Control Freaks

Private Media Group last week asked a federal judge to go along with a $11.3 million default judgment against two of the largest porn tube sites, EmpFlix.com and TnAFlix.com.

Private, which claims the tube sites' operator, YoungTek Solutions Ltd., is illegally streaming 75 of its videos, also is seeking to have EmpFlix.com and TnAFlix.com's domain names awarded to the adult entertainment company.

The amount at stake is large, but the defendant is a commercial venture that operates one of the busiest online commercial properties in the world, Private said in a motion for default judgment. Only a large award will serve to deter these arrogant defendants from future illegal action.

BT and TalkTalk have decided to appeal the High Court's refusal to grant judicial review of the Digital Economy Act.

BT and TalkTalk's case is based on five separate arguments that the Digital Economy Act (DEA) is incompatible with 5 elements of European law:

• the Technical Standards Directive, because the UK didn't notify the European Commission before the legislation was passed, as the Directive requires
• the E-Commerce Directive, because the DEA imposes responsibilities on ISPs that because they carry copyright infringing content, when that Directive states that mere conduits should not be liable for the content they carry
• the Data Protection Directive and the Privacy and Electronic Communications Directive because they require the ISPs to record personally identifying data and process it for the benefit of rights-holders, without the consent of the data subject
• the Authorisation Directive, in that the DEA imposes additional obligations on Public Electronic Communications Providers (specifically, ISPs), when that Directive sets out an exhaustive list of the requirements Member States may impose in order to permit people to operate an electronic communications service.
• basic principles of European law, including the Charter of Fundamental Rights and Freedoms, in that the Digital Economy Act's measures against copyright infringement are fundamentally disproportionate.

Update: Appeal Refused

22nd June 2011. Based on article from theregister.co.uk

BT And TalkTalk won't get another day in court against the Digital Economy Act, after the telcos were denied permission to appeal against the failure of their legal challenge to the Act earlier this year.

I can confirm that we've been refused permission to appeal the JR [judicial review] judgment by the Court of Appeal. We are now considering our position, a BT spokesman told The Register.

Update: Ed Vaizey

13th July 2011. See  article from  telegraph.co.uk

Ed Vaizey, speaking at the Intellect technology conference in London said: Well I find their [BT and TalkTalk] attitude quite odd... I mean I do find it odd that BT has spent so much time on litigating against an act of Parliament. They have fallen at every hurdle...I think they are still carrying on but there you go.

Update: Appeal Hearing Granted

28th July 2011. See  article from  publicaffairs.linx.net

BT and TalkTalk were granted an appeal hearing last week, in their quest to have the Digital Economy Act ruled contrary to European law. They lost the case in the High Court on all grounds except that they shouldn't be forced to pay for it. The appeal hearing, which had initially been refused, is now set for 7th October 2012. Presumably this hearing is a request for an appeal rather than an appeal.

Update: Appeal  Granted

12th October 2011. See  article from  bbc.co.uk

BT and TalkTalk will launch a fresh challenge against the controversial Digital Economy Act. The companies have been granted permission to appeal against a High Court ruling that upheld most of the anti-piracy law.

Like many service providers, they believe that the law unfairly compels them to police users' behaviour.

Creative industries have expressed dismay and the latest ruling. John McVay, chief executive of production body PACT, responded on behalf of music, TV and film companies:

Naturally, we are disappointed at this further delay. However, we respect the decision and are pleased that the appeal hearing will be fast tracked because, in the meantime, online piracy continues to wreak havoc on the legitimate market, threatening jobs and livelihoods.

The UK advertising censor, the ASA has tackled Microsoft over CD ripping adverts.

Microsoft has been banned from promoting a potentially illegal feature in its Windows Media Player, CD ripping.

In March, the ASA took to task 3GA Ltd for its Brennan JB7, a CD player with a hard disk that stores up to 5,000 CDs . The ASA said the advertisement incited consumers to break the law , as format shifting breaks copyright laws in the UK - despite it being common practice.

A PC Pro reader noticed Microsoft was advertising the very same feature in its Windows Media Player software, and dutifully reported the ad to the watchdog to prevent anyone else from being incited into a life of crime.

In a letter seen by PC Pro, the ASA assured the complainant that Microsoft had agreed to change its ad and make clear that unauthorised use or duplication of copyrighted material is a violation of copyright law in the UK .

There was no formal investigation, as Microsoft agreed to change the advert immediately - and as that's the only punishment available to the watchdog, there was no point in pursuing the case further.

Microsoft continues to support CD Ripping in its Windows Media Player but notes:

Unauthorized use and/or duplication of copyrighted material may be a violation of copyright law in the United States and/or other countries/regions (for example, it is a violation in the UK). Copyrighted material includes, but is not limited to, software, documentation, graphics, lyrics, photographs, clipart, animations, movie and video clips, as well as sound and music (including when MP3 encoded). Violation of international copyright laws may subject you to significant civil and/or criminal penalties.

Two lawyers who were responsible for the introduction of so-called Speculative Invoicing into the UK, have both been found guilty of professional misconduct by a tribunal. Among other charges, the Solicitors Disciplinary Tribunal found that the pair from law firm Davenport Lyons knowingly targeted innocent people.

The two solicitors from law firm Davenport Lyons sent letters to thousands of individuals alleged to have carried out unlawful file-sharing, a story first broken on TorrentFreak.

The letters sent out by David Gore and former partner Brian Miller claimed that evidence showed that the letter recipient was guilty of copyright infringement and demanded around ?500 in compensation to make highly expensive legal action go away.

However, the highly controversial scheme was drawn to the attention of the Solicitors Regulatory Authority (SRA) by consumer magazine Which? when it became clear that the letters, which made some baseless and outlandish claims, were targeting innocent people and were bullying in nature.

The subsequent SRA investigation found that Gore and Miller knowingly targeted innocent people, failed to act in the best interests of clients and acted in a way likely to diminish trust in the legal profession.

The hearing ended with the Solicitors Disciplinary Tribunal finding both Gore and Miller guilty of professional misconduct on all six counts presented. The fate of the pair, which could range from monetary penalties to being disbarred, will be announced next month.

Disconnection Of Users From The Internet

Early Day Motion: EDM 1913

That this House welcomes the report of the Special Rapporteur on Free Expression, Frank de la Rue, to the Human Rights Council of United Nations; notes that he is alarmed by the Digital Economy Act 2010 and other three strikes disconnection laws and that he considers them to be a violation of freedom of expression; further notes the report's recommendation to repeal laws permitting disconnection of users from the internet; further notes that La Rue emphasises that web censorship should never be delegated to private entities, and that corporations should only act to block and censor with the authority of a judicial process; and calls on appropriate Parliamentary Select Committees and the Government to re-examine new website blocking proposals from the Department for Culture, Media and Sport, as part of the Home Office's Prevent strategy, and in sections 3 to 18 of the Digital Economy Act 2011 in the light of this report.

introduced by

• Huppert, Julian: Liberal Democrats

signed by

• Blenkinsop, Tom:  Labour
• Bottomley, Peter: Conservative
• Durkan, Mark: SDLP
• Flynn, Paul: Labour
• George, Andrew: Liberal Democrats
• Halfon, Robert: Conservative
• Joyce, Eric: Labour
• Watson, Tom: Labour Party

Update: 102 MPs

18th July 2011

Now signed by 102 MPs

The Special Rapporteur to the United Nations Human Rights Council has denounced three strikes laws that would cut off Internet users as a penalty for copyright infringement. The advice comes in a Report to the UN General Assembly on the Protection and Promotion of Freedom of Opinion and Expression.

While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

The Special Rapporteur also acknowledged the importance of protecting Internet intermediaries from liability in order to protect human rights. Internet intermediaries should only act to limit the rights of their customers following a legitimate court order.

Norway is the latest country to propose amendments to its copyright law to make it easier for content owners to tackle online piracy, though the Norwegian government has shied away from any sort of three-strikes system, instead making it legally easier for rights owners to identify individual file-sharers, and to get injunctions to order ISPs to block copyright infringing websites.

The former will relax data protection rules which, in Norway, currently limit who can monitor the activities of individuals on the internet. They will also simplify the process by which rights owners can force ISPs to reveal the name and contacts of suspected file-sharers based on the IP address they are using.

The big debate in most countries is whether government regulators should have the power to order such website blocking, or whether injunctions should only be available via the courts system, albeit via some sort of fast-track judicial process. And the Norwegian government's proposals put forward both these options. Those who fear any web blocking could lead to excessive censorship generally oppose both options, though will oppose the former much more vehemently.

Norway's government is now asking for those affected by any change to copyright law to comment on the proposals.

A review of the UK's copyright laws offers reforms but not the radical overhaul demanded by some. It was requested by the prime minister following concerns that they were outdated for the internet age.

The review, led by Professor Ian Hargreaves, recommends legalising the practice of copying music and films. It also seeks to relax the rules around so-called transformative works - parodies or other reworkings of existing content.

And it calls for the setting up of a new agency to mediate between those wanting to license music, film and other digital content and rights owners.

One of the key changes will be the recommendation to legalise format shifting for personal use - the copying of CDs or DVDs onto digital music players or computers. Although no individual has been prosecuted for ripping music, having an outdated legal framework has stifled some innovations, the report said.

Format shifting has been implemented in all European countries apart from the UK, the Republic of Ireland and Malta, said Susan Hall, media specialist at law firm Cobbetts LLP.

Another big idea in the report is the creation of a Digital Copyright Exchange. It will be responsible for so-called orphaned works, content that does not have an identifiable author. The report recommends a "senior figure" be appointed to oversee its design by the end of next year.

Owners can voluntarily add their IP to the exchange and will be encouraged to do so by stronger enforcement actions available only for material in the exchange. However it is felt that restrictions such as standard licensing terms will not be attractive to film and music producers.

The Nintendo 3DS comes with Terms of Service (TOS) that should not be accepted. To enforce these TOS, Nintendo uses Digital Restrictions Management. This combination of legal and technological restrictions make the Nintendo 3DS dubious, devious, and defective.

One particularly nasty part of the TOS makes a threat that Nintendo will brick your device if you use your 3DS in a way that they do not approve. First, they state that Nintendo may update or change the Nintendo 3DS System or the Nintendo 3DS Service in whole or in part, without notice to you; and then later they state that after the 3DS has been updated...

[...] any existing or future unauthorized technical modification of the hardware or software of your Nintendo 3DS System, or the use of an unauthorized device in connection with your system, will render the system permanently unplayable.

defectivebydesign.org have mounted a campaign to highlight customer concerns by sending bricks to Reginald Fils-Aime President and COO Nintendo of America.

They encourage protestors to write:

Dear Reggie Fils-Aime,

The Terms of Service on the Nintendo 3DS are insulting and I will not accept them. The Digital Restrictions Management technology that you use to enforce these terms allows you to dictate how, when, and even IF, I am able to use the device in my own home.

The Nintendo 3DS is Defective by Design and your Terms of Service are dubious, devious, and defective for the following reasons.

Dubious: Nintendo tracks all of the activity on the device and all of the data created by a user. Further, the TOS grants Nintendo a license to all user content created on the 3DS, which includes comments, messages, images, photos, movies, information, and more. Note that the 3DS comes with a camera, so you are making a claim on photos or movies that I create!

Devious: Whenever the wifi is turned on, the 3DS will constantly try to connect to the Nintendo servers and upload all of the tracked data and information.

This is particulary devious when the users are children. And what is your solution to making sure children's personal information doesn't get tracked? You tell parents to make sure their children don't use the device in a way where personal information will be stored.

This means kids shouldn't use the camera; they shouldn't create nicknames; they shouldn't chat about themselves; they shouldn't browse the web; and they shouldn't do a host of other things the 3DS was explicitly made to do.

If children shouldn't use the device for what it is made for, then why are you marketing it toward children?

Defective: You say that at any time, Nintendo can update a device without notice. Further, you state that if you do not like how a person is using the device, then through this update of the system you will render the system permanently unplayable.

Put another way, if you do not like what I am doing with my 3DS, you will brick my device!

If you want to regain the trust and respect of myself and the rest of your potential customers, please respond

Yours Sincerely

A nurse from Ayr has become Scotland's first criminally convicted file-sharer following investigations by the British Recorded Music Industry (BPI) and the International Federation for the Phonographics Industry (IFPI).

Anne Muir admitted to sharing £ 54,000 of copyrighted music files, in contravention of the Copyright, Designs and Patents Act 1988. Intelligence gathered by BPI and IFPI revealed that Anne Muir was a prolific user of a particular file sharing network based in the UK, said Ayr's district prosecutor, Mirian Watson, who claimed that Muir's offence was tantamount to theft .

Yet Muir did not benefit financially from her file-sharing, says defence Lawyer Lorenzo Alonzi: This offence was not committed for any desire to make money. Mrs Muir was not in any way trying to distribute on a large scale, she had a very big quantity of these files because she was hoarding -- a symptom of a severe obsessive personality disorder that she suffers from.

Muir will be sentenced later this month.

Update: Comment

17th May 2011. Thanks to Angelus

This article is doing the rounds, but some important points are being completely missed or downplayed by the media.

For one thing, they want to make it sound like it's open season for filesharers now, but the reality is very different. The fact that the accused entered a "guilty" plea should be telling us something - as far as I can recall, the only time a "not guilty" plea was entered in a similar case, the prosecution failed.

Also, why is nobody pointing out that the case was brought under the wrong section of the Act? Subsection 107(1) of the CDPA is aimed at counterfeiting of tangible objects, it's subsection 107(2A) which specifically targets things like filesharing - it also carries less severe penalties.

One of the UK's largest ISPs has launched network-level website blocking aimed at protecting subscribers' children and their computers. While reports of HomeSafe's ability to block access to viruses, pornography and violent content has been widespread, it also blocks file-sharing sites and even information about file sharing at torrentfreak.com .

The package offers various services

• Virus Alerts which blocks sites (or sections of sites) known to be infected with malware.
• Homework Time , a feature which allows parents to grant kids access to the Internet for educational purposes, but stops them in their tracks should they attempt to become distracted by social networking sites such as Facebook.
• KidsSafe, offers parents a set of controls to stop their kids (or indeed anyone else using a TalkTalk Internet connection) from accessing violent, pornographic or gambling content.

TalkTalk is stressing that HomeSafe is completely optional and is disabled by default. The list of blocked sites will not be made available.

Mozilla officials have refused a US government request to ban a Firefox add-on that helps people to access sites that use internet domain names seized earlier this year.

The Firefox add-on, available on Mozilla.org, made it easy for users to access sites that used some of the confiscated addresses. It did this by redirecting them to substitute domain names that were out of the reach of US courts, such as those with a .de top level domain.

You simply type Demoniod.com into your browser as usual, the add-on's authors wrote in an FAQ explaining how it works. The browser sends the address to the add-on, the add-on checks if Demoniod.com is on the list of sites to be redirected and immediately redirects you to the mirror site.

US officials alleged MafiaaFire circumvented their seizure order and asked Mozilla to remove it. The open-source group, in not so many words, said no. Our approach is to comply with valid court orders, warrants, and legal mandates, but in this case there was no such court order, Harvey Anderson of Mozilla explained.

A vocal chorus of lawmakers and policy wonks have decried the domain seizures, arguing that the ex parte actions are a serious power grab that threaten the stability of the internet. If the US government can confiscate addresses it doesn't agree with, what's to stop China or any other country from doing the same thing?

The seizure of file-sharing related domain names by the US Government hasn't been as effective as the entertainment industries had hoped since many of them simply continued their operations under new domains. To make these type of domain transitions go more smoothly, an anonymous group has coded a simple Firefox add-on that automatically redirects users to these new homes.

ICE director John Morton confirmed last week that the seizures will continue in the coming years. But at the same time the authorities amp up their anti-piracy efforts, those in opposition are already coming up with ways to bypass them.

One of these initiatives is the MAFIAA Fire add-on for Firefox. The plugin, which will support the Chrome browser at a later stage too, maintains a list of all the domains that ICE (hence the fire) has seized and redirects their users to an alternative domain if the sites in question have set one up.

A national press ad, for a CD player with hard disk, included text that stated:

Good news for CD owners. The Brennan JB7 is a CD player with a hard disk that stores up to 5,000 CDs ... It saves space and clutter and delivers near immediate access to an entire music collection. JB7 owners rediscover then fall in love with their music again simply because the Brennan makes it so accessible. The Brennan also records from vinyl and cassette so you can enjoy your entire music collection but keep it out of the way in another room or retire it to the attic ... What's the point in owning hundreds of CDs worth thousands of pounds if you never listen to them? The problem with CDs is that it's quicker to make a cup of coffee than dip into a CD. Try timing how long it takes to pick a CD, load it in the CD player, play a snippet from a track or two, eject it and put it back where it came from. Then there is the problem of finding music. The print on a CD spine is tiny. What if the track is on a compilation CD? What if the CD is in the car? Then there is the clutter. You need to keep your CDs near the player or you won't play them. So you are forced to share your living space with hundreds of cheap plastic boxes. CDs are great but they are also inconvenient, inaccessible and a bit of a chore ... Key Points One button plays the entire collection at random ... Load CDs in about four minutes ... One touch record from vinyl, cassette or radio Loads and plays MP3 from USB ... Used by restaurants, hotels, pubs, dentists, schools Backup music to external USB for safe keeping ... .

A complainant challenged whether the ad incited consumers to break the law, because it was illegal to copy music without permission from the copyright owner.

3GA said the JB7 was one of a new generation of audio devices that offered the facility to load CDs onto an electronic memory to enjoy them better. They said they were not aware of any owners of the product being charged for, or convicted of, infringing copyright and therefore there was no evidence that the ad incited consumers to break the law. They said there would be no evidence of that unless there was a judgement against a JB7 owner. However, it was apparent from the number of such products available that that was unlikely to happen.

Assessment: Upheld

The ASA noted the product was a CD player as well as having a hard disk to store CDs and also record from vinyl and cassette. We also noted, however, it repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner. We considered the overall impression of the ad was such that it encouraged consumers and businesses to copy CDs, vinyl and cassettes. In the absence of prominent explanation, we concluded that the ad misleadingly implied it was acceptable to copy CDs, vinyl and cassettes without the permission of the copyright owner. We also considered that the ad encouraged people to use the advertised product in this way and that, therefore, it incited consumers to break the law.

The ad breached CAP Code rules 1.10 (Legality) and 3.1 and 3.3 (Misleading advertising).

The ad must not appear again in its current form. We told 3GA to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner.

In March last year, Gregory Turner, of the Golden Cup pub in Burton-On-Trent, was ordered to pay £ 19,294 in costs after losing his initial appeal over a £ 500 fine for showing football using a foreign satellite TV subscription.

On 1st March this year, the High Court quashed both the original conviction and a subsequent decision by Stafford Crown Court confirming the conviction. Both courts were ordered to repay to Turner everything he had paid by way of fines and costs.

High Court judges ruled that Stafford Crown Court had not considered the impact of EU law on the case. The long-running Karen Murphy case is currently being considered by judges at the European Court of Justice.

Although, Turner had been using Arab Radio and Television (ART) Network to screen games, he argued that ART were also trading in Italy.

Minister Ed Vaizey has confirmed to Open Rights Group that Government ministers are talking to copyright lobby groups and ISPs about a voluntary “Great Firewall of Britain” website blocking scheme.  We need you to act now.

They want to block websites that music and film companies accuse of copyright infringement. 

But a 'self regulatory' censorship scheme places decisions about what you can and cannot look at online in the hands of businesses. It would remove the vital judicial oversight required by existing powers. Inevitable mistakes would lead to the censorship and disruption of legitimate traffic from businesses, publishers and citizens. And there is little evidence it will have any beneficial effects for the creative economy.

The good news is that the Minister has promised to include civil society groups in future discussions. We need to be there to counter the pressure rights holders are exerting on decision makers.

You can do your bit by letting your MPs know that website blocking is not acceptable and that the voice of civil society needs to be part of the discussions. Please email them now to tell them to oppose web blocking.

Read more on the legal and technical background here