Control Freaks

Back in May, we wrote about a draft report by Australia's Productivity Commission on how Australia's copyright and patent laws could be reformed to foster domestic production and innovation. That report is back in the news this week, after it was released in its final form , and a consultation seeking public feedback was opened.

The most important proposed change would introduce a fair use right into Australia's copyright law. Currently Australia's copyright flexibilities are narrowly pre-defined; for example, it is lawful for Australians to backup their computer software and to digitize their video tapes (remember those?), though there is still no similar exception allowing them to back up their iTunes downloads or to rip copies of their DVDs. This approach has made Australia's copyright law a complicated and anachronistic mess.

By swapping these kinds of narrow exceptions out for a broad and flexible fair use right, Australians would be permitted to make any use of a copyright work that is fair, taking into account the purpose of the use, the nature of the work, the amount copied and the effect on the potential market value of the work. This would make the day to day operation of copyright law much simpler and more adaptable to changes in society and technology. It will also stimulate the development of innovative new products and services that rely on fair use.

A second important change proposed in the Productivity Commission report is to guarantee Australians' right to circumvent geoblocks that prevent them from accessing videos, music, books and software from overseas online stores or streaming services. These geoblocks mean that Australians pay more money for the same products, or are forced to wait for longer for their local release. The result is that some users resort to piracy. Clarifying that circumventing these geoblocks is lawful is therefore likely to create a win for users and copyright holders alike.

Although the Productivity Commission makes many more recommendations, we'll stop at one more--that universities, schools, and libraries should receive the benefit of the same safe harbor that protects ISPs from copyright liability for infringements by their users. This reform is a sensible one, which would bring Australia into line with U.S. and European law, and with our Manila Principles on Intermediary Liability . In practice, it means for example that if a student uploads a copyright-infringing file to their school's website, the school won't be held responsible until they are notified of the infringement and refuse to remove the file.

It's predictable that copyright monopolists are up in arms about the proposed changes, dragging out the usual doomsday scenarios about job losses , tear-jerking celebrity pitches , and even some frankly bizarre similes . And the worst thing is that these tactics, which have previously been successful in obstructing reform, may be so again . Yet the facts are difficult to argue with; Australians pay more to access copyright works lawfully, suffer tight constraints on what they can do with works to which they do have access, and risk legal liability for acts that harm nobody. The time for reform is long overdue.

Further comments on the Productivity Commission final report are due by Valentine's Day 2017 . If the government resists the monopolists' uproar and legislates to implement the Commission's recommendations, that will be the love letter that Australian users and creators have been waiting for.

Selling media players with pirate add-ons violates EU law, according to a recommendation from Advocate General Campos S31nchez-Bordona.

He issued the advice in a landmark case over the legality of pre-loaded XBMC/Kodi devices, which are widely sold across Europe. Whether users of these players also liable depends on whether they know that the content is infringing. While Kodi itself is a neutral platform, there are lots of add-ons available that turn it into a pirate's heaven.

In Europe, the European Court of Justice is currently handling a landmark case that should provide more clarity on the legality of set-top boxes that are sold with links to infringing content.

The issue was raised in a case between Dutch anti-piracy group BREIN and the Filmspeler.nl store, which sells piracy configured media players. While these devices don't host any infringing content, they ship with add-ons that make it very easy to watch infringing content.

The Dutch District Court referred the case to the EU Court of Justice, and the Advocate General (AG) Campos S31nchez-Bordona issued his recommendation to the Court. The AG concluded that selling a media player with the knowledge that it links to infringing material, constitutes a communication to the public, which makes it copyright infringing.

Whether the users of these devices are also acting unlawfully is a different question. According to the AG it would be logical to conclude that, when offering devices with pirate add-ons is illegal, using them would be too:

In my opinion, if the key factor, in the case of a person who inserts a hyperlink without pursuing a profit, is knowledge [206] that the protected work is available on the internet unlawfully, it would be difficult not to extend that criterion to a person who merely makes use of that hyperlink, also without pursuing a profit.

The Advocate General's advice is often crucial, but not binding. It is expected that the EU Court of Justice will issue its final verdict in this case early next year.

The European Commission says Internet hosts should pre-censor everything we upload to the Internet for copyright violations. The UK agrees.

Tell the UK's Intellectual Property Office (IPO) we don't want rights holders to monitor and filter the Internet!

The European Commission has published plans to force Internet companies to filter everything we upload in case it infringes copyright laws. The UK's Intellectual Property Office wants our views on the European Commission's plans. The UK Government is minded to support the plans if they can get them to work.

This could block Downfall parodies, campaign videos, TV clips, memes, profile pics -- anything that appears to reuse copyright content, even if it is legal to do so.

We need to stop this censorious, privacy-invading, anti-innovation proposal. Users of social media, photo, music and video sharing sites would all be hit hard.

Any company that lets you upload content to the Internet would check everything you upload against a database of copyright works - a massive violation of privacy in order to create this censorship regime.

If you want to insist on your right to publish, you'd have to supply your name and address and agree that you can be prosecuted by the rightsholder. That will put most people off taking the risk, even if they are within their rights to do so. And if rightsholder think that websites aren't monitoring their users' uploads closely enough, they can take those websites to court too.

Sign the  petition from action.openrightsgroup.org

The U.S. Government's Copyright Office has launched a new consultation seeking guidance on the future of the DMCA's takedown process and safe harbor. The Office is hoping to find a balance between the interests of copyright holders, Internet services and the public at large.

Over the past year, the Government already received a lot of input on a possible reform of the DMCA safe harbor provisions. Various rightsholders weighed in, as expected, and so did technology companies, law scholars and civil rights groups.

The problem for the U.S. Copyright Office is that there's little agreement on how to move forward.

The MPAA, RIAA, and other industry groups are calling for extensive revisions and don't want services to hide behind their safe harbor protections. Among other things, they want a notice-and-stay-down policy to ensure that, once deleted, content doesn't pop up elsewhere.

Many service providers, however, see this an unworkable solution and believe that the current system is capable of dealing with infringing content.

On the other end of the spectrum there are calls to implement penalties for abusive notices, so copyright holders can be punished for submitting takedown requests that are false.

The deadline for the submissions is March 8, after which the Copyright Office will try to reach its conclusions.

Proposed amendments to the UK's Digital Economy Bill have revealed a desire by some MPs to force search engines to tackle piracy. A new clause would require search engines to come to a voluntary arrangement with rightsholders, or face being forced into one by the government.

Content owners regularly accuse companies such as Google and Bing of including infringing content in their search results, often on the initial pages following a search where exposure to the public is greatest.

In addition to having these pirate results demoted or removed entirely, content providers believe that results featuring genuine content should receive priority, to ensure that the legitimate market thrives.

At least in part, Google has complied with industry requests. Sites which receive the most takedown notices are demoted in results, while some legitimate content has been appearing higher. But of course, entertainment industry companies want more -- and they might just get it.

Currently under discussion in Parliament is the Digital Economy Bill. The Bill appears to be broadening in scope and the role of search engines is now on the agenda, something which the BPI hinted at last week in comments to TorrentFreak. A new clause titled Power to provide for a code of practice related to copyright infringement envisions a situation whereby search engines come to a voluntary agreement with rightsholders on how best to tackle piracy, or have one forced upon them.

The Secretary of State may by regulations make provision for a search engine to be required to adopt a code of practice concerning copyright infringement that complies with criteria specified in the regulations, the proposed clause reads.

The regulations may provide that if a search engine fails to adopt such a code of practice, any code of practice that is approved for the purposes of that search engine by the Secretary of State, or by a person designated by the Secretary of State, has effect as a code of practice adopted by the search engine.

If the clause was adopted, the Secretary of State would also be granted powers to investigate disputes surrounding a search engine's compliance with any code, appoint a regulator, and/or impose financial penalties or other sanctions if companies like Google fall short.

Faced with the possibility that website blocking may not achieve its goals to reduce file sharing, Russia is now considering a system of fines which would target individual downloaders.

Well over a decade ago when peer-to-peer file-sharing was in its relative infancy, the RIAA thought it could stop piracy by punishing end users with fines and lawsuits. What followed was a punishing campaign that alienated consumers and ultimately failed to achieve its goals. Only subsequent widespread access to legitimate content proved to be effective in bringing piracy rates down.

According to sources cited by Russian news publication RNS, the government is considering introducing a system of fines for Internet users who download copyrighted content without permission. A source explained:

It is expected that evidence of a download of an illegal movie, for example, will be shown by providing an IP address, then the offender will be sent the penalty fine.

It's understood that if pirate site-blocking fails, authorities favor the kind of system that German Internet users are already subjected to, with fines up to 1000 euros per logged offense. T he source said:

If the initiative with blocking sites that publish illegal content does not work, will be discussing the German model

The European Court of Justice has heard a crucial case that will give more clarity on the infringing nature of unauthorized streaming. Dutch anti-piracy group BREIN and the Spanish authorities argued that offering or watching pirate streams is a violation of the EU Copyright Directive. However, the European Commission believes that consumers who watch unauthorized streams are not breaking the law.

Unlike traditional forms of downloading, however, in many countries the legality of viewing unauthorized streams remains unclear. In the European Union this may change in the near future. This week the European Court of Justice held a hearing during which it reviewed several questions related to pirate streaming.

The questions were raised in a case between Dutch anti-piracy group BREIN and the Filmspeler.nl store, which sells piracy configured media players. While these devices don't host any infringing content, they ship with add-ons that make it very easy to watch infringing content.

The Dutch District Court previously referred the case to the EU Court of Justice, where several questions were discussed in a hearing this week. In addition to BREIN and Filmspeler, the European commission and Spain weighed in on the issue as well.

The first main question that the Court will try to answer is rather specific. It asks whether selling pre-programmed media-players with links to pirate sources, through add-ons for example, are permitted.

Not surprisingly, Filmspeler.nl believes that it should be allowed. They argued that there is no communication to the public or a crucial intervention from their side, since these pirate add-ons are already publicly available.

The European Commission doesn't classify selling pre-loaded boxes as infringing either, and notes that rightholders have other options to go after intermediaries, such as blocking requests.

BREIN , which covered the hearing in detail , countered this argument noting that Filmspeler willingly provides access to illegal content for profit. Spain sided with BREIN and argued that willingly including pirate plugins should not be allowed.

The second question is more crucial for the general public as it asks whether it is illegal for consumers to stream pirated content from websites or services.

Is it lawful under EU law to temporarily reproduce content through streaming if the content originates from a third-party website where it's made available without permission?

Spain argued that streaming pirated content should not be allowed in any way. BREIN agreed with this position and argued that streaming should be on par with unauthorized downloading since a temporary copy of the infringing file is made, which is illegal under EU case law.

Interestingly, the European Commission doesn't believe that consumers who watch pirate streams are infringing. From the user's perspective they equate streaming to watching, which is legitimate.

Based on the hearing the Advocate General will issue a recommendation later this year, which will be followed by a final verdict from the EU Court of Justice somewhere early 2017.