1. PRIVACY AND COPYRIGHT
ENFORCEMENT
Eddan Katz
International Affairs Director, Electronic Frontier Foundation
31st International Conference of Data Protection Authorities and
Privacy Commissioners
Madrid, Spain
November 4, 2009
Wednesday, December 29, 2010 1

2. Introduction
Thank you for the conference organizers to include topic
Thank you for staying so late.
Cut through the thick layers of euphemism
don’t want to turn the Internet into a big broadcast channel
95% of traffic is piracy
we don’t have money to sue 8 million people
turn fundamental rights upside down in order to make it safe for the
entertainment industry
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3. Justifications for Copyright
Incentives for creation and dissemination of works
US Constitution: To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.
Statute of Anne. (1710) An Act for the Encouragement of Learning, by Vesting the
Copies of Printed Books in the Authors or Purchasers of such Copies, during the
Times therein mentioned.
Access to Knowledge - intersection of innovation and development
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4. What is different now?
copyright traditionally didn’t include the user. it was general public dissemination.
in the digital age, there is a direct connection with a consumer
DRM & Kindle
copyright enforcement into private spaces & throughout communications networks
right to read anonymously
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5. Intellectual Privacy
first amendment - democratic self-governance
freedom to think as you will and to speak as you think (Brandeis, Whitney v. CA)
closer to mind - stream of consciousness
the connections between thoughts. fleeting thoughts - done on a search engine.
Wednesday, December 29, 2010 5

6. Pervasively Distributed
Copyright Enforcement
justification for its pervasive reach in a permanent state of crisis.
set of coordinated processes for authorizing flows of information
invades, disrupts, and casually rearranges the boundaries of personal
spaces and of the intellectual and cultural activities played out within those spaces.
perceive constraint and standardization as natural attributes of the information
environment control over intellectual consumption and communication away from
individuals and independent technology vendors and toward purveyors of copyrighted
entertainment goods.
darknet digital samizdat actually reinforces the discipline and standardization of the
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7. Ongoing Norm-Setting
ISP cases.
Three Strikes Laws
Telecom Package
Google Book Search Settlement
Anti-Counterfeiting Trade Agreement
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8. Promusicae v. Telefonica
ruling = not a requirement for ISPs to hand over customer
data in civil proceedings
it should be taken to mean that there is no mandatory
disclosure and that privacy precedes copyright
got the entertainment companies to push for legislation
Wednesday, December 29, 2010 8

9. College van Burgemeester v.
Rijkeboer
College van burgemeester en wethouders van Rotterdam v M. E. E. Rijkeboer [Case
C-553/07, 22 December 2008]. In trying to balance data retention and data
protection obligations, the Court said that "[t]he right of a data subject to
manipulate his personal data, and to request their rectification, erasure and blocking,
is one of the essential aspects of Directive 95/46. Recitals 38 and 40 in the preamble
to the directive illustrate that view, not only because they confirm the importance of
the right of access but also because of the link that right constitutes between the
information which the data subject has and the processing of that
information. Indeed, for the rights conferred in Article 12 to be practicable, it is
necessary to rely on a number of fundamental principles since, otherwise, the
safeguards referred to in the article would be rendered ineffective. Recital 41 in the
preamble to the directive expresses it with great clarity, stating that 'any person
must be able to exercise the right of access to data relating to him which are being
processed, in order to verify in particular the accuracy of the data and the lawfulness
of the processing'. [Par. 28]
Wednesday, December 29, 2010 9

10. Google Book Search
Settlement
Protection Against Disclosure
not disclose to govt. or third party without warrant
notify user when transferring to others
not provide books purchased to credit card company
Limited Tracking
searching and preview doesn’t require registration
not connect Google Book Search with other Google services
allow anonymous search
purge logging information
Wednesday, December 29, 2010 10

11. Google Book Search, cont’d.
User Control
allow control of other computers
bookshelves
Transparency and Enforceability
robust, easy to read privacy provisions
reader privacy commitment has to be legally enforceable.
watermarks does not contain identifying information
publish number of requests
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12. Telecom Package
HADOPI-ism
Amendment 138 - Prior Ruling.
History - 2nd Reading - copyright enforcement.
Bono Report Amendment
vote for 138 twice.
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13. Amendment 138
Amending Recital 3a adopted in 2nd reading:
Recognising that the Internet is essential for education and for the exercise of freedom
of expression and access to information, any restriction imposed on the access and/or
use of the Internet should be in accordance with the general principles of Community
law, notably in accordance with the European Convention of Human Rights and the
Charter of Fundamental Rights of the European Union. In particular, end-users’ access
to electronic communications services should not be suspended without prior ruling by
the judicial authorities without prejudice to the competence of a Member State to
determine in line with its own constitutional order and with fundamental rights
appropriate procedural safeguards assuring due process.
Wednesday, December 29, 2010 13

14. EDPS Opinion - Telecom
Package
[EDPS Comments on Some Issue in the Review of Directive 2002/22/EC (Universal Service) (16 Feb.
2009): http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/Consultation/Comments/
2009/09-02-16_Comments_ePrivacy_EN.pdf] In Par. 15, the EDPS makes clear "that it would not be allowed for
Internet Service Providers to cut subscribers’ Internet connections on the basis of mere alleged copyright
infringements made by private sector organizations." The EDPS also made clear that he "considers that
Amendment 138 and Article 32a of the Universal Service Directive provide for a balanced wording by
emphasizing fundamental rights. The need to safeguard such rights is particularly important in the context of
these Directives which, as pointed out above, lay the grounds for the creation of "three strikes approach
mechanisms" entailing broad, systematic surveillance of individuals’ use of the Internet." [Par. 21]
The EDPS lays out the Plan B fundamental rights protections that could serve as an authoritative guide to the
priorities of fundamental rights more specifically in the rewording, describing that "[t]he combination of Articles
21.4a and 33.2a and Recitals 12c, 14b and 25 of the Universal Service Directive probably ensure that any
cooperation mechanism has to (1) respect the protection of privacy and personal data of individuals; (2) avoid
the systematic monitoring of Internet usage and (3) respect due process, meaning that it is up to authorities, by
applying due process, not to copyright holders or Internet Service Providers, to determine whether content is
lawful or not." He concludes: "However, it would have been preferable if Amendment 138 and Article 32a had
been accepted by the Council insofar as they would have strengthened these safeguards." [Par. 22]
Wednesday, December 29, 2010 14

15. Three Strikes Laws
Vigilante justice - Internet Access Termination
France, South Korea, Italy, New Zealand, UK
Graduated Response - riposte graduee
military strategy (invented Mc Namara during the Cold War to fight Russian nuke menace)
educational notice
how to secure your wireless connection if not you.
Temporary suspension of account - Digital Guillotine. Digital Ostracism
not general scanning for other materials
facing data protection problems
Wednesday, December 29, 2010 15

16. ACTA
Internet Provisions being negotiated today
Increased ISP liability.
introduce duty to monitor/filter
must implement a notice and takedown regime
increased standard for criminal copyright
change the definition of piracy and counterfeiting
anti-circumvention provisions
there’s an exception for private data. but there are no tools.
Wednesday, December 29, 2010 16

17. The Priority of Privacy
under attack by automated systems for copyright
enforcement
about the systematic reorientation of our expectations of
privacy and the infrastructure of dissemination
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