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Submission + - Top European court rules linking to an infringing work may infringe copyright

Neil_Brown writes: The Court of Justice of the European Union has ruled today on whether posting, on a website, hyperlinks to copyright infringing works constitutes a "communication to the public" for the purposes of EU copyright law, an act which requires permission of the rightsholder or other authorising basis.

The court held that, if the links are provided "without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website", the act of posting the hyperlink is not an infringement of copyright.

However, if the links are providing in the pursuit of financial gain, the poster of such links is deemed to have known that they were infringing copyright, unless they can prove otherwise. The court has stated that those operating sites "for profit" are expected to have a carried out the (impossible?) "necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead".

The court does not clarify what is meant by "the pursuit of financial gain". If previous decisions are followed, any sites which host ads (Papasavvas), or perhaps even just accrue value to a brand (if the Advocate General's opinon in McFadden is followed), might be treated as operating for financial gain.

Submission + - Courts in England and Wales can now make "Telecommunications Restriction Orders"

Neil_Brown writes: It is a criminal offence to use a mobile phone in a prison in the UK. Prisons have had statutory power to interfere with mobile phone signals since 2012, but until 2015 there was no legal basis to compel a mobile phone provider to disconnect a SIM or blacklist a handset.

The Serious Crime Act 2015 introduced “telecommunications restriction orders” (TROs): a court order which compels a CSP to take “whatever action the order specifies for the purpose of preventing or restricting the use of communication devices by persons detained in custodial institutions”. However, before the power could be exercised, this legislation required the passing of regulations setting out the detail of a TRO and the process for obtaining one.

Last week, The Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016 were passed, and a TRO can now be ordered by a court in respect of phones in prisons in England and Wales.

The Interception of Communications Commissioner’s Office, which oversees interception and data retention activities, has indicated this evening that it has been asked informally to provide oversight of the TRO regime, but is waiting on a formal request.

Submission + - Are you liable if you run a public Wi-Fi hotspot? (arstechnica.co.uk)

An anonymous reader writes: If you run a public Wi-Fi service, can you be held responsible if someone uses it to infringe copyright, defame someone or commit a crime? Ars Technica examines the situation under English law on intermediary liability, as well as looking at data protection law and obligations (or not) to store traffic data for law enforcement.

According to Ars, much publicised "guidance" for would-be Wi-Fi operators indicates that an operator would be liable, but the legal experts who spoke to Ars are far less convinced.

Submission + - UK Court of Appeal: ISPs must pay costs of site blocking

Neil_Brown writes: The UK's Court of Appeal ruled yesterday on an appeal by fixed line ISPs in the UK on the issue of whether rightsholders or ISPs should bear the costs of implementing site blocking injunctions. Upholding the 2014 decision of the High Court, which ordered ISPs to block sites on both copyright and trade mark infringement bases, the majority ruling of the Court of Appeal ruled that "the costs of implementing the order can ... be regarded as a cost of carrying on the [ISPs'] business" (para 143), and that the costs involved were "relatively modest" and "part of the price which the ISPs must pay for the immunities which they enjoy [as common carriers]" (para 214).

Although the court upheld the costs burden on the facts of this particular case, it approved the High Court's comment that, depending on the circumstances, ordering the copyright industry to bear all or part of the costs may be appropriate (para 149).

It was not a unanimous ruling, and the dissenting judge argued that the rightsholders should bear the costs, as it is "a natural incident of a business which consists of, or includes, the exploitation of such rights, to incur cost in their protection".

Submission + - UK proposes mandatory age verification for commercial porn sites

Neil_Brown writes: The UK published draft legislation yesterday, which would require commercial porn sites and apps to implement age verification. Sites which failed to do so could face fines of up to £250,000 or 5% of annual turnover. Their URLs could also be given to ISPs and payment processing providers, to consider voluntary blocking / service suspension, although no mandatory blocking regime is planned currently.

The Society for Computers and Law has published my initial analysis.

Submission + - SPAM: UK proposes mandatory age verification for commercial porn sites

Neil_Brown writes: The UK published draft legislation yesterday, which would require commercial porn sites and apps to implement age verification. Sites which failed to do so could face fines of up to £250,000 or 5% of annual turnover. Their URLs could also be given to ISPs and payment processing providers, to consider voluntary blocking / service suspension, although no mandatory blocking regime is planned currently.

I have written an initial analysis of the proposed measures here.

Comment Some context (Score 1) 39

The product page for the Sony Dash does not really shed any more light on what it is, but the pictures indicate it is a clunky tablet-like device which you can be stood on a table against a backdrop of different home furnishings, mostly in soft focus.

A Sony press release from 2010 says that:

Sony today announced that its new Dash, a Wi-Fi touch screen device that pushes real-time, personalized Internet content to users in their homes or offices ... Featuring a 7-inch color touch screen, Dash uses your existing wireless internet connection to provide a continuous display of your selections from over 1,000 free apps, many provided by chumby industries ...

Apparently "Chumby Industries" is a service provider for this sort of device which, according to its own website, had "year-long hiatus sometime relatively recently.

So it looks as if those who stuck with the device, despite an apparent year-long absence of some of the services, suffered a bug at some point which prevented them from using it, and that Sony has released a patch to fix it.

Comment Re:Really not legal (Score 1) 130

Web blocking certainly is legal under UK law

And under European law, in its current form:

Article 8(2), directive 2001/29/EC: "Each Member State shall take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and/or apply for an injunction and, where appropriate, for the seizure of infringing material as well as of devices, products or components referred to in Article 6(2)."

Injunctive relief (such as a blocking injunction) is specifically recognised as acceptable by the law which grants ISPs "mere conduit" status:

Article 12(3), directive 2000/31/EC: "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement."

Of course, this is just law, and could be struck down by a court on, for example, human rights grounds, and the CJEU's Advocate General made some interesting comments on human rights considerations in the context of blocking of open, free Wi-Fi recently but, to date, the courts have been relatively comfortable granting blocking injunctions.

Comment Re:This is intolerable (Score 2) 130

The maximum sentence in the UK for any copyright offence is 10 years

It is worth bearing in mind that the charges in question do not appear to be charges under copyright law. They are, apparently:

one count of converting and/or transferring criminal property and six counts of possession of an article for use in fraud

Converting criminal property falls under s327 Proceeds of Crime Act 2002, and has a maximum prison sentence of 14 years.

Possession of an article for use in fraud is covered by s6 Fraud Act 2006, which carries up to 5 years imprisonment.

Comment Re:Router (Score 1) 49

In the EU there is only a requirement for ISPs to monitor users, other providers (wifi, VPN etc) don't need to keep any data.

In the EU, there is no requirement of data retention at all any more – there was, for some years, but this was struck down by the CJEU in the Digital Rights Ireland case.

However, the European directive would have covered providers of Wi-Fi services: it uses the term "publicly available electronic communications services". (Article 3(1) directive 2006/24/EC).

This definition comes from the telecommunications regulatory framework – Article 2 directive 2002/21/EC defines "electronic communications service" as "a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks".

Whether the Wi-Fi service would generate or process in the course of its operation of the types of data to which a retention notice could relate (list here, Part 3 in particular) is perhaps a different matter, and likely depends on the service in question. A service requiring subscriber registration, for example, or entering an email address, may well have been in scope (for example, paragraph 11(3)).

Comment Re:TOR exit node? (Score 1) 49

I'm oblivious to EU laws and precedent regarding this, but I wonder if this case would have an (positive?) legal implications for TOR exit node operators...

The most interesting part of the opinion, in my view, was the clear statement that someone offering free public Wi-Fi to their customers did so as part of the "economic context" of their shop, even though they do not charge directly for it.

The reason why this is important is that the shielding law in question here — Art. 212, directive 2000/31/EC — can be invoked only by those providing an "information society service". This is defined as:

"any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service"

As you'll have noticed, to be protected, the service must be "provided for remuneration". In this opinion, the Advocate General argues that it need not be direct remuneration, and that a link to a broader economic context is sufficient. This is logical, in the sense that it follows previous decisions, but it is an important clarification. (There is a previous decision, for example, (Papasavvas) which held that a website funded by advertising was an "information society service", even though the remuneration to the sites comes not directly from the site's users, but from the advertising broker.)

The Advocate General expressly stated that he was not considering the situation where there was no other economic context.

There is no specific European case law relating to the liability of someone running a Tor exit node. However, following the principles of the opinion (not yet a court ruling) here, someone running a Tor exit node would probably be well-advised to try to bring their activities within the scope of an economic context. That could be running the exit node alongside some other business, or offering subscription plans (well, supporter plans, I suspect) for would-be users of Tor (even if not of that specific exit node) to contribute to the running of the system, or something else which made it part of an economic activity. Someone running a Tor exit node, or an open Wi-Fi connection, from their home network, without an economic context, looks unlikely to be shielded by this law, if the court chooses to follow the Advocate General's ruling.

(My general comments on the opinion are here.)

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