Germany has approved a draft law that will enable businesses to run open WiFi hotspots without being held liable for the copyright infringements of their customers. Copyright holders will still have the ability to request that certain sites are blocked
to prevent repeat infringement.
In most jurisdictions it's standard practice for those who commit online copyright infringement to be held responsible for their own actions. However in Germany there is a legal concept known as Störerhaftung (interferer liability) where a third party who played no intentional part in someone else's infringements can be held responsible for them. This type of liability has raised its head in a number of file-sharing cases where WiFi owners have been considered liable for other people's piracy.
As a direct result of this precarious legal position, Germany has found itself trailing behind its European neighbors when it comes to providing public Internet hotspots. Some have described the situation as an embarrassment for one of the most
advanced countries in the world.
Under pressure and in response to a European Court of Justice opinion on the matter last March, the government eventually decided to rescind liability for open WiFi operators. Since then the government has been
working on changes to local law to bring it into line with EU standards. A third draft presented by Brigitte Zypries, Minister for Economics and Energy, has now been adopted by the cabinet.
Should the amendments receive parliamentary approval,
businesses will be free to offer open WiFi to their customers, without fear of being held liable for their actions. They will also be able to offer truly open WiFi, with no requirement to verify the identities of users or have them log in with a
While copyright holders won't be pleased by the changes, they will still have opportunities to clamp down on infringement. If a certain WiFi location is connected with online piracy, a properly filed complaint will require the operator
to bar access to websites connected with the infringement.
Earlier this week we explained how the tide is turning against the European Commission's
proposal for Internet platforms to adopt new compulsory copyright filters as part of its upcoming Directive on Copyright in the Digital Single Market. As we explained, users and even the European Parliament's Committee on the Internal Market and Consumer
Protection (IMCO) have criticized the Commission's proposal, which could stifle online expression, hinder competition, and suppress legal uses of copyrighted content, like creating and sharing Internet memes .
Since then, a leaked
report has revealed that one of the European Parliament's most influential committees has also come out against the proposal . As
the IMCO committee's report had done, the report of the European
Parliament's Legal Affairs (JURI) Committee not only criticizes the upload filtering proposal (aka. Article 13, or the #censorshipmachine), but renders even harsher judgment on a separate proposal to require online news aggregators to pay copyright-like
licensing fees to the publishers they link to (aka. Article 11, or the link tax ). We'll take
these one at a time.
JURI Committee Scales Back the EU's Censorship Machine
The JURI committee would maintain the requirement for copyright holders to "take appropriate and proportionate
measures to ensure the functioning of agreements concluded with rightsholders for the use of their works." But the committee rejects the proposed requirement for automatic blocking or deletion of uploaded content, because it fails to take account of
the limitations and exceptions to copyright that Europe recognizes, such as the right of quotation. The committee writes in an Explanatory Statement:
The process cannot underestimate the effects of the identification
of user uploaded content which falls within an exception or limitation to copyright. To ensure the continued use of such exceptions and limitations, which are based on public interest concerns, communication between users and rightsholders also needs to
The committee also affirms that the agreements between rightsholders and platforms don't detract from the safe harbor protection for platforms that Europe's E-Commerce Directive already provides (which
is analogous to the DMCA safe harbor in the U.S.). This means that if user-uploaded content appears on a platform without a license from the copyright holder, the platform's only obligation is to remove that content on receipt of a request by the
We would have liked to see a stronger denunciation of the mandate for Internet platforms to enter into licensing agreements with copyright holders, and we maintain that the provision is better deleted altogether.
Nonetheless, the committee's report, if reflected in the final text, should rule out the worst-case scenario of platforms being required to automatically flag and censor copyright material as it is uploaded.Â
European Link Tax
Faces its Toughest Odds Ever
The leaked report goes further in its response to the link tax, recommending that it be dropped from the new copyright directive altogether. Given the failure of smaller scale link tax schemes in
Germany and Spain , this was the only sensible position for the committee to take. The Explanatory Statement to the report correctly distinguishes between two separate aspects of the use of news reporting online that the Commission's original proposal
Digitalisation makes it easier for content found in press publications to be copied or taken. Digitalisation also facilitates access to news and press by providing digital users a referencing or
indexing system that leads them to a wide range of news and press. Both processes need to be recognised as separate processes.
Instead of introducing new monopoly rights for publishers, the JURI committee suggests
simplifying the process by which publishers can take copyright infringement action in the names of the journalists whose work is appropriated. This would address the core problem of full news reports being republished without permission, but without
creating new rights over mere snippets of news that accompany links to their original sources. Far from being a problem, this use is actually beneficial for news organizations.
The JURI committee report is just a recommendation
for the amendment of the European Commission proposal, and it will still be some months before we learn whether these recommendations will be reflected in the final compromise text. Nonetheless, it is heartening to see the extreme proposals of the
Commission getting chiseled away by one of the Parliament's most influential committees.
The importance of this shouldn't be underestimated. Although the above proposals are limited to Europe at present, there is the very real
prospect that, if they succeed, they will pop up in the United States as well. In fact, U.S. content industry groups are already advocating for the adoption of an upload filtering proposal stateside. That's why it's vital not only for Europeans to speak
out against these dangerous proposals, but also for Internet users around the world to stand on guard, and to be ready to fight back.
The Premier League has secured a court order to help tackle rights-infringing video streams of football matches via Kodi set-top boxes. The order gives the league the means to have computer servers used to power the streams blocked.
Until now, it
could only go after individual video streams which were relatively easy to re-establish at different links.
There have been several arrests of people selling set-top boxes pre-installed with both Kodi software and additional third-party add-ons
that make it possible to watch copyright-infringing film and TV streams.
According to a recent survey commissioned by the security firm Irdeto, Kodi boxes are particularly prevalent in the UK.
It reported that 11% of Brits that admitted to
watching pirated streams in a survey said they did so via a Kodi box. Doing so is not thought to be illegal. Derbyshire County Council trading standards officers recently explained:
Accessing premium paid-for content
without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws,
That might seem a surprising position for an
enforcement department to take, but support for it comes from an authoritative quarter. The European Commission doesn't believe that consumers who watch pirate streams are infringing. From the user's perspective they equate streaming to watching, which
is legitimate. The European Commission gave its view during the hearing of an important case currently before Europe's highest court involving the Dutch anti-piracy group BREIN, which wrote in its summary of the hearing:
The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is plug & play . This king of pre-programmed player
usually are offered with slogans like never pay again for the newest films and series and completely legal, downloading from illegal sources is prohibited but streaming is allowed . In summary the pre-judicial questions concern whether the
seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.
It has also been reported that the UK government is considering new laws against streaming pirated content, but
discussions are at an early stage
The Motion Picture Association of America will stand cheek by jowl with those European film and TV industries fighting to preserve territorial licensing monopolies in Europe.
In an interview with Variety, MPAA chairman Christopher Dodd said he
would be playing a supportive role in the European industry's efforts to air its objections to a proposal for borderless access in Europe to movies and TV online. The chief concern appears to be the European Commission's wish to extend the
so-called country of origin principle to cover digital services, meaning that E.U. broadcasters could carry their online programming in other countries if they have cleared the rights in their own home country.
Although rights-holders would
be allowed to opt out of such arrangements and retain their rights in other E.U. countries, entertainment execs fear that most European producers won't have the bargaining power to insist on that in their negotiations with the big broadcasters they rely
on to finance their work.
Opposition to the commission's proposal for pan-EU digital licensing of broadcaster programming is led by France and Germany. France's Ministry of Culture had openly expressed its opposition. The upper house of Germany's
parliament has also expressed concern over whether the commission sufficiently takes into account rights-holders' interests.
The European Union agreed Tuesday on new rules allowing subscribers of online services in one E.U. country access to them while traveling in another.
The new portability ruling is the first step of regulation under a drive by the European
Commission to introduce a single digital market in Europe.
Announced in May 2015, the proposed Digital Single Market was met with full-throated opposition from Hollywood and Europe's movie and TV industry, which viewed it as a threat to its
territory-by-territory licensing of movies and TV shows.
The European Commission, the European Parliament and the E.U.'s Council of Ministers all agreed to new laws which will allow consumers to fully use their online subscriptions to films,
sports events, e-books, video games or music services when traveling within the E.U.
The online service providers will have nine months to adapt to the new rules, which means will come into force by the beginning of 2018.
Representatives Blake Farenthold and Jared Polis just re-introduced their You Own Devices Act (YODA), a bill that aims to help you
reclaim some of your ownership rights in the software-enabled devices you buy.
We first wrote about YODA when it was
originally introduced back in 2014 . The bill would go a ways toward curbing abusive
End User License Agreements (EULAs) by making sure companies can't use restrictions on the software within your device to keep you from selling, leasing, or giving away the device when you're done with it by. The bill would override EULAs that purport to
limit your ability to transfer ownership of the device (and its software) and would make sure that whoever ends up with your device has the same access to security and bug fixes that you would have had.