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Court Of Human Rights: Convictions For File-Sharing Violate Human Rights

95

Civil Liberties

Civil Liberties

The European Court of Human Rights has declared that the copyright monopoly stands in direct conflict with fundamental Human Rights, as defined in the European Union and elsewhere. This means that as of today, nobody sharing culture in the EU may be convicted just for breaking the copyright monopoly law; the bar for convicting was raised considerably. This can be expected to have far-reaching implications, not just judicially, but in confirming that the copyright monopoly stands at odds with human rights.

The European Court of Human Rights in Strasbourg is no dismissible small player. It is the court that oversees the European Convention on Human Rights (ECHR), which is part of the Constitution of the European Union and of most European states. When this court makes a decision, that decision gets constitutional status in all of Europe (except for Belarus, which is not a signatory).

Therefore, the copyright monopoly as such – which is ordinary law in European states – was just defined as taking a back seat to the constitutional right to share and seek culture and knowledge, as defined in the European Convention on Human Rights, article 10:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” (ECHR 10)

We have long claimed that the copyright monopoly stands in direct conflict with civil liberties (one of my most well-known keynotes, Copyright regime vs. civil liberties, even highlights this in the title). While the judiciary is slow to react to new phenomena, and issues like this percolate very slowly to the top courts where verdicts make a real difference, I’m very happy to see that the issue did indeed get to the relevant court at last, and that the Court made the only reasonable decision.

However, this verdict doesn’t mean that people sharing culture can never be convicted. Exceptions can be made to Human Rights according to a well-defined three-step test: the verdict must be necessary in a democratic society, prescribed by law (the copyright monopoly already is), and pursuing a legitimate aim (this can be discussed at length).

This means that people can no longer get convicted for violating the copyright monopoly alone. The court just declared it illegal for any court in Europe to convict somebody for breaking the copyright monopoly law when sharing culture, only on the merits of breaking the law. A court that tries somebody for violating the copyright monopoly must now also show that a conviction is necessary to defend democracy itself in order to convict. This is a considerably higher bar to meet.

I am happy to see that people persecuted for sharing culture and knowledge all over Europe got this quite strong judicial decision in their back. I’d love to see the copyright industry lobby try to make a case why it is necessary to defend democracy to convict a single mother of three who shared pop songs.

The summary in English of the French verdict is well worth reading (with my highlights):

For the first time in a judgment on the merits, the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. Such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention. This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.

It is, in other words, no longer sufficient to justify a sanction or any other judicial order restricting one’s artistic or journalistic freedom of expression on the basis that a copyright law provision has been infringed. Neither is it sufficient to consider that the unauthorised use, reproduction or public communication of a work cannot rely on one of the narrowly interpreted exceptions in the copyright law itself, including the application of the so-called three-step test [...]

Via Glyn Moody.

UPDATE 1: Be careful interpreting this verdict as a free-for-all. It’s not. What it says is that violating the copyright monopoly laws is not enough for a conviction, and that the copyright monopoly laws collide with Human Rights. Those are two huge wins in themselves. But it doesn’t mean nobody will ever get convicted for sharing culture again – just that courts have to justify why a conviction is also “necessary in a democratic society”, in addition to having met the normal and previous bar for a conviction.

It will take years to flesh out precedents with this wide a margin for interpretation, and the specific action on trial as well as its intent will be under close scrutiny for its value to democracy as such – record label lawyers will justify a conviction with circular reasoning (“upholding the law is necessary in a democracy, so the prerequisites are already met”) and human rights lawyers will probably strike down any conviction (“human rights trump all”). So while this verdict gave two important victories, it’s not the end of the conflict nor the end of the war.

UPDATE 2: Some people have pointed at the end verdict and said it’s insane and asked how it’s good news. The overall verdict was about photographs taken at a fashion show and later published commercially, where the ECHR found that that human rights had not been violated in handing out insane damages. But the end decision isn’t the interesting thing with this verdict – it’s the two subdecisions noted above before the court arrived at an end verdict:

  • The copyright monopoly does come at odds with the human right to seek and share knowledge and culture;
  • In order to justify any verdict based on the copyright monopoly laws, the court must therefore also show that the verdict is “necessary in a democratic society”.

In this case, the ECHR found that the fashion show and the publication were thoroughly commercial, and didn’t have an important democratic function worth protecting over the copyright monopoly. In essence, the court is saying that political speech and political expression can trump the copyright monopoly – for instance, if you were seeding a documentary on human rights abuses with the intent of bringing about political change, that action will very likely be legal after this verdict, which it wasn’t before.

So the verdict – or rather, two subdecisions leading up to the verdict – opens up a huge gray area of law which was previously pitch black, stating clear examples of where the freedom of expression would take precedence over the copyright monopoly (even if they arrive at the end conclusion in this particular case that it doesn’t meet that bar).

A few people have observed that the court seems to draw the line at commercial vs. noncommercial, implying that all file-sharing would always be in the clear, but I wouldn’t bet on that interpretation (although it would certainly be a great outcome).

The real interesting cases come when you’re seeding ordinary commercial movies in a political context with a political intent. That one’s a coin toss for now.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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95

  1. 1
    Per "wertigon" Ekström

    It’s very nice to see this.

    This has gigantic ramifications, but the biggest is that a site like TPB now is legal again.

    Since the TPB got sentenced for “assisting willful infringement” and it’s no longer a crime doing hobby filesharing, this is very big indeed.

    Now the only thing left is to define when infringement is decided to become harmful or not. But I sincerely hope this is the first step towards a digital “all-mans-right”…

    • 1.1
      Klas

      Nope.

      The legality hasn’t changed, just the ability to prosecute said crime.

      Jaywalking is illegal and not prosecutable, for instance.

      Still, gigantic ramifications.

      • 1.1.1
        Rick Dash

        You obviously don’t have a clue about what this means and you are american.

        • Hotdook

          Hmm what gave him away? The aknowledgement of the concept of private property?

        • Dave Bean

          What an ignorant and invective comment!

        • harveyed

          Physical property is scarce – costs money to produce and transport. Data files are not. Intellectual Property rights are just a bad excuse for making money on old work.

        • border line

          Rick Dash, if you are european, i feel ashamed. You “obviously” have a cortex below zero. You maybe eligible for pardon if you are an under-aged teenager.

    • 1.2
      Alojz Janiga

      Pravda o dodržování lidských práv v Evropské unii. 19.3.2013

      Adresát: Evropská unie, Evropský parlament, Rada Evropy.

      Vážení.
      Obracím se na Vás jako “občan” České republiky, která je členem Evropské unie.

      Jednou ze základních podmínek které musí “uchazeč” pro přijetí do Evropské unie splňovat je “Dodržování lidských práv” a “Česká republika Lidská práva hrubě porušuje”.
      Porušuje nejen “Listinu základních práv a svobod” která je součásti “Ústavy” České republiky, ale nedodržuje ani “Listinu základních práv” Evropské unie.

      Česká republika je “Země kde nejsou kromě jiného dodržována práva malých děti, jsou zde hrubě porušována práva zdravotně postižených a seniorů, nejsou vytvářeny podmínky pro zaměstnávání občanů, obyčejní občané České republiky se nemůžou dovolat svých práv nejen kvůli nedokonalým zákonům této země, ale i kvůli nezájmu Státních úřadů a Institucí řešit jejich problémy a kvůli ohromné korupci na těchto Úřadech”.

      Osobně s tím mám “mnoholeté zkušenosti” které jsem zveřejnil Internetových web-stránkách: http://aginaj.sweb.cz// nebo http://rozhodny.blogspot.com//

      Tyto moje “zkušenosti” nejsou jenom “pouhé malichernosti” související s pobytem v “Sociálním zařízení”. Vypovídají o “nezájmu a aroganci úředníků a politiků” v České republice řešit “problémy zdravotně postižených a starých lidí kteří jsou odkázaní na cizí pomoc” a kteří jsou “vydání svévolnému a bezohlednému jednání lidem bez jakéhokoli sociálního cítění”.

      O pomoc jsem mimo jiných žádal i tzv. “Evropského komisaře pro lidská práva”, který se “vymlouval že nemá pravomoc na to aby mohl zasáhnout”.

      Proto si myslím že tzv.”Evropská unie rozhodně nepatří mezi Společenství kde se dodržují Lidská práva”. Tyto “Lidská Práva” jsou v Evropské unii pouhým Cárem papíru stejně jako v České republice”.

      Alojz Janiga
      Masarykovo náměstí 37
      Heřmanův Městec p.s.č. 53803,
      Česká republika

  2. 2
    anon45762

    I’m missing one thing. Does this include civil lawsuits about money or does this only pertain criminal prosecution where jail/access to internet is at stake?

  3. 3

    I think it’s totally wrong to mention the EU within this text; it should have been exclusively “Europe” or “allmost all European states”. There is no connection whatsoever between the ECHR and the EU. This shouldn’t be attributed to the EU; I have so many issues for which I dislike the EU (as it is now) and so few for which I dislike the Council of Europe…

  4. 4
    F_F

    Does this mean the Piratebay Block in Denmark will be lifted possibly?

    • 4.1

      Well, not automatically. Courts never take initiatives of their own. Somebody has to challenge it and refer to this verdict.

      Even then, Denmark is very backwards when it comes to information policy, unfortunately. At the end of the day, it comes down to the perspectives of the individual people writing the verdict.

      CHeers,
      Rick

  5. 5
    Hampy

    Could this have any bearing in relation to latest proposals to introduce an Internet tax or look to charge a TV licence to any computer user in Sweden?

    • 5.1

      No… no, not really. It’s not taking part of or sharing culture and knowledge as such which is impaired by that construction, merely ownership of a computer (although it’s highly doubtful if that interpretation would stand in court). The thing protected by ECHR is not ownership of a specific device, but the action of sharing and partaking of culture and knowledge.

      Disclaimer: IANAL.

      Cheers,
      Rick

  6. 6
    Bogwitch

    in the light of this decision I believe the UK Pirate Party should reconsider its decision to take down the proxy to TPB and reinstate it forthwith.

    I am concerned however that the UK government, who are already discussing opt-out for certain aspects of ECHR legislation, will view this as just another area to opt-out from, particularly with the copyright lobby breathing down their necks.

  7. 7
    Karl Johnson

    Does this mean that streaming music while playing video games is no longer “illegal?”.
    Like, if I stream music while playing a game, will my channel be closed because of copy-right laws or is that changed now?

    • 7.1
      Anyone

      no, because that has nothing to do with courts
      that’s simply an agreement between multiple corporations to censor you for whatever reason they like

      sadly, that remains legal

    • 7.2
      Martijn Dekker

      It may mean that a group of like-minded people could set up their own website that allows this though, and they might be legally protected by this verdict. But, it still seems like it could go either way.

  8. [...] Convictions For File-Sharing Violate Human Rights Posted on 2013/02/07 by NotSoCrazyNews Original post on falkvinge.net →   Comments on reddit.com [...]

  9. [...] be set and for everyone, including Judges and other officials to gauge the new regulations. [falkvinge] Share [...]

  10. [...] με μετάφραση στα ελληνικά από το INFOPOLICY: «Court Of Human Rights: Convictions For File-Sharing Violate Human Rights», CIVIL LIBERTIES, by Rick [...]

  11. 8
    Anonymous

    i wonder if Sweden were worried that this verdict would come out and is why they have managed to drum up the extra charges against Svartholm, a member of TPB 4, for hacking a tax company web site or something and also for aiding Wikileaks? it appears that Sweden is determined to aid and abet the USA entertainment industries are prosecute their own citizens, rather than defend them. i am so curious as to what the old is that the US seems to have over just about every other country in the entire world, so much so that citizens of these countries are put up as bear bait!

  12. 9
    blip

    great symbolic victory, but from a practical point of view, this only means the courts will be required to add some verbiage and they’re back to business as usual.

  13. 10
    Schonke

    Reading the judgement as well as the cited analysis on the ECHR blog it’s quite clear that the court did not find that France had violated article 10 and that they had indeed made the necessary balancing exercise required with regards to ECHR. It also did not find that the heavy damages awarded to the plaintiffs to be too high.

  14. 11
    Danni

    What immediately comes to my mind are cases where copyright law has been used to silence critics, particularly the case where Tomas Gunnarsson (Genusfotografen) was forced to censor his blog and pay a hefty sum, after having critiqued the gender perspective of a series of photographs in a magazine (reproducing pictures when criticizing them is permitted in print media, according to Swedish law, but explicitly forbidden in digital media).

  15. 12
    Benedikt Örn

    FREE BRADLEY MANNING AND JEREMY HAMMOND.
    RIGHT.
    FUCKING.
    NOW!

  16. 13
    steelneck

    I post this both in Swedish and English because this is important.

    English.
    Now you got some homework to do Rick, the earlier conviction did _not_ get knocked over. The court did _not_ judge that article 10 was relevant in this case.

    What it was about: A fashion photographer was taking pictures on a fashion show in Paris (like many other) and the pictures was published in a magazine. The photographer and two other behind the magazine was sued by the fashion house. In the last court before ECHR they got convicted to pay damages, all together amounting to 255.000 euro. ECHR took up the case on the base of article 10 and ruled that the french court did nothing wrong, that the ruling is _not_ in violation with article 10. Furthermore ECHR did not think that the damages was disproportional. So, you have nothing to be happy about, on the contrary. The ruling follows the usual mo. how a monopoly on making works public gets confused with property.

    The only thing that may be interpreted in a positive way, until one thinks deeper, is that they _may_ have got another ruling if the pictures had some expression and content contributing to an issue of public debate or a debate of general interest for society. This means that courts from now on shall judge about what is good journalism and not in a context of copyright. This is downright scary!

    Swedish.
    Nu har du en hemläxa att göra Rick, dem tidigare domen fastställdes. Domstolen ansåg _inte_ att ECHR §10 var relevant i fallet.

    Vad detta handlar om: En modefotograf var på en modemässa i Paris och tog bilder (som så många andra), bilderna publicerades i ett magazin. Fotografen och två andra som driver magazinet blev stämda av modehuset, i sista instans före ECHR blev de fällda att betala ett astronomiskt skadestånd på sammanlagt 255.000 euro! ECHR tog upp fallet och bedömde att domen _inte_ står i strid med artikel 10, domen kvarstår alltså. Dessutom ansåg ECHR att skadeståndet _inte_ var oproportionerligt. Du har inget att vara lycklig över Rick, tvärt om. Hela domen är den vanliga visan om hur monopol på tillgängliggörande av verk sammanblandas med egendom.

    Det enda som möjligen kan tolkas positivt med domen är att de möjligen hade gått fria _om_ bilderna hade handlat om något med ett större publikt intresse och varit ett bidrag i en debatt av intresse för samhället. Detta innebär alltså att domdtolar numer skall avgöra vad som är god journalistik och inte i en kontext av upphovsrätt. Detta är fullkomligt fruktansvärt.

    • 13.1

      Hi Steelneck,

      I don’t know why you’re asserting strawmen I didn’t claim. That’s very unlike you.

      I made two specific claims from the verdict: the court determined that the copyright monopoly is at odds with ECHR 10, and that it is not sufficient to have obviously broken the copyright monopoly laws to make any kind of judicial decision (conviction, injunction, et cetera).

      I did not go into the details of the rest of the case. They were far from as interesting and eventful as the two observations from the verdict I referred to here.

      Cheers,
      Rick

      • 13.1.1
        steelneck

        Well they tried to get off the hook by claming the french ruling violated article 10 of the ECHR. The ECHR court ruled that the french court did _not_ violate ECHR, they lost the case. The ECHR court just did make a judicial decision based of ECHR 10 in a copyright case. They just did what you say they ruled that they cannot do.

        Another sad part is that this should not have been a case case about copyrigth at all. Ask your self, what work did they copy and publish? Copyright do not extend to clothes just as it do not cover other industrial goods, there are other laws covering that.

        • Pragmatiker

          Actually, copyright law DOES extend to clothes and other industrial good where the design is copyrighted. There is an ongoing dispute between the Danish and British governments over the production of replica Arne Jacobsen chairs being produced in the UK and sold on the european market because British copyright law on product design expires decades before it does in denmark.
          In this case, however, it would be best to compare it to filming a movie in the theater, then selling it on. The fashion house complained that the photographer made a profit photographing their intellectual property adn thus violated copyright law. In this way it is actually a worse case than normal piracy as there was profit, not ideology involved.
          As for the specifics, I am still looking for a link to the ruling so I cannot say exactly what was ruled, but from what I can tell, this will at least throw a wrench in the works of the anti-market crusade the record and movie industries are on.

        • steelneck

          @Pragmatiker: No, that is the usual mixup between a monopoly and tangible goods. If the photographer and the magazine had published the drawings for the clothes, then it would have been a breach of the copyright monopoly.

          It is like someone had published a photograph of the chair you are referring to. Or if i take a photograph out on the street and some architecht claim copyright on a building that is visible in the picture, a sane court would dismiss that case since i did not publish the architectual plans, or built a copy of the building for that matter. If that was not the case, no one could publish pictures taken on a city steet since most buildings originally are drawn by a an architecht.

          In both these cases, clothes and a chair, it could be about “industrial designs” (mönsteskydd in Swedish) that is another set of legislation, but in that case you actually have to produce a chair or clothes, and sell them to infringe the design monopoly, not just take picture of them.

          But to get more on topic again. If ECHR 10 could not be used in this case, publishing pictures from a fashion show, then it wont apply to anything. The ECHR court have trashed article 10 in just about any copyright case if the publication is not about something contributing to an issue of public debate or a debate of general interest for society.

  17. 14

    Testing servers after having fixed a bottleneck (hopefully). Ignore this comment.

  18. 15
    Geen Stijl

    Geen teen -1

  19. 16
    disgruntled

    I guess I’m in a minority on this but if you guys believe that this means that copyright is an infringement of human rights then I disagree entirely. I read ECHR10 as the right for a person hold and to share their own opinion as opposed to the right to share someone else’s media and I sincerely hope that it is applied in that manner.

    • 16.1

      Well, nobody shares somebody else’s media. Everybody in file sharing is sharing their own media, exercising their normal property rights (which are unjustly limited by the copyright monopoly).

      There is a difference between who originally composed a file and who owns a particular copy of it. Those are two entirely different concepts.

      Cheers,
      Rick

    • 16.2
      Scary Devil Monastery

      “…as opposed to the right to share someone else’s media”

      You mean as in me saying something and then legally restricting everyone who heard it from passing it on to third parties?
      Or me magically gaining the ability to block anyone who reads a section of writing of mine to pass a copy of that writing to third parties?

      That is how “copyright” works.

      And no, the EHCR have apparently been very firm to note that copyright in itself is a violation of article 10. This is not, however, news. Smart people have been making this statement for as long as there have BEEN articles of human rights.

  20. 17
    Lucius Sulla

    There are many discussions throughout the Republic as to the best course of action to take. As I read and listen to many of them I sense a recurring theme:

    Run and hide.

    More specifically, there is a predominate thought of securing shelter and provisions, escape the cities and bunker down. While prudence does indeed dictate that such plans are made it appears that many have formulated their perspectives based on this premise. There seems to exist a sigular plane of thought with many of us – “head to the hills, hold’em off and just let the bastards try and get me”.

    There will be no hiding. We face an enemy that simply cannot afford to let us live.

    History shows us the tyrants must “secure” dissenters in an expeditious manner to cement their domination. Failure to do this leaves too many possibilities for resistance. The left must cleanse the population if they are to hold power.

    There will be no “enclaves of resistance” as Hollywood has attempted manipulate our thought processes and cement this notion in our minds. There will be no “live and let live” independant societies that hold their own, small borders. There will be none of the things we have always imagined.

    This will be total war. No prisoners, no trials, no rights, nothing – except extermination.

    There is nowhere to run. We face an enemy that will attempt to drive us into pockets of resistance – this enables them to move us as chess pieces. They will move us until they have us isolated. Once isolated they will annihilate us. Nothing will be spared – not our water supply, not our natural resources, not our food stores, medical supplies – nothing will be off limits in the name of victory for them.

    We are faced with but two choices – win this war before the first shot is fired or be prepared, in advance, to sieze revolution and strike the first decisive blow. We must become an unstopable juggernaut from the very first moment. We must seize momentum or lose it forever. We must move upon our objectives and strive for a victory that has already been defined. Anything less and we are lost.

    Their retribution will be immediate, swift and total. If we find ourselves engaged in this struggle six months beyond the first shot then we have already lost. There will be but one window for victory, just one chance at success. If we fail to seize it then all will be lost.

    Remember this – there will be no bystanders in this. The entire world will have a stake in the outcome. Given the heartbreaking turn to tyranny that the rest of the world is seizing it is not hard to fathom which side the foreign soldiers will support. Mark my words – there will be foreign troops upon our sacred soil.

    We must win this now or be prepared to win in one swift stroke – anything else is unfathomable. The alternative is unthinkable.

    “Today I saw with mine own eyes; the blood of my children is red as mine”.

    This is what awaits us if we fail.

    Victory or death.

  21. [...] Court Of Human Rights: Convictions For File-Sharing Violate Human Rights [...]

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  23. 18
    Tara Taubman

    There is a hierarchy of norm and surely fundamental human rights come before the economic copyright protection read my short paper here for Global Voices http://advocacy.globalvoicesonline.org/2010/04/05/hhadopi-acta-digital-economy-bill-problematic-regulatory-responses/

  24. 19
    Herman

    If I read this verdict correctly as a non-legal person, only in the case of non-commercial use the copyright could not be primary leading when possibly in conflict with the right for free speech. So commercial versus non-commercial use is leading. After establishing that, when it is considered non-commercial use, the freedom of speech could supersede the copyright. The lawyers of the digital rights mafia will argue that advertising banners displayed at sites sharing copyright material, nzb’s or torrents will be of commercial use. The websites will claim that they need the money to run the servers. This could have an impact on the way websites share content, and how they can make money for those servers. For instance, when you start a non-profit legal entity which provides torrents or material via a subscription fee that covers only the costs of running the websites, this could now be legal according to the court as I see it. But a lot of legal (and thus financial) battle will be done before the copyright lawyers will give up. Years of legal fighting will follow to see how this verdict will stand in court in Europe.

  25. [...] Više informacija, kao i dio odluke je moguće pročitati u nastavku i na izvornom linku. [...]

  26. 20
    Alex

    I really think you need to be careful before you publish stories related to court cases, because you’re clearly not a lawyer and lack the necessary expertise to read judgments. There’s quite a few phrases you’ve used which betray your lack of understanding of human rights jurisprudence – for instance claiming that the ECtHR is relevant to the EU. You address this above by giving away the fact that you don’t know whether this judgment affects non-EU member states. Wrong answer – the ECtHR is the judicial arm of the Council of Europe and as such affects all CoE member states, but whether or not a state is a member of the EU (which refers to an economic and political union, not a geographic area) is irrelevant.

    Onto the substance – despite what the title suggests, this case DOES NOT IN ANY WAY AFFECT FILE SHARING. You have extrapolated the text of the judgment to suit a political aim which you support, but which is not referred to in the judgment. The court only stated that IN PRINCIPLE copyright laws can come into conflict with the Article 10 right to freedom of expression, it does not ‘take a back seat’ – it’s part of a balancing act in only a limited number of cases. Most importantly, this case affects instances whereby governments were using the threat of suing for copyright infringement to prevent certain leaked documents and/or stories being published in the press. The infamous ‘Spycatcher’ case in the UK, for instance, was fought in part on copyright grounds – the UK govt. didn’t want the book published because it would have been embarrassing, so they sued for copyright to prevent publication. This case means that, in principle, the publisher of Spycatcher and other such stories would be able to mount a (not necessarily successful) legal defense that the intellectual property rights of, for instance, the Crown, is not as important as the right to freedom of expression in publishing the book. So this story is good news, but not for the reasons you’re outlining.

    For sake of clarity and consistency, you really should publish a retraction to this piece – it’s a very bad piece of commentary on a complicated issue you clearly don’t have the relevant expertise in. That’s not an insult – not everyone is a lawyer, it’s just a reminder that you need to be careful when commenting on technical issues. You’ve used a few phrases, for instance, that are totally meaningless:

    Article 10 does not provide any normative right to ‘share and seek culture and knowledge’ – you need to read the text of Article 10, in particular Article 10 (2), which states that it is a QUALIFIED, not an ABSOLUTE right, which is subject to restrictions ‘prescribed by law’ (i.e. intellectual property laws) – nothing in the judgment in AD v France affects the status of file-sharing, since file-sharing was not relevant to this case at all.

    “This means that people can no longer get convicted for violating the copyright monopoly alone. The court just declared it illegal for any court in Europe to convict somebody for breaking the copyright monopoly law when sharing culture, only on the merits of breaking the law.”

    Technically speaking, the Strasbourg court doesn’t declare anything ‘illegal’ – but that’s another matter. The court does not refer to a ‘copyright monopoly’ and they don’t mention whether or not an individual can be convicted for violating the copyright monopoly alone. You’ve misread the case – it does not mean that everybody who is sued for copyright infringement can therefore mount an Article 10 defense – it only means that in some limited instances there can be an Article 10 defense. Given the court’s previous jurisprudence, this is mostly likely to be successful if the case concerns political matters.

    “A court that tries somebody for violating the copyright monopoly must now also show that a conviction is necessary to defend democracy itself in order to convict. This is a considerably higher bar to meet.”

    Again, you show your lack of expertise. The phrase ‘necessary in a democratic society’ is a normative phrase with a great deal of scholarship and precedent that explains its meaning and application. It does not place an onerous burden of proof on the government to prove that a conviction is necessary to the very fabric of democracy – it’s more akin to saying that the government can’t be totally illiberal. There is nothing in past ECtHR jurisprudence that suggests they consider copyright laws related to file-sharing to be in conflict with the necessary aims of a democratic society.

    “What it says is that violating the copyright monopoly laws is not enough for a conviction, and that the copyright monopoly laws collide with Human Rights.”

    I must reiterate – it does not say in all cases that a copyright infringement is insufficient to mount a successful prosecution – it says that only in cases of artistic or journalistic freedom of expression, a claim to copyright infringement is insufficient. However, the courts have never and show no signs of being willing to treat file-sharing as an exercise in artistic or journalistic expression. My advice: buy an intellectual property law textbook.

    “It will take years to flesh out precedents with this wide a margin for interpretation”

    Two meaningless phrases – importantly, the court refers to a margin of APPRECIATION, which is – if you’d goodled it – a mechanism by which the court acknowledges the limited scope of application of its judgment and recognises that national governments generally hold more legitimacy in dealing with these matters than an international court. It means, therefore, that in the UK, where since the 2000 case of Ashdown, there has been a common law recognised potential conflict with free expression and copyright (albeit a limited one), this case is of limited importance in terms of precedent. So it is not a ‘margin of interpretation’ as you seem to understand it – that courts are given a huge amount of scope to apply the precedent, but an acknowledgment that governments don’t need to give the precedent such a huge amount of weight. And the phrase ‘flesh out precedents’ is meaningless.

    “So the verdict – or rather, two subdecisions leading up to the verdict – opens up a huge gray area of law which was previously pitch black”

    First off, there is no such thing as a ‘subdecision’ – this is just gibberish. And the precedent does not open up a grey area where it was pitch black. In the UK at least, a judicially acknowledged conflict between copyright and free expression is 13 years old. The Strasbourg court merely gave voice to a very limited and obscure legal issue that’s been under debate for some time now, but has enough of a European-wide consensus that they felt they could acknowledge it at the Council of Europe level, albeit with a wide margin of appreciation.

    I implore you to publish a retraction to this piece, because you’ve written a load of ill-informed garbage which will give your readers the mistaken impression that a legal victory has been won when it hasn’t. And just for the record – I am not a pro-copyright monopoly person, I happen to think the recording industry et al act like thugs and are sowing the seeds of their own demise. However I also value intellectual honesty and it bugs me to see people like yourself publishing poorly researched, triumphant articles like this about an issue you clearly don’t know anything about.

    Please, publish a retraction.

    All the best

    • 20.1

      Dear Alex,

      thank you for this well thought-out piece. However, I think you fail to see where I am coming from. I am not a law reader – I am a law writer. When courts apply the law in a way that I disagree with, I don’t work to change how the law is applied in practice, I work to have the text of the law changed.

      Looking at your comments, first, exactly nobody has heard of the Council of Europe (and those who think they have will be thinking of the European Council). “The European Union and a few more countries” is a way of making the message accessible; this article had 225k readers in the past 24 hours. I need to address a general audience. What you mistake for ignorance may, or may not, be deliberate.

      Second, you seem to hang up on implied details where I’ve gone to painstaking detail to be lexically precise. You claim I say that “it says in all cases that a copyright infringement is insufficient to mount a successful prosecution”. I didn’t say that. I said this verdict it will cover some file sharing cases, and that all cases will need to be examined whether they fit into the “some” category. This is new, as I’ll discuss more below –

      Going to the meat of your comment:

      The Strasbourg court merely gave voice to a very limited and obscure legal issue that’s been under debate for some time now, but has enough of a European-wide consensus that they felt they could acknowledge it at the Council of Europe level

      Ah, yes. To you, with your background, this may be “limited”, “obscure”, and “merely”. But to the community at large, this is positively huge. So we’re down to generally agreeing on facts of what has happened, with you requesting a retraction because you disagree with the news valuation of the event?

      I appreciate your sentiment and the effort you put into this, but I respectfully disagree with your conclusions that this is no big deal, or that I would have been lexically incorrect in anything I wrote. Imprecise at times, certainly (especially regarding the little-known Council of Europe), but not lexically incorrect.

      The one passage that may be overstated to a degree in the original article – which you also point out – is the meaning of the phrase “necessary in a democratic society”. However, I feel that I address this more than adequately in the updates.

      Cheers,
      Rick

      • 20.1.1
        Alex

        Simply because you’re ill-informed about the Council of Europe doesn’t mean that everyone else is and it certainly doesn’t justify being imprecise. Referring to the EU and a few more countries gives the mistaken impression that this has to do with the EU. And I would guess that quite a lot of your readers are smart enough to have heard of the Council of Europe – it is, after all, the foremost international body tasked with protection of human rights in the world and simply claiming that you don’t think people will have heard of it is a lame excuse for confusing it with the EU, because it’s not an obscure, smoke-filled room of an organisation. Have some respect for the intelligence of your readers.

        I request a retraction because you are simply factually incorrect that this applies to even some file-sharing cases. It will apply to precisely zero file-sharing cases because it applies to cases of expression and file-sharing is not expression in a legal sense. If you can refer me to a case or even a piece of academic commentary published in a law journal that argues file-sharing is an act of expression, then I retract my request for a retraction.

        It’s not about being lexically incorrect – it’s about being legally incorrect. I can’t reiterate enough how much this case doesn’t apply to file-sharing at all. If you want a proper explanation of the scope of the conflict between copyright law and free expression in the UK, which includes the scope of how and when the ECHR applies (namely to journalistic, artistic and political expression – NOT file sharing AT ALL) then look here: http://infojustice.org/download/gcongress/ipandhumanrights/birnhack%20article.pdf

        I have no issues at all with your advocacy and I think your cause is genuine and I wish you all the best, but I do have issue with you misreporting cases – this doesn’t apply to file-sharing and you’ve given the mistaken impression it does.

        I still request a retraction – this is a matter of fact, not opinion.

        • Dear Alex,

          as a regular reader of Rick’s, I’d appreciate it if you respected my (our) intelligence by granting us the ability to understand pretty well what it is he’s telling us. I’m not so much interested in how things are. At the moment, they’re pretty bad, and I know that. I’m more interested in how they can (and do) change for the better. And I’m grateful for anything that may be used to enact that change.

          The way to enact change is to make an idea take root in society, until enough people believe in it.Rick, once again, gave us some modicum for change by planting this particular idea. I’ll look forward to a future where that idea has become reality. It won’t be long.

        • Alex

          @ Vanish

          If this piece was a merely aspirational piece of writing about hoping that the law could eventually change to a point where the European Court of Human Rights would consider file-sharing a human rights issue, I wouldn’t have felt the need to correct its factual inaccuracy.

          Except that instead what this piece says is that this has in fact already happened and that the European Court of Human Rights has issued a judgment on file-sharing. My exception with this is that not only is it wrong, but it hampers the cause by causing its advocates to be misdirected and misinformed. All causes work better if its activists understand the issues better by being grounded in reality.

          I don’t think that Rick is being dishonest or deliberate in his inaccuracy – but he has misread a court judgment and should be called out on it, otherwise factual inaccuracy gets floated around and the movement suffers.

        • Sten

          @Alex

          “but he has misread a court judgment and should be called out on it”

          Rick often misreads and often misunderstand and most of the time it is due to a lack of experience within the actual field he is referring to.
          I am still awaiting the outcome of Ricks copyright infringement claim in regards of a poster used last year, but news in this case has been shining brightly with it´s absence.

  27. [...] the European Court of Human Rights has ruled that copyright itself is illegal. Well, sort of. They seem to be saying that in many cases it is trumped by human rights law. A sort of general exception to copyright, [...]

  28. [...] This means that people can no longer get convicted for violating the copyright monopoly alone. The court just declared it illegal for any court in Europe to convict somebody for breaking the copyright monopoly law when sharing culture, only on the merits of breaking the law. A court that tries somebody for violating the copyright monopoly must now also show that a conviction is necessary to defend democracy itself in order to convict. This is a considerably higher bar to meet.‘ [...]

  29. [...] "CRITEO-300×250", 300, 250); 1 meneos   Tribunal Europeo concluye que encarcelar por delitos de copyright vulnera los Derechos Humanos [ENG]… falkvinge.net/2013/02/07/court-of-human-rights-conviction…  por Raiser hace [...]

  30. [...] En laat dat nou een discussie zijn die eeuwig gevoerd wordt. Mooi dus. Lees het hele verhaal daar.Pin It Quote: @bitsofreedom in aanval tegen anti-privacylobbyMega van Kim Dotcom enorm succesMust [...]

  31. [...] ich bin auf dem Sprung, deshalb nur eine ganz schnelle Übelsetzung dessen, was ich gerade über eine Entscheidung des europäischen Gerichtshofes für Menschenrechte g…: Der Europäische Gerichtshof für Menschenrechte hat verkündet, dass das urheberrechtliche [...]

  32. [...] de "blokkades" opgelegt door stichting brein op te gaan heffen. Eens.? Bron bericht: Court Of Human Rights: Convictions For File-Sharing Violate Human Rights – Falkvinge on Infopolicy close [...]

  33. [...] brein op te gaan heffen. 1 Eens.? 2 Oneens.? 3 Irrelevant.? 4 Boeit mij niet.? Bron bericht: Court Of Human Rights: Convictions For File-Sharing Violate Human Rights – Falkvinge on Infopolicy close [...]

  34. 21
    Titanium Dragon

    You didn’t understand this ruling at all. Indeed, it says the exact opposite of what you believe.

    It is a case about fashion photographers. It says that freedom of speech and copyright can come into conflict. In such cases, you have to determine which is more important.

    [b]The fashion photographers lost the case.[/b]

    This is basically defining the limits of fair use.

    It is still illegal to pirate Thor. But it might be legal to use some material from Thor in some sort of public discussion of interest, such as, say, a discussion of how male sexuality is presented in media, even though that is not directly pertinent to Thor. On the other hand, if you were just reporting about how fabulous his hair was, that might not be covered and you might be susceptible to the law (remember, the fashion photographers -lost- because fashion reporting wasn’t considered to be of general interest, but rather commercial speech).

    • 21.1

      You didn’t understand this ruling at all. Indeed, it says the exact opposite of what you believe.

      If so, you may need to read the article again, and read it with an assumption that it says what you believe – because…

      It says that freedom of speech and copyright can come into conflict. In such cases, you have to determine which is more important.

      This is exactly what the article states. (Including the fact that the case as such was lost, and that the statement above is the important part, not the case itself.)

      It is still illegal to pirate Thor. But it might be legal to use some material from Thor in some sort of public discussion of interest, such as, say, a discussion of how male sexuality is presented in media, even though that is not directly pertinent to Thor.

      This is exactly what the article says. (Or perhaps, I should add as a disclaimer, it is at least intended to say.)

      Cheers,
      Rick

  35. [...] Court Of Human Rights – Falkvinge on Infopolicy Go to this article [...]

  36. [...] European Court of Human Rights has been reading my blog! Or, perhaps, it’s an obvious idea if you think about it for even a [...]

  37. [...] με μετάφραση στα ελληνικά από το INFOPOLICY: «Court Of Human Rights: Convictions For File-Sharing Violate Human Rights», CIVIL LIBERTIES, by Rick [...]

  38. [...] informacija, kao i dio odluke je moguće pročitati u nastavku i na izvornom linku. Podijeli:TwitterFacebookTumblrGoogle +1E-mailIspisSviđa ti se?Sviđa mi seBudite prvi kome se ovo [...]

  39. [...] informa Rick Falkvinge, El Tribunal Europeo de Derechos Humanos ha concluido que imponer penas de prisión por compartir ficheros viola los derechos humanos; esto es, la aplicación de ese tipo de condenas, para el caso de delitos por violación de las [...]

  40. 22
    Nom de Plume

    I was just wondering: You speculate that seeding with the intent to bring about political change might be covered by this decision. Could it be argued that seeding to bring about change to copyright laws constitute a valid political motive? In my considered opinion, copyright laws hinder the development and education of people in the cultural arena. Developing av understanding culture is a prerequisite to becoming a peaceful and constructive member of society. Discriminating against people with the lack of funds to aquire cultural products is in my opinion a serious attack on society, creating an under- and overclass of the culturally cognizant and adept. In your opinion, do you think this reasoning is or should make a credible and sufficient defense in a court case? It would be interesting to see a case like this brought to court. One could perhaps envision reporting oneself to the police, turning in the evidence, refusing to pay a fine, thereby forcing a court case. With financial backing and a good legal team, it would be possible to appeal to Strasbourg, and see what happens.

    Respect, and keep up the good work, Rick!

    (If you respond to this post, please send me a copy on e-mail, as I do not normally follow your page.)

  41. [...] on falkvinge.net Share this:FacebookTwitterLinkedInPrintLike this:LikeBe the first to like [...]

  42. [...] artikel 10 Europese conventie Court Of Human Rights: Convictions For File-Sharing Violate Human Rights – Falkvinge on Infopolicy Mensenrechten; als ik het goed heb dan zijn wij vrij om info te delen. Ps begrijp het zelf ook [...]

  43. [...] vs Freedom of Expression Judgment, Piratenpartei-Gründer Falk Vinge macht daraus übrigens ein „Convictions for File-Sharing violate Human Rights“, was so angesichts des Kontexts dieses Urteils erstmal Bullshit [...]

  44. [...] Court Of Human Rights: Convictions For File-Sharing Violate Human Rights – Falkvinge on Infopo… It’s very nice to see this. This has gigantic ramifications, but the biggest is that a site like TPB now is legal again. Since the TPB got sentenced for “assisting willful infringement” and it’s no lo… [...]

  45. [...] Problemet med dagens upphovsrätt är inte så mycket att den finns som det faktum att dess ständiga och inflytelserika strävanden efter mer och mer hela tiden likt en hungrig Tyrannosaurus Rex utgör ett reellt hot mot grundläggande mänskliga rättigheter sådana dessa definieras inom såväl EU som i ett flertal andra länder annorstädes. Det här är något som till och med EU:s domstol för mänskliga rättigheter sent omsider har börjat att inse. [...]

  46. [...] im Übrigen nicht nur mit Datenschutz und Rechtsstaat in der Schweiz, sondern widerspricht auch der jüngeren Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte [...]

  47. 23
    Someone

    Speaking of the copyright industry forcing money from people, the turn has now come to cinema owners.

    http://sverigesradio.se/sida/artikel.aspx?programid=161&artikel=5434813

    (In Swedish)

    This page is about digitalisation. There will soon be no distibution of new movies on film, only digital formats, and the cost of upgrading to digital equipment is too much for many small cinemas.

    And the worst part is what is in the comments: One year after an owner of a small cinema got their new equipment, it is obsolete. No new movies for 24 fps equipment, now it must be 48! And it is expected to continue.

    Killing cinemas for profit!

    This kind of harassment is a form of a common harassment called “planned obsolescence”, which is the practice of making products that will soon be useless due to failure, incompatibility or fashion.

  48. [...] Urheberrecht vs. Menschenrechte: Verurteilung wegen Urheberrechtsverletzung durch Filesharing kann g… [...]

  49. [...] Hiding IP ^^ He is German, likes to ask before he looks for himself and he didn't have this Court Of Human Rights: Convictions For File-Sharing Violate Human Rights – Falkvinge on Infopolicy While it is not a free pass it does help, especially for a single [...]

  50. [...] Court Of Human Rights: Convictions For File-Sharing Violate Human Rights (falkvinge.net) [...]

  51. [...] therefore &#1072n interference w&#1110th essential human rights, h&#1072&#1109 even b&#1077&#1077n inveterate &#1112&#965&#1109t b&#1091 th&#1077 European Court &#959f Human [...]

  52. [...] d’auteur mettait en cause la liberté d’expression et qui fut célébrée de manière emphatique par Rickard Falkvinge et d’autres militants de la culture libre — n’y change [...]

  53. [...] freedom of expression, and therefore an interference with fundamental human rights, has even been confirmed recently by the European Court of Human [...]

  54. [...] freedom of expression, and therefore an interference with fundamental human rights, has even been confirmed recently by the European Court of Human [...]

  55. 24

    Our Politicians Make Sure That Graduates Cannot Discharge Their Student Loans In Bankruptcy Bankruptcy is not an option, but is well worth it in the long run.

    This is a program in which a qualified settlement or mediation
    company works for you with your creditors, you are also not allowed to make any future payments on time.
    The first step is the Obama Credit Card debt consolidation programObama credit
    card debt consolidation program. You have done everything
    in your power to keep up.

  56. [...] is zooming in on Article 10, the right to share and seek culture and knowledge, just as in the other copyright monopoly case last [...]

  57. 25

    Very nice post. I just stumbled upon your blog and wished to mention
    that I’ve truly enjoyed surfing around your blog posts. After all I will be subscribing in your feed and I hope you write again soon!

  58. 26

    Thanks for the marvelous posting! I quite enjoyed reading it,
    you can be a great author. I will be sure to bookmark your blog and will come back someday.

    I want to encourage continue your great posts, have a nice morning!

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Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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