models that are easy to use and offer a fair deal to both producers and consumers of content.”

T-Mobile also said that it will only respond to court orders, while it emphasized the value of an open Internet.

“T-Mobile strongly supports an open Internet and is fundamentally against shutting off access to websites. Dutch law is very clear when it comes to blocking access to the Internet. T-Mobile will only respond to a court ruling, not to demands from a private party such as BREIN.”

It's good to see that these ISPs are standing up for the right to an open internet. Of course, I do wonder how such block orders work under Netherlands' (first of its kind) net neutrality law.

In the meantime, the two ISPs who were subject to the court order have begun the blockade, with Ziggo pointing users to an information page... in which they tell users that it's easy to get around the blockade.

Filed Under: blocks, isps, netherlands
Companies: brein, kpn, t-mobile, the pirate bay, xs4all, ziggo

Dutch ISPs Told To Block The Pirate Bay

from the fat-lot-of-good-that-will-do dept

For a few years now, some Dutch ISPs have been fighting a court order that demanded they block the Pirate Bay, trying to appeal to basic common sense of not making a third party liable:

"The basic principle of the Internet is that ISPs pass on traffic to their customers unfiltered, they are merely a gateway," says Niels Huijbregts, spokesman for XS4ALL. "The Pirate Bay website is not hosted on a Ziggo server, so Ziggo can't be held responsible for restricting access to the website. BREIN is targeting the wrong people."

Unfortunately, it appears the Dutch courts have no time for common sense, as they've rejected this argument (in Dutch) and given ISPs 10 days to figure out how to block sites or face huge fines (10,000 euros per day, and potentially a total of 250,000 euros).

Of course, we've seen this game before. Multiple times. Some technologically clueless court orders a block... and within a very short period of time (sometimes before the blocking even begins) services start springing up to get around the block. This leads to some free advertising for the site, but no apparent decrease in infringement.

Filed Under: blocking, isps, netherlands
Companies: the pirate bay, xs4all

Dutch Collection Society Found To Be Source Of Infringing Content

from the everyone's-a-pirate dept

Remember the story about the composer who found his music featured in anti-piracy ads and had a difficult time getting paid out, triggering a corruption scandal at collection society Buma/Stemra? It was obviously a bit ironic that the music in question was used in anti-piracy ads, but it appears the irony truck forgot to unload a package - filled to the brim with humiliation.

Using YouHaveDownload, a tool that tracks torrent transfers on various public torrent trackers and matches them with IPs, a popular Dutch weblog has uncovered piracy at that aforementioned collection society. They scanned the IP range of Buma/Stemra's HQ and among the pirated material they found:

• An episode of Entourage (whois).
• A copy of the game Battlefield 3 (whois).

The tool only covers about 4 to 6% of what's available on the networks it tracks, so it's possible that there's a lot more sharing evil piracy going on from their offices as well.

If anything, this scandal really shouldn't be a scandal. Anti-piracy lobbying and campaigning has led to sharing becoming a taboo, while the money spent could have been used to facilitate sharing and to build sustainable business models on top of that. Despite pirates among their own ranks, organizations like Buma/Stemra feel that the Dutch policy of downloading from unauthorized sources for personal use being legal should be altered (read their statement). Even though the Dutch parliament disagrees, the Dutch government is trying to get exactly such laws altered citing EU pressure, even though the Digital Agenda Commissioner, Neelie Kroes (herself Dutch), has stated opposite goals. With people in parliament who do not know "what or who is a torrent," it's not entirely unlikely that the govt actually manages to get the law changed after all.

Buma/Stemra was quick to respond and acknowledge that IPs are not reliable to determine infringers. Apparently the IP addresses used for piracy (ending in .246 and .248) cannot be used by employees to access the web internet, so the collection society claims they were spoofed. (Update: their, now removed (cache), statement said internet, instead of web - apologies). Oddly, the IP from which the email with the press announcement was sent, ~.247, hasn't been spoofed. Did I mention they brought up spoofing after a spokesperson first claimed that the IP addresses could have originated from anywhere in the business park even though everything from ~.240 to ~.255 is linked to Buma/Stemra's office?

Sure, this scandal is humiliating, but it's not as embarrassing as the war against innovation. You can use this moment to better understand the human nature of sharing, to understand that downloads don't translate directly to lost sales, and to rethink your lobbying strategy to push for a more sane framework. Or, you know, you can continue to upset fans whilst amusingly tumbling from one scandal into the next.

Meanwhile, it will be interesting to see if there are more pirates in disguise amongst hardline politicians, RIAA & MPAA folks, and other classic opponents of more flexible copyright legislation. You all know where to find the tool now, so perhaps it can happen through a lesson about crowdsourcing. That is, have fun and see what you can find...

Filed Under: caught, copyright, europe, netherlands, piracy, youhavedownload
Companies: buma/stemra

Anti-Piracy Group Caught Pirating Song For Anti-Piracy Ad... Corruption Scandal Erupts In Response

from the wow dept

The Dutch anti-piracy group BREIN is one of the most aggressive of the anti-piracy groups out there. So there's some amusement in watching as it gets caught up in a scandal that started when it pirated music for an anti-piracy campaign. BREIN had asked musician Melchoir Rietveldt to compose a song for a video that was only to be used at a local film festival. The terms of the deal were strict: the song was only for that one anti-piracy video at that one film festival. However, Rietveldt later discovered that the anti-piracy ad was being used all over the place -- a fact he discovered when he bought a Harry Potter DVD and noticed the video... with his music.

After determining that the music had been used tens of millions of times in such an unauthorized manner, he contacted the local music collection agency, Buma/Stemra, asking them to seek somewhere around $1.3 million owed from BREIN. Buma/Stemra ignored him. Eventually, however, apparently a Buma/Stemra board member, Jochem Gerrits, reached out, and said he could help Rietveldt get paid... but with some questionable conditions. According to TorrentFreak:

In order for the deal to work out the composer had to assign the track in question to the music publishing catalogue of the Gerrits, who owns High Fashion Music. In addition to this, the music boss demanded 33% of all the money set to be recouped as a result of his efforts.

The conversation between Gerrits and the composer’s financial advisor was recorded by Pownews, and during the conversation the financial advisor confronts Gerrits with his unconventional proposal.

“Why do you have to earn money?” he asks, as usually all of the money goes directly to the artists.

“It could be because a lot of people in the industry know that they are in trouble when I get involved,” Gerrits responds, adding that he can bring up the topic immediately in a board meeting next week.

Once again trying to find confirmation for the proposal, the composer’s advisor later asks if the music boss indeed wants one-third of the money.

“Yes, that’s the case, but then [the composer] would make 660,000 euros and now he has nothing,” Gerrits responds calmly.

This is apparently making news across the Netherlands, and Gerrits has resigned. As for BREIN, it's insisting that the whole thing is "a contractual issue" and that it is "not involved."

Filed Under: anti-piracy, copyright, corruption, netherlands
Companies: brein, buma/stemra

Usenet Provider Ordered To Wave Magic Wand And Make Infringing Content Disappear

from the how? dept

We've seen a few other cases like this and never can understand how a court thinks it's reasonable for a third party service provider to know how to block its system from being used for infringement, but that's exactly what's happened in the Court of Amsterdam. Dutch anti-piracy group BREIN has apparently won a lawsuit against Usenet provider News-Service.com (NSE). The court has ordered NSE to magically make all infringing works available via Usenet disappear. Of course, if you understood how third party systems work, you would know that the only way to do that is to no longer be an open platform, which takes away all the value of such a service. NSE responded pretty much as you would expected -- in shock about the impossibility of the order:

We are very disappointed with the Court’s verdict. It is technically as well as economically unfeasible to check the contents of the 15 to 20 million messages that are exchanged on a daily basis. Added to which, there is no automated way of checking whether Usenet messages contain copyrighted material or whether permission has been obtained for the distribution of such material.

It's kind of amazing that a court of law can't understand how the internet works. For its part, BREIN claims that this is "a breakthrough step." Yeah, taking down major communication platforms because the organizations you represent refuse to adapt. That's a "breakthrough"?

Filed Under: copyright, netherlands, third party liability, usenet
Companies: brein, news-service.com

Entertainment Industry's Coordinated Effort To Blame Third Parties Taking Shape

from the they're-everywhere dept

We've noted that the entertainment industry lobbyists (driven mainly by the MPAA and the RIAA) are pretty good at having a fairly global strategy when it comes to implementing the next bad idea. Whenever they support something, you quickly see something similar pop up around the globe -- sometimes with slight variations, which often allow them to test the waters to see how far they can go, in order to later use any such successes to convince other countries to go even further. It's why you saw copyright extension show up around the globe, it's why three strikes showed up around the globe... and now it's why blaming third parties and making them liable for copyright infringement is showing up around the globe. In the US, it's the PROTECT IP Act, which puts an astounding burden on third party tech companies -- namely "information location tools," payment processors and ad firms -- in an effort to make them cut off those accused (not found guilty) of copyright infringement. And, we just noted that efforts are underway for something similar in the UK.

However, over in the Netherlands, they're trying something slightly different. The anti-piracy group BREIN, which apparently gets plenty of funding from the MPAA, is simply going to start suing such third parties. BREIN has announced that it will sue third party payment processors if they don't cancel accounts associated with those accused of copyright infringement. Notice that in this case, they're not talking about a new law, but using existing laws to put liability on such third parties. It's an impressive strategy effort by old Hollywood, but it suffers the same fatal flaw as its other plans. Nothing in this will make anyone want to buy. And, at the same time, the risk of getting a false positive is pretty high. But that's apparently a small price to pay for thinking you're stopping infringement.

Filed Under: entertainment industry, netherlands, payment processors, third party liability

Dutch Communications Agency Cracks Down On Pirate Stations; Can Go From 'Warning' To 'Fine' In 30 Minutes

from the sorry,-lenscrafters,-time-to-step-up-your-game dept

The Radio Communications Agency of the Netherlands has ramped up its efforts against pirate radio stations, which it claims are disrupting non-pirate radio stations along with airline communication. This isn't so surprising, as it has been increasing fines and enforcement over the past few months.

In response, pirates have been setting up stations using collapsible antennas (some reaching as high as 40 meters) in order to shift venues, as it were, should The Man suddenly appear. In response to the pirates' response, the Radio Communications Agency has expedited its processes to the point that it can now make this amazing/perhaps unbelievable claim:

The illegal broadcasters could be fined 2,500 euros just half an hour after receiving a warning letter.

Without any further details forthcoming, it's hard to imagine how this works. Here in the U.S., it can take months for the FCC to hand down a judgment and fine offending pirate radio stations. Officials in the Netherlands have been able to push their turnaround time down from several weeks over the past several months, and they've got a smaller area to police, but a half hour?

If it can trim it to a half hour between the arrival of the warning letter and the fine, wouldn't it just be easier to include the paperwork for the fine in the same envelope? Or is someone trailing the mail carrier with his or her fingers poised on the speed dial for the local enforcement team? The mind boggles. (And by "boggles," I mean "tends not to believe.") Or maybe it's some sort of EULA ("By reading this letter, you agree to be fined directly for illegal broadcasting...) wrapped in a Mission Impossible-esque self-destruction device, only instead of self-destruction, your warning letter morphs into a bill for $2,500 Euros.

No matter the delivery method, it's a bold claim, one equaled only by Domino's Pizza's long-remembered (but oft-violated) slogan of "30 minutes or it's free." Unfortunately for the pirates, there's nothing free about this offer.

Filed Under: netherlands, pirate radio, radio, warnings