Privacy activists were caught off guard last week when the EU passed its controversial copyright legislation. The new law has far reaching consequences that technical experts and internet companies alike have strongly advised would damage EU businesses and change fundamentally how the Internet works.

This article is intended to show you WHY these two directives (articles 11 and 13, known as the link-tax and upload filter) are highly problematic from a technical point of view, and how these laws will further weaken privacy on the Internet.

Article 11 – The “Link Tax”

The intention of the law (AKA how the EU thinks this will work):

The EU is working to protect media companies from piracy of their content. Sites will have to pay a fee to the creator in order to link to their content, creating a new revenue system for waning traditional news media while giving them an opportunity to get compensated for valuable content.

What likely happened here is a bunch of people who do not understand how the Internet fundamentally works have looked at statistics on how many times Google, Yahoo, Reddit, Twitter, etc have linked their content and multiplied that by some arbitrary number for their “link-tax” and decided that they can now cash in because of their new legislation.

The technical barriers and the likely reality:

The above explanation completely misunderstands how the Internet actually works.

The search engines and social media sites will downrank EU content to make it appear infrequently, or remove the content entirely from their sites. (This already happened when Spain tried this idea before.) This will cause an enormous drop in traffic to their content (which will dramatically decrease ad revenue) that will not be offset by the revenue from the Link-Tax. In essence, the EU will be damaging its own media companies and empowering outside media companies who will not carry the same technical and financial burdens.

This also creates a problem in that “copyright trolls” can claim content that doesn’t belong to them and create problems for creators, as well as creating a huge backlog of disputes to be reviewed manually at tremendous costs for the platforms that are serving EU content. Only the largest companies will be able to carry this regulatory burden.

The new law does carry an exemption for “small and micro businesses” but makes no effort to clearly define what a small business actually is nor what types of businesses are exempt.

Article 13 – The “Upload Filter”

The intention of the law (AKA how the EU thinks this will work):

This law requires that a system be in place to quickly check all uploaded content to a site or service be checked for “copyright infringement”, and that any infringement found needs to be barred from being posted to the site. It also specifically calls for a fast appeals process that allows false positives to be corrected. The idea is to create an environment where it is hard to pirate content on any major sites or services in the EU.

The technical barriers and the likely reality:

It is hard to find where to begin. This law is so ill conceived that nothing about it is redeeming and it shows no understanding of technology at all. Major sites like YouTube, Twitch, SoundCloud, and Vimeo all get YEARS of content uploaded every day. Lawmakers say that a filter is “not a requirement” but there is no other way to comply with this law which brings us to the first  major problem…

Even the big tech companies cannot create good filters. They’ve tried.

YouTube is the biggest example of attempting to use an automated filter to control copyrighted content. It’s algorithms can catch audio and video of 1:1 pirated content, and some types of other content. These systems have big technical problems that will not be solved any time soon. They remove content with no regard for fair-use, they have high false positive rates for unrelated content, they often remove content with incidental content in the background (a copyrighted song playing in the background, etc), and these systems are heavily abused today by copyright trolls.

And this is the BEST that the biggest companies can offer.

Like article 11, article 13 seeks a fast appeals process. This will place an unbelievable burden on sites that host a lot of content for continuous manual review of every dispute that surfaces. The costs involved here will damage companies like YouTube that are already losing money or breaking even.

Further, even these best efforts at filters are easily defeated. They often work by sampling areas of a video looking for matches or matching audio signatures by looking at pitch, beats per minute, and other basic audio characteristics. Defeating these filters often involves just a 3D tilt of the video, slightly changing the colors, or adding subtle grid-lines or dots to the content. Audio filters are frequently defeated by speeding up or slowing down the audio or shifting the pitch. The technology to defeat these kinds of efforts requires computing power far beyond what is reasonable and again leads to a cost problem for businesses that even the well-known giants will have problems developing and operating while remaining profitable.

This leads us down the rabbit hole of what smaller sites will be able to do. There’s no question that startups and fledgling businesses will struggle to develop their own tech for this. So what is left? The Internet giants will gladly lease you a solution at a tremendous cost burden, or they will allow you to use the tech for free, in exchange for seeing all of the content posted by everyone worldwide. Make no mistake, this regulation is perfect for the Amazons, the Googles, the Facebooks and the Microsofts of the world. They will develop filters that spy on every creator inside of the EU, and they are forced to give up their data, or the sites have to pay a heavy financial burden.

Ethics Concerns: Articles 11 and 13 Give No Regard to Censorship Either

While the new copyright directive does much to place burden on companies to police content and provide an appeals process, it does little to punish people or organizations that make false copyright claims. This will lead to censorship of people or groups and shield bad actors from criticism, because the groups can simply claim copyright over quotes, images, logos, or even their own faces to silence critics. One can easily imagine scenarios such as playing a song loudly at a major protest to justify the removal of all audio of said protest online, or calling for removal of all video that contains a particular building or landmark.

Applicability: All 28 EU Countries Develop Their Own Rules

Even with all of the above problems and concerns, this is further worsened by what will be an inconsistent regulatory environment. If Germany writes their version of the law with exceptions for Parody and Political Action, but Poland does not, and Spain only allows two words from an article’s title to match before a Link-Tax must be paid, you have a gnarled regulatory environment that no one can navigate on top of your already unwieldy and technically unworkable copyright legislation.

Purpose: It Will Not Stop Piracy

The core issue when looking at the technical and ethical problems is that this isn’t even a trade-off. This will not prevent piracy in any measurable way. It is all easily defeated and piracy sites will not follow any of these rules anyway.

A Slippery Slope to More Censorship

This is a first step in laying down infrastructure that can silence opposition, remove criticism, and filter the internet not just for copyright, but all types of dissent. The first steps in this direction lead down a long path of increasingly terrible consequences. Opening Pandora’s censorship box will lead to more problems in the near future as nations decide what new things to block based on how inconvenient they are for the hegemony.

It is absolutely crucial that this legislation must never come into force. It will not serve any of its intended purposes and will place a tremendous cost burden on companies that will stifle innovation while giving no real benefits to content creators. This idea has failed before and will continue to fail with this effort only on a larger scale and more spectacularly.

Stopping Censorship and Preventing Damage to the Internet:

To help, find out which MEP’s in your country voted for this legislation, (link requires signup but no verification) and find out why. Call out the bad actors that are trying to protect dying industries with bad laws that hurt global commerce. Do not let lobbyists decide the future of the Internet.

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Bell v. Lackman (TV Addons)

Last year, Bell, Rogers and Quebecor filed a lawsuit against Adam Lackman as the founder of TV Addons, which he describes as a software platform for accessing free, open source addons for the Kodi media player.  These addons are submitted by independent developers, and some of the addons available prior to the lawsuit were alleged to infringe on the plaintiffs’ legal rights under the Canadian Copyright Act.   While the matter has not been tried on its merits, this makes the proceedings to date and their impact all the more concerning.

Adam Lackman first learned that he was being sued by three major Canadian media groups when bailiffs arrived at his home on June 20, 2017.  They came accompanied by computer technicians and bearing a court order that authorized them to search for, access and seize evidence in support of a civil lawsuit that claimed commercial damages under the Canadian Copyright Act.  In addition to seizing Lackman’s servers, domain names and social media accounts, the order (known as an Anton Piller order) also allowed the plaintiff’s attorneys to question Lackman about the operation of his website, TV Addons.

What is an Anton Piller order?

An Anton Piller order is an extraordinary procedural remedy available in Canadian civil law, which came before the Supreme Court of Canada in Celanese Canada Inc. v. Murray Demolition Corp. (2006 SCC 36).   They are sought on an ex parte basis, which means that when one party applies to the court for an Anton Piller order to be granted, the target of the order does not need to be notified.  

Before the order is executed, the defendant does not have an opportunity to challenge the arguments in favour of granting the order or to respond to the evidence presented by the party requesting the order.  Failure to comply with an Anton Piller order can lead to contempt of court charges.

Recognizing that an Anton Piller order is an invasive and extraordinary measure, the Canadian courts expect parties requesting an order to demonstrate that:

1. they have a strong prima facie case;
2. the potential or actual damage done to the plaintiff or their business is very serious;
3. there is persuasive evidence that the defendant has incriminating evidence in their possession; and 
4. there is a real possibility that this evidence would be destroyed or disappear before it would be shared in the discovery process.  

The Order & a Costly Appeal

After the Anton Piller order was executed against Lackman on an interim basis, the plaintiffs sought a declaration from the Federal Court that the order was lawfully conducted and to convert an interim injunction obtained to prevent TV Addons from continuing to operate.  On June 30, 2017, Justice Bell issued a decision revoking the Anton Piller order and injunction, finding that the plaintiffs’ case did not meet the threshold necessary to justify the order. Justice Bell also stated that if the injunction was upheld, it would “neutralize” Lackman’s business and cause significant financial harm.  

However, the plaintiffs appealed this decision, and on February 20, 2018, the Federal Court of Appeal set aside Justice Bell’s order, issued the injunction and declared the Anton Piller order to be lawfully executed.  The Federal Court of Appeal held that Justice Bell misapplied a relevant section of the Copyright Act and made factual conclusions not supported by the evidence.  The Federal Court of Appeal also awarded costs, requiring Lackman to pay the plaintiff’s legal fees of $50,000.  In an online post, TV Addons states that the plaintiffs have since returned to Lackman’s house with a court order, seizing property to sell in order to satisfy this debt.

Copyright Compliance: Risks & Challenges

Since the seizure of the original domain name, TV Addons has relaunched with new ownership and a stricter submission policy, requiring open source addons to have “easily verifiable” licensing, criteria which Lackman says can be difficult to meet.  As an example, he cites occasions where submitted addons have scraped media content from YouTube channels owned by production companies or where content may be appropriately licensed for sharing within one country but licensed differently in other regions. While DMCA takedown notices can help companies identify and remove infringing content to comply with US law, takedown requests are not required in all circumstances under Canadian law.  Lackman notes that he never received a takedown request from any of the companies suing him.

Although Lackman’s case has yet to go to trial on its merits, the proceedings to date offer a strong cautionary tale for companies, projects and developers working in this space.  Without access to better, cost-effective means to verify licensing and identify infringement on platforms with user-submitted content, even well-intentioned projects can face substantial financial and privacy-related consequences before any alleged infringement can be proven.

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It has also led to publishers – and other copyright industries – increasingly targeting members of the public for alleged copyright infringements. Even though these are often only minor, fleeting, or incidental, the copyright world has become so accustomed to the perfect preservation of its intellectual monopolies that it regularly seeks to make an example of anyone who dares to challenge them by using copyright material in this way without first seeking “permission”.

Another consequence of the Internet’s rise as a global publishing medium is that the copyright industry has persuaded friendly politicians around the world to introduce ever-more one-sided legislation in this field. Perhaps the worst copyright laws ever passed are those implementing the 1996 WIPO Copyright Treaty: the Digital Millennium Copyright Act (DMCA) in the US, and the EU’s 2001 Copyright Directive (EUCD). Both of these include anti-circumvention measures that make it illegal to by-pass DRM – however feeble – used in conjunction with copyright material. The knock-on effect of these laws is that copyright now limits everyday activities that have nothing to do with the legal protection of creative works. The DMCA and EUCD even call into question the very concept of owning physical objects – an absurd situation for a copyright law.

A new example of the copyright industry’s unbounded presumption is currently playing out in Canada. It involves TVAddons, which provides access to many add-ons for the open source Kodi media player. As a background page explains, TVAddons neither hosts nor links to any type of copyright material. Despite this, TVAddons is being sued by Canada’s biggest telecom providers: Bell, Videotron, Rogers and TVA. TorrentFreak has the details:

“The 18-page complaint details the plaintiffs’ case against [TVAddons’s operator] Lackman, claiming that he communicated copyrighted TV shows including Game of Thrones, Prison Break, The Big Bang Theory, America’s Got Talent, Keeping Up With The Kardashians and dozens more, to the public in breach of copyright.

The key claim is that Lackman achieved this by developing, hosting, distributing or promoting Kodi add-ons.”

Lackman points out that less than 1% of the add-ons his site indexed were accused of being “infringing”, and even for those, they simply point to resources already online. And yet somehow the telecom companies managed to convince a Canadian judge to grant what is known as an “Anton Piller order“, one of the most fearsome weapons in the legal armory of some jurisdictions. It is a special court order only given in exceptional circumstances, which allows premises to be searched without any prior warning. The theory behind this is that the order can be used to prevent the destruction of relevant evidence. In practice, the almost unlimited powers it confers are easy to abuse, as Adam Lackman found out:

“During the execution of the order, an independent (neutral) counsel overseeing the lawsuit, performed a search and seizure of Adam’s premises that lasted a total of about sixteen hours. His personal computer and other belongings were seized, including domain names and social media accounts that weren’t even related to TV ADDONS.

He was interrogated for a period of nine grueling hours, during which he was denied the right to remain silent. They told him that if he didn’t answer every question asked, he would be in contempt of court – which is punishable by imprisonment.”

TorrentFreak reports that Lackman was informed he had an hour to find a lawyer during this raid, but was not allowed to use any electronic device to obtain one. He was also forbidden from taking medication or attending a pre-existing doctor’s appointment. In addition, he was presented with a list of 30 names of people that copyright companies believed might be operating sites or services similar to TVAddons, and ordered to provide all of the information he had on those individuals.

Given this astonishing behavior, it is no wonder that a subsequent court review led to the Anton Piller order being ruled unlawful. The judge noted that instead of merely trying to preserve evidence they feared might be destroyed, the telecom companies were using the extreme powers of the Piller order to carry out a hunt for anything that might be used against Lackman. The judge agreed that Lackman may have an “arguable case” that his add-ons site did not infringe on any copyrights, and that the “true purpose” of the Piller order was to destroy Lackman’s livelihood. In that, the telecom companies have almost succeeded, even though a CAN$50,000 deposit they had been required to provide to the court was awarded to Lackman for the legal abuse he had suffered.

His current problems are twofold. First, he has already accumulated legal costs of CAN$75,000, and will need more funds in order to overturn a subsequent decision by the Canadian appeals court to grant a stay-of-execution on the return of his property, domain names and social media accounts. The second problem flows from that stay, since it means that Lackman has had to re-build his business from scratch, with new domain names and social media accounts. A recent post on TorrentFreak explains just how much Lackman’s business has been harmed by that forced discontinuity.

The whole sorry tale exposes how easy it is for deep-pocketed companies to abuse the legal system in an attempt to crush weaker opponents. Even when judges subsequently strike down those abuses, the damage already caused is not easily reversed. Above all, it shows once again how some members of the copyright industry seem to regard themselves as above the law and exempt from respecting the basic human rights of the people they bully.

Featured image by TVAddons.

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For example, the “snippet tax” would require commercial sites that quote even tiny portions of online press publications to pay a licensing fee for each one. Given the way social networks constantly quote and cross-link information, that’s clearly absurd. And yet the Industry, Research and Energy (ITRE) committee of the European Parliament has come up with a cunning plan to make it even worse. It wants the snippet tax to apply to physical publications as well as digital ones:

“Print editions are worth as much protection as digital editions. For this reason it is essential to ensure that rights are granted for both digital and non-digital use and remove any wording that can exclude non-digital uses.”

The ITRE committee managed to wreak even more havoc by changing just one word in the original text of the proposed copyright directive. For the snippet tax, the European Commission had explicitly excluded scientific publications from the scope of the law:

“Periodical publications which are published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to press publications under this Directive.”

ITRE wants to replace the word “not” with “also”, thus making it a requirement for journal quotations in a published academic paper, no matter how small, to be licensed. As the Pirate Party’s representative in the European Parliament, Julia Reda, pointed out, this would effectively kill what is known as “open access”.

In an attempt to widen access to academic knowledge, journals published as open access make all their content freely available under permissive Creative Commons licenses. The idea is to encourage people to share that content as much as possible. But if the ITRE amendment is accepted, it would be necessary to obtain a license to do so. Even if that permission were given freely, as it surely would, it adds an extra barrier to sharing knowledge. Similarly, open access titles would need to obtain licenses for snippets from other journals that were included in their papers. That situation is ironic given that ITRE is the committee that is tasked with promoting research, and has hitherto been a staunch defender of open access, as Reda points out.

Just as the ITRE committee wants to make the snippet tax even worse, so the Culture and Education (CULT) committee of EU politicians has come up with a way to make the upload filter dramatically more ridiculous. If the CULT committee’s amendments are adopted in the final law, EU citizens will no longer be able to upload copies of copyright material to the cloud, even if they have acquired them legally. The EDRi digital rights group explains why that is even more outrageous than it seems:

“Under the CULT “compromise amendments”, it would no longer be possible to store legally acquired music recordings video files or any other copyrighted content on European cloud storage services. This is despite the fact that Europeans already pay hundreds of millions every year in levies (3,2 billion euro [about $3.7 billion] in the first half of this decade) to compensate rightsholders for making copies of legally obtained copyrighted works. Despite this, European cloud services would have to install filters to either block uploads or pay “fair” licenses for any copyrighted material that was uploaded. (Non-European services, on the contrary, would have nothing to worry about.)”

That is, in many European countries, consumers already pay a levy to the copyright industry in order to be allowed to make legal copies of their digital files. And yet even though they have paid twice – once for the content, and then again for the levy – they will not be allowed to upload their files unless the cloud services pay a third time for a further license.

The EDRi post points out another extraordinary feature of the move by the CULT committee. Earlier this year, it adopted an amendment to a different EU directive. In that case, the amendment prohibited the use of upload filtering as a method of restricting hate speech and terrorist content, including “for the most harmful content”. In other words, CULT thinks that censoring terrorist content is an unacceptable infringement of personal freedoms, but is fine with doing exactly the same to “protect” the copyright industry from people uploading legally acquired material.

An important aim of the proposed EU copyright directive is to make it easier for Europeans to enter and operate in the fast-developing field of text and data mining, where large-scale analysis of massive data stores is used to extract new and interesting information. Originally, the EU copyright directive restricted the new text and data mining exception to academics. Sensibly, ITRE wants to extend that to include startups, but only for the first three years of their existence, and while they have fewer than 10 employees. That constraint pretty much guarantees that text and data mining startups won’t choose the EU for their base, but will go elsewhere where governments are more understanding of their needs.

There are a couple more European Parliament committees that will offer their views and amendments: the Civil Liberties, Justice and Home Affairs (LIBE) Committee, and the Legal Affairs (JURI) Committee. The latter is the most important, because it will prepare the final report that is presented to the European Parliament for a final vote. Unfortunately, the previous “rapporteur” – the Member of the European Parliament (MEP) who is tasked with shepherding the directive through the legislative process – Therese Comodini Cachia, has left to go back to her native Malta. Taking her place is the German politician Axel Voss. His political group, the EPP, has just published its views on the copyright directive, which largely back the European Commission’s original proposals, unsatisfactory as they are.

Featured image by Ash Crow.

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The “disposition of comments” is the formal version of an earlier blog spost by the inventor of the Web, Sir Tim Berners-Lee, which he published back in February. There he explains in more detail why he wants to allow DRM to become part of HTML. It’s clear from both documents that the central argument is that the W3C is simply standardizing an existing situation where many DRM schemes are used, and that by providing a rigorous framework it is making life easier and better for the user. In fact, the W3C even went so far as to insist on Twitter that “There’s no DRM baked in the EME spec.” But as Florian Rivoal pointed out in reply, this is like claiming “Guns are not dangerous if you don’t put bullets in them. We’re just working on guns not bullets, so we’re not doing anything dangerous.”

Some people objected to the comparison, saying that DRM should not be compared to bullets, because DRM can’t kill. But it can, thanks to one of the biggest policy defeats ever suffered by civil society: the WIPO Copyright Treaty, agreed in 1996. Article 11 says:

“Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention”

This is the famous anti-circumvention provision, which is enshrined in the Digital Millennium Copyright Act in the US, and the European Copyright Directive in the EU. It means that it is illegal to circumvent DRM applied to copyright material, even for legal purposes. It effectively raises the protection of copyright material above all other rights. In a world where software is becoming ubiquitous, that’s a big problem. Software is covered by copyright, which means that if DRM is applied to protecting that software, it is illegal to circumvent it, even in order to save lives. Here’s why that is not hyperbole:

“Because of the DMCA, as much as 40% of the computer code in [critical] medical devices remains untested for safety by independent security experts. I am confident that I would find serious flaws in some or all of these devices if the DMCA did not prevent my research. Because of this lack of safety research, as a type 1 diabetic, I feel that using an insulin pump is too unsafe, and I instead self-inject with needles many times daily. I am not alone in this safety assessment: other diabetic security researchers behave similarly.”

As that analysis by a security research professional points out, thanks to the DMCA’s ban on circumventing DRM, it is impossible to look at the code in insulin pumps, artificial organs, birth control implants, kidney dialysis machines and morphine infusion pumps that collectively keep millions of people alive. There is thus no way of checking whether such systems have bugs that could lead to injury or death, either through accidental malfunction or because of malicious interference. One person taking the latter threat very seriously is former US Vice-President Dick Cheney, whose heart defibrillator was modified to prevent external access. DRM can indeed kill, although probably not when used on Web pages. But even there it is undeniably harmful, as Berners-Lee recognizes:

“Since EME directly interacts with CDMs [Content Decryption Modules – the DRM “bullets” for EME’s “gun”], it may appear that the W3C specification sanctions the notion that research into EME may be deemed “circumvention” under copyright anti-circumvention laws.”

Cory Doctorow explains how top researchers, digital rights activists and well-known tech organizations all suggested ways of addressing that serious issue, but copyright companies refused to allow even the narrowest protection to researchers. Instead, this is what the W3C came up with:

“We also recommend that such [organizations involved in DRM and EME implementations] not use the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) and similar laws around the world to prevent security and privacy research on the specification or on implementations.”

A “recommendation” – a pious hope – with no obligation, is worthless in terms of shielding researchers. They will naturally want to avoid the risk of prosecution, and so EME code will remain unchecked by them, making it likely that bugs will not be spotted. Thus, contrary to Berners-Lee’s claim that the new DRM in HTML approach will bring with it better security – one of his primary justifications for EME – it will in fact mean that there are unsuspected, possibly serious vulnerabilities.

And yet even the problems caused by anti-circumvention laws are dwarfed by the central threat of the new EME approach: that once a precedent has been set by introducing it for video, it will then be extended to other media. Berners-Lee himself admits this is a risk:

“For books, yes this could be a problem, because there have been a large number of closed non-web devices which people are used to, and for which the publishers are used to using DRM. For many the physical devices have been replaced by apps, including DRM, on general purpose devices like closed phones or open computers. We can hope that the industry, in moving to a web model, will also give up DRM, but it isn’t clear.”

Even that downplays the full catalog of horrors we could face once DRM has been definitively blessed and normalized by the W3C as an official part of HTML (the Free Software Foundation points out that there is still a tiny chance it could be stopped.) Some years back, the EFF spelt out what EME could lead to:

“A Web where you cannot cut and paste text; where your browser can’t “Save As…” an image; where the “allowed” uses of saved files are monitored beyond the browser; where JavaScript is sealed away in opaque tombs; and maybe even where we can no longer effectively “View Source” on some sites, is a very different Web from the one we have today.”

It is simply tragic that the man who created the World Wide Web, and then, in an act of great generosity, released it freely to the world, should acquiesce in this terrible mistake that will destroy a key aspect of his gift: its openness.

Featured image by Nino Barbieri.

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The court awarded $15 million damages to the scientific publisher on the basis of 100 articles published by Elsevier that had been made available without permission on Sci-Hub and a similar site called LibGen. At the time of writing, Sci-Hub claims to hold 62 million scientific research papers – probably a majority of all those ever published – most of which are unauthorized copies. According to a report in the scientific journal Science last year, it is Elsevier which is most affected by Sci-Hub’s activities:

“Over the 6 months leading up to March [2016], Sci-Hub served up 28 million documents. More than 2.6 million download requests came from Iran, 3.4 million from India, and 4.4 million from China. The papers cover every scientific topic, from obscure physics experiments published decades ago to the latest breakthroughs in biotechnology. The publisher with the most requested Sci-Hub articles? It is Elsevier by a long shot – Sci-Hub provided half-a-million downloads of Elsevier papers in one recent week.”

Those figures help to explain why Elsevier has been pursuing Sci-Hub doggedly for some years. Back in December 2015, the same New York judge who has just awarded the $15 million to Elsevier issued a preliminary injunction against the site’s operator. Access to the original domain – sci-hub.org – was suspended, but it carried on using a different domain. Its servers, meanwhile, remain beyond the reach of US law, since they are located in Russia. In the age of VPNs, attempts to block the site are similarly pointless.

This might seem to be an ordinary cat-and-mouse story of a pirate site being pursued by affected copyright holders, and evading various legal moves to shut it down. But there’s an important difference here.

Most of the papers published by Elsevier and the other academic publishing houses and found on Sci-Hub were written by scientists and academics whose research grants were paid for by the public. Once written those papers were submitted to a relevant journal, where an editor or editorial board chose which ones should be considered for publication. To that end, the papers were passed to referees who scrutinized them as part of the peer review system, whereby fellow academics read the text, and judge whether it deserves to be published as is, or needs revisions and corrections. Typically, neither editorial boards nor peer reviewers are paid for their work, which is carried out as a kind of academic responsibility accepted by all as part of the job, and done for the greater good of society.

That is, most of the work writing, checking and editing a paper is carried out completely for free. The only costs that academic publishers incur are typically for production, which are limited if publication is purely digital, as is increasingly the case. Given the extremely efficient nature of the academic publishing system, it will come as no surprise to learn that leading companies in the sector – including Elsevier – have consistently achieved profit margins between 30% and 40%, levels almost unheard of in other industries.

Such elevated profit margins have come as the prices paid by academic libraries to subscribe to titles have increased rapidly. While the cost of living increased by 73% between 1986 and 2004, the expenditure by research libraries on subscriptions to academic journals went up by 273% in the same period. The trend has continued since then. This is not because academic libraries have been given larger budgets. On the contrary, they are finding it harder and harder to pay exorbitant subscription costs because of what is known as the “serials crisis”, and are often forced to drop some titles.

It was this inability to access key academic papers that prompted the neuroscience researcher Alexandra Elbakyan, who was born in Kazakhstan, to set up Sci-Hub in 2011. As she explained in a submission to the New York judge hearing the Elsevier case against her:

“When I was a student in Kazakhstan university, I did not have access to any research papers. These papers I needed for my research project. Payment of 32 dollars [the typical cost to access one paper] is just insane when you need to skim or read tens or hundreds of these papers to do research. I obtained these papers by pirating them. Later I found there are lots and lots of researchers (not even students, but university researchers) just like me, especially in developing countries. They created online communities (forums) to solve this problem. I was an active participant in one of such communities in Russia. Here anyone who needs research paper, but cannot pay for it, could place a request and other members who can obtain the paper will send it for free by email. I could obtain any paper by pirating it, so I solved many requests and people always were very grateful for my help. After that, I created sci-hub.org website that simply makes this process automatic and the website immediately became popular.”

Although the judge was unmoved by Elbakyan’s argument, academics around the world have flocked to her site. And not just from countries unable to afford expensive subscriptions. As the 2016 research published in Science revealed, users in the US were then collectively the fifth largest group of downloaders, and some of the most intense Sci-Hub users are to be found at US and European universities.

In part, that’s probably because Sci-Hub is much easier to use than most academic libraries, which require complex sign-on procedures, and restrictive license agreements. But another reason seems to be a common feeling among researchers that all this knowledge should be freely available on a site like Sci-Hub. After all, most of the work was paid for by the public, so it seems wrong that libraries and individuals must pay again to read the papers.

The reason why Elsevier and other academic publishing houses are able to claim copyright for papers written by others is because the authors are persuaded to assign licenses that let publishers sue on their behalf, whether or not the researchers would agree. As one of the most perceptive observers of this world, Richard Poynder, pointed out recently in an important essay, academic publishers have effectively weaponized copyright. They are able to extract extremely high levels of profit, with widespread access to the knowledge they publish relegated to a secondary consideration, and there is little researchers can do about it.

It seems unlikely that Elsevier will ever see any of the $15 million awarded by the court – Sci-Hub is run on a shoestring, and other than a few servers probably has no resources worth seizing. However, that has not stopped the American Chemical Society filing its own suit against Sci-Hub this week, although it is not clear what it hopes to achieve by doing so. While Russia refuses to enforce US courts’ rulings, Elbakyan is probably safe from extradition – although wisely she keeps her physical location a secret.

The fact that a global academic publishing company could be awarded millions in damages against someone trying to help other scientists to spread and access publicly-funded knowledge – exactly as science is supposed to work – is an indication of how broken copyright is today. Until that massive problem is fixed, Sci-Hub will remain what one leading academic called a “necessary, effective civil disobedience“.

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“The url has been blocked under instructions of the Competent Government Authority or in compliance to the orders of Hon’ble Court.”

 

Blocked websites now warn of 3 year sentence

Now, a new message is being displayed to Indian users of Tata Communications, one of the largest telecom companies in India. This new message is a result of a court ruling from last week that is the culmination of months of back and forth between Tata Communications lawyers and the Indian court system. The Indian court is still seeking that all ISPs display customized messages; and for now, Tata is the only one that is displaying the potential sentence for accessing content from the blocked sites. The new message displayed on thousands of blocked websites now reads:

“This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at urlblock@tatacommunications.com who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”

 

Is it illegal to visit a blocked website in India?

Some in the Indian community are still unclear on whether or not this new warning has any teeth. Prasanth Sugathan, Counsel at the Software Freedom Law Centre India, told Gadgets 360:

“Visiting any website, even if it is a blocked site is not illegal either under the provisions of the Copyright Act, 1957 or the Information Technology Act, 2000”

Even if viewing the website isn’t illegal and viewing the content is, Sugathan added that torrent sites shouldn’t be blocked under copyright laws anyways, given that “torrent sites are often used to share free and open source software and literary and artistic work licensed under Creative Commons licenses.”

Looking at the court order that spawned the recent change from blocked website notice to online copyright legal warning, it becomes clear that these warning signs are actually soon to be everywhere. The intention of the court is to prominently display the potential penalties, as well as provide a way for “overblocked” site owners to reach out for recourse. The judge specifically asks that that the error message “be displayed with information about the provisions of the Copyright Act (especially penalties, etc)…” Whether or not anyone will actually be punished for visiting a blocked torrent or porn site under the Copyright Act remains to be seen. The court will take another look at Tata’s blocked website error message on September 19, 2016.

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The recently decided motion for judgement as a matter of law was between music licenser BMG Rights Management, a client of Rightscorp, and Cox Communication, a widely used American ISP. Judge O’Grady reaffirmed the December decision that Cox is liable for contributory copyright infringement and needs to pay $25 million in damages to BMG. However, Judge O’Grady also denied a permanent injunction sought by BMG, ruling that Cox did not have to provide emails, addresses, and other private information of alleged copyright infringers to BMG. However, the new law opens a pandora’s box of litigation and will likely prompt ISPs to take a long, hard internal look at how they handle the question of online infringement. Gone are the days of ISPs throwing away copyright infringement letters for you. Judge O’Grady wrote:

“In reaching this conclusion, the Court acknowledges that the application of traditional contributory infringement to large intermediaries like Cox magnifies the uncertainties in this area of the law and raises the specter of undesirable consequences that may follow.”

 

Anti-Pirating firm Rightscorp threatens other ISPs

Rightscorp uses proprietary software to identify the IPs of copyright infringers through Torrent protocols. They then take this information and use it to send threatening letters to you through your ISP, on behalf of copyright holders such as BMG. The recent court case essentially affirms that ISPs must pass these letters on to you, as well as setup clear rules for banning repeat offenders. However, your ISP does not need to give your information up. For years, letters were ignored by their recipients because Rightscorp had no established legal right to collect judgement; in fact, Rightscorp’s revenue comes from the small percentage of copyright infringers that make the mistake of responding or engaging. As RightsCorp is unable to identify anything beyond the IP address, they would need ISPs to disclose identifying information about the alleged copyright infringer. Rightscorp could and likely would then send emails, mail, and probably phone calls to the registered contact information of alleged IP addresses. All this despite the fact that court documents showed multiple sources of inaccuracy in Rightscorp’s detection software and presented data.

This new court ruling specifically knocks down Rightscorp’s ability to directly target alleged copyright infringers, but it means that Rightscorp’s trove of data is that much more useful to its clients that can then refocus legal attacks on companies like Cox.

Rightscorp CEO explained:

“…our company has also amassed a vast amount of data documenting infringements that have occurred over the past five years on the network of essentially every ISP in the country. That data will be made available to copyright holders that wish to enforce their rights against ISPs that are not inclined toward a cooperative solution.”

While this is just a threat, and it comes from a financially struggling Rightscorp, the real threat comes from Rightscorp’s clients, such as BMG, who will continue to sue ISPs directly in a way that Rightscorp would be unable.

Don’t just rely on your ISP to protect you: Encrypt

If all of the entire Internet is dangerous because of the three letter agencies that are wire tapped into inter-continental data lines, the most dangerous spot (when it comes to surveillance) is still undoubtedly your ISP. Unless you encrypt your traffic, you really should expect that someone somewhere is able to read it. Joseph Lorenzo, technologist at Center for Technology and Democracy, told VICE his expert opinion:

“if people are concerned about the confidentiality and integrity of their communications, they will have to treat the internet at large as a hostile network over which one must tunnel securely.”

Rightscorp’s CEO made it a point to threaten every ISP in the country, saying that his company has now been legally vindicated and that he hopes for a new future where every ISP cooperates with passing copyright infringement letters on to paying customers, or maybe even some new hybrid system borne of increased cooperation between ISPs and licensing companies. Though the courts have stopped the floodgate of copyright infringement cases, for now, Either way, you should probably thank your lucky stars for VPN.

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The Guardian celebrates “an end to cheap Chinese knock-offs” in an article that describes how classic furniture design that’s older than 25 years will be moved out of the public domain, where anybody can use the design for any purpose, and back under exclusive rights – the exclusive monopoly law we know as “copyright”.

Designs of furniture are normally protected by a special form of patent, known as a design patent, which can be awarded when the design goes clearly above and beyond the basic function of the object. (The patent we normally know as a “patent” is formally called a utility patent to distinguish it from a design patent.)

The designs won’t just be moved from being under design patent to being under copyright instead, but the exclusivity terms are also extended a lot – from having been 25 years after first marketing, to being 70 years after the death of the designer. Assuming this designer lives an average lifespan, and designs something at the height of their career in their mid-30s, that means the term of the exclusivity is extended by a full century.

This is strikingly odd, and hostile toward a maker-oriented future that’s already happening (and certainly can be expected to play out in that next century).

The obvious first argument is that the very existence of exclusive rights are justified by allegedly incentivizing the design process. “You come up with something good, you get a monopoly on exploiting it commercially for 25 years”. Therefore, extending the monopoly term retroactively makes no sense at all – somebody is not going to change their minds 25 years ago because of changes to law today. Designs that already exist won’t stop existing because of later legislative efforts. Therefore, moving designs out of the public domain is arguably stealing from that public domain, as it negates property rights of makers.

The second odd observation is that the UK law in question commingles patent law and copyright law, which are rather different beasts. Furniture is normally protected by something known as a design patent and not by copyright, and this has enormous ramifications for 3D printing: when something is under patent, you’re absolutely and one hundred percent free to make copies of it for your own use with your own tools and materials. When something is under copyright, you are not. Therefore, this move is a direct assault on the 3D printing revolution.

(I argued five years ago at a business leader meeting that people would be sued out of their homes for manufacturing their own slippers from a drawing they found, just as they had been for manufacturing their own copies of music albums. Business leaders at that meeting laughed at me at first, realizing how ridiculous our laws in this area have become: completely out of touch with reality.)

Therefore, moving furniture design from a design patent to copyright law means that people can and will indeed be prosecuted for manufacturing their own furniture using their own tools. There’s an important difference here in EU law versus US patent law:

In most European countries, the exclusive exploitation rights granted by a patent are restricted to commercial exploitation. A private person who builds the patented invention in his own home for his own personal goals cannot infringe on a patent. […] United States law is more strict. It forbids anyone from making, using or selling the invention, even when the use is strictly personal.

So in the United States, a change from patent protection to copyright protection would not matter much when it comes to maker culture and 3D printing. In the European Union, which is where this is taking place, it matters a whole lot.

The Guardian, in its rant against “cheap Chinese copies” and “scam merchants”, doesn’t even try to hide that this is about European protectionism – preventing the Chinese from offering better value for money – and nothing morally justifiable at all:

Take, for example, the famous Eames walnut and leather armchair with matching ottoman. The officially licensed and copyrighted producer, Vitra, sells them for £6,814 in John Lewis. Yet copies made in Chinese factories sell over the internet and in some stores for as little as £399. It is these low-cost knock-offs that will now be banned.

An insightful comment under the Guardian article objects to this hypocrisy, and asks a very relevant question about where the real scam is:

The people selling these copies are not necessarily “scam merchants”. Everybody knows they’re copies and not Vitra or Herman Miller originals. […] But – is there really £6800+ worth of value in the Vitra product? Or are they just charging that because they can? Who’s the scam merchant?

A relevant question indeed. Where’s the real scam when something designed 50 years ago is suddenly off limits to 3D printing and home manufacturing, requiring people to buy it at a 2000% markup instead?

Last but not least, remember that the copyright monopoly is fundamentally, irreparably incompatible with privacy, which remains your own responsibility.

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The copyright monopoly was once created as a censorship instrument against the printing press, and later devolved to a commercial monopoly on duplicating creative works (and more). But with the advent of first the cassette tape, and later the Internet, this industrial duplication monopoly has become fundamentally incompatible with freedom of speech, freedom of the press, privacy, and the postal secret. We’re now at a crossroads where we must choose one or the other.

To understand why, we need to step back to a time before the Internet. We don’t need to step as far back as when Queen Mary I of England created copyright on May 4, 1557 in order to root out political and religious dissidents – it’s enough to go back to the early 1900s. In doing so, we need to disregard private copying altogether, on the simple basis that it did not exist in the early 1900s.

Copied books and movies used to be visible to the naked eye in public

The umbrella of monopolies we know as copyright – for it is a set of rather diverse monopolies that are quite unrelated to each other – was long intended to be a protection against industrial-scale plagiarization of a book or movie. After all, copying equipment for books and records used to be prohibitively expensive, and moreover, you had to expose your copied product on some sort of market or in some sort of store in order to sell it.

Hence, copyright infringements were always visible to the naked eye in public. This is key. They could be a copied book for sale in a bookstore, they could be an unauthorized public concert, and so on.

Therefore, enforcing the sales monopoly in the pre-Internet era did not require intruding into somebody’s diary or private correspondence: all infringements were visible to the public, naked eye.

But times have changed, and the copyright monopoly laws did not.

Copying moved into private correspondence, and enforcement followed

Enter the Internet.

All of a sudden, everybody has access to the world’s best copying machine for anything that can be converted to ones and zeroes. Making the first copy of something now costs on the order of microcents instead of thousands of dollars, so even the world’s poorest have access to it. Moreover, such copies are transmitted as private correspondence between private individuals.

Let’s take that again, because it is the key point: copyright infringements are now taking place within private correspondence. Bits leaving one computer in a stream, arriving at another computer. Some of the stream may be mail. Some of it may be chat messages. Other pieces of the stream leaving your computer may be a fully-legal torrent. Some pieces may be whistleblowing about a governmental abuse of power to a reporter, under heavy source protection. And yet other pieces may be an illegal torrent.

Private correspondence is supposed to be secret – as in not read by a third party in transit. That’s a key to privacy and is enshrined in most countries’ constitutions; it’s called the postal secret. Nobody is allowed to see who is corresponding with whom, about what, for how long, et cetera. To our parents, this was something they took for granted if they lived in the Western world – the ability to send a private letter, or even an anonymous letter where they didn’t identify themselves as sender. It was their prerogative whether they chose to identify themselves or not in corresponding with someone and what they were sending.

We’ve arrived at a point where it is no longer possible to have private correspondence, at all, and enforce the copyright monopoly at the same time. It is not possible to say that some pieces of private correspondence are legal and therefore remain fully constitutionally secret, whereas others are illegal and can be freely invaded. You cannot tell one from the other without looking at all of it, and at that point, there is no longer any postal secret at all.

The act of sorting into legal and illegal requires observation.

We’ve arrived at a crossroads in the development of our society where we must make a choice between privacy, as such, and the copyright monopoly. (To be precise, it’s about the enforcement of the monopoly – but it does not exist in practice without any enforcement.) If we allow private communications to exist at all, then I can use any digital communications channel to blow the whistle on governmental abuse as well as use it to send a protected movie or song to a friend. On the other hand, if the copyright monopoly is allowed to take precedence, then private correspondence ceases to exist, for both of these cases, and for every other case where something is communicated privately. There is either a seal of postal secrecy on everything, or on nothing.

(It’s noteworthy in these examples that it’s not just privacy at stake, but also freedom of the press, in the sense of an ability to protect its sources, and basic freedom of speech, in the sense of expressing yourself as you wish.)

Some have observed this fundamental underlying conflict, but the vast majority pretends it doesn’t exist and mumbles on about value on both sides of the scale – the commercial copyright monopoly on one side, and the postal secrecy, freedom of the press, and freedom of speech on the other – somehow being worthy of protecting, and about “striking a balance”. A “balance” here is technically and conceptually impossible, and a side must be chosen. Freenet is one of few projects that has a liberatingly unapologetic policy on this:

“The core problem with copyright is that enforcement of it requires monitoring of communications, and you cannot be guaranteed free speech if someone is monitoring everything you say. This is important, most people fail to see or address this point when debating the issue of copyright, so let me make it clear: You cannot guarantee free speech and enforce the copyright monopoly. Therefore, any technology designed to guarantee freedom of speech must also prevent enforcement of the copyright monopoly.”

This is the stance that is necessary, even if it seems brutal on the surface. When choosing one side of this scale, it is necessary to declare upfront and without apology that the other side will be completely prevented.

The copyright industry is methodically attacking privacy

It’s easy to think that the copyright industry is so old, stale, and obsolete that it doesn’t understand these two sides of the scale, doesn’t understand that its efforts are invading one of the most fundamental of constitutional liberties, and excuse it for being ignorant in an assumption of good faith. That would be a mistake, though. The efforts of the copyright industry have been very deliberate in targeting multiple aspects of privacy in order to tip the scales of the conflict between privacy and copyright enforcement in the direction of eliminating privacy.

The copyright industry has been working on three fronts to eliminate fundamental rights:

• Lobbying for direct harshenings of the copyright monopoly and its sanctions, frequently using wildly fraudulent statistics about the (ridiculously false) enormous importance of their own industry.
• Lobbying for externalizing enforcement and costs to other parties, either through putting direct costs onto them or by creating horrible liability incentives to silence free speech and privacy. The so-called notice-and-takedown is an example of both.
• Lobbying for the right to circumvent due process and rights altogether, demanding the right to interfere directly with the correspondence of private citizens and negate their privacy, sometimes demanding (and receiving!) more powers than the Police to do so.

There are many examples of this. We can begin with the current situation in Germany, where ISPs surrender the identities of the subscription behind an IP torrenting on demand from the copyright industry, negating the privacy right to communicate anonymously and due process around this. This identity release, in turn, enables speculative invoicing (what we would normally call industrialized fraud) on a large scale. Our parents would have been horrified at the postal service breaking anonymity rights and privacy rights on a large scale like this just because some private industry demanded it.

It’s noteworthy that the copyright industry had demanded and acquired this right in Sweden, even when the Police didn’t have it. Thus, the copyright industry wasn’t just a private police force circumventing due process; they had stronger powers than the Police.

This needs to be seen in combination with the hated Data Retention that the European Court of Justice struck down as utterly unconstitutional in 2014, where the copyright industry had not just demanded that everybody’s communications were logged in this manner, but also that they (as an industry) be given independent access to the correspondence log data (as in circumventing all due-process judicial access controls). This is not just negating privacy, it’s also utterly audacious.

The copyright industry is also continuously trying to remove the messenger immunity, a concept that dates back to the Roman Empire, by making ISPs liable for what their users send in the pipes. (Imagine if a mail courier would be legally liable for the contents of the sealed packages!) This takes the form of the now infamous and frequently abused notice-and-takedown, but also in the notice-and-staydown that the copyright industry keeps demanding. There are also many, many lawsuits against ISPs trying to make them liable for carried traffic.

In this attack on messenger immunity, it’s also worth mentioning that the copyright industry is happily exploiting child pornography laws. It’s a deliberate strategy to demand Internet censorship against this phenomenon, with the purpose of later extending that censorship to ordinary file sharing. This is despite the observation that actual child abuse victims are arguing against such censorship, with the soundbite that “crimes should be punished and not hidden” – and thus, according to this child abuse survivor group’s argument, the copyright industry is actually defending child molesters in order to wedge in a censorship into ordinary people’s correspondence, in order to defend their business.

If that comes across as absolutely outrageous, that’s because it is.

Finally, let’s not forget that the copyright industry long lobbied for Three Strikes until a coalition of the Pirate Party and others made the practice downright illegal at the European level, from the European Parliament. This was a concept where entire households would be shut off from the Internet altogether, essentially being sent into exile from modern society, on three accusations – accusations, without trial! – of sharing knowledge and culture in violation of the copyright monopoly.

There are many more examples.

In summary, because of the Internet and lowered barriers to entry, neither of which are going away, privacy and the copyright monopoly have become irreparably and fundamentally incompatible with each other. There is absolutely zero gray area. Either we prioritize privacy, in which case copyright must scale back at least to where it was in the 1980s and cover physical products only, or we go with the copyright industry’s pipe dreams and dismantle several fundamental constitutional rights in order to assist the copyright industry’s business plan. To people on the Internet, the choice between these two options should be obvious.

Privacy remains your own responsibility.

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