Intellect or Insanity

The recent Australian decision in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 was more than satisfactory to most of the users and Internet Service Providers. In summary, the Australian Federal Court ruled that an Internet Service Provider is not liable for its users’ copyright infringement as it does not encourage or authorise such downloads. iiNet was sought in court for enabling BitTorrent traffic and not barring its users from sharing files.

While the 200 page decision is more than interesting, one should note that the court had more than a challenge when needed to explain how BitTorrent actually infringes copyright. Copyright law has a requirement that the copying be of a substantial part of the work (s. 14, Australian Copyright Act). Therefore, a BitTorrent client, which provides small chunks of a file does not provide, copy or make available a substantial part, as any of the parts transferred may be irrelevant and insatisfactory in regards to copyright infringement (see more about BitTorrent at Stephen Knox, Diarmaid O’Cearuil, Nicola Scott Holland and Ljiljana Skrba, BitTorrent).

For example, sampling, such as in Girl Talk’s videos may sometimes be considered fair use, at least by the artist and it does not, at most times, sample a substantial part of the original work. BitTorrent, at least here, creates a material challenge to explain how a particular user copies a substantial part, as a user does not actually create a substantial copy. However, the court went on, and explain, in a rather meticulous way, how it sees BitTorrent as creating a copy of a substantial part of the work:

The Court finds that it is the wrong approach to focus on each individual piece of the file transmitted within the swarm as an individual example of an ‘electronic transmission’. The BitTorrent system does not exist outside of the aggregate effect of those transmissions, since a person seeks the whole of the file, not a piece of it. In short, BitTorrent is not the individual transmissions, it is the swarm. (…) The correct approach is to view the swarm as an entity in itself. The ‘electronic transmission’ act occurs between the iiNet user/peer and the swarm, not between each individual peer. One-on-one communications between peers is the technical process by which the data is transferred, but that does not mean that such level of detail is necessarily what the communication right in s 86(c) focuses upon.

Viewing the swarm as a copy of a work is an interesting initiative. It sits side-by-side with the legal problems which cloud computing may face, but the swarm is not an entity, it does not have a right for expression nor does it have an understanding of fair use, it cannot use legal defenses (such as the doctrine of first sale) in creating such copies and cannot be sanctioned monetarily. So who could be sought after?

Theoretically, let’s see a swarm for a popular .torrent, such as a movie: while some users may pirate content (according to a recent dubious study, the some is 99%), we can acknowledge that at least some of the people sharing a file have a good reason to do so. We can assume that at least a small portion actually bought the content and are downloading this copy as it is more comfortable to use on their computer (due to DRM restrictions, let’s say), some are actually selling their legal copy to a friend and using a private p2p .torrent to convey the first sale doctrine (Like Vernor v. Autodesk), some are conveying a copy as a fair use right, to create a derivative work in a research or for personal study of the work, and some are creating a digital archive or researching network behaviour.

Seeking out legal action against a swarm is problematic. You do not have an actual person which infringes, but a computer connected to a network; this computer could have been configured to automatically download content, for example, download automatically any popular movie using The Pirate Bay’s top 100, such download does not contain any human intervention and therefore is not an  act of infringement, as infringement has to be done by a real person.

Now, let’s assume that the person actually views the movie. At least the Israeli and US Copyright Acts do not contain a provision prohibiting use, just copying. So, theoretically, such automated mean may be exempt from copyright infringement for personal use. In this very improbable case, no copyright infringement occurs in the swarm, and the swarm may be a copy, but not a copyright infringement.

Around a month ago I went to court to discuss a case which I counsel with another attorney. The case was quite simple: The plaintiff claimed that the defendant, which we represented, took from its website the technical specifications of a gadget and copied it alongside a phrase describing the gadget. Altogether we represented three defendants which were sought by the same plaintiff (and there was a total of 20 defendants) for 100,000 ILS (~30,000 US$) each.

When arriving to the pre-trail, the plaintiff’s counsel explained to us (and to another counsel sitting on behalf of another defendant) that he is willing to settle, and there is a ongoing rate for settlement. The Judge, which was sympathetic for our interesting legal claims, that copyright could not be asserted on technical specifications, facts or ideas (PCA 8304/09 Bezeq v. Dapei Zahav, C 37759/07 Elisha Shochat v. Maariv), and that the phrase itself was lacking originality and too short to be copyrightable (Hebrew post of copyrighted tweets, CA (TA) 178/79 Hallinger v. Estheron, DR, 1980(2) 45) offered that we settle anyway. She claimed, righteously, that the settlement offer was low enough that it justifies settlement in order to avoid litigation.

And the judge was right: settling the case was lower than the cost of the lawyers in the process and would have been also lower than if it turned out that our clients were right and would have been granted attorney’s fees pursuant to dismissal of the case. Meaning that the copyright bully won: it won a nice sum for something he isn’t entitled to, just because the litigation cost was lower.

But this case is not rare when you look into copyrights: around once a week I’m addressed by persons who received notice due to publication of copyrighted images in their website (usually the same plaintiff by different attorneys), even though some of the cases were fair use, and others lacked any commercial value, the attorneys ask for sums which are a hundred times greater than the sum paid for the image in the free market. For example, Tess Scheflan sought Ynet, Israel’s biggest website (C 58032/07 Tess Scheflan v. Yedioth Internet) for publishing images she published originally on PicShare and was awarded 28,000 ILS, even though the image would have been bought, legally, for no more than a few hundred ILS.

And why was all this required as an introduction? In order to explain why The RIAA offer to Jammie Thomas to diminish their awards granted by half was a strategic move made to hurt users. Thomas is a single mother who was sought by the RIAA for publication of 17 songs through Kaaza. The court first decided that Thomas should pay 9,250$ per song as the jury of her peers found that Thomas made several songs available to the public and infringed the RIAA’s copyrights; but Thomas appealed the ruling.

In the Appeal the District Court ruled that making a work available to the public is not copyright infringement (06-1496 Thomas v. Capitol) and returned the case to the federal court for retrial. In the retrial, the jury ruled that Thomas actually was involved in wilful infringement and awarded the RIAA a sum of 1,920,000$ (04-CV-1497 Capitol v. Thomas).

Thomas appealed this ruling (again) and the district court ruled that the awards granted were unconscionable and exceed any sum a reasonable jury may award (04-cv-1497 Virgin Records of America v. Thomas). The District court conclusion was that the awards should be reduced from 80,000US$ per song to 2,250US$, three times the minimum damages to be awarded by a court; as as the damage was unclear, high awards aren’t adequate.

Even though the court ruled 54,000US$ in damages, the RIAA generously offered Thomas an offer she can’t refuse: remove and revoke the appeal, and we’ll request lower damages, to be donated to a worthy cause.

And why would Thomas decline the offer? she was in a similar situation like the defendants I represented; Her personal interest may rise substantially had she refrain from creating a precedent which will hurt copyright holders (and this isn’t the first time Thomas refused to settle). Thomas knows what we all knew: the RIAA sends threatening letters where they scare innocent file sharers with millions of dollars in damages, as in the case of Joel Tenenbaum who lost a case against the RIAA and as to pay 675,000$.

Now, you must understand that there are law offices which send pre-suit notices and take the same strategy; where claims for fair use, lack of liability, criticism and others arise, they’ll refuse to answer but will leave silently, just in order to avoid a precedent saying they cannot threat others and request outrageous sums for using images in blogs. We need public defendants, people who will go to court just for the sake of not bending when a copyright troll comes in and say the truth: we are facing bullies.

[Published in Hebrew]

“I don’t think that there are many tragedies in China and there are no serious problems in china as long as you don’t fuck with the government“; that’s what John Perry Barlow said when Ido Kenan, Jonathan Silber and I interviewed him on August 2007. Barlow was enchanted by china so much that it seemed to forget that we have an inherent right to fuck with our government.

However, if you see Hillary Clinton’s attack on China which marks the shot for the next world wide war, the war on information freedom, you need to think twice. Indeed, the alleged actions by China were hideous. Entering into a dissident’s email account and exploing zero-day vulnerabilities in Internet Explorer (the same browser that the Israeli Government requires people to use in order to interact with it) and Adobe’s Acrobat Reader is no less than troubling. However, Clinton’s rage on the involvement, censorship of political websites that try to undermine the government and reading personal emails was that it was blocking free trade. Therefore, China’s response was no less obvious: China reckons that Clinton (and Google) should obey the local laws, which include China’s ability to monitor and enforce the net.

Whether Clinton (and Google) are right, and whether China is right, one should still see Clinton’s hypocrisy.

During the same week where the United States decides to pick on China, we discover that the FBI made warrentless surveillance and obtained data illegally claiming that these activities were made against terror suspects. The US also performs warrantless and causeless searches in laptops when crossing the US border, copies their content and violates the privacy of those who enter the US, and even without need for cause. Meaning, the United States’ conduct is no different than China; The only difference is that the US performs this due to rules and regulations and China hacks.

“It is easier for the United States to point at China and say that they have a human-rights problem than to look at themselves”, Barlow said. But the Democracy residing in Zion is not innocent. When we blame China and stand next to our greatest friend we have to remember what Israel has been doing during the last year. Just last year we buried the Internet Censorship act, and now a new bill by Danny Danon threatens the freedom of the net, where the bill, if passed, will allow the Israeli government to shut down websites harming the Government’s stability, or sites which risk national security. More than that, the MetaData act in Israel allows the same crimes we blame China: our phone and Internet providers must provide the government with details about their users.

Israel already addmitted searching Mordechai Vanunun’s computer when violating the law and tapping his emails; the same actions China made and is being blamed for; we just call these actions “National Security”

[Originally Posted in Hebrew on TheMarkerIT]

After a few weeks of work, and many comments from various open source enthusiasts, we (Hamakor) filed our memorandum today in response to the Israeli Patent Authority’s call for submissions (more here), calling the Israeli regulatory authorities to refrain from granting patents on software [Hebrew Memorandum].

Our main claim was that protecting software through patents shall provide protection on ideas, which are usually expressible in more than one manner, and shall be the beginning to a race to the bottom where every person shall register as many patents possible and incur high costs on each player in the software field.

We noted that the chilling effect created by the fear of using software protected by patents, be it free software or proprietary software, and incur costs on the system solely in order to purchase insurance from the theoretical patent infringement. In such case, any independent development of software without legal assistance from the first day of development shall be problematic, and deter developers from developing free software or promote innovation.

In Israel, unlike the United States which awaits decision in re Bilski, and a recent USPTO decision in Srinivas Gutta & Kaushal Kurapat, and unlike the EU which has a strict approach towards software patents (clause 52 to the EU Patent Directive does not acknowledge software patents), Israel has a theoretical decision by the patent registrar, Noam Meir in Pat 131733 Eli Tamir, which was yet to be examined by the supreme court and has yet to be accepted as precedential. Meir stated, in his decision that “the hardware is patentable and the software is outside the realm of patentability (…) even though software itself is unpatentable, physical computed systems, which integrate hardware and software, or who make technological use of new software in order to present a new result with inventional progress, may be patentable in several conditions”.

We believe that software patents do not promote innovation but are only used to bash business opponents and prevent innovation. For example, patent number 5960411 which was filed by Amazon. This patents tries to own exclusivity over “one click purchases” in electronic commerce website. The same could be said on patent number 6727830, which describes a method of double clicking in order to open an application. Both patents present no innovation apart from algorithms. Moreover, a research conducted between 2000 and 2001 in Stanford found out that the use of patented software technologies enhance sales in websites and allows the general wealth to grow, while it deters other from using similar technologies. Therefore, even if Amazon invested millions of dollars in a system which would enable faster purchases and lower drop rates, the innovation does not contain any technological or industrial nature, but conceptual. Protecting ideas is not something that should occur in free markets, where we find that we wish for greater competition between the expression of these ideas.

Patents in the digital world are different from physical patents in two manners: The period of protection and the form of expression. Where technological applications such as the tumbler lock was created more than 4,000 years ago, different types of applications based on it were registered as patents for more than a century. However, protecting a specific lock for a period of a few decades does not interfere with the free market in the same manner which protecting software does. In the computing industry, and especially in software, five years are eternal, let alone twenty years.

The exponential growth in computer chips, based on Moore’s Law, causes a fast development of technology where five year old software are almost irrelevant.

The second rationale is that in the physical world an idea may be applied in two different forms, establishing free competition, without infringing the patent (for comparison, C 2469/02 Hasbro v. Lee-Dan, CA 9678/05 Beytimu v. ARRABON -HK- limited, C (Haifa) 399/04 ARRABON HK v. Beytimu). For example, the patent granted to General Mills in regards to the Monopoly Game was so wide where it prohibited almost any board game that allowed transacting funds (see also Anti-Monopoly, Inc. v. General Mills 55 A.L.R.Fed. 223; 204 U.S.P.Q. 978; 611 F.2d 296): “This invention relates to board game apparatus and is intended primarily to provide a game of barter, thus invoking trading and bargaining”. In such a situation, theoretically a game may had been applied in a way that wouldn’t breach the patent; however, in software the thing would be impossible.

The problem is that in the world of software patents the border between the definition of the problem and its solution is unclear; sometimes, the patent granted is on the problem’s definition and not on its solution. For example, the voice codec MP3 is protected by a software patent. In the field of video and audio compression patents were granted so that they protect using the files using algorithms different from the patented algorithm.

In such case, the proprietary algorithm’s creators demands royalties also for the decompression of a compressed file, so that every media player’s manufacturer should pay even when the decompression was made by a different algorithm (and see, for example clause 24 to the Israeli Copyright Act which states that “Use of the computer program for purposes for which it was intended, including correction of errors in the computer program or making it interoperable with a computer system or with another computer program” is permitted).

An additional problem, which defines software patents as a race to the bottom, is that the Israeli venture capital corporations measure intellectual property in start-ups by patents. Under their method of inspection, the sole manner to quantify property is by the possible amount of patents. This characteristic creates a race to the bottom that usually incurs high costs of registering patents on start ups, and attempts to patent any piece of innovation, even when it is obvious it isn’t patentable. In a similar manner, Netex applied in 1998 for a patent on smart and semantic browser address bar, so that every search using the URL box in a browser would be covered by the patent. However, though the patent lacks innovation in our opinion, and where there is no indication that there was no prior art, the question is what separates the address bar from every other input box, be it by website or software. They are all input boxes that operate in a similar manner.

We believe that the unstoppable registration of patents shall not only incurr costs on the Israeli High-Tech field, but also harm software due to the Software Patents Arms Race.

In a similar manner, there were a few attempts to enforce what is known in the industry as a standard (6:07-CV-113 i4i v. Microsoft and Microsoft’s Settlement with TomTom over FAT32), so that products who tried to interface with known and acceptable standards in the industry were sought for patent infringement. These lawsuits implicate on how innovation is perceived and how interacting with free market occurs. For example, the lawsuit brought by Microsoft against TomTom was in order to prevent TomTom from using open source and free software; the apparatus built by TomTom was based on Linux, and Microsoft claimed that storing data on Fat32 drives was a breach of their intellectual property rights. However, more than any other thing, Microsoft, who holds a de-facto monopoly over Operating Systems, attempted to prevent competition from growing.

We believe that changing the legal atmosphere to a situation where patents shall not be granted over software will not only enable free competition in the Software field, but provide incentives to the Israeli economy, provide quality investments and will base the investment in people and not patents. In such case, not acknowledging software patents shall allow Israeli companies to develop software without fear of being sought for alleged infringement for a different patent. The main insight is that the core of the Israeli Software field is people, and that allows development without fear.

The uncertainty in developing software where an arms race exists discriminates between developers of free software and proprietary software. Free software developers are mostly volunteers and a community which allows progress in an harmonic way that allows the entire society to utilize technology and labor. In such case, many companies may compete on the best technological product, and adapt the software to their product. For example, cellular phones using Google’s Android Operating System could patent the chips in the cellphone, but others may use the same operating system in order to donate and help the development. Acknowledging software patents may incur costs on the millions who develop for no financial purpose, and they will have to seek legal counsel prior to even writing any software.

While we acknowledge that many companies may write to the registrar and call to protect what they perceive is their property, we know that the greater good could grow where software patents shall not exist.

For the reasons specified, we believe that no software patents shall be granted in Israel.

Circumventing Amazon’s Kindle Digital Restriction Management (DRM) earlier this week may be a small revolution and a new path into turning the human knowledge into something collective, distributional and more fair. The electronic readers, such as the Kindle, provide an alternative which is cheaper, efficient and comfortable to read books and convert them into a part of the new found culture. it is not a coincidence that Israeli publishers are trying to create their own electronic reader; they know that they may find themselves out of business if they remain in paper distribution; therefore, and following Amazon’s conduct when wiping books off its clients’ Kindle (and Ironically, it was George Orwell’s Nineteen Eighty Four), a new need for ownership of technology came to effect.

Circumventing the copy-protection, of course, allows more than ever the sharing of books. If, over a year ago, I offered The Train Arrangement where books from the public domain would be printed and left it trains so that passengers would read them in their spare time; the conversion of books into commodities, even if making the books cheaper in value, allows making the books available to the public. (Thanks, Nati Davidi). In fact, creating a software that could link all these devices and make all the books, knowledge, literature and encyclopedias available and readable, will allow a distribution of knowledge and mobility of ideas.

The only question is whether the book publishers, which were fond of their readers up to now, will be hostile like the movie industry?

The Government’s wish to issue self-signed electronic signatures on the newly inaugurated biometric cards is more of a monetary mishap than a privacy Issue. However, some critics may say that this is more than a failure, it’s a way of doing business.

In 2001, Israel legislated an Electronic Signature Act, which allowed authorised bodies to issue digital signatures to encrypt and digitally sign documents, in order to replace their physical presence [further reading at the Israel Justice Department website]. To sum up: when acquiring a digital signature, a certificate authority issues a signature, and then validates your identity and warrants that you are who you say you are.

However, due mostly to overburden created by the state, Israel holds only one certificate authority, ComSign. The problem? ComSign is (a) a private company and (b) charges 300 ILS (~75 US$) per signature. The lack of competition caused the government to try a new approach: as every biometric ID has to be digitally signed, the government wishes to be both the certificate authority and the entity which relies on the validty. There are two main advantages for this scheme: first, the costs of issuing electronic ID cards reduce, as there is only need to pay the issuer of the plastic card; Second, the government is certain that the certificate authority will never go out of business.

However, there is one major flaw: when the government issues a person’s private key, it can never (and i mean never) hold a copy of that private key. Exposing this key to any person which may be able to access it is a major flaw that could assist identity theft and other causes. Here comes the need for a certificate authority’s liability. When inflicting liability on a CA, it may exercise best care and warrant that no information may be misused. Moreover, it, by itself, lacks the interest of infringing its users’ privacy. Therefore, opening the market to competition and allowing more private CAs is the solution, not allowing the government to have more force.

However, a minor tongue-slip by Adi Sagi, from the military’s CA, during last week’s discussion, may show that something is not all-that-ok wiith a self-issuing certificate authority; Sagi stated that the certificate exists “not only on service cards, but also for Keva [additional service, after the mandatory - jk], soldier service cards, smart ID cards for the military’s needs. I want to raise two other points: the first is the trust in the soldiers or loss of cards. Once a soldier loses a smart card or a card is stolen, he has to notify the police and the ministry of interior that the card was stolen. Then you need to operate systems where the certificate is not valid anymore and a new certificate needs to be issued. I don’t know, and i guess that Boaz [Dolev, the head of the computing unit in the government - jk] doesn’t know, any authority that if a certificate is stolen may…” here Sagi was interrupted, stating that he exceeded his authority.

But it seems that the architecture of privacy here was not in the main interest of the government. Issuing seven milion ID cards and paying a private entity 300 ILS per card may cost the government more than it is willing to pay for the biometric experiment. Therefore, the government decided, for monetary reasons to risk the citizens’ privacy, and be its own certificate authority.

When explaining it to the committee, i said that “I am afraid from my government. I am afraid from the government in a place where a corrupt social security employee was bribed to pass private information; I am afraind from a government that cannot investigate the leak of its own census; I am afraid from the government and I am entitled to do so, and it is still the government’s duty to protect me. But this is not the discussion. The question is a certificate authority could be the entity that verifies the identity and still hold my cryptographic keys“.

Something has to be done here, before it gets too late.

The research we conducted with Ynet News in regards to p2p throttling and DPI in Israel, which was (even after reading the criticism) most likely the most comprehensive in Israel, even though it needed more research. One of the results was a Parliamentary hearing by Meir Sheetrit, the chair of the Science & Technology Committee. The real question is what to do with it.

Daniel, one of the commentators in the Hebrew blog, claimed that a class action lawsuit could not be substantiated on contractual grounds. I disagree, but in spite of many calls and mails I received to launch a class-action, I’m not sure it’s the right thing to do. A class action may be filed according to the consumer protection act or based on other obligation. Allegedly, the ISPs obligation to net neutrality in their license (and see clause 5.4.1 to the general ISP license) and their obligations according to clause 29 to the Telecommunication Act are sufficient cause. The problem? The Class Action Act requires monetary damages, and there is more than one problem to prove it.

And what are things all about? If the cause of class action lawsuits is not to enrich the attorneys and plaintiff but to bring restitutional justice, then it will not be made; in the best case, a settlement would be made where the attorneys will receive 500K ILS and the plaintiff 1M ILS, where all the related clients will receive 10% bandwidth upgrades for a few months. Apart from that, even if different damages were made to different potential plaintiffs, there’s still place for class action lawsuits (OCR 31032/06 Shalom & Malka Fabrics v. Tel-Aviv). But what was the damage?

Many comments were written in wrath and required justice and a lawsuit. The problem, none of the commentators had any monetary damage. Is blocking a p2p download cause-worthy? Could those people come to the court in clean hands and explain to the judge what are the files they downloaded? Most likely, some lawyers’ will to be first just went up to their heads.

Of course, one should understand the difference between illegal file sharing and other interference that may occur in prioritizing VOIP traffic or blocking other services.

The people with the most to gain from this research, most likely, may be the Copyright Organizations. If we recap the discussions on the Electronic Commerce Bill around a year and a half ago, where the idea was that An ISP shall not be liable to acts committed by its users if it wasn’t aware of the activity and was not supposed to be aware, we understand the problem (See also Dubitsky v. Shabiro and MGM v. Grokster). Actually, ALIS, the Israeli equivalent of the MPAA could request the ISPs for damages, as they interfered with traffic and blocked. De-facto, this claim would not be far from the required legal conclusion: if the ISPs did not interfere with traffic, they were better of in regards to liability.

Therefore, if someone should sue the ISPs to bring restitutional justice, it should be the Copyright Holders. If they were actually harmed by file sharing (and I doubt they were), let them sue the ISPs and make them pay, understand and acknowledge that by blocking they inflicted liability on themselves. That way, and only that way, they’ll learn.

[Posted in Hebrew]

0. Abstract
Do Israeli Internet Service Providers throttle, delay or block peer-to-peer traffic? This question has been spreading in Israeli forums and file-sharing networks, and has introduced theories from attempts to sell enhanced Internet packages to copyright infringement monitoring. This research, which was conducted between April and September 2009, was meant to check whether the claim was true. Using simple free tools we decided to inspect the legality of DPI and traffic shaping in Israel and whether it exists.

Our findings were that there is direct and deliberate interference in P2P traffic by at least 2 out of the 3 major ISPs and that this interference exists by both P2P caching and P2P blocking. The tests, conducted by independent volunteers, were directed by myself and with the assistance of Ynet’s staff, who published a Hebrew summary.
1. Background:
Peer-to-peer (P2P) file transfer protocols have been in common use since the advent of networked computing, but their rising profile (as well as the controversy surrounding them) began with the introduction of P2P sharing of copyrighted materials. Initially used for sharing small music files and applications, P2P today is a legitimate and widely used system for the distribution of any electronic media, and multiple gigabyte files are commonly shared amongst users from around the world. Whilst some researches imply that there is a slight decrease in the growth of P2P (Allot, 2009), P2P is still the Killer Internet Application, responsible for 21% of the Average Mobile Traffic Cell and in charge of an estimate of 70% (ReadWriteWeb, 2006.12.06) of the global Internet traffic during 2006, accounting for around 25% on some networks (PlusNet, 2008.07.17), but according to more detailed reports, accounting for more than 50% of the network’s traffic (ipoQue, 2009, TorrentFreak 2009.02.18).

Peer to Peer traffic consists of illegal downloads of files, voice over IP calls, instant messaging and other decentralized communication. The element common to all P2P services is the lack of economical benefit to the ISP from the client’s use of P2P. According to recent studies, P2P users consume more traffic (Arstechnica, 2008.07.04), and when traffic caps are used Internet Service Providers (ISPs) benefit and earn more from P2P use (Arstechnica, 2008.05.07).
Since 2007, claims that Israeli ISPs are blocking P2P traffic have been spread all over the Israeli Web. More recently, a report by Vuze Inc, a popular service utilizing P2P in order to provide its users with high definition video content over the BitTorrent protocol found that all three major Israeli ISPs block P2P traffic to some degree . (8.13% for Smile012, 18.51%  for Bezeqint and 14.06% for Netvision). During 2009, complaints against the three major Israeli ISPs (inspected in our research) were brought to the media and were dismissed by the ISPs. Bezeq International claimed that it does not interfere with  P2P traffic and called the claims ‘baseless’ (Ynet, 2009.03.29), whereas a year earlier it claimed that it is the only company that does not block P2P (Ynet, 2007.12.05 ). Smile012 dismissed Torrentleech’s claims that it blocks P2P traffic (Ynet, 2008.01.24, Torrentleech FAQ) and Netvision-Barak dismissed the claim that it de-prioritizes P2P traffic, claiming that such activity was impossible, and were it possible, it would block all child-pornography and offensive content (Ynet, 2007.05.27). However, and even though such formal announcements were made, many reports on informal conversations with customer support representatives who have acknowledged the problem. Another recent report was that Bezeq International was actually amending .torrent files in order to add the Bezeq International Tracker and save on outbound bandwidth (Torrentfreak, 2009.04.19 ); However, Bezeq International’s CEO rejected the claim and stated to Amitai Ziv, from TheMarker that “I will not operate an illegal video library on my servers, even if my competitors do that” (TheMarker, 2009.08.05).
For example, a person claiming to be an ex-Netvision customer support representative claims that they block P2P traffic originating outside of Israel (BGU Forum, 2009.03.26 ), an informal and anonymous executive in one of Israel’s ISPs stated that due to excessive outbound traffic costs, ISPs block P2P traffic (Haaretz, 2008.05.06 ); however, until now there was no extensive research to inspect any of these claims.

1.1 Legal framework
Israeli ISPs operate under a specific license which requires them (Israel has 39 licensees, 2009 numbers, general license example) Clause 5.4.1 to the general license states that the License Holder’s activity shall not interfere with the free competition in the telecom market or harm the public interest. Moreover, clause 29 to the Israeli Telecommunication Act (1982) specifies that interfering or blocking of electronic communication over a public network is a criminal ofence. Therefore, even without any net-neutrality regulation (see, for example, Tal Zarsky’s 2009 lecture during the ISOC conference ), Israel has the appropriate regulation to interfere with attempts to prioritize network packets and to withhold other packets.

Recent letters from the Telecommunication Ministry’s CEO (CEO Letter, 2009.07.15) explicitly stated to all telecom providers to avoid interfering with all traffic and especially Skype (TheMarker 2009.07.15); whilst some ISPs claim otherwise and state that there is no legal obligation for network neutrality (Themarker 2009.07.27), Our belief is that under the current legal status, without prior explicit consent by the End-User, network neutrality must be imposed at the strictest form in order to ensure impunity from liability for End-Users’ file sharing (MGM v. Grokster). The Israeli draft for the Electronic Commerce Act (Government Bills, 2008.01.14) exempts ISPs from Caching if they had not modified the packets (Clause 9). Moreover, Clauses 7-10 exempt liability if, and only if, the ISP had not manipulated any packet.

Moreover, Deep Packet Inspection (DPI) as executed by several of the Israeli ISPs, may be considered illegal wiretapping, as it is defined in the Israeli Wiretapping Act, as “Listening to another person’s conversation, interception or copying of another person’s conversation, and all with an apparatus”; DPI may also be considered Interfering with Computer Data under the Computer Act or illegal entry to computer information. DPI occurs when an apparatus listens to the End-Users’ packets, inspects their content and according to their content manipulates them or passes them to their destination. Unlike regular routing, that only “reads” the target address and sends the packet to its destination, DPI manipulates the packet, without the End-Users’ explicit consent and may be considered illegal. The Israeli Courts continuously ruled that inspecting one’s traffic and personal files consists as a crime under the Computer Act (CA 1126/06 Lerman v. State, where Lerman installed a Trojan horse; C 40206/06 State v. Pilosof). In Pilosof, the District Court of Tel-Aviv ruled that “Inspecting the Email message in the electronic range should be made with a broad perspective on the email’s traffic from its dispatch until its arrival to its destination, therefore, intercepting a message on the ISP’s computer is “real time” interception whilst the data is transferred and prior to the termination of computer communication (…) Accepting the state’s view might lead to an unwanted result where the ISP may not be prohibited from copying and reading the messages intended for his clients, as the intrusion occurs on his computers”.

Therefore, while traffic manipulation may inflict liability on ISPs when they manipulate traffic knowingly that such traffic is copyright infringing (even if manipulation means slowing down), we believe that it is illegal for Israeli ISPs to manipulate traffic.

1.2 Comcast’s FCC ruling.
Unlike Israel, the US struggle for network neutrality and against file sharing throttling began in the early 2000s (Tim Wu: Network Neutrality, Broadband Discrimination ) and has been brought to the attention of the FCC, which ruled that its role is to preserve the open nature of the Internet (FCC 2005 ). However, only in 2008, after Comcast, the 2nd largest ISP in the US was caught throttling P2P traffic (Gigaom 2008.07.11 ), the FCC had to examine whether blocking (or delaying) P2P traffic was in accordance with US regulation.

The FCC’s ruling (FCC, 2008 ) stated that Comcast may not limit or delay any peer to peer traffic, claiming that it was unlawful intervention in competition and against the public interest: “This practice is not “minimally intrusive” but invasive and outright discriminatory. Comcast admits that it interferes with about ten percent of uploading peer-to-peer TCP connections, and independent evidence shows that Comcast’s interference may be even more prevalent. In a test of over a thousand networks over the course of more than a million machine-hours, Vuze found that the peer-to-peer TCP connections of Comcast customers were interrupted more consistently and more persistently than those of any other provider’s customers. Similarly, independent evidence suggests that Comcast may have interfered with forty if not seventy-five percent of all such connections in certain communities” (…) “On its face, Comcast’s interference with peer-to-peer protocols appears to contravene the federal policy of “[promoting] the continued development of the Internet” because that interference impedes consumers from “[running] applications . . . of their choice,” rather than those favored by Comcast, and that interference limits consumers’ ability “to access the lawful Internet content of their choice,” including the video programming made available by vendors like Vuze. Comcast’s selective interference also appears to discourage the “development of technologies” — such as peer-to-peer technologies — that “maximize user control over what information is received by individuals . .. who use the Internet” because that interference (again) impedes consumers from “run[ning] applications . . . of their choice,” rather than those favoured by Comcast”.

The question now is whether Israeli ISPs do limit or even block traffic (where the delaying of packets equals blocking, see Comcast Ruling, pp. 26-27) and whether the Israeli regulator interferes with such activity. Moreover, as Israel has an oligopoly of three ISPs with no actual competition (further aggravated by a duopoly of Network Service Providers in Bezeq and Hot), there may be a case for antitrust inquries and not only inquries by the Telecommunication ministry.

2. The Test

In order to examine whether P2P traffic was blocked, we began the experiment with two tools developed by other parties. The first is the open-source Switzerland tool, developed by the EFF. “Switzerland is an open source, command-line software tool designed to detect the modification or injection of packets of data by ISPs. Switzerland detects changes made by software tools believed to be in use by ISPs such as Sandvine and AudibleMagic, advertising systems like FairEagle, and various censorship systems. Although currently intended for use by technically sophisticated Internet users, development plans aim to make the tool increasingly easy to use” (EFF, 2008). Switzerland was released following the FCC ruling and was the tool that the EFF used in order to prove the claim that Comcast was indeed throttling P2P traffic (TorrentFreak, 2008 ).

We also used Glasnost, which is partially supported by Google and the Max Planck Institute. Glastnost is a part of Measurement Labs and  is an independent java client, running within a browser. Prior to our inspection, Glasnost found that Israeli ISPs are not throttling traffic. In its report, only 3 out of 971 tests were blocked, and out of 17 different ISPs measured in Israel, only 3 blocked P2P. However, these results do not include throttling or shaping. Therefore, we began our experiment without any additional Information.
2.1 EFF’s Switzerland
While we were unable to review the Switzerland logs, mostly due to our failure to coordinate between volunteers’ time to run the scripts, Switzerland assisted us in finding some interesting conclusions. We left a server to seed a .torrent file of a public domain video; our volunteers downloaded and uploaded the file again and again, looking for potential interference by the ISP or RST packets. We were unable to produce any substantial results or conclusions regarding traffic, mostly due to Switzerland’s interface.

However, after a massive number of attempts, we found out that another user is seeding our torrent, from the IP address 212.235.15.36 and not from the libTorrent Client we used (screenshot, screenshot ). We found a mention of such IP address in an Israeli Hardware forum describing it as one of Netvision’s caching servers  (HWZone, 2009). While the IP address is associated with Netvision, we were able to authenticate that a similar IP address is being used in eMule caching (img src) and that 212.235.x.x, which was used in other conversations, are owned by Netvision (whois data). While this is not throttling with user packets, it is considered a severe interference with communication privacy and may be considered intercepting private conversations.

We believe that additional research is required to authenticate whether such activity is taking place in additional ISPs and whether this ISP is caching additional files. Moreover, such caching has severely tampered with our ability to inspect bandwidth throttling, as our inspection of speed was irrelevant once the .torrent and the file were cached on the ISP level.

We also encountered a strange download from a cTorrent download from 213.174.157.6 (screenshot), where we could find slight affiliation with IP addresses that are affiliated with CheckTOR, a company that’s meant to assist copyright holders (Checktor).

2.2 Glasnost Results
We ran Glasnost from different computers and different ISPs, on different occasions and even through random WiFi hotspots, in order to inspect interference with BitTorrent traffic. Glasnost operates in the following manner: it inspects the connection in four different transfers: BitTorrent upload and download over a standard BitTorrent port and over a non-standard port, and TCP upload and download over a standard BitTorrent port and non-standard port. By comparing the TCP and BitTorrent results, information as to whether deep packet inspection occurs, as it prioritizes traffic according to protocol, and by comparing standard to non-standard port information whether port preference occurs.

We conducted at least 8 inspections per ISP and logged them. We compared the results and analyzed them, and our findings were as follows:

2.2.1 Netvision:
Netvision probably operates both deep packet inspection, which we already mentioned when we found that it may cache popular torrents. Our findings where that in standard port uploads, the average ratio of BitTorrent to TCP was 70%, and on non-standard ports it was 81%; however, aggregated ratios (the aggregate of all the upload speeds and download speeds) were 52% on standard ports and 59% on non-standard ports.  In downloads, we encountered similar results, providing an average BT/TCP ratio of 58% on standard ports and 50% on non-standard ports and an aggregate value of 50% on standard ports and 27% non-standard ports.

2.2.2 Bezeq International:
Bezeq International’s results were inconclusive, and because of one inspection, where BitTorrent traffic was 12 times faster than TCP on an upload, the results were inexplicable. Therefore, we omitted this inspection as it was off the standard deviation. Moreover, Bezeqint’s results were inconclusive and could be due to standard deviation in the statistical margin of error, in general, Bezeqint’s BitTorrent traffic was faster than TCP traffic. Our findings where that in standard port uploads, the average ratio of BitTorrent to TCP was 105%, and on non-standard ports it was 69%; aggregated ratios were 104% on standard ports and 52% on non-standard ports.  In downloads, however, the average BT/TCP ratio was 147% on standard ports and 130% on non-standard ports. However, the aggregate download ratio had a value of 137% on standard ports and 36% on non-standard ports. This was caused due to several tests where the ratio on non-standard download ports was below 10%. In these cases, we believe that it may be due to momentary errors and not due to intentional interference.

We can only conclude that uploads on non-standard ports had any discrepancies, and therefore believe that no actual throttling was made.

2.2.3 Internet Zahav / Smile012
Internet Zahav’s results were the hardest to obtain. Nevertheless, we found strong indication of traffic shaping. The amount of results omitted due to blocking of BitTorrent ports was material, and was sufficient to show that some P2P traffic throttling occurs. Moreover, the number of results show zero kilobytes as download speed indicate that some shaping or throttling may be practised during certain hours.

Our findings were that in standard port uploads, the average ratio of BitTorrent to TCP was 81%, and on non-standard ports it was 107%; aggregated ratios were 77% on standard ports and 103% on non-standard ports.  In downloads, we encountered similar results, providing an average BT/TCP ratio of 74% on standard ports and 118% on non-standard ports and an aggregate value of 90% on standard ports and 80% on non-standard ports.

These results indicate that throttling occurs only on standard ports, and on non-standard ports no throttling is inflicted on traffic. This may be due to either DPI or non-DPI interference.

2.2.4 Table:

Indication of low BT/TCP ratio shows DPI or throttling of TCP, differences between standard and non-standard ports show potential throttling based on ports.

3. Conclusions
Our findings are that at least 2 of the 3 major ISPs perform manipulation on traffic, and especially peer-to-peer traffic. We were able to show that deep packet inspection and P2P-caching is performed by at least one ISP and that another one probably operates some kind of preference on specific ports.

We believe that P2P-caching is the most troublesome of all activities and that it should be inspected by the regulatory authorities. Moreover, we believe that further research is required to show actual use of restricting technologies and the use of RST packets or other mechanisms. While we could not determine which technologies are being used, we believe that the use of such technologies could be used to block competition, free-speech and allow wiretapping of voice over ip conversations. The use of preferring technologies should be regarded as restriction of access and be stopped.

[Partailly based on a work in progress called: Towards a New Approach In Fair Use: Could there be a right for fair use?, forthcoming].

Judge Nancy Gernter’s Rejection of Joel Tenenbaum’s fair use claim which had published a memorandum (1-07-cv-11446NG Sony v. Tenenbaum may have been ruled differently had judge Gernter had only read the holy language. In a recent Israeli court decision (OCR 11646/08 Premier League v. John Doe), Judge Michal Agmon-Gonen ruled that the streaming of soccer games through the net constitutes as fair use under the new Israeli Copyright Act and that the identity of the person operating a website providing video streaming of sporting events shall not be disclosed to the plaintiff, the Premier League (A good summary by Adv. Yoram Lichtenstein). I believe that had the court acknowledged fair use as a right, it may have ruled differently: not only that the long and unnecessary dicta been removed, but that the understanding of what’s fair and why time-shifting or space-shifting may be a good rationale for fair use anyhow.

The Premier League’s claim was that since an anonymous person was infringing on their copyright, the court must order his Internet Service Provider to reveal his identity. While the Israeli statutes have no fixed procedure on the revealing of anonymous users, the cases brought to court relied more than anything else on the Electronic Commerce Bill, a bill drafted from 2005 and brought to the Parliament Committee of Science and Technology, which contained clause 13(b) (formerly 15) stating that “had the court been pleased that there is real danger that the contents of information uploaded to a telecommunication network or the distribution on said network, constitutes as a tort against a person or infringe his intellectual property right, it is permitted, by the request of said person, to order the Internet service provider that provided access or hosting services, to disclose to that person details it may hold to identify the distributor of the data”.

Israeli courts relied heavily on that clause when considering the requests to reveal anonymous posters (DR (Tel-Aviv) 541/07 Jacob Sabo v. Yedioth Internet, RCA (Haifa) Rami Mor v. Yedioth Internet, OCR 3854/07 Walla! Communications v. The Municipality of Ariel), where some of these claims were brought also against the website hosting the data, as Israeli law does not exempt service providers from liability like clause 230 of the CDA.

Agmon-Gonen decided to refrain from disclosing the John Doe’s details to the Premier League. When rejecting their request, Agmon Gonen first described the recent academic approaches towards copyright, citing Lawrence Lessig’s Free Culture and the Israeli Scholars Yuval Dror and Niva Elkin-Koren’s work, Agmon-Gonen builds the case to present a new approach in Copyright when she asserts Fair Use as a Right, not a protection. “As I stated, user rights sometimes confront copyrights. Therefore, acknowledging the right to participate in the cultural life, and enjoying progress, as a constitutional right to be fulfilled under fair use, will bring an adequate balance between copyright and user rights. The fact that this is a right, and not just a defense, has practical meaning. For example, I believe that you can address the court to request declaratory relief that a specific use is authorized”.

Later, Agmon-Gonen inspects and balances between the Premier League’s copyright and the general public copyright, and checks whether streaming of sporting games constitutes as fair use. She Explains that “The new act broadened fair use and left the court with consideration to inspect whether the cases brought to him constitute as fair use. When interpreting the clause and balancing between copyrights and user rights, you should take in consideration the fact that almost every one in every day life shall be affected by this balance, and keep those persons from being hurt by a narrow interpretation of the user right, and in the centre, the right for fair use. You should take precautions not to turn a whole nation to infringers (…) as the right for fair use relates to the public, which is not copyright-literate, you must ensure that what the court asserts will suit the digital-internet reality. Some uses, which are determined as legitimate by most of the users, should be determined fair use; however, this does not mean that infringing activity performed by many knowingly as infringing, but only to what is considered legitimate”.

With this explanation, Agmon-Gonen jumped over the “Such As” test in clause 19, and went to inspect the four considerations, finally explaining that as there is almost no effect on the market value, and that sports is a national recreation which should remain the the public’s domain, streaming of sporting games constitutes as fair use.

Agmon-Gonen claims that her decision was not the first asserting fair use, she quotes a Canadian case (CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, 48 (Can)), which asserted that “Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defense. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively”.

Defining Fair Use as a right, and not as a defence (or protection) has several implications under the definition of a right: against a right, now stands the Hohfeldian duty: To say that a user has a legal claim-right means that he is legally protected from interference by the copyright owner or against the copyright owner’s withholding of assistance with respect to the user’s activity, this is based on Wesley Newcomb Hohfeld’s analysis of rights, as described. Against any given rights stands the duty of the person standing against it to enforce that right; as any other right, it is never absolute, but has to be balanced against other rights (HCJ 2481/93 Joseph Dayan v. Yehuda Vilk).

Unlike a defence, which could be partial or only come in order to reject a claim, a right can allow cause of action. The Israeli Supreme Court explained in Schoken (CA 4534/02 Schoken Publishing v. Eylon (Loni) Hertzekovitz) what are the defences in a slander case, explaining that the truthfulness of a statement could only be a defence in a slander case, in that case it explained: “The defences reflect a balance point between the right to a good name and the right for freedom of expression while weighing in favour of freedom of expression, when the situations listed in these clauses exist. Therefore, the defences grouped in clause 15 aren’t made of one piece.(…) different defences protect different interests. Each defences is a different balance point, and therefore each defence shall be interpreted in regards to the lying interests”. You can re-read the Schoken case and understand the court’s error: Freedom of Expression is an Hohfeldian freedom, not a right, as there is no duty to grant it: anyone can shout and say what he says, the freedom would have been transposed into a right had there been a duty to listen (HCJ 6218/93 Dr. Shlomo Cohen v. The Bar Association)

Therefore, we can say that a defense balances between a right and a freedom, while between rights there is constitutional balance. Generating a right for fair use means that when a copyright infringement suit shall be brought against a fair user, not only would the court have to balance between such rights, but that fair use, being a constitutional right, might supersede copyright, as it is now defined both as a defense (rejecting the claim) and a right (creating a new cause of action).

Judge Agmon-Gonen’s ruling might have generated a new cause of action in Israel, existing before just under declaratory judgments. When a right is granted, a person could address the courts and seek injunction against a person preventing him from practising his right.

If we read Tenenbaum through Agmon-Gonen’s decision,we might have understood that fair use may be a delicate balance between Sony’s rights and Tenenbaum’s right for fair use. The err in Tenenbaum was that fair use was seen as a defense: the rationale for fair use was not defending Tenenbaum from liability, but allowing his use as something reasonable, fair and common.

0.
We lost the skyline. The parliament approved yesterday Meir Sheetrit’s proposal to establish a biometric database. After a few months of delay, including endless discussions in parliament trying to persuade Sheetrit not to go with the database, we lost. It didn’t matter that we brought Two Nobel Prize Laureates and many other professors to explain the dangers, Sheetrit just explained that they don’t know a thing and that they do not represent the best minds in the field. It doesn’t matter that the Israeli census leaked or that the company who is meant to issue the biometric ID cards is the one who was in charge of the census: the Parliament Members just don’t get it.

CC-BY-SA Tomer Lichtash

1.
A biometric database is not something to be taken lightly. While Sheetrit claims that other states have a biometric database, we know he lied. A research by Karine Barzilai-Nahon showed that a biometric database is something unprecedented in the entire world, at least if we think about biometric databases that are used with census data. Even that controversial Dutch database is not as extensive as the Israeli one. The UK ID initiative was not as comprehensive as ours, and yet was not as popular. When we try to understand where we went wrong, I think that it was the international aspect.

2.
We blogged in Hebrew, twitted in Hebrew, interviewed in Hebrew and lobbied in Hebrew. The holy language was not as holy when it involved legislation. We can try the International human rights courts, we can try to petition to Israel’s supreme court, but nothing is as fine as international pressure. It didn’t even hit the international press, only our local Jewish Ghetto.

3.
Now we have two years of an experiment. Let’s see how it goes.