<html><head><style type="text/css"><!-- DIV {margin:0px;} --></style></head><body><div style="font-family:verdana,helvetica,sans-serif;font-size:10pt"><div style="font-family: verdana,helvetica,sans-serif; font-size: 10pt;">----- Mensaje original ----<br>De: Rick Falkvinge (Piratpartiet) <rick@piratpartiet.se><br>Enviado: jueves, 7 de febrero, 2008 17:39:47<br>> <a rel="nofollow" target="_blank" href="http://swartz.typepad.com/texplorer/2008/02/denmark-and-pir.html">http://swartz.typepad.com/texplorer/2008/02/denmark-and-pir.html</a><br><br>It looks like a quite interesting article, though I've found some inconveniences for me -like finding too much links to documents in Danish and Swedish (two languages that, unfortunately, I cannot speak)-.<br><br><hr style="width: 100%; height: 2px;"><br>In a first sight, quickie analysis:<br><br>"<span style="font-style: italic;">I now claim that </span><strong style="font-style: italic; font-weight:
normal;">the way</strong><span style="font-style: italic;"> that the Danish Supreme Court
is implementing these injunctions is clearly breaking EU law as
expressed in the Directive itself. And it does so in a blatant and
shocking way which, if correct, would amount to the same as closing the
net down</span>"<br><br>He states that regarding the danish judgment; the trouble for me to check the whole thing is the language. Imagine that, as I'm, in PIRATA, in charge of the appealing against LISI law's first draft development -we have until March 29th to submit the appeal to the Spanish Ombudsman-, it's all about Spanish laws written in Spanish and ... I am struggling quite uncomfortably to find enough legal arguments ... imagine if the analysis is thought to be made from Danish & Swedish documents. Too hard for me :(<br><br>"<em>"Article 5<br>
Exceptions and limitations<br>
1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential<br>
part of a technological process and whose sole purpose is to enable:<br>
(a) a transmission in a network between third parties by an intermediary, <strong>or</strong><br>
(b) a lawful use<br>of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2."</em><br><br><span style="font-style: italic;">This is non-negotiable. Every member state must accept it. Point 1 (a)
says that "copying" in a router is always allowed. Now, the question is
what that little "</span><strong style="font-style: italic; font-weight: normal;">or</strong><span style="font-style: italic;">" means when the article talks about "lawful use"</span>"<br><br>I do agree that this 2001/29/EC article -specifically, point 1.a- should exempt ISPs from legal liability when they act as intermediaries for copyrighted works' transmission between third parties -i.e., they are not transmitters nor receivers; they just make available both transmitters and receivers to communicate and transmit the copyrighted works-.<br><br>However, we should watch out with that "<span style="font-style: italic;">lawful use</span>" thing ... something simmilar happened with IP law in Spain -here we have the "<span style="font-style: italic;">legal access</span>" (to the copyrighted works) thing- and it has become a source of endangering for the rule of the law; so interpretations of that two words should be made carefully. Though as later Swartz
states, it has actually nothing to do with this concrete case.<br><br>"<span style="font-style: italic;">Well, <span style="font-weight: bold;">the court says that TDC does commit copyright infringement
through transporting the data and "producing copies" in their routers
since the "originals" are unauthorized</span>. They refer to the Danish
implementation of article 5.1 (= § 11 in the Danish Copyright Law)</span><br style="font-style: italic;"><br style="font-style: italic;">
<p style="font-style: italic;">That interpretation is plain wrong. There is nothing about
"authorized originals" in Article 5.1. It seems the Danes are confused
by point (b): "lawful use", and claim that this means "copies from
authorized originals" (which is wrong but it does not matter for the
argument here).</p><p style="font-style: italic;"><br></p>
<span style="font-style: italic;">But think for one moment about it in purely logical terms: If 5.1
makes an exception for only "lawful use" under those other
circumstances,</span><em style="font-style: italic;"> there would be no need whatsoever for (a)</em><span style="font-style: italic;">. Everything would be covered by (b) and (a) would be completely redundant information. Point (a) is an </span><em style="font-style: italic;">exception</em><span style="font-style: italic;"> to (b). </span><strong style="font-style: italic;">The
whole point of (a) is to make Internet possible. The point is to allow
routers to "make copies" of whatever information that passes through
them</strong>"<br>[...]<br><span style="font-style: italic;">in Swedish </span><a style="font-style: italic;" href="http://www.regeringen.se/sb/d/4456/a/40699">from the official government site</a><span style="font-style: italic;">: It is the top of the two PDFs there.
</span><p style="font-style: italic;"><br></p><p style="font-style: italic;">On page 94 they write (translated) about Article 5.1 (a) and (b):</p>
<p style="font-style: italic;"><em><br></em></p><p><em style="font-style: italic;">"Hence <span style="font-weight: bold;">the article differentiates between transmission of a work
in a network (article 5.1.a) and the end-users utilization of a work
(5.1.b)</span>".</em><span style="font-style: italic;">. They go on to explain that 5.1.b. has to do with temporary copies at the end-users computer, such as web caches</span>"<br></p><br>I do agree. What article 5.1 means is that ISPs are not liable for transmission between third parties through their networks; they are not producing copies, they are just transmitting data from A to B -both third parties, both direct or indirect (A may be an X ISP client, while B may be an Y ISP client whose ISP connects with X to allow communication between A and B) clients of ISPs-; actually are A and B the liable parts of the copyrighted works transmission -of course if it can be legally proven; there is something in law called the <span style="font-style: italic;">forbidden fruit</span> theory which states that proofs obtained through illegal ways become illegal-.<br><br>"<span style="font-style: italic;">I really and honestly claim that the Danish Supreme Court is
wrong and will be struck down in </span><em style="font-style: italic;">The Court of Justice of the European Communities</em><span style="font-style: italic;">, </span><a style="font-style: italic;" href="http://curia.europa.eu/">Curia</a><span style="font-style: italic;"> (</span><em style="font-style: italic;">De Europæiske Fællesskabers Domstol</em><span style="font-style: italic;">)</span>"<br><br>That's a good point. If Denmark has no Constitutional Court then ISPs must go to the EUCJ, as Danish Supreme Court has established -according to Swartz's arguments (as I'm not able to understand DSC judgments because they have been written in Danish)- a wrong case law.<br><br>"<span style="font-style: italic;">So what about Infosoc Directive Article 8 and point (59) where they
talk about national leeway to make injunctions against intermediaries?
Yes, according to the Directive such injunctions could and should be
made possible under national law, </span><strong style="font-style: italic;">although</strong><span style="font-style: italic;"> the intermediary does </span><strong style="font-style: italic;">not</strong><span style="font-style: italic;"> commit copyright infringement through transporting the material via its network</span>"<br><br>That's right<br><br>"<span style="font-style: italic;">Now, there is a </span><strong style="font-style: italic;">huge</strong><span style="font-style: italic;"> difference between saying:</span><br style="font-style: italic;"><br style="font-style: italic;">
<p style="font-style: italic;">(a) All information that passes a router constitutes copyright
infringement if that information comes from an unauthorized copy.
Therefore, in order to protect <strong>yourself</strong> from committing copyright infringement you have to block <strong>all</strong> these users on your own network or <strong>all</strong> these sites somewhere else on the Internet. (Danish cases)</p><p style="font-style: italic;"><br></p>
<p><span style="font-style: italic;">(b) You do not commit copyright infringement simply through letting
this information pass your router, since there is an explicit exception
for that. But you have to block </span><strong style="font-style: italic;">certain</strong><span style="font-style: italic;"> users or sites anyway since this is the best way to stop these </span><strong style="font-style: italic;">others</strong><span style="font-style: italic;"> from committing copyright infringement. (Correct interpretation)</span>"<br></p><br>That's right -if Danish judgments state such silliness ... which is believable because, as I said before, such silliness can be also found in Spanish (and other countries') judgments-.<br><br>"<span style="font-style: italic;">As a free communications activist I do not support the latter case
either. But it is very clear that it would be much harder to shut down
communictaions in the second case. I have nothing to say about a
national regulation that makes (b) possible, what it would entail, what
evidence that infringement claims should be based on, how massive the
infringements would have to be, if these infringing sources can be
situated on other networks or whether they must be on your own and so
forth. That is up to others to debate</span>"<br><br>And we debated it in Berlin; and we concluded that, while rule of the law and, specifically, legal principles like privacy and <span style="font-style: italic;">forbidden fruit</span> theory prevail, as long as surveillance would not be allowed, copyright enforcement measure against non-lucrative culture sharing lose any reason to exist. Regards<br><br><br> Carlos
Ayala<br> ( Aiarakoa )<br><br> Partido Pirata National Board's
Chairman<br><br>P.S.: I agree with Swartz on the fact that according with legal theory, are the ISPs the ones who should go to EUCJ and claim for justice against such silly judgments -though ... do you have Ombudsman in Denmark? is that institution allowed to complain at EUCJ despite the affected parts don't do it?-.<br></div></div><br>
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