Group items tagged

with regard to copyright protection, the Court stressed that a complete cessation of infringements might not be possible or achievable in practice

this does not pose a problem, given that, as previously emphasised in the Court’s case law, there is nothing whatsoever in Article 17(2) of the Charter to suggest that intellectual property is inviolable and must be absolutely protected

According to the Court, internet access providers must make sure that both right-holders and users are kept happy, with no real guidance as to what measures might achieve that effect.

“figuring out what content is legal against what content is infringing is too hard for us poor lawyers and judges!”

the two SABAM cases, which found filtering incompatible with fundamental rights, by confirming that specific (in the sense of “targeted at a clearly indicated website”) blocking injunctions are permissible, as long as they do not unreasonably infringe users’ rights.

act explicitly redirects the balancing exercise to a private enterprise and defers the assessment of its outcome to a later procedure.

SP has no real way of knowing what is and what is not “reasonable” in the eyes of the law.

. It’ll be reasonable, the Court seems to say, as long as it’s not entirely ineffective, or at least tries to not be entirely ineffective, or at least suggests that users shouldn’t do this

. Indeed, in a recent Dutch case, the court of appeal of The Hague overturned an injunction ordering access providers ZIGGO and XS4ALL to block the well-known torrenting site The Pirate Bay, after studies confirmed no effect at all on the number of downloads from illegal sources.

nsisting that a symbolic “do something” gesture must be made to establish that the intermediary is opposed to piracy, even if it cannot achieve real results.

UK’s Justice Arnold in EMI Records v British Sky Broadcasting

guidelines assessing the proportionality of blocking measures be laid down by the CJEU – that would have been welcome indeed!

The European Commission is well aware that Article 15 of the E-Commerce Directive explicitly prohibits Member States from imposing “a general obligation on providers … to monitor the information which they transmit or store, [or] a general obligation actively to seek facts or circumstances indicating illegal activity.

does indeed involve a “general obligation” on those companies to filter all uploads for a vast range of “illegal content”

That lack of good faith makes the Commission’s stubborn insistence on a non-existent technical solution to a non-existent problem even more frustrating. If it had the courage to admit the truth about the unproblematic nature of unauthorised sharing of copyright materials, it wouldn’t need to come up with unhelpful approaches like upload filters that are certain to cause immense harm to both the online world and to the EU’s Digital Single Market.

intellectual property infringement.

The Google/Equustek case is not one of permissionless innovation, but is still an example of a large internet intermediary taking the position that it can do as it damned well pleases because, after all, it operates in multiple jurisdictions—in fact it operates in cyberspace, where, according to some, normal regulatory practices and laws shouldn’t apply or we will “stifle innovation”.

One innovation that Google has instituted is to tweak its geolocation system

The excuse of “it’s not my fault; blame the algorithm”, also won’t fly anymore. Google’s algorithms are the “secret sauce” that differentiates it from its competitors, and the dominance of Google is proof of the effectiveness of its search formulae.

But scooping up every bit of information and interpreting what people want (or what Google thinks they want) through an algorithm has its downsides. A German court has found that Google cannot hide behind its algorithms when it comes to producing perverse search results

AI is great, until it isn’t, and there is no doubt that regulators will start to look at legal issues surrounding AI.

Companies like Google and Facebook will not be able to duck their responsibility just because results that are potentially illegal are produced by algorithms or AI

One area where human judgement is very much involved is in the placing of ads, although Youtube and others are quick to blame automated programs when legitimate ads appear alongside questionable or illegal content. Platforms have no obligation to accept ads as long as they don’t engage in non-competitive trade practices

Google has already learned its lesson on pharmaceutical products the hard way, having been fined $500 million in 2011 for running ads on its Adwords service from unlicenced Canadian online pharmacies illegally (according to US law) selling prescriptions to US consumers.

Google is a deep-pocketed corporation but it seems to have got the message when it comes to pharmaceuticals. What galls me is that if Google can remove Adwords placements promoting illegal drug products, why, when I google “watch pirated movies”, do I get an Adwords listing on page 1 of search that says “Watch HD Free Full Movies Online”.

At the end of the day whether it is Google, Facebook, Amazon, or any other major internet intermediary, the old wheeze that respect for privacy, respect for copyright and just plain old respect for the law in general gets in the way of innovation is being increasingly shown to be a threadbare argument.

What is interesting is that many cyber-libertarians who oppose any attempt to impose copyright obligations and publishing liability on internet platforms are suddenly starting to get nervous about misuse of data by these same platforms when it comes to privacy.

This is a remarkable revelation for someone who has not only advocated that Canada adopt in NAFTA the overly-broad US safe harbour provisions found in the Communications Decency Act, a provision that has been widely abused in the US by internet intermediaries as a way of ducking any responsibility for the content they make available, but who has consistently crusaded against any strengthening of copyright laws that might impose greater obligations on internet platforms.

proponents of reasonable internet regulation

The Appeal Court based its decision on the fact that right holders' unions and societies were financially unable to cover the costs of injunctions, whilst ISP/IBPs were.

he appeal decision went further by stressing that their order was also justified by fact that the defendants generated profits from internet users accessing the infringing websites. As a result, the Court breached ISP/IBPs' freedom to conduct business (as protected by Articles 16 and 52(2) of the Charter of Fundamental Rights of the European Union).

Nevertheless, the Supreme Court insisted that the judiciary had jurisdiction to require of ISP/IBPs to perform any necessary measures against copyright infringement on the internet, thanks to the 2000 Directive on electronic commerce and the 2001 InfoSoc Directive (tranposed into national law under Article 6-1-8 of the 2004 'LCEN' Act). The Court held that the dispositions provided a lawful basis to have the costs of injunctions charged against ISP/IBPs. This is because as "technical intermediaries" ISP/IBPs are  "best placed to bring such infringing activities to an end", the Court say, quoting the words of the InfoSoc Directive (Recital 59) directly. 

. First, it confirmed that neither ISPs nor IBPs were liable for secondary infringement so long as they had no knowledge of the infringing activities or that they acted sufficiently promptly to put an end to the known illegal acts upon notification by right holders. Second, the Supreme Court reasserted that ISP/IBPs were under no statutory obligation to undertake surveillance work of internet users.

The Supreme Court judges see nothing under EU law that would prevent national courts from attributing all costs to intermediaries.

"despite their non-liability, access and hosting providers are legally bound to contribute to the fight against illicit material and, more specifically, against the infringement of authors' and neighboring rights" ; "...[O]n the basis of the pure point of law, the decision of the Court of Appeal was legally justified". 

on the other hand, that neither ISPs nor IBPs demonstrated that the performance of the measures would represent an unbearable sacrifice, or that their costs would endanger their economic viability

It is very interesting to see French Courts give so much weight to the financial situation of the parties and the (alleged or potential) revenues generated by ISP/IBPs from infringing websites, in their application of liability rules. Indeed, the latter are usually framed as pure questions of law, disconnected from economic realities.

We will have to wait to see whether the position of the French court catches on in other jurisdictions, or not.

oogle’s video platform, YouTube, will make its content ID algorithm available to ALPA.

The algorithm is a tool for identifying and managing rights; ALPA will be able to apply the “block” and “follow” rules directly for any work placed on-line without the authorisation of the respective rights-holders. In this way it will be possible for rights-holders to add their works to the content ID filter and to ensure that their films and productions are not placed on YouTube without their consent. Google also undertakes to prevent its AdWords service from fraudulently buying key words for pirate streaming and downloading sites. It also undertakes to provide ALPA with financial support; the agreement is witness to its determination to contribute to the fight against piracy and to strengthen its policy of cooperation with originators and rights-holders.

The President of ALPA, Nicolas Seydoux, welcomed the agreement, which he said symbolised “the collapse of a wall of incomprehension” between Google and ALPA

The Internet has grown exponentially in size since the DMCA was enacted, but we should not forget that the problem of large-scale infringement was an expected development—and one that the safe harbors were specifically designed to manage.