Law and Information

Here in Ottawa, I had the pleasure to speak at the OECD Technology Foresight Forum of the Information, Computer and Communications Policy Committee (ICCP) on the participative web – a forum aimed at contributing to the OECD Ministerial Meeting “The Future of the Internet Economy” that will take place in Seoul, Korea, in June 2008.

My remarks (what follows is a summary, full transcript available, too) were based on our joint and ongoing Harvard–St.Gallen research project on Digital Natives and included some of the points my colleague and friend John Palfrey and I are making in our forthcoming book “Born Digital” (Basic Books, 2008).

I started with the observation that increased participation is one of the features at the very core of the lives of many Digital Natives. Since most of the speakers at the Forum were putting emphasis on creative expression (like making mash-ups, contributing to Wikipedia, or writing a blog), I tried to make the point that participation needs to be framed in a broad way and includes not only “semiotic democracy”, but also increased social participation (cyberspace is a social space, as Charlie Nesson has argued for years), increased opportunities for economic participation (young digital entrepreneurs), and new forms of political expression and activism.

Second, I argued that the challenges associated with the participative web go far beyond intellectual property rights and competition law issues – two of the dominant themes of the past years as well as at the Forum itself. I gave a brief overview of the three clusters we’re currently working on in the context of the Digital Natives project:

• How does the participatory web change the very notion of identity, privacy, and security of Digital Natives?
• What are its implications for creative expression by Digital Natives and the business of digital creativity?
• How do Digital Natives navigate the participative web, and what are the challenges they face from an information standpoint (e.g. how to find relevant information, how to assess the quality of online information)?

The third argument, in essence, was that there is no (longer a) simple answer to the question “Who rules the Net?”. We argue in our book (and elsewhere) that the challenges we face can only be addressed if all stakeholders – Digital Natives themselves, peers, parents, teachers, coaches, companies, software providers, regulators, etc. – work together and make respective contributions. Given the purpose of the Forum, my remarks focused on the role of one particular stakeholder: governments.

While still research in progress, it seems plain to us that governments may play a very important role in one of the clusters mentioned above, but only a limited one in another cluster. So what’s much needed is a case-by-case analysis. I briefly illustrated the different roles of governments in areas such as

• online identity (currently no obvious need for government intervention, but “interoperability” among ID platforms on the “watch-list”);
• information privacy (important role of government, probably less regarding more laws, but better implementation and enforcement as well as international coordination and standard-setting);
• creativity and business of creativity (use power of market forces and bottom-up approaches in the first place, but role of governments at the margins, e.g. using leeway when legislating about DRM or law reform regarding limitations and exceptions to copyright law);
• information quality and overload (only limited role of governments, e.g. by providing quality minima and/or digital service publique; emphasis on education, learning, media & information literacy programs for kids).

Based on these remarks, we identified some trends (e.g. multiple stakeholders shape our kids’ future online experiences, which creates the need for collaboration and coordination) and closed with some observations about the OECD’s role in such an environment, proposing four functions: awareness raising and agenda setting; knowledge creation (“think tank”); international coordination among various stakeholders; alternative forms of regulation, incl. best practice guides and recommendations.

Berkman Fellow Shenja van der Graaf was also speaking at the Forum (transcripts here), and Miriam Simun presented our research project at a stand.

Today and tomorrow, the OECD delegates are discussing behind closed doors about the take-aways of the Forum. Given the broad range of issues covered at the Forum, it’s interesting to see what items will finally be on the agenda of the Ministerial Conference (IPR, intermediaries liability, and privacy are likely candidates.)

My colleague and friend Dr Ian Brown, co-leader of the EUCD best practice project (check out the wiki and the project report), has posted a great article written for the EDRI-gram on the International Intellectual Property Alliance’s (IIPA) recent recommendations to the US Trade Representative’s 2007 review of global copyright laws. Ian concludes:

It is not surprising that US companies lobby to change global laws that would increase their profits. On past performance, the US government is likely to take careful note of their recommendations. But European nations should robustly defend their right to shape copyright policy to meet the needs of their own citizens, and not just those of large copyright holders.

I hope the EUCD best practice project mentioned above and similar initiatives support European policy makers in identifying the leeway they have under the WIPO Internet Treaties and the EUCD when shaping their copyright and DRM frameworks.

Read this – no comments from my side… (find an inofficial English translation of the draft implementation here.) As my friend Mike puts it: Good luck, Switzerland, on the negotiations of the bilateral trade agreement with the U.S.

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2005 SPECIAL 301 SPECIAL MENTION SWITZERLAND

The Federal Copyright Act of 9 October 1992 as amended is currently undergoing further revision in order to implement the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) into Swiss law. IIPA is concerned with the way in which the two treaties are being implemented in the country. The Swiss Federal Institute for Intellectual Property continues to delay the implementation of the WIPO Copyright Treaties. In September 2004 a draft implementation was released, but is problematic in several respects: it has an overly broad private copying exception (indeed the current exception is problematic and certain groups argue that downloading infringing copies of copyright works from peer-to-peer (P2P) networks is legal in Switzerland); inadequate protection of technological measures (including over-broad personal use exemptions); and burdens on rightholders employing technological measures (including labeling obligations).

Furthermore, the Swiss government should seek to make the use of P2P networks for copyright infringement more difficult. SAFE (the Swiss Anti-Piracy Federation) continues to investigate portal sites, which are generally hosted by foreign providers. In March 2004, police (cooperating with SAFE and the German Anti-Piracy organization [GVU]) raided the home of the Swiss creator of an eDonkey portal offering an extensive number of links to movies, cartoons, PC and console games, software, books and pornography (averaging 220,000 visitors per day). This individual will be prosecuted for copyright offenses, the first such prosecution against the creator of a portal for a P2P network in Switzerland.

For the fifth time within two months I’m finding myself back in Cambridge, Mass. You can’t imagine how much I love this place. There are many reasons why I think Cambridge is among the most exciting and inspiring places to be. One reason, of course, are the many wonderful friends and colleagues that have been working and living here. Take as one prominent example my brilliant colleague Derek Slater, Fellow at the Berkman Cente and EFF affiliate with whom I had the pleasure to work on a couple of projects. He has just posted two interesting podcasts on his blog. In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about – and from! – the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.

The Berkman Center’s wonderful Executive Director John Palfrey was kind enough to comment on my earlier post regarding the IPR-Enforcement Directive No. 2. It doesn’t come as a surprise that I share John’s fear that the vague “attempting, aiding or abetting and inciting”-standard as set forth in the proposed directive is very likely to cause much headache by increasing legal uncertainty in the current quicksilver technological environment. I’m convinced that it would have negative impacts on entrepreneurship and innovation for exactly the reasons JP mentions. In an email, our friend Mike McGuire at GartnerG2 points out that this sort of legislation – also causing uncertainty among VCs – could imperil the efforts of innovative technologies and services such as Weed, PeerImpact, playlist services, etc. that are just starting to hit the market.

However, it’s also important to note that the Commission’s proposal is only the beginning of a long conversation. Given the success of our colleagues in fighting criminal provisions in the context of the IPR Enforcement Directive No. 1 and, most recently and more generally (although not directly linked), in the case of the Software Patents Directive, I’m still hopeful that the proposed standard will not become law in Europe. Fingers crossed.

As to John’s question about the “health and safety”-rhetoric: This goes back to the 1998 Green Paper on the fight against counterfeiting and piracy in the single market (at p. 5):

Obviously, the authors had different things in mind than online piracy of digital content. Consider, for instance, counterfeiting of pharmaceutical products or the like. Indeed, the proposed directive and framework decision would apply to any infringement of any IP rights as provided by EU legislation and/or by member state laws, including:

• copyright,
• rights related to copyright,
• sui generis right of a database maker,
• rights of the creator of the topographies of a semiconductor product,
• trademark rights,
• design rights,
• patent rights, including rights derived from supplementary protection certificates,
• geographical indications,
• utility model rights,
• plant variety rights,
• trade names, in so far as these are protected as exclusive property rights in the national law concerned.

A few days ago, the Commission of the European Communities presented a proposal for an EU-Directive on criminal measures aimed at ensuring the enforcement of IP rights along with a proposal for a Council Framework Decision to strengthen the criminal law framework to combat IP offences. The proposal seeks to reduce existing disparities between the EU member states’ systems of penalties (see also my comment here) that, according to the Commission, “make it difficult to combat the counterfeiting and piracy effectively.”

The proposal takes Article 61 of TRIPS, which criminalizes willful infringement on a commercial scale, as a starting place to take things a step further. Article 3 of the proposed Directive reads as follows:

According to Article 2 of the proposed Framework Decision, member states must punish such offences by a maximum sentence of at least four years’ imprisonment if the offence is committed under the aegis of a criminal organization or it carries a health or safety risk. The applicable maximum fine must be at least EUR 300.000 for cases involving criminal organizations or posing a risk to public health and safety, and EUR 100.000 in less serious cases. The proposal allows Member States to apply tougher penalties.

Personally, I agree with the draft Directive’s objective to fight organized IP crimes and infringements that bear risks for public health and safety. However, the much broader provision on “attempting, aiding or abetting” and “inciting” infringements is highly problematic and should be removed or at least significantly limited in scope. Under this standard, for instance, software programmers would run the risk to be criminalized if their software could be used for large-scale copyright infringements, especially vis-�-vis the broad “commercial scale” criterion which does not require financial motives, benefits, or profits.

The latest EDRI-gram, among other things, outlines some of the scary scenarios of this provision, and provides background information by looking back at the fight surrounding the earlier IP Enforcement Directive 2004/48/EC.

Wired News‘ Bruce Gain takes the Swedish amendments to the copyright act as a starting place for some comparative thoughts on the (legal) fight against P2P file-sharing in Europe. The Berkman Center’s Executive Director John Palfrey is quoted in this article along with other scholars and industry representatives. I was also invited to share some observations.

Interesting Wired article on a French judge’s critical take on the copyright industry’s battle against file-sharers, copy-fighters, and the like. With great comments from my colleague at OECD, Sacha Wunsch-Vincent: “Now is the time for the content industry, access and technology providers to get out of courts and back to business.”

Former Berkman digital media team member Georg P. Krog sent us and others earlier last week an interesting summary of a recent Norwegian Supreme Court case on linking and copyright infringement. In the meantime, Larry Lessig has posted it.

Tonight, AP reports that RIAA and MPAA intend to sue hundreds of students accused of illegally distributing copyrighted songs and films across college campuses – including Harvard University – using Internet2, the private research network which is hundreds of times faster than the Internet. It’s still unclear how the entertainment industry could detect piracy over Internet2.