If you would believe the UK government, there are two types of people. In the one category, you have law abiding citizens whose every movement, communication and social network activity must be monitored and digitally analyzed to keep them at bay, for their own good. In the other category, you have murderers, pedophiles and terrorists. If you object to belonging to the first category, you must therefore be part of the other, or at least a partner in crime of the scoundrels identified in category two. This would be so according to the unbelievably backward rhetoric of parts of the UK government not too long ago. To make sure society runs smoothly, the government devised the Communication Data Bill, aka. “Snooper’s Charter”, which would enable mass surveillance of digital communications.

As Glyn Moody noted, the Snooper’s Charter has been declared effectively dead after Liberal Democrat leader Nick Clegg announced his party would not support the Bill after some heavy scrutiny by two critical parliamentary committees. The debate on digital surveillance is far from over, however, as several sectors of law enforcement will continue to push for ubiquitous interception, because it is ‘useful’. Of course, conveniently forgetting about proportionality when dreaming up laws to use or control digital technology has become an all too common thread worldwide.

The UK Open Rights Group, an EFF sister organization, has released a report and a series of particularly funny videos to put an end to the Snooper’s Charter, and also to inform policy makers and the public at large about how the discussion about digital surveillance should be held (disclaimer: I helped compile this report).

In the report, twelve experts from different fields explain clearly how and why digital surveillance has come about, what its intent is, and why mass surveillance such as that proposed by the Snooper’s Charter is probably the worst possible next step to take, considering the ability of current technology to effectively monitor everyone and everything.

Journalist and surveillance expert Duncan Campbell puts the Snooper’s Charter in historical perspective and explains:

“The manner in which the new Bill has been introduced and managed, fall full square within long British historical precedents that position privacy rights as an irritant to be managed by a combination of concealment, secrecy, information management, and misinformation.”

One of the most notable features of the Snooper’s Charter is the de facto centralized search engine – or “Filter” – which scours several public and private datasets to analyze communications in-depth. Cambridge University computer scientist Richard Clayton explains:

“It is fundamentally inherent to this proposal that Filter data should be collected on everyone’s activity and that this data should be made available en masse from the private companies, the Internet Services Providers and telephone companies that provide services, to government systems for the correlation processing.”

Information privacy rights advocate Caspar Bowden does not mince any words:

“It ought to be obvious that continuously recording the pattern of interactions of every online social relationship, and analyzing them with the “Filter”, is simply tyrannical.”

Rachel Robinson from “Liberty”, the National Council for Civil Liberties, considers what this type of surveillance will likely lead to:

“If the present proposals for the collection of communications data become law, proposals for other types of blanket or random surveillance irrespective of suspicion “just in case” are a logical next step.”

Professor Peter Sommer explains one of the underlying problems:

“Legislators need knowledge of the technical capabilities of surveillance technologies” because: “The legal words need to reflect the reality of how the technology works.”

Joss Wright, computer scientist at the Oxford Internet Institute, notes a fundamental and frequently repeated mistake in thinking about regulating internet technology:

“Equating the Internet with historical technologies when making policy is not simply wrong, it is dangerously misleading.”

Together with Professor Emmenthal below, policy makers should finally start realizing that “technology’s interaction with the social ecology is such that technical developments frequently have environmental, social, and human consequences that go far beyond the immediate purposes of the technical devices and practices themselves […]” (Kranzberg, 1986). Fortunately, the Open Rights Group established 10 clear recommendations to continue the discussion on digital surveillance law, which will also be applicable in other countries.

The US Patriot Act has suddenly scared an entire nation, and it’s not the US itself this time. The Netherlands is currently going nuts about the US government being able to request medical details of all its citizens when the Dutch Electronic Patient Database (EPD) is implemented next month. This will not be the only country that freaks out because of the Patriot Act, as this sort of thing is likely to happen a lot more often. A recent study explained that US government agencies can secretly request anyone’s data if they are using a cloud-computing service which ‘conducts systematic business in the US’. It is already sufficient when the service provider is somehow a subsidiary of a US company.

That turns out to be a problem in the Netherlands, because the company that has developed the EPD and will be hosting the patients’ data on its cloud computing systems is the US-based CSC. The Dutch government and the organization responsible for implementing the EPD are convinced there is no problem, because there are clear contracts which have assigned Dutch jurisdiction, and fortunately the Dutch have stringent data protection laws that will protect patients’ sensitive data. Because that’s what data protection laws do, right?

False! At least with regard to information law, researchers from Amsterdam University warn that this analysis is way too simplistic. According to the scholars, it is quite possible the US government agencies can circumvent data protection laws and could easily request access to medical information of every single person in the Netherlands. The study doesn’t just cover the Netherlands (though it is especially timely for that), but rather looks at how these risks may apply more globally. Here are just a few of the findings that should raise eyebrows across the globe:

“When using a cloud service provider that is subject to U.S. jurisdiction, data may be requested directly from the company in question in the United States. […] From a legal point of view, access to such information cannot be denied and cloud service providers can give no guarantees in this respect. […] The possibility that foreign governments request information is a risk that cannot be eliminated by contractual guarantees. Nor do Dutch privacy laws offer any safeguards in this respect. […] It is a persistent misconception that U.S. jurisdiction does not apply if the data government requests for information do not apply to Dutch users of the cloud. […] legal protection under specific U.S. laws applies primarily to U.S. citizens and residents. […] Given the nature of intelligence work, it is not possible to gain insight into actual requests for information by the U.S. authorities […] Cloud providers will typically not be able to disclose whether such requests are made”

If the above doesn’t yet lead to a new international outrage against the US Patriot Act, then the following sentence on the extra-territorial effects of the Patriot Act should at least send shivers down the spines of sovereignty-loving non-US government officials:

“The transition to cloud computing will, in principle, result in a lower degree of autonomy […]”

It seems like the whole world is slowly coming to grips that our printing-press-era rules may not be the best way to stimulate creation and regulate information flows in hugely complex digital networks. The EU is now officially taking the lead in the worldwide discussions on copyright reform. This move may give much needed support to governments that have tried to touch on the topic, but for some reason withdrew or ignored good initiatives and advice.

Commissioner Barnier’s recent speech about “Making European copyright fit for purpose in the age of internet” was a sign of hope, but closer inspection revealed that he was planning no more than some relatively predictable updates of the current rules. Although the gesture was nice, it was more likely a reframing of his untenable previous maximalist position and lacked any fundamental meaning.

It appears now that two colleagues of his, Neelie Kroes (Digital Agenda) and Androulla Vassiliou (Education and Culture), have expertly called Barnier’s bluff and have taken the lead for full and much needed copyright reform. All three will sit on the board of a yearlong “structured stakeholder process“, which will commence at the start of 2013. This exercise will assess whether “the market” is able to address the current deficiencies of copyright in the following six topics: “cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audiovisual works and cultural heritage.“

In 2014 the three Commissioners will sit down again together, analyze the findings and decide whether concrete policy action is needed. Fortunately, we can already note that, indeed, substantial legislative reform will be needed to address the four areas the Commission is focusing on, namely:

1) Mitigating the effects of territoriality in the Internal Market;
2) Agreeing appropriate levels of harmonization, limitations and exceptions to copyright in the digital age;
3) How best to reduce the fragmentation of the EU copyright market;
4) How to improve the legitimacy of enforcement in the context of wider copyright reform.

Note how the first three areas are surprisingly similar, if not the same thing. The European copyright structure is based on territoriality, so addressing these three points requires extensive reform from many angles and on many levels.

The fourth area of concern (legitimizing enforcement) is the Commission admitting that ACTA was a bad idea. The Commission, just like Congress in the US after SOPA/PIPA, both realize they need to tread very carefully with any proposal that has an effect on fundamental rights on the internet, or internet freedom,as it we now call it. This is where the civil society and the actors who joined forces to stop ACTA, SOPA and PIPA can now step up and present a positive and realistic agenda for reform. Let’s not have the “copyright reform” movement be hijacked by special narrow interests who think they’re getting clever now by reframing the debate.

While the open democratic discussion on copyright reform will not commence today, hopefully this is a move in the right direction, which should open a window of opportunity for meaningful reform. Knowing the European Commission and their talent for delay-tactics, especially on the copyright dossier, it’s not likely we’ll have any real copyright reform any time soon. However, we do now have a firm commitment from a major international government that the copyright system is in dire need of a very close inspection.

Hopefully the British will now feel supported in implementing the recommendations of the Hargreaves report. Perhaps the Dutch will also feel justified to proceed with the idea to make their copyright system more flexible. Overseas governments may also feel reinforced to open the discussions on their copyright systems and join the EU in finding the new way forward. But will the EU’s move encourage the GOP to republish their recent insightful report on copyright reform?

Whatever the knock-on effects may be, there’s much more work to be done than suggested in this initiative to analyze the workings of the copyright system properly and to come up with a model for meaningful reform. However, this initiative deserves close attention by all interested groups to help steer it in the right way.

Calls for evidence-based policy-making in the copyright domain are increasing on both sides of the Atlantic. How do we best regulate the fair remuneration of artists? How do we enforce it? Evidence based on sound methodologies and research is slowly but surely appearing. Now the highly respected Institute for Information Law (IViR) of the University of Amsterdam joins the league of evidence-givers with a new report, Filesharing 2©12, Downloading in The Netherlands, about how blocking websites is not a worthwhile remedy (The report is in Dutch, but the executive summary is translated. It was an initiative by the IViR itself and was partly financed by the Ministry of Culture, Education and Research, some ISP's, Dutch society for professionals in the book industry and done in collaboration with several other institutes. Small disclaimer: I did my masters at this institute).

Economist Joost Poort explains his main findings:

“The most surprising result for me is that the act of downloading from an unauthorized source seems to have peaked and is now declining. This is most likely due to the actions of the music industry, who have been successfully experimenting with new business models.”

There you go, music industry! You're doing it right! It seems like everyone is winning in the Netherlands: illegal downloads decreasing, new business models (streaming, advertising) successfully competing with abundant free supply, and paying customers. In fact, the study shows that some two thirds of consumers are willing to pay around the current retail prices for content. I can't back this up, but it seems reasonable to suggest that this is the same amount of people who would have shelled out cash back in the day of optical discs, or CD's as those clumsy shiny discs used to be called. Remember all those thieving fans who proudly owned huge tape collections with self-decorated covers of the copied albums? If you don't, you must be younger than 25. However, not all is good news. Poort continues:

“The downloading of films and series from unauthorized sources is on the rise. This shows that enforcement is not the reason for decreased downloading of music, since successful enforcement would not only have an effect on music, but on all media offered by blocked websites, such as the Pirate Bay”

Note that ThePirateBay.org is blocked in the Netherlands, pending appeals in several cases. Poort elaborates:

“The reactions from consumers show clearly that the blockade of the Pirate Bay website is not relevant to about 75% of them. This is because they never downloaded from illegal sources anyway, or stopped downloading since legal services have taken off or they had enough money to pay for content. The other 25% seems fairly unaffected by the injunction. Only 5% have indicated they actually started downloading less, not a shockingly large effect to put it mildly.”.”

To say this is an interesting finding is an understatement of epic proportions. This finding gives decisive evidence that blocking access to websites, services or content distribution methods is a bogus way of addressing an innovating customer base. To repeat, but in more joyous terms: Hey Policymakers! Honorable Judges! Here's the evidence you've been waiting for! Ha, turns out that blocking websites is an ineffective way to change consumer behavior after all. Gosh, if only someone had predicted this before… Would've saved us all quite some hassle, right?!

Well then, now this is settled, time to focus all the wasted litigation and lobbying money for restrictive measures on R&D. The legal services are still in their infancy and have so much potential. The better they get; the more people will pull out their wallets to pay for access. You wouldn't want to be the only kid left behind who can't access all the great content made available through 4G network phones and super fast broadband by really easy to use services, would you?

Thinking about it this way, affordable, user-friendly and all encompassing services for music, films and books may even increase the paying user base from 67% to… 100%?! Maybe not quite 100%, but more research is needed for this new and possible social phenomenon of peer-pressure to pay for media and at the same time the reversal of the old media model: huge paying consumer bases for the cultural sector due to abundant and ubiquitous availability, instead of artificial scarcity and thriving “piracy”. Record execs must be throwing money at their screens by now, reading about this not-quite-so-hypothetical but under-researched gap in the market.

Of course, we must not forget that part of the financing team is currently in appeal for a court ruling, which forced ISP's to block ThePirateBay.org. This blogger is happy to keep you updated of any developments in the already legendary Dutch copyright fisticuffs of 2012!

The Russian social network vKontakte has been held liable in a copyright case for the second time this year. Music label Gala successfully claimed damages again, because vKontakte’s users are able to (and do) upload its music and videos to the social network.

This series of court cases may have prompted Mark Zuckerberg of Facebook to speak to Russian Prime Minister Dmitry Medvedev about copyright laws on a recent trip. It is no secret that people do upload a lot of music videos to Facebook as well, so Facebook — or any social media service for that matter — could easily become the next litigation target in Russia.

Music recommendations via social networks have an important function in the modern music industry, because they are great tools for artists’ marketing and consumers’ awareness of new music alike. The question is then, whether the rest of the social media landscape and the culture of sharing and recommending have anything to worry about, following the two rulings from Russia. After all, Russia is a huge market, so global services may be pushed to regulate by code the types of content that is uploaded or linked to. Strict laws in one country can have effects on the way a service operates in another country.

Although details on Russian information law regarding intermediary liability and copyright exemptions are a little sketchy when one cannot read Russian, there does not seem to be a Russian equivalent of the safe harbor provisions in the US DMCA or the EU E-Commerce Directive. Russian services seem to so far have relied on a framework of laws, such as an exception in the fairly new Russian Federation Civil Code (Part IV, 2008), which allows for private copying and a subsequent levy on computers or digital media carriers, and the fact that initiator should be liable for copyright infringements, not the intermediary.

The vKontakte website looks and feels pretty much exactly like Facebook, but there’s a key difference: Users are able to search all uploaded media on the social network, not just in their circle of friends. Although all sorts of content is accessible on Facebook, it has taken care to make content available mainly within groups of friends or when artists publish the works themselves on their own pages. The former likely falls under private copying exemptions, or fair use in the US, whereas the latter is simply a great promotion.

The same cannot be said for service like YouTube and Twitter. Most content uploaded or linked to by their users is searchable and publicly accessible. YouTube, of course, has the technical capacity to filter a portion of copyright protected works. However, no further special care is taken to keep the circulation of content limited. With this in mind, it is interesting to note the reaction by IFPI, the international arm of the RIAA, who celebrate this second ruling:

“The IFPI suggests that the 11 licensed digital music services in Russia have ‘not developed to their full potential’ because of the easy availability of free music on vKontakte. But rather than simply restricting its upload and search capabilities, the real question is whether, like Baidu in China, vKontakte can become a licensed partner for the music industry rather than a foe for the long term.”

IFPI tries to push the social network to purchase licenses for the works their users are sharing on its service. This is made possible by the absence of rules exempting intermediaries, such as social networks, from liability for the actions of their users. Much can be said about the negligence with which vKontakte made uploaded content available to its whole user base. However, when comparing vKontakte to the services of Twitter and YouTube, it suddenly becomes apparent that any user-generated content service that operates worldwide may well be playing Russian roulette with their own liability for their users actions.

This is not to say that services should refrain from buying licenses from rights holders. However, in order not to start a technical race to the bottom, where user-generated content services adhere to the strictest copyright law the world has to offer (with all its negative consequences) in their aim to expand into new territory quicker than competitors, some reflection is needed on the global norms regulating intermediaries. Cases such as this one should ideally trigger new discussions and considerations at the international level. Maybe Zuckerberg can hold his next talk about global copyright at venues such as at the WIPO or the WTO.

Cloud computing has been presented as the new economic weapon for bringing economic prosperity to Europe, if you believe the new cloud computing strategy from the European Commission. An additional € 957 billion ($1,236 billion) is expected to be earned in the EU by 2020, along with an additional 3.8 million jobs created. These impressive economic forecasts are unfortunately just seen as a positive side effect of something much more important to the bureaucrats: a chance to update the regulation of the internet. Of course, all this might actually do is open up opportunities for other countries and regions to do a better job at it. And it appears that Iceland wants to be poised to step in where Europe is all too likely to fail.

Fixing the regulation of information and online services has been overdue for many, many years in Europe. Developers of both complex and simple cloud services are often being frustrated by current laws, which were enacted many years ago without much (or any) foresight into how information would be used today. For example, the consent of the user to allow a cloud service to handle his or her personal data often does not reflect the technical reality of how the data is handled by a service operating in a cloud. Even if the cloud system is technically secure and privacy measures are taken seriously, obligations or prohibitions in data protection laws inhibit efficient handling of personal data by modern services if the service provider wishes to fully adhere to the law.

Other policy areas that will likely be updated include consumer rights, security, competition and intellectual property. Officials also see this as a chance to address issues such as jurisdiction (applicable law, but also tax issues), liability of intermediaries, standards and interoperability. Techdirt has been reporting on the flaws of current legal systems and the frequently absurd consequences for many years now. Postponing the much needed regulatory update on these issues is like shooting yourself in the foot, over and over again.

The figures presented in the report above may be overstated, but significant investments can be expected as a result of increased legal security in cloud computing. The question is, then: Who will reap the benefit from this? There are many other countries and regions, which have been preparing themselves for the highly interconnected world and now see a chance to profit from new investments in cloud computing and related infrastructure.

For example, Iceland recently stepped forward and presented itself as a strong contender and ideal host for new server farms, which are needed for cloud computing. The Iceland Modern Media Institute (IMMI) presented a rather useful model to analyze a region’s potential for becoming a modern information hub based on a few primary indicators. The report was requested by the European Greens party and models a region’s suitability for information services based on energy (e.g. sources and natural cooling), connectivity (e.g. international network and security) and jurisdiction (e.g. local legal provisions and legal security).

Iceland was used as a case study to showcase the model, presenting the natural and societal advantages of the island over other countries in an impressive and convincing way. Iceland is ideally located between the US and the EU, has abundant natural cooling sources and, above all, has developed an impressive and progressive portfolio of policies related to the free and open internet.

Not all is lost for Europe, though. The Financial Times has spotted the necessary political frame for the cloud computing strategy to become a serious topic among European officials:

For Ms. Kroes and her colleagues, the cloud is the embodiment of the European Economic Community, eliminating obstacles, stimulating competition and opening up the market to new possibilities.

This ‘European Dream’ argument for cloud computing could entice some non-tech savvy politicians to take the issue seriously by enabling them to score media attention with their involvement in the new futuristic project which helps rebuild the economy. At least this enables a public, broad and open discussion on all types of internet regulation, where there is plenty of room for expertise and evidence-gathering about the internet to enter the debate.

Recent announcements pave the way for an increased “connectivity” score for the EU in the IMMI model. However, unless the European legislators seize this opportunity in policy making to update its “jurisdiction” score in the model and learn from Iceland’s recent policy innovations for the free and open internet, investors may be enticed to build their infrastructure on the island nation, or elsewhere, instead of mainland Europe. The message is simple: Fail to make use of this chance to update the regulation of the internet intelligently, and countries like Iceland will profit most from Europe’s cloud computing strategy.

History teaches us that representatives of copyright holders will complain about any new development in information or communication technology and try to stop or limit its use. Well, it is no surprise then that, over in the UK, the Federation Against Software Theft (FAST) is claiming that existing, already far-reaching copyright enforcement measures in the not-yet implemented Digital Economy Act (DEA) will be rendered useless when the new 4G mobile phone network rolls out. The 4G mobile phone networks has been anticipated with much fanfare and will provide mobile broadband speeds, which are many times faster than the 3G network we have become used to in the UK. According to FAST, mobile users and operators now also need to fall within the scope of the controversial DEA.

In a recent Techdirt post about the DEA, Glyn Moody finished with the sentence “The longer the great Digital Economy Act farce drags on, the more absurd it becomes from every viewpoint.” With FAST’s claims, the debate is set to continue, and yes, it will become more absurd. Here’s a short recap of DEA before we see how history repeats itself when its lessons are ignored:

• The DEA was hastily passed at the end of the last UK Parliament’s term to “combat piracy”, or whichever rhetoric was used this time.
• The act initially proposed to block websites and disconnect repeat infringers of copyright in a graduated response type system, or otherwise limit internet access. Customers may also be taken to court because ISP’s would be obliged to disclose personal information of their customers.
• The scope is limited to the largest ISP’s in the UK, which covers about 93% of its citizens.
• The implementation of the DEA has been delayed due to heavy criticism. Some of these ISP’s went to court about the hefty costs which need to be made to enforce copyrights online.
• Some provisions, such as the blocking of websites at the ISP level, have since been scrapped. This was not met with much resistance from rights holders, as they already had their Supreme Court precedent set with the blocking of the Pirate Bay.
• More specifics about this piece of legislation can be found around the internet, but as a final point it must be mentioned that — surprise surprise — the whole impact assessment of the act was based on highly inflated and controversial figures with bogus methodologies, provided by private stakeholders.

Let’s dive into the claims of this most recent attempt to attack the technology as legacy players try to stay relevant. Of course, every time they do this, they discover that they’re on the wrong side of innovation. Again. And, all too often, the goals of these groups run entirely contrary to the real wishes of those they claim to represent. Julian Heathcote Hobbins, General Council at FAST, states the following:

The DEA has the potential to be a valuable piece of legislation in the fight against illicit peer-to-peer copyright infringement and a significant development for rights holders as an educational programme. However, the DEA must remain timely. The issue is that by the time the DEA is finally implemented, technology could have moved on so far making the Act ineffective in helping to deal with those using 4G networks to share files. In its current form the DEA is not sufficiently flexible in scope to account for advances in technology.

Another representative, Jonathan Cornthwaite, a lawyer in London and member of FAST’s Legal Advisory Group, then goes on to state:

[…] As we are now witnessing, technology does not stand still and gaps are appearing in the DEA as the use of mobile devices accelerates. Unless this situation can be remedied, it may be of less assistance, leaving rights holders with a watered down remedy.

It is fascinating to see these representatives finally realizing that regulation will not be able to keep apace with technological developments, where innovation happens at internet speed. They are right in stating that legislation must be flexible to stay timely and to move with technological and societal advances, which are indeed moving at an unprecedented pace.

However, they fail to think through that it may not be the enforcement side, but actually that the copyright system lacks social legitimacy because it is out of date and out of touch with how we now live in media. The approach chosen by these representatives leans more towards a permission innovation society as identified by Mike in a recent post, where former Register of Copyrights, Ralph Oman, expressed that he feels any new technology should have to apply to Congress for approval, before it is allowed to exist. Instead, we should follow the sensible part of Mr. Heathcote Hobbins and Mr. Cornthwaite’s analysis and make the underlying copyright system timely and flexible so it takes into account technical reality, which, indeed, does not stand still.

A group of UK mobile operators have branded their 4G service “Everything, Everywhere” (EE), indicating they understand what consumers want: all media available at any time in any place. This does not directly mean consumers want media for free. Most are willing to pay for access, especially when the service purchased offers them the ability to use works without undue restrictions. A line can be drawn as to which uses are permissible and which are not. However, if restrictions inhibit normal media usage as consumers expect it, and penalties include disconnection, throttling or otherwise limiting the promise of the super-fast paced mobile internet experience, copyright will further lose social legitimacy and work-arounds will be found.

France’s graduated response scheme — HADOPI — has already failed miserably, thereby proving the critics right that such a scheme is not workable nor desirable with regards to media sharing on the internet. Why then push for a very similar DEA anyway? Give it another go in a new country, hoping for different results? Apply it to new technology and hope the criticism will go away? To quote Einstein: “Insanity is doing the same thing, over and over again, but expecting different results.”

During the revolutions in the Arab World since December 2010, standing government's fates were determined partly by the ability of their people to communicate via online tools and mobile phones. Whenever an uprising started in a new territory, dictators and government officials scrambled to halt the ability for protestors to communicate in many different ways. Other governments looked on fearfully at how their colleagues were coping or failing to address the challenge posed by the internet, hoping to maybe learn a best-practice or two in digital repression.

The US Government and European Union were quick to respond with all sorts of plans to help the people fighting for reform. In speech after speech, the US Secretary of State Hillary Clinton announced large funds to be made available for online dissidents, resulting in projects such as the Digital Defenders Partnership. The EU responded with its own plan: a No Disconnect Strategy. Both approaches share the idea of supplying activists and bloggers with the tools to circumvent repression by governments. Another common feature is to engage US and EU companies to support the internet freedom efforts and to discourage the sale of surveillance technology to foreign villains. These initiatives may well end up in a cat-and-mouse game, though, where equipment or code developed to increase online freedom of dissidents only prompts cornered governments to react in more aggressive ways to silence dissent.

Unfortunately, these well-meant efforts are viewed skeptically (and with little credibility) by many, considering that efforts against Wikileaks continue to intensify, people are increasingly under threat of being disconnected, citizens are being illegally arrested and more and more public funds are being spent on such unreasonable restraints at home.

To get an overview of these developments in the world, it is worth reading the recent Freedom On The Net 2012 report by Freedom House, a watchdog dedicated to freedom and democracy in the world. The report studies the reactions of 47 nations to challenges posed by the internet and is written by more than 50 researchers, based in the countries that were analyzed. It has been reported widely that – out of these countries – Estonia and the US score the best in the internet freedom rankings.

On the flipside, though, the researchers spotted some alarming trends beyond mere blocking of information, hacking into email accounts or wiretapping communications, which the US and EU initiatives are designed to overcome. For example:

This year’s findings indicate that restrictions on internet freedom in many countries have continued to grow, though the methods of control are slowly evolving and becoming less visible.

While still naming and shaming countries that block and filter information to limit free expression (we’re looking at you, Bahrain, China, Ethiopia, Iran, Saudi Arabia, Vietnam, Syria, Thailand, and Uzbekistan), the report outlines several the following worrying trends:

1. Criminalizing undesirable speech with new laws and subsequent arrests of internet users are popular old school ways of cracking down on those who cause a threat to your power. Especially when the competences gained by new cyber security laws are used against citizens, dissidents can be found more easily and can be detained as terrorists. The report highlights some terrible individual cases, such as:

A Pakistani man was sentenced to death in 2011 for sending an allegedly blasphemous text message via his mobile phone.

A 61-year-old man (in Thailand, red.) was sentenced to 20 years in prison after he allegedly sent four mobile phone text messages that were deemed to have insulted the monarchy; several months into his sentence he died in prison due to illness.

Online services hosting user-generated content are also under increased pressure in these countries. Where the US and EU exempt intermediaries for the speech of their users (see the failed attempts of the US government asking Google to remove the Innocence of Muslims clip), repressive countries simply place the burden of liability on internet companies. Of course, risk averseness ensues and companies are policing their own networks, deleting anything that may be considered undesirable to the dictator. Control by fear at its finest.

2. Propaganda and information manipulation are still alive and well in 2012. Of the countries analyzed in the report, a staggering 14 employ thousands of professional internet commentators to manipulate online discussions. We've covered some of China's efforts. Cuba alone employs 1,000 bloggers. Some more mind blowing examples from the report:

China’s paid pro-government commentators, known informally as the “50 Cent Party,” are estimated to number in the hundreds of thousands, while an Iranian official claimed in mid-2011 that 40 companies had received over $56 million to produce pro-government digital content.

1. Instead of digitally blocking information, 19 of the surveyed countries engaged in physical attacks on those who publish undesirable information. Journalists have had to deal with intimidation and aggression since the dawn of their profession. However, Freedom House reports a new trend:

In a newly emerging phenomenon, bloggers and citizen journalists in a number of countries were specifically targeted by security forces while reporting from the field during periods of unrest or armed conflict. In Kazakhstan, a blogger was reportedly assaulted by police who held a pistol to his head after he uploaded video footage to YouTube that showed local residents protesting a government crackdown.

Of course, this is no different from targeting film crews who report from the field. However, it now seems that whipping out your smartphone during periods of unrest may cause security forces to hold a gun against your head.

4. Surveillance has been constantly increasing over the last two years. The report states:

In the more repressive and technically sophisticated environments, authorities engage in bulk monitoring of information flows, often through a centralized point. Intelligence agencies then gain direct access to users’ communications across a range of platforms—mobile phone conversations, text messages, e-mail, browsing history, Voice over IP discussions, instant messaging, and others. […] In Belarus, Bahrain, Ethiopia, and elsewhere, activists found that their e-mails, text messages, or Skype communications were presented to them during interrogations or used as evidence in politicized trials.

The current US and EU initiatives to promote freedom on the internet seem capable of limiting the effects of surveillance. This could possibly also reduce the number of dissidents who are criminalized for their speech online, as they are more difficult to trace. However, there is little the West can do to stop dictators from classifying undesirable speech as illegal information and introducing harsh criminal sanctions. This is even more true when the West is setting the wrong example by advocating policies such as SOPA/PIPA and ACTA, where far reaching information control was proposed. Admittedly, the type of information targeted is of a different nature, but employing certain technologies to control information gives their use credibility in the information society.

Some of the US and EU projects are only just getting started, but the first steps, strong rhetoric and intention may also play an important role to undermine dictators’ ambitions for information control. Care should be taken, however, that the well meant initiatives do not result in increased physical aggression towards anyone capable of organizing or reporting on uprisings. A cornered foe will fight to the death, so efforts supporting internet freedom should also be combined with diplomacy at the government level and finding a way together. Member of the European Parliament (and my former boss), Marietje Schaake, has drafted a call for a full Digital Freedom Strategy in the EU Foreign Policy, which addresses these issues in detail. Much still needs to be done and understood to ensure next year’s report doesn’t announce further innovations in unnoticeable surveillance and more aggression towards bloggers.

Neelie Kroes, the Vice President of the European Commission and politician in charge of the Digital Agenda, announced the impressive ambitions of the EU to support the ongoing technology revolution in a recent speech in Brussels. Repeatedly, she calls for radical reform of policy and public R&D investment. The speech shows once again that she and her team really understand the current transformation to a networked economy, which brings about “open, agile and collaborative” innovation and research. Kroes wants to accelerate and boost the potential of technology innovation by creating space for “disruptive ideas”. A few snippets:

“I want to try out support for truly open, disruptive innovation in ICT.”

“[…] remember that great innovation isn't about keeping the status quo: it's about challenging it. It's radical, disruptive, and sometimes non-linear – especially for emerging technologies. So let's make space for that in Horizon 2020.”

“We must update our policies and practices for the digital world”

How refreshing is that from a senior government official? Of course, she names and shames some barriers, which she intends to bring down. Notably, she mentions the policy incoherence of EU copyright, where the status quo strangles innovation (if you follow her implied logic from the speech). This is not the first time she mentions that copyright is doing more harm than good. She has criticized the system again and again. And again just the other day. And several more times in unofficial speeches.

It must now be getting obvious — even for the layman — that the copyright system is one of the biggest inhibitors of Mrs. Kroes’ ambitious and forward-looking agenda for positive technological change. Too bad the copyright office of the EU is not in her department, but in the department run by Mr. Barnier, who seems a little more hesitant to enact change. Perhaps it’s because he has a top former IFPI lobbyist working for him? Perhaps Kroes’ frequent mentioning of copyright is an implied call for assistance to her audiences to help change Mr. Barnier’s mind.

I wonder how long it will take for civil society organizations to pick up on these hints. The current public interest in copyright policy after ACTA, SOPA and PIPA can now be called into action again to send a batch of friendly notes to Mr. Barnier, possibly with a few quotes from Mrs. Kroes’ speeches, urging him to develop new copyright legislation which should be discussed in open and transparent forums sooner rather than later. It would be a shame to let governments postpone legislative action until the public interest from the internet freedom movements subsides.

In any case, you may comment on Mrs. Kroes' speech or leave a reply on her blog to show your support and even make some suggestions of your own.

The Dutch Supreme Court (Hoge Raad) has posed some pre-judicial questions to the Court of Justice of the EU regarding the home-copying exception in European copyright legislation — raising significant questions about what is legal under EU rules and how it meshes with how people actually consume music. Of course, all it really seems to demonstrate is just how messy the copyright system is today. When the top judges of a country cannot figure out the seemingly simple question of whether downloading music and films is legal or not — mainly due to a huge patchwork of amendments to copyright law over the years — something needs to change. Drastically. Let’s see if we can make some sense of it:

In essence, the home-copying exception allows people to make copies for non-commercial home uses. Such an exception makes a lot of sense, because these private copies are largely impossible to enforce anyway. A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed “losses” from foregone license fees.

The case in question concerns a group of these blank media manufacturers, who refuse to pay the full levies imposed by the collecting society in charge of the compensation for the home-copying exception. The collecting society considers it fair to charge for “losses” that stem from people downloading unauthorized uploads. You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload (not unlike its policy for marijuana where buying and selling is tolerated, but growing is not). Any uploaded material is therefore often considered to stem from an illegal source. There is a huge political debate about the desirability of this construction in the Parliament.

The Netherlands is one of the few countries that has a system like this, where the end-user is partly taken out of the equation for copyright infringement. This is due to a particularity in European copyright, which is a headache to comprehend, but necessary to understand the confusion of the Court. Here’s a quick summary:

The EU legislator adopted the so called “Copyright in the Information Society” Directive in the year 2001, which was supposed to “adapt legislation on copyright and related rights to reflect technological developments” and make sure all 27 copyright systems in the EU would become more or less uniform. The hope was that this would knock out some of the problems of very different systems, and create a better “single market” for European content.

Of course, no copyright law is complete without the important exceptions and limitations, like the fair-use doctrine in the US. However, in the case of the copyright directive, the exceptions and limitations were optional for Member States, thereby effectively eliminating any chance for a uniform (or “harmonized”) copyright legislation in the EU and thus missing the point completely. Information activist Smari McCarthy explains the resulting chaos well:

The directive outlines 21 different optional exceptions or limitations to the right of reproduction of copyrighted works. Each country implementing the directive can choose to either include or leave out the exception clause. This gives us 2,097,152 different ways to implement the directive.

Now repeat this for the 27 Member States, and you see where this fragmentation exercise is going. Since only a few countries have also implemented this home-copying exception and there has not yet been a legal conflict about it, no jurisprudence exists on which the Dutch court can rely. The exception reads as follows:

Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: […]

[…] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;

As you see, this text does not include any information on whether the fair compensation should be based on only foregone license fees (implying only copies from legal sources), or whether all copying on blank media carriers should be included.

When the collecting society proposed to start charging for copies from illegal sources in 2008, the manufacturers of blank media went to court hoping for a ruling that levies should only be payable for copies which are allowed under the copyright directive, thus only from legal sources (as this would decrease the levy significantly).

If you read through the lines of the courts’ analysis (and if you understand Dutch), I think you can see quite clearly that the judges tried their utmost to find a way to reconcile this copyright exception with the way people share and use works online. The Court states it would like to give rights holders a fair compensation via a levy system for losses from piracy, but it is unsure if EU law allows this. In its questions, the Court proposes some ways of establishing the mechanism for fair compensation and asks the European court whether this would be permissible under law. The questions asked by the Court are rather technical in nature, but here’s a quick summary of the main points (my interpretation, not a literal translation!):

1. Can the home-copying exception be interpreted so that the exception applies to all copies, regardless of whether the original was an authorized source? Or does the exception only apply to copies, which are derived from an original, which does not infringe copyright itself?
2a. Can the three-step test be used to expand the scope of the exception to include all copies?
2b. Is the Dutch construct – where downloading from any source is legal – in conflict with EU law? Would it help to mention that feasible technical tools to counter the making of private copies is not yet available, which may influence your decision regarding the three-step test? […]

Dutch internet lawyer Christiaan Alberdingk Thijm is confused about the Courts’ deliberations:

I find it remarkable that Court contemplates a compensation paid for downloading copyright protected works from an illegal source, but that this does entail that the act of copying of this content is permissible under law. In my opinion, there are simply just two options: either it is permissible to make private copies from an illegal source and we pay the levy, or it is illegal and we don’t pay the levy. I do not agree with the current system either, though, where downloading from illegal sources is permissible but no levies are charged over this.

The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified. Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective. Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task. Finally, the Court may not have been informed about this, but there’s been a fierce quarrel on the amount charged for levies at the EU level, which has raged on for the past 15 to 20 years. Recently a mediator had to be hired to find a way out of this mess.

Apart from total confusion about the copyright system and how it should be applied to the internet, the Court may have also chosen to sidestep the current and hostile politicized debate in the Netherlands, which was met with opposition from many sectors of society. The Court has not given a conclusive ruling in this debate, so now the European Court may rule on whether the Dutch construction is legal. Expect an update in a few years time!