EU Court Adviser Says Google Shouldn't Have To Enforce A French RTBF Request Anywhere But In Europe

from the jurisdictional-limitation-is-not-exactly-a-novel-concept dept

The "Right to Be Forgotten" -- a European construct that allows people to erase their internet history at the drop of a takedown request -- should only apply in countries affected by the law. That would seem to be obvious but, so far, it hasn't played out that way. There has been insistence by a few judges and governments that delisting orders should cover anywhere Google's search engine can be used, rather than just in the originating country.

The abusable system has led to questionable delisting requests, which almost always results in the person making the dubious request generating even more URLs to target with the next round of takedowns. That's the nature of the internet, and that's why some judges think content delisted in one country should be made unavailable everywhere in the world.

For a while, it appeared the EU was inclined to agree with French regulators who believed they should be able to control the distribution of content worldwide from an office in Paris. Fortunately, it doesn't appear these regulators will get to control the internet. Reuters reports the EU court is probably going to end up siding with Google in this dispute.

Google can limit the “right to be forgotten” to internet searches made in the European Union, an adviser to the bloc’s top court said on Thursday, backing an appeal by the U.S. search giant against a French fine.

Now, this isn't guaranteed to happen. The Reuters report notes the EU Court normally follows the advice of its legal advisers, but not always. The French government doesn't appear willing to back down, despite this recommendation.

France’s CNIL data protection authority said it noted the opinion and restated its view that the right to privacy should apply regardless of the geographical origin of the person doing an internet search.

This "right" should be watched closely and exercised cautiously. Its short history shows this hasn't been the case. Google is compliant with most requests it receives, but there are still a number of bad faith efforts making their way through the system. Just like DMCA notices, some RTBF requests target legitimate and newsworthy content solely for the purpose of making embarrassing or inconvenient facts vanish from the web. Allowing a European country to control the world's search results will do little more than encourage further abuse.

Filed Under: censorship, cjeu, eu, eu advocate general, eu court of justice, free speech, global rtbf, jurisdiction, right to be forgotten, rtbf
Companies: google

Top EU Court's Advocate General Says German Link Tax Should Not Be Applied -- But On A Technicality

from the nice,-but-it-won't-stop-article-11 dept

As numerous Techdirt posts have explained, there are two really problematic areas with the EU's proposed copyright directive. Article 13, which will require pretty much every major online site to filter uploaded content, and Article 11, the so-called "link tax", more formally known as an "ancillary copyright". It's yet another example of the copyright ratchet -- the fact that laws governing copyright only ever get stronger, in favor of the industry, never in the other direction, in favor of the public. We know for sure that Article 11 will be a disaster because it's already been tried twice -- in Germany and Spain -- and failed both times.

Despite that fact, the German and Spanish laws are still on the law books in their respective countries. VG Media, the German collective management organization handling copyright on behalf of press publishers and others lost no time in bringing a case against Google. It alleged that the US Internet company had used text excerpts, images and videos from press and media material produced by VG Media's members without paying a fee.

Alongside the issue of whether Google did indeed infringe on the new law, there is another consideration arising out of some fairly obscure EU legislation. If the new German ancillary copyright law is "a technical regulation specifically aimed at a particular information society service", then it would require prior notification to the European Commission in order to be applicable. The German court considering VG Media's case asked the Court of Justice of the European Union, (CJEU), the EU's top court, to decide whether or not the link tax law is indeed a "technical regulation" of that kind. As is usual for CJEU cases, one of the court's Advocates General has offered a preliminary opinion before the main ruling is handed down (pdf). It concludes:

the Court should rule that national provisions such as those at issue, which prohibit only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute rules specifically aimed at information society services. Further, national provisions such as those at issue constitute a technical regulation, subject to the notification obligation under that Directive.

It follows therefore, that in the absence of notification of these national provisions to the [European] Commission, these new German copyright rules cannot be applied by the German courts.

Although that sounds great, there are two caveats. One is that the CJEU is not obliged to follow the Advocate General's reasoning, although it often does. This means that it is quite likely that the top EU court will rule that Germany's link tax cannot be applied, and thus that Google has not infringed on any snippets produced by VG Media's members. The more important caveat is that even if the CJEU does take that view, it won't affect Article 11, which is EU, not national, legislation, and not finalized yet. So we are still facing the dire prospect of an EU-wide ancillary copyright that not only won't work, but also is something that many publishers don't even want.

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Filed Under: ancillary copyright, article 11, cjeu, eu, eu court of justice, germany, link tax
Companies: google

Facebook Granted 'Unprecedented' Leave To Appeal Over Referral Of Privacy Shield Case To Top EU Court

from the never-a-dull-moment dept

Back in April, we wrote about the latest development in the long, long saga of Max Schrem's legal challenge to Facebook's data transfers from the EU to the US. The Irish High Court referred the case to the EU's top court, asking the Court of Justice of the European Union (CJEU) to rule on eleven issues that the judge raised. Facebook tried to appeal against the Irish High Court's decision, but the received wisdom was that it was not an option for CJEU referrals of this kind. But as the Irish Times reports, to everyone's surprise, it seems the received wisdom was wrong:

The [Irish] Supreme Court has agreed to hear an unprecedented appeal by Facebook over a High Court judge's decision to refer to the European Court of Justice (CJEU) key issues concerning the validity of EU-US data transfer channels.

The Irish Chief Justice rejected arguments by the Irish Data Protection Commissioner and Schrems that Facebook could not seek to have the Supreme Court reverse certain disputed findings of fact by the High Court. The judge said that it was "at least arguable" Facebook could persuade the Supreme Court that some or all of the facts under challenge should be reversed. On that basis, the appeal could go ahead. Among the facts that would be considered were the following key points:

The chief justice said Facebook was essentially seeking that the Supreme Court "correct" the alleged errors, including the High Court findings of "mass indiscriminate" processing, that surveillance is legal unless forbidden, on the doctrine of legal standing in US law and in the consideration of other issues including safeguards.

Facebook also argues the High Court erred in finding the laws and practices of the US did not provide EU citizens with an effective remedy, as required under the Charter of Fundamental Rights of the EU, for breach of data privacy rights.

Those are crucial issues not just for Facebook, but also for the validity of the entire Privacy Shield framework, which is currently under pressure in the EU. It's not clear whether the Irish Supreme Court is really prepared to overrule the High Court judge, and to what extent the CJEU will take note anyway. One thing that is certain is that a complex and important case just took yet another surprising twist.

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Filed Under: cjeu, eu, eu court of justice, ireland, max schrems, privacy shield
Companies: facebook

Another Bad EU Ruling: WiFi Providers Can Be Forced To Require Passwords If Copyright Holders Demand It

from the really-now? dept

For quite some time now, we've been following an odd case through the German and then EU court system, concerning whether or not the operator of an open WiFi system should be liable for copyright infringement that occurs over that access point. Back in 2010, a German court first said that if you don't secure your WiFi, you can get fined. This was very problematic -- especially for those of us who believe in open WiFi. The EU Court of Justice agreed to hear the case and the Advocate General recommended a good ruling: that WiFi operators are not liable and also that they shouldn't be forced to password protect their access points.

The ruling, unfortunately, says that WiFi operators can be compelled to password protect their networks. It's not all bad, in that the headline story is that WiFi operators, on their own, are not liable for actions done on the network, but that's completely undermined by the requirement to password protect it if a copyright holder asks them to.

In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive.

Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim.

However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.

Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights.

The details here are especially troubling. As legal experts are noting, this ruling basically says that the times when an injunction can be ordered for password protection, the reason is for the sake of identifying users:

In McFadden the CJEU appears to have decided that password protection would be effective only if the user is required to provide identity details to the service provider so that the user cannot act anonymously.

Now that should raise some very serious concerns about anonymity and privacy -- things that we thought the EU supported. Instead, the CJEU basically seems to be saying you have a right to anonymity in connecting to the internet up until the point a major copyright holder doesn't like it any more, and they can now force WiFi operators to lock up their WiFi and/or demand identification to use it. Yikes.

This also punches a HUGE hole in the previous day's announcement by the EU Commission that there would be open WiFi across Europe. Under this new CJEU ruling, that may no longer be possible. It's fairly incredible how, between the European Court of Justice and the EU Commission, they seem so oddly confused about copyright and related issues that they seem to be messing absolutely everything up in just a few short weeks.

Filed Under: cjeu, copyright, eu court of justice, injunctions, liability, mcfadden, open wifi, passwords, wifi

EU Court Of Justice Advisor Suggests UK's Last Surveillance Bill May Be Legal, But Hints That The New One Might Not Be

from the reading-the-tea-leaves dept

Over at the EU Court of Justice, the Advocate General has weighed in on the legal challenge to DRIPA, the Data Retention and Investigatory Powers Bill (DRIPA) that was rushed through the UK Parliament almost exactly two years ago. The law was challenged by a group made up of cross-party Parliament Members, and the Advocate General has sort of punted on the issue. If you don't recall, the Advocate General's role in the EU Court of Justice is basically to make a recommendation for the actual rulings. The court doesn't have to (and doesn't always) follow the Advocate General's suggestion, but does so often enough that the opinions certainly carry a lot of weight and suggest what's likely to happen. In this case, the opinion stated that, even though the court had previously rejected the EU-wide Data Retention Directive as intruding on privacy -- the UK's data retention law might be okay.

The opinion basically says some data retention laws may be okay if the powers are "circumscribed by strict safeguards" set up by the national courts.

Of course, the timing on this is important, given that the UK is (1) eagerly trying to push through its new surveillance law, the Investigatory Powers Bill which was (2) championed by then Home Secretary Theresa May as a necessary surveillance tool -- and May is now the Prime Minister due to a series of issues in the UK you may have heard about lately. And some folks who are trying to read the tea leaves of the Advocate General's opinion are suggesting that it may actually hint that while the old DRIPA might possibly be okay, the new Investigatory Powers bill probably is not. Of course, a lot of this depends on how you read the opinion and how certain key phrases are interpreted.

Many of those responding to Tuesday's opinion emphasised the main finding that "solely the fight against serious crime is an objective in the general interest that is capable of justifying a general obligation to retain data, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings are not."

Basically, it appears that while it may be possible to twist DRIPA into shape so that it's not violating the court's required safeguards, the same cannot be said for the new bill. Whether or not that actually stops forward progress on that bill is another story altogether. And, of course, if the UK really is going to go through with its plan to leave the EU entirely, none of this may matter at all. Well, except for the privacy of everyone in the UK.

Filed Under: data retention, dripa, eu court of justice, eucj, investigatory powers bill, ipbill, snooper's charter, surveillance

NSA Screws Up Another Thing: EU Court Of Justice Throws The Internet For A Loop In Ending Safe Harbor

from the well,-now-what? dept

A couple of weeks ago we wrote about the fact that it appeared that the EU Court of Justice was likely to throw out the EU-US data protection safe harbor as invalid, following a case brought over the NSA's snooping on US tech companies -- and now it has happened. The "the EU-US data protection safe harbor" may sound boring, but it's actually been fairly important in making sure that US internet companies can operate in Europe. It's been under attack for some time from those who feel that these American companies don't take European privacy interests seriously enough, but it's really the NSA and its idiotic "collect it all" mentality that has brought the whole structure crashing down. Many will celebrate this, but probably for the wrong reasons. As it stands right now, this result is undoubtedly bad for the internet. What happens next is key. If you want to blame anyone... blame the NSA. And if the US wants to fix this mess, it needs to stop mass surveillance.

The case was brought by Max Schrems, an Austrian privacy activist who argued that the NSA's PRISM surveillance program (a program that resulted from Section 702 of the FISA Amendments Act, and enables the NSA to request certain information from internet companies, once approved by the FISA Court) violates the safe harbor. The safe harbor itself was established back in 2000 in order to allow internet companies to transfer data from Europe back to the US, with a promise that the privacy of that data would be kept at a similar level as if it were in Europe. The process for getting such safe harbor protections is something of a joke (we've gone through it here at Techdirt), and mostly involves throwing money at an organization that takes money to make sure your policies comply with the safe harbor requirements. Like so many regulations, it really seems to only serve to shift money to those who make sure you comply.

Still, losing those safe harbors can really shake up the internet -- and not necessarily in a good way. While I'm sure some (probably short-sighted) privacy advocates will cheer on this result, it's going to make a mess of things for the time being. Europe has been working on a new data protection directive to update the old one (which the safe harbor is based on) and early indications are that it will be a mess, and potentially hazardous to free speech rights. In addition, the US and EU have been trying to negotiate a new data protection safe harbor anyway, and that hasn't been going smoothly, and this will continue to throw a wrench into things.

Big companies will likely be able to negotiate their way around this, but there will likely be some legal flareups in one or two countries, creating a mishmash of jurisdictional confusion over privacy rights. Smaller internet companies will now face much greater threats in doing business in Europe. Even worse, some are going to use this as an opportunity to try to fragment the internet, demanding companies keep data locally within country borders -- which actually will create more targets for mass surveillance, rather than fewer. Chances are that little will change in the immediate future -- as many companies will just keep right on doing what they're doing and hoping no one really cares. But the potential for people to bring lawsuits could shake things up.

In the specific case here, the Court of Justice found that the safe harbor was invalid, and thus it did not stop Irish officials from considering Schrems' complaint that Facebook violated his rights in making data available to the NSA. So that specific case still needs to move forward and should be interesting to watch.

In short, though, this is yet more damage directly done by the NSA and the US's ridiculous attitude towards mass surveillance, without any concern at all to the economic costs that such mass surveillance creates for US companies. As the EFF notes in its response to the news, the US brought this on itself with its idiotic mass surveillance efforts. This end result is a mess that could lead to greater fragmentation of the internet, which won't do anything to better protect people's privacy (and, actually, might make it more exposed). The only logical way forward is to move away from mass surveillance and towards a more comprehensive view of privacy that takes into account the public's rights -- including the right to free expression. Danny O'Brien at EFF sums it up nicely:

That would certainly force the companies to re-think and re-engineer how they manage the vast amount of data they collect. It will not, however, protect their customers from mass surveillance. The geographic siloing of data is of little practical help against mass surveillance if each and every country feels that ordinary customer data is a legitimate target for signals intelligence. If governments continue to permit intelligence agencies to indiscriminately scoop up data, then they will find a way to do that, wherever that data may be kept. Keep your data in Ireland, and GCHQ may well target it, and pass it onto the Americans. Keep your data in your own country, and you'll find the NSA—or other European states, or even your own government— breaking into those systems to extract it.

What will change the equation is for states, including and especially the United States, to realize that dragnet surveillance undermines their national security and the global security of our data. It has economic consequences, as regulators, companies and individuals lose trust in Internet companies and services. It has political consequences as nations vie to keep data out of the hands of other countries, while seeking to keep it trackable by their own intelligence services.

There's only one way forward to end this battle in a way that keeps the Internet open and preserves everyone's privacy. Countries have to make clear that mass surveillance of innocent citizens is a violation of human rights law, whether it is conducted inside their borders or outside, upon foreigners or residents. They have to bring their surveillance programs, foreign and domestic, back under control.

The ruling today is not a win for privacy. It creates a bigger mess, but it's one that needs to be cleaned up at the source, and that's where governments (and not just the US government) are going with mass surveillance. Unfortunately, there doesn't seem to be any indication that this is what's going to happen. Instead, expect the US and EU to try to paper over this by coming up with a new safe harbor plan that won't change anything, but which may just be more expensive for companies. That's a mistake. There's a way to fix this mess and it's to stop mass surveillance.

Filed Under: data protection directive, eu court of justice, eu us data protection safe harbors, eucj, mass surveillance, max schrems, nsa, prism, privacy, safe harbors, section 702, surveillance
Companies: facebook

How NSA Surveillance May Result In Fragmenting The Internet: EU Court Leaning Towards Ending 'Privacy Safe Harbor'

from the this-could-be-a-mess dept

If you haven't dealt with it, the "EU-US data protection safe harbor" is somewhat confusing to deal with. The basics, however, are that under an agreement between the US and the EU, if US companies wish to transfer data out of Europe and to American servers, they have to abide by this "safe harbor" process, whereby they agree to take certain steps to keep that data safe and out of prying eyes. The process itself is something of a joke (we at Techdirt have actually gone through it to make sure we weren't violating the law -- though I imagine many small American internet companies don't even know it exists). You basically have to pay a company to declare you in compliance, which in reality often just means that the company reviews your terms of service/privacy policy to make sure it has specific language in it. There have been plenty of (potentially reasonable) complaints out of the EU that the safe harbor process doesn't actually do much to protect Europeans' data. That may be true, but the flipside of it isn't great either. Without the safe harbor framework, it's possible that it would be much more difficult for American internet companies to operate in Europe -- or for Europeans to use American internet companies. Some in Europe may think that's a good idea, until they suddenly can't use large parts of the internet.

Either way, the whole safe harbor system has come under attack on a variety of fronts, and it looks close to breaking... all because of the NSA. Max Schrems, who made news back in 2011 by asking Facebook for a copy of all the data it had on him, argued that the NSA's PRISM surveillance program violated EU data protection rules. The European Court of Justice's Advocate General, Yves Bot, has now sided with Schrems and basically said that the NSA surveillance has made the safe harbor process invalid.

The European Court of Justice still needs to come out with its final decision, but it usually (though not always!) agrees with the Advocate General's recommendation. Here, the Advocate General basically says that NSA surveillance has completely undermined the idea that the US can keep Europeans' data safe, and thus the safe harbor cannot stand.

According to the Advocate General, that interference with fundamental rights is contrary to the principle of proportionality, in particular because the surveillance carried out by the United States intelligence services is mass, indiscriminate surveillance. Indeed, the access which the United States intelligence authorities may have to the personal data covers, in a generalised manner, all persons and all means of electronic communication and all the data transferred (including the content of the communications), without any differentiation, limitation or exception according to the objective of general interest pursued. The Advocate General considers that, in those circumstances, a third country cannot in any event be regarded as ensuring an adequate level of protection, and this is all the more so since the safe harbour scheme as defined in the Commission decision does not contain any appropriate guarantees for preventing mass and generalised access to the transferred data. Indeed, no independent authority is able to monitor, in the United States, breaches of the principles for the protection of personal data committed by public actors, such as the United States security agencies, in respect of citizens of the EU.

In short, thanks to indiscriminate mass surveillance by the NSA, we may witness a fractured and fragmented internet. That's a big deal.

The EU Commission and the US have been negotiating for a while to change the EU-US Safe Harbor setup anyway, so it's possible that even if the court follows the Advocate General's suggestion, a new, more acceptable, safe harbor process will be put in place. But, in the short term, this could create quite a mess for the internet. Once again, we see how the NSA's actions, which it claims are to "protect" America could end up doing massive economic damage to the internet.

Filed Under: advocate general, cjeu, data privacy, eu, eu court of justice, eucj, fragmentation, localization, max schrem, nsa, privacy, safe harbor, surveillance

How Should Standard-Essential Patents Be Licensed?

from the that's-not-fair dept

Patents are intellectual monopolies, designed to give the patent-holder control over an invention by excluding others from using it without permission. That's a problem when standards include patented elements. Anyone who wants to implement that standard must use the invention, which gives the patent-holder the ability, in theory, to demand and obtain any licensing deal it might propose. To limit that power, holders of these standard-essential patents are often required to agree to offer licensing terms on fair, reasonable and non-discriminatory (FRAND) terms.

Of course, that leaves open the rather important question of what exactly FRAND means in practice, and an interesting case before the Court of Justice of the European Union aims to obtain some guidance on this issue. The court itself has not yet handed down its judgment, but as usual, an Advocate General has offered his own thoughts as preliminary guidance (pdf). Here's the background to the case:

Huawei, a Chinese telecommunications company, holds a European patent regarded as 'essential' to the 'Long Term Evolution' (LTE) standard developed by the European Telecommunications Standards Institute (ETSI). The LTE standard relates to next generation -- that is to say, fourth generation -- mobile phone communications. Anyone complying with the standard inevitably uses the patent owned by Huawei, which is why that patent is categorised as 'essential'. Huawei is a member of ETSI and notified the patent to that institute. Huawei also made a commitment to ETSI to grant licences to third parties on fair, reasonable and non-discriminatory (FRAND) terms.

However, when another Chinese company, ZTE, sought a license from Huawei, they were unable to agree on the terms, so Huawei brought an action for infringement against ZTE. According to ZTE, Huawei's attempt to obtain an injunction against it constituted an abuse of its dominant position, since ZTE was willing to negotiate a license. Here's the key part of the Advocate General's opinion. After making the alleged infringer aware of its infringement, the standard-essential patent-holder must also:

Present the alleged infringer with a written offer of a licence on FRAND terms and that offer must contain all the terms normally included in a licence in the sector in question, including the precise amount of the royalty and the way in which that amount is calculated.

The infringer must respond to that offer in a diligent and serious manner. If it does not accept the SEP holder’s offer, it must promptly present the latter with a reasonable counter-offer, in writing, in relation to the clauses with which it disagrees.

The rest of the opinion then goes on to fill out details of what is reasonable and unreasonable as the negotiations continue, and as recourse is made to the courts. In many ways, it's an attempt to flesh out what that problematic "fair, reasonable and non-discriminatory" means. But a far better solution would be to stipulate that all standard-essential patents must be licensed on an RF -- royalty-free, also known as requirement-free -- basis. That's precisely what the leading web standards body, the W3C, specifies in its patent policy:

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms.

To this end, Working Group charters will include a reference to this policy and a requirement that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

It's quite reasonable to expect holders of standard-essential patents to agree to RF licensing since the inclusion of their invention in a standard is, in itself, an important benefit: it places the patent-holder at the center of the standard, and enhances its influence over the field it refers to. It also helps it avoid the need for costly and pointless lawsuits like the one between Huawei and ZTE.

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Filed Under: etsi, eu court of justice, frand, licenses, lte, patents, rand, royalty free, standards essential
Companies: huawei, zte

EU Court Of Justice Says Embedding Is Not Infringing: Could Mean Streaming Sites Are Legal

from the well-that's-interesting... dept

Way back in 2006 -- not all that long after video sites like YouTube and DailyMotion began -- we raised the simple question: is embedding infringing content infringing itself? We noted how problematic it was to argue that embedding was infringing, while also noting that it was far from a settled issue. Over the years since then, the issue has come up many, many times. Viacom raised it against YouTube. Bloggers got accused of infringement just for embedding a YouTube video. The MPAA went after sites for embedding videos. And, more recently, with the rise of "streaming" sites, many sites targeted for takedowns or domain seizures don't host any content at all, but merely embed from other sites. But still, that legal question has been in limbo: is it really infringing to merely embed some content that is hosted elsewhere? Two years ago, in the 7th Circuit appeals court, Judge Richard Posner somewhat vehemently rejected the idea that embedding was infringing in the Flava Works case (though, for slightly odd legal reasons). Around the same time, there was a court case in the Netherlands that went the other way, saying that embedding could be infringing.

TorrentFreak, however, now lets us know that in an important ruling from the EU Court of Justice (responding to a request from a German court), it has been declared that, under EU law, embedding is not infringing.

The Court argues that embedding a file or video is not a breach of creator’s copyrights under European law, as long as it’s not altered or communicated to a new public. In the current case, the video was already available on YouTube so embedding it is not seen as a new communication.

“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication,” the Court’s verdict reads.

This raises an awful lot of questions about the efforts by law enforcement to completely shut down streaming sites, most of which don't host content of their own at all. Considering how many of the "rogue" sites that the industry loves to attack as being evil and insists must be shut down do nothing more than embed, it will be interesting to see what comes next. If I had to guess, industry folks and the City of London Police will keep taking down those sites, and many won't bother fighting back. But it seems like if a few sites really fought back there could be some interesting legal rulings in response.

Update: Still waiting for an English translation of the ruling to come out, but IPKat has a good post noting that it's somewhat unclear if this ruling includes the embedding of infringing works, or only authorized works. It sounds like that particular issue was avoided by the court -- even though there are claims that the video in question in this lawsuit was uploaded without authorization in the first place:

In the national proceedings in BestWater, the claimant has been claiming that its film [a 2-minute long commercial] was uploaded onto Youtube “without its permission”. If and to which extent the work had been communicated by the right owner itself on any other website is not clear by reading the decisions of the Bundesgerichtshof or the CJEU, and neither is the issue of whether the work was subsequently uploaded onto Youtube with the permission of the copyright owner. So the facts of the case remain vague in this respect. The CJEU’s reasoning that there is “in particular” no “communication to the public” if the work is made available “with permission”… (para 16. See to this effect Svensson, paras 25 - 28) does not really help solving these uncertainties.

In short, the court ruling is not entirely clear on the embedding of infringing videos, meaning that there will likely need to be another case before this question is really answered.

Filed Under: copyright, embedding, eu, eu court of justice, europe, streaming sites

Awful Spanish Copyright Law May Be Stalled Waiting For EU Court Ruling On Plans To Change Spain's Copyright Levy System

from the stopping-good-ideas,-stopping-bad-ideas dept

Techdirt has written about Spain's new copyright law a couple of times. There, we concentrated on the "Google tax" that threatens the digital commons and open access in that country. But alongside this extremely foolish idea, there was another good one: getting rid of the anachronistic levy on recording devices that was supposed to "compensate" for private copying (as if any such compensation were needed), and paying collecting societies directly out of Spain's state budget. Needless to say, it is such a good idea that the collecting societies hate it, and have appealed against the new system. As a result, the Spanish Supreme Court has referred two questions to the European Union Court of Justice (EUCJ), given here in the translation on the IPKat blog:

A -- Is a copyright levy system, that -- taking as a basis the estimation of the actual damage -- is financed through the State budget thus not making possible to guarantee that the costs of this compensation are only supported by the users of the private copies (as opposed to the non-users), compliant with Article 5(2)(b)b) of [EU] Directive 2001/29?

B -- If the answer is in the affirmative, is it compliant with Article 5(2)(b) of Directive 2001/29 that the total quantity set aside by the government for this compensation, which is calculated in view of the estimation of the actual damage, is set within [or conditioned by] the budget restrictions for each financial year?

So it looks like we will get another copyright judgment from the EUCJ, which has been increasingly called upon to give definitive rulings in this area. The IPKat notes that until the EUCJ decision is handed down, all of Spain's new copyright law may be put on hold -- no bad thing considering how awful much of it is.

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Filed Under: copyright, eu court of justice, levy, spain