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Hacktivity 2010Budapest

September 18, 2010

Infringers: Pay Up or Else?

Balazs SzemesPhD. StudentLegal Faculty, University of [email protected]

ACTA, HADOPI, DEA


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ACTA, HADOPI, Digital Economy Act

Who am I?Name's Balazs SzemesLaw degree, working in publishingPhD. Student, R:digital copyright

Why do these fit together?They only deal with enforcementRegulation (mostly) through regulating technologySame aim: reducing online infringements

What will be covered in the next 15 mins?

Why are they interesting?A brief taster of law v. tech; online infringementsAn overwiev of these propsScrying the future: will they work?


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Point of Interest

Why are they relevant?ACTA: Intntl treaty, EU is a partyHADOPI: example of continental (state-based) versionDEA: example of ISP-based version

How come Hacktivity conference?It may be somewhat interesting nowIt will definitely be interesting when these start to work

Questions of encryptionQuestions of decryptionQuestions of network managementNew technical challenges


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Law v. Technology: Online Infringements

Not a new topicBest source: Code 2.0 by L LessigIs the net governed by different rules?

Currently online regulation is rarely effectiveLaw is relatively slow and expensive

But there are successes: big credit card fraudsters of EEorigin arrested recently

Basis of online infringementsCopyright: originally it was hard and expensive toinfringe relative to enforcementBecame the opposite


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Anti-Counterfeiting Trade Agreement

Negotiated in secret3 leaked version as of now, latest 25 th August

Called anti-counterfeiting, most of it deals with infringementGeneral changes

Preestablished, presumption for damagesInfo on third parties infringing

Enforcement in digital environment (Section 4)Expeditious info providing on infringements

DRM rules worldwideFormer rules on notice-and-takedown (DMCA: safeharbor) exemptoion removed

Which contained a copyright fingerprinting requirement


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HADOPI 1+2

Prototype of internet access prohibition law (France)The first establishes the authority called 'Hadopi'

Establishes a state office mainly collecting proof Establishes means of punishment (fines&imprisonment)Orders every one to fight infringement on one's network

HADOPI 2Creates a simplified judicial procedureLimits IA prohibition to 1 yearsEstablishes prohibition to operators of open wifi if infringement is detectedCreates a legal presumption of guilt (by making theacceptance of HADOPI's word as proof )

Enters into force on 1 st January 2010Nothing have happened since thenHadopi makes headlines in August with state-funded

spyware plans


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Digital Economy Act

UK's law establishing graduated responseCopyright infringement reports

Rightsholder sends CI reports to ispISP passes to subscriber ISP provides subscriber CI matrix to RH

ISP technical obligationsLimiting IA speed, scopeLimiting or suspending the service

System is governed by SoS and OFCOM obligationcodes and orders without parlamentary oversight

Subscribers must appeal against limiting of accounts,but rightsholders have to prove infringementCosts are shared by rightsholders, ISPs andsubscribers

Rushed through before election, no OFCOMobligations code since


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Common features of emerging enforcement

Technologically orientedRegulates technologyEvidence is usually ITC-related

Special proceduresFaster, cheaper, more automatic procedures

Reduced safeguards (data protection, due process)Different cost spread

Default: civil: parties, criminal: stateEmerging: third parties (ISP) (DEA)

Establishment of official bodies (taxpayers) (HADOPI)Cat-mouse gameTechnologies emerge, cause unforeseen problemsLaw catches up

Sometimes attempting to block creative destruction


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Gauging Success - Will these work?

What constitutes success?Legally doubtful

Law generally requires 100% followingBusiness side: unlikely

Infringement may be reduced, but it's not a simple buy or copy decisionFree/open source, CC may profit from it

The underlying economics won't changeCopying won't get expensive and restricted againThus limited copies business models will fail

New, licencing-based ones will prevailPolitical backlash is building

Rise of single issue parties, civil liberties' orgsFrance and UK are reluctant to use the established

laws


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Thanks for attending!

Questions?Reach me [email protected]

or by a beer this evening
mailto:[email protected]:[email protected]

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