Control Freaks

Germany has approved a draft law that will enable businesses to run open WiFi hotspots without being held liable for the copyright infringements of their customers. Copyright holders will still have the ability to request that certain sites are blocked to prevent repeat infringement.

In most jurisdictions it's standard practice for those who commit online copyright infringement to be held responsible for their own actions. However in Germany there is a legal concept known as Störerhaftung (interferer liability) where a third party who played no intentional part in someone else's infringements can be held responsible for them. This type of liability has raised its head in a number of file-sharing cases where WiFi owners have been considered liable for other people's piracy.

As a direct result of this precarious legal position, Germany has found itself trailing behind its European neighbors when it comes to providing public Internet hotspots. Some have described the situation as an embarrassment for one of the most advanced countries in the world.

Under pressure and in response to a European Court of Justice opinion on the matter last March, the government eventually decided to rescind liability for open WiFi operators. Since then the government has been working on changes to local law to bring it into line with EU standards. A third draft presented by Brigitte Zypries, Minister for Economics and Energy, has now been adopted by the cabinet.

Should the amendments receive parliamentary approval, businesses will be free to offer open WiFi to their customers, without fear of being held liable for their actions. They will also be able to offer truly open WiFi, with no requirement to verify the identities of users or have them log in with a password.

While copyright holders won't be pleased by the changes, they will still have opportunities to clamp down on infringement. If a certain WiFi location is connected with online piracy, a properly filed complaint will require the operator to bar access to websites connected with the infringement.

The Premier League has secured a court order to help tackle rights-infringing video streams of football matches via Kodi set-top boxes. The order gives the league the means to have computer servers used to power the streams blocked.

Until now, it could only go after individual video streams which were relatively easy to re-establish at different links.

There have been several arrests of people selling set-top boxes pre-installed with both Kodi software and additional third-party add-ons that make it possible to watch copyright-infringing film and TV streams.

According to a recent survey commissioned by the security firm Irdeto, Kodi boxes are particularly prevalent in the UK.

It reported that 11% of Brits that admitted to watching pirated streams in a survey said they did so via a Kodi box. Doing so is not thought to be illegal. Derbyshire County Council trading standards officers recently explained:

Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws,

That might seem a surprising position for an enforcement department to take, but support for it comes from an authoritative quarter. 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. The European Commission gave its view during the hearing of an important case currently before Europe's highest court involving the Dutch anti-piracy group BREIN, which wrote in its summary of the hearing:

The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is plug & play . This king of pre-programmed player usually are offered with slogans like never pay again for the newest films and series and completely legal, downloading from illegal sources is prohibited but streaming is allowed . In summary the pre-judicial questions concern whether the seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.

It has also been reported that the UK government is considering new laws against streaming pirated content, but discussions are at an early stage

The Motion Picture Association of America will stand cheek by jowl with those European film and TV industries fighting to preserve territorial licensing monopolies in Europe.

In an interview with Variety, MPAA chairman Christopher Dodd said he would be playing a supportive role in the European industry's efforts to air its objections to a proposal for borderless access in Europe to movies and TV online. The chief concern appears to be the European Commission's wish to extend the so-called country of origin principle to cover digital services, meaning that E.U. broadcasters could carry their online programming in other countries if they have cleared the rights in their own home country.

Although rights-holders would be allowed to opt out of such arrangements and retain their rights in other E.U. countries, entertainment execs fear that most European producers won't have the bargaining power to insist on that in their negotiations with the big broadcasters they rely on to finance their work.

Opposition to the commission's proposal for pan-EU digital licensing of broadcaster programming is led by France and Germany. France's Ministry of Culture had openly expressed its opposition. The upper house of Germany's parliament has also expressed concern over whether the commission sufficiently takes into account rights-holders' interests.

Changes to the penalties for online copyright infringement could leave UK citizens vulnerable to blackmail by unscrupulous companies that demand payment for alleged copyright infringements.

Proposals in the Digital Economy Bill would mean that anyone found guilty of online copyright infringement could now get up to ten years in prison. These changes could be misused by companies, such as Goldeneye International, which send threatening letters about copyright infringement. Typically, the letters accuse the recipients of downloading files illegally and demand that they pay hundreds of pounds or be taken to court.

Often they refer to downloaded pornographic content, to shame the recipients into paying rather than challenging the company in court. The Citizens Advice Bureau has criticised "unscrupulous solicitors and companies acting on behalf of copyright owners" who take part in such "pay up or else schemes". It advises people who receive such letters to seek legal advice rather than simply paying them.

How do copyright trolls get 'evidence'?

Copyright trolls compel Internet Service Providers to hand over the personal contact details of the account holder whose IP addresses are associated with illegal file downloads. However, this in itself is not evidence that the illicit downloading observed is the responsibility of the person receiving the letter.

Common problems include:

• Sharing wifi with family, friends or neighbours who may be the actual infringer

• Errors with timestamps and logs at the ISP@

Why the Digital Economy Bill will make this worse

The Government has argued that it is increasing prison sentences to bring the penalties for online copyright infringement in line with copyright infringement in the real world. It also insists that it is not trying to impose prison sentences for minor infringements such as file sharing. However, the loose wording of the Bill means that it could be interpreted in this way, and this will undoubtedly be exploited by unscrupulous companies.

Executive Director Jim Killock said:

Unscrupulous companies will seize on these proposals and use them to exploit people into paying huge fines for online infringements that they may not have committed.

The Government needs to tighten up these proposals so that only those guilty of serious commercial copyright infringements receive prison sentences.

Helping companies send threatening letters to teenagers is in no one's interest."

What does the Government need to do?

ORG has asked the Government to amend the Digital Economy Bill to ensure that jail sentences are available for serious online copyright infringement. While this will not put an end to the dubious practices of copyright trolls completely, it will prevent them from taking advantage of the law.

Ten years jail for filesharing: or in fact any minor copyright infringement where there is a loss by not getting what one might get or cause a risk of further infringement.

Clause 27 of the Digital Economy Bill will mean that more or less any wrongful use where somebody hasn't paid a licence fee (think of memes) is a crime. Causing "risk" to the copyright holder means almost by definition ordinary file sharing is a criminal rather than civil infringement.

Is the government really intending to threaten teenagers with prison?

Why has the Digital Economy Bill been left with such a stupid legal change? Both the government and the Intellectual Property Office said they just wanted to bring online infringement into line with "real world" fake DVD offences. They were worried about the difficulties with charging people who run websites that help people download copyright works.

However, that isn't how they offence is drawn up: and the government has now been told in Parliament twice that they are both criminalising minor infringements and helping copyright trolls. Copryight trolls, we should remember, specialise in threats concerning file sharing of niche pornographic works in order to frighten and embarass people into payment, often incorrectly, and to our knowledge, have never taken anyone to court in the UK .

The answers have been startlingly bad. Kevin Brennan stated , for Labour:

The Open Rights Group has expressed concern about the Government's insistence that there needs to be "reason to believe" that infringement will cause loss or "the risk of loss". Its fear is that that phrase, "the risk of loss", could capture quite a wide range of behaviour, perhaps beyond the scope of what the Government say they intend. In particular, its concern is the extent to which that phrase will capture file sharing.

Copyright trolls get their profits when a certain number of people are scared enough to respond to those notifications and pay up. Frequently these accusations are incorrect, misleading and sent to account holders who did not sanction any such further file sharing. However, as I understand it, sending that kind of speculative threat to consumers is, unfortunately, perfectly legal. Some are concerned that if the Bill retains the concept of risk of loss, it could aid the trolls by enabling them to argue with more credibility that account holders may face criminal charges and a 10-year prison sentence.

Matt Hancock gave a non-answer:

We recognise that the maximum sentence of 10 years, even if only for the most serious cases, must be carefully targeted. Consequently, clause 26 also makes changes to the existing offence of online copyright infringement to make it clearer when that offence is committed and who should be considered liable. The amendments speak to some of those points.

The concept of prejudicial effect in the existing legislation will be replaced with a requirement that the infringer intends to make a monetary gain for themselves or knows or has reason to believe their actions will expose the rights holder to a loss or risk of loss in money. I will come to the debate around definition of that in more detail.

The point of this clarification is to act as a safeguard to ensure that the increased maximum penalty is applied only to serious criminals who deserve it and will not apply to those who share material accidently or without knowledge of the consequences.

In the Lords, Labour suggested returning to the current definition of "prejudicial effect": which (as Matt Hancock says) suffers the same problem of being very wide and catching people it should not.

The government have failed to give any serious answers. The Opposition, Labour and Liberal Democrat should be able to see that an egregious mistake is being made, and they have the ability to force a change.

The problem is really easily fixed. The government simply need to put in thresholds to ensure that only significant damage or serious risk is caused. We have an amendment prepared and published.

Why does the government want to help copyright trolls bully grannies and criminalise file sharers whose actions may be idiotic, but hardly criminal?

The government needs to fix this before it becomes law and abuse of copyright ensues.

The European Union agreed Tuesday on new rules allowing subscribers of online services in one E.U. country access to them while traveling in another.

The new portability ruling is the first step of regulation under a drive by the European Commission to introduce a single digital market in Europe.

Announced in May 2015, the proposed Digital Single Market was met with full-throated opposition from Hollywood and Europe's movie and TV industry, which viewed it as a threat to its territory-by-territory licensing of movies and TV shows.

The European Commission, the European Parliament and the E.U.'s Council of Ministers all agreed to new laws which will allow consumers to fully use their online subscriptions to films, sports events, e-books, video games or music services when traveling within the E.U.

The online service providers will have nine months to adapt to the new rules, which means will come into force by the beginning of 2018.

Representatives Blake Farenthold and Jared Polis just re-introduced their You Own Devices Act (YODA), a bill that aims to help you reclaim some of your ownership rights in the software-enabled devices you buy.

We first wrote about YODA when it was originally introduced back in 2014 . The bill would go a ways toward curbing abusive End User License Agreements (EULAs) by making sure companies can't use restrictions on the software within your device to keep you from selling, leasing, or giving away the device when you're done with it by. The bill would override EULAs that purport to limit your ability to transfer ownership of the device (and its software) and would make sure that whoever ends up with your device has the same access to security and bug fixes that you would have had.

Making sure that you can sell and transfer your old devices isn't just good for you -- it's good for everyone else as well. Resale markets for consumer products help improve access to affordable technology and provide a valuable resource for innovators [PDF].