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.

Israeli Bloggers Raviv Shechter, Oded Kramer and Shlomo Man (known as Jaggermeister) recieved a lawsuit for defamation by ‘One‘, an Israeli sport portal which it’s manager is said to have relations to criminals and covers, amongst other things, gossip around Soccer and other sports. The Website, which is owned partialy by Israel’s most popular newspaper, Yedioth Ahronot, is suing  the three for 2,000,000 ILS (around 600,000 US$), claiming that the three damaged One’s reputation by calling it “The Party and Gossip Site” and claiming that the website is run like a train-station, when employees are replaced frequently and the website avoids basic journalist ethics.

The story began around March, when Tapuz, the website which hosted the blog then, received a letter requesting to reveal the identiy of JaggerMeister, an anonymous blogger who wrote the blog for the last year after Shechter and Kramer opened it and managed the blog in the first few months. Tapuz blocked and edited some of the content (which actually may inflict liability on it) pursuant to a letter from Shay Elias, One’s attorney. Following the removal, Jaggermeister decided to stop writing the blog and transferred it to Themis, which dedided to move the blog to WordPress.com since it has stricter protection for user generated content.

Last week, One decided to file a lawsuit against the three, when it is not certain how it got to Jaggermeister’s identity and whether their aassumption that Shlomo Man is Jaggermeister is indeed true. Another group of bloggers critical on One closed their blog in fear of legal actions, and Themis, Jaggermeister’s replacement, claims to write only from internet cafes and with a spoofed MAC address.

The major concern here is from One’s parent company’s conduct: Yedioth, a major corporation in Israel had merged with One earlier last year and now has some control over it. Yedioth has its own integrity to keep as a newspaper, and suing critics, even critics who use a harsh language, is bad for business. Yedioth will have to do something about One before it is too late.

This Tuesday I’ll be going to the Parliament to discuss Israel Hasson‘s “Talkback” bill*; this draft is a quick evolution of his last anti-anonymity bill which was rejected. If passed, the bill will state that website operators with over than 50,000 pageviews per day are directly liable for slander and privacy breaches performed on their website by users, anonymous or not. This bill has material legal issues involving privacy, private property and freedom of expression, however this is not the time to discuss them. It is, however, quite important to know what might have happened had the bill passed into law.

* Israel calls user submitted comments Talkbacks for some reason, without it being used anywhere else in the world and without using “Tguvut”, the Hebrew equivalent

Had Hason’s proposal been in power, Tapuz, directly in competition with Yedioth, would have been liable to all that was written in the blog and would have closed it down immediately, making all criticism unavailable as it may violate some 3rd party’s good  name. Also, Tapuz would have been required to operate a team of lawyers inspecting all user generated content. Moreover, Bloggers wouldn’t have been allowed to remain anonymous and therefore no one would have heard this criticism about One, which was casted by the shadow of anonymity which Jaggermeister thought could protect him from unethical legal actions against him to silence him.

Where anonymous posting is removed, anonymous voting will be next, then will come voting at all.

Does this article on Slashdot mark an end to my worries? According to a new bill submitted by Chris Smith, U.S Based corporations would be subjected to criminal liability should they censor Internet content and limit freedom of speech (arstechnica article). The new bill requires U.S Corporations to adhere to a new kind of policy, both in regards to Privacy Policies and to Content-Filtering and requires search engines to submit to the U.S Government their “black lists” per country (which, as other critics may say, limits the Search Engines from free business).

However, during the last few months, I’ve been heading the blogger coalition against censorship, trying to block Amnon Cohen‘s prop 892 (also, also). However, this bill may not mean an end to my worries, the proposed bill is to censor adult content: gambling, violence and nudity, these three are absent from the U.S definition of censorship; as their interest in Internet Freedom is limited not to free speech, but to democratic speech.
Img CC-BY-SA-NC MateOptMd

Whilst according to sec 203 of the bill, search engines cannot limit keywords (or have to explain why such keywords were blocked), section 204 only requests hosting services (defined also as: a company which “makes such data available via the Internet.”, i.e Cisco and such) and to provide URLs which were blocked from availability; the only requirement is that Israel shall be deemed as an Internet Restricting Country according to the bill, which requires the U.S President to declare it as such.

Moreover, once the U.S President decides to declare Israel as a Internet Restricting Country, U.S Corporations may not assist our service providers implementing the “Big Brother” act (see more); This means that most of our problems, as nationals seeking internet freedom, are dependent on such a statement by the Honorable Prez. However, since there is quite a wide discretion for his implementation of the act, we are in deep shit:

A foreign country shall be designated as an Internet-restricting country if the President determines that the government of the country is directly or indirectly responsible for a systematic pattern of substantial restrictions on Internet freedom during the preceding 1-year period.

This means that as long as the U.S needs Israel to monitor Middle East “Democracy”, we will be the only Middle Eastern Country with both Internet Access and Internet Restriction…

[Originally published in Hebrew for Ma'ariv Internet.]

0.
“Until the “Internet age”, paedophiles had no public refuge. They were hidden in dark allies, preying for the innocent and lurking on their victims. until the Internet Age, pornographic material that didn’t physically harm minors was not considered as an offence and its possession was not a felon.” (Jonathan Klinger, 26.02.2006)

1.
During the last weeks Israel was swept away by a wave of criminal charges and arrests against people who are accused in possession of child pornography. No more single cases like Vladimir Mill or  Yaron Pollak who were found guilty for possession of child pornography obtained “via the internet” in a discrete manner; The Israeli media, headed by Channel 10 news, gently explain to these paedophiles that they should refrain from their actions if they don’t want to face criminal charges . (and see also Gal Mor’s criticism)

2.
In parallel, the Israeli police continues to hunt child pornography downloaders with the assistance of international organisations, when it isn’t clear as to what is the rationale for severe punishment against those downloaders in a democratic state. As the suspects who were arrested under Channel 10′s “To Catch a Predator” like initiative, actually attempted to seduce alleged children and reached their doorstep, the passive paedophiles, those who were only interested in watching the content made by others and do not approve anything but possession of obscene materials, were punished in a  severer manner than those who actually practised child molestation.

3.
While ‘passive paedophiles’ such as Vladimir Mill were sentenced to five and a half months imprisonment, Aharon Ofir was sentenced to sentenced to ten months and Sergey Levenpos was sentenced to a year and a half in prison, a ‘standard’ molestation case is usually less sever in punishment. For example, a father who raped his twelve year old daughter was sentenced to a year and three months of imprisonment , less than Levenpos; A father who fondled his seven year old daughter in her intimate areas was sentenced to probational imprisonment only and another father was sentenced to only four years after raping his step-daughter.

4.
The Israeli law enforcement system signals the severity of acts by punishment. The state of Israel, using massive enforcement against the possession of child pornography signals that actual possession is almost as sever as child molestation. The signalling would have been great if it were to equal looking crimes. While rape and child molestation under sever circumstances is a crime punishable by up to twenty years in prison, possession or publication of obscenity is punishable only up to five years. The small difference? While four years imprisonment for possession of obscenity is 80% of the maximum punishment, it is only 20% of the punishment in child molestation. Meaning that the law enforcement authorities in Israel signal that the rapist is less of a criminal than the obscenity publisher.

5.
The state of Israel is a state governed by the rule of law. Establishing the state was meant to keep the security of its citizens, therefore it is best that they keep the law; however, The law enforcement authorities have an easier way in trapping ‘passive paedophiles’ on the internet using technological means than to go out and find those parents who molest their children and make their life a living hell every day.

Shachar Shemesh in an excellent post explains his approach against smoking prohibition in Bars, and claims, briefly, that::

A Business should point out in a clear manner which areas are smoke-free and which aren’t.

A Business that exposes clients sitting in an area defined  ‘smoke free’ to cigarette smoke, will be fined.

*I’m one of the great believers in a free market; however in my humble opinion Shemesh succeeds, but not enough. I Believe that If enough people would state that they aren’t interested in smoking, places who declare that they oppose smoking would receive the nonsmoking crowd, no? The idea is to oblige the business to state their policy unless they temper with basic human rights (Basic Human Rights – i.e. a person’s liberty, even if the same liberty inflicts another’s liberty, i.e – smoking) Therefore, There is no difference between mandating a business to declare that it does not forbid smoking (including the costs and sanctions therein) and mandating a citizen to declare that he wishes to browse adult websites (including the costs and sanctions therein); Therefore, in the same manner i want that a person which is interested in filtered content over the internet will declare in, i wish for a person who wishes for filtered air. (See default rules)

In theory, it is quite problematic. In practice, i think that if there is a market for filtered air, just like  filtered internet, than the internet service providers and the restaurant owners should try to start experimenting in the free market. (see also)
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* img cc-by -sa

Technorati Tags: Smonking, עישון

(Posted also in hebrew)

During the last days I’ve been passing a process of applying to one of the Universities in London (when All will be final there will be more details) in order to start my Ph.D. Amongst other things, my greatest fear is to leave Tel-Aviv; The idea of living elsewhere, though may be more cultural, and though i really think of it, is still quite problematic for me.

I didn’t have the will power to get out of bed yesterday, so i read all so many things. David Peretz’s amazing post about how he enjoyed the Delta Blues was just what i needed. Three minutes and All is done, the Tel-Aviv Blues.

I wanted to edit a clip, but i failed.

Some things just don’t make sense, it’s not irony, it’s not fate, it’s just something senseless you face every day. SMS was one of the greatest inventions ever, but you can never know what you’re sent. If you get SMSed in the middle of the day with a casual “Hi” from one of your exs, you don’t know what to expect, right?

If you get it in the middle of the night, you usually do know, right? i know i do.

Communication is one of our basic needs, we need it for warmth, we need to know what’s going on with our friends. But communication is the evil that should not be also.

I left my phone open during Saturday’s fundraiser for the Dolev Foundation. Getting a message this way is usually something terrible just enough to kill the messenger. I was notified that one of my friend’s mother just died. and it was not over SMS, but over a message said to me by the person which answered the phone.

I don’t know why, but in the Information age we do have this information problem, i do not want to be dumped by SMS, nor on the phone or by a Dear John letter, i want to be dumped in a civil manner, face to face. the same thing for knowing someone died, though the last two were on the phone. It’s surprising that in this day we still need to be near someone that tells us the message, doesn’t it?

For a week now, i have been unable to sleep, eat regularly or go out to pubs. Two problems with my Tinnitus is that i am not to be subjected to hard noise and that the steroids I’m taking are depriving me from Alcohol. Therefore, killing two birds with one stone: No fun for me. If you add up the breakup i’ve faced a week ago, I am one sick and lonely puppy.

Now it’s Friday, and after a night with 3 hours and 45 minutes of sleep (the time between the last blog post and the viewing of the new southpark episode) i woke up and went to the IDC to pick up my Student’s papers to check (I am teaching business law for MBA Students). I hoped it might take me a portion of the time so i can pass the night. It took me an hour.

The other thing is that whilst i cannot go to pubs, i think that the main option to maintain means of reproduction now has left. Add the increased inhibitions due to lack of Alcohol, and you end up with one lonely me again.

Good news, though, may come soon as i had got a mail (real mail) today bearing good messages. I might be eligible for 300,000 Israeli Shequels… (will update soon, promise).

Technorati Tags: Life, Personal, Tel-Aviv, Israel, Tinnitus, Lonley

So i can rant freely about the fact that i don’t get it. I just don’t get why she left me, and more than that, i don’t get why she left me for him??? I mean, would he been worth something, then maybe, but… i don’t know, he dumped her in the first place and he did it by SMS. what can she expect now?

The thing is that i know that i’ll never get back to her, not even if she crawls, and it’s not my dignity, it’s another thing, it’s the fact that i do feel humiliated now because of her. she saw me as number 2, i’ll never be able to recoup about it. Oh well, i know it will go away, it goes away quite fast nowadays. even if it doesn’t, i know that it won’t matter, i can still sit and whine or i can just be a total arse and forget about her.

Any offers, anyone? as i am now in the meat market again.

The Jerusalem Gay Parade turned to a Gay festival due to the warnings of the police against a bomb. It seems that no matter what we say, the security rationale always has its way in Israel. The Gay parade was a parade for human rights, more than ever. It was a political parade, where the left (and extreme left) were unseparated from gay rights. The Gaza bombings were there more than any other time.

Politics played a major role here, and my former party, Merertz, send their parliament members. All but the chair. Yossi Beilin was missing in action. not present in the demonstration and not protesting for what his party believes in so much. I met all of them, and i do believe that though the party had changed (lately they offered a draconic statute against file sharing), the people are still the same.

Highlights:

When we got to the rally we met Hanan Cohen, an israeli blogger and activist, who took photos of all the bloggers holding a site calling from freedom of expression. Dana and I stood in front of the camera and did our best in looking good and posing for it. I think that (besides last week in the rabin rally) this was one of the first times that Dana and i went in public to a political rally. and i think she liked it somewhat. she told me that i might be having an activist girlfriend. i told her i do not care, or rather, i do care and prefer a girlfriend that does care.

“Hadag Nachash”, one of Israel’s most favored and most political bands performed and called for peace, legalisation of cannabis and human rights, as usual. I do think that it was important to see all of them there to show support in the gay community and the struggle.

I met so many people i haven’t seen in ages. these political rallies are more for the casual meetings and less for the protest i think. Ron, an old friend of mine whom i haven’t seen for over a year, and is my only friend from the military service was there. so were other people i have missed.

But i do think that the political activism there was important. to explain that gay rights are the first real fight which is not sectorial. not only for gays, but for everyone. while in israel every party is sectorial and fights for their interests, the gay community fights for the greater good – the right to love.