Out-Law has an interesting op-ed piece about the decline of intermediary safe harbours under the E-Commerce Directive. The basic premise of the article is that a combination of factors — the increasingly broad meaning given to constructive knowledge, liability for repeat uploads, duties to monitor for infringement — means that the notice-and-takedown system is providing far less meaningful protection for hosts, ISPs and web services than it once did. From the article:
[hosts and service providers operating in Europe] have none of the clarity that Judge Louis Stanton’s Google and Viacom ruling gives to their position in US law. It is not true to say that hosts’ rights have been completely eroded. What these various cases mean, in the absence of a precedent-setting ruling on constructive knowledge, is that there is doubt about exactly what hosts’ rights are. And where there is doubt and uncertainty, there should be caution. It is impractical for ISPs, search engines, hosts and other service providers to monitor all use of their services, but without a clear signal from the courts on what their liabilities are, such companies will have to be more vigilant about the use of their services in Europe than in the US.
To this list, I’d add the fact that the E-Commerce Directive safe harbours are drafted in such a way that they often apply only to a small subset of intermediaries’ services: ‘mere’ transmission or storage, without more. In an age of content-driven business models, suggested search queries, deep search and user-generated content, this makes their application to web application providers far from uncertain.
“Whilst all reasonable people know that any form of physical activity is both unpleasant and dangerous, and probably unhealthy as well; and whilst sport, which is communal physical activity, suffers the added feature of exposing its participants to the perils of tribal barbarism; nonetheless the law has never regarded the playing of sport as contrary to public policy or even unreasonable, and therefore the mere participation in sport cannot of itself constitute contributory negligence. …”
According to a report by English ISP XLN Telecom, access to broadband internet services is more important to small and medium-sized businesses than gas, water and other essential services.
The survey, which contacted 657 small UK business owners, found that 77 per cent of respondents listed telephones as ‘essential to the running of their company, while 76 per cent listed electricity. In third place: business broadband (67 per cent), with water and gas trailing on 39 per cent and 19 per cent, respectively. 76 per cent indicated that broadband was an ‘essential tool’, up from 11 per cent a decade ago.
This suggests that businesses facing disconnection under the reserve powers created by the Digital Economy Act 2010 (UK) will incur a substantial burden — which raises the question whether the burden is disproportionate to the harm. Meanwhile, residential users report broadband more important than food. Hmmm.
On 24 September 2010, an archive of emails from London-based law firm ACS:Law was leaked onto the internet. The archive was unencrypted, and had been obtained as part of an ongoing campaign by internet activists to expose the firm’s copyright enforcement practices. The emails contained a great deal of personal information — which I won’t repeat here — but suffice it to say, this information was of a highly personal nature (IP addresses, filenames, names, postal addresses). ISPs were quick to respond:
“Our first concern is with our customers but we have been obliged to respond to court orders requiring that we disclose customer data. However, there is increasing evidence that there are deep concerns regarding the integrity of the process being used by rights holders to obtain customer data from ISPs for pursuing alleged copyright infringements.
We need to have further confidence that the initial information gathered by rights holders is robust and that our customers will not be treated unfairly. We are urgently exploring how this can be assured, including through the assistance of the courts.” Read more »
I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (Through the Looking Glass, c vi) After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.
It looks like the Nigerian 419 scammers are getting more sophisticated. A South African investor found his Australian property sold to third party purchasers without his knowledge after having his email account hacked:
Fraudsters swiped Mildenhall’s email login credentials and obtained personal property documents before selling a house and sending funds to Chinese bank accounts. The scammers hoodwinked real estate agents, banks and local land registrars.
Mildenhall only learned of the scam, seemingly by chance, after he contacted by a former neighbour last week, just in time to stop the finalisation of the sale of a house. Another house owned by Mildenhall was sold in June.
“They had a comprehensive understanding of how transactions take place and of the legal processes. If they are sophisticated as they seem to be, identity checks will not be enough — they can forge them.”
Here’s the property in question. Unfortunately for Mr Mildenhall, under Western Australian real property law, he’s unlikely to have a claim against the purchaser if the new interest was registered. However, he will probably be able to get compensation from the Torrens claim pool. Read more »
An agreement reached between UK ISPs and rights-holders will see ISPs footing 25 per cent of the bill for implementing the new graduated response regime required under the Digital Economy Act 2010 (UK), the UK Government announced today. Rights-holders, represented by music and film industry associations, will pay the remaining costs. The ISPs are (understandably) less than pleased:
“It is absolutely outrageous that ISPs will be forced to pay for the costs of the music and film industries to enforce their own copyright”, said Andrew Heaney, Director of strategy, TalkTalk
We continue to believe that ISPs should bear a greater proportion of the costs of communicating with their customers about illegal P2P use on their networks,” said Adam Liversage, director of communication at the BPI.
These costs can be grouped into four main categories: subscriber identification (manually matching IP addresses to subscribers, sending out notices to subscribers and logging the allegation); list compilation (compiling and forwarding subscriber lists to rights-holders, when requested); implementation costs (one-off costs to develop the required software and train staff); and subscriber appeal costs (appeals against allegations will, for now, remain free to subscribers).
Let’s see how long it takes an ISP (or wrongfully-accused subscriber) to mount a legal challenge to the Act’s validity or implementation.
At ancient Delphi the oracle spoke to Apollo’s chosen intermediary. Originally a male monster (python), she had evolved in later mythology into a wise middle aged woman. Nevertheless, her disjointed babblings were recorded by attendant (male) priests who rendered them into ambiguous verse which was in turn open to endless interpretations. It all sounds like the attempt of an intermediate Court of Appeal to explain Perre v Apard Pty Ltd to trial judges and litigants.
As many have argued, the internet etches an indelible tattoo upon the reputations of those whom people tag, ridicule and ‘out’ — be they cat women, dog poopers or just obnoxious celebrities. But this is probably nothing new:
All of us now live under the threat of easy and instant humiliation. It’s no longer just celebrities and business executives who need to think about aggressive reputation-protection and face-saving techniques.
“Human nature hasn’t changed,” says Jonathan Bernstein, a crisis consultant in Los Angeles. “There have always been people whose aim in life was to cause pain to others. If they saw people embarrassing themselves, they got pleasure in sharing that information. Before the Internet, they had to gossip with their neighbors. Now they can gossip with the world.”
Others argue that there has been a ratcheting up of meanness—that the changes in technology have made us nastier and more cynical. “It’s like a blood sport,” says Mr. Fink, who runs a crisis-management firm in Los Angeles. “It feels like everyone has their cellphone out, ready to take a photo that will hurt someone else.”
The Electronic Frontier Foundation has posted video from a great panel discussion on how platform architecture affects the rights and choices available to users. Cindy Cohen chairs the panel, which begins with a basic overview of Lessig’s ideas about code and policies, and moves through various stories which illustrate how decisions made during system design can affect user privacy and data security after launch. Definitely worth a watch.