A Pirate-Finder General for the UK?

Call To Action by Danny O'Brien

Copyright law involves a delicate balance, made all the more fragile by the number of people who now find their every day actions affected by it. Some people benefit, others find ordinary behaviors made illegal. Reforming copyright in the face of new technology is a vital process, but it needs to be performed carefully, with all affected parties considered in the debate.

In the UK, the Labour administration's impatience to pass its "Digital Economy" agenda, risks throwing that balance utterly out the window.

In less than 12 hours' time, the draft Digital Economy Bill will be released. It will apparently include a provision granting the Secretary of State &mdash currently Lord Peter Mandelson &mdash the power to make statutory instruments that can re-write Britain's Copyright, Designs and Patents Act with the minimum of Parliamentary debate,.

Secondary legislation has been used in a sweeping manner before in the UK. After the UK's RIPA surveillance act was passed with promises that it would only be used for serious crime, secondary legislation was subsequently proposed that expanded its snooping powers to dozens of government bodies, including the Post Office and the Food Standards Agency.

Using secondary legislation as part of the Digital Economy Bill is far more dangerous. This bill would grant the Secretary of State sweeping powers to mess with the very fundamentals of the UK copyright system law, ignoring the voices of UK citizens to meet the needs of one set of interest holders:

In a letter to Harriet Harman, the committee leader who would be responsible for granting such powers, Mandelson says he is "writing to seek your urgent agreement" to changes to the 1988 Copyright, Designs and Patents Act "for the purposes of facilitating prevention or reduction of online copyright infringement".

Once the Digital Economy Bill is passed by Parliament, the Secretary of State could effect wide-ranging changes to the copyright system very swiftly. To give an example of why Mandelson feels it necessary to arbitrarily transform the law, in this same letter, he expressed his concern over the recent emergence of "cyberlockers" as a threat to the media industries.

"Cyberlocker" is the entertainment industry's name for services like Amazon's S3, Dropbox, Apple's MobileMe iDisk, Ubuntu One, or YouSendIt that allow you to easily upload, synchronise and share files with friends. Businesses and individuals use these services every day to collaborate with colleagues and pass on files like family photos or large work documents. In Britain, this entire large, useful Net market innovation could be regulated out of existence without even a vote. And if you think that is not likely to happen, consider that the entertainment industry successfully lobbied the US Trade Representative to include an obligation on the South Korean government to target the same sector (“webhard services”) in the US-Korea Free Trade Agreement (see the third side letter).

If Mandelson is specifically seeking the power to capriciously wipe out entire fledgling industries that depend on our current copyright law, imagine what other instruments from the grab-bag of recent rightsholder demands might also be candidates for statutory instrument action. Throttling or blocking P2P? Creating joint investigation teams of police and IP owners? Filtering all Net traffic through music-infringement-filters? All of these are entertainment industry promoted proposals which judges or politicians have previously considered.

Once granted this power for these reasons the meddling would never stop. After all, this is the government that said:

If [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."

The only way to stop constant ratcheting up of punishments and restrictions on innovation is to ensure that such broad powers are never granted. If you're in the UK, call your MP now and tell him or her that no Secretary of State should be able to rewrite copyright law on a whim.

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Reining in ACTA: Update and Call to Action

Call To Action by Danny O'Brien

Last week saw the latest round of secret negotiations on ACTA, on criminal enforcement of IP, enforcement in the digital environment, and, according to one of the few public documents on the negotiations, ACTA's own "transparency". It's hard to imagine a more controversial set of IP topics -- and underlying them all is the distinct lack of transparency attached to the entire process. It's been a sore point throughout the trade agreement's long history, with pressure from the European Parliament, the Canadian delegation, and public interest groups (including EFF) in the United States to make the agreement more accountable.

We're asking the Obama Administration directly to open up the process -- but your elected officials also have a part to play. Write to your Senators now, and tell them to rein in ACTA.

Meanwhile, in the continuing absence of any true openness, reporters and analysts have had to rely on leaks and hints from the countries involved. Here's a round-up of what we know from ACTA-watchers around the world:

• The story so far: Michael Geist's timeline from October 2007 to March 2009.

• The full text of the leaked European Commission briefing memo, including a note that the content is sensitive "due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet 'freedom' on the other)".

• Reactions from EFF, Canada, Australia, New Zealand, and across the blogs.

• Open letters to Obama administration demanding transparency, signed by EFF, and joined with individuals and groups from Lawrence Lessig to the Medical Library Association.

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UK and Three Strikes: What Not to Do in an Election Year

Call To Action by Danny O'Brien

The arbitrary termination of Internet access for repeated accusations of copyright infringement -- "three strikes" -- is as profoundly unpopular in the UK as it is elsewhere. National experts have generally come out against the idea, from government civil servants who previously omitted it from a public consultation document as too drastic, to the counter-intelligence MI5 unit, who apparently fear it will encourage an encrypted and unpoliceable darknet, to many of the artists it is supposed to protect. Net users, of course, are aghast at such a disproportionate and ineffective scheme, and 70% of Britons came out against it in a recent poll.

Nonetheless, UK Business secretary Peter Mandelson today stated explicitly that he intends to include three strikes in the upcoming digital economy bill. In a subsequent press conference, a government spokesman emphasized that the arbitrariness of this Internet enforcement mechanism will be proportional only to how ineffective it is as a deterrent:

If it [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."

Is the UK really set to join France in a legally mandated three strikes regime? Even with Britain's generally government-friendly lawmaking process, that seems up for question.

A UK general election is due to occur within the next few months (the exact date is up to current Prime Minister Gordon Brown, but he is required to name the date before June 2010). The Conservative chairman for the committee considering the proposed digital economy bill has already expressed scepticism that there is time in this parliament if such a "hot potato" as three strikes is included.

The more British voters write to their MPs to complain, the hotter that potato will get. Unpopular and arbitrary proposals as three strikes will not sit well with any politicians facing an election in their near future.

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Help Protesters in Iran: Run a Tor Bridge or a Tor Relay

Call To Action by Richard Esguerra

As turmoil over the disputed election in Iran continues, many techs are trying to find ways to help Iranian citizens safely communicate and receive information despite the barriers being established by Iranian authorities. One tactic that even moderately tech-savvy Internet users can employ is to set up a Tor relay or a Tor bridge.

More sophisticated users can skip this paragraph, but for the rest, here's the basic outline. Tor (an acronym of "The Onion Router") is free and open source software that helps users remain anonymous on the Internet. Normally, when accessing websites, your computer asks for and receives a webpage out in the open, a process that exposes your IP address, the URL of the website, and the contents of the site, among other information to third parties. When accessing websites while using Tor, your computer essentially whispers its requests for a website, to another computer, which passes the request on to another computer, which passes it on to another computer, which passes it onto the computer where the website is hosted; the reply returns in the same, chain-message manner. The whispers are encrypted, so that neither outside authorities, nor the computers in the middle of the chain, can tell what is being said, and to whom. And the website itself does not have your IP address either.

Internet users in Iran are using Tor to both (a) circumvent censorship systems and (b) remain anonymous while reading and writing on the Internet. Both are critically important to the safety of protesters, many of whom fear retaliation from the government. Preliminary reports indicate that use of the Tor client in Iran has increased in the days after the contested election.

However, Tor's design relies on a robust network of "volunteer computers" (a.k.a. relays) to pass messages back and forth. This means that the speed and quality of a Tor users' browsing experience relies extensively on the number of volunteer computers there are to pass messages along. This is where volunteers can make a difference -- setting up additional relays improves access for dissident Iranians and other users of the Tor network. The more people who help out, the better and more quickly the network runs. If you're interested in helping out, find and follow instructions for configuring a Tor relay on the Tor website.

Those looking to help fight censorship should also consider providing a Tor bridge. Bridges come into play when an ISP decides to try blocking users' access to the Tor network. (For now, there seems to only be anecdotal evidence of Iran attempting to block the use of Tor. However, Iran has recntly been practicing reactive and centralized blocking, which makes any effective block of Tor far more likely.) The Tor bridge configuration differs from a relay in that your computer does not appear in the public Tor network. Instead, users looking for access to the Internet through Tor can receive your Tor routing information through more private channels, then configure their Tor client to transmit requests through your computer. By not appearing in the public Tor network, your Tor routing information is less likely to end up on an ISP filter and can provide help for a longer period of time -- but recognize that the network needs both relays and bridges.

Tor provides strong protections for its users, but if you plan to use it to access the Net, take time to fully understand its limitations. Check the Tor "Warning" section for more information. You should also consider any limitations that may exist in your arrangement with your ISP.

If you have other questions about setting up a Tor bridge or relay, please check the Running a Tor relay FAQ page. For other concerns, The Onion Router Wiki may help.

For understanding the technical conditions of the Iranian Internet, we have found the Open Network Initiative's ongoing research, Arbor Network's network analyses, and the Tor Project's own blog status reports to be informative.

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Stand Up for Your Right To Read

Call To Action by Richard Esguerra

Last month, a group called The Author's Guild raised loud objections to the
text-to-speech feature in Amazon's new Kindle 2. They claimed that reading a book out-loud is a violation of US copyright law.

We had hoped that Amazon would stand up to this legally baseless bullying and support their customers. But, instead, they caved, and allowed publishers to deactivate the Kindle's text-to-speech capabilities using the device's built-in DRM.

Presumably, Amazon and The Author's Guild hoped this back-room deal would go unnoticed. Instead, consumers have taken a stand and formed The Reading Rights Coalition:

The groups below represent 15 million Americans who cannot read print because of blindness, dyslexia, spinal cord injury and other print disabilities. Reading disabled persons affected by the Authors’ Guild request to remove the text to speech function on Kindle 2 include school children, the elderly, professionals, university students, returning veterans, and yes, your neighbors, family members and friends.

The publishing industry shouldn't have veto power over new technology. If you care about the right to read, consider joining The Reading Rights Coalition this Tuesday for a protest at The Author's Guild's headquarters in New York City.

You can learn more at the DAISY Consortium Newsletter and on the Knowledge Ecology International Blog.

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Sunshine Week: Commonsense Transparency from ReadTheBill.org

Call To Action by Richard Esguerra

Anyone that has attempted to keep a close eye on the work of Congress has experienced the frustration of seeing attempts to sneak new language into a bill hours before a vote, or, as we saw often in the fight against the FISA Amendments Act, seeing legislators disappear behind closed doors during critical moments of a debate. Recently, we watched carefully during the stimulus bill debate for a rumored amendment seeking to allow ISPs to apply copyright filters to customers' Internet connections. And today, Paul Blumenthal at the Sunlight Foundation posted examples of legislators being blindsided by last-minute conference committee changes to the stimulus bill -- changes that allegedly allowed bailout-recipient A.I.G. to issue massive bonuses to executives. During these episodes, the machinery of power is driven behind closed doors, where even legislators are prevented from inspecting the process for errors or corruption.

The Sunlight Foundation's ReadTheBill.org is pushing for a simple solution: Congress should post all bills online 72 hours before before they are debated. With such a rule in place, members of the public would be able to inspect legislation and have a real chance to express their feelings to their elected representatives. As we inspect issues of government transparency and the public's right to know during Sunshine Week, consider signing ReadTheBill.org's simple petition encouraging Congress to take the commonsense step of allowing everyone to read and consider bills before they're made into laws -- not after.

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Help EFF Make Open Government a Reality

Call To Action by David L. Sobel

On his first day in office, President Obama took the advice of EFF and other nonprofits, ordering federal agencies to share more information with the public — particularly emphasizing openness in response to Freedom of Information Act (FOIA) requests. This is a great first step, but we need your support to make sure it becomes a reality.

Over the past two and a half years, EFF has filed hundreds of FOIA requests and made thousands of pages of once-secret documents available to the public on our website. Our FOIA work has revealed details about the FBI’s improper use of National Security Letters, which helped prompt Senator Leahy to call for an investigation of former Attorney General Gonzales shortly before Gonzales’ resignation. We’ve also uncovered the Department of Homeland Security's internal policies on searching and interrogating travelers at the border, as well as information about the technology the government uses to wiretap cell phones.

As part of Sunshine Week, we're posting scores of never-before seen documents on several controversial government initiatives, including the FBI’s Investigative Data Warehouse and DCS 3000 surveillance program, and the Department of Homeland Security’s Automated Targeting System and ADVISE data-mining project. We're also making all of our FOIA documents more accesssible than ever before with a new search tool that will let anyone conduct keyword searches across all the documents in our collection.

We're also currently fighting in the courts for a broad range of additional records, including documentation of the telecom carriers' lobbying efforts regarding their role in warrantless wiretapping, and for information about secret negotiations over international intellectual property law.

Of course, the release of these new documents is just one step in the ongoing fight for greater government transparency. Already, despite President Obama's memo, lawyers at the Department of Justice appear to be sticking to the Bush administration's policy of keeping information secret. In these situations, EFF will continue to pressure the government to remember its obligations to transparency and to the public.

Sunshine Week, celebrated March 15-22, is a perfect time to support the principles of open government and freedom of information. With your support, EFF will continue to advocate and litigate in support of a more transparent, honest government. Donate to EFF during Sunshine Week, and help shine a light on government secrets! It's time to make open government a reality.

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Irish Blackout: Why Irish ISPs Should Stand with Their Customers

Call To Action by Danny O'Brien

Two weeks ago, the Irish music industry's trade body, the Irish Recorded Music Association (IRMA), wrote to all Irish ISPs — and, apparently accidentally, many other unrelated Internet companies — requiring that the ISPs instigate a "three strikes" policy with their customers, and universally block sites that IRMA felt were inappropriate for Irish consumers, such as the Pirate Bay. IRMA gave ISPs seven days to provide a response.

ISPs and Irish net users alike were concerned, and have every right to be.

IRMA appears to be not quite as confident in its future legal actions as it implied. Seven days have passed, with no additional moves from IRMA. Some ISPs received curt permission to take another seven days to respond; others received no further correspondence at all. All are pondering their next steps.

The letters were sent as part of IRMA's earlier settlement with the major Irish telecommunications company, Eircom. Eircom agreed to a "three strikes" approach in return for IRMA pursuing the same approach with all other Irish ISPs.

The details of Eircom's agreement remains secret. It is certainly not legally binding on other ISPs. The settlement emerged from a substantially different case, in which IRMA was demanding Audible Magic-style filtering of all Internet communications.

For Eircom it may have appeared a good deal, especially if IRMA promised to force the same agreement on all its competitors. But compared to Eircom, most other ISPs in Ireland have far greater business incentive to rebuff IRMA's advances. Eircom itself is in relatively comfortable position of a previous state monopoly with almost half the current market; its parent company, investors Babcock & Brown, have no other major telecommunication interests outside Ireland. By contrast, Eircom's major competition, BT Ireland and Chorus, are global telecommunication companies with a strong interest in preventing IRMA's demands from establishing an expensive and controlling precedent that could spread to other countries. Smaller Irish ISPs, who generally resell Eircom broadband, compete with the incumbent company on improved customer service. Angry Eircom subscribers are already looking to move away from their ISP: competitors who do not block sites and do not hand over information on their subscribers or terminate them on the say-so of an unconnected third-party no doubt stand to inherit some of those customers.

Of course, it's easy to be sanguine when you are not a struggling Internet business staring at a legal letter from the amassed forces of the music industry. But the Irish internet industry should stand united and firm. Big or small, companies have strong commercial as well as ethical reasons to fight this attack. And they should note that for all of IFPI's bluster about the advance of three strikes and filtering globally, the only consistent effect of their attempts to impose their will on Internet infrastructure has been universal consumer condemnation, with both regulatory and voluntary agreements quickly becoming bogged down in back-tracking and legal difficulties.

This week Irish Internet users are organizing a blackout, inspired by the successful New Zealand protests last month. Civil liberties and the success of Internet innovation often go hand in hand. Irish ISPs would do well to join their customers' stand against IRMA.

For more information on taking action, see the Blackout Ireland site; Irish activist Aubrey Robinson provides a useful FAQ here.

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Yes We Scan: Carl Malamud for Public Printer

Call To Action by Tim Jones

It's hard to find many people who've worked as hard to create an open and transparent government as Carl Malamud. To name just a few of his recent accomplishments: He's convinced C-SPAN to license Congressional hearings under Creative Commons, worked to free California and Oregon state legislation from nonsensical copyright restrictions, and was instrumental in making the SEC's EDGAR database free and public.

If you look over his work and website, it's easy to see why people call him "The Rogue Archivist." But why should such important public services be the job of a so-called rogue? Shouldn't the government itself get behind these efforts?

To that end, Carl last week announced his candidacy for Public Printer of the United States, and EFF's Fred von Lohmann has joined The Committee to Reboot .Gov that Carl formed for this purpose.

While appointments like this aren't usually the subject of a public campaign, much less public endorsements, we think Carl's case is worth making an exception. His agenda is ambitious and impressive. He seeks to "make all primary legal materials produced by the U.S. readily available." He seeks to include "principles of bulk data distribution in legislation." And, as the GPO is responsible for the printing of passports, he seeks a full audit of the security risks posed by the faulty Radio Frequency I.D. (RFID) chips recently installed in passport cards.

On President Obama's first day in office, he announced his commitment to "an unprecedented level of openness in Government." Appointing Carl Malamud to Public Printer would be an excellent step towards that goal.

If you agree, announce your support of Carl's effort.

[Note: EFF has represented and continues to represent Carl in various matters]

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New Zealand Goes All Black Against Three Strikes

Call To Action by Danny O'Brien

Whether you're following a New Zealander on Twitter, or have friended a Kiwi on Facebook, you will not have missed Net users from that country protesting Section 92A in NZ's new Copyright Act. Thousands are turning their sites and their icons black to mourn the coming enforcement of the provision, which passed last year over the protests of ISPs and technology experts and activists.

The language of New Zealand's new copyright law is flawed for the country's Net users; but how it is being interpreted is also bad news for other countries, whose lawmakers might be influenced by the extreme position NZ's politicians and ISPs have wandered into.

Section 92A comes into force on February 28th, and states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

This isn't an entirely original framing of ISP duties. The chances are that this language was taken from the United States' very own DMCA, which in 512(i)(1)(A) states:

“The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers”

But New Zealand experience demonstrates the dangers of simply adopting language from other countries without including a wider context. "Repeat infringer" in the DMCA is a term that was not defined in the law itself, and remains contentious here in the United States. Legal experts like David Nimmer have argued that "repeat infringer" means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders. There's certainly no universal acceptance in the home of the DMCA that rightsholders can force ISPs to throw US subscribers offline simply because they've been on the receiving end of (often inaccurate) notices by those same rightsholders.

The New Zealand law doesn't clarify that element of "repeat infringers."1 In their draft Code of Conduct, New Zealand's ISPs have defensively accepted the widest possible interpretation, and conceded that they must take a "three strikes" response to rightsholder's accusations, rather than actual court convictions.

The truth is that lawmakers in New Zealand were aware of these problems, and tried to stop 92A from becoming law: the legislative select committee that scrutinized the draft bill, for instance, removed the language before presenting it to Parliament (it was re-inserted by the government before the vote).

It's understandable that New Zealand Net users should be angry at their new law and how it is now being interpreted. We can only hope that their protest changes not only their own governments' position, but also clarifies just how radical and unwelcome the New Zealand interpretation would be in other countries.

To find out more about the protest and how to join, see the Creative Freedom Foundation Internet Blackout Page.

1. 1. Although 92A(2) does eliminate one ambiguity in the US text: as Nimmer also noted, most movie and music companies have been accused of copyright infringment themselves on multiple occasions. Does that might make them "repeat infringers" under U.S. law? Under the extended New Zealand definition, RIAA and MPAA members would at least have the opportunity to switch ISPs between evading license deals and bilking musicians, and thus avoid being terminated for their shady past. Yet another reason to choose New Zealand for your next production.

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