Are the technologies for file sharing and the filtering of the web traffic acceptable from a legal standpoint?

Remarks from Veni:

On March 16 the Bulgarian special forces for combatting organized crime, have ordered the major telecoms to filter the access to and from the web site www.arenabg.com. The request was based on the current law, but was followed only by three of the large ISPs, among them the Bulgarian Telecom. The others rejected it on the basis that it’s illegal. The police withdrew the ordinance the following Monday, as indeed a number of lawyers have said in the meantime that this ordinance should not be followed.
ISOC-Bulgaria was the only Bulgarian non-governmental organization to issue a statement on that topic, and members of the Board participated in making their position public.
Besides the filtering, the police has arrested the owner of the web site (the web site itself is located in the USA), but the court released him on the following day, as “the police did not submit any evidence the defendant has caused any copyright infringement”, as the media reported.
ISOC-Bulgaria has translated in English two articles of the internationally known and respected law professor Nelly Ognyanova on that subject, which can be read at the following addresses: http://blog.veni.com/?p=205 and http://blog.veni.com/?p=204

Technology vs Law
by Nelly Ognyanova*

Last week we witnessed a new type of legal case: a police authority demanded a limitation of the access to certain Internet resources based on the Law of the Ministry of Interior.

Nevertheless, all the uproar surrounding the campaign against torrents and P2P technologies in general has its didactic effects. True, those issues are not central but they matter because they attract the attention of the people concerned with modern-technologies to more and more talked about problems. I will begin with saying this: the intellectual property rights are important, piracy robs, we love our writers, actors and singers and we support them. Technologies, however, are developing and the legislation must acknowledge the new situation.

There is no liability

for the creation and dissemination of technologies, which have a lawful use. There is a liability for breaking the law. The USA Court was the first one to declare such a solution twenty five years ago when Hollywood asked for the banning of video recording technologies and devices by Sony.

Until very recently, the Bulgarian services responsible for fighting organized crime put a sign of equality between piracy and torrents. For more than a year now they have been fighting a war against technologies and one could still read in older newspapers that whatever is a torrent, it is piracy. As a matter of fact, torrents are useful for communication. Torrent networks are faster and more effective. They have been acknowledged as lawful by jurisdictions all over Europe. It is true that copyrighted material could be transmitted against the law too. But although books could be printed without permission as well, no one would break in a printing-office. Today even the Bulgarian services admit that the law does not punish technologies but their illegal usage. This seems to be the first obvious educational effect of last week’s campaigns.

What is illegal use

of peer-to-peer technologies and against whom should the strictness of the law be applied? Influenced by the avalanche of cases for distinguishing between lawful and illegal usage of torrent technologies in the USA, Australia and Europe, the Bulgarian courts have not yet faced the need to analyze and solve the problem from the standpoint of the Bulgarian legislation. This is not good for the interpretation of the law because these days article 172a of the National Constitution is applied the way the people from GDBOP understand it. This is bad. It is well-known that technologies are realized through the participation of millions of people – American institutions have estimated that in the USA alone they are 60 million and their number is quickly rising. There are tens of thousands of participants with different roles in Europe as well. The Penal Code has been created for different epochs, different bearers, different ways of disseminating content. Legally responsible is the person who “records, reproduces, disseminates, broadcasts or transmits through a technical device a or in any other way” copyrighted works; there is no distinction between seeders and leechers and, thus, there is much space left for a subjective judgment. The deputy director of the Capital’s Investigating Authorities determined that there will be a criminal prosecution against “people, who uploaded more than 10 TB.” Why exactly 10 Terra bytes?

Such selectivity of criminal prosecution

is a troublesome phenomenon and should not be tolerated. From here there is only one more step to the idea that economic interests could lead the offices and it has been made in Internet forums. Names of companies and people unaffected by the actions of GDBOP are discussed and, naturally, there are opinions that justice is not applied equally to everyone. That is the second important inference made from the torrent events: it is unacceptable in a constitutional state to apply the National Constitution selectively; this is repulsive.

The fight against illegal content in the Internet presupposes an exact assessment of the roles of different participants in its functioning. The European Union regulates the responsibility for the content of the Web through the Directive 31/2000/EC.

The Internet providers are the least ones to have a responsibility

if they have any at all. Nevertheless, the Bulgarian providers have been ordered to filter the access to the website arenabg.com, hosted in the United States. This instruction is based on article 15 of the Law of Electronic Commerce (LEC) about the responsibility of the provider “who transmits information entered by the user of the service over the telecommunication web.” According to Bulgarian providers, none of them offers access to Internet outside Bulgaria and, therefore, the order has no valid grounds. It is already known that some providers, such as the Bulgarian Telephone Company, obeyed the police order while others refused to do so. This is the third important lesson: the application of the laws is compromised because the police authorities set unachievable goals. This is not different from France’s failure to prohibit the access of the French people to pro-Nazi websites on servers in California, even with a decision from the French court. And the Bulgarian case even lacks a court decision – there is only a police statement which has not been verified by a court.

The reaction of the Internet providers is a separate issue for discussion. Only a few hours after the measure was taken, the forums posted solutions to go around the filters and the access remained open. The goals of the restriction were not effectively achieved.

Let us assume that there is a clear law and the police campaign has a rightful purpose. Even then, there are concerns about the rights of everyone who “downloaded two songs” from the Web (private copying).

The protection of the privacy

is not a subordinate constitutional right, which could easily be sacrificed to prove who used torrent technologies. Yes, the Web is transparent; yes, IP addresses are easily seen, but what next? In the EU (the Netherlands, Germany) courts have refused to disclose personal information because this process is irreversible – once disclosed, the personal data can not be “closed” again and there is a lack of certainty who exactly uses an IP address. Using special investigation tools doesn’t seem to be a proportional measure to reveal who is using a certain address in the Web. At least not when we are not talking about organized crime or criminal actions on a large scale. And for this the approval of everyone who supports the fight against piracy is required: there are no minor and major rights, the protection of intellectual property is not more important than the protection of the personal life, personal information is disclosed only under extreme circumstances and proportionality between the limitation of ones rights and the gravity of the supposed crime.

From the standpoint of free access to knowledge and the free culture

the perspective is not very optimistic. Copyright is itself a compromise between the large-scale interests which the industries of content have and the right of access to knowledge. This is relevant to the Community legislation as well. In the European Union a few directives are in action, including some about copyright in the information society. The industries who accepted them were extremely active during the elaboration and adoption, just as the organizations for collective management of IP rights are active in Bulgaria.

The European Commission has specifically pointed out the protection of copyrighted material as an area, not suitable for selfregulation, and has offered a harmonizing of measures in this field from now on. On the 19th of March the Commission on Legal Matters of the EP considered the draft directive on criminal measures against piracy. The use of criminal law for the protection of the interior market is a novelty (and an exception) for Community legislation; there is a precedent only in the sphere of environmental protection. Until now, however, this parliamentary Commission surprisingly does not support the criminalization of violations of intellectual property when it is for personal use only. Piracy committed by private users for personal, non-profit purposes are therefore excluded. The first plenary session of the European Parliament about this project is scheduled for 24th April.

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* – Nelly Ognyanova is a lecturer in Media Law at the Sofia University “St. Kliment Ohridski”. She keeps a blog about media issues and new media at nellyo.wordpress.com/
** – GDBOP is the Bulgarian Directorate for Combatting Organized Crime, which by law has to deal only with organized crime, as its name suggests.
*** – This article was initially published in the Bulgarian weekly “Capital“, and is translated by ISOC-Bulgaria, and published here under CreativeCommons, granted by prof. Nelly Ognyanova

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