ACTA, HADOPI, DEA

Infringers: Pay Up or Else?

Hacktivity 2010
Budapest
September 18, 2010

Balazs Szemes
PhD. Student
Legal Faculty, University of Pecs
balazs.szemes@gmail.com
 ACTA, HADOPI, Digital Economy Act

Who am I?
Name's Balazs Szemes
Law degree, working in publishing
PhD. Student, R:digital copyright
Why do these fit together?
They only deal with enforcement
Regulation (mostly) through regulating technology
Same 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 infringements
An overwiev of these props
Scrying the future: will they work?

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 Point of Interest

Why are they relevant?

ACTA: Intntl treaty, EU is a party
HADOPI: example of continental (state-based) version
DEA: example of ISP-based version
How come Hacktivity conference?
It may be somewhat interesting now
It will definitely be interesting when these start to work
Questions of encryption
Questions of decryption
Questions of network management
New technical challenges

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 Law v. Technology: Online Infringements

Not a new topic

Best source: Code 2.0 by L Lessig
Is the net governed by different rules?
Currently online regulation is rarely effective
Law is relatively slow and expensive
But there are successes: big credit card fraudsters of EE
origin arrested recently
Basis of online infringements
Copyright: originally it was hard and expensive to
infringe relative to enforcement
Became the opposite

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 Anti-Counterfeiting Trade Agreement

Negotiated in secret
3 leaked version as of now, latest 25th August
Called anti-counterfeiting, most of it deals with ©
infringement
General changes
Preestablished, presumption for damages
Info on third parties infringing
Enforcement in digital environment (Section 4)
Expeditious info providing on infringements
DRM rules worldwide
Former rules on notice-and-takedown (DMCA: safe
harbor) 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 2
Creates a simplified judicial procedure
Limits IA prohibition to 1 years
Establishes prohibition to operators of open wifi if
infringement is detected
Creates a legal presumption of guilt (by making the
acceptance of HADOPI's word as proof )
Enters into force on 1st January 2010
Nothing have happened since then
Hadopi makes headlines in August with state-funded
spyware plans
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 Digital Economy Act

UK's law establishing graduated response

Copyright infringement reports
Rightsholder sends CI reports to isp
ISP passes to subscriber
ISP provides subscriber – CI matrix to RH
ISP technical obligations
Limiting IA speed, scope
Limiting or suspending the service
System is governed by SoS and OFCOM obligation
codes and orders without parlamentary oversight
Subscribers must appeal against limiting of accounts,
but rightsholders have to prove infringement
Costs are shared by rightsholders, ISPs and
subscribers
Rushed through before election, no OFCOM
obligations code since 7
 Common features of emerging enforcement

Technologically oriented
Regulates technology
Evidence is usually ITC-related
Special procedures
Faster, cheaper, more automatic procedures
Reduced safeguards (data protection, due process)
Different cost spread
Default: civil: parties, criminal: state
Emerging: third parties (ISP) (DEA)
Establishment of official bodies (taxpayers) (HADOPI)
Cat-mouse game
Technologies emerge, cause unforeseen problems
Law 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% following
Business side: unlikely
Infringement may be reduced, but it's not a simple “buy or
copy decision”
Free/open source, CC may profit from it
The underlying economics won't change
Copying won't get expensive and restricted again
Thus “limited copies” business models will fail
New, licencing-based ones will prevail
Political backlash is building
Rise of single issue parties, civil liberties' orgs
France and UK are reluctant to use the established
laws
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 Thanks for attending!

Questions?
Reach me at
balazs.szemes@gmail.com
or by a beer this evening

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