Danish Presidency on the scrounge – Future Internet Assembly

Die Danish EU Presidency is on the scrouge. For the EU Future Internet Assembly they raise fees from lobbyists. Makes me wonder if they fear EU presidency conferences become the new food stamps. I find it unpleasant that even a low walled garden would exclude parts of the Dutch population e.g. students from participation.

Future Internet Assembly May 7 – 11, 2012 – Aalborg Congress & Culture Center – Aalborg-Denmark Welcome to the online registration of the Future Internet Assembly.

Registration fee Future Internet Assembly (FIA) (May 10 – 11, 2012): DKK 1.500 / EUR 200 if you register latest April 23, 2012. After April 23, 2012 the registration fee is DKK 1875 / EUR 250
Future Internet Week: DKK 375 / EUR 50

The registration fee for Future Internet Week includes:
– Free access to Future Internet Week and all sessions on May 7 – 9, 2012
– Lunches & coffee breaks during the days of the program

The invitation was sent from a Commission address:

The Future Internet Assembly (FIA) of 2012 will be held in Aalborg on May 10-11, under the Presidency of Denmark in the EU Council. The theme for FIA-Aalborg will be “Smart Cities and Internet of Things”, and the programme promises many interesting discussions on how the Future Internet can be used to make our cities smarter and become a basis for more innovation, how the architecture of the Internet of Things relates to the Future Internet and examples of successful business models for IoT applications. There are also other interesting workshops on the impact of HTML5, interoperability of clouds, gaming and future networks.

And they even offer “early bird” discounts. How does it suit the dignity of a public office? I don’t know but at the Commission most staffers do not see any difference.

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The Avaaz Petition on ACTA and the Commission campaign

I haven’t signed the Avaaz Petition on ACTA (because I find it exaggarated) but 1.3 Mio citizens have:

As concerned global citizens, we call on you to stand for a free and open Internet and reject the ratification of the Anti-Counterfeiting Trade Agreement (ACTA), which would destroy it.

The Commissioner responsible, Mr. Karel De Gucht, undertook an effort to answer the storm of public attention and delivered an equally distorted propaganda message to debunk the public concerns expressed by citizens of the European Union. See also the new website created as a response.

However, the agreement – while not being a SOPA cousin – has direct impact on the internet.

Commissioner De Gucht earlier responded to the European Parliament:

“ACTA will indeed impose obligations with respect to the internet because of its growing importance as a means of IPR infringement. The multilateral legal framework, and namely the TRIPs agreement, was negotiated before the expansion of the internet, and it therefore lacks the minimum standards to address such problems. It is important to have an international instrument setting out a framework for addressing this type of infringement in order to make sure that international partners have the same level of protection of IPRs that the EU currently applies, with all the due guarantees provided by its acquis. Since internet content flows freely across borders, a minimum set of internet enforcement rules will allow the EU right-holders to have their intellectual creations respected in third countries and, in the case of infringements, will equip them with legal measures to defend their assets.”

Unbearable lines are now cemented, for instance it is claimed by the Commission (as well as a  few member states and the mediocre lobby support) the agreement…

• No changes: … would not require any changes to EU laws.
• Large scale: … was only directed at large-scale action
• Transparency: .. was negotiated as usual. The EU Commission was utmost transparent during the negotiations and informed Parliament.
• Balance: …”contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved”
• No forum shopping: …does not lead to “harmonisation through the backdoor”.

I doubt it would be possible to defend these lines.

The French citizen advocacy group La Quadrature denounces them as outright “lies”. I wonder why Commissioner De Gucht intervenes at all into public discourse, outreaches to parliament and makes a partisan argument. I doesn’t suit the dignity of the Commission well to argue, the Commission which did very little to resolve what she was actually asked for by Members of Parliament. The proactive partisan defense of the Commission reveals that the agreement is driven by mere administrative activism, not industry demand.

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European Internet Blocking Plans

An EU proposal on “notice and action” is in the making:

Stakeholders in particular asked for clarifications about how “notice-and-action procedures” should work in practice and this Communication presents an initiative that will help to clarify this. (see question 8).

It starts with a rewrite of the “mere conduit” principle:

Online service providers simply “transmitting” content on the Internet (for instance companies that provide consumers with access to the Internet) cannot be held liable for illegal content that is uploaded by third parties. For example, an Internet access provider cannot be held liable for providing access to an illegal website.

Note that the relationshop between providers and their clients is not covered by the new language.

Online service providers that “host”‘ content on the Internet (for instance websites on which you can view content that users themselves put online) cannot be held liable for illegal content uploaded onto their websites by others, as long as they are not aware of it. However, as soon as they become aware of this illegal content (for example via a notification), they are obliged to remove it or to block access to it immediately.

Finally, governments may not impose a general obligation on online service providers to monitor the content that they transmit or host.

As so many EU phrases “Notice and Action” takes inspiration from the American “notice and takedown”, the difference is “action” and it means blocking and takedown.

“Notice-and-action” procedures refer to rules on removing or blocking of access to illegal content by an online company, after it has received a request to do so. Internet users can submit a notification of illegal content that they have found displayed on the website of an online intermediary (such as a social network, an online vendor or a search engine). To avoid liability, the E-commerce Directive obliges the online intermediary to take action as soon as it becomes aware of the illegal content. Taking action can take the form of takedown (removing content) or blocking (disabling access to content).

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Hinze’s Preliminary Analysis of the Officially Released ACTA Text

Gwen Hinzes presents her preliminary analysis for the EFF. That is an American pressure group mostly concerned with digital media regulation, copyright and free speech. It looks to me like the general awareness is broadened. The digital media interests are fairly well represented though ACTA is much broader. Slowly Health groups are taking note of ACTA. Still the potential concerned audience is broader. I am still convinced that ACTA would lead nowhere simply because it introduces too many controversial topics at once and it uses an inappropriate process. Furthermore ACTA lacks backing, it is a risky game and no one seems to be willing to defend it.

Oh, and then there is medicrime, argues IPWatch. Not EU, CoE, so that sounds like diplomatic humour:

The Medicrime Convention of the Council of Europe sets the first international standard for criminalising the manufacturing and distribution of counterfeited medicine risking public health. And Medicrime will overtake ACTA, as the draft convention text is ready to be signed by the Committee of Ministers in May and be opened for signature in November.

The relevance of the CoE is that in recent years lobbyists from abroad discovered the good old debate shop for their agenda and didn’t fully get what the CoE was all about. So we find now the CoE coming up with all these proposals. Not really helpful but it seems mutually beneficial. Lobbying groups pressure governments to sign a CoE convention, thus undermine the very nature of the CoE institutional framework as international policy simulation.

Would the CoE be willing to offer a forum for an anti-“three strikes” Internet Access Right Convention draft for EFF and QdN, ready to sign for governments? I am sure they have still free space for that, lots and lots of opportunities in an organisation desperate to become relevant. Belarus relations seem too boring.

You won’t believe it, the CoE also develops these products for their portfolio.

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Negotiator Devigne and DG Trade’s ACTA anarchism

Journalist Monika Ermert provides a wrap-up of the ALDE hearing on ACTA for IP-Watch. Let me share my thoughts on a few other impressions from the April hearing on ACTA by the liberal group, organised by MEP Marietje Schaake (D66) and MEP Alexander Alvaro (FDP) (partial video recordings on youtube):

Servants and masters

When you have a servant you basically want him to obey his master (“you”) without the need for explicit orders and surveillance. When you are forced to give orders you don’t expect your servant to explore all means to circumvent or even oppose your will; you expect him to execute your will and act in accordance with your guidance. This applies to public servants at the European Commission as well. Usually persons in administration restrain themselves but trick a bit. Quite the opposite with DG Trade staff, they act against that rule and push everything to the max, driven by a kind of administrative activism.

What do I mean in the context of ACTA?

I am wondering who actually requested or mandated the EU negotiator to challenge the parliament or the legal base? Why does DG Trade follow an interpretation of the Parliament resolution that seems out of line with the resolution text? The resolution asked to limit ACTA to counterfeiting cases: the alternative interpretation of DG Trade is unsupported by the persons who drafted the resolution, not backed by anyone in Parliament. Did the new EU-Commissioner De Gucht endorse that an EU trade negotiator negotiates with the competent domestic legislator and democratic scrutinizer? I doubt so.

Maximalism

It is the one dimensional “maximalist attitude” which regards politics, legal technicalities, competences, balances, mandates, concerns as simple constraints to be pushed to their limits, because what matters is only your ultimate objective, maximum enforcement. You see the same strategic approach in the broadening of the agenda to include non-counterfeiting, all sorts of diverse rights and controversial legal tools. That ambition broadens also the alliance of its opponents and endangers consensus. Thus my bet that ACTA would “go nowhere”.

What fascinated me about ACTA from the very start of the process, the way in which the Commission brushed away all the technical difficulties, complicated technicalities that were so challenging in the previous ipred2 criminal sanctions process and the ipred1 debate. Unlike IP professionals and scholars they don’t care for the overall legal architecture. They would even call for the provision of “death penalty” for “suspected” counterfeiters and the only thing to hold them back would be the system of law&order, and fundamental rights including the European prohibition of death penalty, so they could not go for that.

My example isn’t as absurd as it may appear. Ironically, maybe without noticing what she called for, an Ebay representative once suggested the physical elimination of counterfeiters in a parliament hearing organised by MEP Mme Herczog, to “take them also off the offline world”. At the same meeting her colleague Arlene McCarthy (uk labour) made a crazy “direct link” between drug dealers, gun crime, child abuse websites, ip infringers and terrorism and called on the ISPs to stick to their “social responsibility” and filter the net. Most famous became the “three strikes/graduated response” idea in the context of ISP liability, language originating from military escalations and draconic penalty laws from the US for repeated offenders.

Three strikes

Net filtering isn’t very popular these days. Particularly relevant in the ACTA context are the controversial “three strikes” policies which lack political backing in Europe, quite the contrary now. At the ALDE hearing the trade negotiator had to admit that they would support non-mandatory recommendations / elements to this end as part of ACTA, because non-mandatory schemes would not change the acquis (Acquis, that is the corpus of existing legislation). I was very impressed. That was huge and I am not sure everyone in the room got the joke. As I don’t care much about the substance of ACTA but more the “technical” side, I was very amazed that they would attempt to slip through that loop hole. Quote:

You may call me a liar [hehe] but that is very clearly the Commission’s position and I will stand by it.

You see, the Commission staff in a harlekin role, kind of funny. At the stakeholder meeting 22 March a support for “three strikes” was still denied (which of course no one believed). There the same person still replied to Mr. Zimmermann it “won’t be induced neither”. A representative of internet provider XS4ALL was smart enough to think about a loop hole, almost like a bunny making friends with the snake, she asked if it “was hard” for the negotiator to get the “three strikes” out at the negotiations table with third nations (because when it is not in the “EU position” it can be played via other parties at the table and end up in the final text). “No one’s ever propose that”, was the answer of the negotiator, three strikes was “no one’s idea”. Rather a surprise given that it is a European idea, and they talked a lot about those graduated response options abroad.

The question remains unanswered who ever requested the EU-Commission to make (formal and informal) proposals or suggestions to trade partners towards this end? Who is actually put in charge here? You cannot expect Parliament to close all possible loopholes of a negotiating position which is not in line with its democratic will.

There is a great legend around the executioner Rosenfeld who killed captured Klaus Stoertebeker and all his fellow victual broethers (pirates) one by one. When he was mentioned by the Hamburg Senate for his dirty work he replied that it wasn’t a big deal for him, he wouldn’t mind the effort to let the members of senate follow in the line. The Senate didn’t feel comfortable with his bloodthirstiness and decided to put him to death.

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Commissioner Ferrero-Waldner answers ACTA internet chapter question

The European Commission has answered the written question posed by a Swedish member.

E-6094/09EN
Answer given by Mrs Ferrero-Waldner
on behalf of the Commission
(4.2.2010)

The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights’ relevant aspects of the Telecoms package.

ACTA should not contain measures restricting end-users’ access to the internet that would not be approparite, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.

It is the Commission’s view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.

4 December 2009
E-6094/09
WRITTEN QUESTION by Christian Engström (Verts/ALE) to the Commission

Subject: ACTA negotiations and Telecoms Package principles

In the recent agreement on the Telecoms Package it was decided that no measures restricting end-users’ access to the Internet may be taken unless they are appropriate, proportionate and necessary within a democratic society — and never without a prior, fair and impartial procedure that includes the right to be heard and respects the presumption of innocence and the right to privacy.

Are the proposals currently being discussed in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations fully in line with the letter and the spirit of these provisions in the Telecoms Package? If not, when and how will the Commission redress any incompatibilities?

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ACTA and three strikes

As currently the ACTA negotiations take place in Mexico,  I would like to introduce a video of Luc Devigne, our EU Commission DG Trade negotiator. Luc Devigne is French and the head of the IPR unit of DG Trade, so the person to speak with when you deal with IPR issues of international trade policy. Below you find a great American Cpan video interview from May 2009 where he offers insights in the international negotiations around ACTA

Luc Devigne for instance advocates for the French “three strikes” rule concerning ISPs. Such measures are not yet part of the acquis communautaire, in fact in the course of the Telecom package such measures were generally rejected, though the European Parliament could not overrule the French national decision to implement such measures (“Hadopi”). Sarkozy’s Hadopi rules are in troublesome constitutional waters, we will see.

Luc Devigne is again very open that the ACTA is primarily targeted “at nations which do not respect IPR enough”.

10:30 Devigne talks about EU-US joint customs operations against copyright infringement

12:30 ACTA

On ACTA secrecy (13:00): No international trade agreement in public. They don’t own what the others delegations say. But public should be informed. That is why they organised two widely followed stakeholder meetings.

Not about personal items but commercial scale, they would apply de minimis rules.

15:30 Internet Chapter not addressed yet (May 2009). Everything about it was rumour.

Question: What is the idea of the internet chapter.

15:49 Sales by internet, cmp. TRIPS. Rightholders asking for more control, on the other side ISPs. Strike balance between both.

16:50 What about “information exchange” as opposed to product counterfeiting? No proposal yet. Then Devigne presents and finally embraces three strikes and explains why that has nothing to do with “information exchange”.

18:50 What to do against against companies like Pirate Bay? No comments as an administrative body on judicial affairs, mocks democratic rule standards in Sweden. Criminal sanctions cmp. TRIPs

20:20 Devigne explains and embraces the French three strike rules, compares offences with stealing CDs from a shop, and compares sanctions with a ban from the store. “But because it is exactly that”. Personal comment.

I really enjoy how thoughtful he talks.

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European Council for open satellite technologies

Council Resolution on “The Contribution of space to innovation and competitiveness in the context of the European Economic Recovery Plan, and further steps” as adopted by the Competitiveness Council meeting on 29 May 2009.

…HIGHLIGHTS the potential of satellite communications technologies to bring broadband to European citizens and enterprises, ensuring a better access to modern ICT particularly in rural and remote areas6, in the context of the European broadband strategy called for by the European Council of 19-20 March; CALLS on the Commission, ESA and the EU and ESA Member States to consider integrating satellite technologies in future broadband projects with a view to support the implementation of the EERP, while respecting the principles of open competition, technology neutrality, and open and neutral internet architecture; and further RECOGNISES the need to explore innovative approaches and architectures for the provision of global satellite communications services in response to institutional demand in support of European programmes and policies, including transport, energy and security;

http://register.consilium.europa.eu/pdf/en/09/st10/st10500.en09.pdf

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Vint Cerf and the cloud buzz

Google Vice-President Vint Cerf, an architect of the internet, came to Brussels yesterday for an Open Forum Europe conference.

In this interview with Euraktiv from yesterday the great net strategist speaks about Cloud computing and other trends.

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Fundamental freedoms on the Internet

This time a Parliament recommendation is different from the usual reports, because it is about the internet and communication freedoms. Most persons will overlook the provisions on criminal sanctions but that is the meat:

Strengthening security and fundamental freedoms on the Internet
European Parliament recommendation of 26 March 2009 to the Council on strengthening security and fundamental freedoms on the Internet (2008/2160(INI))

l) proceed to the adoption of the directive on criminal measures aimed at the enforcement of intellectual property rights, following an assessment, in the light of contemporary innovation research, of the extent to which it is necessary and proportionate, and while simultaneously prohibiting, in pursuit of that purpose, the systematic monitoring and surveillance of all users” activities on the Internet, and ensuring that the penalties are proportionate to the infringements committed; within this context, also respect the freedom of expression and association of individual users and combat the incentives for cyber-violations of intellectual property rights, including certain excessive access restrictions placed by intellectual property holders themselves;

m) ensure that the expression of controversial political beliefs through the Internet is not subject to criminal prosecution;

Provision l) relates to the so called IPRED2, the second IP enforcement directive (criminal measures) which is a kind of zombie law on the Council level, originally proposed in 2005. The Parliament report suggests to have a fresh reconsideration of the zombie but to prohibit “the systematic monitoring and surveillance of all users” activities on the Internet, and ensur[e] that the penalties are proportionate to the infringements committed”. The best technical solution to make this happen would be either a restart or the proposal of an amended version by the Commission.

The private telecommunication surveillance and interception is penalised by many penalty codes in Europe but recently Nokia disputed with the Finnish legislator over monitoring communication of its employees (“Lex Nokia”) to protect trade secrets. Most member states are not very keen to get the European Union involved with criminal law harmonisation, a controversy that apparently got started with the Maastricht revision round and the cumbersome installation of Europol.

Read the full text to see how diverse and broad the views of parliament are on the matter.

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