The Sydney Morning Herald reports that Australian ISP iiNet is challenging movie studios’ claims of copyright infringement on its network. One of their arguments is that, because BitTorrent peers shares bits rather than entire files, its users are not committing infringement.

In the Federal Court today, where iiNet is being sued in a landmark case by seven major movie studios and the Seven Network for allegedly permitting customers to download movies illegally, iiNet’s lawyers said they would clarify their position on the issue by next Wednesday.

However, they foreshadowed possible arguments that infringements did not occur, by questioning whether transferring files over BitTorrent on a “one-to-one” basis was equivalent to making them “available to the public” under copyright law.

They also claimed that, because files are broken up into tiny “packets” before being sent over BitTorrent, this may not be enough to suggest a “substantial portion” of a copyrighted file was distributed.

The movie studios also claim that iiNet is liable because it refuses to disconnect users accused of infringement.

The studios claim iiNet in effect “authorised” customers’ copyright infringement by failing to disconnect them when notified of the infringements by the movie studios.

iiNet’s barrister, Richard Cobden, SC, said the ISP was not required to act on a “mere allegation of copyright infringement” and used comments from former attorney-general Philip Ruddock that apparently back up this claim.

iiNet has previously said that the case was “like suing the electricity company for things people do with their electricity”.

I don’t think the “sharing bits” thing would work in the US, but it’s nice to see an ISP not cave into movie studio pressure, even if the consequence is possibly making itself liable. Why can’t we have more ISPs like this one, who won’t bend over merely because of accusations alone?

• Sydney Morning Herald [Print Version]
• Slashdot

National Business Review New Zealand reports that Section 92A, which would mandate Internet cutoffs for those accused of copyright infringement multiple times, has been removed.

In a follow-up to Mr Key’s Beehive press conferencing announcing the move, Mr Power released a statement saying:

“Allowing section 92A to come into force in its current format would not be appropriate given the level of uncertainty around its operation.

“This legislation was put in place to combat unlawful file-sharing which facilitates copyright infringement on a large scale … While the government remains intent on tackling this problem, the legislation itself needs to be re-examined and reworked to address concerns held by stakeholders and the government.”

I guess all of those protests really worked.

PS: Another backlog. Conley and myself are not able to post as much as we used to. Please contribute so we can keep the site alive.

• National Business Review New Zealand [Print Version]
• Slashdot

Freedom - Credit: dazzied on Flickr (CC BY)

The US District Court of Colorado has determined that it’s unconstitutional to take works out of the public domain.

The US District Court for the District of Colorado has just granted a motion for summary judgment in Golan v. Holder you will want to know about. It is a very big deal. Anthony Falzone, Executive Director of the Fair Use Project at Stanford’s Center for Internet and Society, who led this effort, says, “It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government’s ability to erode the public domain.” I read it as saying that nothing, not any treaty, not even the Berne Convention, can trump the US Constitution.

I’m confused by the word “foreign” in the Groklaw article.  Does this mean we won’t respect other governments eroding the PD?  Does this mean Rashomon is PD again?

• Groklaw
• Lessig

"The White House" by ktylerconk on Flickr (CC-BY)

On January 31st, Jamie Love, director of Knowledge Ecology International, filed a US Freedom of Information Act request to the White House for documents relating to the Anti-Counterfeiting Trade Agreement. Last Thursday, the request was denied, citing national security reasons:

Love had written in his original request on January 31–submitted soon after Obama’s inauguration–that the documents “are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public.”

The White House appears to be continuing the secretive policy of the Bush administration, which wrote to the Electronic Frontier Foundation (PDF) on January 16 that out of 806 pages related to the treaty, all but 10 were “classified in the interest of national security pursuant to Executive Order 12958.”

In one of his first acts as president, Obama signed a memo saying FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure.”

Apparently, lobbyists have more of a right to know what their government is doing than their own people, even when  the treaty would have dramatic impacts domestically. Love will have to sue to get the documents, and by the time it makes it out of trial it may be too late.

So much for change we can believe in.

• CNet article

Music - Credit: rossinabossio on Flickr (CC BY)

European copyright on music has been extended from 50 to 95 years.

Ensuring that copyright extension benefits performers

The approved report, drafted by Brian Crowley (UEN, IE), amends existing legislation to increase the copyright protection for music compositions to 95 years.

To ensure that performers fully enjoy the additional royalties deriving from copyright extension, the  committee amended the original text so as to prevent the use of previous contractual agreements to deduct money from the additional royalties.

A fund for session musicians

A dedicated fund for session musicians was also approved by the committee. This fund would be financed by contributions from producers, who would be obliged to set aside for this purpose, at least once a year, at least 20% of the revenues gained from the proposed extension of copyright term.

Committee members also amended a provision relating to this fund so as to give collecting societies, which represent performers’ and producers’ interests, the right to administer the annual supplementary remuneration.

Copyright extension for audiovisual works, too?

The committee also asked the Commission to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world.

Review legislation after three years

Finally, MEPs ask the Commission to submit three years after the entry into force of the new legislation, and every four years thereafter, an assessment of whether the copyright extension has in fact improved the social situation of performers.

Everyone will benefit so much from this.  By everyone I mean lawyers.

• European Parliament

Border - Credit: tobin on Flickr (CC BY-SA)

The Paris ACTA meeting has concluded, and Ars is reporting that the biggest news is that the treaty will most likely be delayed until March.

The big news was that future negotiations will include a March 2009 meeting in Morocco (one of the participating countries); barring some sort of bureaucratic miracle, we’ll have at least four months before the treaty could be ready.

In the meantime, new President Obama will have appointed a new US Trade Representative, the official who oversees the US side of the ACTA negotiations. This could affect the process, obviously, though Obama’s initial choice of LA Congressman Xavier Becerra (who has since declined the offer) suggests that Obama isn’t opposed to someone backing the interests of the movie and music industries. The two groups have real and important concerns about piracy and counterfeiting, but they have also pushed hard to stuff everything from ISP filtering to graduated response rules into ACTA.

I’m sorry, but I’m not really counting on Obamarama to make this all better.  I hope that is the case though.

• Ars Technica

Shh...it's a secret

On Monday, ACTA negotiators took questions at a public meeting.  No text has been revealed.

He made the case that the ACTA process was as open as it could be, and pointed out that the US has just taken a second round of public comments from any group that wants to submit them. There’s no draft text because, said McCoy, no such text yet exists; ACTA is still very much in the drawing-up stage, and progress is expected at an October meeting in Tokyo. With proposals still hazy, McCoy could get into few specifics, and he is bound by the confidentiality of the negotiating process from talking about what other countries have proposed so far.

As for what ACTA is not, McCoy stressed that it will not rewrite US law, it will not be about searching laptops and iPods at the border, and it isn’t simply an attempt to placate Big Content at the expense of everyone else. McCoy explicitly said that USTR wants to engage with Google and ISPs and others before making any final decisions on language, and he said that USTR is committed to a good agreement, not just a fast agreement.

Is this sufficient?

• Ars Technica

The G8 is meeting next week in Japan, and one of the things on the agenda is the Anti-Counterfeiting Trade Agreement (ACTA). The treaty, proposed by US Trade Representative Susan C. Schwab last October, is being negotiated in secret with Canada, the EU, Japan, Mexico, Korea, New Zealand, and Switzerland.

Thankfully, Wikileaks obtained a copy of a “Discussion Paper” disseminated to entertainment industry lobbyists, and has posted a summary:

The agreement covers the copying of information or ideas in a wide variety of contexts. For example page three, paragraph one is a “Pirate Bay killer” clause designed to criminalize the non-profit facilitation of unauthorized information exchange on the internet. This clause would also negatively affect transparency and primary source journalism sites such as Wikileaks.

The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.

The proposal also specifies a plan to encourage developing nations to accept the legal regime.

The deal would also set up border guards to be IP cops:

The deal would create a international regulator that could turn border guards and other public security personnel into copyright police. The security officials would be charged with checking laptops, iPods and even cellular phones for content that “infringes” on copyright laws, such as ripped CDs and movies.

The guards would also be responsible for determining what is infringing content and what is not.

The agreement proposes any content that may have been copied from a DVD or digital video recorder would be open for scrutiny by officials — even if the content was copied legally.

[snip]

Anyone found with infringing content in their possession would be open to a fine.

They may also have their device confiscated or destroyed, according to the four-page document.

The trade agreement includes “civil enforcement” measures which give security personnel the “authority to order ex parte searches” (without a lawyer present) “and other preliminary measures”.

In Canada, border guards already perform random searches of laptops at airports to check for child pornography. ACTA would expand the role of those guards.

• Wikileaks page on ACTA Discussion Paper
• CanWest News Service article on ACTA

The International Music Score Library Project, which provides public domain music score, has reopened after shutting down. They had shut down after receiving a cease and desist letter concerning scores that were only PD in some countries, but not others (even though they were clearly marked as such, and hosted in Canada, where all were legal).

Before I go into all the details that are involved in this resurrection, I would like to give proper thanks to several people and organizations that made today possible.

Obviously, this resurrection would be impossible without proper legal support, and I would like to thank the folks at the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Stanford Fair Use Project (FUP) for providing crucial support during times of crisis, and Professors Michael Geist and Lawrence Lessig for recommending the IMSLP case to the two legal clinics. Even though IMSLP currently has other avenues of legal support, the support of the two clinics proved a godsend for both IMSLP and myself personally.

In addition, I would like to thank Project Gutenberg leader Michael Hart, and GNU project leader Richard M. Stallman. Mr.Stallman has continuously helped IMSLP, even during the darkest periods and despite what must be a frighteningly busy schedule, and for which I am extremely grateful. I am also very sorry that no deal was reached between Project Gutenberg and IMSLP, but I believe that the current outcome is the best for both parties. I will, however, be very interested in pursuing a mirroring agreement, where Project Gutenberg will have access to the entirety of the IMSLP site, and which should prove very useful in case of an emergency of any sort.

This is a noble project. It’s a shame it was shut down.

• IMSLP
• Slashdot

Apparently there’s an “Anti-Counterfeiting Trade Agreement” in the works.  It’s a draft of a treaty that would let trade negotiations happen in private instead of in public at the UN.  The ACTA criminalizes (even legal) P2P and region-free DVD players.

The agreement covers the copying of information or ideas in a wide variety of contexts. For example page three, paragraph one is a “Pirate Bay killer” clause designed to criminalize the non-profit facilitation of unauthorized information exchange on the internet. This clause would also negatively affect transparency and primary source journalism sites such as Wikileaks.

The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.

Bob Goodlatte’s name is on this thing.  I’ve met him a few times (he even gave me his nomination to get into the Air Force Academy).  This is pretty lame.

• Wikileaks
• IP Justice
• Boing Boing