The CJEU's Innoweb dedicated meta search judgment in 15 tweets

Full CJEU judgment here

And the operative part of the CJEU judgment:

"Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that an operator who makes available on the Internet a dedicated meta search engine such as that at issue in the main proceedings re-utilises the whole or a substantial part of the contents of a database protected under Article 7, where that dedicated meta engine:

 

–        provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site;

 

–        ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and

 

–        presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results."

Cyberlaw memes and themes for 2014

[Updated as at 20 December 2014]
Following my hard law roundup of legislation and pending court cases in the EU/UK pipeline, here are some rather more amorphous cyberlaw themes to look out for in 2014. This is the realm of soft law, inter-government negotiations, NGOs, lobbyists, op-ed writers, bloggers and policy wonks. I have also thrown in some concrete items that were too speculative to qualify for the hard law survey.

Nudging and bludgeoning You could describe the UK government’s campaign to persuade ISPs to introduce default content filters as a variety of nudging, the idea being that a householder subscriber has to make an active selection to disable the filter. Aside from the inevitable coarseness of the filters, if this is nudging it is nudging with sharp elbows. Like many nudging ideas, changing the behavioural environment of the end user requires the co-operation, voluntary or enforced, of an intermediary. Call it what you like – private-public partnership, co-regulation, nudging, bludgeoning, backdoor armtwisting – we can expect more of it in 2014. [Here is David Cameron claiming that internet companies will Agree to do More to Filter Extremist Material Online, though the details of the supposed agreement seem a mite fuzzy.]

Magic wand politics Mention of filtering leads on to magic wand politics: the collective delusion of the governing class that the Good Fairy of the Internet can wave her magic wand and cure whatever perceived internet ill is troubling the PM and his advisers today. Steel yourselves for more in 2014. [The Intelligence and Security Committee Report on the Lee Rigby murder. If only Facebook had waved its magic wand.]

Understanding the internet Ill-considered political interventions provoke wailing from geeky quarters that politicians don’t understand the internet. But is the problem a lack of technical knowledge, or is it a deeper failure to embrace the liberal values that we like to think are embodied in the internet? If they did understand the consequences of their actions how many politicians would care? Given what politicians have shown themselves already capable of, tremble for the day (unlikely to be in 2014) when they do understand the internet. [Clause 17 of the Counter Terrorism and Security Bill is about so-called IP address resolution. MPs can hardly be blamed for not understanding it when every government explanation adds to the confusion.]

The Internet Wild West It is impossible to debate behaviour on the internet without somebody painting a picture of the internet as a lawless Wild West and casting themselves in the role of Sheriff come to bring order to the chaos. No matter that the internet is beset with more laws than the offline world and that many of those impose stricter rules (often inappropriately so) than offline. It is depressingly safe to predict that the Wild West meme will continue to flourish in 2014. [Perhaps less of the Wild West than expected (examples here and here), but we did get 'the beautiful dream of the internet as a totally ungoverned space' from Sir Iain Lobban, shortly followed by another Wild West in the Parliament Intelligence and Security Committee here (11:28). Then almost at the end of the year we had this corker from President Obama (with "rules of the road" thrown in for good measure).] 

Doctorow’s Warning Two years ago Cory Doctorow identified "the coming war on general purpose computing". He worried about the future lobbyists who would ask:


"Can't you just make us a general-purpose computer that runs all the programs, except the ones that scare and anger us? Can't you just make us an Internet that transmits any message over any protocol between any two points, unless it upsets us?" The answer (see Magic Wand Politics) is ‘No’, but serious damage can be done in trying and failing. Doctorow again:
"Reality asserts itself. Like the nursery rhyme lady who swallows a spider to catch a fly, and has to swallow a bird to catch the spider, and a cat to catch the bird, so must these regulations, which have broad general appeal but are disastrous in their implementation. Each regulation begets a new one, aimed at shoring up its own failures." With each new round of regulation aimed at preventing wrongdoing, the greater the temptation to rectify the failure of the previous round by throwing a wider regulatory net over non-culpable actors engaged in general purpose activities. Site blocking injunctions against online intermediaries is an obvious example. Co-option of payment processors, advertising networks, domain name registrars and search engines is another, as would be action against VPN. 

These are not the only examples. Traditionally liability for wrongdoing has applied to doing, participating in and procuring wrongful acts, but stopped short of facilitating and enabling them. One reason for drawing that dividing line is that acts of facilitation and enablement are by their nature general purpose. As such, damnifying them always carries a high risk of damage to legitimate activity, whether present or future, known or unknown. There will in 2014 be continued pressure to extend all sorts of online liability and obligations to facilitation and enablement. [The amendment to the RIPA definition of 'telecommunications service' by the Data Retention and Investigatory Powers Act 2014 (DRIPA) is a classic example.  It now includes "facilitating" the creation, management or storage of communications transmitted, or that may be transmitted, by means of a telecommunication system.]  

At a deeper level, the concern about co-opting law-abiders, facilitators and enablers represents the difference between a society in which each is free to set and pursue his or her own goals and allocate their own resources accordingly, and one in which anyone can be conscripted into an online army and commanded to crusade against the government’s designated enemy of the day.

Doctorow’s Warning is as relevant at the start of 2014 as it was two years ago.

Technological neutrality. Everyone loves technological neutrality and will appeal to it in support of whatever legal or policy position they are advocating. Laws should obviously be technologically neutral, shouldn’t they? Not necessarily. In fact resort to technological neutrality is dangerous without understanding (a) which version of technological neutrality you are invoking (b) when it is safe or appropriate to deploy it and (c) when other principles (e.g. fundamental human rights) should outweigh it. These were my slides on the topic at the Society of Legal Scholars conference in September. A full paper is in the works. [Now published.]

The rise of PIPCU Launched on 12 September 2013 with £2.6m of taxpayer funding over two years from the Intellectual Property Office and a special focus on offences committed online, the activities of the Police Intellectual Property Crime Unit, operated by the City of London Police, have perhaps so far attracted most attention in the pages of Torrentfreak.  With emphasis on preventative and deterrent action, including requesting suspensions from domain name registrars around the world, its activities will inevitably attract wider scrutiny. The Open Rights Group has requested a meeting with PIPCU to discuss its processes. Definitely one to watch in 2014. [PIPCU in the news already 11 Jan 2014.][As at 11 June 2014 PIPCU has suspended 2,359 .co.uk domains and achieved 19 website payment provision suspensions (IP Crime Highlight Report). It has also launched an unpublished Infringing Websites List to be shared with advertisers in an attempt to disrupt advertising revenue.][On 23 October 2014 the IP Minister announced that PIPCU would receive another £3 million government funding to take it through to 2017.  Meanwhile PIPCU has been putting replacement advertisements on infringing websites, including one making the at first sight curious claim that "Illegal Downloading is a Crime". Unauthorised downloading is of course a civil copyright infringement, but is not in itself a criminal offence under the UK Copyright Act. This is how PIPCU has explained it:

@cyberleagle Thanks Graham. Downloading falls within s.45 of the Serious Crime Act 2007 if it encourages s.107 CDPA 1988 offences.
— City Police PIPCU (@CityPolicePIPCU) August 15, 2014

 So there you have it.]

Copyright wars The Piscean fishes swimming in opposite directions have nothing on the copyright wars. Historically there was pressure from rightsowner interests for stronger copyright, provoking largely reactive and patchy opposition. Now we can identify not just resistance to stronger copyright, but a coalescing agenda for digital copyright reform. In the UK the Hargreaves recommendations are going through. Ireland and Australia have completed significant reviews of copyright, with the Australian Law Reform Commission having recommended the adoption of a flexible fair use copyright exception and the Irish review a more limited version. Some EU MEPs have started to formulate an agenda for copyright reform. The courts have started to show interest in aligning digital copyright to its offline equivalent. The copyright wars will continue to be fought out in arenas such as TTIP. [The new European Commission has included copyright modernisation in its Work Programme for 2015. Expect a bloodbath.]

Blocking injunctions In my hard law piece I mentioned the pending CJEU reference in Constantin Films v UPC. In parallel there will almost certainly be more UK applications for blocking injunctions under S97A. In practice the court normally makes a determination on the basis of evidence and submissions from rightsowners alone - a less than ideal situation. Will 2014 be the year in which some public minded body tries to intervene in an application on a quasi-amicus basis? [Yes. The Open Rights Group obtained permission to intervene with written submissions in Cartier's application for a trade mark blocking injunction. The court adopted some of ORG's suggestions for further safeguards in the blocking order.] 

Privacy In a prediction at the end of 2012 for BNA I said that 2013 might be the year in which the privacy industry remembered that the state is more threatening than a cookie. And so it proved. But will we keep our eye on the ball? Will we let EU politicians turn PRISM, TEMPORA and Snowden into an excuse for an information trade war with the USA? Will they get away with suggesting that EU data protection laws have historically protected against surveillance by EU national governments? Or will we convince ourselves that it’s all the fault of US corporations for collecting data (as if Galileo should never have built a telescope)? We will find out in 2014. [No. Yes. Yes. Yes.]

See also: Internet Legal Developments to Look Out For in 2014

Internet legal developments to look out for in 2014 (Updated)

[Updated with progress as at 20 December 2014 and further updated 7 October 2015]

And see: Cyberlaw Memes and Themes for 2014

2013 has been a busy year for cyberlaw. But what does 2014 hold? Here are some developments in the UK and EU pipeline.

1.  Defamation Act 2013. This legislation comes into force in a few days’ time, on Wednesday 1 January 2014.   

• It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
• As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation. 
• The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.  
• There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication. 

The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.

2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force by 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014. [The copyright exceptions were intended (per the Minister in the IP Bill 2nd Reading Debate) to be laid before Parliament in February 2014 for debate under affirmative resolution procedure. Draft regulations were in fact laid before Parliament and published, together with a response to the technical review, explanatory notes, guidance and other supporting documents, on 27 March 2014 with a view to coming into force on 1 June 2014. All except the parody and private copying exceptions did so. These two exceptions were deferred following questions from the Joint Committee on Statutory Instruments. The drafts were then reissued for debate in Parliament, passed and come into force on 1 October 2014. Following a challenge by judicial review the private copying exception regulation has since been quashed.] [The European Commission Consultation response date was extended until 5 March 2014 and is now closed. 11,117 submissions were received.]

3. Blocking orders.  Constantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely. [The CJEU issued its judgment on 27 March 2014. Comments here.]

4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability. [Svensson judgment issued on 13 February 2014. Discussion here.]

5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement.  Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks. [Blomqvist judgment issued on 6 February 2014. Summary here. AG Opinion in Pez Hejduk issued on 11 September 2014 (not yet in English). CJEU judgment in Pez Hejduk issued on 22 January 2015. Opted for mere accessibility as the threshold for jurisdiction over online copyright infringement.]

6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights. [17 Feb 2014 ECHR Grand Chamber decides to refer Delfi case (i.e. hear an appeal). Hearing on 9 July according to AdVox. Papasavvas judgment issued 11 September 2014. No surprises. Confirms previous CJEU caselaw, including application of eDate/Martinez to defamation. No mention of Delfi.]

7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU. [CJEU judgment issued 5 June 2014. Browsing permission not required.]

8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights. [In the latter the ECtHR requested the UK Government to provide written observations on admissibility and merits by 2 May 2014. The complaint has been stayed pending the outcome of the IPT cases (hearings July 2014). The IPT found that the challenged activities (PRISM intelligence sharing and the hypothetical use of RIPA S.8(4) warrants for TEMPORA were, in the light of disclosures of practices and policies made by the government during the proceedings, 'in accordance with the law' going forwards. The position prior to the disclosures would require further consideration. In a further judgment the IPT found that PRISM intelligence receipt prior to the disclosures made in the proceedings contravened Articles 8 and 10 ECHR. In the meantime the CJEU on 8 April 2014 invalidated the Data Retention Directive. As a result the UK government substantially relegislated the Data Retention Regulations 2009 in the Data Retention and Regulatory Powers Act (DRIPA). On 8 December 2014 MPs David Davis and Tom Watson (represented by Liberty) were granted permission to proceed with a judicial review of S.1 DRIPA, with the Open Rights Group and Privacy International intervening. The High Court disapplied S.1 on 17 July 2015, suspended until 31 March 2016. My mindmap of the UK interception legal landscape as at 7 October 2015:]

9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then.  It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward. [Voluntary letters scheme 'Creative Content UK' announced 19 July 2014.]

See also: Cyberlaw Memes and Themes for 2014

Everyman links to a copyright work

Everyman: I’m trying to understand copyright and linking. With three pending references to the CJEU (Svensson, C More Entertainment, BestWater) I guess we will get some clarity before too long?

Scholarly Lawyer: We’ll get decisions. Clarity would be a bonus.

E: Why is this an issue at all?  Doesn’t everyone link on the internet?

SL: Of course. Trillions of links cause no problem at all. But some copyright owners want the right to control who creates links, or at least public links, to their works.

E: Do they have any basis for that? 

SL: The main battle at the moment is around the copyright communication to the public right.  Some national courts have said that it covers some types of linking.

E: Even where the rightsholder has put the material on the internet itself?  We’re not just talking about linking to infringing copies?

SL: Communication to the public is a pretty blunt instrument. It just refers to communication to the public of ‘works’. 

E: Which could cover authorised as well as unauthorised copies?

SL: Exactly. If the right covers linking to infringing copies, on the face of it copyright owners end up with a right to control linking to material that they have put on the internet themselves.

E: Which would be absurd.

SL: Most people would think so.  Even the most devoted adherents of strong copyright tend to stop short of arguing that rightsowners should be able to control simple linking to their own material.  

E: So where do they draw the line?

SL: They tie themselves in knots trying to do it.  The reality is there is no obvious principled basis on which to distinguish legitimate from illegitimate linking within the communication to the public right – and probably no comprehensible one either.

E: But didn't Mr Justice Arnold recently distil 18 principles from the nine CJEU cases on communication to the public?

SL: Yes. A heavier burden than one sentence of any EU Directive should have to bear.
E: What about reference linking?  Isn’t that a good dividing line?

SL: No-one agrees on what reference linking is. All links have a reference function because they refer to resources on the internet.  But you are right: the International Literary and Artistic Association (ALAI) based their recent Report and Opinion on what they called reference linking.

E: How did they define it?

SL: They distinguished between a link direct to specific material protected by copyright, using its URL; and a link which “does not make a specific protected material available, but merely works as a reference to a source where it may be possible to access it and where access to the specific work itself or otherwise protected material is not achieved.”

E: A bit of a mouthful, but doesn’t that make some sense?

SL: Not really.  This is a link to the ALAI report – a PDF file. The ALAI’s position is that it needs their permission (assuming they are the copyright owner), because it is direct to specific copyright protected material using its URL. A link to a file, in other words.

E: OK then, this link is to the page containing the ALAI report. Aren’t they saying that that link shouldn’t need permission because it only refers to a source from which you can access the report?

SL:  If so, it doesn’t help. The page that you have just linked to is itself probably a copyright work. The link may be a reference link viz a viz the report, but it is a direct link to the webpage using its URL. The webpage is an HTML file.  So on the ALAI’s logic it must need the permission of the copyright owner of the web page. You still end up in the position that every link – even a link to a home page – needs permission, unless the target page is for some reason not protected by copyright.

E: Oh. What sort of other links are there?

SL: You name it.  Simple links, deep links, inline links, embedded links, framing links, aggregating links, links to infringing copies, links to downloads, links to streams.

E: But none of them involves the linking site in storing the copyright material?

SL: Correct, except where the linking code has captured a thumbnail of a target image or video. And in none of them is the linking site or link creator part of the transmission stream.  That always goes direct from the target site to the user.

E: Does that matter?

SL: The Copyright Directive talks about the right to authorise or prohibit communication to the public of the work “by wire or wireless means”. According to Recital (23) the right “should not cover any other acts”.

E: That’s why the UK copyright legislation says the communication must be "by electronic transmission"?

SL: Yes. So you would expect the right to apply to those who initiate or intervene in the actual transmission.  That’s been true of every CJEU case so far.  The furthest the CJEU has gone, in Airfield, is to include someone who provided the encryption key and decryption card that enabled a user to receive an encrypted broadcast. The CJEU said this was an intervention without which those subscribers would not be able to enjoy the works broadcast.

E: Seems a long way from linking.  Surely people can access a work on the internet whether or not someone has linked to it?

SL: If it is publicly available, yes. The European Copyright Society Opinion on Svensson leads with the transmission point.  They say “Hyperlinks are not communications because establishing a hyperlink does not amount to ‘transmission’ of a work, and such transmission is a pre-requisite for ‘communication’.”  

E: But many national courts have held that linking can be a communication to the public.  If intervention in transmission is required, how can they have done that?

SL: By taking a very broad view of intervention.  The courts have tended to consider intervention in the availability of the work generally, without really focusing on whether there was intervention in the transmission.

E: Does any of this really matter? Isn’t linking so widespread that we all have implied permission to do it?

SL: Not if there are express licence terms on the target website.  And probably not if the link is to an infringing file.  In any case implied licence doesn’t address some pretty fundamental objections to requiring permission. Is a Twitter user really supposed to access the target site and check whether there are express licence terms, and if not consider whether there might be an implied licence, before tweeting (or retweeting) a link to an item on it? And how can the tweeter tell if the siteowner is entitled to give permission? In Svensson the link was to articles licensed by a newspaper, but which the plaintiff journalists said the newspaper didn’t have their authority to license.

E: I feel a chilling effect coming on.

SL: You’d be right.

E: Didn’t Tim Berners-Lee say that a right not to be referred to pulls the rug from under free speech?

SL: Yes. And SABAM v Scarlet demonstrates that the days when copyright could sit in its own little bubble, finely dissecting the wording of copyright treaties without regard to the human rights framework around it, are long gone at least in Europe.

E: If there are international treaties, don’t we have to abide by them?

SL: Certainly, but copyright instruments are not the only international treaties to which we adhere. The European Convention on Human Rights is also an international treaty. A copyright treaty has to be interpreted in a way that is compatible with and takes into account international treaty obligations in respect of fundamental human rights.

E: Aren’t some types of linking still potentially damaging to copyright owners?

SL: Perhaps, but the communication to the public right is far too blunt an instrument to catch culpable behaviour while leaving the rest alone.  If you want to catch culpable behaviour, there are better tools such as accessory liability for someone else’s infringement.  However that is outside the CJEU’s remit as it is not harmonised across the EU.

E: Roll on Svensson.

Advocate General's Site Blocking Opinion in 15 tweets

[Update: the Court issued its judgment on 27 March 2014.  My assessment here.]

Today the CJEU issued the Advocate General's Opinion in the UPC Telekabel copyright site blocking case.  The Court's official press release is here (PDF).

And here is my attempt to summarise the Opinion (doing the best I can courtesy of Google Translate, since there is no English version) in 15 tweets:


  As a reminder, these were the questions posed by the Austrian court:

1. Is Article 8(3) of Directive 2001/29/EC (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder's consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? [AG's suggested answer: Yes.]

2. If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? [AG's suggested answer: N/A.]

3. If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Information Directive:

Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder's consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? [AG's suggested answer: No.]

4. If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? [AG's suggested answer: It can be. The national court must balance the various competing fundamental rights.]

Hat tip to Thijs van den Heuvel (@TMVDH) for Storifying my tweets.

Everyman meets a copyright radical

(In the interests of balance: Everyman learns respect for copyright)

Everyman: Nice set of stickers you have there.

Copyright Radical: Glad you like them. Down with the Copyright Fascists!

E: Excuse me?

RadiC: Just practising. Day of Action tomorrow.

E: About copyright?

RadiC: Knowledge is a common resource. Defend the public domain. Preserve the commons.  Freedom is sharing.  Copyright enslaves us.

E: Seemed like a voluntary exchange when I paid for my books.

RadiC:  Information wants to be free.  Copyright bars the way. 

E: Information isn’t free. Movies don’t get made for nothing. 

RadiC: Free as in speech, not free as in beer. 

E: Doesn’t change anything.  Who will make movies if anyone can copy the product?

RadiC: Paintings came before copyright.

E: When mass copying was impossible.

RadiC: So when copying was expensive, the investment to do it had to be protected.  Now it costs nothing, copying has to be stopped?

E: Aren’t you ignoring public goods? 

RadiC:  On the contrary. Knowledge is a public good.

E: That sounds bad.

RadiC:  How so?

E: This economics textbook says that consumption of a public good is non-rivalrous and non-excludable.  So an unlimited number of people can take a free ride on the author’s creative investment.  That leads to underproduction of creative works.

RadiC: You can prove anything with economics.

E: The book says that copyright addresses the free rider problem by introducing excludability. It creates the possibility of a functioning market.

RadiC: So we end up with big business controlling knowledge. 

E: Not a dynamic marketplace of ideas?

RadiC: Don’t be ridiculous.

E: Isn’t the alternative worse?

RadiC: Knowledge as the commons. Sounds fine to me.

E: If public goods are underproduced, next thing you have the State stepping in to correct market failure.

RadiC: Collective democratic action.

E: A State-sponsored representative elite controlling the creative commons in the interest of the voter coalitions whose interests it serves.  What’s free - as in speech - about that?

RadiC: You’d rather have unaccountable monopoly US corporations?

E: What the State controls the State rations, including knowledge.  Especially knowledge.

RadiC: This is about copyright, not the State controlling speech.

E: Shouldn’t we just try to have the right amount of copyright? Not too little, not too much.

RadiC: ‘Goldilocks Copyright Now!’ Remind me to make a sticker.  

Everyman learns respect for copyright

(In the interests of balance: Everyman meets a copyright radical)

Maximus Copyright: Hey, you!

Everyman: Me?

MaxC: What do you think you’re doing?

E:  I’m reading this interesting little blog about IT and internet law.

MaxC: You got permission to do that?

E: Who from?

MaxC: Me.  Or the Family.

E: They are?

MaxC: Relations and neighbours.

E: Nice to meet you all.

The Family: Thief! Thief! Thief!

E: What’s this about?

MaxC: This is my patch.  You’re on it.  Pay or get off.

E: I’m only looking.

MaxC: That’s using. Needs permission. Or should do¹.

E: But there are paths.  They say Public Right of Way.

MaxC: You see the TPMs?

E: I'm guessing that's the barbed wire.

MaxC: Right. Illegal to cut it.

E: Is there anything I can do around here that isn't illegal?

MaxC: You've got to learn respect. People these days don't show the respect due to the Family. How did you find this place, anyway?

E: That link. It’s marked.

MaxC: This is serious.  An unlicensed link². Take it down, boys.

The Family: Thief! Thief! Thief!

E: Who’s that over there? You haven’t introduced her.

MaxC: Minima.  She’s the other branch of the family.  We don’t speak.

E: No?

MaxC: They have crazy ideas. Balance, proportionality, reasonable expectations of users.  "The Family will get respect if it gives up some land".  Morons.  I tell you how we get respect, by strong enforcement.

E: Not by education, then?

MaxC: Education of course.  But it has to be the right sort of education.

E: The right sort?

MaxC: The sort that fosters respect. We like to keep it simple. ‘Don’t steal, don’t copy’.  That sort of thing.  If you don’t get the message, something more graduated.  If you still don’t get it, we chop your internet off.

E: Mine?

MaxC: You just keep your nose clean and there won’t be any trouble.

E: I had my nose in this blog until you showed up.

MaxC: Don’t get clever.

E: There’s something I don’t understand about all this.

MaxC: What?

E: If everything needs permission, won't everyone end up breaking the law? How does that foster respect for copyright?

MaxC: You’re starting to sound like cousin Mini and that Hargreaves character she hangs around with.  You need to be educated.

E: How, without any internet access?

MaxC: That's enough. Re-education camp for you.

E: Huh?

MaxC: You'll love it.  The tutors all love copyright. The guards all love copyright. It will be a better world when we all love copyright.

The Family: Take him away! 

Notes:

1.The question of whether merely browsing a copyright work online requires the permission of the copyright owner is currently the subject of a reference to the EU Court of Justice in Newspaper Licensing Agency v PRCA.  The view of the UK Supreme Court was that it should not require permission, in the same way that reading a physical book does not – even if the book is an infringing copy. However the browsing point was of sufficient importance that it should be considered by the CJEU.

2.  The question whether a web link to a copyright work on the internet requires the permission of the copyright owner is currently the subject of references to the EU Court of Justice in Svensson, CMore and Bestwater.