About Reda’s report

When I first read former MEP Amelia Andersdotter’s comments on the Legal Affairs Committee rapporteur Julia Reda and her evaluation of the EU Copyright Directive, I could not help but giggling:

“Even the European Commission has set a higher standard for themselves than this. It has acknowledged since 2009 that there is a problem with the substance of copyright. […] De facto, Julia Reda is more conservative than the European Commission, and this is a massive problem for representative democracy.”, Amelia says. “So we have a copyright-friendly, cyber-security inspired German trying to impose Brussels-made statist policy on 507 millions citizens of Europe which leaves stuff more or less the same. Angela Merkel could not have done it better had she tried.”, she adds.

Surely the Swedish politician was pissed not having been re-elected while Julia Reda had somehow taken her place as Pirate Parti representative in the European Parliament – well, that was my first thought. The thing is, such a statement dramatically weakens the European Pirate Party, which Amelia happens to be Chair of. However bitter she might be, she is way too smart for any petty behaviour that would endanger her own camp, so what on Earth could have inspired her such a violent critic – except maybe, an urge of saying the truth? Curiosity was too high. While I had pledged not getting into European politics anymore, there was only one thing I could do here: reading Reda’s report. To find out that sadly… Little Amelia, as usual, was right.

What a disappointment indeed while discovering the document. Or we can phrase it the other way round: it just confirms once again that there is nothing, absolutelly nothing to get out of the European Institutions anymore – as apparently even the best of us loose their guts once elected. What I am wondering though is how the text could have received the support of organisations such as La Quadrature Du Net. As if everybody had suddenly given up fighting the European Copyright Directive main flaw, ie. the stipulations making illegal the circumvention of technical measures (DRMs).

Despite the multiple perverse effects of the latter indeed, among which, the heavy threat on innovation, privacy and security, their existence as such does not seem to be challenged at all here in Reda’s report. In other words, software installed by companies to protect what they – according to their own subjective criteria – consider shall be subject to copyright remains not only blessed but also highly protected. So then, what is the report proposing to reform? Well, paragraph 24 at the very end does attempt to address abusive uses and I suppose, would still be better than nothing, as the European Parliament would recommend:

“making legal protection against the circumvention of any effective technological measures conditional upon the publication of the source code or the interface specification, in order to secure the integrity of devices on which technological protections are employed and to ease interoperability; in particular, when the circumvention of technological measures is allowed, technological means to achieve such authorised circumvention must be available”.

Some may say, the European Union would never go backwards to suppress entire pieces of regulation, which is why Julia Reda did not even try, and rather suggested to amend it. This is after all a very reasonable position, and gives it more chances to be adopted. Except that if the European Pirate Party starts turning a blind eye on legal aberrations, betting that at least some of their ideas will go through, their very existence may have to be reconsidered. Other parties do that very well already, and with the best intentions.

Documentary on Patents War

For most people, the patent system is a complex and mysterious institution far from our immediate concerns; as such, it should then remain in the hands of industrials and their lawyers. An unfortunate way of thinking: the related costs are indeed ultimately supported by all of us as end users. While we could benefit from a wide range of new products that would make our life easier in a way we don’t even dare to dream about, we invariably end up paying for never ending lawsuits between tech giants. A shameful situation that should no longer remain in the shadows.

A good documentary on Patents War was broadcasted on the bilingual French-German channel Arte in early July, showing how patents actually impact our everyday life. It’s a little out of date – the reference to US laxity with regards to patent trolls notably seems to forget about the Innovation Act passed last year – with a slightly irritating voice-over – the cheesy background saxophone being as for itself rather charming than annoying. Nevertheless a comprehensive overview of the situation is given.

The film covers a variety of case studies showing how our food, health, work, household and leisures are dramatically affected by patent costs and slowed down processes. Astonishing numbers are then given: four thousand dollars for a cancer risk screening; two hundred fifty thousand patents for a smartphone; higher budget allocated by major IT actors on patents than on research and development… The consequences in terms of innovation, sustainability and well-being are disastrous.

While the traditional methods of communication were keeping the intellectual property mechanisms understandable only by an enlightened elite, the information society has made knowledge accessible, so that each and anyone of us can now take an interest in any topic and potentially help fix existing problems. The patent system is one of them; with enough of us spreading the word and highlighting the cracks present in the overall regulation, we can overturn the latter and move on towards a fair, healthy and innovation driven competition.

An online kit for digital emergencies

Written for Simon Says column on Computer World UK ]

It’s a remarkable work that has been achieved by the Digital Defenders in partnership with the Electronic Frontier Foundation, Access and a group of human rights NGOs with the release of the Digital First Aid Kit – a well-designed website addressing digital emergencies of varying kinds.

The resource covers basics for secure communication, establishing trust but also how to react in case of account hijacking and devices that are seized, stollen or lost, plus mitigation for malware and DDoS. What do these barbarian terms stand for though, might be the first question a non-tech user would wonder.

Whereas we can regret that the different sections are given here very technical titles, which might discourage some to pursue the reading to understand in which category their particular situation actually matches, clear descriptions are luckily provided for each of them.

The Kit starts with the necessary self-discipline of choosing secure communication, stating that most of usual communications tools are not as secure as one can hope: “Mobile and landline phone communication is not encrypted and can be listened to by governments, law enforcement agencies, or other parties with the necessary technical equipment. Sending unencrypted communication is like sending a postcard, anyone who has access to the postcard can read the message”.

The solution here is quite naturally the use of encrypted communication, the Kit explains: “Sending encrypted communication is like placing the postcard inside a safe and then sending the safe, which only you and those you trust know the combination to and are able to open and read the message. […] Choosing the most appropriate form of secure communication will depend on your unique situation, your threat model and the activities in which you are involved”.

It then goes through the various emergency situations that can arise, among which account hijacking and devices seized – or lost – are probably the most common: “Are you having a problem accessing an email, social media or web account? Does an account show activity that you do not recognize? There are many things you can do to mitigate this problem. […] Is your device lost? Has it been stolen or seized by a third party? In any of these incidences it is very important to get a clear picture of what happened, what kinds of data and accounts may be vulnerable as a result and what steps must be taken to prevent the leaking and misuse of your information, contacts and accounts”.

Dealing with malware is less familiar to most users, but certainly not less concerning: “‘Malware’ is malicious software that facilitates an unauthorized takeover of your device by another user, government or third party to perform surveillance functions such as recording keystrokes, stealing passwords, taking screenshots, recording audio, video and more. While most malware is designed for and utilized by criminals, state-sponsored actors have increasingly adopted malware as a tool for surveillance, espionage and sabotage. Malware is used to gain control of devices. It exploits access to the device to send out spam, seize banking, email or social media credentials, shut down websites and collect vital information from journalists, human rights defenders, NGOs, activists and bloggers”.

Distributed Denial-Of-Service mitigation – DDoS – comes last: “A threat faced by many independent journalists, news sites and bloggers is having their voices muted because their website is down or defaced. In many cases, this maybe an innocent and frustrating problem, but on occasion, it may be due to a ‘denial of service’ attack or a website takeover”.

The Kit concludes with a more technical section on establishing trust to help understand the tools aimed at maintaining secure conversations with only the person we think we are conversing with. Take a look and pass it on!

Permissionless Innovation Proclaimed

Written for Simon Says column on Computer World UK ]

Was anybody seriously expecting major changes from the São Paulo NETmundial Summit ? Not really: if multistakeholders meetings on internet governance were leading to anything concrete for civil society in terms of rights and freedoms, we would know it – as highlighted by La Quadrature du Net in a communication preceding the event.

All we could hope for was in fact that the situation does not get worse; this would have been the case if support had been shown to some of the recent wanderings around fostering Nation-based webs for example, promoted by Angela Merkel and strongly condemned by Internet pioneer Tim Berners Lee.

Organised under the impulse of Brazilian President Dilma Rousseff, whose speech in front of the United Nations in September 2013 did not demonstrate much tolerence regarding the United States spying system, the NETmundial Summit objectives were double: identifying a set of Internet governance principles and drawing up a roadmap on the future of Internet ecosystem.

Whereas the term “Multistakeholder Meeting” has been widely criticized, suggesting notably that aiming at reaching a compromise with a too disparate aggregation of participants was doomed to fail and litteraly speaking, some sort of parade to avoid talking about governments actually involved, the outcomes document shows sincere efforts from the organizers to set up the bases of a healthy Internet governance.

Are thus listed, first of all, “Human Rights and Shared Values”: the freedom of expression, the freedom of association, the right to privacy, accessibility for persons with disabilities, the freedom of information, access to information and finally, the right to development for people living in poor countries.

“Rights that people have offline must also be protected online”, says the document. Mainly targetted here: the repeatedly violated right to privacy, which supposes “not being subject to arbitrary or unlawful surveillance, collection, treatment and use of personal data” and “the protection of the law against such interference.”

Other principles come then. Internet should be, among other, a “unified and unfragmented space” as well as an “open and distributed architecture”; it should imply the use of open standards, “that allow for a global, interoperable, resilient, stable, decentralized, secure, and interconnected network, available to all” and “must be consistent with human rights, […] development and innovation.”

While we can regret the preference given to the non-binding expression “should” – most of the text being written in rather vague terms – one paragraph does not leave room for discussion; surprise, it basically proclaims the Freedom to Innovate (!):

“The ability to innovate and create has been at the heart of the remarkable growth of the Internet and it has brought great value to the global society. For the preservation of its dynamism, Internet governance must continue to allow permissionless innovation through an enabling Internet environment, consistent with other principles in this document”.

Sweeping away Intellectual Property restrictions, Permissionless Innovation Freedom is now written black on white. Congrats Brazil! A very smart move beyond all hopes.

Data Retention Directive is Dead

[ Written for Simon Says column on Computer World UK ]

In a decision issued yesterday, the European Court of Justice – CJEU – declared the Data Retention Directive to be in breach of Fundamental Rights of the European Union – namely: respect for private life (article 7) and protection of personal data (article 8).

The judgment comes following requests from the High Court of Ireland and the Constitutional Court of Austria. Adopted on March 15th 2006, the Data Retention Directive required members states to store citizens’ telecommunications data for six months to two years for the needs of the police and National security agencies.

Building on the 1995 Data Protection Directive and the 2002 Directive on Privacy and Electronic Communications, which the Data Retention Directive was supposed to complement, the Court observes that the Data Retention Directive makes it possible “(1) to know the identity of the person with whom a subscriber or registered user has communicated and by what means, (2) to identify the time of the communication as well as the place from which that communication took place and (3) to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.”

Which, according to the Court, are disproportionnate provisions with regards to the Directive’s objectives – and thus, in contradiction with the EU Proportionality Principle: “Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. […] Not only is there a general absence of limits […] but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use.”

The questions pending now: how will it go with regards to National regulations adopted pursuant to the directive? Can Telecom and Internet Service Providers still store personal data over six months or is it now definitelly to be considered as illegal, as digital rights defenders have been claiming for years? How about ongoing contracts and subventions from governments in favor of such data retention?

According to Open Rights Group Executive Director Jim Killock: “The companies need to think quickly about liability, retention and government payments; the government may need to legislate. If the government legislates it needs to take the ECJ judgement into account, to avoid having to rewrite the rules again if the EU introduces new data retention legislation. We’ve been given guidance to the limits of surveillance and data retention, including requirements to limit the uses and confine the retention to relevant data. It is essential that the UK takes notice of these requirements”.

Whatever the outcomes of this historical decision, it may well mark a turning point as for the way European legislations are handled at National scale.

FFII Lampoons OIN

[ Written for Simon Says column on Computer World UK ]

In a communication released yesterday April 1st, the Foundation for a Free Information Infrastructure (FFII) lampooned the Open Invention Network (OIN) and its declared objective to defend the Linux kernel  thanks to a massive patent pool targetting Linux related systems.

Founded in 2005 by major ICT actors including Novell, Philips and IBM — whose indefectible support to software patents was incidentally reiterated in an amicus brief submitted to the Supreme Court of the United States on the Alice vs CLS Bank case — OIN aims to protect open source companies against the infamous threat of Patent Trolls by promoting “a refined model of intellectual property management”.

Among the projects carried out by the organisation, the Defensive Publications and Peer-To-Patent programs endorsed by the United States Patent and Trademark Office are apparently not of the taste of the FFII, notably known for its leadership role in defeating the Software Patent Directive nine years ago.

“Patents serve as a good incentive for litigation, which can be a new business model for financing open source development,” President Benjamin Henrion quips. “We are now launching two parallel projects: the OffensivePublications and Coin2Patent initiatives”, he announces as April Fool.

Defensive Publications are documents that provide descriptions of a product so that it enters the public domain and becomes prior art. According to the OIN website, “this powerful preemptive disclosure prevents other parties from obtaining a patent on the product, device or method. It enables the original inventor to ensure that they have access to their invention by preventing others from later making patent claims on it. It also means that they do not have to shoulder the cost of patent applications.”

“OffensivePublications is basically the patents themselves, which is going to only include patent claims and no documentation”, FFII spoofs. “This powerful preemptive document prevents other parties from making, using, selling products, devices or methods. It enables the original inventor to ensure that they have access to their invention by preventing others from later making products on it. It also means that they do not have to shoulder the cost of making products.”

Peer-To-Patent as for itself is “an online system that aims to improve the quality of issued patents by enabling the public to supply the USPTO with information relevant to assessing the claims of pending patent applications”, OIN website says. “The community supplies information and research based on its expertise. The patent examiner makes the final determination on the basis of legal standards.”

“The Coin2Patent project is a distributed crowdfunding decentralized platform, where anybody can help patent trolling by sending anonymous donations”, FFII overbids. “The central blockchain of Coin2Patent is nevertheless regulated by the EPO and USPTO, which acts like central banks to fluidify the economy, and limit the number of patents in circulation.”

Thank you Benjamin for this refreshing satire!

A new dynamic for Europe

[ Written for Simon Says column on Computer World UK ]

Last week our team was invited in Brussels for the official launch of the PPEU – the European Pirate Party. MEP Amelia Andersdotter hosted the event, and coordinated the arrival of delegations and supporters.

Founded in January 2006 by Rick Falkvinge, the original Pirate Party was created in Sweden to support free sharing of information and knowledge against massive lobbying in favor of Intellectual Property monopolies – that’s to say companies leveraging copyright and patent law as their primary business. Since then, it has evolved to embrace issues such as privacy, net neutrality, transparency and last but not least, a back-to-the-roots approach to democracy.

While it has mainlly spread in European member states, you can now find Pirates in various other countries around the world. At first rather controversial, the name is being slowly accepted in the political landscape in the tradition of words like ‘Tory‘.

“The English pirate is derived from the Greek word πειρατής (peiratēs) and this in turn from the verb πειράομαι (peiráomai), I attempt […]” explains Stathis Leivaditis, former chairman of the Greek Pirate Party. “When something doesn’t work, you have to attempt to bring a new concept. Sometimes it goes beyond a certain point and perhaps exceeds certain limits, because it is an expression of challenge; the challenge to change the system.”

The event as such was not as focussed as we could have wished. We had hoped for a historical overview on how National chapters were formed and maybe, some founding principles that would distinguish the new party from existing ones – like the ones expressed in the Pirate Party Manifesto. But the keynote speeches sounded like speakers self-promotion in preparation for upcoming elections.

Gathering Pirates from all over Europe inside the European Parliament was the real challenge though, and we can here only recognize a genuine success. It appeared that a new dynamic has started, giving hope to the attendees and encouraging further cooperation between one and another for the months, not to say the years to come.

Patent Trolling is an Art – Cocorico

[ Written for Simon Says column on Computer World UK ]

‘France, Mother of Arts…’ wrote XVIth century poet Joachim du Bellay in the collection ‘The Regrets’. If Patent trolling is an Art, we can indeed only regret to see France coming in first position, with an undeniable masterpiece financed by the State and celebrating its third birthday this month: France Brevets – a unique institution. Its supposed mission is to “help French SMEs to protect their inventions against the patent trolls threat” – according to an instructive article published in Le Monde last week.

Sadly and without much surprise, the organisation itself is no more no less than a National Patent Troll, literally a “non-practicing entity” – NPE – whose only purpose is to aggregate patent pools to get the “best” out of licensing possibilities. How? By suing potential infringers of all kinds and making them pay royalties. The devilish objectives are not even hidden: “by offering to exploit your patents outside of your core business, France Brevets explores new opportunities for promoting your patents,” they say in their own website. “The broad spectrum of a patent may cover other fields of use and may interest other companies in other sectors”, they add without a hint of morality.

Why should you always be off-track France, why? Was the experience of the “three strikes” law not enough? How can you not hear the voice of the hundreds of citizens, companies and nonprofits active on your territory calling on you to defend innovation and freedom? Surely the meshed society is now sufficiently obvious; even Neelie Kroes can see it. Instead you pride yourself on such a miserable initiative – this, against currents of the whole International community now globally united against patent trolls.

At least this is happening openly, so we are warned. After all, the French Government might simply have anticipated the proposed Unified Patent Court having its seat in Paris and sneakily decided that it would be good if a National structure could somehow benefit from it. This one is hidden in plain sight – as we say, “the bigger it is, the less you’ll see it.” What could be cleverer than a patent troll under National control to get the best out of the patent plague? Long live France, long live my country.

On Internet Governance

[ Written for Simon Says column on Computer World UK ]

After Germany refused asylum to digital rights hero Edward Snowden, whose physical resemblance with my cousin could only lead to an increased empathy from my side, I must confess that I was darkly amused when Angela Merkel discovered her mobile phone was itself subject to NSA monitoring. Her sudden interest in Internet governance and her foolish ambition to launch a European Internet was reminiscent of a child discovering Father Christmas does not exist; she finally understood that she had been manipulated all that time, keeping her eyes closed while more and more citizens were expressing concerns about their privacy.

Merkel is far from being stupid and got one point right though. Whereas the solution she is suggesting is rather awkward, reminding us of the Chinese approach, Internet governance is indeed the hidden issue behind all others and must become a prime topic of citizen awareness. Massive surveillance, copyright enforcement, net discrimination and censorship are sadly small-beer compared to the question of who holds the keys of the world-wide web, among whom the ICANN, mainly controlled by the US government, plays a major role – as highlighted by the European Commission last month.

“We need to re-decentralise the web”, said Internet pioneer Tim Berners Lee at a recent event organised by Wired Magazine. “It’s important to have the geek community as a whole think about its responsibility and what it can do”. How can this happen? The question remains open. A Balkanised web with data stored locally only on servers physically in the country where the customer resides would certainly be the biggest mistake for governments to make. With strong advocacy of such an idea from Brazil, and an upcoming summit in Sao Paulo on the Future of Internet Governance, we must remain very careful. Politicians as one might notice are just just like kids and luggage; never leave them unattended…

Surveillance, innovation and user trust

[ Written for Simon Says column on Computer World UK ]

Some times ago I learnt that my long lost friend Jeremie Zimmermann would no longer be a spokesperson for La Quadrature du Net, a French organisation defending citizen rights on internet. I got to know Jeremie in Paris in 2003 while I was writing my Master dissertation on the Copyright Directive (EUCD) and then again further one year later in Brussels, where he greatly supported my work on the Software Patents Directive as I was doing an internship at the European Parliament.

I was wondering towards which horizons he could now possibly be heading to when a video caught my attention : “Nothing to Hide”. In it, we can see Jeremie performing a song together with a French singer around the recurring attempt to justify massive surveillance “if you have nothing to hide, there is nothing you should worry about” – the song demonstrating the opposite.

At first amused by this new eccentricity from my compatriot, I had to admit soon enough that the digital freedoms thematic is still sadly lacking in the musical landscape ; such an initiative can thus only be applauded as an excellent step forward in terms of education, diversified approaches being necessary to a better understanding of the challenges related to our digital environment.

One part of the song then particularly deserves our attention : “Things we want to keep for ourselves belong to our intimacy”, says Jeremie. “This is where we can experiment theories, hypothesis. The place where you can say “what if”… And then change our mind and say no. This is where lies what one could call creativity, and this is what is threatened when we feel under surveillance, when we *are* under surveillance”.

What he refers to here is indeed at the heart of the meshed society’s balance, ie. the relation between privacy and creativity. An ultimate bridge between human rights and market interests. The negative impact of massive surveillance over innovation and user trust is a crucial concern : time for businesses to stand together with civil society and as a sole man, spread their voice for mankind sake.

Are EU institutions making fun of us ?

[ Written for Simon Says column on Computer World UK ]

Hardly believable. Last week we expressed concerns about the European Commission true intentions with regards to the copyright consultation, the deadline for which has been extended to March 5th despite the hundreds of contributions already received. It’s superficially a good thing for those of us working to represent civil society, but think about the employee who is supposed to deal with the responses, and you might wonder what can possibly motivates the Commission to ask for more. Big industry lobbies being overwhelmed ? Maybe…

The level of the questions present in the document had already rung a bell. Number 11 for example asks whether adding a link to content should be subject to the authorisation of the rights-holder; number 12 raises the question whether the viewing of a web-page should be considered as a copy. These are so obviously laughable they suggest we should denounce once and for all the lack of competence of the Commission on ICT issues since both would simply mean denying the internet as a whole.

Meanwhile, our doubts have gradually been confirmed, as the consultation appears more and more as a vicious distraction while sneaky copyright changes are happening. On the same day indeed : a Directive on Collective Rights Management was adopted by the European Parliament; plans for an overhaul of the E.U. Copyright Directive was approved by the Legal Affairs Committee; the Notice and Action Directive about censorship through hosting services providers was announced as back on track – according to independent policy writer Monica Horten.

Isn’t it odd? Asking for input from civil society on sensitive questions but keeping the legislative process ongoing with regards to the same questions, without waiting for the answers? This is what a fake democracy looks like. An illusion of participation – to feed our needs of having our say while serving the needs of some elites.

Except that we are tired of those ludicrous gambits. Tired of being constantly watching over civil servants as we might with irresponsible kids. Tired of spending our free time helping EU institutions in their daily work, and realize afterwards it was all just wasted.

I had a dream… Of a Copyright Reform

[ Written for Simon Says column on Computer World UK ]

Once upon a time, the 1886 Berne Convention was the only text governing copyright legislation both at International and European scale. In 1991 however the WIPO authorities decided that the convention should be renewed to adapt to the digital environment. Internet was just at its early stage by then, still an expert committee was judged competent enough to define a set of rules to apply to the barely born information society. The same year, the European Union adopted a directive saying that software should be subject to copyright, which, as such, was not a bad step forward.

The daily arrival of new technologies on the market did not facilitate the experts task though, getting them more and more confused day after day. In December 1996, a conference was finally held in Geneva to gather inputs from all over the world and after eighteen days of tough negotiations, the so called WIPO Copyright Treaty (WCT) was adopted. It was implemented in the United States in 1998 with the Digital Millennium Copyright Act (DMCA), and in Europe in 2001 with the European Union Copyright Directive (EUCD).

What is the particularity of this major text you might wonder. Well, it is just where all troubles started. By imposing legal remedies against the circumvention of technological measures used by authors in connection with the exercise of their rights, the WCT opened a Pandora box that would harm internet freedom for the generations to come. Five years later, despite unprecedented mobilisation from civil society mostly worried about privacy, access to authorised content and effective competition, the European Union adopted its shameful Copyright Directive where right-holders as opposed to authors would from now be the ones benefiting from the law, and technological measures – understand, digital restrictions management – would be legally protected for whatever content the right-holders would judge worthy of copyright protection – giving them full control over the definition of the subject matter.

All right. This was for the historical background. Now that thirteen years have passed and with no need to provide examples here of the damages caused by the EUCD – this could be subject to another article – politicians slowly start to get the idea that there is something wrong with the legislation since instead of adapting copyright law to the information society, the directive does in fact quite the opposite, hampering a healthy development of the latter. The Pirate Party greatly helped in bringing awareness on making the truth shine – see notably “The Case for Copyright Reform” by Christian Engström and Rick Falkvinge. Other initiatives also spread the idea that another copyright code could be possible.

In December 2013, the European Commission decided to take things a bit more seriously and launched a public consultation on the review of the EU copyright rules. Whereas the consultation addresses major concerns on the effectiveness of the protection and how copyright exceptions are dealt with in Europe though, it does not mention the Q question at the heart of all abuses ie. the drafting of the provisions with regards to technological measures – articles 6 and 7. In such circumstances, we might wonder whether the Commission’s objective is to actually get input from civil society on the multiple defaults of the legislation, or to keep it busy struggling with the eighty questions present in the consultation while the real legislative process is happening.

Paranoid, me ? Possibly – a little. But then, explain me * how comes * that a Directive on Collective Management of Copyright was adopted by the European Parliament the very day that was supposed to be the deadline for the consultation – ie. February 4th ? Fair enough : this was just about one particular aspect. But now that the deadline has been extended to March 5th, let’s think about keeping an eye on what the European Union is doing in between. As for our dream that an efficient copyright reform comes true some day in Europe : let’s keep it strong, and pursue all efforts started towards that goal. Old models will collapse just by themselves, you’ll see.

How to move on towards a Free Internet

[ Written for Simon Says column on Computer World UK ]

Is net neutrality dead ? Let’s face the truth : yes, it is. At least, as we knew it.

In Europe, the repetitive efforts of civil society to get basic principles adopted by the European institutions have sadly led to nothing more than a vague regulation on ‘laying down measures […] to achieve a Connected Continent’ which does ban discrimination against specific content or services… but endorses the possibility for internet providers to have ‘special agreements’ with certain companies to ensure ‘quality traffic’ for their applications. The regulation is currently under examination process at the European Parliament, final adoption being forecast for next Easter – with risks of delays as usual. In the country of human rights, major Telecom operator SFR already proposes to its subscribers special tariffs ensuring an unlimited youtube access.

In the United States, things are getting disastrous. While a rather light legislation imposing minimal net neutrality requirements had been adopted by the US Federal Communications Commission in 2010, a federal appeal court recently invalidated the latter due to an alleged lack of legal grounding. A benediction for American internet providers such as Verizon, who is here winning the case, and AT&T who previously announced the launching of a broadband sponsoring plan targeting actors such as Google and Netflix.

What should we do then ? Bury our heads into the ground and cry our tears there ain’t no freedom anymore and we are all gonna die ? Of course not. Just as usual, simply consider the opportunities here. Okay so Internet services providers can now do decide on privileging certain content. Fair enough. Let’s them do it and rather focus on what we can still do by ourselves without asking for permission.

Launching new businesses for instance. Calling on the open source community for advice and / or participation. Starting our own open internet services companies – we could call it “Open ISPs”, what do you think ? It appears some have thought about it already. Several websites have already popped out with instructions on how to start your ISP business.

So dry your tears then, and get yourself ready to move on towards a new adventure.

Overview on the past year

[ Article transferred from my old wiki ]

What an exciting although tough year we just went through with regards to digital freedoms. After starting so sadly with the tragic death of one of our youngest heroes, 2013 saw the rise of a bunch of other courageous figures who risked their lives to defend our rights.

Aaron Swartz’s suicide has shaken up the whole community and awaken the feeling that we could no longer remain passive faced with a growing number of abuses from governments and big industries, perpetuated either in the name of security or intellectual property – the two main obstacles to liberties in this early 21th century.

The Snowden affair marks a turning point in both digital rights and open source history. A sudden awareness that the world wide web we evolve in is aptly named and could become the bars of the cage we would end up stuck in.

Aldeous Huxley had warned us in 1931 with his novel ‘Brave New World’, stating that “​the perfect dictatorship would have the appearance of a democracy, a prison without walls in which the prisoners would not even dream of escaping ; a system of slavery where, through entertainment and consumption the slaves would love their servitude.”​

Whereas the progresses in terms of privacy protection and freedom of speech remain mitigated, with new measures taken by governments everyday as desperate attempts to control the internet – DRM in HTML5, EU telecom package, censorship on Google search results, TTIP … – the boost for open source is quite spectacular.

Finally, citizen and public administrations start understanding the issues at stake when it comes to compare free software and proprietary models. Control or be controlled. Stay free to use, study, improve and share the product you legitimately acquired, or be monitored by it.

Open source gives you these freedoms. The source code is accessible to you, and a community of developers is constantly improving the reliability of the product so that at any time, you can check how your data is being processed. At the opposite, there is no chance for you to figure out what happens to your data while using closed source, which is how private information ends up under the scan of the NSA or less dramatically but as much annoying, used for targeted advertising.

Together with the open source spurring, open data became a rather fashion issue last year. Just as with the free software movement, the concept is to open up access to certain categories of resources for a complete free use. The aim is to foster education, innovation and competition. Efforts still need to be made though, as so far words and intentions have been followed by very few actions.

Open currency offers much more concrete perspectives. With the advent of Bitcoin, the alternative economy we’ve heard of for years is not a dream anymore. Let’s wish good luck to this new currency rewarding contributions to existing problems, and hope that open source keeps inspiring innovators from all sectors.

Best wishes for 2014 !

Software Patents : where are we now

[ Written for Simon Says column on Computer World UK ]

On December 11th 2012, after decades of discussions, the Unitary Patent was adopted by the European Parliament, endorsing the European Patent Office case law, enforcing software patents in Europe. The Foundation for a Free Information Infrastructure deplored what they called a ‘suicide [ from the European Parliament ] as a legislator in patent law’.

So far, the patents granted by the EPO were not endorsed by the European Union and had thus a limited effect in Europe – the EPO operating as an independent entity auto-financed by the patents granted to its clients, mainly big industries, with no democratic control whatsoever.

Two months later, an agreement was reached by the Council with regards to the creation of a Unified Patent Court, first step towards making the Unitary Patent enter into force. A preparatory committee was set up and a public consultation was launched with regards to the rules of procedure that shall apply to the Court.

Surprise : whereas the civil society did not show much interest, big industries suddenly decided to stand together as a sole man to point out the high risks of abusive lawsuits induced by the rules. Since then the whole process has been postponed, leading the Unitary Patent to an eventual dead end.

Just another example of the gap between EU legislation and reality.

Patent trolls indeed became a top priority issue in 2013, as the number of ‘non tech’ businesses being attacked started growing – advertisers, banks, restaurants, shops. This led to the adoption of the Innovation Act by the United States House of Representatives, which was applauded by civil society as a major step towards patent reform.

The provisions include transparency requirements as well as customer stay clause, which protects businesses from attacks as long as manufacturers agree to handle the case. The bill does not solve the software patents issue though and only addresses the problem of Non Practicing Entities which economical model is based on patents monetizing.

In truth, trolling practices are not the exclusive bastion of NPEs, but no more and no less than the daily routine of major corporations – eventually hiding behind a separate legal structure.

A perfect illustration is given by the ongoing patent war between giants of the mobile industry. After declaring they would not use their patents against open source unless being first attacked, Google is now building a major portfolio of trivial patents, discrediting once and for all the whole patent system.

The US Supreme Court should soon respond to a key question though, ie. whether or not software shall be considered as abstract idea, and thus, excluded from patentability, with the Alice v. CLS Bank case on the use of certain methods for the purpose of financial transactions.

Whereas Europe and United States are still highly suffering from the gangrene caused by the patent microcosm, the New Zealand government took a rather courageous decision by cutting off the sick limb, banning software patents once and for all from its territory. Amendments to the Patents Bill were voted accordingly to clarify its legislation, showing the way towards a sustainable digital industry.

Key policies for a healthy IT market

[ Article transferred from my old wiki ]

​It has been quite a while now since I have been involved in IT policy issues. For the past ten years I was alternatively active with European Parliament, non-profit organisations and open source companies on various projects aimed at fostering digital innovation.

Despite the growing dependence on software in our everyday life though, it appears that related legal concerns still remain obscure for most of people. In other words, it was hard to explain all of this ten years ago, and I somehow feel that it has not changed much.

A sufficient reason for me to remind here the keys to a healthy IT market – on which our information infrastructure and thus, our daily communications now rely.

» No software patent

Patent law was created as a counterpart for the costs invested in developing “technical solutions to technical problems”. Besides the fact that the software industry costs are of a completely different range, there is nothing technical in a software – not more than in a music score or a mathematical reasoning. A software is a set of instructions and data aimed at being executed by a machine. Software patents are dangerous as they create ownership rights on trivial processes. Programmers shall not have to worry about infringing a patent while developing pieces of codes. This leads to hindering software innovation, already sufficiently protected by copyright, antitrust and contract laws. Practices consisting in delivering software patents shall be stopped.

» No DRM in copyright law

Whereas copyright law shall definitely apply to software, and I include here open source licenses, the decision to include DRM among the subject matters was a complete mistake. A DRM is a digital restriction measure aimed at restricting access to related content. It is not because someone decides to add one to a content that the latter satisfies the legal criterias such as originality or creativity of the work. Worse, it prevents users from exercising legal exceptions to copyright, such as for interoperability or research purposes – in addition to eventually violating their privacy. A complete reform of the copyright system must be undertaken.

Learn more about patent and copyright :
read post on Intellectual Property vs Innovation

» Free and open standards

Data needs to circulate freely within the information infrastructure so that users are not locked in with one single editor. This is what we call interoperability, which allows us to read a same document using different software. In that extent we need free and open standards so that various actors can access and implement the latters on royalty-free basis to develop their products. This supposes neither patent nor any copyright restriction whatsoever, and is thus in contradiction with any “fair, reasonable and non discriminatory” model (FRAND) that would impose the payment of royalties. Free and open digital standards shall be enforced in all standardization bodies.

» Non discriminatory procurement

In addition of being strictly forbidden by contracting rules, favoring a brand in public procurement leads to excluding innovative companies from the market and maintaining propriatory, non standardized software in administrative bodies. This, at the expense of governments themselves, who collaterally abdicate their control over IT budget and security. In spite of common sense, public administrations continue playing a major role in sustaining monopolies through discriminatory calls for tenders. Transparency in public affairs is not only an option anymore. State’s infringement to contracting rules must be condemned.

» A ban on tied sales

Tied sales happen when a customer is forced to buy another product together with the one he actually needs. This raises the cost for the latter, and discourages him for searching for an alternative of the imposed product, excluding companies who could potentially offers competitive solutions. The legislation shall allow the customer to buy the products separately and give a chance to innovative competitors.

» Net neutrality

Internet shall remain an area where freedom of speech and communication prevail. If ever certain persons use it for inappropriate behaviours, such behaviours shall be condemned in accordance with the law on case by case basis. The web as for itself shall stand free from any censorship whatsoever. Unfortunatelly, some service providers tend to favor certain editors an block access to other’s content based on commercial interests. Such practices are not acceptable and must be forbidden by the law once and for all.

Does this post look familiar to you ? Possible, since I used it for Ultimate Circle’s policy section.

If there was one word to associate with a healthy software industry, would be OPENNESS.

Openness is essential when it comes to talk about software. Why ? Because software, such as mathematics, such as sciences, shall not be locked – or else, we are the ones who will end up locked in. Our society needs to build up around software. Not to be built by it.

I will come back shortly enough with explanations on open data and open source.

​​

Safeguarding the Kernel

[ Article transferred from my old wiki ]

When confronting to a hostile environment that despite your multiplied attempts, you can’t manage to change or at least, not quickly enough to save your skin, there are two options : either you keep shouting “we’re all gonna die, we’re all gonna die” and then when the witching hour arrives, look at your fellow agonising next to you and say “see, I told you” ; OR, you shut up for one minute, draw as deep as possible inside yourself and manage somehow – at this point, nobody can tell you how – to adapt to the situation and survive until it evolves.

During this critical period, there are globally three things you should safeguard as a person : your physical shape, intellectual health and moral integrity. The human being kernel. All you can count on thus being your own strength, focus on what you can control, and forget about the rest – theory tested by your humble servant although hmm, her life “as such” was not exactly threaten.

What works for individuals works for communities as well ; you just have to refine what you put into the kernel. In the case of the Linux community – to take an absolutely random example of course – the latter is made of the main components of the Linux operating system.

Having demonstrated in my previous post why the current Intellectual Property law was detrimental to innovation and thus, would only lead to some sort of global disaster unless seriously reformed – although I did not use those alarmist terms, leaving the conclusion to the smart reader – I initially felt quite satisfied about my brilliant reasoning.

Shortly enough I turned out to feel rather stupid thought, as I had been pointing out the problems but did not propose anything concrete to avoid a catastrophic scenario – being aware the IP system * is * evolving, but so slowly that our whole industry is currently clearly at stake. I started thinking, I should now look for solutions and in that extent, began to read all the literature that I found about how open source leaders, as first ones concerned, were dealing with the situation, my main concern being, as you can guess, the software patents plague.

Investigating at an OSS summit, I got in touch at that right moment with Open Invention Network, US based organization dedicated at preserving the Linux ecosystem.

Founded in 2005 right after the first patent attacks against major companies using Linux, OIN consists in a world wide non-aggression pact associated with a bunch of defensive tools.

While its members and licensees are bound by a minimalist cross-licensing agreement as regards to any Linux related software, ie. most of the open source market, OIN has developed its own patent pool to discourage any one who would feel like agressing the community – although it has never been used yet to sue anyone. OIN thus reverses the situation by offering some sort of free insurance policy based on the patent system itself.

Because the purpose is not to feed the latter but to actually safeguard the kernel, OIN then fosters the use of defensive publications instead of patents as well as prior art listing, cutting down innovation costs and the deliverance of trivial patents.

At first glance, I was quite sceptical so most probably, you will. But as long as software patents will be granted by patent offices, come and let me know if you have a better idea.

Until then, I found a place there so I am proud to announce you that in parallel of spreading awareness on the cold war that we are facing, I am now also participating in building the shelter. Someday, maybe I will negotiate the global demilitarisation.. Things happen. Let’s see.

Intellectual property vs Innovation

[ Article transferred from my old wiki ]

While the Anti-Counterfeiting Trade Agreement (ACTA) was finally rejected by the European Parliament on July 4th 2012 as first major victory of democracy since the rejection of software patents directive seven years ago, I still hear people eulogizing Intellectual Property (IP) as “fostering innovation”. Time to clarify the situation and stop with this Mickey Mouse fantasy.

First of all, what are we talking about.. ? Discussing some months ago with an IP Lawyer I discovered with much surprise that the issue of Intellectual Property in the digital environment was covering for him topics that had never come to my mind such as the qualification into legal terms of Facebook status. Frankly, does anybody care about this ? Apparently YES – he does. Inversely, the issues that I was, as for myself, referring to such as, hmmm, e.g. the opportunity of software patents, was for him absolutely small-beer ; insignificant.
The true thing is, the expression Intellectual Property covers so many subjects that it is quite difficult to talk about it in general terms, to affirm that it is whether good or bad, or to try to have global legislation over it. This is why wide scope agreements such as ACTA do not make sense. This is why, also, Richard Stallman, Founder of the Free Software Foundation, vehemently deplores the use of the expression, which is for him a “seductive mirage” at most.

1. Understanding the antinomy

Globally speaking, Intellectual Property Rights (IPR) refers to exclusive rights related to a wide range of creative works – initial meaning – but also various forms of information, data, knowledge – which is where, as you can guess, the problems start.

Its two main branches appeared in the 1440’s with the invention of the printing press by Johannes Gensfleisch “Gutenberg”, which raised the issue of the rights attached to industrial works on one hand, regarding who was entitled to benefit from the invention, ie. the machine’s revenues ; literary and artistic works on the other hand, as for the multiple “copies” of a single document that were then printed, ie. “copyright”.

Gathering both areas under the same denomination is nevertheless quite recent as it only came in late XIX’s century with the creation of the United International Bureaux for Intellectual Property (BIRDI), replaced in 1967 by the World Intellectual Property Organisation (WIPO). The Bureaux were set up to ensure the application of the two oldest IP conventions still in force : the 1883 Paris Convention on Industrial Property – inventions and trademarks – and the 1886 Bern Convention on Literary and Artistic Works.

Until here, no big deal. IPR appeared to encourage creativity through the legal protection of rights holders – although (!) the latters were not necessary neither the inventor nor the author but rather the business men they were surrounded by.

The actual problems came later on. When well established corporations started seeing Intellectual Property as a magical bubble to take control over the whole market and as side effect, our everyday life – yes, this is that simple. But let’s stick to the innovation’s challenge.

Innovation is about taking something as it is and introducing a new element that somehow, will make the difference in a positive way. It is about “improving” the existing – on the contrary to pure inventions which are supposed to entirely come from their creator’s imagination, e.g. the wheel.

As a consequence, it is essential for innovators to be entitled to use what already exists or else, there would be no way to innovation. This is the reason why a healthy competition matters so much ; the reason why exclusive rights – such as IPR – should be handled very, very cautiously.. Being simply at the opposite of the innovation’s concept !

Whereas nobody contests the necessity of legally protecting anyone’s works from abusive uses of anyone else who would make profit of it without counterpart to its author – which was the healthy basis on which were built both Copyright and Patent Law – a balance between right holders and their competitors is * vital * considering our future.

2. Pointing out the breaks in Europe

Unfortunately, European IP systems do not respect this balance but once again, let’s try to remain specific, and stay focussed on Copyright and Patent policies relevant in Europe for Information and Communication Technologies (ICT). The reasoning can then be easily extended for all fields of industry, not least because their use is now hardly unavoidable whatever the sector you are working in.

» An inappropriate Patent System

I already explained in a previous post the the threats on digital innovation by the European Patent Office (EPO) who intentionally confuses hardware, potentially subject to patent protection, and software, which has no reason to be covered by any kind of patent for the simple reason that it has no technical aspect in itself.

As a reminder, patents are indeed supposed to protect inventions, themselves defined as “technical solutions to technical problems”, and not literary work, nor algorithms, which is what software is actually about ; in fact, just as musical partition, software needs an “instrument” to be played in, and might then only be subject to Copyright protection.

The dangers related to the EPO can then be briefly summarized as follow.

» The European Patent Office is a non E.U. institution auto-financed depending on the number of patents delivered ; as a consequence, the EPO has a particular advantage in delivering a maximum number of patents and thus, lowering down the quality of patents. This statement is global – not only related to ICT : everything with the EPO has the potential of becoming subject to exclusive rights, e.g. works methods, as extraordinary as it can sound. This gives you an idea of the threats currently weighing on the public domain – far beyond the innovation’s issue.

» Patents involve a bunch of costs totally disproportionate considering the software industry revenues – at least, SMEs, ie. 80% of the digital market. Among those we find deposit, renewal, licensing and last but not least, law suits costs. Not very encouraging for innovators which most of the time, do not belong to well established companies – mostly living through the re-edition of old products enjoying monopolistic position. Another reason why the latters do not innovate much is the old style work methods used to improve the products or develop new ones. SMEs are quicker and more often choose original works methods, like users community participation, that are now proving their efficiency.

» Partly due to those extraordinary costs that most of ICT companies cannot afford, non practising entities found the idea entertaining and rewarding to buy patents portfolios on every little code sequence so that any developer takes the risk to infringe one of their patents while developing the most common software. Trivial patents are not the apanage of patent trolls though ; well established companies with large finances indeed don’t hesitate either to register similar patents to kill competition – which somehow, do make sense.

For more information about the patent system visit 06072005.eu.

» Copyright Protection applied to wrong subject-matters

Whereas Copyright is, with no possible doubt, an appropriate choice to protect software – although other solutions exist and are time after time gaining success – it does not mean that every piece of code should fall under copyright protection. Just as for the present blog post which I, Alex, am the author of ; it does not mean that I have exclusive rights on criticizing Intellectual Property, nor on the words, or expressions used here. My author’s rights are neither related to the ideas conveyed, nor to the English language subtleties.. But on the article taken as a whole, as a result of my personal analysis of the situation and, unconditional element, efforts to present it as a coherent text, that nobody before me has ever produced.

Okay. Well. Despite this evidence, International and European legislation give today full Copyright protection to any piece of code included in a software, from the moment the software is coupled with digital rights management (DRM) system. It means that if anybody cracks the system to access the code for any reason – because the software does not work on his computer for example – the person is infringing the law. Just as if your car had a breakdown, and you were not allowed to fix the engine.

But let’s go back to innovation. Once again, there is no way to innovation if we cannot observe what has been done by others. That’s it. You can keep seeing hackers as bad guys.. But if we want our society to evolve towards a better future, we need to be entitled to open the hood, look at how the others have been doing, and find our own inspiration in there to propose new solutions, new models. That’s what we call innovation. That’s what free competition is about.

So of course, software shall be protected : if someone copy-past it, makes a few cosmetic changes and then sells it under a new brand, that’s counterfeiting and shall not be accepted. Also, you cannot prevent companies from adding digital systems to prevent access to their code. Fair enough. But the law should not intervene here to forbid anyone to bypass such measures, for the simple reasons that sometimes, DRM are protecting pieces of codes that have no reason to be subject to copyright ; and that anytime, the user should have the possibility to access the system so that the product fits with his needs.

Where would innovation lie, if not in observation and trying to fix what does not work ? How could we move forward, if we weren’t allowed to examine problems, and search for solutions.. ? A copyright system based on the legal protection of DRM can only be interpreted as detrimental to innovation. CQFD -_-

IPR iceberg right ahead

[ Article transferred from my old wiki ]

This could have been discussed in the previous thread but then, it might have become a little harsh to read for a simple blog post. Let’s move now from the very particular case of patents in the ICT industry to the wide scale of Intellectual Property Rights (IPR) taken globally – which includes Patent Law but also Copyright, Trademarks and other special rights on intellectual works.

The sectors concerned here are multiple, beyond our imagination as simple citizen : agriculture, health, environment, space, energy, transportation, security.. Well actually, absolutely all areas of industry.

As you know now how bad IPR can be considering the software patents case, try to figure out their possible implications at global scale in all those sectors and ask yourself “what if software patents were just the tip of the iceberg ; what if IPR were causing serious problems in other fields as well”.. For sure, this deserves a little attention.

Whereas this simple observation should lead to a bunch of studies on IPR advantages and inconvenients depending on every particular field and potentially, related reforms to adapt the system, an International agreement is currently being negotiated secretly to enforce Intellectual Property worldwide with civil but also criminal measures, this without a single safeguard : the Anti-Counterfeiting Trade Agreement(ACTA).

Understand this : the ACTA does not make any distinction neither among sectors nor among IPR categories. It is based on the assumption that all rights related to Intellectual Property are fine and shall be enforced the same way whatever the creation, whatever the sector and whatever the country we are talking about – “to permit effective action against any act of infringement of intellectual property rights” (article 6.1). This, with no binding exception.

Concretely, here is an overview of the dramatic consequences that the agreement will lead to unless we stop it.

ACTA vs Individuals :

— Civil liberties threaten, consumer’s protection denied.

By sanctioning and criminalizing final consumers of online services (1), forcing internet providers to control data and transmit it to right holders without former decision of a judge (2), ACTA is violating the freedom of speech and information, the right to protection of privacy and personal data as well as the right to fair trial and due process (3).

To use a more modern concept, ACTA is a clear attempt to Net Neutrality, which supposes “no restrictions by Internet service providers or governments on consumers’ access to networks that participate in the Internet regarding notably content, sites, platforms, types of equipment that may be attached, and modes of communication” (Wikipedia).

— Access to health and medicine jeopardized.

By allowing abusive custom controls, such as destruction of material without proven counterfeiting, and protecting “evergreening” (1) practices from pharmaceutical companies, only serving a small part of the population, ACTA impedes the circulation of generic medicine, and thus prevents developing countries from having an affordable access to health and medicine.

(1) “Evergreening” consists in patenting the same medecine after expiration of the protection by slightly changing the name and composition.

ACTA vs Economy :

By globally supporting existing patent systems and excluding from the market companies on simple injunction / suspicion from a competitor, ACTA is a disaster for European ICT start-ups who cannot afford patent costs and notably, litigation costs. Such situation benefits to established businesses, mostly American and Japanese, and “patents trolls” – cf. 06072005.eu.

ACTA will above all give a competitive advantage to China, currently building a huge patent portfolio and apparently not planning to sign the agreement and then be bound by it, but also to the US, who do intend to join ACTA but exclude patents from its scope. Facing two giants, why the hell would Europe accept new bonds when the others would not ? It just does not make sense.

ACTA vs Environment :

This is just the consequence of the above. Because related to the use of hundred of softwares, the diffusion of green technologies will face the same obstacles as ICT start-ups.

According to the FFII, “the majority of systems (for example, wind turbines, water turbines, and solar collectors) rely on cross-border up-time-management software and systems. ACTA explicitly and adversely impacts the ability to transmit grid and local data, operate feedback mechanisms to energy suppliers, and operate security protocols across international rail, air, and shipping infrastructure applications.”

Beyond its dangerous content, ACTA is above all an anti democratic tool negotiated out of legitimate institutions – they would have opposed it – and authorising an ad hoc committee to amend the text to set new rules with not even consulting the parties.

Update 26.01.2012 : whereas ACTA has been signed by most of EU member states as well as Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the United States, it is not yet in effect in Europe. ACTA should be ratified by European Parliament next Summer.

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