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Allofmp3, IT-Pol view

Here is the Danish IT-Political Association (http://www.itpol.dk) view of it: International Federation of the Phonographic Industry (IFPI) vs Tele2

The injunction court in Copenhagen (Fogedretten) delivered a verdict
October 25 2006 ordering internet provider Tele2 to block access to
the website of AllOfMp3.com.

LEGAL:

The court found that music from AllOfMp3.com is distributed illegally based on
information from the Russian IFPI and the low prices of AllOfMp3 music.

The ruling is based mainly on copyright law. Compliance with the
Infosoc directive is taken into consideration. In fact the central
parts of the ruling is based on implementation of Infosoc into Danish
copyright law.

Specifically Infosoc article 8.3 says that "rightholders are in a
position to apply for an injunction against intermediaries
whose services are used by a third party to infringe a copyright
or related right."

And (59):
==
... . Therefore, without prejudice to any other sanc-
tions and remedies available, rightholders should have
the possibility of applying for an injunction against an
intermediary who carries a third party's infringement of
a protected work or other subject-matter in a network.
This possibility should be available even where the acts
carried out by the intermediary are exempted under
Article 5. The conditions and modalities relating to such
injunctions should be left to the national law of the
Member States.
==

The court concludes that any transmission of illegal distributed
material through routers and other network equipment (i.e. not just
proxy servers) constitutes an infringement.
This is based on §2.2 in the Danish copyright law which again is very close
to a translation of Infosoc article 2:

==
Member States shall provide for the exclusive right to authorise
or prohibit direct or indirect, temporary or permanent repro-
duction by any means and in any form, in whole or in part:
==

This is probably the most surprising part of the ruling.
If a user in Denmark download an Mpg3 file from Russia a
reproduction has happened.
But does the reproduction just happen in Russia, or on the users computer,
or does a reproduction really happen for every packet in every router along
the way?

The court acknowledged that AllOfMp3 could possibly be stopped using legal
remedies in Russia, but found using proportionality considerations that IFPI would
incur more costs while waiting for Russian legal action.
Infosoc article 8 was mentioned in this argument.

What we see is Infosoc used as an attack on the common carrier status
of internet providers. According to the Danish legislation on electronic trade
("E-handelsloven") §14, an ISP is not responsible for informations that
passes through its network. But a recent supreme court decision established
that this does not extend to provisional remedies for the purpose of
hindering illegal activities.

Tele2 asked the court to make IFPI give security for payment of
cost incurred by the injunction.
The court rejected this arguing that Tele2 would not incur any costs.

Tele2 has appealed the ruling to the next instance, Landsretten. All
other ISP's awaits the result of the appeal, i.e. they do not block
AllOfMp3 voluntarily.

THE FILTERING

Four methods of filtering is listed by IFPI:

1. Content based firewalls, Sonicwall, Content Filtering is used as an example
2. Mandatory proxy servers
3. DNS manipulations (blocked domains resolved to a webserver with
a "stop"-page.
4. IP-address based firewalls.

The existing DNS-based "child porn filters" is used by the court to establish
that DNS filtering is possible and would not incur unreasonable costs for Tele2.
These filters are based on the European Safer Internet Plus program, but the
filters are mandatory for end users and implemented by all Danish ISP's.
Tele2 has decided to use DNS manipulation, the same method used for
the Safer Internet Plus filtering.

PERSPECTIVE

We see this as a slippery slope both regarding content and filtering
methods. The Safer Internet Plus were implemented by all commercial

internet provider at the end of 2005. Politicians, including the
government, have already indicated that they are willing to use
internet filtering to stop other forms of illegal behavior,
e.g. "happy slapping". Now the same filtering is used against
copyright violations.

DNS filtering is trivial to circumvent. This does not matter much for
the Safer Internet Plus filtering because the success is measured in
the number of blocked sites (currently ca 5000) and blocked
hits. However IFPI and its allies will soon "discover" that the
filtering has little effect on illegal copying, and there will be a
demand for more efficient and restrictive means of filtering.

The result will be that that the police maintains hundreds or
thousands of list for difference types of illegal material with each
list containing tens of thousands of domains. All internet traffic
will be passed through a few central servers, that will match every
packet against all these blacklists.

This we see as dangerous mechanism in any country.
It will be tempting for many countries to add "troublemakers", "bandits",
"terrorists", "antisocial elements" etc. to such blacklists. Of course it will
be in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, etc.

Verdict in Danish:
http://www.dr.dk/NR/rdonlyres/EF2AAB7A-0E04-4963-963A-463CD7550D72/361965/tele2_...