Eddankatz 31intl dpa_copyrightprivacy_slides

PRIVACY AND COPYRIGHT ENFORCEMENT

Eddan KatzInternational Affairs Director, Electronic Frontier Foundation

31st International Conference of Data Protection Authorities and Privacy Commissioners

Madrid, SpainNovember 4, 2009

1Wednesday, December 29, 2010

Introduction

Thank you for the conference organizers to include topic

Thank you for staying so late.

Cut through the thick layers of euphemism

don’t want to turn the Internet into a big broadcast channel

95% of traffic is piracy

we don’t have money to sue 8 million people

turn fundamental rights upside down in order to make it safe for the entertainment industry


Justifications for Copyright

Incentives for creation and dissemination of works

US Constitution: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Statute of Anne. (1710) An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.

Access to Knowledge - intersection of innovation and development


What is different now?

copyright traditionally didn’t include the user. it was general public dissemination.

in the digital age, there is a direct connection with a consumer

DRM & Kindle

copyright enforcement into private spaces & throughout communications networks

right to read anonymously


Intellectual Privacy

first amendment - democratic self-governance

freedom to think as you will and to speak as you think (Brandeis, Whitney v. CA)

closer to mind - stream of consciousness

the connections between thoughts. fleeting thoughts - done on a search engine.


Pervasively Distributed Copyright Enforcement

justification for its pervasive reach in a permanent state of crisis.

set of coordinated processes for authorizing flows of information

invades, disrupts, and casually rearranges the boundaries of personal

spaces and of the intellectual and cultural activities played out within those spaces.

perceive constraint and standardization as natural attributes of the information

environment control over intellectual consumption and communication away from individuals and independent technology vendors and toward purveyors of copyrighted entertainment goods.

darknet digital samizdat actually reinforces the discipline and standardization of the


Ongoing Norm-Setting

ISP cases.

Three Strikes Laws

Telecom Package

Google Book Search Settlement

Anti-Counterfeiting Trade Agreement


Promusicae v. Telefonica

ruling = not a requirement for ISPs to hand over customer data in civil proceedings

it should be taken to mean that there is no mandatory disclosure and that privacy precedes copyright

got the entertainment companies to push for legislation


College van Burgemeester v. Rijkeboer

College van burgemeester en wethouders van Rotterdam v M. E. E. Rijkeboer [Case C-553/07, 22 December 2008]. In trying to balance data retention and data protection obligations, the Court said that "[t]he right of a data subject to manipulate his personal data, and to request their rectification, erasure and blocking, is one of the essential aspects of Directive 95/46. Recitals 38 and 40 in the preamble to the directive illustrate that view, not only because they confirm the importance of the right of access but also because of the link that right constitutes between the information which the data subject has and the processing of that information. Indeed, for the rights conferred in Article 12 to be practicable, it is necessary to rely on a number of fundamental principles since, otherwise, the safeguards referred to in the article would be rendered ineffective. Recital 41 in the preamble to the directive expresses it with great clarity, stating that 'any person must be able to exercise the right of access to data relating to him which are being processed, in order to verify in particular the accuracy of the data and the lawfulness of the processing'. [Par. 28]


Google Book Search Settlement

Protection Against Disclosure

not disclose to govt. or third party without warrant

notify user when transferring to others

not provide books purchased to credit card company

Limited Tracking

searching and preview doesn’t require registration

not connect Google Book Search with other Google services

allow anonymous search

purge logging information


Google Book Search, cont’d.

User Control

allow control of other computers

bookshelves

Transparency and Enforceability

robust, easy to read privacy provisions

reader privacy commitment has to be legally enforceable.

watermarks does not contain identifying information

publish number of requests


Telecom Package

HADOPI-ism

Amendment 138 - Prior Ruling.

History - 2nd Reading - copyright enforcement.

Bono Report Amendment

vote for 138 twice.


Amendment 138

Amending Recital 3a adopted in 2nd reading:

Recognising that the Internet is essential for education and for the exercise of freedom of expression and access to information, any restriction imposed on the access and/or use of the Internet should be in accordance with the general principles of Community law, notably in accordance with the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union. In particular, end-users’ access to electronic communications services should not be suspended without prior ruling by the judicial authorities without prejudice to the competence of a Member State to determine in line with its own constitutional order and with fundamental rights appropriate procedural safeguards assuring due process.


EDPS Opinion - Telecom Package

[EDPS Comments on Some Issue in the Review of Directive 2002/22/EC (Universal Service) (16 Feb. 2009): http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/Consultation/Comments/2009/09-02-16_Comments_ePrivacy_EN.pdf] In Par. 15, the EDPS makes clear "that it would not be allowed for Internet Service Providers to cut subscribers’ Internet connections on the basis of mere alleged copyright infringements made by private sector organizations." The EDPS also made clear that he "considers that Amendment 138 and Article 32a of the Universal Service Directive provide for a balanced wording by emphasizing fundamental rights. The need to safeguard such rights is particularly important in the context of these Directives which, as pointed out above, lay the grounds for the creation of "three strikes approach mechanisms" entailing broad, systematic surveillance of individuals’ use of the Internet." [Par. 21]

The EDPS lays out the Plan B fundamental rights protections that could serve as an authoritative guide to the priorities of fundamental rights more specifically in the rewording, describing that "[t]he combination of Articles 21.4a and 33.2a and Recitals 12c, 14b and 25 of the Universal Service Directive probably ensure that any cooperation mechanism has to (1) respect the protection of privacy and personal data of individuals; (2) avoid the systematic monitoring of Internet usage and (3) respect due process, meaning that it is up to authorities, by applying due process, not to copyright holders or Internet Service Providers, to determine whether content is lawful or not." He concludes: "However, it would have been preferable if Amendment 138 and Article 32a had been accepted by the Council insofar as they would have strengthened these safeguards." [Par. 22]


http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/Consultation/Comments/2009/09-02-16_Comments_ePrivacy_EN.pdf




Three Strikes Laws

Vigilante justice - Internet Access Termination

France, South Korea, Italy, New Zealand, UK

Graduated Response - riposte graduee

military strategy (invented Mc Namara during the Cold War to fight Russian nuke menace)

educational notice

how to secure your wireless connection if not you.

Temporary suspension of account - Digital Guillotine. Digital Ostracism

not general scanning for other materials

facing data protection problems


ACTA

Internet Provisions being negotiated today

Increased ISP liability.

introduce duty to monitor/filter

must implement a notice and takedown regime

increased standard for criminal copyright

change the definition of piracy and counterfeiting

anti-circumvention provisions

there’s an exception for private data. but there are no tools.


The Priority of Privacy

under attack by automated systems for copyright enforcement

about the systematic reorientation of our expectations of privacy and the infrastructure of dissemination


Eddankatz 31intl dpa_copyrightprivacy_slides

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