Bitmanagement appealed that ruling, however, arguing that the lower court stopped its analysis too soon. The story there is that such an implied license would require the Navy track concurrent users across its 500k-plus computers it installed the software on, but it appears the Navy didn't bother to track concurrent users at all.

“We do not disturb the Claims Court’s findings. The Claims Court ended its analysis of this case prematurely, however, by failing to consider whether the Navy complied with the terms of the implied license,” the Appeals Court writes.

“The implied license was conditioned on the Navy using a license-tracking software, Flexera, to ‘FlexWrap’ the program and monitor the number of simultaneous users. It is undisputed that the Navy failed to effectively FlexWrap the copies it made,” the Court adds.

And just like that, the dismissal flips entirely and the Appeals Court has now remanded the case to determine damages. Again, Bitmanagement is asking for just under $600,000,000 in damages, given the wide scale of installations the Navy undertook with its software. With nothing tracking how many users concurrently used the software, the Navy doesn't really have any way to argue back that it complied with the implied license.

The real lesson in this is just how messy these sorts of copyright conundrums are. It's reasonable to believe that the Navy thought it was doing the right thing, even if it failed to comply with the implied license by monitoring concurrent users. But it's also reasonable for a software provider, with no evidence providing nuance, to simply see 500k-plus installations as mass copyright infringement.

But, in the eyes of the same United States that likes to put out reports on how terrible other countries are in respecting intellectual property rights, I guess the United States Navy is just a bunch of pirates now.

But Google's Street View hasn't been warmly welcomed everywhere. In Germany -- a country with a long history of pervasive surveillance by government agencies -- Google’s mapping project hit a roadblock. In an effort to comply with German privacy laws, Google worked with data protection authorities to ensure all requirements were met before its cars and cameras hit the road.

Restrictions on data collection have resulted in Germany being one of the least-mapped countries in Europe.

After meeting with considerable public opposition to Google's street mapping, Google allowed residents to opt out. This resulted in opted-out locations being blurred in Street View, providing owners with more privacy inside Street View than they enjoyed outside it.

Decisions to be made by Google:

• Should the normal lack of an expectation of privacy in publicly-viewable areas override local restrictions on data-gathering?
• Is an opt-out plan cost effective (as compared to simply not mapping at all in restricted areas)?
• Do "holes" in map coverage increase risks to drivers and travelers? 
• Is there a possibility the opt-out function could be abused by trolls and/or opponents of Google's Street View project?

• Does following local privacy laws possibly make Google's Street View less useful than competing products that may not follow laws or that receive more deference from local authorities?
• Is the mapping project likely to run into greater resistance in the future, given world legislators' ongoing concerns with lax privacy laws?
• Could Google be considered culpable for harm resulting from incomplete maps, especially when coupled with Google's built-in live navigation software?
• What tools does Google have at its disposal to push back against legal restrictions?

The opt-out program also led to an unfortunate, unforeseen, and completely unintended consequence. A small group of rogue "transparency advocates" sought out "blurred" houses and egged them. Some of those who opted out were also treated to handwritten notes informing them that Google was "cool." Very little actual damage was done.

Despite the early opposition -- which resulted in Google shutting down its attempted mapping of Germany in 2011 -- Google has taken a second run at the country and its resistance to the Street View project. Its site lists a large number of German cities and towns that have recently been mapped by Google during its latest attempt, which began in July 2020 and will wrap up early next year. Google "removes" German residences from Street View by request (2010)

As the various countries struggle to resolve these problems, it is no surprise that they are coming up with very different approaches. These are usefully summed up in a new post on the Kluwer Copyright blog. For example, France is implementing the Copyright Directive by decree, rather than via ordinary legislative procedures. As Techdirt reported, the French government is pushing through an extreme interpretation that ignores requirements for user protections. Germany, by contrast, is bringing in wide-ranging new law that contains a number of positive ideas:

a new "minor use" exception that would legalise minor uses of third party works on online platforms.

In addition, the proposal also introduced the ability for uploaders to "pre-flag" any uploads as legitimate, protecting them from automated blocking.

It limited the scope of the requirement for platforms to obtain licences to "works that users typically upload". Platforms can meet their best efforts obligation to obtain authorisation by approaching collective management organisations and by responding to licence offers from rightsholders with a representative repertoire.

There is an irony here. One of the main reasons for introducing the Copyright Directive was to make copyright law more consistent across the EU. Article 17 is causing copyright law there to diverge even more.

The Kluwer Copyright blog has two more recent posts about Article 17, written by Julia Reda and Joschka Selinger. They look at an aspect of upload filters that could be of crucial importance in the case brought before the Court of Justice of the European Union (CJEU) by Poland, which seeks to have upload filters removed from the Copyright Directive.

On several occasions, the CJEU has thrown out blocking injunctions for violating the service providers' freedom to conduct a business. In a recently published study on behalf of German fundamental rights litigation organization Gesellschaft für Freiheitsrechte e.V., the authors of this blog post argue that when ruling on the request for annulment of Article 17, the CJEU will have to balance all relevant fundamental rights, including the freedom to conduct a business. In this blog post, we will put the spotlight on this under-examined fundamental right. In part 1, we will discuss its relevance for the court case pending before the CJEU. We will examine the ways in which Article 17 places new burdens on online platforms that are fundamentally different from the voluntary copyright enforcement schemes employed by some of the larger platforms today. In part 2, we analyse those new platform obligations in light of the CJEU case law on the freedom to conduct a business and discuss the role of the proportionality mechanism included in Article 17 (5). We find that the legislator may have grossly underestimated the impact of Article 17 on the freedom to conduct a business.

The basic argument is simple. During the debate on the Copyright Directive, its supporters were deeply dishonest about how it would work in practice. They repeatedly claimed that it would not require upload filters, and denied that it would be hard to implement in a way that was compatible with existing EU laws. Unfortunately, the politicians in the European Parliament were taken in by these claims, and passed what became Article 17 without amendments.

But the case before the CJEU gives another chance to point out the truth about upload filters. The fact that they only exist for things like music and video, not all copyrightable material as Article 17 requires; that those don't work well; and that even these flawed systems can only be afforded by Internet giants like Google. In practical terms, this means that smaller companies that allow user uploads will be unable to comply with Article 17, since it would require the use of technology that would be expensive to develop or license, and which wouldn't even work properly. As such, a key argument in the CJEU case will be that upload filters represent an unjustified interference in the freedom to conduct a business in the EU, and should be thrown out. Let's hope the CJEU agrees.

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German Chancellor Angela Merkel blasted Twitter’s decision to ban U.S. President Donald Trump.

“The right to freedom of opinion is of fundamental importance,” Steffen Seibert, Merkel’s chief spokesman, told reporters in Berlin on Monday, according to Reuters.

“Given that, the chancellor considers it problematic that the president’s accounts have been permanently suspended.”

Of course, this totally leaves out the fact that Germany is among the countries leading the charge in forcing internet companies to remove "dangerous" or "terrorist" content. I mean, it was only three years ago when the infamous NetzDG law went into effect, giving social media companies 24 hours to remove "obviously illegal" content, with threats of fines up to €5 million for employees of these companies if they magically fail to delete such content.

As we've pointed out, this is an impossible standard to meet, and it's likely to get worse. The law has been a total dumpster fire with websites rushing to remove all sorts of content (including criticism of Angela Merkel...), to avoid facing penalties under the law.

On top of this, Germany has been among those pushing for new rules, such as the Terrorist Content Regulation that would give companies only an hour to remove "terrorist content."

So it seems a bit rich for Merkel to now whine when Twitter shuts down Trump's account. Of course, I've heard two semi-defenses of Merkel's statement here. The first is that she's distinguishing between removing specific tweets and shutting down the full account. And the second is that in the EU, they distrust corporate power, but are more trusting of government power. So they're okay if the government decides to block certain content, but not comfortable with companies doing the same.

Indeed, the next part of Merkels' statement seems to highlight that both of those claims explain this weird cognitive dissonance:

Seibert said that, while Twitter was right to flag Trump’s inaccurate tweets about the 2020 U.S. election, banning his account altogether was a step too far. He added that governments, not private companies, should decide on any limitations to freedom of speech.

But... that doesn't hold up to any amount of serious scrutiny at all. After all, even if it is the government that passed the NetzDG law, and is working on other laws like the Digital Services Act and the Terrorist Content Regulation, every one of those laws then basically hands off the decision making to those companies. They never pick and choose which content is bad, they just tell the companies that if they mess up, they may face huge fines and/or criminal prosecution. That leads to massive over-censorship.

Indeed, it creates such a liability for companies that they will frequently overblock to avoid that liability. It's just not worth it.

So, the whole thing is ridiculous. It's yet another version of the "nerd harder" response from politicians, claiming that this kind of blocking is a bridge too far, but that other kind of blocking is fine, and if you mess it up in either direction (blocking too much or too little) you'll get in trouble.

This is what's so frustrating in all of this. People who have no idea how all of this works seem to expect that there's some magic way to do the perfectly correct amount of moderation. They're wrong. There's always, always, always, going to be disagreements about the proper amount of moderation, and Merkel's been part of the problem in pressuring companies to take down too much. It's quite ridiculous for her now to complain that companies are doing what she and her government have been demanding all along.

Well, the first resolution of one of those cases is out and it's a full win for Lemonade. Note that much of the text in the quotes below is from a press release, but the factual aspects of it still stand.

Deutsche Telekom has owned the French trademark on the color pink, or magenta, in the field of financial services (known as ‘class 36’) since it registered this color-mark 25 years ago. No longer. In a ruling issued on December 15, 2020, French authorities found that “there is no evidence of genuine use of this mark for the contested services” by Deutsche Telekom, confirming that “the owner of the contested mark should therefore be deprived of his rights.”

“The French decision hopefully signals a turning point in the battle to stop trademark trolling by Deutsche Telekom and T-Mobile,” said Daniel Schreiber, Lemonade CEO and cofounder. “In recent years DT has banned the use of pink by a technology blog in the US, an aspiring watchmaker seeking crowd-funding on Indiegogo, an invoice processor in Holland, a nine person IT shop in England. That’s nuts. When they tried to extend their monopoly over pink to the insurance industry, we felt it was time to fight back. If some brainiac at Deutsche Telekom had invented the color, their possessiveness would make sense. Absent that, the company’s actions just smack of corporate bully tactics, where legions of lawyers attempt to hog natural resources – in this case a primary color - that rightfully belong to everyone.”

Again, press releases quoting their own subjects in this case, but the points still stand. What's notable about this is two things. First, DT has gotten away with its bullying over the color magenta, largely successfully, chiefly because nobody ever fights back. As Schreiber notes above, this represents a very rare pushback instead. And, perhaps more importantly, Lemonade also notes that it's going to pursue this in other European markets as well.

The whole thing is monumentally dumb on the part of DT. To wield a trademark in an industry in which they do not participate in order to smack around small companies over the use of an extremely common color has nothing to do with how trademark laws are supposed to work. If ever there were a trademark bully crying out to get the tables turned on it, it sure is this one. And it's nice to see Lemonade has gotten its first win.

a web-based email service which does not itself provide internet access, such as the Gmail service provided by Google, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an 'electronic communications service'

Despite this, in the Tutanota case the Cologne court applied a German law for telecoms. Tutanota's co-founder Matthias Pfau explained to TechCrunch:

"The argumentation is as follows: Although we are no longer a provider of telecommunications services, we would be involved in providing telecommunications services and must therefore still enable telecommunications and traffic data collection," he told TechCrunch.

"From our point of view -- and law German law experts agree with us -- this is absurd. Neither does the court state what telecommunications service we are involved in nor do they name the actual provider of the telecommunications service."

Given that ridiculous logic, it's no surprise that Tutanota will be appealing to Germany's Federal Court of Justice. But in the meantime the company must comply with the court order by developing a special surveillance capability. Importantly, it only concerns one account -- allegedly involved in an extortion attempt -- that seems to be no longer in use. Moreover, as the TechCrunch article explains, the monitoring function will apply to future emails that the account receives. And even then, it will only deliver any unencrypted emails that are present, because Tutanota is not able to decrypt users' emails that apply end-to-end encryption, which is entirely under the user's control, not Tutanota's.

That means the practical effect of this court order is extremely limited: to future unencrypted emails of just one quiescent account. But independently of its real-life usefulness, this order sets a terrible precedent of a court ordering an Internet company to insert what amounts to a backdoor in an account. That's why it is vital that Tutanota's appeal prevails -- for both the company, and for the EU Internet as a whole.

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But just as supporters insisted that upload filters would not be obligatory -- and then afterwards changed their story, admitting they were the only way to implement the new law -- so people who insisted that memes and parodies would still be allowed are now demanding that they should be banned. Copyright companies were the first to make that shift, and now a group of 576 German artists have sent a letter to the German government and politicians complaining about the proposed implementation of the Copyright Directive in their country (original in German). In particular, they are appalled by:

the introduction of all kinds of exceptions, some of which are so outrageously contrary to European law, that we can only shake our heads: up to 20 seconds of music, remixes, mash-ups, samples etc. -- everything should be freely usable, without a license.

In other words, precisely the things that supporters of the EU Copyright Directive promised absolutely would be freely usable, without a license, when experts warned that the new legislation could threaten these legal activities. Now these artists are demanding that the German government ignore all those assurances that user rights would indeed be preserved.

However, as Heise Online reports, not all German artists are so selfish in their desire to take away what few rights ordinary members of the public have in the use of copyright material for memes, remixes and the like. A group of 48 top German artists using social media to great effect, and who together have around 88 million followers on YouTube, Instagram, Twitter, Twitch and TikTok, take a very different view of the German government's proposed implementation (original in German):

Article 3 paragraph 6 describes the public reproduction of a tiny excerpt of works protected by copyright and parts of works by the user of a service provider, for non-commercial purposes or where insignificant income is involved. In these circumstances, thanks to Article 3 Paragraph 6 it would be legal to use up to 20 seconds of a film, up to 20 seconds of a sound track, up to 1,000 characters of text and a picture of up to 250 kilobytes without having to purchase a license, since the rightsholders are compensated for the usage via the service provider. We content creators expressly support this rule.

This so-called "legalization of memes" shows that the politics of [the German government] is close to how reality operates. What defines our culture is always evolving, also through digitization. Memes have been part of our culture for many years and are finally recognized by this ministerial draft.

The statement from the 48 social media artists also includes a neat encapsulation of why their position is so different from the 576 artists whining about memes and mashups:

we would like to point out that content creators are simultaneously users and owners of copyrights, i.e. [they are both] creatives and companies in the cultural industry.

The 576 artists who wish to deny an Internet user the right to draw on copyright material for memes, parodies, mashups etc. forget that they too draw constantly on the works of others as they create -- sometimes explicitly, sometimes more subtly. To cast themselves as some kind of creative priesthood that should be granted special privileges not available to everyone else is not just unfair, but insulting and short-sighted.

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Julia Reda reported in an article on Heise Online back in July that the initial proposal from the German government had some attempts to limit the damage from upload filters (original in German). For example, it introduced the sensible idea of letting users "pre-flag" as legal the material that they upload. In this way, things like memes, parodies or material released under a Creative Commons license would not be blocked by the upload filters. As Reda explained, the idea was not without difficulties, but at least it provided a way for uses of copyright material that people believed to be legal to be signposted before they were blocked automatically. In a depressing turn of events, the latest proposal from the German government ditches this innovative approach almost completely. Reda writes on Netzpolitik.org (original in German):

According to the Ministry of Justice's new plans, [online] platforms should be obliged to check content for copyright infringements in real time, while it is being uploaded. Only if this real-time check detects copyright-protected content for which the platform has not acquired a license, will users then be given the option of either marking the content as permitted or canceling the upload process. In the first instance, potential copyright violations should not be published.

...

In such situations, the new draft law does not offer any protection against erroneous bans. The elimination of the option to mark uploads as legal as a precaution means anyone who uploads a legal quote or a parody, for example, can no longer protect themselves against future blocking requests from rights holders. Users can only complain afterwards if content has already been blocked. However, this approach does not even meet the requirements of Article 17 itself, which requires that legal content is not blocked in the first place.

Reda goes on to note that there are many cases of perfectly legal uploads being blocked by unintelligent filters like Google's Content ID, because companies have falsely claimed rights to material that has been released freely, or under a Creative Commons license. It is also easy to imagine average users being intimidated when their uploads are immediately blocked by the system, and naturally concerned that they what they have done is seriously illegal in some way. Unless they are well versed in copyright law, many people will simply cancel the upload of their witty meme or parody, and the world will be a poorer, more boring place.

It's pretty outrageous that the German government is ignoring the explicit requirement of the new law that legal content should not be blocked in an automatic fashion. On the plus side, this flagrant omission could make it more likely that a legal challenge to the EU Copyright Directive at the EU's top court -- something that is bound to come -- would be successful, and lead to Article 17 being struck down completely.

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The latest law has a supposedly noble goal, but there's nothing noble about the propelling force behind it. The EFF reports another law giving the government even more censorship powers has been passed, thanks to Erdogan's inability to handle criticism.

[A] new law, passed by the Turkish Parliament on the 29th of July, introduces sweeping new powers and takes the country another giant step towards further censoring speech online. The law was ushered through parliament quickly and without allowing for opposition or stakeholder inputs and aims for complete control over social media platforms and the speech they host. The bill was introduced after a series of allegedly insulting tweets aimed at President Erdogan’s daughter and son-in-law and ostensibly aims to eradicate hate speech and harassment online.

So, it obviously isn't there to eradicate all hate speech and harassment. It's there to eradicate hate speech and harassment targeting Erdogan and other members of the government. A law like this being implemented by this government -- one with a long history of silencing/arresting/jailing critics -- will only be used to target citizens who aren't thrilled with their authoritarian "representatives."

Of course, the Turkish government won't bear the expense of keeping the country's internet free of Erdogan-bashing. That will rest on social media platforms. Once served with an order to remove content that "violates personal rights" and/or the "privacy of personal life," platforms will have 48 hours to take it down. If they don't, they'll face fines and -- in an unprecedented move -- the throttling of their bandwidth by up to 90% via local internet service providers.

To better facilitate censorship of Erdogan-related criticism, social media platforms will be forced to establish a local presence to expedite takedowns.

Once ratified by President Erdogan, the law would mandate social media platforms with more than two million daily users to appoint a local representative in Turkey…

The EFF's report highlights another disturbing aspect of the new law: it was inspired by legislation in countries that respect personal freedom and expression far more than Turkey has under Erdogan.

When introducing the new law, Turkish lawmakers explicitly referred to the controversial German NetzDG law and a similar initiative in France as a positive example.

Germany's "hate speech" law has been a solid generator of collateral damage since its inception. German lawmakers may believe they've ushered a new era of online enlightenment with the law, but it's inspired a number of censorial governments to create their own versions and point to Germany when anyone asks why they're silencing dissent and criticism. EFF says thirteen countries, including Venezuela, Malaysia, Russia, and the Philippines have all cloned NetzDG to better serve the continued restriction of their citizens' free speech rights.

And while Germany's law has effectively killed satire and chilled speech, at least it contains some limited restraints on the government via the court system. In Turkey (and other countries run by authoritarians), these checks and balances don't exist. Turkey's adoption of German legal principles takes the bad parts of the law and makes them even worse.

The laws place more pressure on platforms to be responsive to "eye of the beholder"-type demands to remove "hate speech." This, of course, leads to over-blocking. Every so often, a different branch of the government is asked to weigh in. And when it does, it finds the supposedly criminal content isn't actually criminal.

As is the case with most vague speech regulations, collateral damage is expected. It's so expected it almost appears to be acceptable to regulators. But even the vaguest of speech laws can't explain what's happening here.

German Interior Minister Horst Seehofer announced Sunday that he will launch a criminal complaint into the daily newspaper Tageszeitung (commonly referred to as taz) after it published a column criticizing the police.

Seehofer cited the anti-police violence in Stuttgart on Saturday night as an example of why such rhetoric should be cracked down on.

Citing anti-police protests as a reason to engage in the policing of speech police don't like isn't really going to endear the government to the people already angry at it for letting local law enforcement become the unaccountable mess it is. While the Interior Minister seems pretty upset journalists are mocking police officers, he apparently can't be bothered to cite the violation he's seeking to charge these journalists with.

Here's what the journalists said in an article the newspaper has since apologized for publishing:

The article in question was published on June 15 with the headline "All cops are berufsunfähig (incapable of working)" — a play on a slogan used by groups protesting police violence — by columnist Hengameh Yaghoobirafah.

The article discussed the argument for abolition of the police and suggested that, since they are "trash people," they instead could be "thrown in the landfill."

All in all, pretty mild stuff, especially when placed in the context the Interior Minister chose to frame his frame-up of this journalist. Calling cops "garbage" is pretty low on the invective scale and there doesn't appear to have been anything in the article suggesting people should engage in violence against cops, no matter how "trash" they are. When there are actual riots underway, it doesn't make much sense to claim a few carelessly used words are worthy of a criminal prosecution. And there doesn't appear to be anything in Germany's speech laws that would justify a criminal complaint being brought.

Free speech isn't all that free in Germany. But there are some protections in place for journalists. And nowhere in the laws does it say criticizing the government is a criminal offense. Maybe the Minister thinks this is "hate speech," but that's supposed to be reserved for the targeting of races, religions, and sexual orientation. It's not supposed to protect the government from being called "trash." Or maybe the Minister is going to claim it's a form of terrorism as he stares deeply and thoughtfully into the rear view mirror containing a single violent riot that spun out of a massive police "drug check" at a party in Stuttgart.

Whatever the case is, it would seem it's headed for a dismissal once a judge gets to take a look at it. But until that happens, a few journalists are going to see their lives upended because one government official has been offended by proxy. That's a trash move, Minister.

After the preliminary assessment, in February 2019 the German competition authority went on to forbid Facebook from gathering information in this way without voluntary permission from users:

(i) Facebook-owned services like WhatsApp and Instagram can continue to collect data. However, assigning the data to Facebook user accounts will only be possible subject to the users' voluntary consent. Where consent is not given, the data must remain with the respective service and cannot be processed in combination with Facebook data.

(ii) Collecting data from third party websites and assigning them to a Facebook user account will also only be possible if users give their voluntary consent.

If consent is not given for data from Facebook-owned services and third party websites, Facebook will have to substantially restrict its collection and combining of data. Facebook is to develop proposals for solutions to this effect.

Naturally, Facebook appealed against this decision, and the Düsseldorf Higher Regional Court found in its favor. However, as the New York Times reports, the Federal Court of Justice, which monitors compliance with the German constitution, has just reversed that:

On Tuesday, the federal court said regulators were right in concluding that Facebook was abusing its dominant position in the market.

"There are neither serious doubts about Facebook's dominant position on the German social network market nor the fact that Facebook is abusing this dominant position," the court said. "As the market-dominating network operator, Facebook bears a special responsibility for maintaining still-existing competition in the social networking market."

Needless to say, Facebook vowed to fight on -- and to ignore the defeat for the moment. The case goes back to the lower court to rule again on the matter, but after the Federal Court of Justice guidance, it is unlikely to be in Facebook's favor this time. There is also the possibility that the case could be referred to the EU's top court, the Court of Justice of the European Union, to give its opinion on the matter.

Assuming that doesn't happen, the ruling could have a big impact not only on Facebook, but on all the other Internet giants that gather personal details from third-party sites without asking their visitors for explicit, voluntary permission. Although the ruling only applies to Germany, the country is the EU's biggest market, and likely to influence what happens elsewhere in the region, and maybe beyond. One bad outcome might be even more pop-ups asking you to give permission to have your data gathered, and be tracked as you move around the Internet.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

While the German PM made a lot of noise about being surveilled, Germany's intelligence agencies continued to perform both domestic and foreign surveillance, resulting in legal challenges to the country's surveillance programs. The German Constitution restricts domestic surveillance but doesn't have nearly as much to say about subjecting foreigners to intrusive snooping. Foreigners are usually considered fair game -- non-recipients of protections given to citizens of whatever country does the spying.

One legal challenge dead-ended when a German court decided a service provider couldn't sue on behalf of its spied-upon users. But others continued, and there's good news to report.

The German government must come up with a new law regulating its secret services, after the country's highest court ruled that the current practice of monitoring telecommunications of foreign citizens at will violates constitutionally-enshrined press freedoms and the privacy of communications.

The ruling said that non-Germans were also protected by Germany's constitutional rights, and that the current law lacked special protection for the work of lawyers and journalists. This applied both to the collection and processing of data as well as passing on that data to other intelligence agencies.

The recognition of the extension of domestic rights to foreign citizens is the end result of a lawsuit filed by journalists against the German government. The lawsuit alleged BND's all-encompassing spying made targets out of everyone, including those normally protected by their own countries' laws preventing the surveillance of protected speech.

The German government argued that foreigners are not protected by anything -- not even the rights granted to them by their governments. The Constitutional Court disagreed, finding that allowing the BND (Germany's NSA equivalent) cannot be allowed to unilaterally decide who could be targeted by its surveillance programs. Current "best practices" allow the BND to roll up on the nearest internet trunk to collect everything: communications routed through a Frankfurt interchange that handles data flowing from France, Russia, and the Middle East.

If the government wishes to continue hoovering up everything flowing through Frankfurt (and internet exchanges elsewhere in the country), it will need to to codify the process with some guardrails in place -- guidelines that will hopefully include some respect for the rights of foreign citizens, including journalists, activists, and lawyers who generally cannot be targeted by their own countries.

Now, all everyone has to do is wait. The German government has until 2021 to amend the law. Presumably, the BND will do whatever it can to appeal this decision that extends domestic rights to foreigners. And it will likely delay any modifications as long as possible to allow for maximum snoopage. Bureaucratic delays aside, this ruling sends a message: the stuff that was considered just normal stuff for maximum national security is no longer acceptable. The judicial system in Germany is unwilling to sacrifice foreigners' rights for the surveillance whims of an agency that hasn't shown a compelling reason why it should have access to everything people from other countries talk about.

The folks over at Bellingcat have done their open source intelligence investigation thing, and provided a ton of evidence to show that Badin almost certainly is part of GRU... including the fact that he registered his 2018 car purchase to the public address of a GRU building. This is not the first time this has happened. A few years back, Bellingcat also connected a bunch of people to the GRU -- including some accused of hacking by the Dutch government -- based on leaked car registration info.

There's much, much more in the Bellingcat report, but the final paragraph really stands out. Bellingcat also found Badin -- again, a hacker who is suspected in multiple massive and consequential hacks, including of email accounts -- didn't seem to be all that careful with his own security:

The most surreal absence of “practice-what-you-breach” among GRU hackers might be visible in their lackadaisical attitude to their own cyber protection. In 2018, a large collection of hacked Russian mail accounts, including user name and passwords, was dumped online. Dmitry Badin’s email — which we figured out from his Skype account, which we in turn obtained from his phone number, which we of course got from his car registration — had been hacked. He had apparently been using the password Badin1990. After this, his email credentials were leaked again as part of a larger hack, where we see that he had changed his password from Badin1990 to the much more secure Badin990.

Yes, the password for at least one of his email accounts... was apparently his own last name and the year he was born. The cobbler's kids go shoeless again.

The first concerns the UK. It's one of the three nations that had to sign up to the UPC agreement for it to come into force. A big question was whether it could or would do so after brexit. The answer turns out to be "no". The second problem comes from Germany, where the country's constitutional court has ruled as follows:

The Act of Approval to the Agreement on a Unified Patent Court ("the Act of Approval") to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the [German] Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.

However, it's possible that can be solved by the Bundestag -- German's parliament -- holding another vote which does attain the two-thirds majority. There is likely to be pressure to do so because elsewhere the ruling by Germany's constitutional court (full translation from FFII.org) is helpful to supporters of the UPC, for reasons explained by The Register:

the German Constitutional Court effectively rejected the other arguments against the UPC's validity. In essence, they were: that because the UK is exiting the EU that the UPC is no longer valid because the UK was one of three compulsory signatories to it (the other two being France and Germany); and that the European Patent Office (EPO) is insufficiently independent because of "reforms" made by its former president Benoit Battistelli that concentrated power in his hands.

Importantly, the first point means the refusal of the UK to sign up is not regarded as an issue now that it has left the EU. As Florian Mueller writes on his blog: "there is widespread consensus that re-ratification (subsequently to renegotiation) is a question of when, not if." Although FFII.org agrees the patent industry will push hard to get the UPC implemented, it notes there are yet more bumps in that particular road:

the German Constitutional Court still have to decide soon over 4 other complaints, where complainants have raised the issue that the European Patent Office (EPO) cannot be brought to court for maladministration, in breach of the "rule of law" principle. If the court finds the EPO not in line with fundamental rights, this might have a bigger impact over the current system.

This point relates to the central role that will be played by the EPO in issuing the new unitary patents, valid across the EU. The EPO has long been a controversial institution: it is not part of the EU, its premises enjoy extraterritoriality, and its executives are granted diplomatic immunity that effectively places them outside the law. If allegations of maladministration cannot be brought to EU courts, that seems like a recipe for disaster. Irrespective of those particular questions, The Register article raises a more fundamental one: is it really worth bothering with a plan that was born decades ago? Both the unitary patent and UPC reflect a very different world from the one we now inhabit, which no longer regards more powerful patents as an obvious blessing.

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The proposal states that the new ancillary copyright does not apply to hyperlinks, or to "private or non-commercial use" of press publishers' materials by a single user. However, as we know from the tortured history of the Creative Commons "non-commercial" license, it is by no means clear what "non-commercial" means in practice. Press publishers are quite likely to insist that posting memes on YouTube, Facebook or Twitter -- all undoubtedly commercial in nature -- is not allowed in general under the EU Copyright Directive. We won't know until top EU courts rule on the details, which will take years. In the meantime, online services will doubtless prefer to err on the side of caution, keen to avoid the risk of heavy fines. It is likely they will configure their automated filters to block any use of press publishers' material that goes beyond the extremely restrictive limits listed above. Moreover, this will probably apply across the EU, not just in Germany, since setting up country-by-country upload filters is more expensive. Far easier to roll out the most restrictive rules across the whole region.

Before the new laws go into operation, people can submit their views to the German government at the email address

konsultation-urheberrecht@bmjv.bund.de

until 31 January 2020. Now might be a good time to remind the German lawmakers -- politely -- that supporters of the EU Copyright Directive insisted repeatedly that memes were "exempt" and "safe" under the new rules. Germany's unbalanced and extreme implementation shows that simply isn't true, and means that memes and mashups are most definitely under threat -- just as many of us warned.

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Earlier this fall, Mark Jeftovic, from EasyDNS had a blog post about how a German copyright troll, called Fechner Law, had threatened criminal charges against the company if it didn't take down an allegedly infringing URL and pay a significant cash settlement. Jeftovic responded to Robert Fechner, the young lawyer behind Fechner Law, and pointed out that EasyDNS is merely the domain registrar, and doesn't host the site in question. Fechner, somewhat obnoxiously hit back by saying that German law required EasyDNS to at least turn over the information about the website owner or face criminal charges -- even adding on "additional damages due to your uncooperative and unlawful behaviour will be claimed."

Dear Mr Jeftovic,

I appreciate your alleged concern for your users’ privacy.

Nonetheless, according to OLG Frankfurt a. Main, Urteil v. 22.8.2017, Az. 11 U 71/16 you have to provide us at least with a name and e-mail of the infringer.

If you fail to comply with the law, further proceedings will be to file a criminal complaint against you in order to acquire this information on the basis of § 14 II TMG.

In this case, additional damages due to your uncooperative and unlawful behaviour will be claimed.

We await your reply until 20.09.2019.

Sincerely,

Rechtsanwalt Robert Fechner
FECHNER LEGAL

Jeftovic proceeded to point out that Canada, where he is based, is not Germany (who knew?) and thus was not subject to whatever interpretation of German law Fechner believed was relevant here:

Mr. Fechner,

That is all very interesting.

It appears that you do not understand that we are a domain registrar. We are not the alleged copyright infringer. This is not our website. We are not even hosting the website. My company, easyDNS Technologies, Inc., must comply with Canadian privacy law that, in these circumstances, prohibits the disclosure of customer information absent a Court order that is enforceable in Ontario, Canada.

My company must also comply with Canadian copyright law. There is a process to be followed under the Copyright Act (see s. 41.25) if you are actually interested in having the notice provided to the customer and the allegedly infringing photograph taken down. I suggest you follow that process.

Your threat of criminal sanction against a law-abiding passive intermediary is unethical and should be met by your judicial system with serious concern.

We did not receive any of your earlier correspondence. Your letters appear to have been sent by email to [redacted]/@myprivacy.net. (MyPrivacy.net Ltd. is a service that protects the public disclosure of registration details on the “whois” registry.) MyPrivacy.net is not the owner of the website. The email address, [redacted]/@myprivacy.net, also seems to contain an error (there is a / in the address). Most likely the emails didn’t go anywhere. We urge you to consult a Canadian lawyer to help you understand the privacy and copyright regimes that apply here.

- mark

Mark tells me that Fechner has not replied to this email, but this kind of blustering threat letter seems all too common these days from copyright trolls. It seems that, despite their pretend adherence to being all about "law and order," when it suits their purposes (i.e., shaking people down for money), they don't much care about the law beyond that it lets them sound scary to people who aren't knowledgeable enough about the law. This is, as Mark notes in his own email, quite unethical.

The open and jointly developed standards of the Internet and open interfaces are the principles from which we advance the digitisation of Germany. It is only through openness that competition can be created; only through openness can new players in competition challenge the top dogs. This is why the following will apply to all (public) digitisation projects in Germany in the future: the awarding of contracts and funding will be subject to compliance with the principles of open source and open standards. Software financed by public funds should serve all citizens. In addition, free and open APIs should facilitate access for independent developments.

That's an impressive hit-rate for the "opens": openness, open interfaces, open source, open standards. Also thrown in for good measure is the idea that publicly-funded code should be available to everyone -- presumably as open source. Elsewhere in the document, the Digital Charter speaks approvingly of open data and open educational resources (OER), and promises to create an "open public repository" of re-usable digital components. On the downside, the document also includes the usual platitudes about blockchains, AI, 5G and "smart cities", as well as rolling out tired buzzwords such as "agility", "sandboxing" and "decentralization".

Nonetheless, the emphasis on openness in all its forms is striking and thoroughgoing. The Digital Charter may not commit the party to doing anything concrete very soon. But it's a clear and welcome sign that openness has entered the mainstream to such an extent that even the fuddy-duddies get it.

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Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed -- so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.

The new law turned social media companies into ATMs with its demand that something as nebulous as "hate speech" be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.

It's time to cash out.

Facebook has been slapped with a fine of over $2 million by Germany for “under reporting” complaints it receives about alleged “illegal” online content.

Whoops. I guess that's the sort of thing that happens when a.) the law is uber-vague about what constitutes "hate speech" and b.) gives you only 24 hours to do something about it. This is the main complaint by Facebook. The law "lacks clarity." Nevertheless, demands for something to be done have been made, therefore something must be done, "clarity" notwithstanding.

Facebook has responded. It has tried to do what the German government demands, even without helpful things like narrow definitions or realistic turnaround time. This report shows the social media behemoth has fielded 1,700 complaints from the German government over the last half of 2018. The claim that it hasn't complied with reporting requirements is absurd, given the lack of guidance from the German government.

As Mike Masnick has pointed out on multiple occasions, moderation at scale is difficult. It becomes impossible when dozens of competing interests push for expedient moderation of content not clearly defined by the laws Facebook is now subject to. The thing is, it doesn't matter to these governments. They just want a scapegoat with a full wallet, and Facebook certainly fits the bill. So we get what we have here: a law that nukes lawful content while still extracting cash from Facebook's coffers. Win-win, I guess, if that's all Germans expect from their government.

Government officials in Germany are reportedly mulling a law to force chat app providers to hand over end-to-end encrypted conversations in plain text on demand.

According to Der Spiegel this month, the Euro nation's Ministry of the Interior wants a new set of rules that would require operators of services like WhatsApp, Signal, Apple iMessage, and Telegram to cough up plain-text records of people's private enciphered chats to authorities that obtain a court order.

This is a move designed for efficiency, not security. German law enforcement is limited to pulling communications from seized devices currently -- one of the few places where encrypted communications can be found in plain text. Of course, device encryption is a thing these days, so this option is rapidly becoming about as productive as demanding tech companies hand over communications they don't actually store in plain text.

Something's got to give and it seems it won't be the government doing any compromising. But it won't be an easy push for anti-encryption legislators. Opponents within and without the government are expected to push back hard on this dangerous idea.

The new rules are set to be discussed by the members of the interior ministry in an upcoming June conference, and are likely to face stiff opposition not only on privacy grounds, but also in regard to the technical feasibility of the requirements.

As is always the case when encryption is on the line, those pushing for backdoors are claiming this not-all-that-new method of shielding stuff from prying eyes (the government's included) has done little but allow criminals and terrorists to operate with impunity. And as is always the case when these claims are made, zero evidence is presented that supports these theories.

One fact, however, cannot be ignored: a handful of European governments have pitched encryption backdoors over the past several years. But so far, not a single one has managed to actually implement such a mandate.

One person who may have helped to bring that about is the YouTuber Rezo. Shortly before the EU vote, he released a 55-minute "personal rant" entitled, "The destruction of the CDU" (in German). In its first week, it had been viewed over 12 million times, and attracted over 180,000 comments. Despite its title, it is not just an anti-CDU polemic, but details the failure of all the mainstream German parties to address key issues -- notably the climate crisis, but also poverty, German support for US militarism, and Article 13. It urged German viewers to vote -- but not for the CDU, CSU, SDP or the extreme right-wing AfD. A few days later, over 90 fellow YouTubers joined Rezo in making the same call in a shorter video (in German).

The general view seems to be that the action of these top YouTubers probably caused many more young Germans to think and talk about the issues raised by the elections for the European Parliament, and then to go out and vote, than anything in the country's history. Against a background of general cynicism and lack of political engagement in the EU, you might expect this initiative to be celebrated as an amazing achievement, and something to be emulated in future elections.

Nope.

Here's what Annegret Kramp-Karrenbauer, leader of the CDU, said about those YouTubers who offered their views on which party people should vote for:

What would actually have happened in this country, if a group of 70 newspaper editorials had made a joint appeal two days before the election: "please do not vote for the CDU or the SPD". That would have been a clear case of spin before the election, and would have led to heated debates in this country. And the question arises with regard to the issue of spin: what exactly are the rules from the analog domain, and which rules apply to the digital sector, yes or no? That's a question we will discuss. And that's why this discussion will be very aggressive.

In other words, how dare these impertinent youngsters criticize what their elders and betters are doing? Let's bring in some new rules for the Internet to stop that happening again.

But this isn't cynical "spin": it's just Rezo offering his opinion -- take it or leave it. It's what newspaper editorials and columnists do every day, and everybody accepts that as a useful and valid part of political discourse. What Kramp-Karrenbauer is really complaining about is the fact that YouTube represents an alternative to the established media outlets she knows how to handle. Frighteningly for the CDU, YouTube is not only a medium that it and the other parties can't control, employing the usual political and economic levers, it's one they struggle even to understand. For example, as the Guardian reported, one CDU supporter tweeted about Rezo: "This young man is spreading an endless stream of fake news and is populist down to the tips of his blue hair" (original in German). But Rezo's video is not only a brilliant demonstration of how to use YouTube in an extremely persuasive way, it also comes with a Google document containing hundreds of references and citations of scientific literature backing up his claims, making it the diametric opposite of "fake news".

It's clear the traditional politicians and their old friends in mainstream media simply don't know how to counter this kind of sweary but fact-based attack, using a powerful medium that costs practically nothing to produce and that can reach and influence a million people in a few hours. So, in order to discuss this troubling new high-tech threat that contributed to the humiliating drubbing her party received in the European Parliament elections, the CDU's Annegret Kramp-Karrenbauer has organized a meeting of her most trusted political advisers.

The invitations were sent by fax.

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But just when you think it can't get more absurd, Apple goes ahead and files an opposition and sends out cease and desist notices...over a German bicycle path. I fear some explanation may be necessary.

Apple recently objected to the logo of a new German cycling path in an appeal filed with the German Patent and Trademark Office, according to German outlets General-Anzeiger Bonn and Westdeutscher Rundfunk.  Apple reportedly takes issue with the logo's green leaf and supposed "bitten" right side, attributes the company believes are too similar to its own logo.

The logo, registered with the German Patent and Trademark Office in 2018, was designed for a new cycling path named Apfelroute that is set to open in the Rhine-Voreifel region of Germany on May 19. Rhine-Voreifel Tourism has already used the logo on uniforms, bike racks, cycling maps, banners, signposts, and more.

So, a green leaf and a bitten right side of the logo sure do sound specific. Perhaps you're already conjuring some picture of the Apfelroute logo in your head, imagining there to be some reasonable impression possible of likeness. Maybe you're thinking, hey, no way would Apple's lawyers fire off these notices to a German bike path unless this was really egregious, right?

Here's the logos. You tell me.

Any sane viewing of those logos should not result in any confusion, plain and simple. And that's just on the logos, without any context. When you add into the equation that trademark laws generally protect specific marks within specific industries and, in this case, the two "competitors" are one of the largest consumer electronics companies in the world and a local German tourism organization for a bike path, then we can put this whole story flatly in the category of the absurd.

Yes, some will take issue with the specific shape and angle of the leaf on the top of Apfelroute's apple. But if that's the best you can do concerning to logos that are so plainly different, such complaints say more about you than they do the logos themselves.

Axel Springer publishing house has been trying to get ad blocking declared illegal. We beat them in the regional courts, we beat them in the appeals court, so they took us to the supreme court in Germany to try their luck a third time.

A year ago, Axel Springer lost at Germany's supreme court.

Of course, big publishers don't let little things like losing court cases at every level of the legal system stop them from pursuing their attack. As the Heise Online site explains (original in German), Axel Springer is suing Eyeo yet again, this time for alleged copyright infringement (via Google Translate):

"Advertising blockers change the programming code of websites and thus directly access the legally protected offerings of publishers," explains Claas-Hendrik Soehring, Head of Media Law at Axel Springer. "In the long run, they will not only damage a central financing basis for digital journalism but will also jeopardize open access to opinion-forming information on the Internet "

As Eyeo's company spokesperson pointed out to Heise Online, this claim is ridiculous. Adblocking software operates within a person's browser; it simply changes what appears on the screen by omitting the ads. It's no different from resizing a browser window, or modifying a Web page's appearance using one of the hundreds of other browser plugins that are available. It's completely under the control of the user, and doesn't touch anything on the server side. The fact that Axel Springer is making such a technically illiterate argument shows that it is now desperately scraping the barrel of legal arguments. Maybe it's time for the German publisher to accept that users have the right to format the Web pages they view in any way they like -- and that adblocking software is perfectly legal.

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FragDenStaat -- literally "ask the State" -- is a German freedom of information (FOI) organization. It obtained and published a six-page report about the herbicide glyphosate. The document was written by the Federal Institute for Risk Assessment, a publicly-funded body that provides scientific advice to Germany's federal government on issues relating to things like food, product, and chemical safety, as well as consumer health protection. Even though the report was paid for by the German public, obtained legally -- and can still be requested by anyone -- FragDenStaat is not allowed to distribute it. The Regional Court in Cologne has ruled that would be an infringement of the German State's copyright, and ordered it to be taken down. FragDenStaat says it will appeal -- to the Court of Justice of the European Union, if necessary -- and comments:

The federal government abuses copyright law to prevent the publication of public interest documents. This is possible because German copyright law is hopelessly outdated. We believe that copyright law should ensure that tax-financed documents such as the Glyphosat report may be used freely. But in contrast, the German government wants to tighten copyright law further, which will further reduce the amount of information the public receives about important topics like this.

Leaving aside the issue that all such reports funded by the public should by freely available unless there are very good reasons to withhold them -- not the case here -- there is the particularly troubling aspect of this bullying of FragDenStaat by the German government. At the moment, there is little to stop copies of this document being requested, then uploaded and shared around the Internet. But once the EU Copyright Directive's upload filters have been installed, it will be easy for the German government to require sites to block these attempts. The fact that the authorities were willing to waste money taking FragDenStaat to court over a six-page document suggests they won't hesitate for a second to use upload filters to block sharing.

It won't just be governments. It is inevitable that leaked documents showing evidence of wrong-doing by companies will be blocked on all the major sites once upload filters are available. No court order is required, so it will become the first thing companies trying to hide their dirty washing will do. Upload filters will not only cause legitimate material produced by Internet users to be blocked by over-cautious online platforms, it will also make life even harder for whistleblowers to expose the truth about corporate crimes and misdeeds. How convenient.

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However, it turns out that the situation is not completely hopeless. Even though the vote in the European Parliament was the main hurdle the new copyright law needed to clear, there is one more stamp of approval required before it goes into effect. The little-known EU Council of Ministers must also agree, and it seems that is not a foregone conclusion.

Everything hinges on Sweden. As an article on the Bahnhof site (original in Swedish) explains, Sweden has previously voted in favor of the EU Copyright Directive, but can still change its mind. One way of achieving that is through a special parliamentary committee that helps to formulate Sweden's EU policy. The Swedish government's Web page about the committee says:

According to the rules, the Government is not obliged to act in compliance with the Committee on EU Affairs' opinions. However, the Committee on the Constitution has stated that the Government should act in compliance with the Committee's advice and opinions. The Committee on the Constitution has also stressed that if the Government does not act in compliance with the mandate it has received from the Committee on EU Affairs, it must have very good reasons for its actions.

If the Government does not follow the mandate given to it by the Committee on EU Affairs, it risks criticism, and ultimately, a vote of no confidence in the Chamber of the Riksdag [Swedish parliament].

Bahnhof's blog post is encouraging Swedish citizens to contact MPs on the EU Affairs Committee to ask them to instruct the Swedish government to vote against the EU Copyright Directive when it is discussed on April 15 at a meeting of EU agricultural ministers -- no, really (pdf). Two leading MPs have already said that they will work towards that goal. Tomas Tobé, Second Vice Chairman of Sweden's EU Affairs Committee tweeted (in Swedish, translated here by Microsoft): "We will force the government to say no. They did not have the mandate to say yes." Another key MP, Ilona Waldau, said on the same Twitter thread: "The European Council has not had the opportunity to make a decision, I answer the question how we should be able to get the government to say no. We are working on bringing the issue to the board."

As that indicates, it's not clear yet whether Sweden's EU Council will instruct the Swedish government to vote against the EU Copyright Directive, so nothing is certain. Moreover, as Florian Mueller points out, for the Copyright Directive to be blocked, Germany would also need to vote against it:

Even with Sweden changing its vote from Yes to No, we're still far short of a blocking minority as I'll explain further below. But Germany could single-handedly block the deal (as could the UK, by the way, though there's little hope of that happening). A Swedish reversal would embolden and encourage those who'd like the German government to withdraw its support.

Mueller's blog post goes on to explain why there are good grounds for believing that Germany might do that. Julia Reda of the Pirate Party says that the German parliament will be debating the issue soon. All-in-all, this means that there is still hope that the EU Copyright Directive can be blocked, although it would require a number of pieces of the political puzzle to fall into place perfectly for that to happen.

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If you don't recall, the German delegation had actually pushed back on the more extreme versions of Article 13 -- and, in particular, had demanded that a final version have a clear carve-out for smaller companies, so as not to have them forced out of business by the onerous demands of the law. However, after some back and forth, Germany caved in to France's demands, with many left scratching their heads as to why. However, some noted the "coincidence" in timing, that right after this, France also withdrew its objections to the pipeline which is very controversial in the EU (and the US, which is threatening sanctions).

FAZ notes that there were whispered rumors about Germany and France basically trading these two proposals, with Germany effectively selling out the open public internet in exchange for easier access to Russian gas. However, it has now seen documents that support this claim. Germany's economic minister, Peter Altmaier apparently promised startups that Germany would not cave on its promise to create a carve-out for all companies with less than 20 million euros in revenue per year -- only to drop that demand the very next day.

According to FAZ, the French delegation directly suggested the idea of France backing away from its opposition to the Nord Stream 2 pipeline if Germany backed away from its concerns about Article 13. And, voila, within days, Germany gave up on its demands regarding Article 13 and, a few days later, France switched sides and agreed to support the pipeline. So, as the German MEPs go to the polls tomorrow, we'll see if they think it was a fair deal to sell out the public internet in exchange for some Russian gas.