The level of secrecy which surrounds ACTA, the developing international agreement that aims to target piracy and counterfeiting globally, is unprecedented. It took nearly two years for negotiators to release a heavily redacted draft to the public, but by that time citizens were already fairly well informed having gathered information from previously leaked documents.

Bypassing U.S. opposition to the release of an official text, last night yet another draft leaked out, published by Knowledge Ecology International. The draft contains details on the round of ACTA negotiations which took place last month in the United States.

Notable in the 29 page draft titled ‘Consolidated Text, Reflects Changes Made During the August [Washington] DC Round’ are changes to Section 4 – Enforcement of Intellectual Property Rights in the Digital Environment.

With the relevant texts having been removed from earlier drafts, it appears that countries will no longer be required to impose secondary liability for infringements onto their ISPs. Previously, ISPs would be held liable for the copyright infringements of their customers when they failed to respond swiftly to ‘notice and takedown’ requests from copyright holders.

Although dropping the ISP liability paragraphs could be seen as a step in the right direction, there are still various strict ‘anti-infringement’ measures in place. The countries that sign up to ACTA are being asked to provide relevant authorities with the power to order ISPs to hand over the identities of customers suspected of infringing copyright to rights holders on the presentation of a “sufficient claim of infringement”.

Countries are also required to provide “remedies to prevent infringement and remedies which constitute a deterrent to further infringement” along with enforcement procedures which address “technologies that can be used to facilitate widespread infringement”. Although the text is open to interpretation, it opens the door to all kinds of filtering systems that may be used to block websites which are deemed illegal, a measure that is high up on the ACTA wish list of anti-piracy groups.

Participants are further encouraged to “promote cooperative efforts within the business community to effectively address infringement” while preserving “legitimate competition”, “freedom of expression, fair process and privacy”.

According to an analysis by Michael Geist, the anti-circumvention (DRM-breaking) provisions are still on the table.

“There is general agreement on a broad provision that largely mirrors the WIPO Internet treaties in calling for ‘adequate legal protection and effective legal remedies against the circumvention of effective technological measures.’ If the obligation were to end there, the provision would simply ensure that all ACTA countries establish anti-circumvention rules, with all the flexibility that WIPO allows,” Geist explains.

However, the United States wants to go further – time will tell if they get their way.

Article from: TorrentFreak.

In 2008, the New Zealand Government proposed new legislation to deal with illicit file-sharing. The law was the subject of widespread public protests which eventually caused the Government to scrap their plans and go back to the the drawing board in order to remove the “guilty upon accusation” elements.

Earlier this year the Government proposed a modified Bill to tackle copyright infringements on the Internet. The major feature of the Bill is a so-called “3 Strikes” regime which would enable copyright owners to claim damages and make requests to the District Court for infringers to be disconnected from the Internet for up to six months.

The Bill unanimously passed the first reading in Parliament in April and was referred to the Commerce Select Committee, who heard submissions on the Bill in Parliament today. During the hearing parties both for and against got the chance to have their say and propose changes to the drafted legislation.

One of the most radical proposals at the hearing came from the New Zealand Law Society. The current draft is insufficient to deter serial infringers from downloading music and movies without consent from copyright holders, they argued. Instead of simply suspending the account of infringers, they suggested taking offenders’ right to Internet access away entirely.

“The Bill should include a power to allow the court to order that a person cannot open an account with another ISP during the period of the suspension,” said Clive Elliott, the convenor of the society’s intellectual property law committee.

“This would remove uncertainty about how infringement notices are issued, clarifying whether copyright owners or ISP’s are responsible for dealing with issues where infringement notices are challenged, and removing restrictions on the Copyright Tribunal’s ability to award costs.”

Aside from proponents of more stringent measures, there were also several parties that suggested scrapping the ‘three-strikes’ measures entirely.

“Disconnection needs to be removed from this Bill. It needs to go on pragmatic and on principled grounds,” said InternetNZ Policy Director Jordan Carter told the Committee.

“A disconnection penalty is a response way out of line with the harm caused by infringing file sharing. People are using the Internet for a huge range of important economic and social tasks. Cutting off their accounts is akin to banning someone from using the postal system because they were caught posting copied music CDs,” he added.

Seach giant Google also joined the discussion, and raised a valid point that is a core problem of these types of legislation. Since the Bill targets account holders who are linked to the infringing IP-addresses and not the actual infringers, libraries, Internet cafes and public hotspots might be terminated as collateral damage.

The Commerce Select Committee will now review the submissions from the various parties and report back to the Government later this year.

Article from: TorrentFreak.

As the hearing entered its fourth day, AFACT, representing the Village Roadshow and more than thirty Hollywood studios, and ISP iiNet were back in Federal Court for the appeal in their copyright infringement dispute. Three judges will eventually decide if iiNet can be held accountable for copyright infringements carried out by its customers.

In the meantime, AFACT would like to go a step further, as it insisted today that Internet subscribers should not only be responsible for their own infringements, but for those carried out by anyone using their account.

AFACT lawyer Christian Dimitriadis told the panel of three judges that is was irrelevant if an account holder infringed copyright or not, adding: “The fact that the user may be another person other than the subscriber doesn’t change the fact that the information relates to the personal affairs of the subscriber.”

Dimitriadis said that even though the Internet bill-payer was the only one to physically enter into an agreement with iiNet, by default all other users of that connection must also agree to be bound by the same terms. AFACT continues to argue that if subscribers break the terms of their agreement and use their accounts to break the law, iiNet has the ability and power to terminate their contracts and disconnect them from the Internet.

According to another report today, that notion has started to receive the sympathy.

In a continuation from our earlier report, yesterday two of the appeal judges questioned Justice Cowdroy’s reasoning in the original ruling which deemed that disconnecting customer accounts was an unreasonable response to infringements.

Cowdroy reasoned that from the evidence provided in the case, it could not be decided to what extent any subscriber had used their account for infringement.

Lawyer for iiNet Richard Cobden told Justice Arthur Emmett that on this basis it would unreasonable to close a customer account. Justice John Nicholas then asked if the evidence ever showed to what extent customers used their accounts for piracy.

“We’re just saying that the reasonable step that would be incumbent upon an ISP must be tailored to what has been put in front of them,” said Cobden, according to The Australian.

“And if what’s put in front of us is that there’s not a significant use of quota on an account in relation to this, it affects the question of whether the reasonable step to be taken is to turn over the whole account which, as we say, is what our learned friends seek.”

In other words, the evidence provided by AFACT – which shows that a particular account was infringing copyright at a precise moment in time – does not show to what extent an account was used to infringe copyright overall.

Justice Emmett, however, suggested that maybe an important point had been arrived at.

“Maybe the stage is reached where it’s reasonable to say, ‘Look, you’ve had warning after warning. Maybe you’re doing other lawful things, but if you insist on doing this unlawful activity, we’re going to close you down’.”

Cobden later countered that he could only go by the evidence provided in the case, and that shutting down an account was not an appropriate response to it.

iiNet weren’t the only ones to point to a lack of evidence in order to refute an argument. In the original hearing, iiNet said the existence of its legal content distribution platform, Freezone, showed that the ISP had made efforts to discourage users from sharing illegal content and that this model was a better way to deal with piracy than legal action by outfits such as AFACT.

AFACT lawyer David Catterns told the Federal Court that the existence of Freezone is irrelevant, since there is no evidence that portal reduced piracy on iiNet’s network.

The two sides also clashed on the implications of the Telecommunications Act and whether ISPs could use it as a reason not to deal with infringement notices issued by rights holders such as AFACT.

The hearing continues.

Article from: TorrentFreak.

For the third day, AFACT, representing the Village Roadshow and several Hollywood studios, and ISP iiNet were back in Federal Court for the appeal in their long-running copyright infringement dispute. Three judges will be required to decide the outcome – should iiNet be held accountable for copyright infringements carried out by its customers?

Yesterday, lawyers for AFACT argued that iiNet had the power to stop its customers infringing on the rights of the studios represented by the anti-piracy group.

Today, iiNet lawyer Richard Cobden detailed why the ISP had not acted on the copyright infringement notices it received from AFACT. He also questioned whether by receiving infringement notifications but doing nothing with them, the ISP should then be considered as an authorizer of those reported infringements.

Referring back to iiNet’s assertion yesterday that disconnecting customers would not be a “reasonable” response to infringement notices, Cobden said that AFACT never asked for a graduated response, only account terminations on the basis of its evidence – evidence which iiNet says is of questionable reliability.

Justice Arthur Emmett went on to voice concerns that the appeal in this case might never solve the dispute between the parties and that copyright infringement might continue whatever the outcome.

Emmett said that if iiNet’s assertion was accepted – that AFACT had failed to suggest “reasonable steps” the ISP could take in response to infringement notices – the anti-piracy group could simply submit new notices with new terms and then sue iiNet again.

“It just seems to me that out there is a commercial solution and there’s nothing we can do that will ultimately resolve this problem,” said Emmett.

However, as noted here, discussions between AFACT, ISPs and the Internet Industry Association (IIA) on the possible introduction of a code of conduct for dealing with infringement took place in 2007 and 2008. Those discussions effectively ended after AFACT announced action against iiNet.

The appeal continues.

Article from: TorrentFreak.

After successfully defending legal action brought by Hollywood anti-piracy group AFACT back in February, iiNet is back in court today for day two of the appeal. AFACT, representing the Village Roadshow and many Hollywood studios, would like the panel of three judges in the Federal Court to hold iiNet accountable for copyright infringements carried out by its customers. iiNet maintains it is not responsible.

As detailed yesterday, AFACT – which has chosen not to go after primary infringers (iiNet customers using BitTorrent) – says that by doing nothing to stop infringements, iiNet effectively ‘authorized’ their illegal activity which renders the ISP liable for their actions.

In the original hearing AFACT said that iiNet had full knowledge that its customers had been pirating AFACT members’ copyright works because the ISP had been given evidence to prove that. AFACT also stressed that the ISP had enough power to do something about those infringements, either by taking technical measures such as throttling, or terminating accounts.

As reported by ARN today, there are four steps to identify authorization:

A person provides the means of infringement, a person makes copyright material available, a person provides the means of infringement and whether reasonable steps were taken to prevent copyright, that is, the power to prevent.

In the original hearing it was decided that since iiNet did not provide the means to infringe as indicated in the opening guideline (as BitTorrent was out of its control) the other steps were irrelevant. AFACT is now arguing that the steps in the guideline do not have to be read in strict order.

A veteran from the earlier hearing, Richard Cobden representing iiNet insists that the guidelines be handled sequentially, as they were originally.

When it was AFACT lawyer David Catterns’ turn to speak, he returned to the topic he initiated yesterday, that iiNet had plenty of power to do something about BitTorrent infringements.

In the original hearing iiNet chief Michael Malone said privacy laws prevented the company from identifying customers, but Catterns pointed to the procedures employed by the ISP to deal with customers who send out spam. These, he said, lead to account suspension and ultimately termination.

For iiNet, Cobden said no matter which steps were taken, be they letters or throttling, AFACT would not be happy unless the measures ultimately ended in account termination. He said that this most final of sanctions would not be a reasonable action to take on the basis of notices generated by AFACT. In the original hearing, Justice Cowdroy agreed with this assertion.

According to iTNews, Catterns also referred to a press release that iiNet had sent out earlier about its legal battle with AFACT. The fact that the ISP chose to use BitTorrent (it ran its own installation of RivetTracker) to distribute the announcement, argued Catterns, sent a message that it the ISP had no intention of doing anything about infringements.

The hearing continues.

Article from: TorrentFreak.

“Piracy hurts, it hurts our economy,” was one of the first lines Vice President Joe Biden spoke today, setting the tone for his grim speech. According to the new plan, piracy is a major threat to the US economy and a global crackdown is needed to save businesses from going bankrupt.

Interestingly, Biden’s statement stands in contrast with what the Government Accountability Office told US congress earlier this year, as it concluded that there is virtually no evidence for the claimed million dollar losses by the entertainment industry.

“Lack of data hinders efforts to quantify impacts of counterfeiting and piracy,” was one of the main conclusions from their report. In fact, copyright infringements may also benefit the entertainment industries and third parties, the Government Accountability said, adding that piracy could actually benefit the economy.

Nevertheless, Biden said that the US was going to “lead by example” and crack down on websites that allow the public to download and share copyrighted works. In addition, the US will ‘push’ foreign governments to do the same in their countries. Whether this ‘push’ would include threats similar to the ones the US made against Sweden over The Pirate Bay was left in the dark.

To top it off the Vice President reiterated the words commonly uttered by pro-copyright lobbyists such as the RIAA and MPAA. “Piracy is theft, clean and simple, it’s smash and grab,” Biden said, comparing unauthorized downloading to robbing a jewelry store. Although semantically incorrect, since ‘theft’ implies that something is taken away and not copied, the message is clear.

Aside from digital goods the US is also going to crack down on counterfeit products. According to Biden these may even be a threat to public health or national security, referring to the dramas that could come from soldiers wearing fake Kevlar vests.

On the digital side no websites or file-sharing applications were specifically named by Biden, nor are any listed in the Joint Strategic Plan. However, we expect that quite a few BitTorrent sites will be targeted, directly or indirectly.

Article from: TorrentFreak.

Last month, a US Court ruled that the Lime Group, the company behind Limewire, was liable for the copyright infringements committed by its users. Two weeks later the Lime Group asked the court to reconsider this judgment. This request was followed by one from the RIAA, asking the court to shut down Limewire via a permanent injunction.

The RIAA argues that Limewire’s operation has to be stopped immediately, to avoid it doing any more harm to the music industry in the future. Interestingly enough, very little argumentation or evidence is given for any real losses suffered by the record labels.

“It is patently obvious that the rampant illegal conduct that Lime Wire intentionally induced, and for which it has been adjudged liable, will continue uninterrupted day after day unless and until the Court issues an injunction to rein in this massive infringing operation,” RIAA’s lawyers wrote to the Court.

“Every day that Lime Wire’s conduct continues unabated guarantees harm to Plaintiffs that money damages cannot and will not compensate,” RIAA’s legal team continues. “The scope of the infringements that Lime Wire induced – and that continue to this day – boggles the mind.

The RIAA is right in saying that Limewire users have committed, and are committing many millions of infringements, but there is very little evidence for the massive damage that this has cost. Thus far, a real assessment of the claimed losses has been lacking in most file-sharing related legal cases.

“It does not require sophisticated mathematics to calculate that the likely damage award in this case will run into the hundreds of millions, if not the billions of dollars,” the RIAA argues. However, one of the few academic papers (pdf) that looked at the relationship between actual downloads and lost sales to the music industry has found that there’s no direct correlation.

With that said, the outcome of this case could potentially change the file-sharing landscape for good. Despite BitTorrent being the leading file-sharing protocol for several years already, Limewire is most likely the most installed P2P application on the market. In 2008 LimeWire was the most installed P2P application with an impressive market-share of 37%, compared to 14% for runner-up uTorrent.

If the RIAA score a victory in court against Limewire, hundreds or millions of people will have to seek an alternative download client, which might mean a significant boost in user numbers for some of the major BitTorrent applications.

Article from: TorrentFreak.

The California-based company called for a jury trial in the United States to settle the issue. RapidShare responded by requesting that the case be postponed and transferred to Europe and heard under German law. This request was denied last month and the case went ahead in the United States.

This week the District Court of California rejected Perfect 10’s request for a temporary injunction. The Court stated in its ruling that as a file-hosting company, RapidShare cannot be accused of any copyright infringements. The ruling is a significant victory for RapidShare and the case sets an important precedent in the United States.

“The view that RapidShare does not promote any infringements of copyright, unlike other file-hosts, appears to be gradually catching on,” Christian Schmid, founder of RapidShare said.

“It is a milestone for us that this is also happening in the US. We are happy that the court in California has not bought into the odd line of argument put forward by Perfect 10 and we look forward to increasingly emphasize the major difference between RapidShare and illegal share-hosts,” Schmid added.

For Rapidshare this is the second high profile legal victory this month. Earlier, a German Court of Appeal overturned an earlier verdict in the case against the movie rental company Capelight Pictures. In the verdict it stated that RapidShare is not liable for acts of copyright infringement committed by its users.

It is not entirely clear what Schmid means by “illegal share-hosts” in his comment, but we assume that he refers to sites that encourage copyright infringement. The company previously said it would distance itself from other file-hosters that try to win the favor of those users that upload and distribute copyrighted content.

RapidShare itself does all it can to avoid such claims and is hoping to convert pirates into paying customers. Instead of simply removing pages where copyrighted material can be downloaded, RapidShare would like to redirect users to an online store where the same content can be bought legally.

Article from: TorrentFreak.

One of the cases in which RapidShare lost was that against the movie rental company Capelight Pictures. This case was appealed by RapidShare and the Dusseldorf Court of Appeals overturned the earlier verdict yesterday, stating that the file-hoster is not responsible for any copyright infringements committed by its users.

“We are very happy about the judgment. The court has confirmed that RapidShare is not responsible for the contents of files uploaded by its users,” Rapidshare founder Christian Schmid said commenting to the outcome of the appeal.

“The judgment shows that attempts to denounce our business model as illegal will not be successful in the long run. With its 1-click-filehosting model, RapidShare responds to legitimate interests of its users and will continue to do so in the future,” Schmid added.

The arguments by the Court of Appeals go directly against earlier decisions in Germany where RapidShare was ordered to filter content proactively. The Court argued that RapidShare’s business is acting within the law and discounted the preventive measures that were suggested by the copyright holder.

Filtering based on keywords is not effective since that would result in many false positives, the Court noted. Likewise, manually reviewing uploaded content is not deemed feasible because RapidShare does not have the manpower to do this.

Another suggestion, banning file formats such as RARs, was also tossed out since this file type says little about whether a file is copyrighted or not. RAR is simply a format used to compress data, regardless of the copyrighted status of the files, the court explained.

The verdict is undoubtedly a major victory for RapidShare, and it will also reflect positively on other file-hosters and even torrent sites. In fact, many of the arguments used by the Court hold also for the average torrent site, as long as they stay away from other means of facilitating copyright infringement.

Article from: TorrentFreak.

BREIN’s lawyer argued that since The Pirate Bay is responsible for millions of copyright infringements every day, the site should be blocked to visitors from The Netherlands.

BREIN won that case and Fredrik, Gottfrid and Peter were ordered to block Dutch users before March 1st 2010 or face penalties of 5,000 euros per person, per day.

The defendants, who claimed they were not responsible for the site’s operations, announced they would not appeal the decision. However, since they said they were no longer involved with the site, they therefore don’t have the ability to block Dutch users either. Indeed, The Pirate Bay remains accessible to the Dutch to this day.

But of course, there is another technique which the movie industry can use to have sites blocked which doesn’t involve suing sites like The Pirate Bay. As pioneered in several other countries by the music industry, BREIN appears to be going after Dutch ISPs.

According to information received by TorrentFreak, BREIN has begun threatening Dutch ISP Ziggo in an attempt to force them to block The Pirate Bay. Ziggo is the largest cable Internet provider in The Netherlands and in 2009 pulled in nearly 1.3 billion euros in revenue from its 7.2 million Internet, TV and telephone customers.

Our source, who has provided us with credible information in the past, says that BREIN is demanding that Ziggo implements a block on the following grounds:

1. The Pirate Bay is guilty of large scale copyright infringement
2. The Pirate Bay founders have been convicted
3. The Pirate Bay refuses to work with rights holders to solve piracy issues
4. Ziggo can easily block the site with simple technical measures.

BREIN is apparently threatening Ziggo with Article 6:162 of the Dutch Civil Code which reads:

“A person who commits an unlawful act against another which is attributable to him, must repair the damage suffered by the other in consequence thereof.”

To this end, BREIN wants Ziggo to implement a DNS and IP address block of The Pirate Bay, with any future domain names and IP addresses of the site to be blocked within 24 hours of notification by BREIN. This demand is similar to a court order that is currently in effect in Italy, one that is also easy to bypass for tech-savvy users.

TorrentFreak contacted BREIN boss Tim Kuik who politely told us that he had no comment.

At the time of publication a request to Ziggo’s press office for comment remains unanswered.

Article from: TorrentFreak.