The Dutch EU presidency has failed to push through the controversial Council proposal on software patents. Thanks to the last-minute arrival of the Polish secretary of state of Science and Information Technology at the EU Council of Agriculture and Fishery on 20 December, the proposal could not be adopted without voting. Mr Wlodzimierz Marcinski formally demanded more time for Poland to deliver a constructive unilateral declaration.
The delay opens new possibilities for the national parliaments, especially in Poland, Germany and the Netherlands, to re-negotiate the points of view of their Ministers of Economical Affairs. Many ministers currently play a word-game with their members of parliament, saying they agree the directive should not allow for patents on pure software and business methods. But advocates of the current proposal claim it already contains enough guarantees to rule out trivial patents on for example the process of double-clicking on a website. In the eyes of opponents though, including a large majority of the European Parliament, the proposed directive is dangerously vague, and can cause great harm to independent software development.
So far the European ministers have ignored all the amendments of the European Parliament in the first reading, and seem to be heading towards a frontal collision with the Parliament in the second reading. In such a second reading, Parliament has much less powers to amend and improve on the proposal.
Latest version of the Council proposal on the patentability of
computer-implemented inventions (18.11.2004)
http://register.consilium.eu.int/pdf/en/04/st11/st11979.en04.pdf
Petition to thank Poland (already 25.000 signatures)
http://www.thankpoland.info/
The music industry has suffered a severe setback by two verdicts by courts in Munich and Vienna. Both courts ruled that internet service providers did not have to hand-over data about customers. In the Munich case, the Higher Regional Court squashed an earlier verdict that obliged providers to hand-over data about users suspected of operating illegal FTP servers. In July the music label BMG was granted the right to demand information from an access provider, but the execution was suspended during the appeal procedure. BMG even demanded information from the provider on the number of tracks and albums of individual bands or artists downloaded from the server named in the complaint. The Munich appelate court said they had serious doubts "whether the defendant threatened with the injunction is an actual participant in the - alleged - infringement of copyright" and specifically added "it is obvious that the contested ruling cannot conceivably continue to stand."
In Vienna, the music industry launched a similar case against a provider, demanding the personal data of customers behind dynamic IP-addresses. According to the music industry, the Austrian copyright law obliges the providers to provide information about the identity of infringers under paragraph 87b, sub 3. The Viennese criminal court did not agree, and said that such data could only be provided in case of a serious offence or infringement that can be punished with imprisonment of more than 6 months. The current punishment in Austria for the uploading of files without commercial purpose is maximum 6 months.
Providers have to dig deep in their logfiles to connect a dynamic IP-adress to a specific customer. Under the Austrian telecom-law traffic data fall under the communication secrecy and enjoy a high level of protection. Hand-over of such data is not allowed for minor infringements. The Austrian association of internet providers (ISPA) has suggested a lower level of protection might apply to static IP-adresses, but they also recommend providers should wait for a clear court order.
Legal setback for music industry in fight against piracy (21.12.2004)
http://www.heise.de/english/newsticker/news/54509
Verdict Viennese Court (01.12.2004)
http://www.i4j.at/provider/entsch4.htm
Provider müssen Daten nicht herausgeben (24.12.2004)
http://futurezone.orf.at/futurezone.orf?read=detail&id=260050
The Council of Europe is working on a new declaration or recommendation on human rights and internet. An ad-hoc committee of experts on the information society has been meeting for the first time in November 2004, and will have a second meeting in Strasbourg on 3 and 4 February 2005. The Council does not provide any information about the proceedings or specific members of the committee, but has recently published the terms of reference. The aim of the committee is to provide "a draft political statement on the principles and guidelines for ensuring respect for freedom of expression and opinion, for human rights and for the rule of law in the Information Society, with a view to its use as a Committee of Ministers' contribution to the Third Summit of Heads of State and Government of the Council of Europe (16-17 May 2005) and the 2005 Tunis phase of the World Summit on the Information Society (16-18 November 2005)."
The list of topics to be covered by the committee is very large, and ranges from freedom of expression to privacy, especially related to mandatory retention of traffic data. But the committee is also expected to cover e-voting, the prohibition of racism and xenophobic speech on the internet and "the protection of intellectual property in cyberspace."
Only the official representative of each member state will get reimbursed for travel and subsistence costs. Together with the representatives of 11 Council of Europe and European Commission steering committees they will be able to vote on the outcomes. All other parties listed to be able to send a representative will have to bear all costs themselves and will not have a right to vote.
Terms of reference of the Multidisciplinary Ad-Hoc Committee of Experts on
the Information Society (CAHSI)
https://wcd.coe.int/ViewDoc.jsp?id=803697&BackColorInternet=B9BDEE...
The Austrian data protection commission has condemned the marketing firm dm-plus. The firm created a CD-ROM for the company Herold with name and address data of over 4 million Austrian citizens. The disk also contained additional information about 2 million Austrians, such as date of birth, title, type of household, income and civil status. Herold was awarded the people's choice Big Brother Award in 2003. More than 80% of the 250 nominations concerned this company.
Arge Daten, a not-for-profit, non-governmental Austrian privacy organisation, demanded access and correction of the stored data on behalf of several members. The replies were not satisfactory. Arge Daten then sent formal complaints to the data protection authority (DSK) but these complaints were ignored. Only after several complaints to the administrative court did the data protection authority investigate the matter. In this first decision, the Commission objects especially to the collection of the exact dates of birth. Secondly, the company is reproached for not telling about the purposes of the data processing, and the further processing by third parties, including both Herold and the mother company in Switzerland (where data were allegedly sent for 'back-up purposes')
But Arge Daten is disappointed Herold nor dm-plus had to answer questions about the origins of the collected data. The Commission agreed the company would incur disproportionate costs by such an obligation. According to Arge Daten this is nonsense, since companies that specialise in collecting and processing data can easily add a unique originating code to each batch of data.
DSK-Entscheidung zu Herold-Datenlieferanten (18.12.2004)
http://www.argedaten.at/news/20041218.html
Österreich: Adressensammler verletzt Datenschutz (25.12.2004)
http://www.heise.de/newsticker/meldung/54620
The Council of Europe (46 member states) has issued a hotly debated recommendation on the right of reply on 15 December 2004. "Governments of the member states should examine and, if necessary, introduce in their domestic law or practice a right of reply or any other equivalent remedy, which allows a rapid correction of incorrect information in online or off-line media." "Anybody can claim a right to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights." The right is only limited in length (should not exceed the original article), should only 'correct facts' and should be provided in the same language as the original article. The replies must be 'given the same prominence', both in the publication as well as in any electronic archive.
The Council notes that it is "a particularly appropriate remedy in the online environment due to the possibility of instant correction of contested information and the technical ease with which replies from concerned persons can be attached to it." In the draft recommendation the right of reply was limited online to "any other service available to the public containing frequently updated and edited information of public interest." This wording seemed to exclude individual websites, but the adopted recommendation speaks about edited web-based news services. This seems to include all kinds of personal publications such as web-logs. Another remarkable change, when compared to the draft, is the fact that one exception has been deleted; namely if the medium has corrected the inaccurate statements on its own initiative.
Article 19, a global organisation dedicated to freedom of expression, vehemently opposed the proposed recommendation in August 2003. "Under the proposal, websites such as those run by human rights organisations, a national health service or political parties - which are all frequently updated, edited and contain information on matters of public interest - would all be treated as mass media outlets and be obliged to grant a right of reply to those who allege that their rights have been infringed by incorrect factual statements. For example, the administrator of the website of a human rights organisation would have to grant space to the spokesperson of a military dictatorship to respond to alleged factual inaccuracies that may be impossible to verify. Or a government representative would be able to post a mandatory reply on the site of a political opposition party, to refute allegations of corruption."
Only the United Kingdom and the Slovak Republic reserved the right not to comply for online services with the recommendation.
Recommendation of the Committee of Ministers to member states on the right
of reply in the new media environment (15.12.2004)
http://www.coe.int/T/E/Com/press/News/2004/rec(2004)16.asp
Article 19 submission to the draft recommendation (22.08.2003)
http://www.statewatch.org/news/2003/aug/14art19.htm
The German Parliament (Bundestag) has completed the first reading of a new freedom of information law on 17 December 2004. Germany and Switzerland are the only 2 major Western European member states of the Council of Europe without such a law on accessibility of governmental acts and decision making. Within the EU, only Cyprus, Malta and Luxemburg lack this kind of legislation. The German green-red coalition cabinet promised to send such a proposal to the Lower House immediately after the summer recess.
In a joint press release, the data protection authorities of Schleswig-Holstein, Berlin, Brandenburg and Nordrhein-Westfalen call the proposal 'a step in the right direction', but at the same time say the proposal 'shows the skid marks of numerous compromises'. Documents containing company secrets can only be made available, even if the company agrees, if there is an exceptional public interest. In general, the data protection authorities complain there are too many restrictions in the law.
EDRI-gram reported earlier that a freedom of information law was already announced in 1998, in the coalition agreement between the Social Democrat Party (SPD) and the Greens. The project was stalled many times, until the national ministry of the interior released a half-hearted discussion draft in the summer of 2001. This legal proposal was rejected in June 2002, due to party-political disagreement.
Press release data protection authority Schleswig-Holstein (17.12.2004)
http://www.datenschutzzentrum.de/material/themen/presse/20041217-ifg.h...
EDRI-gram 'German promise to adopt freedom of information law' (15.07.2004)
http://www.edri.org/edrigram/number214/akten
For the first time since the spam-ban went into force in the Netherlands (19 May 2004) the Dutch regulatory authority OPTA has fined Dutch spammers. One spammer is accused of having sent 4 spam-runs and now faces a fine of 42.500 euro. Two of his spams advertised a CD-ROM with invoice-software, another one was directly aimed at discrediting the most famous spam-fighter in the Netherlands, Rejo Zenger. His organisation Spamvrij maintained an on-line blacklist of notorious Dutch spammers. The spammer tried to make it look as if Rejo Zenger had sent spam advertising the book Mein Kampf.
OPTA has also fined an SMS-spammer with 20.000 euro in total, for sending unsolicited SMS's costing the recipient 1,10 euro per message, without providing any unsubscribe options.
Currently, in the Netherlands only natural persons are protected against unsolicited commercial, idealistic or charitable e-mail messages. The minister of Economical Affairs, Mr Brinkhorst, has finally acknowledged self-regulation is not an option for business recipients. In a letter from 20 December 2004 to the Lower House he promises additional legislation to protect all recipients against spam. Companies that wish to receive unsolicited mail will have to create a special new e-mail address and make it publicly available.
Press release OPTA (in Dutch, 28.12.2004)
http://www.opta.nl/asp/nieuwsenpublicaties/persberichten/document.asp?...
The Council of Europe has adopted a recommendation on e-governance on 15 December 2004. The Council recommends that member states "Work together with the appropriate international, national, regional and local stakeholders, to develop a shared vision of e-governance that upholds human rights, democracy and the rule of law." Member states should use e-governance to strengthen democratic institutions at all levels and make them more accessible, transparent, accountable and responsive. E-governance is not one-sided, but should provide opportunities for all to participate in the process of decision-making. Finally member states should use information and communication technologies to "improve public administration and services by making them more accessible, user-centred, transparent, efficient and cost-effective, thus contributing to the economic and cultural vitality of society."
The recommendation also promotes open standards and open source software: "(the e-governance strategy) provides for an ICT policy based on technology neutrality, open standards and on the assessment of possibilities offered by different software models, including open source models."
Many countries are currently developing digital identification schemes and are designing new databases to collate multiple sources of government information about citizens. The recommendation does not interfere with one of the hottest debates; about the voluntary co-operation of citizens. The text suggests it might be optional to use digital media to use government services: "widen the choices available to users for communicating and transacting with government by providing additional channels". But opt-in is not explicitly mentioned when it comes to privacy. Privacy is mentioned only as the need to be "aware of the potential risks related, in particular, to the abuse of personal data" and as the need to enhance "citizens' confidence in democratic processes, public authorities and public services, including through protecting personal data."
Recommendation of the Committee of Ministers to member states on
electronic governance (15.12.2004)
http://www.coe.int/T/E/Com/press/News/2004/20041216_REC_CM.asp
The EU Court of First Instance has entirely dismissed Microsoft's objections to a set of sanctions against the software giant by the EU Commission. The Court rules that the Commission's decision does not "cause serious and irreparable damage" to Microsoft. Microsoft requested an interim measure from the Court that would hold up the Commission's decision until the case has been reviewed by a higher Court in a lengthy procedure. Now that the Court of First Instance has rejected Microsoft's request the software giant will have to implement the Commission's decision in short time.
In March 2004 Microsoft got a record fine of 497 million euro after a five-year investigation by the Competition Commissioner into Microsoft's business practice. The Commission ordered Microsoft to offer a version of Windows without a bundled media player and to share more technical information with server rivals. Microsoft has paid the fine but requested the Court to suspend the Commission's order to change its business practice.
According to the Commission's ruling Microsoft's illegal conduct has enabled it to acquire a dominant position in the market for work group server operating systems and has significantly weakened competition on the media player market. The dominant position has grave consequences for consumers: "The ongoing abuses act as a brake on innovation and harm the competitive process and consumers, who ultimately end up with less choice and facing higher prices".
Microsoft announced that it will release an additional Windows version for the European market that will have the Windows Media Player code removed from it. The company will also inform competitors about how they can license communications protocols from the Windows Server product.
Industry analysts doubt that a unbundled version of the Windows Operation System will have a serious impact as most PC manufacturers will not see any advantage in shipping PC's without Windows media player.
Microsoft has two months to file an appeal against the Court's ruling at the EU Court of Justice.
Order of The EU Court of First Instance (22.12.2004)
http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79958777...
RealNetworks, CCIA Delight in Microsoft's EU Loss (22.12.2004)
http://www.eweek.com/article2/0,1759,1745103,00.asp
Microsoft gets record-breaking fine (24.03.2004)
http://www.edri.org/edrigram/number2.6/microsoft
European Digital Rights wishes all readers a courageous and fruitful new year. Looking back at 2004, we have to conclude fear is a bad source of legislative inspiration. Hopefully in 2005 the balance between security and privacy, between business interests and personal freedom can be maintained by a truly blind Lady Justice.
Thanks to another donation from the Open Society Institute, EDRI-gram will be continued in 2005. EDRI also thanks the formal board-members of DB-NL, the Dutch digital rights movement that ceased to exist in 2001, for donating the remaining funds to EDRI-gram.
EDRI-gram currently has 2.463 members. Many other readers visit the websites with translations of EDRI-gram in Italian, Russian and Ukrainian.
If you wish to help promote readership, please use the new EDRI-logo at http://www.edri.org/logo/
13-14 January 2005, Berlin, Germany
3rd DRM Conference
Registration Deadline: 20th December 2004
http://digital-rights-management.org/
14 January 2005, Athens, Greece
ePSINet Policy Conference on re-use of Public Sector Information in Europe. The aim of the conference is to provide a forum for policy makers, public content providers, re-users and international experts to discuss the prospects for adding value through commercial exploitation of public sector information. The conference will also act as a progress check on the early implementation of the European Directive on PSI re-use, published late in 2003, and discuss the future agenda. Registration is free for the first 150 participants.
http://www.epsigate.org/conf.htm
16 January 2005, Deadline EC consultation
Public consultation on the new action plan eEurope 2005-2010
http://europa.eu.int/information_society/eeurope/2005/all_about/2010_c...
21 January 2005, Paris, France, Big Brother Awards
The organising committee of the French Big Brother Awards is inviting the public to nominate people, institutions and governments that have excelled in violating privacy and enhancing control. The French have opened a new category, for nominations in the 'Novlang/Newspeak Award', dedicated to public manipulation of the masses aimed at making people docile to control, surveillance, tagging and tracing their private lives.
Public nominations French Big Brother Awards
http://candidats.bigbrotherawards.eu.org/
25 January 2005, Brussels, Belgium
Open workshop on the foundation of an EU Human Rights Agency
Workshop registration form (in MS Word only)
http://europa.eu.int/comm/justice_home/news/consulting_public/fundamen...
31 March 2005, deadline call for papers on DRM
Special session on Digital Rights Management during the 31st Euromicro conference on Software Engineering and Advanced Applications (SEAA) 2005 in Porto, Portugal. This special session is open to discuss technical, legal and business issues with DRM and the social aspects regarding users understanding and fair use. Papers should be around 6-8 pages (not exceeding 6000 words) and include an abstract.
http://www.idt.mdh.se/euromicro-2005/
12-15 April 2005, Seattle, USA, CFP 2005
The program committee of the annual Computer, Freedom, Privacy Conference is accepting proposals for conference sessions and speakers for CFP2005. The deadline for submissions is 31 December 2004. The conference will be held in the Westin Hotel in Seattle, Washington.
http://www.cfp2005.org