Category: Copyright and IP

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The Pirate Bay war. Does something changes for ISP’s liability?

The new episode of the Pirate Bay war leads to think that something is changing in judges’ mind in re: ISP liability. In the recent Swedish preliminary order neither is the final user the final target of a legal action, nor the ISP. The focus is on the sole and only possible defendant: the one who actually shares illicit contents (apart from the merit of the specific TPB case.) The ISP who provided the housing service for TPB torrent search engine has been ordered to “disconnect” the machine from the network and not, as in the previous episodes, to hijack users’ attempts to reach The Pirate Bay.

It is important to remark that in this trial the ISP is not involved as (contributory) defendant, but only as subject whose cooperation is – de facto – necessary to obtain the compliance to a court order. Thus, we face a situation where:

  • rights of innocent end users are not endangered by the activity of the copyright majors,
  • ISP’s role is not portrayed as those of an accomplish, supporter, or contributory violator,
  • the target of the legal action is focused on the (alleged) culprit.

Again, I don’t want to enter in the legal quarrel about TPB responsibility. What I want to stress is that – should the Swedish approach be confirmed – a step toward and actual respect of legal principles set by dir. 31/00/CE is made.

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Corporate liability for copyright infringements in Italy?

Among the measures to fight the economic crisis announced by the Italian Government, sect. 15 para 1 lett. c) of the Anti-Crisis decree deserves a special mention: to put it short, the provision asserts corporate liability (under legislative decree 231/01) ? for copyright infringement committed by top management.

Although it may seems that the new law is of a little impact on corporate life (is highly unlikely that a top manager has time to waste doing file sharing) a second glance prove this first opinion not entirely correct.

The inclusion of copyright infringements into the list of crimes implying specific corporate liability forces a company to revise its (mandatory) prevention model to reflect new changes; thus – de facto – establishing a specific set of controls aimed at downloads, website surfing and file sharing. Failing to do so might lead some zealous prosecutor to think that the company actually allows copyright abuses.

A side effect of this regulation – when it will come into full force – is that workplace privacy will get another heavy blow. For the sake of copyright abuse prevention, indeed, all of employees’ Internet activity will be deeply inspected.

So long, Mr. Data Protection Commissioner…

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Why “Olivennes Bill” wouldn’t work in Italy

“Olivennes Bill” (named after the French lobbyist who proposed it) on copyright protection has been blocked by the French Parliament a couple of days ago (but there is little doubt that French Government will try to have it approved ASAP.) If ? (better, when) passed, this bill would have enforced a “parallel indictemnt system” handled by an “independent” authority called HADOPI acting as an actual Justice Court, that is given the power to decide, without a fair trial, whether a person deserves to be disconnetted by the Internet after being warned twice by copyright holder through the concerned Internet Access Provider.

Entertainment Industry lobbyists like this approach very much and are pushing hard to have Italy enforce it too. “The Problem” is – fortunately – that Olivennes Bill Italian version’s ? would be affected by serious legal and Constitutional flaws, thus making it impossible to pass, for a number of reasons.

First, Italian Code of electronic communication (L.259/03) sect. 4 para I letters f) g) and h) make network neutrality mandatory. To impose over Access Providers’ ? shoulder filtering duties or any other technological activity limiting the way Italian Public Network (rete pubblica di comunicazioni) works, would be what the Code calls “discrimination among specific technologies” and “forcing the use of a particular technology against others”.

Second, the Access Providers would be forced to report the Public Authorities their users’ criminal behaviour by fault of cross-combination between legislative decree 70/2003 1 and sect. 171 bis et al. of Law 633/41. 2 Legislative Decree 70/2003, in fact, makes Access Provider non-automatically accountable for its users’ actions, provided that he doesn’t willingly become part of it. Furthermore, the Decree says that the Access Provider must report to the police forces any criminal misconducts as soon as he’s been given sound evidence of a criminal behaviour committed by an Internet user, thus forcing the prosecutor to start a criminal investigation. All this, is possible because Italian Copyright infringement provisions are “designed” to be mandatory investigated by the Public Prosecutor. 3Then, should Italy enforces an Olivennes-like legislation, there would be a “double trial” for the same (alleged) fact: the first – real – under a Court scrutiny, the second – “mock” – run by an “independent” authority, leading to a conflict of public powers.

Third, as a side question, nobody told Mr. Olivennes that his bill is oddly similar to ancient Western Europe Barbarian laws, where didn’t matter who the actual culprit was, because the victim had the right to retaliate against any other culprit’s family member. This is what Mr. Olivennes proposes: to seclude a whole family or company from the Internet, for the (alleged) wrongdoing of a single member.

Not bad, as an exercise on democracy.

  1. enforcing EU directive 31/00 on e-commerce and access/content providers online liability ↩
  2. Italian Copyright Law ↩
  3. Italian Penal Code contains two “kind” of crimes: the first one is composed by very serious misconducts such as homicide and money laundering – to name a few – that must be investigated no matter if the victim ask for it. Second one is composed of serious crimes too, whose investigation begininnig is in victim’s own hands. In other words, if the victim of a theft doesn’t ask the public prosecutor to start investigating the crime, nothing happens, even if a policeman or a magistrate knows that the fact actually happened. ↩
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Italy to ban on-line anonimyty?

A contribution for ALCEI.ORG
There is a disturbing, arising trend in Italy, of former showpersons now MPs of Berlusconi’s party to propose free speech and anonimity regulation “to protect minors” (but fact shows that they’re mostly concerned of copyright.)
Between January and March 2009 Luca Barbareschi (actor) and Gabriella Carlucci (anchor woman), proposed two draft laws whose declared intent was to enforce copyright protection by shutting down civil liberties.
To be clear:
– Mr. Barbareschi’s Proposal is aimed at create a “single point of cultural control” by granting the Italian State backed royalty collecting agency, the role of exclusive gateway between artists and market. Furthermore, Mr. Barbareschi’s draft law contains so loose statements about ISPs liability that the Government is allowed to do
basically whatever he wants.
– More dangerous, if possible, is Mrs. Carlucci draft law that wants to ban anonymity from the Net, refusing even to consider intermediate forms such as “protected anonymity” (where the ISP act as trusted third party).
Mrs. Carlucci want to establish a committee under the Communication Authority with power of interpreting Internet-related law (in Italy, only magistrates and the Parliament is supposed to), receiving “confidential notice” of infringement, acting as Alternative Dispute Resolution provider, counseling magistrates about the enforcement of preemptive activities ruled under rule of evidence code, like searches and seizure, termporary jail rescrition etc.)
If approved, these (draft) laws will cause the concentration of power in goverrment’s hands, by weakening the possibility (or the right) to defend ourselves in Court.
Another step toward the ethical state?

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Thepiratebay.org case. An Italian Court affirms a dangerous principle of law

N.B. Background information for this post are available here. ?

The Bergamo Court has overruled the preemptive seizure order with a decision that, instead of solving the problems arising from the first decision, creates worst issues. The Bergamo Court, in fact, has overruled the seizure, but only on the legal basis that “seizure” cannot be interpreted as “traffic hijacking”.

But the court did not, as it should have done, evaluate first of all the lack of Italian jurisdiction. By not doing so, the Bergamo tribunal has created a dangerous case law that, by reciprocity, allows any foreign magistrate to investigate and take to court an Italian citizen, with the additional absurdity that even in the absence of any evidence that a crime has been committed, a legal prosecution can be based on hypothetical “statistic calculation”.

Furthermore, by asserting the validity of the public prosecutor investigation, the Court has de facto established the automatic liability not only of internet providers, but also of search engines, and the possibility of using, as an investigative tool, data and information with no solid ground.

And also, by saying that even if preemptive seizure has been wrongly enforced , it is ?in theory compatible with ?sect.14 D.LGV 70/20003 (EU E-commerce directive implementation, dealing with ISP liability), the Court of Bergamo on the one hand allows “owners of ideas” to push for an additional and barbaric copyright law amendment while, on the other hand, it reaffirms an obvious error of interpretation of law by affirming the role of ISPs as “sheriffs of the net”.