The web after Megaupload.com – Looking for a new point of equilibrium

After the closure of the popular online storage portal, caused by the widespread exchange of pirated files through its servers, it is perhaps appropriate to look out the window on the web, and make some considerations on the short-term effects of this operation (all details on the so-called “megaupload crackdown” operation are available on the FBI’s website, at the following address: http://www.fbi.gov/news/pressrel/press-releases/justice-department-charges-leaders-of-megaupload-with-widespread-online-copyright-infringement).
Undeniable are the effects of its closure in respect to copyright protection, as testified by the many statements of satisfaction from national and international copyright Majors; after the fall of such giant, also, several aggressive Megaupload.com competitors, once  exercising similar activities (i.e. Fileserve.com and Filesonic.com), spontaneously decided to suspend their activities, falling back on more strictly legal positions, basically allowing the download of a file only to the user that uploaded it, and, in some cases even closing their servers in the USA. In addition, those competitors who continued to allow file-sharing are beginning to be more sensitive, when it comes to reports of illegal material on their servers: it is clear that to build a reputation as much as possible different from that Chinese/New Zealander giant, all companies offering online storage space, notwithstanding their contractual responsibility provisions (they generally leave full responsibility on the user for the files he/she uploads), will certainly utilize a lot more their power to remove files / accounts, when they receive detailed complaints. Meanwhile, today, authoritative press (http://www.theinquirer.net/inquirer/news/2142123/megaupload-deleted) reports the FBI to have already ordered removal of personal data and illegal files from the company servers confiscated on American soil, and that “legit” users are already on a war footing against such decision.
It’s too early to say what effects this new equilibrium will create in the long period, but we’ll keep an eye on the situation and keep you posted.

U-Turn for Spain regarding copyright online: the ‘Ley Sinde’ becomes effective

On the 30th of December 2011, the Spanish Parliament approved the implementing regulation of the controversial “Sinde Law” (named after former Minister of Culture, Ángeles González-Sinde). This law contains important innovations against digital piracy, and had already been approved in February 2011 (and published, together with extraordinary measures to support the Spanish economy, in the official bulletin of March 2011, available at the following address: www.boe.es/boe/dias/2011/03/05/pdfs/BOE-A-2011-4117.pdf), but had never been put into practice, in the absence of implementing rules, now disciplined by the Iberian Parliament.
Since March 2012, therefore, the two key measures of the legislative text will enter into force:
- On one hand, the abolition of the so-called “Digital tax”, (the Italian equivalent of fair compensation on blank media). This reflects the elimination decided by the majority judgments of Spanish courts, that on several occasions acknowledged as illegal the presumption of unlawful use of blank CD / DVD;
- On the other hand, and in this case in complete contrast with the case law, the new procedure for the removal of content in violation of copyright from websites and inhibition from accessing to the sites in question from Spanish IPs: the new-born Committee of Intellectual Property will be granted the power to act against anyone who publishes online content in violation of copyright, also by sanctioning hosting providers and ISPs that fail to comply with the order of removal, all this in a maximum of 10 days from the complaint by rights holders, following a procedure of notice and counter-notice.
The second measure cited above, as is evident, takes a different path from the “three-strikes-rule” adopted by the French “HADOPI law,” and aligns with what has already been subject to consultation by AGCOM in Italy: the provision of an additional procedure, not alternative to the judicial one, by which the rightful owner of the rights may, in a faster way and by consulting with the parties involved, obtain removal of illegally distributed media on the net, using mechanisms to block access to Web pages involved.
The Spanish public opinion has so far shown mixed reactions to the new measures proposed, alternating strong protests for alleged constitutional violations by the measures in question, to months of substantial apathy towards the Sinde law. Undoubtfully, it will be interesting to see whether the mechanism set up by the Spanish Parliament will produce or not the desired effect, especially considering the possible adoption of similar measures in Italy.
It is useful to remember that in the past November 2011 elections, the Popular Party won an absolute majority of seats, as well as its best result ever: among the many initiatives of the new government led by Mariano Rajoy, it is expected, in the culture and media sector, a review of the reform process of RTVE, initiated by former Prime Minister Zapatero, which led to removal of advertising from the Spanish public television.

The different positions of the EU Commissioners on the Internet, the copyright and the online piracy

In the last days, there has been a great unrest respect to the Sopa (Stop Online Piracy Act) and Pipa (Protect Ip Act). And there was even the strike made by many great US Web sites to demostrate their opposition respect to the two proposals that, after the protests, have been “frozen”.

In this “sparkling” moment the positions taken by the different Eu Commissioner, involved in the field, seems not to be… similar.

First of all, the Commissioner of the Digital Agenda, Neelie Kroes, even contrasting those who enrich themselves by the online piracy, expressed her disapproval to the Stop Online Piracy Act (that would have been discussed at the US Congress), defining it as a “bad” proposal. Neelie Kroes criticized moreover the decision connected with the Megaupload platform and its close (a very controversial item above all, as it is on the “board” between legality and illegality).
The Commissioner said “we don’t need a bad law. What we only need is the protection for a free and open Internet”. The laws made to protect the Intellectual Property Rights must not damage the freedom of the Internet.

Viviane Reding, Commissioner for Justice, Fundamental rights and citizenship seems to take similar positions. She defined Internet as a public good, whose freedom has  to be preserved first, or at least as, the copyright. “The protection of creators must never be used as pretext to intervene in the freedom of the Internet”, Reding told at the International Internet conference in Munich. “Freedom of information and copyright must not be enemies, they are partners… European policy aims at equilibrating the respect of both rights”, she even said.

Different or even opposite are the beliefs of Michel Barnier, Commissioner for Internal Market and Services who, as an Italian blogger said, “considers the copyright’s breakers more or less as the US considered Bin Laden”. He announced last week that, by the spring of 2012 a revisal of the “Copyright enforcement” will be passed by the European Commission. This means an embitterment to the current laws against those who violate the Intellectual Property Rights.

Digital Agenda – AGCOM proposes its recipe for multimedia growth to Government

On January 12th, the Italian Regulatory Authority for Communications (AGCOM) published its document, directed to the Italian Government, to suggest a possible path for growth initiatives in the field of Audiovisual and Communications.

The document (available on the Authority’s website at: http://www.agcom.it/default.aspx?DocID=7927),
imports a large part of what was already contained in the policy documents of
the “Digital Agenda for Italy” initiative (website: http://www.agendadigitale.org/),
integrating such principles with some practical proposals, that are particularly suitable to enrich the debate and contribute to the development of future regulatory proposals.

We list below some of the most interesting proposals:

- Simplify administrative procedures for the installation of structures for Next Generation Networks;

- Increase the use and spread of wi-fi areas in public places;

- Mitigating the exclusive rights in the Broadcasting Law, to allow widespread use of multi-platform licenses to use;

- Enact, by means of primary norm, the principle that digitization of Public Administration services should have no economical impact on the citizen;

- Encourage the use of digital money through measures to strengthen the POS network and rethink the VAT system to allow small and medium-sized businesses to switch to online operations;

- Send all Public Administration services on the cloud, giving each citizen an account/profile to access such cloud;

- Progressively switch to online payment of stamp duties;

- Allow digital notification of court documents, thus helping Post Offices (since January 2012, this measure is already being implemented, allowing Lawyers to notify their documents by means of Electronic Certified Mail);”

About the “Fava modification”: reasonable critics on the proposed modification of Italian Legislative Decree n.70/2003

Recently, a hot topic for discussion proved to be the proposed amendment of the Italian Legislative Decree (D. Lgs.) n. 70/2003 (implementation of Directive 2000/31/EC – so-called “E-Commerce Directive”), introduced in committee by the parliamentarian Giovanni Fava (“Lega Nord” Party).
This amendment aims to introduce a small but significant change in art. 16 of the decree concerning the liability of providers of online hosting services for content posted on their servers: should the amendment be approved by Parliament, the new version of the article in question would give responsibility to the hosting provider for published content, not only when it has been made aware of it by judicial / administrative, but also when this information has been given to him by any interested person.
The possible modification has raised a chorus of protests, which have argued that by this addition the Legislative Decree no. 70/2003 would assume similar content to U.S. initiatives SOPA and PIPA. By contrast, other authoritative voices have argued that the Decree, In the current formulation, does not effectively implement e-commerce Directive, and that the change would mend this “oversight”.
It is to be noted that the the Italian legal system is already compliant with Directive 2000/31/EC, that allows Member States to require a court or administrative authority to issue a qualified order, for the service provider to prevent/terminate a violation.
Should the new formulation be approved, the amendment would exponentially increase removal requests to hosting providers, which would be required each time to decide on their own better judgment (and therefore without any real guarantee in case of errors, nor possibility to oppose, or at least to counter-notice) whether to remove content deemed harmful, with all the consequences – economic and otherwise – in case of an error.
This scenario may not be good anyway because it would end up substituting the opinion of the provider (which still would not be obliged to remove, if not believing proofs of an offense it has received) to a judiciary statement, which certainly constitutes a mandatory order of removal.
The proposed solution seems to be no better than those studied by AGCOM within the public consultations on the subject: such solutions, indeed, have better guarantees of impartiality in the assessment on whether to remove or not a content and, in any case, follow a proceeding of reasonable duration and offer warranties to the content owner as well as to the recipient of the order.

“SOPA / PIPA” – The Web opposes against the proposed new USA legilslation for proactive online copyright protection

Yesterday, many of the most famous hompages organized a “blackout” of their services, enacting a protest against the proposed SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act) legislation, being discussed in the USA Senate. Among the many webpages, also the American versions of Google and Wikipedia “auto-blacklisted” themselves.
The two law propositions are proposing to reinforce the blacklisting of pirate websites, to this day still used only in special cases authorized by the US Government, for traditionally “pirated” sport events, such as the SuperbowI.
The bills mentioned above propose three innovations: (A.) the “Anti-Circumvention Provision”, providing the government to go after not only piracy websites, but also websites providing users with methods to by-pass blacklisting measures; (B.) the “Vigilante Provision”, which would grant broad immunity to all service providers if they overblock users or websites voluntarily even without judicial oversight; (C.) last, but not least, the proposal to grant copyright holders powers to obtain an unopposed court order to cut off foreign websites from payment processors and advertisers, thus reinforcing the actual principles of the Digital Millenium Copyright Act.
The protests against SOPA/PIPA are not directed at encouraging audiovisual piracy but at pointing out that unintended side effects of the relevant provisions could hamper freedom of speech on the net as well as freedom of information. It is natural that when an upcoming bill has a very wide scope which includes very delicate areas of digital copyright the bill should be carefully studied, discussed and revised if necessary to ensure that freedom of speech and information are not overthrown by enforcement of copyright. Copyright owners and those who contribute cultural content on the net are in fact not on opposite sides and they should not be in this effort.
It is therefore in everybody’s interest that the bill receives a more careful evaluation following the objections of the “net” and also considering that the SOPA/PIPA framework is generally fit for the US jurisdiction and will not automatically extend to other contexts.

Argentina: an innovative measure at the rhythm of tango

In a moment in which, at least in Italy, the fight to fiscal evasion is in the Government agenda almost everyday, a really different, alternative proposal comes out from overseas, precizely Argentina.

The argentinian tax office, named Arba, recently created the project Arbatracks, in (a strange) partnership with Sony Music.

The project is based on a music platform that will enable everyone to enjoy music, or better, not everyone but those who can demostrate of being regular taxpayers.

This project tries to resolve 2 problems with 1 solution. On one side it tries to fight the fiscal evasion giving a prize to the taxpayers (even though they can freely enjoy music for 6 months, downloading at least 90 tracks), on the other side it tries to contrast the “huge” problem of the online piracy.

So,what is the recipe? Fight evasion and piracy to the rhythm of tango? The idea seems to be good, at least for its originality, but… will it work? We will see!!!

Private Copying Levies at the Crossroads – article on the European Audiovisual Observatory

The last year will surely be remembered as one of the most prolific, for the debate over copyright protection online, both in court rooms and in research institutes.

Among the many contributions of doctrine, it is very interesting to note a report by the European Audiovisual Observatory, redacted in late june 2011, available at the following address: http://www.obs.coe.int/oea_publ/iris/iris_plus/iplus4LA_2011.pdf.en
.
The author of such article, Francisco Javier Cabrera Blázquez, focuses on the comparation of the two main streams of contribution to make private copies:

- the so-called “fair compensation”, especially related to the levy on blank medias, one of the most adopted measures in the EU, with all the necessary limits of proportionality and adequateness, as stated also by the Padawan v. SGAE case (European Court of Justice, case C-467/07, decided the 21rst of October 2010, available at the address: http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79898978C19080467&doc=T&ouvert=T&seance=ARRET);
such measure entails a necessary unpopularity rate among the public, but is
largely tolerated.

- the “file-sharing levy”, considered by some experts as a way to spread on every internet user the costs of piracy, decriminalizing file-sharing of copyrighted material, and implementing a general tax on internet connection, to raise funds for cultural development. Application of a similar measure, if effectively realizing more cashflow in the short period, is however extremely dangerous to maintain in the long period, since it might bring to a higher rate of piracy and so progressively dry up cultural production, highly penalizing those artists and productors it should instead help supporting.

In any case, the analisys of the European Audiovisual Observatory offers a view
that, if not updated to the latest trends and policies in the EU, still highlists the fact that very few has been done in Europe, during the last years, to properly boost up legal distribution of multimedial works on the web:  it seems, indeed, that legislators are still stuck patronizing afflictive measures that, instead of helping, backstab those categories (productors, artists, musicians and so on) it should help.

Digital Agenda for Europe: the 2011 Report by the European Commission

On december, 22nd, The European Commission published on its own web site:

http://ec.europa.eu/information_society/newsroom/cf/itemdetail.cfm?item_id=7699&utm_campaign=isp&utm_medium=rss&utm_source=newsroom&utm_content=tpa5

the annual report on the progress of key issues of the Digital Agenda.

As often happens, from this official report lights and shadows have emerged concerning the real progress of the EU towards the concrete realization of the principle items of
the Agenda (for more information see

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC0245R 01):EN:NOT).

Here we just wants to outline that the following items are, with no doubt, interesting for the audiovisual sector:

-      The anticipation concerning the next revision of the Enforcement Directive on Intellectual Property Right’s (the original version has at least ten years, as it was done in the 2004);

-      The attention dedicated to the dialogue between “players” in the market concerning funds for copyright: although it is an anusual practice, it’s having growing approval in the European scenario;

-      The referring for the next three-year on the need to adopt measures to meet the growing demand of “Ict” services, financement to creative and cultural industries production’s and to their digital development;

-     Deserve special attention the proposals concerning alternative resolution systems on online controversies proposed to protect users, which aim is to reduce the contentious in the digital sector. Moreover the announced revision on the guide-lines on State aid to the broadband development, a prerequisite for the broadcast and the digital content on Internet.

“YouHaveDownloaded – Provocations in BitTorrent sauce and the myth of a secure Peer2Peer

A group of Russian programmers have realized, apparently for an elaborate joke,
the provocatory website www.youhavedownloaded.com: such portal, using a crawler technology very similar to the one used by Google to spider webpages, continuously indexes into a searchable public database all IP addresses connected to many famous nodes (so called “trackers”) of BitTorrent-based peer2peer networks.
By retracing torrent files’ data, the automated website is then able to show, in a very simple way, what users connected through such IP addresses are downloading. Accessing the homepage while a BitTorrent client is connected to monitored BitTorrent trackers will show a (more or less complete) list of what a user is downloading using the relevant IP.
Moreover, by inserting a known IP address into the search box, users can see what other people are downloading with BitTorrent.
Leaving aside the obvious curiosities, this initiative uncovers one of the most critical points of the famous BitTorrent P2P network: as every other online distribution network, it has to rely on central nodes – the trackers – that periodically map all IP addresses of users connected, to ease their interaction during download.

Ironically, the technical limitation of having to use a third-party node also helps prevention from illegal use of the BitTorrent download protocol: just closing the tracker, or blacklisting its IPs on a national scale, prevents illegal file-sharing of copyrighted content.

According to such principle, during the last judiciary “ThePirateBay” case in Italy, one of the measures adopted by the judges was the blacklisting not only of the famous search engine for illegal torrents, but also of the IPs where its dedicated trackers operated. Both activities, as per ruling n.49437/2009 of the Italian Supreme Court, are, in fact, illegal and therefore liable in Court, since they help users finding and illegally accessing/spreading copyrighted contents online.

Once again, the “myth” of a secure Peer2Peer network has to face the harsh truth of a system that can easily record and twist every step taken by digital pirates against them.”

“Google and Copyright protection: an uneasy marriage? Ifpi and Riaa’s Report on Google

More than a year ago, in an official post on Google Inc’s official blog (http://googlepublicpolicy.blogspot.com/2010/12/making-copyright-work-better-online.html), Kent Walker, General Counsel of the most famous online search engine, published a list of 4 main objectives Google planned to pursue during 2011, to better ensure copyright protection.
Here’s a brief recap:
1. Decreasing takedown times for unauthorized copyrighted material published online on any Google product (starting with the Blogger platform and, of course, search results), to 24 hours from a detailed and reliable Dmca complaint, realizing appropriate tools to make both notice and counter-notice processes easy for users.
2. Actions to prevent piracy-related terms and websites from the search engine’s “autocomplete” function.
3. Improvement of anti-piracy controls in the Ad-Sense program, so to avoid presence of google-powered banners on piracy websites and illegal applications on Google Market.
4. Removal of authorised-preview function for piracy websites on search engine results and promotion of websites containing legal contents.
A few days ago, on december 19th 2011, Ifpi and Riaa, the main international and american associations promoting protection and enforcement of copyright for art and music, redacted a document to comment Google’s progress in such scoreboard (full document here: http://www.ifpi.org/content/library/Google_update_111219.pdf).
The document contains mainly negative remarks, on all four objectives:

1. Dmca specific tools to help copyright owners fight piracy are still too unorganized and unreliable. As for the effective takedown times, they are way too slow: a removal procedure can take up to weeks;
2. Autocomplete in Google search engine still shows terms often related to piracy (“free mp3”, “dvdrip”, etc.);
3. Anti-piracy controls to bar access to Ad-Sense program have been intensified, but the system still can’t guarantee proactive removal of “Google-powered” banners: both associations report, in particular, that even if piracy-related applications have been expelled from “Google Market”, they are still distributed on unofficial channels, gaining financial support from Ad-Sense banners;
4. As for authorised-preview functionalities on search results, Ifpi and Riaa report a substancial inertia of Google, against all requests, made from notorious websites in the copyrighted music industry, to have priority boost on search results’order, so to promote legal access to media contents.

The document goes on providing a list of suggestions for Google to adopt, to actively and effectively pursue the above cited objectives, concluding with a funny “Stop the Self-Serving Alarmist Rhetoric and Engage in Constructive Dialogue” remark: we will see if the company based in Mountain View will pick up even this last suggestion, or keep going on its own road.

Enzo Mazza, Chairman of Fimi, so quoted to us on Google’s intents: “Many pledges, few serious facts”

U-turn???

After a quite long silence, we “open” the new year with two important news:

  1. In the US, on one hand, the SOPA, the new American Law on Copyright that will be discussed next 24 January, is creating a real storm…
  2. In France, on the other hand, seems that the Hadopi, the famous French
    Authority on copyright’s protection, risks to be abolished.

It seems quite a “U-turn”.

If the first case seemed to be controversial from the beginning, on the second item, concerning the Hadopi, this news appeares really surprising. Only several weeks ago French newspapers announced that the Haute Authority wanted to engage itself to a “second step” against piracy. So what happened???

First of all there have been the “gaffe” made by the men of the RIAA, fonographic
majors and French governative organization catched in the act of downloading
and sharing illegal contents by TorrentFreak. Then, even if first notice were
sent to over 650.000 people (in a year), the real risk of disconnection interested only about 60 people. Anyway the socialist deputy Didier Malthus, that will be soon in the Board of the Hadopy, declared that “repression doesn’t work”.

Concerning the US SOPA waiting for the decision of the 24 January, we can only say that in these last days the activists for digital freedom as well as the “over the Top” are organizing a strike (a black out of their own web sites) for the 23 January against the Sopa that they’re afraid could possibly become a censorship on the Internet.