Kuten blogeissa ympäri maailmaa onkin jo ehditty raportoimaan (Lessig, EFF), Court of Appeals for the Federal Circuit on vahvistanut USA:ssa avoimen lähdekoodien lisenssien pätevyyden. Tapauksen merkittävyyttä lisää ensinnäkin se, että alioikeus oli päätynyt tapauksessa päinvastaiseen lopputulokseen. Toiseksi päätös osoittaa, että avoimien lisenssien merkitys ohjelmistoliiketoiminnalle on selkeästi ymmärretty myös tuomioistuinlaitoksessa – tässä tapauksessa vielä USA:n kaikista IPR-myönteisimmässä foorumissa. Päätöksessä mm. hehkutetaan avoimen lähdekoodin lisensointia:
Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages
Oikeudellisesti päätöksen mielenkiintoisin osuus on covenant/contract-osuus, josta (ehkä) myöhemmin lisää.
Viime kesänä tehty tutkimus vertaisverkkojen käyttäjien asenteista tekijänoikeuksiin sekä eri palveluihin on vihdoin julkaistu.
- Criminal Friends of Entertainment: Analysing Results from Recent Peer-to-Peer Surveys
Herkko Hietanen, Anniina Huttunen, Heikki Kokkinen, pp.31-49
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Update: Hesari näytti uutisoineen jutun ja sen keskustelupalstalla käytiin kiinnostavaa väittelyä.
Last Friday Turre Publishing published the book Community Created Content. In short; its about law, business models and policy issues of user created content. Longer description below. Buziaulane‘s Jak Boumans has excellent four part review of the book. 1 2 3 4. Creative Commons blog also has a short review.
This book presents an overview of the complex legal, business and policy issues in community created content. First, the book briefly treats the major doctrines in copyright law as well other (Finnish and international) laws regulating community created content services. Anyone wishing to start a new service should have a general understanding of the most relevant laws that affect community created content services.
Then, the book turns to open content licensing. Creative Commons is a leading but somewhat controversial project.
However, Creative Commons copyright licenses are tested and can be recommended for most community content services – with the general reservations that apply to all licensing decisions.
From law the book switches to business. It is subject to wild guesses what is the real business impact of community created content in the long term. In fact, the impact is already difficult to measure as the boundaries between community content and traditionally produced content blur. One scenario is that what one can today label as “community created content” will be just “content” in the future. The example of YouTube shows that community created content services
may be just one acquisition away from major media companies. Something similar has happened to open source software. On the other hand, there remain also community-based projects such as Wikipedia, which cannot be sold. This reminds of the free software ideology, which stresses societal impact over business impact.
Finally, the book discussed the details of actual policy issues in community created content. Copyright has been the hot potato of Internet policy as long as the Internet has existed. It is also in the heart of community created content. As many other books before, this book treats through a set of carefully though proposals to change copyright doctrines to reflect better the Internet reality. While the suggestions may not be implemented any time soon they should anyhow create a basis for further discussion. The book also suggests some intermediate alternatives for community content risk management. For example, best practise documentation for different aspects of copyright management may work as a shield against negligence-claims. Another major issue is the interplay between different licensing projects. No one needs another licensing project to produce another set of incompatible licenses.
Not literally (of course) but the outcome is quite same – pure linking was found to cause secondary liability. Kim Weatherall’s most excellent copyright blog reports:
in this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk)… At first instance, Tamberlin J held both liable …in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J…
The full decision is here. One interesting difference to the Finnish cases is that in Australia ISP’s don’t have safe harbor-protection against copyright infringements and here the hosting ISP was also found liable.
We received a decision from Tuusula district court this morning:
Uploading just a .torrent file without distributing the work it self constitutes distributing the file itself. The defendant had downloaded .torrent file from other filesharing network (lets use piratebay as an example) and changed the secondary name to point to Finreactor. Court acknowledged that he never downloaded the copyrighted file. The people who downloaded the .torrent file from Finreactor ended up downloading the file through piratebay tracker. The Finreactor tracker (torrentbits) kept number how many times the files were snatched and the court used that number to multiply the amount of damages. It awarded plaintiffs 10% of the original demands 1300 € plus 5000 € for attorney fees.
Torrentbits showed some anomalies that were not visible with other users. For example it had hard time showing who was the user responsible for first uploading.
Earliers this week the Turku District Court convicted four of our clients for copyright infringement. Their crime was to participate in the “administration” or “maintenance” of the Finreactor site. This is how the Court tied them to the allegedly illegal activities of the thousands of users:
“(…) As regards the criminal liability of those who took part in the administration of the website, it is necessary to pay attention to the operating principles and the objective of the service, as well as to the activities, as a whole, of those who took part in the administration, as a necessary and immediate element of the preparation of copies which the users of the service were engaged in.”
(…)
(…) As, in this particular case, the activities of the defendants who took care of the administration of the service were a necessary and immediate element of what the prosecution defines as preparation and distribution of copies, we conclude that the defendants (…) took active part in the preparation of copies.”
This is nonsense. If the defendants “took active part” in copying, why hasn´t the prosecution produced any copies that were supposedly made by them – or in fact anybody else? Under Finnish law, file sharing is a petty offence, something like crossing the street on a red light. The administrators were found guilty of less than that – contribution to copyright infringement. Not far from a conspiracy to commit jaywalking. And the chosen few who got fined by the police never even crossed the street.
A month ago the Tuusula Lower Court acquitted a man from all charges in one of the Finreactor cases handled by Turre. The police witness admitted in the hearing that others could have used the defendant´s user profile in Finreactor. The Court found that there was not enough evidence for a conviction.
The best part was that the decision was not appealed. As a final decision it has precedent value.
Yesterday the Lower Court of Borås, Sweden fined a filesharer something like 2.500 euros for sharing a total of FOUR (4) songs on a P2P network. What was the honourable Court thinking? I don´t know much about Swedish criminal law, but I assume that if the guy had stolen a CD with twice as many songs from the store his punishment would have been much less severe.
The message is clear: Sharing files is not stealing, it is much worse. A ”computer crime” no less…
We receive quite a few inquiries regarding this blog from outside of Finland. Maybe it is because the cases discussed here are part of an international campaign by the copyright industry to crack down on file sharing. From now on we will post updates in English for those who can not understand Finnish. Please feel free to post comments in English or Finnish!
The bulk of the Finreactor cases were tried in the Turku Lower Court in late September. Everyone is waiting anxiously for the verdict which is due 26 October. In our view, the prosecutor and the corporations acting as plaintiffs tried to make our clients responsible for everything that the tens of thousands of Finreactor users allegedly did. The police, undoubtedly pushed to investigate by movie companies and other “rightholders”, were registered as undercover users of the Finreactor website for many months in before they made any effort to tell anyone about this “illegal” activity. During the investigation, many of these companies were curiously silent about the alleged losses and damage they were suffering because of Finreactor even though many of them were perfectly aware of the website´s existence. We suspect that their main concern was not that their products were “unlawfully” shared over the internet, but rather that they wanted to build up a major crackdown and a precedent legal case – as the case was in due course presented to the news media.