EDRI-gram newsletter - Number 15, 12 August 2003

Anna Balint epistolaris at freemail.hu
Tue Aug 12 19:30:37 CEST 2003 

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                            EDRI-gram

    bi-weekly newsletter about digital civil rights in Europe

                    Number 15, 12 August 2003

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CONTENTS
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1.  Campaign against proposed IP Enforcement Directive
2.  Finnish MEPs asked to vote against EU software patents
3.  New Finnish draft copyright law
4.  Excessive e-government demands in Poland
5.  EU Commission finishes Microsoft antitrust probe
6.  Call for boycott of Gillette products
7.  German debate about wiretapping statistics
8.  France: 2 court cases about liability of intermediaries
9.  Deep-linking legal in Germany
10. New German idea-competition
11. Recommended reading
12. Agenda
13. About

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1. CAMPAIGN AGAINST PROPOSED IP ENFORCEMENT DIRECTIVE
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An international coalition of 39 civil liberties groups and consumer
rights organisations sent a letter to the European Union on 11 August
urging rejection of the proposed intellectual property enforcement
directive. The coalition warns that the proposed Directive is over-broad
and threatens civil liberties, innovation, and competition policy. The
proposal requires EU Member States to criminalise all violations of any
intellectual property right that can be tied to any commercial purpose,
with penalties to include imprisonment.

"If this proposal becomes a reality, major companies from abroad can use
'intellectual property' regulations to gain control over the lives of
ordinary European citizens and threaten digital freedoms", said Andy
Muller-Maguhn, a board member of European Digital Rights (EDRI) and
speaker for the Chaos Computer Club. "Under this proposal, a person's
individual liberty to use his own property is replaced with a limited
license that can be revoked or its terms changed at any time and for any
reason," added the German civil rights activist.

"Currently EU-Member states are implementing the EU Copyright Directive
and the EU Software Patent Directive is next in the line. We should really
wait and see what effect these new laws have before adding any new
legislation," said Ville Oksanen, a lawyer and Vice Chairman of Electronic
Frontier Finland (EFFi), a signatory on the organisational letter.
"Contrary to what the Enforcement Directive claims, Member States are
already obliged by international treaties like TRIPS to protect
intellectual property rights," Oksanen continued.

In its letter to EU members, the coalition expressed particular concern
over Article 9 of the proposal, which gives intellectual property holders
broad new powers to obtain personal information about any European citizen
that is alleged to be connected to an infringement. Similar subpoena
powers created by the US Digital Millennium Copyright Act are abused by
the Recording Industry Association of America to obtain personal
information about thousands of users of file-sharing software. The
proposed IP Enforcement Directive would extend the ability to abuse this
power to Europe.

In conjunction with the publication of the letter, the international group
of activists launched the Campaign for an Open Digital Environment (CODE)
to raise awareness about the IP Enforcement proposals threat to consumer
rights and market competition. CODE encourages European citizens to
contact the Parliamentary Committee on Legal Affairs and Internal Market
and urge the proposals rejection before the hearing of 11 September 2003
on its merits in Brussels.

CODE Letter urging rejection of EU IP Enforcement Directive
http://www.ipjustice.org/codeletter.shtml

IP Justice White Paper on EU IP Enforcement Directive
http://www.ipjustice.org/ipenforcewhitepaper.shtml

Text of Proposed European Union IP Enforcement Directive
http://www.europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Service-Search&LANGUAGE=en&GUILANGUAGE=en&SERVICE=all&COLLECTION=com&DOCID=503PC0046


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2. FINNISH MEPs ASKED TO VOTE AGAINST EU SOFTWARE PATENTS
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Electric Frontier Finland is gearing up its campaign against software
patents while the crucial vote is closing up. As part of this project the
organisation sent an open letter to Finnish MEPs, in which it asked for
support for amendments on the final report of JURI, the committee on legal
affairs from the European Parliament. Piia-Noora Kauppi (EPP-ED) and Uma
Aaltonen (Greens/EFA) have already responded to the letter and promised to
support the amendments.

Open letter EFFI (29.07.2003)
http://www.effi.org/julkaisut/kirjeet/avoinkirje-2003-07-29.en.html

(Contribution by Kai Puolamauki, EFFI)


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3. NEW FINNISH DRAFT COPYRIGHT LAW
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The Finnish Ministry of Education has published a new draft copyright law.
The new proposal does not differ a lot from an earlier version that was
rejected by parliament last February. It is still highly complicated and
overzealous.

On the positive side the so-called 'community first sale doctrine' is now
limited to commercial entities only. Also, DVD-country codes are now
clearly defined to be outside the anti-circumvention rules. On the
negative side the proposal only allows circumvention of copyright
protection in case of listening or watching, but not for private copies.
The proposal also forbids the reverse engineering of software if the
software is used as a technical protection measure. This is not based on
the directive but is a purely Finnish 'invention'.

Electronic Frontier Finland has been asked to write a statement about the
law and also to participate in parliamentary hearings, which will be held
in the last week of August. Participation is technically open to anyone
and thus not limited to Finnish organisations. For example, last time the
MPAA produced a written statement about the draft law. This means that if
somebody wants to try to explain why limiting otherwise totally legitimate
reverse engineering is a bad idea or something similar, it can be done.
The deadline for statements is 5 September. Please contact EFFI if you
want to help so that we can co-ordinate the effort and give more detailed
information about the law.

Ministry of Education's EUCD-page (in Finnish)
http://www.minedu.fi/opm/tekijanoikeus/direktiivin_voimaan_saattaminen.html

(Contribution by Ville Oksanen, EFFI)


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4. EXCESSIVE E-GOVERNMENT DEMANDS IN POLAND
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On the first of July, the Polish Access to Public Data Bill (2001) came
into force. The bill obliges up to 10 thousands of public sector
institutions (including local government, political parties, public
schools, etc...) to put public information (such as information about
property, structure, authorities, procedures, etc...) on special web
sites. Each institution is obliged to create a separate website for this
purpose, separated from their home page (if they have such). The root of
all web sites is The Public Data Bulletin (a collection of hyperlinks).

The new legislation creates a lot of problems for most officials. The
responsible people often don't know how to create a website and if they
do, regulations seem very heavy. The law requires for example using two
servers (a main one and a back-up server that automatically takes over
when the main server malfunctions) and making a daily back-up of all
public data.

There are only about four million internet users in Poland. Though online
provision of public information seems to be a proper course of action,
enforcement of the Bill seems excessive in a country where the IT
infrastructure is only starting to develop.

The Public Data Bulletin (in Polish)
http://www.bip.gov.pl/

There is an article about The Public Data Bulletin (in Polish)
http://www.vagla.pl/skrypts/bip_warunki.htm

Polish - English translation service
http://www.translate.pl/

(Contribution by Piotr VaGla Waglowski, Internet Society Poland)


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5. EU COMMISSION FINISHES MICROSOFT ANTITRUST PROBE
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The EU Commission is preparing the last steps in it's antitrust probe
against Microsoft. The Commission has been investigating Microsoft
practices since 2000 following a complaint by Sun Microsystems. Sun
accused Microsoft of abusing its dominant position in the market by not
releasing crucial information on the communication between computers and
servers running MS Windows. The Commission is also investigating the tying
of Windows media player into the Windows operating system. This makes
competition from other media players difficult.

Mario Monti, the Competition Commissioner, already revealed that
additional investigations have confirmed earlier findings that Microsoft
has abused its dominant position to weaken competition in the low-end
server and media player markets. According to the Commission this weakens
competition, stifles product innovation, and ultimately reduces consumer
choice.

Microsoft has now been given a final conclusion of the probe. Mario Monti,
the Competition Commissioner, said "This Statement of Objections, which
includes the identification of appropriate remedies, gives Microsoft a
last opportunity to comment before the Commission concludes the case. We
are determined to ensure that the final outcome of this case is to the
benefit of innovation and consumers alike."

The Commission has contacted companies in various market segments and
requested information on whether interoperability considerations were a
factor in their purchasing choices, and whether non-disclosures of such
information by Microsoft influenced their purchase decisions. An
overwhelming majority of respondents highlighted that Microsoft's
non-disclosure of interface information - necessary for competing servers
to properly talk with Windows PCs and servers - did indeed artificially
alter their choice in favour of Microsoft's server products.

The Commission also identified remedies. Microsoft would be obliged to
reveal the necessary interface information so that rival vendors of
low-end servers are able to compete on a level playing-field with
Microsoft. For Windows media player the Commission has set out two
remedies: offering Windows without Windows media player or a 'must-carry'
provision to offer competing media players with Windows. The Commission
can additionally fine Microsoft to a maximum of 10% of its yearly
turnover.

Commission gives Microsoft last opportunity to comment before concluding
its antitrust probe (06.08.2003)
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/03/1150|0|RAPID&lg=EN

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6. CALL FOR BOYCOTT OF GILLETTE PRODUCTS
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The US consumer group CASPIAN is calling for a boycott of Gillette
products. CASPIAN is protesting against the use of Radio Frequency
Identifiers (RFIDs) in Gillette products. UK supermarket chain Tesco used
RFIDs in Gillette razorblades to test a controversial surveillance system
that tracks and photographs customers.

In EDRI-gram number 14 the test and similar theft detection and theft
prediction systems are discussed and explained (see link below).

Boycott Gillette
http://www.boycottgillette.org/

Big Brother in the supermarket
http://www.edri.org/cgi-bin/index?funktion=view&id=000100000105


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7. GERMAN DEBATE ABOUT WIRETAPPING STATISTICS
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After public criticism the German ministry of economy
(Bundeswirtschaftsministerium) is withdrawing plans to discontinue the
central yearly statistics on wiretapped telephones. In an article in
'Focus'-magazine the ministry announced its intention to change the next
draft of the telecommunications law accordingly. A week later the ministry
issued a press release denying the abolishment plan.

According to Focus, the ministry said abolition would improve
transparency. Currently, the central statistics are made up out of the raw
data from telephone companies, for every phone number, even if they refer
to the same phone line, for example with ISDN. The spokeswoman said that
the local statistics of the 'Landesjustizverwaltungen' and the statistics
of the 'Generalbundesanwaltschaft' were more meaningful, and pointed out
that no information would be lost, since every Bundesland would still
publish local statistics.

But the plans were opposed by a remarkable coalition of the ministry of
justice and journalists who pleaded to keep the central statistics.
Obviously, for journalists, comparing surveillance data from each
Bundesland is more difficult than from a central statistic. But the
resistance from the ministry of justice is noteworthy; they wish to be
able to prove wiretapping is used moderately. In 2001, according to Focus,
20.000 telephone numbers were wiretapped.

Press release Ministry of Economy (22.07.2003)
http://www.bmwi.de/Navigation/Presse/pressemitteilungen,did=21418.html

(Contribution by Lars Weitze, CCC)


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8. FRANCE: JURISPRUDENCE ABOUT LIABILITY OF INTERMEDIARIES
==================================================================

While the E-commerce directive (2000/58/EC) is not yet transposed, in
France the liability of intermediaries is decided via jurisprudence. In
April the owner of the discussion-website percussions.org was convicted to
pay half of the legal costs made by the company Eurodim, because a visitor
of the website posted a negative message about the head of the company. In
the posting, he accused the manager of selling his African percussion
instruments for way too much money and generally being better in marketing
than teaching. The message appeared in September 2002. The CEO responded
in April 2003, 6 months later, with a liability notice. The site-owner
immediately removed the posting and handed-over the IP-address of the
poster, but was still convicted to pay half of the costs 'for
equity-reasons'.

When it comes to search engines, French courts are clearly rejecting
liability for intermediaries. In May, the same Paris court (Tribunal du
grande instance de Paris) decided that Wanadoo could not be held liable
for the results produced by its search engine Voila. The 20-year old
singer Lorie was very upset about a website showing a photo-edit of her
face on top of the naked body of a 16-year old girl. A few days later, in
the case of Matelsom versus Altavista, the Paris Appeal Court came to the
same conclusion. They rejected the claim that Altavista should stop
sending visitors to the website of a competitor. According to Matelsom,
competitor Literitel had wilfully imitated their website and Altavista
should stop misleading potential customers.

The draft e-commerce law (Loi relative a l'economie numerique" or LEN in
French) is currently discussed in the Senate (See also EDRI-gram nr 2).
Nor this draft law nor the E-Commerce Directive touches on the liability
of search engines. In July, the Forum of Rights on the Internet published
a set of recommendations on the liability of editors of discussion groups.
According to this expert group, liability should depend on how closely the
editor is involved in the publication. In case of moderated newsgroups,
editors should not be treated like paper publishers, but in a way more
similar to hosting providers. That way they only risk liability if they
don't act after having received a clear notification. The group
acknowledges the paradox in it's advice, that moderators of internet
discussions run a higher risk of being held liable than owners of
unmoderated discussions, but can only advise courts to judge on a
case-by-case basis. Remarkably, the group warns organisers of discussion
groups never to hand-over user data (like e-mail and/or IP-addresses) to
private parties, but only to designated legal or administrative
authorities.

About Eurodim vs Percussions.org
http://www.transfert.net/a8976

Lorie vs Wanadoo (12.05.2003)
http://www.juriscom.net/jpt/visu.php?ID=253

Appeal case Altavista vs Matelsom (15.05.2003)
http://www.juriscom.net/jpt/visu.php?ID=197

Recommendations Forum of Rights on the Internet (in French, 08.07.2003)
http://www.foruminternet.org/telechargement/documents/reco-forums-20030708.htm


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9. DEEP-LINKING LEGAL IN GERMANY
==================================================================

The German Federal Supreme Court ruled on 17 July that deep links from a
news search engine to articles on a publishers web site do not violate
German copyright or competition law.

The plaintiff, a media group that publishes several newspapers and
magazines, including 'Handelsblatt' and 'DM', sued the search engine
provider www.paperboy.de for forbearance. After initial success at the
trial level ('Landesgericht'), the case was dismissed on appeal
('Berufungsgericht') which in turn was approved by the Federal Supreme
Court.

The supreme court stated that deep links do not violate copyright laws
because the copyright owner has already made the the articles publicly
accessible. Because the authors enjoy discretion of whether they, despite
the immanent risks of lawful or unlawful use such as reproduction, would
post works on the internet, they provided free public access. Therefore,
every internet user enjoys access to the work simply by learning the
uniform resource locater (URL), the court held. The hyperlink technique
merely provides an easy and convenient way to use the internet.

The exploitation of the plaintiffs work does not violate unfair
competition laws, the court concluded. While a plaintiff may suffer
damages as a result of fewer hits on advertisement banners on its website,
it may not demand such detours. Whoever uses the internet has to put up
with the limitations resulting from the legitimate interests of the public
in effient usability of this medium.

The German case is very similar to a Dutch case, instigated by newspaper
publishers PCM against the search engine kranten.com. In August 2000, a
local Rotterdam court found the deep-links perfectly legal, using the same
line of reasoning as the German Supreme Court in this case.

Report in German American Law Journal (18.07.2003)
http://63.142.46.199/cgi-bin/amlaw.cgi/z718paperboy.html?seemore=y

Press-release Bundesgerichtshof
http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Sort=3&Datum=2003&Art=pm&anz=96&pos=0&nr=26553&id=1058556825.88


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10. NEW GERMAN IDEA-COMPETITION
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BRIDGE, the German foundation for civil right in the digital society
(Burgerrechte in der digitalen Gesellschaft) has opened an interesting
idea-competition. People and organisations are invited to come with ideas
for a public campaign to raise awareness about threats to freedom in the
digital society. Topic and timeframe must be clearly defined. The winner,
to be announced on 1 November, will receive 15.000 EURO to actually
realise the campaign. The deadline for entries is 1 October 2003.

http://www.bridge-ideas.de/


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11. RECOMMENDED READING
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'Privacy, economics, and price discrimination on the Internet' by Andrew
Odlyzko offers an economical explanation for the rapid erosion of privacy
on the internet. Privacy appears to be declining largely in order to
facilitate differential pricing. Privacy intrusions serve to provide the
information that allows sellers to determine buyers' willingness to pay.
The author predicts that the economic advantages of price discrimination
are likely to remain in direct conflict with public dislike of such
practices. There is no easy solution for this problem, and privacy erosion
and differential pricing will continue to be contentious public issues.

Privacy, economics, and price discrimination on the Internet (27.07.2003)
http://www.dtc.umn.edu/~odlyzko/doc/privacy.economics.pdf


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12. AGENDA
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25 August 2003, Kiel, Germany - Privacy Protection under Hands and Seal -
Control is good, trust is better - 1 day conference organised by the
Independent Centre for Privacy Protection Schleswig-Holstein about privacy
protection audits and seals of privacy.
Simultaneous translation in English.
http://www.datenschutzzentrum.de/somak/somak03/somak03e.htm

2 September 2003, Copenhagen, Denmark - Freedom of Expression in the
Information Society
The conference will address issues concerning freedom of expression
regulation, press freedom and media pluralism, the new Council of Europe
Declaration on Freedom of Communication on the Internet, intellectual
property rights and access to information. The conference will combine
plenary discussions with workshop sessions. The seminars will take place
in the Danish Parliament in Copenhagen and are open to all stake-holders.
For further information and registration please contact Jane Johnsen, the
Danish United Nations Association, <jane at una.dk>.
http://www.una.dk/wsis/conf.htm

5 September 2003, Deadline Call for Papers about Copyright and Open and
Proprietary Software
On 4-5 December 2003, the Centre for Tele-Information of the Technical
University of Denmark organises its 8th annual international conference -
this year on copyright and software patents. A selection of the best
papers for the conference will be published in the international journal
Telematics and Informatics in spring 2004.
http://www.cti.dtu.dk/

11-14 September 2003, Amsterdam, Netherlands - Next 5 Minutes,
International Festival of Tactical Media
http://www.n5m.org/

15-26 September 2003, Geneva, Switzerland - WSIS Preparatory Conference
http://www.itu.int/wsis/preparatory/prepcom/pc3/index.html

5-7 October 2003, Ischia (Naples), Italy  - Industrial Property - Quo Vadis?
Conference about the future role of IP in creating wealth and employment
and stimulating innovation and competition

Speakers and program:
http://www.ischiaconference-ipr.org/ing/invitedspeakers.htm
http://www.ischiaconference-ipr.org/ing/program.htm

Upcoming Big Brother Awards 2003:
11 October, Amsterdam, Netherlands
24 October, Kiel, Germany
26 October, Vienna, Austria
http://www.bigbrotherawards.org

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13. ABOUT
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EDRI-gram is a bi-weekly newsletter from European Digital Rights, an
association of privacy and civil rights organizations in Europe. Currently
EDRI has 14 members from 11 European countries. EDRI takes an active
interest in developments in the EU accession countries and wants to share
knowledge and awareness through the EDRI-grams. All contributions,
suggestions for content or agenda-tips are most welcome.

Newsletter editor: Sjoera Nas <edrigram at edri.org>

Information about EDRI and its members:
http://www.edri.org/

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