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Posted on Techdirt - 18 October 2021 @ 08:51pm

Copyright Law Discriminating Against The Blind Finally Struck Down By Court In South Africa

Most people would agree that those who are blind or visually impaired deserve all the help they can get. For example, the conversion of printed materials to accessible formats like Braille, large print, or Digitally Accessible Information System (DAISY) formats, ought to be easy. Who could possibly object? For years, many publishers did; and the reason – of course – is copyright. For example, publishers refused to allow Braille and other accessible editions to be shared between different countries:

while the ONCE library in Spain has more than 100,000 titles in accessible formats and Argentina has over 50,000, these titles cannot be shared with the 19 Spanish-speaking countries across Latin America. Similarly, some years ago, charities working in five English-speaking countries, including the Royal National Institute for the Blind in the UK and Vision Australia, were obliged to produce five identical Braille master files for the same Harry Potter book, costing them valuable time and money.

The Electronic Frontier Foundation (EFF) described the situation back in 2012:

Copyright protections create barriers for people with disabilities, yet big publishers continue to block efforts to create exceptions to remedy the problem even as hundreds of millions of people would stand to benefit worldwide. In the US alone, those with print disabilities represent 30 million people. According to an estimate by the World Health Organization, there are about 285 million visually impaired people in the world, and 90% of those are in the developing world.

Later that same year (2012), negotiations finally began on a treaty laying down copyright exceptions and limitations that would allow those with visual impairments to convert works, and share them internationally. The World Blind Union had some modest aims for the new treaty:

Make it legal for print disabled individuals and specialist organizations to make accessible copies of published works in all countries which sign the treaty;

Make it legal for accessible books to be sent internationally without permission from publishers;

Prevent contracts with publishers from undermining copyright exceptions for print disabled people (currently they sometimes do).

Pretty reasonable, most people would say. But the EFF reported at the time that negotiators were “unable to reach a consensus on many of its most contentious issues, such as allowing exports of adapted works across borders and circumventing technological protection measures to enable accessibility”. In addition, people with hearing disabilities were “written out of the draft“, and US negotiators blocked exceptions and limitations for audiovisual works at the behest of the Motion Picture Association of America (MPAA).

It took another four years before what came to be known as the Marrakesh Treaty was agreed on and entered into force. Since then, countries around the world have been ratifying the treaty, with greater or lesser degrees of haste. One nation that has still not yet ratified the Marrakesh Treaty is South Africa. The reason given was that the country’s main Copyright Act, from 1978, prevented the government from doing so. Happily, that obstacle has finally been removed, reported here by the Oxford Human Rights Hub:

After hearing arguments from the amici on important issues of the rights of all people to freely impart and receive information and the interpretation of South Africa’s existing obligations under international human rights law and copyright law, the Pretoria High Court held that the Copyright Act is unconstitutional to the extent that it unfairly discriminates against people living with visual and print disabilities as it effectively prevents them from accessing materials under copyright.

It’s simply scandalous that in 2021 the visually impaired still need to fight in this way for their basic rights to “freely impart and receive information”. Once again, it is outdated copyright law that is to blame – together with the selfishness of publishers who view their rights to exclude people from knowledge as more important than those of the blind to access it.

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Story originally posted to the excellent new Walled Culture website.

Posted on Techdirt - 14 October 2021 @ 12:17pm

University Of Hong Kong Wants To Remove A Sculpture Commemorating Tiananmen; To Preserve It, People Have Crowdsourced A Digital 3D Replica

As Techdirt has chronicled, the political situation in Hong Kong becomes worse by the day, as the big panda in Beijing embraces a region whose particular freedoms were supposed to be guaranteed for another 25 years at least. One manifestation of the increasing authoritarianism in Hong Kong is growing censorship. The latest battle is over a sculpture commemorating pro-democracy protesters killed during China’s 1989 crackdown in Tiananmen Square, and on display in the University of Hong Kong. South China Morning Post reports:

The eight-metre-high Pillar of Shame by Jens Galschiøt was first erected at the University of Hong Kong (HKU) in Pok Fu Lam in 1997, and according to the sculptor was on permanent loan to the group that organised the annual candlelight vigil commemorating the pro-democracy activists killed by the military in Beijing on June 4, 1989.

But after the Hong Kong Alliance in Support of Patriotic Democratic Movements of China decided to disband in August amid a national security investigation, HKU management informed the group it had until Wednesday 5pm [on 13 October] to remove the 2 tonne artwork or else it would be deemed abandoned. The university said the move was based on its assessment of legal risks in light of the alliance’s dissolution.

The formal letter ordering the sculpture to be removed warned that:

If you fail to remove the Sculpture before 5:00 pm on 13 October 2021, the Sculpture will be deemed abandoned and the University will not consider any future request from you in respect of the Sculpture, and the University will deal with the Sculpture in such time and in such manner as it thinks fit without further notice.

That seems a clear threat to remove or even destroy the Pillar of Shame directly. The sculptor, who says the work still belongs to him, points out that moving it is hardly easy, and has threatened legal action if it is damaged:

“It will take a long time to move the sculpture,” he warned. “It is an extremely valuable piece of art, which after 24 years probably is a bit frail. Therefore there is a great possibility that the work of art will suffer irreparable damage if handled by any others than experts in handling art.

“If, contrary to expectations, damage to the sculpture should occur, the university risks incurring a claim of compensation for that damage.”

Galschiøt has also asked Danish politicians to help him get the sculpture out of Hong Kong, and has formally requested the University of Hong Kong to review its decision. These latest developments seem to have caused HKU to pause its plans: according to the South China Morning Post, it has said that it will take no action for the moment, and that it needed more time to consider its next move. However, some have decided to act now to ensure that the Pillar of Shame continues to exist in some form, whatever happens. Sophie Mak, whose Twitter bio describes her as “monitoring human rights abuses in Hong Kong and elsewhere”: tweeted:

Dear Hong Kong friends, help us preserve the Pillar of Shame by sending over any pictures you’ve taken of it to PillarOfShamePics@protonmail.com! We need pictures taken from as many different angles as possible to make our digital 3D replica model.

That was on October 12. The next day, a tweet from Nathan Ruser wrote of the digital 3D replica: “Thanks to some really helpful submissions this is starting to look a heck of a lot better!” The replica is already good enough to ensure that the Chinese government would be annoyed if copies started appearing outside their embassies around the world. It offers a useful example of how others can respond when the authorities want to make inconvenient objects disappear from public view.

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Posted on Techdirt - 8 October 2021 @ 01:46pm

If You Want To Know Why Section 230 Matters, Just Ask Wikimedia: Without It, There'd Be No Wikipedia

It sometimes seems that Techdirt spends half its time debunking bad ideas for reforming or even repealing Section 230. In fact, so many people seem to get the law wrong that Mike was moved to write a detailed post on the subject with the self-explanatory title “Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act”. It may be necessary (and tiresome) work rebutting all this wrongness, but it’s nice for a change to be able to demonstrate precisely why Section 230 is so important. A recent court ruling provides just such an example:

On September 15th, in a victory for the Wikimedia movement and for all user-driven projects online, a Florida judge dismissed claims of defamation, invasion of privacy, and infliction of emotional distress against the Wikimedia Foundation. The judge found that Section 230 of the Communications Decency Act immunizes the Wikimedia Foundation from liability for third-party content republished on Wikipedia. In other words, Section 230 helps Wikimedia safely host the work of Wikipedia’s contributors and enables the effective volunteer-led moderation of content on the projects.

As the Wikimedia blog post notes, this was an absolutely crucial result. If collaborative projects that are created, maintained, and curated by volunteers could be held liable every time a user contributed something that was inaccurate or offensive, none of them would last very long — not least because they generally lack the resources to fight expensive court cases. Back in 2017, Wikimedia wrote a detailed post on Section 230, and why it made Wikipedia and other sites possible

The court’s ruling is a big win for Wikimedia. On the other hand, in something of a (minor) defeat, China has yet again blocked the Wikimedia Foundation’s application for observer status at WIPO — the only country to object. This is the second time it has done so, and for the same reason:

As in 2020, China’s statement falsely suggested that the Wikimedia Foundation was spreading disinformation via the independent, volunteer-led Wikimedia Taiwan chapter. The United States and the group of industrialized countries at WIPO — which also includes many European Union member states, Australia, Canada, the Holy See, Israel, Japan, New Zealand, Norway, Switzerland, Turkey, and the United Kingdom — expressed their support for the Foundation’s application. Since WIPO is generally run by consensus, any one country may veto accreditation requests by non-governmental organizations.

China’s blocking of a small, apolitical organization that aims to promote knowledge around the world just looks incredibly petty, and is hardly befitting for a world power.

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Posted on Techdirt - 1 October 2021 @ 03:30pm

Top Publishers Aim To Own The Entire Academic Research Publishing Stack; Here's How To Stop That Happening

Techdirt’s coverage of open access — the idea that the fruits of publicly-funded scholarship should be freely available to all — shows that the results so far have been mixed. On the one hand, many journals have moved to an open access model. On the other, the overall subscription costs for academic institutions have not gone down, and neither have the excessive profit margins of academic publishers. Despite that success in fending off this attempt to re-invent the way academic work is disseminated, publishers want more. In particular, they want more money and more power. In an important new paper, a group of researchers warn that companies now aim to own the entire academic publishing stack:

Over the last decade, the four leading publishing houses have all acquired or developed a range of services aiming to develop vertical integration over the entire scientific process from literature search to data acquisition, analysis, writing, publishing and outreach. User profiles inform the corporations in real time on who is currently working on which problems and where. This information allows them to offer bespoke packaged workflow solutions to institutions. For any institution buying such a workflow package, the risk of vendor lock-in is very real: without any standards, it becomes technically and financially nearly impossible to substitute a chosen service provider with another one. In the best case, this non-substitutability will lead to a practically irreversible fragmentation of research objects and processes as long as a plurality of service providers would be maintained. In the worst case, it will lead to complete dependence of a single, dominant commercial provider.

Commenting on this paper, a post on the MeaseyLab blog calls this “academic capture“:

For those of us who have lived through state capture, we felt powerless and could only watch as institutions were plundered. Right now, we are willing participants in the capture of our own academic freedom.

Academic capture: when the institutions’ policies are significantly influenced by publishing companies for their profit.

Fortunately, there is a way to counter this growing threat, as the authors of the paper explain: adopt open standards.

To prevent commercial monopolization, to ensure cybersecurity, user/patient privacy, and future development, these standards need to be open, under the governance of the scholarly community. Open standards enable switching from one provider to another, allowing public institutions to develop tender or bidding processes, in which service providers can compete with each other with their services for the scientific workflow.

Techdirt readers will recognize this as exactly the idea that lies at the heart of Mike’s influential essay “Protocols, Not Platforms: A Technological Approach to Free Speech“. Activist and writer Cory Doctorow has also been pushing for the same thing — what he calls “adversarial interoperability“. It seems like an idea whose time has come, not just for academic publishing, but every aspect of today’s digital world.

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Posted on Techdirt - 28 September 2021 @ 03:32pm

Yet Another Move To Funnel Money To Big Copyright Companies, Not Struggling Creators

When modern copyright came into existence in 1710, it gave a monopoly to authors for just 14 years, with the option to extend it for another 14. Today, in most parts of the world, copyright term is the life of the creator, plus 70 years. That’s typically over a hundred years. The main rationale for this copyright ratchet – always increasing the duration of the monopoly, never reducing it – is that creators deserve to receive more benefit from their work. Of course, when copyright extends beyond their death, that argument is pretty ridiculous, since they don’t receive any benefit personally.

But the real scandal is not so much that creators’ grandchildren gain these windfalls – arguably something that grandpa and grandma might approve of. It’s that most of the benefit of copyright goes to the companies that creative people need to work with – the publishers, recording companies, film studios, etc.

One of the cleverest moves by the copyright industry was to claim to speak for the very people it exploits must brutally. This allows its lobbyists to paint a refusal to extend copyright, or to make its enforcement harsher, as spitting in the face of struggling artists. It’s a hard argument to counter, unless you know the facts: that few creators can make a living from copyright income alone. Meanwhile, copyright companies prosper mightily: some publishers enjoy 40% profit margins thanks to the creativity of others.

By claiming to represent artists, copyright companies can also justify setting up costly new organisations that will supposedly channel more money to creators. In fact, as later blog posts will reveal, collecting societies have a record of spending the money they receive on fat salaries and outrageous perks for the people who run them. In the end, very little goes to the artists they are supposed to serve.

EurActiv has a report about an interesting new copyright organization:

French publishers are close to launching a new body to collectively negotiate with online platforms, while the dispute with Google raises fundamental questions on how to monetise online content.

The president of the Institute for Digital Fundamental Rights (IDFR), Jean-Marie Cavada, told lawmakers in the French parliament that the set up of the new collective management organisation (CMO) will be completed in the next month.

The new body, which Cavada will lead, is to be in charge of negotiating with online platforms the remuneration of press publishers under the neighbouring right.

This “neighbouring right”, yet another extension of copyright, is being brought in as part of the EU’s Copyright Directive, passed two years ago. It’s interesting to note that the new organisation will be headed up by Jean-Marie Cavada, a French politician who played a leading role in getting the EU’s Copyright Directive passed. It’s a small world.

This “right” is also known as the “snippet tax”, because it basically requires online companies like Google to pay when even tiny excerpts of press materials appear on their sites. A moment’s reflection is enough to show that this is absurd: such snippets are effectively free advertising for publications, and they drive traffic to sites for free – something confirmed by research carried out in 2017 for the European Commission. If anything, press publishers should pay online companies like Facebook, Google and Twitter for the work they do.

But a clever campaign convinced EU lawmakers that the creators – in this case journalists – ought be paid more, and that Big Tech was somehow exploiting their work by displaying short excerpts in search results etc. And so the Copyright Directive was passed requiring online platforms to negotiate payments for the use of snippets, even though this has been a disaster in the two markets – Germany and Spain – where the approach has already been tried. As that 2017 European Commission report found:

After an initial rejection and chilling effect on traffic to their websites, German publishers agreed that news aggregators could take their content without remuneration. Spanish publishers did not have that option and suffered a decline in traffic.

What’s interesting about the French announcement is that its aim is “the remuneration of press publishers”. If you think that journalists working for those publishers will be seeing much or any of that remuneration in the form of extra wages, then I have a bridge you might like to acquire.

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Originally posted to the absolutely wonderful new Walled Culture website.

Posted on Techdirt - 24 September 2021 @ 09:50am

Fossil Fuel Companies Want Governments To Pay $18 Billion For Bringing In Laws Tackling The Climate Crisis Largely Caused By Fossil Fuel Companies

Back in 2013, Techdirt started writing about the boring-sounding Investor-State Dispute Settlement (ISDS) system. It was so boring, we decide to use a better term for it: corporate sovereignty. It’s an appropriate name, since this system of secret courts effectively places companies above a government, by allowing them to sue a nation if the latter takes actions or brings in laws that might adversely affect their profits. It was originally designed to protect companies that invested in unstable parts of the world, and to discourage things like expropriation by corrupt officials. But clever lawyers soon realized it was much more general than that, and could be used as a weapon against even the most powerful — and stable — nations.

It allows deep-pocketed companies — typically multinational corporations — to threaten governments with big fines if they pass laws or make decisions that aren’t to the companies’ liking. That includes actions that are clearly justified and in the interests of the country’s citizens. For example, over the years Techdirt has written about how corporate sovereignty was used to threaten governments that wanted to protect public health, even measures to tackle COVID-19.

In 2015, this blog warned that the TAFTA/TTIP trade agreement under discussion then would allow companies to challenge actions taken to protect the environment, such as bringing in laws to tackle the climate crisis. TAFTA/TTIP never happened, so fossil fuel companies have now turned to other treaties to demand over $18 billion as “compensation” for the potential loss of future profits as a result of recent decisions taken around the world to tackle climate change. Global Justice Now has a summary:

Five fossil fuel companies are suing governments for more than $18bn for taking climate action that could harm their profits, new figures reveal, as protestors demand an end to secretive corporate courts.

TC Energy, RWE, Uniper, Rockhopper, and Ascent are suing governments through investor-state dispute settlement (ISDS), a shadowy system of corporate courts that operates outside of a country’s domestic legal system as it is built into trade and investment deals.

Four of the five cases are under the Energy Charter Treaty (ECT), an energy investment agreement that includes ISDS, which the UK and EU are signed up to. TC Energy’s case against the US government is under the North American Free Trade Agreement (NAFTA).

The $18bn (£13bn) demanded by just five companies is almost equivalent to the entire net annual climate funding provided by rich countries to the developing world, which Oxfam assesses as $19-22bn.

As that last paragraph points out, if the companies are successful — by no means guaranteed, but entirely possible, given the nature of the special ISDS courts — the money needed to pay companies would amount to the the entire annual climate funding provided to the developing world. It seems a bit rich that these companies should not only make huge profits from selling fossil fuels that are largely responsible for our climate crisis, but also want to be paid serious money for being forced to stop. But that’s corporate sovereignty for you; it’s clearly time to get rid of it.

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Posted on Techdirt - 20 September 2021 @ 01:34pm

Hongkongers Battle Supporters Of Beijing For The Soul Of The Chinese-Language Wikipedia

When Wikipedia was first launched 20 years ago, it was widely derided as an impossible project, bound to fail or, at best, to produce worthless rubbish. And yet today, along with open source software, it is undoubtedly the best demonstration that a distributed team of volunteers can produce work that is not just free but arguably better than anything created for profit using traditional, top-down management approaches. But beyond that, Wikipedia has become something else: a unique repository of validated information and thus, implicitly, a store of “truth” about the past and the present. That has turned many pages of Wikipedia into a battleground, as people with different views fight in sometimes fierce “edit wars” over what counts as “verified”. The choice of information and even how things are phrased often have considerable social, economic or political importance. No surprise, then, that there is a struggle taking place over what Wikipedia should say is happening in the contested space of Hong Kong. Back in July, an article in the Hong Kong Free Press explained:

As Hongkongers reckon with the closure of one of the city’s mainstream news outlets [Apple Daily], drastic political changes and a sweeping national security law, the city’s keyboard warriors on Wikipedia are also coming under pressure.

Battles between competing editors of the crowd-sourced encyclopaedia’s articles about Hong Kong political events have been a daily occurrence since the beginning of the 2019 anti-extradition bill protests.

As increasing numbers of mainland Chinese contribute to the Chinese-language version of Wikipedia, those in Hong Kong worry that their perspectives will be lost:

In the war to set narratives using news sources that may have political biases, whether pro-Hong Kong or pro-China, the question of which news outlet gets a seal of “reliability” becomes a key battleground.

Since then, the situation has become so serious that the Wikimedia Foundation, which owns and operates all the different language editions of Wikipedia, has been forced to step in. Maggie Dennis, the Wikimedia Foundation’s Vice President of Community Resilience & Sustainability, wrote this week of “infiltration” of Wikimedia systems, “including positions with access to personally identifiable information and elected bodies of influence.” Dennis claims that “we know that some users have been physically harmed as a result. With this confirmed, we have no choice but to act swiftly and appropriately in response.”
The actions were as follows:

We have banned seven users and desysopped [removed administrator privileges from] a further 12 as a result of long and deep investigations into activities around some members of the unrecognized group Wikimedians of Mainland China. We have also reached out to a number of other editors with explanations around canvassing guidelines and doxing policies and requests to modify their behaviors.

Setting the narrative for these politically-sensitive events is so important to the Chinese government that it is unlikely that Wikimedia’s moves will put an end to this “infiltration”. On the contrary: we can probably expect the organization to come under even more pressure to tell things the way Beijing wants them portrayed, and to hell with Wikipedia’s cherished neutral point of view.

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Posted on Techdirt - 9 September 2021 @ 03:20am

Sci-Hub Celebrates 10 Years Of Existence, With A Record 88 Million Papers Available, And A Call For Funds To Help It Add AI And Go Open Source

To celebrate ten years offering a large proportion of the world’s academic papers for free — against all the odds, and in the face of repeated legal actionSci-Hub has launched a funding drive:

Sci-Hub is run fully on donations. Instead of charging for access to information, it creates a common pool of knowledge free for anyone to access.

The donations page says that “In the next few years Sci-Hub is going to dramatically improve”, and lists a number of planned developments. These include a better search engine, a mobile app, and the use of neural networks to extract ideas from papers and make inferences and new hypotheses. Perhaps the most interesting idea is for the software behind Sci-Hub to become open source. The move would address in part a problem discussed by Techdirt back in May: the fact that Sci-Hub is a centralized service, with a single point of failure. Open sourcing the code — and sharing the papers database — would allow multiple mirrors to be set up around the world by different groups, increasing its resilience.

Donations can only be made in cryptocurrencies — Sci-Hub accepts most of the main ones. A short interview with Sci-Hub’s founder, Alexandra Elbakyan, on the donations page explains why she moved away from PayPal:

in the past I used also PayPal account to collect donations from abroad. It worked well for a while, but when I posted a message on Sci-Hub urging people to donate, if my memory is correct it was in 2013, donations started to come at a cosmic speed… in a couple of days two or three thousands of dollars were collected. But then the account was frozen by PayPal. It turned out that Elsevier has complained to PayPal about Sci-Hub so they froze the account.

Later I tried registering another PayPal account, and use it carefully, but after some time it also got frozen. I have several frozen PayPal accounts by now.

The main Sci-Hub site claims to hold some 87,977,763 papers — an impressive number. It’s a reminder of just how much research has been funded by the public, and how much could be available for researchers across the globe to access if unjustified claims of ownership were not made by academic publishers desperate to preserve their 35-40% profit margins.

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Posted on Techdirt - 3 September 2021 @ 12:11pm

Sony Music Says DNS Service Is Implicated In Copyright Infringement At The Domains It Resolves

One of the characteristics of maximalist copyright companies is their limitless sense of entitlement. No matter how much copyright is extended, be it in duration, or breadth of application, they want it extended even more. No matter how harsh the measures designed to tackle copyright infringement, they want them made yet harsher. And no matter how distantly connected to an alleged copyright infringement a company or organization or person may be, they want even those bystanders punished.

A worrying example of this concerns Quad9, a free, recursive, anycast DNS platform (Cloudflare has technical details on what “recursive” means in this context). It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. In other words, it’s one of the good guys, trying to protect millions of users around the world from malware and phishing, and receiving nothing in return. But that’s not how Sony Music GmbH sees it:

In June, Quad9 was served with a notice from the Hamburg Germany court (310 O 99/21) stating that Quad9 must stop resolving certain domain names that Sony Music GmbH believed were implicated in infringement on properties that Sony claims are covered by their copyrights. Quad9 has no relationship with any of the parties who were involved in distributing or linking to the content, and Quad9 acts as a standard DNS recursive resolver for users in Germany to resolve those names and others.

Sony Music is not alleging that Quad9 is infringing on copyright directly, but that its DNS service allows people to access a Web site that has links to material on a second Web site that infringes on copyrights. On this basis, the Hamburg Court has used Germany’s law on indirect liability to order Quad9 to cease resolving the names of those sites. But as the Gesellschaft für Freiheitsrechte explains, there’s a crazy twist here. Under German law:

[Internet] service providers who provide access to unlawful information or transmit such information are expressly no longer liable for damages or responsible for removal, nor can an injunction be granted against them. However, the Hamburg Regional Court assumes that Quad9 cannot invoke this liability privilege because it does not itself route the copyright-infringing information from A to B, but merely provides indirect access to it. This understanding of the law leads to the contradictory result that Quad9 is deemed liable for copyright infringements precisely because it has even less to do with the copyright infringements than Internet access providers, who are equally not involved in copyright infringements but at least do transmit the data in question.

Quad9’s FAQ on the case points out that if allowed to stand:

this would set a dangerous precedent for all services used in retrieving web pages. Providers of browsers, operating systems or antivirus software could be held liable as interferers on the same grounds if they do not prevent the accessibility of copyright-infringing websites.

The past history of media companies suggest that, given such a capability, they would indeed go after all of these incidental operators, as part of an insane quest to put every aspect of the Internet at the service of copyright.

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Posted on Techdirt - 30 July 2021 @ 10:44am

Top German Court Says Facebook Must Inform Users About Deleting Their Posts Or Suspending Their Account, Explain Why, And Allow Them To Respond

We’ve just written about Germany’s constitutional court grappling with the issue of whether government users of zero-days for surveillance have a responsibility to report the flaws they use to the relevant developers. Another senior court in the country has been pondering an even thornier question that is occupying judges and lawmakers around the world: how should social media police so-called “hate speech” on their services in a way that respects fundamental rights on all sides?

Germany’s Federal Court of Justice issued its judgment regarding two similar cases (pointed out by Matthias C. Kettemann on Twitter). Both involved posts that Facebook removed because it said they went against the social network’s community standards governing hate speech. In addition, Facebook temporarily blocked the accounts of the users who wrote the posts. When the lower German courts refused to overturn Facebook’s moves completely, the users appealed to the Federal Court of Justice, which not only ordered Facebook to reactivate the two accounts, but also told it to refrain from blocking the re-posting of the deleted comments. The court ruled that Facebook’s rules governing the removal of posts and the blocking of user accounts were “invalid”, because “they unreasonably disadvantage the users of the network contrary to the requirements of good faith.” The court went on to explain its reasoning (translation by DeepL of original in German):

In this case, the conflicting fundamental rights of the parties — on the side of the users the freedom of expression from [Article 5 (1) sentence 1 of Germany’s Basic Law], on the side of the defendant [Facebook] above all the freedom to exercise a profession from [Article 12 (1) sentence 1 of Germany’s Basic Law] — must be considered and balanced according to the principle of practical concordance in such a way that they become as effective as possible for all parties. This balancing shows that the defendant is in principle entitled to require the users of its network to comply with certain communication standards that go beyond the requirements of criminal law (e.g. insult, defamation or incitement of the people). It may reserve the right to remove posts and block the user account concerned in the event of a breach of the communication standards. However, in order to strike a balance between the conflicting fundamental rights in a manner that is in line with the interests of the parties, and thus to maintain reasonableness within the meaning of [Section 307 (1) sentence 1 of the Civil Code of Germany], it is necessary that the defendant undertakes in its terms and conditions to inform the user concerned about the removal of a post at least subsequently and about an intended blocking of his or her user account in advance, to inform him or her of the reason for this and to grant him or her an opportunity to respond, followed by a new decision.

Germany’s Federal Court of Justice is trying to balance two conflicting rights — freedom of speech, and freedom to exercise a profession. Its solution is to require companies like Facebook to inform users about the removal of a post — at least retrospectively — to tell them in advance about the blocking of an account, explain why, and to allow users to respond so that the decision can be reconsidered. That’s a new, general approach that can be applied to a wide range of online services. However, as Matthias C. Kettemann pointed out on Twitter, it leaves important questions unanswered, including the issue of spam accounts, and of account suspensions, rather than deletions. Given their importance, we can probably expect future judgments to tackle these points in due course.

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