Finnish Court: Open WiFi Owner Not Liable for File-Sharing Copyright Infringement
In a landmark ruling, a Finnish District Court (Ylivieskan käräjäoikeus) has today clarified the legal status of WiFi owners for internet file-sharing in the light of various pieces of EU legislation.
Finnish Anti-Piracy Centre, a coalition of entertainment industry rights-holders, had sued a Finnish woman for copyright infringement, demanding compensation of circa 6000 euros for internet file-sharing conducted with the Direct Connect (DC++) protocol through her internet connection.
Last February, on an especially cold day, author and Harvard scholar Doc Searls shot some pictures of ice crystals that had formed inside the old storm windows of his apartment, and put them up on the online photo sharing site Flickr. Searls is no newcomer when it comes to sharing his photos online. He has over 34,000 photos posted on Flickr and many of them are tagged generously with the Creative Commons (CC) licenses. The CC licenses give the public permission to use the licensed copyrighted work with certain terms. Searls gave the ice crystal photos a CC license that permits the distribution of his photos as long as he gets credit as an author. The license also permits the modification of the work as long as the modifications are distributed with the same CC license. After Searls released the photos he waited for nature to take its course.
Doc Searls CC-By-SA
In November 2009 a designer from NBC Universal found the photos and contacted Searls. In an email, NBC’s representative told Searls that their designers were creating graphic backgrounds for the coverage of the Vancouver Olympic Games and that in their search for winter images they came across Searls’s crystal photographs on Flickr. They had noticed that they could use the pictures as long as they credited Searls as the author. Since Searls’s photos would be used as the background to text, video and other images, NBC asked if they could credit him along with their design team when the credits ran at the conclusion of NBC’s final Olympic Broadcast. For Searls the NBC’s proposition was acceptable. “Those photos are meant to be used any way people like. I’m glad to accept payment when offered:) But when not, running my name in the credits is fine,” said Searls in an email to NBC.
After getting the permission NBC was not shy in using Searls’s photos. The ice crystal images were used in transition graphics with the Olympic logo, in background of the digital studio sets, in event information graphics and just about in every other graphic element of the NBC’s Olympic broadcasts. Searls’s photos, which had received just over 1,000 views in Flickr suddenly had a daily audience of over 20 million American sports fans.
Doc Searls, CC By-SA 2.0
So far, this sounds like a sweet story of web 2.0 publishing, where big media company designer and amateur photographers can collaborate without the need of getting lawyers involved. Searls had already granted the public, including NBC, a permission to use his photos by attaching a public license to them. One could read the email exchange between Searls and NBC so that NBC wanted to waive the attribution part of the license or that NBC wanted to waive the whole license and replace it with another one. Having two non-lawyers agreeing in an email about copyright licensing could spell disaster. Especially when the license Doc Searls used did not only require credit but also that the adaptations made from Searls’s photos share the same license terms.
Share-alike licenses are useful in online collaboration projects like Wikipedia. They enable people to collaborate by improving photos and text of their peers. They also try to make sure that the collaboration can continue. This is why the license requires that the improvements, alterations and adaptations, if distributed, are to be placed under the same license as the original work. If NBC were to honor the license terms, a big chunk of the NBC’s Olympic broadcast would fall under the royalty free Creative Commons share-alike license.
The exact amount of the material that would be affected with the ShareAlike term is unclear. It might include just the background graphics, or it might include every other copyrightable element displayed while the ice crystals were on screen –or even whole segments where the crystals were used. To make the matter even more complicated, NBC does not own and can’t license out many of the copyrightable elements that are shown on the screen next to the background graphics. There is no doubt that NBC never wanted its crown jewels, the Olympics, to fall to any royalty-free licensing scheme. Even if NBC would allow this to happen, the Olympic Committee—the owner of the sports broadcast that NBC only licensed—would under no circumstances agree to it.Fortunately, NBC and Searls worked things out before the end of the Olympic Games. Searls was credited as part of the NBC’s creative team, and NBC’s legal department did not have to worry about the ShareAlike term. “NBC’s extensive use of Searls’ photos, and Searls’ happiness for that use, demonstrates the power of Creative Commons licenses as a means to signal openness to collaboration, even if the resulting collaboration does not occur under the terms of the license originally offered,” said Mike Linksvayer, Vice President of Creative Commons.
The irony of the story is that NBC is known to be eager in targeting users and websites that rebroadcast and share its Olympic coverage without permission. While jealously protecting copyright assets is central to organizations like NBC, it is contrary to of the ideology of sharing with Creative Commons licensing.
Television producers and creative teams are not the only ones tempted to use Creative Commons licensed works. Many journalists use Wikipedia as a source for their research. Journalists who are used to copy-and-pasting text from news agency press releases might carry on with the habit with Wikipedia. However, while the license that Wikipedia uses allows copying, there are rules and limitations involved in the practice. These practices are very different from the ones that journalist have been used to dealing with. This means that big media companies have to come up with policies for using Creative Commons licensed works. Those policies might include guidelines for proper attribution and sharing-alike the modified works, or they might just be a list of best practices for seeking alternative licenses.
Turre Legal counseled a consortium of Finland’s universities of applied science (aka. AMK) to create a digital repository for theses and research publications . The project adopted a joint Open Access mandate that means that annually 20.000 academic thesis and thousands of scholarly articles written by the staff of the AMK will be openly accessible online.
After 1 January 2010, the Universities of Applied Sciences will require all teachers and researchers who work at the universities to save a copy of their research essays that are published in scientific publications, or a university publication series, in the open electronic library, Theseus.
According to Harvard’s open access guru Peter Suber “This is, by far, the largest set of institutions to adopt a joint OA mandate.”
As a part of the project Turre’s partner Herkko Hietanen has been translating Creative Commons 3.0 licenses to Finnish legal system. The license translation and adoption is at its final stretches and waits for the CC headquarters’s approval. Theseus enables students and teachers to choose a Creative Commons license to their works if they so desire.
Vantaa district court decided in a case that defines the limits of freedom of speech and online liability that discussion forum administrators are not liable for people gathering to float down the river drinking beer. That is even as the participants used the discussion forum to discuss the organization of the event.
CC-By-SA by HenriBergius. More photos of Kaljakellunta: http://www.flickr.com/search/?q=kaljakellunta&w=all&s=int
The prosecutor got tired of hundreds of beer drinking people floating down the Vantaa river every year in “Kaljakellunta” -event. The beer floaters use inflatable rubber boats and ferries to float down the river. Key part of the event is beer drinking. While alcohol and water are integral parts of the event, there has not been any reported major injuries during the +10 year history of the event.
Prosecutor claimed that two men, who were administrators of kaljakellunta.com discussion forum, were the organizers of the event, and thus liable for cleaning up the mess that hundreds of “drunken sailors” made along the river. However, the court saw that the defendants had just posted the date of the 2008 event to the main page of the site after the discussion had reached consensus of it. They had not contributed otherwise to the organization of the event. The actions of defendants did not make them an organizers of the event. The court also looked at the 2009 kaljakellunta event which had even more participants even though the kaljakellunta.com had been closed for over a year.
The fact that the Kaljakellunta-crowd is turning to Facebook and other social networks to help to organize the event just shows that the law has hard time managing self organizing online communities that have no other ties that members like for beer.
Disclaimer: Turre Legal was the defense counsel for the both defendants. And yes, we may join the fellow sailors floating down the river next year drinking beer on a floating devices.
Glenn Rune Gallefoss left and Mikko Välimäki right in Bergen, Norway, 6.6.2009.
We just received confirmation that the first filing in our case against Timbaland and Universal Music has been made in the United States District Court, Southern District of Florida. There is a prior case ongoing in the Helsinki Court of Appeal. We have been representing Glenn Rune Gallefoss, a Norwegian Commodore 64 musician, whose rights have been transferred to Kernel Records Ltd. Some background of the case is here. We are living interesting times…
Today we got a major victory from the Finnish Supreme Administrative Court. The Court vacated earlier decision by Helsinki Administrative Court and ordered new elections for the three municipalities Karkkila, Kauniainen and Vihti where electronic voting was used. This affects tens of thousands Finnish citizens.
The court argued pretty much in line according to our appeal. In summary, the court concluded:
When we take into account the mentioned problems in the voting cards sent to homes and the operational error in the electronic voting system, the actions in the preparation of the elections have been — taken as a whole — against the law. The elections have been conducted in erroneous manner. In addition, when we take into account the big number of unregistered votes, the errors have likely affected the outcome of the elections. The nature of the errors is such that they cannot be corrected. This is why we must order new elections.
(“Kun otetaan huomioon edellä mainitut puutteet kotiin lähetetyssä ilmoituskortin liitteenä olleessa sanallisessa sähköisen äänestyksen ohjeessa sekä toimintovirhe sähköisessä äänestysjärjestelmässä, valmistelussa tehdyt toimenpiteet ovat olleet kokonaisuutena tarkasteltuina lainvastaisia. Vaalit on toimitettu virheellisessä järjestyksessä. Kun vielä otetaan huomioon rekisteröitymättömien tapahtumien määrä, virheellisyydet ovat ilmeisesti saattaneet vaikuttaa vaalien tulokseen. Virheellisyydet ovat tyypiltään sellaisia, että vaalien tulos ei ole oikaistavissa. Tämän vuoksi vaalit on määrättävä uusittaviksi.”)
After this decision I am pretty sure we will not see any e-voting experiments in the near future. Proposing anything like that would be a political suicide.
Creative Commons has release CC0 license that complements the Public Domain Dedication. Why yet another way to get your work into completely free use?
Apparently, some lawyers have raised issues with the public domain “dedication” or “certification” as it was worded. Indeed, the logic behind the dedication was US copyright law, which does not recognize inalienable moral components of copyright. The new “zero copyright” makes it clear that the dedication is only valid “to the extent allowable by [copyright] law” and that any other rights such as patents or personality rights are not affected. Ok, legally perhaps more clear but I don’t know if there is really any difference in practice. CC0 is essentially public domain in other words.
Today in the Pirate Bay trial media professor Roger Wallis, testifying for the defense, said he would not take any money for his testimony. Instead, he hoped that his wife would be sent flowers. And she did receive them! At the moment she has already received flowers worth over 30 000 Swedish kronor, meaning about 3000 euros or almost 4000 US dollars. More is pouring in. Wallis comments in an email: “I just don’t know how to handle the situation.” Of course, the flowers did not come from the court or the litigating parties but from people following the trial.
Something else has happened as well. A Facebook group “Roger Wallis is awesome” was created and got 411 members in a few hours. Another group “Roger Wallis for president” has 192 members and counting…
I think it’s the quid pro quo principle and the web 2.0 phenomena at work here.
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The image above is from Salim Virji’s photostream at Flickr.
My brief answer: no. It is true that Finnish and Swedish copyright laws are almost identical, word by word, and the facts of the cases — the administration of a BitTorrent-tracker — are in par as well. Ok, in Sweden they also generated some ad revenue which they did not manage to do in Finland. And in Sweden they publicly laughed at take-down claims while in Finland they received only one, and complied with it. However, the main difference is how copyright law has been read. It is obvious that the identically worded copyright laws have been applied very differently in each case. Let me compare them briefly:
1. Finland (as charged, and accepted by a district and appeals court)
32 admins (about half released, some 10 left appealing at the supreme court)
administration = direct copying and distribution; no aid or conspiracy (yes, you read it correctly)
covers every work and every infringing act (believe it or not…)
about 0.5 million euros in damages (charge was 5 million) plus almost as much in legal costs
2. Sweden (as charged)
4 admins
administration = aid and conspiracy to distribution; no direct acts, no copying
covers only listed 37 works
about 10 million euros in damages
You could have guessed based on the subtle differences in facts that the defendants should have won most of their charges in Finland. But that has not been the case. As you can see, the Finnish case has been much broader than what they have even tried to claim in Sweden. Thus, we in Finland will use the Swedish case to argue for the defense before the Supreme Court. We really hope to limit our case at least to the extent the prosecutor and copyright holders have already done in their claims in Sweden. But it is obvious that vice versa our case does not help the Swedes at all.
Helsinki Administrative Court gave today its decision on the e-voting appeals. Turre Legal represented 16 individuals from three municipalities who appealed the e-voting results from municipal elections held last October. The Administrative Court accepted the fact that 2% of votes cast were lost and not counted at all due to a number of errors in the e-voting system. However, the court accepted the voting result noting the following (same text for all municipalities, just italics added):
The feature, that if one took the e-voting card from the machine too early the voting process was interrupted without a notice, may be considered an issue. However, almost 98% of e-votes cast in the municipality of Kauniainen succeeded. A little over two percent failure rate can not be considered as such as a proof that the voting official would have acted erroneously… The threshold for conducting new elections must be substantial also taking into account governmental constitutional rights.
(“Sitä käyttöliittymän ominaisuutta, että äänestyskortin ennenaikainen poistaminen äänestyslaitteesta keskeytti äänestyksen siitä mitään ilmoittamatta, voidaan pitää puutteena. Kuitenkin lähes 98 prosenttia sähköisistä äänestyksistä onnistui Kauniaisissa. Hieman yli kahden prosentin epäonnistumisten määrää ei sellaisenaan voida pitää osoituksena siitä, että vaaliviranomainen olisi menetellyt virheellisesti.… Kynnyksen vaalien uudelleen toimittamiselle on oltava huomattava myös valtiollisten perusoikeuksien toteuttamisen kannalta.”)
So it was a feature, not a bug. Yes, I have heard that one before, was it from Microsoft PR?
It is now also an official fact that 2% of votes cast were lost because of these “features”. So what? Almost 98% were counted after all! Great. Except that this was the last time I voted.
And “governmental constitutional rights” as a legal argument. This is the first time I have heard of them. I thought the citizens have individual constitutional rights — like the right to vote as stated in the Finnish constitution, section 14 — against unreasonable state overpower to begin with. The last time I checked our constitution did not grant any specific rights to the state.
We will of course appeal this decision. A new and final one is expected from the Supreme Administrative Court before the summer.
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Here are Electronic Frontier Finland’s comments on the subject
