Law and Information

Interesting read for snowy days in Boston: The Pew Internet & American Life Project released a survey on Search Engine Users, concluding that “Internet searchers are confident, satisfied and trusting – but they are also unaware and na�ve.”

The report includes findings that I will use in my (overdue) paper on information quality and the Internet. Among the findings:

• 89% of internet users under 30 years have used search engines.
• One-third of searchers are “power users” that couldn’t live without search engines.
• 44% of searchers say that most or all the information they search for online is critical, e.g. needed to accomplish an important task or answer an urgent question. (BTW, the report also explores when users don’t use search engines.)
• 17% of searchers say they always find the information for which they are looking for. 87% of users say they have successful searches most of the time.
• 44% of searchers regularly use a single search engine.
• 68% of users say that search engines are a fair and unbiased source of information. However, only 38% of searchers are aware of a distinction between paid and unpaid search results.

Food for thought, I’d say.

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.

Michael Geist notes in his weekly Toronto Star Law Bytes column (free registration required) that decades of international IP agreements “have failed to balance the interests of the developed and developing worlds and have led to annual outflows of billions of dollars from the developing world to the developed world.” As to copyright law in particular, Geist concludes that the WIPO’s development agenda provides “the first chance in years to fashion a global intellectual property policy that helps, rather than hinders, the developing world.” Let’s make sure that Geist’s vision comes true.

BTW, a new Berkman report on copyright law and digital media in Europe and the Asia/Pacific region will be released here within the next few days, togehter with an updated version of the foundational GartnerG2/Berkman Center White Paper “Copyright and Digital Media in a Post-Napster World.”

We are pleased to announce the next workshop of the 2004/05 edition of the Harvard-Yale Cyberscholar Workshop Series.

We invite you to our third session to be held on Thursday, January 13 from 4:00-6:00pm (please note the time change for this meeting) in the Berkman Center‘s conference room. We are delighted to host a session with two distinguished colleagues:

* ISP Visiting Fellow Michal Tsur will discuss research in progress (details TBA.)

* Berkman long-term-affiliate and digital media project team member Derek Slater will present and discuss the Berkman report “Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Models in the Music and Film Industries.”

Please RSVP as soon as possible to

Our colleagues at the Institute for Information Law (IViR) at the University of Amsterdam released, as part of the INDICARE project, an interesting report on Digital Rights Management and Consumer Acceptability. It seeks to provide an overview of the state of the (European) discussion from a multi-disciplinary perspective, and analyzes social, legal, technical, and economic issues.

The report concludes that surprisingly little is know about consumers’ acceptance level of DRM, and what users’ expectations are regarding the use of digital content. The report, inter alia, calls for a better involvement of the consumer side and a joint dialogue between the market players.

The report will be updated. Three pointers to Berkman reports and papers in this context:

* re section 6.5 of the report on alternative business models, see also “Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Modles in the Music and Film Industries.”

* re section 4.2 on the EU-Copyright Directive, see also “Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States,” and the respective Berkman project website.

* re section 4.4 on interoperability, see John Palfrey, Holding Out for an Interoperable DRM Standard, in Christoph Beat Graber, Carlo Govoni, Michael Girsberger, and Mira Nenova (eds.), Digital Rights Management: The End of Collecting Societies? (Forthcoming, April 2005.)

The Berkman Center’s Digital Media Project team has released an in-depth analysis of the impacts of policy choises on emerging business models in the music and film industries. Here’s the link to the paper and the abstract:

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

Special thanks — and congratulations — to Derek Slater and Meg Smith of the Berkman team for their work.

CNN.com and others report that the European Court of First Instance today dismissed Microsoft’s application for interim measures in its entirety, since Microsoft “has not shown that it might suffer serious and irreparable damage as a result of implementation of the contested decision.”

Update on the EUCD implementation:

* Being in Tallinn, I’ve learned (thanks to Peeter Marvet) that the Parliament transposed the EU-Copyright Directive into Estonian law on September 22, 2004. I haven’t yet seen an English translation, but will add it to the Berkman Center’s project website as soon as it becomes available.

* Recently, the ECJ declared that United Kingdom failed to fulfill its obligations under the EUCD, since the UK has not transposed the directive into the law applicable to Gibraltar within the required timeframe. See Judgment.

* Spain takes a new attempt to implement the EUCD.

* Update (5/01/05): Lithuania has finalized the implementation of the EUCD, according to an email by Professor Mindaugas Kiskis. Mindaugas explains: “Implementation of the EUCD in Lithuania is not based on single piece of legislation, both the Law on Copyright and Related Rights, and the Criminal Code contain relevant provisions. Let me explain that 5 March 2003 Law only finalized the implementation of the EUCD in Lithuania, which was effectively started by 20 April 2000 amendments of the Criminal Code. The latter amendments were part of Lithuania’s adherence to the WCT.” We will update our website. Thanks to Mindaugas, who has been directly involved in drafting Lithuanian copyright legislation, for clarification.

Yesterday was the IP-day at iLaw Eurasia, a five-day program about ICT policy organized by the Berkman Center, the eGovernance Academy Estonia, the Center for Democracy and Technology, the Advanced Network Research Group at the University of Cambridge, and the Open Society Institute. In the first session, Professor Terry Fisher provided a fantastic introduction to IP law in cyberspace in general and the current tussles over digital media in particular. He also analyzed and evaluated scenarios for the future of digital media, including approaches such as strengthening IP rights, self-help, and alternative compensation systems. I had the pleasure to talk about the implementation of the EU Copyright Directive and discuss basic policy approaches and -choices in the context of anti-circumvention legislation. We used the implementation of the EUCD as an example to illustrate some of the thorny problems often associated with the transposition of EU-IP directives and harmonizing treaty law more generally: Scope and definitions, exceptions and limitations, and sanction and remedies.

In a second module, we were discussing IP protection of computer software. Terry started the session with an excellent lecture, offering a comprehensive overview of the different approaches to – and the evolution of – software protection by law. Much of the subsequent discussion, most ably led by Berkman Center’s Excecutive Director and iLaw program chair John Palfrey, was about the promise of Free/Open Source Software in Eurasia. Many of the fifty representatives from government, the private sector, and civil society in Eurasia emphasized the important role of OSS in creating a more sustainable information industry in economically less developed countries. However, we also discussed potential problems related to OSS, such as documentation, training, maintenance, etc., and legal risks associated with it. In this context, we touched upon potential concerns such as liability and (increased?) exposure to IP litigation – a much discussed topic here and abroad, given recent litigation in the U.S.

Our fabulous Mary Bridges, Communication Director at the Berkman Center, has summarized some of the take-away points from yesterday’s discussion.

A recent ruling by a Belgian court addresses the obligations of an ISP in cases where its users infringe copyrights. The Belgian Society of Authors, Composers and Publishers (SABAM) instituted in June 2004 a prohibitory injunction in the court of first instance of Brussels against the Internet service provider Tiscali. Through this injunction, SABAM seeks to put an end to the use of P2P networks in Belgium. Reportedly, the court now ruled that Tiscali should disconnect customers if they violate copyrights, and block access for all customers to websites offering file-sharing programs. The court also ordered a technical investigation into the possibility of blocking access. While the decision has not been made public by now, EDRI raises the interesting question of the ruling’s conformity with the relevant provisions set forth by the EU Copyright Directive and the EU E-Commerce Directive.

In this context, two aspects are particularly interesting. First, it is puzzling how an ISP could detect possible copyright infringements on P2P networks by its users. Arguably, a “blocking access”-approach would also include a “monitoring”-element in order to be effective. Would such a duty to monitor imposed upon an ISP be consistent with Article 15 of the E-Commerce Directive? Article 15(1) reads as follows:

This clear statement suggests that it is contradictory to EU law if an ISP was obliged by a national court to monitor the information that it transmits on its network. However, things are getting more interesting once we take Recital 47 of the E-Commerce Directive into consideration, which states:

Thus, it seems clear that general monitoring obligations are not allowed, whereas monitoring in specific cases – arguably with regard to particular users and/or websites – is allowed. But the distinction between general and specific obligations gets blurred in Recital 48:

Against this backdrop, it is less clear that a general requirement to implement and operate a monitoring or filtering system imposed by national authorities – if reasonable from a technical and economic viewpoint – would be a priori contradictory to the E-Commerce Directive’s provider liability provisions. (At least where the ISP hosts information provided by the recipients of its service.)

Second, it is important to note that SABAM obtained a prohibitory injunction, since the broad wording of Recital 45 seems to include “preventive” injunctions:

This Recital suggests that the court verdict in question is unlikely to be in contradiction to the “limited liability” provisions of the E-Commerce Directive; in this regard, I tend to disagree with EDRI’s initial analysis. Read also Article 8(3) of the EU Copyright Directive (EUCD) and Recital 59 of the EUCD:

However, it remains an open question what the scope and burden of a potential ISP’s monitoring and blocking obligation imposed by a preventive injunction can be.