Control Freaks

After a five-year case, the European court of justice has ruled that cached copies of web pages made in the course of browsing the internet do not infringe copyright law.

Internet users who visit a website are safe from the threat of a copyright lawsuit, thanks to a landmark case which concluded in the European court of justice on Thursday.

The court ruled that browsing and viewing articles online doesn't require authorisation from the copyright holder, settling a row between the PRCA, the industry body for Britain's PR industry, and the Newspaper Licensing Authority (NLA), which had raged for five years.

The ECJ ruled that European law:

Must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions, and that they may therefore be made without the authorisation of the copyright holders.

When internet users browse the web, their computer makes a copy of the webpage they are visiting in order to display it on the screen. Francis Davey, an independent barrister who specialises in copyright law, argues that a part of EU law known as the temporary copying exception was:

Intended to avoid anyone having to worry about all that from a copyright perspective. The way copyright law is constructed might make it awkward if, in principle, you always needed permission from a copyright owner to browse material made available on the web (lawfully, by that copyright owner).

I think this decision is a good thing, because it makes it clear that browsing lawful material on the web is not a potential infringement, but I don't think we have reached the end of the story.

The case arose as the newspapers wanted to be able to charge companies who specialise in the commercial collation of press cuttings. The newspaper group felt that selectively enforcing copyright controls on website access would facilitate these charges.

It's official: the last holdout for the open web has fallen. Flanked on all sides by Google, Microsoft, Opera, and (it appears) Safari's support and promotion of the EME DRM-in-HTML standard, Mozilla is giving in to pressure from Hollywood, Netflix, et al, and will be implementing its own third-party version of DRM. It will be rolled out in Desktop Firefox later this year. Mozilla's CTO, Andreas Gal, says that Mozilla has little choice. Mozilla's Chair, Mitchell Baker adds, Mozilla cannot change the industry on DRM at this point.

At EFF, we disagree. We've had over a decade of watching this ratchet at work, and we know where it can lead. Technologists implement DRM with great reticence, because they can see it's not a meaningful solution to anything but rather a font of endless problems. It doesn't prevent infringement, which continues regardless. Instead, it reduces the security of our devices, reduces user trust, makes finding and reporting of bugs legally risky, eliminates fair use rights, undermines competition, promotes secrecy, and circumvents open standards.

It's clear from the tone of Gal and Baker's comments, and our own discussions with Mozilla, that you'll find no technologist there who is happy with this step. The fact that Mozilla, in opposition to its mission, had to prepare and design this feature in secret without being able to consult the developers and users who make up its community is an indication of how much of a contradiction DRM is in a pro-user open-source browser.

Unchecked, that contradiction is only going to grow. Mozilla's DRM code, imported from Adobe as a closed-source binary, will sit in a cordoned sandbox, simultaneously Mozilla's responsibility but beyond its control. Mozilla will be responsible for updates to the DRM blackbox, which means users will have to navigate browser updates that will either fix security bugs or strip features from their video watching. Mozillians have already been warned of the danger of talking too much about how DRM works (and doesn't work), lest they trigger the provisions in the Digital Millennium Copyright Act (DMCA) that forbid trafficking in circumvention knowledge.

Baker may think that Mozilla cannot change the industry on its own (despite it having done so many years ago). Sadly, it changes the industry by accepting DRM. It is these repeated compromises to the needs of DRM advocates by tech company after tech company that are changing the nature of personal computing, transforming it into a sector that is dominated by established interests and produces locked-down devices, monitored and managed by everyone but their users.

Past experience has shown that standing up to DRM and calling it out does have an effect . As we have said to the W3C , and Cory Doctorow spells out to Mozilla in this Guardian article , we can do much more to fight the negative consequences of DRM than simply attempt to mitigate the damage of its adoption.

We need to work to end the reinforcement of DRM and criminalization of fair use in the DMCA and similar legislation being spread throughout the world. We need to speak out about the failings of DRM, even if we fear that DRM proponents will just make it worse (in the name of improvement ) or take civil or criminal actions under the DMCA. We need to challenge the baseless assertion that users don't mind DRM as long as they can watch House of Cards and demand actual evidence to justify the damage it causes. And, given the amount of compromise we have already suffered, we need to spell out the principles that we won't compromise on.

Mozilla and the W3C are both organizations with missions intended to defend and promote the open web. Both have now committed to a system of content control that is seen as a violation of those principles by many Internet users. We, and they, can change that story. We need to redirect the ingenuity being wasted on attempts to limit the damage of introducing DRM into the heart of the Web toward a positive campaign against further incursions.

For well over ten years the Open Rights Group has been arguing about a private copying exception, to legalise everyday consumer behaviour of copying music to computer disks. Despite the fact that copyright industry groups have always said they'd never sue anyone, they claim that an exception would cause substantial damage that requires compensation.

Right now, both the private copying exception and parody appear to be delayed. The draft Statutory Instruments are now being discussed by a joint committee and the government in a rather opaque process.

The argument from publisher lobby groups is that European law requires compensation for economic harm arising from copyright exceptions. The UK government has so far, reasonably, argued that any harm would be minimal. Negligible might be more accurate. The change to the law would have little impact on people's behaviour. It would merely legalise what many people already do, copy the music they have legally bought from one device to another.

So what would the damage be? How many people will stop buying second copies of music if an exception is introduced? Probably nearly nobody, we imagine.

To put it another way, how much should you have to pay for a private copy of your own music and films? The BPI says that a private copying exception fair compensation must be granted to rights holders . UK Music says that the exception cannot lawfully be made without fair compensation .

Right now, Obama is meeting with leaders in Asia to finalize the secretive Trans-Pacific Partnership (TPP) agreement.

The TPP threatens to censor your Internet1, kill jobs, undermine environmental safeguards, and remove your democratic rights2.

We're going to get the attention of decision-makers and the media by projecting a Stop The Secrecy message on key buildings in Washington D.C. - but we need you to add your voice now.

The TPP is huge: It covers 40% of the global economy and will overwrite national laws affecting people around the world.3

The worst of the TPP threatens everything we care about: democracy, jobs, health, the environment, and the Internet. That's why decision-makers are meeting in Asia under extreme secrecy and pushing Fast Track laws to cement the plan into place.

This is no way to make decisions in the 21st century. We need to raise a loud global call to expose this dangerous secrecy now.

...Sign the petition

Graham Jules who has written a book for entrepreneurs called Business Zero to Superhero received a letter from Marvel & DC's solicitors demanding he refrain from using the word super hero!

He is now in the position of fighting or scrapping the entire book. He says:

I am running a small business and cannot see how I can fight Iron Man, Spiderman and Captain America all by myself! Having looked into this further I can see Marvel & DC have tried this before, threatening small publishers from using the word superhero in their work. It's not very fair, superhero is a word used by many comic books and creative writers

On further investigation it appears DC & Marvel have held the trademark Super heroes since 1979, however lawyers are divided as to whether this should ever have been granted. Apparently there is a strong case that the word super hero is generic or in common every day usage and as such should be free for all to use.

Jules says:

As a small business and new author, I do not have the resources to compete with Marvel & DC, but I am willing to give it a go...

An initiative that hopes to cut off advertising revenues from websites offering illegal copyrighted material has been launched. It will see the creation of an online database of websites verified as being illegal. It is hoped that firms that handle advertising will use the resource to make sure they do not serve advertising on those sites, cutting off revenue.

The Infringing Website List (IWL) will be an up-to-date list of copyright infringing sites that can be cross-referenced by third party advertising systems, in the hope that they will pull their advertising from those sites.

But Ernesto Van Der Sar, editor of Torrentfreak, a news site that covers issues around online piracy, said there could be worrying implications that arise from the IWL. He told the BBC:

As with all blocklists there is a serious risk of overblocking. Without proper oversight perfectly legal sites may end up losing good advertising opportunities if they are wrongfully included.

The City of London police said any sites listed would be notifiied in advance - but it was unable to tell the BBC how many sites would be on the list at launch.