Reminder 2: Hunt For File-Sharers Violates Fundamental Human Rights (Says The European Court Of Human Rights)

Happy Yule, everybody! In our series of reminders about important talkbacks, we’ve come to the reminder that the act of hunting for people who share culture and knowledge online violates their fundamental human rights, as doing so wiretaps private communications.

The hunt for people who share culture and knowledge online violates article 10 of the European Convention of Human Rights, the most important Bill-of-Rights on the planet, according to no other court than the highest court of the land, superseding Supreme Courts and Constitutions: The European Court of Human Rights.

(References to the European Convention on Human Rights, which is overseen by this Court, is written directly into many constitutions – including that of the European Union itself.)

In the case of Ashby Donald et co vs. France, the Court references Article 10, the right to freely seek and share information:

“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.” (European Convention on Human Rights, art 10)

The court further found, in its first test ever on the subject matter, that the enforcement of the copyright monopoly online interferes (violates) this fundamental human right (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.

The court goes on to note that all three of these exception criteria were fulfilled in the case at hand, allowing an exception as a whole in this specific case to the fundamental human rights applicable. However, the partial finding – that the hunt for people sharing culture and knowledge online is a violation of their fundamental rights – is a watershed decision and an important talkback.

This is what stands at the heart of the debate on sharing culture and knowledge online, that you can’t sort legal private communications from illegal private communications without actually looking at them. In other words, you can’t enforce the copyright monopoly against file-sharers without wiretapping the entire internet.

That’s far too high a price to pay for maintaining an old distribution monopoly for an entertainment industry.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He works as Head of Privacy at the no-log VPN provider Private Internet Access; with his other 40 hours, he's developing an enterprise grade bitcoin wallet and HR system for activism.

Discussion

  1. Anonymous

    i agree whole heartedly, Rik. it’s a shame that none of the entertainment industries or local governments or local courts agree as well. if that were the case, there would be no one persecuted or prosecuted for file sharing. as there are numerous people who are persecuted (always asked to hand in mobile phones at the cinema entrance, always watched by cinema staff) and prosecuted (because they copied a movie they owned and let others watch it etc) and some paid the ultimate price, lost their lives, over this, why has there been no definitive ruling put out? why are the people always being spied on? why are those who want to stop people sharing allowed to do whatever they want to try to stop them? why are they then allowed to take people to court over sharing and then get people sentenced to prison, fines extortionate amounts of money and lose everything, from their house and job to their family and friends? if the highest court there is says it is ok to share, why are all these things happening? because no one from the entertainment industries side gives a flying fuck about any thing, including the highest court there is and will continue to do what they want, regardless!! until someone has the necessaries to tell them, in no uncertain terms, to stop what they are doing, these industries will continue to do what they want, not what the court says!
    what i basically mean is, no one gives a toss over what this court says. when the entertainment industries want something, they will get it. no government or court takes any notice of any of the independent studies that show there is no harm done through sharing. they do, however, take absolute notice of the one study, paid for by the industries themselves, so is totally bias, and pass laws and court rulings accordingly. if this Court of Human Rights had any clout at all, no country would dare to go against what it says. as no one takes any notice, it shows it has no clout at all!! complete waste of time!!

  2. Anonymous

    I can only recommend reading the legal commentary that Rick links to in his post. Looking at this judgment objectively, Rick’s reading of it is rather optimistic. Unlike what Rick’s title suggest the ECtHR ruled that enforcing copyright protection _can_ be a violation of the freedom of expression or freedom of access to information. It is by no means an absolute right.

    What is remarkable about the judgment is that it clarifies that the circumstances of the case are important in assessing which right takes precedence over the other in events of clash. The term the ECtHR uses here is public general interest. Essentially, access to information and freedom of expression are more worthy of protection where they serve general public interest (such as political speech, public debates, etc.) and less worthy of protection where they serve a commercial nature.

    While I think the judgment can be read to mean that a prohibition of file sharing per se would be in breach of the freedom of access to information as it is unproportional, it can most certainly not be read to mean that there is an absolute right to share copyrighted materials. Sharing a movie for consumption/entertainment is less worthy of protection than sharing a movie, which pertains to a public debate, in which case the general public interest can become more important than the property rights of the right holder.

    So while Rick is most certainly not entirely wrong in what he writes, it is not the whole truth either. The judgment is very nuanced (at least legally speaking) and cannot be dumbed down to a black and white issue.

    1. asdf

      It is depressing that the industry’s profits have taken precedence over the public’s property rights. However, I’m not sure if six strikes i exactly wiretapping, it’s more passive eavesdropping. Copyright, which gives the corporations the ability to persecute the public, is the problem, not filesharing.

      1. next_ghost

        > However, I’m not sure if six strikes i exactly wiretapping, it’s more passive eavesdropping.

        It’s worse. Six strikes are privatisation of repressive power.

      2. Caleb Lanik

        That’s what a wiretap is. When you listen to what the conversation/data exchange between two people as a third party without their consent or knowledge, that’s a wiretap. Which is what six strikes does.

      3. Anonymous

        We do know from ECtHR case law that systems such as six strikes, which result in being cut off from internet services all together are not proportionate and not a fundamental rights compatible method of enforcing intellectual property rights.

        Property rights, just as information and expression rights are fundamental rights, which means that sometimes a choice must be made between which one is more important. The court has interpreted the law in such away that courts must decide on a case by case basis, taking into account general public interest and proportionality. This is why you cannot legally share copyrighted materials. This is also why you can use copyrighted material for educational purposes without worry. This is also the reason you cannot legally be cut off the internet altogether for infringing copyright.

        Copyright is there to exclude third parties from use of your intellectual property if you so desire, therefore its very nature requires that copyright be enforced against third parties. A much stronger argument, in my opinion, is that of privacy, touching upon the subjects brought up by Caleb Lanik in #2.1.2.

  3. Peter Andersson

    Det kommer nu fler och fler exempel på att “fildelning” behandlat rätt bara är en form av data mining som t.o.m kan göra att artisterna tjänar MER pengar än de annars skulle ha gjort. Här är ett exempel:

    http://boingboing.net/2013/12/24/iron-maiden-makes-millions-by.html

    1. Googla

      Sorry Peter
      “Update and correction: The original version of this article incorrectly stated that Iron Maiden used MusicMetric’s analysis to plan its South American tours. MusicMetric did not work directly with Iron Maiden. The analysis described in this article was carried out without the band’s participation or knowledge, and we have no confirmation that the band ever saw or used it. CITEworld deeply regrets this error, and we apologize to our readers.”

  4. dinkes and schwitzer

    Privacy is a fundamental right that allows people to express themselves freely. Therefore it is necessary that human rights are respected.

  5. Anon

    Does this apply to every file on the internet? Because I know someone who got caught in a sting for sharing “illegal files”, and this law could serve as a nice defense for him.

  6. Ano Nymous

    (RICK, PLEASE READ THIS!)

    Why hasn’t anybody reacted to this yet, quantum computers are now a reality, all current and previous encryption is broken regardless of backdoors: http://www.naturalnews.com/040859_Skynet_quantum_computing_D-Wave_Systems.html

    This article seems a bit alarmistic, but no matter if quantum computers is a potential enemy to mankind in the future or not, they are definitely a superior enemy to all common encryption today, if I’m correctly informed.

    Here’s an article about just that: http://www.naturalnews.com/036878_quantum_computing_decryption_algorithms_government_secrets.html

    And, what others have pointed out too, the media has shut up about many whistleblowers before Snowden, saying exactly the same thing: http://www.naturalnews.com/036689_NSA_whistleblowers_spying.html
    Check the date!

    If the media isn’t walking the people in power’s errands, why haven’t they reported until now? And if they are, why are they reporting now? Does any of this make any sense to you?

    1. Per "wertigon" Ekström

      Sorry to say but the source you link to is a very conspiracy-heavy webpage.

      The reason Snowden was believed over the other two, is that Snowden had the proof in the vast amount of data that he collected. The full extent of NSA surveillance black and white.

      But yes, the Quantum computer is real, and if Google has one, NSA has one for sure. So doesn’t matter how strong encryption we can make, this also makes BitCoin worthless unfortunately… :/

      1. Ano Nymous

        Yes, I know it is pretty tinfoil-hatty. But we can’t completely ignore those anymore, I wouldn’t even say that they are less reliable than mainstream media these days. That’s not because the tinfoil pages are very reliable, however…

        In a time of low quality news, lower quality news and sheer propaganda, it is really difficult to know what is true, but the D-Wave Two is real with all certainty. There’s no gain for any news media, mainstream or otherwise, in making something like that up. However, there might be both exaggerations and understatements on how efficient it is.

        There is cryptography that is resistent to quantum computer attacks, but it is not at all common today. I don’t know what Bitcoin uses, but maybe you do?
        Wikipedia on supposedly quantum computer-safe crypto: https://en.wikipedia.org/wiki/Post-quantum_cryptography

        That article claims that today’s quantum computer are too weak to pose a threat, but I don’t know when that was written, and even so, the NSA saves a lot, so even if it isn’t insecure today, it might well be tomorrow. Brrr.

        There is an immediate need for new cryptography programs that use these “post-quantum” algorithms.

    2. Jungle Dave

      … Wait, what?

      From the readings in the boffin world, current quantum computers can only add 2 and 2 correctly _half_ the time. In other words, the current state is dice-based calculators, not superduperextremelypowerful x86-64 processing.

      So, yeah. Rendering all encryption world-wide broken is still another 100 years off.

      The funny thing about Quantum computing is that Quantum Entanglement (ie, quantum encryption) has already been broken. So when Quantum computers become more widespread, we’ll still be using 4096-bit crypto (or maybe 16384 bit).

      Nothing to be alarmed over.

      Furthermore, “naturalnews” publishes more bs than any PSYOPS team from the 80s ever did. It’s not credible. Like Alex Jones, they look onto the street, and think that the street cleaners are secretly reptilians (or was that David freaking Icke?).

      1. Scary Devil Monastery

        Too true. People somehow look at the word “Quantum” and tend to view it like the general population from the 50’s did radioactivity. The phenomenon is ascribed properties ranging from the merely ridiculous to the out-and-out religious.

        Indeed quantum computers may eventually evolve to the stage where they can begin making breaking current encryption algorithms “feasible”.

        At that point, however, the logical conclusion is that new encryption algorithms will be constructed, using the same quantum computers as a base.

        In short, although government interest in mass surveillance is something everyone should worry about, them building a “magic bullet” enabling them to crack any encryption is not even worth a thought. It’s just not logically possible.

        Which is why government instead decides to hack the network backbone, strongarm ISP’s into offering open pipelines into consumer accounts, and try to introduce hardwired backdoors into the actual hardware and firmware used.

        1. gurrfield

          “At that point, however, the logical conclusion is that new encryption algorithms will be constructed, using the same quantum computers as a base.”

          What they may be doing at that stage is to try and make quantum computing (private usage of quantum computers) illegal for non-governmental / non-law-enforcement use.

        2. Scary Devil Monastery

          “What they may be doing at that stage is to try and make quantum computing (private usage of quantum computers) illegal…”

          By the time such a ban can be enforced, we will be living in a society which makes the one depicted in “V for Vendetta” look like a liberalist utopia.

          We have many examples where government have attempted ridiculous restrictions on technology – various attempts by numerous nations to restrict ownership of private radio equipment, for example.

          It always fails. The only reason nuclear proliferation treaties are successful is because there is a distinct scarcity of fissile material. Banning quantum computing, however, will only be successful if said technology is banned in every corner of the world, in every nation, and if there is a public and ubiquitous ban on certain sciences.

  7. Anonymous

    the way the Italian entertainments industries have just re-written the Italian law and the way the Italian government have just sat there, thumbs up arses, brains in neutral and bloody well let them (probably did all they could to help them!), shows how much these and other industries take notice of any EU court! sorry to say but it appears to be a complete waste of friggin’ time! it doesn’t appear to matter which EU court says what, none of the member countries take the slightest bit of notice, doing exactly what they feel like and in particular, screwing as many of the people over as much and as often as possible! i’m just waiting for the ultimate punishment to be attached to file sharing, and i bet a dime to a dollar, it’s just round the corner! and i also bet that not one single, solitary person, in any government, in any court, in any country, EU or otherwise, will do a fucking thing!!

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