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BREAKING NEWS: CJEU says that you can keep browsing the internet without (copyright owners') permission

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The Court of Justice of the European Union (CJEU) has just issued the decision everybody was waiting for, this being the decision in Case C-360/13 Public Relations Consultants Association v Newspaper Licensing Agency and Others.

Similarly to what happened - quite surprisingly but increasingly frequently [see the 2013 Annual Report] - in Case C-466/12 Svensson [on which see here, here, here, here and here], it did so without the Opinion of one of its Advocates General [the designated one in this case was Maciej Szpunar]. The Court uses this simplified procedure when, as the last paragraph of Article 20 of its Statute states, the case at issue "raises no new point of law" [= we are dealing with straightforward (non-)issues, but was this the case in Svensson and Meltwater?].

As IPKat readers - especially those based in the UK - will promptly recall, it was the UK Supreme Court that referred this case to the CJEU. Lord Sumption neatly summarised the issues at stake here in the Court's judgment on 17 April 2013 [press release here]:

"The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner."

A CJEU reference to know whether
browsing the internet is lawful?

Lord Sumption rejected the idea that the [only] mandatory exception/limitation in Article 5(1) of the InfoSoc Directive [and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988] would not apply to temporary copies generated by an end-user of the internet, also because Recital 33 to the Directive makes clear that such exception/limitation is intended to “include acts which enable browsing as well as acts of catching to take place.”

Nonetheless, given the appeal’s transnational dimension and potential implications for internet users across the EU, the UK Supreme Court decided to refer the following questions to the CJEU:

In circumstances where:

an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;
copies of that web-page are automatically made on screen and in the internet “cache” on the end-user’s hard disk;
the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;
the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;
the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and
the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;

Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC [yes, that is the InfoSoc Directive]?

"Your computer time is up!" -
For Oliver, the only one
whose permission is needed
is his mum

In its neat 64-paragraph ruling the Court, started by noting that, by its question, the referring court asked in essence whether Article 5(1) of the InfoSoc Directive must be interpreted as meaning that the on-screen copies and cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders.

The Court started by recalling that it is settled case law [see, as recent example yet not cited by the CJEU, the decision in Case C-435/12 ACI Adam, here] that exceptions and limitations - including Article 5(1) and its conditions - must be interpreted strictly, in that they are a derogation from the general rule established by the InfoSoc Directive that the copyright holder must authorise any reproduction of his/her protected work.

In any case, "it is apparent from that same case-law [in particular paragraph 164 of Joined Case C-403/08 and C-428/08 FAPL] that the exemption provided for in that provision must allow and ensure the development and operation of new technologies, and safeguard a fair balance between the rights and interests of rights holders and of users of protected works who wish to avail themselves of those technologies".

This said, the CJEU determined whether the conditions in Article 5(1) were satisfied. This provision states that an act of reproduction is exempted from the reproduction right provided for in Article 2 on condition that:

it is temporary;
it is transient or incidental;
it is an integral and essential part of a technological process;
its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
it has no independent economic significance.

The referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider first three conditions.

Is the reproduction temporary?

The CJEU noted that on-screen copies are deleted when the internet user moves away from the website viewed, and that the cached copies are normally automatically replaced by other content after a certain time, which depends on the capacity of the cache and on the extent and frequency of internet usage by the internet user concerned. It follows that those copies are temporary in nature.

Is the reproduction an integral and essential part of a technological process?

The Court then deemed it appropriate to consider the third condition. This requires that two criteria are cumulatively fulfilled: (1) that the acts of reproduction are carried out entirely in the context of the implementation of a technological process, and (2) that the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts [see Infopaq paragraph 61, and Infopaq II, paragraph 30].

According to the Court, both conditions are satisfied: the on-screen copies and the cached copies must be regarded as being an integral and essential part of the technological process at issue in the main proceedings.

Unlike on-screen copies,
there is nothing
transient in Claire's snoozing time

Is the reproduction transient or incidental?

The Court then examined the second condition in Article 5(1), and noted that it comprises alternative criteria: the act of reproduction must be either transient or incidental.

As regards the first of the two criteria, an act will be held to be ‘transient’, in the light of the technological process used, if its duration is limited to what is necessary for that process to work properly, it being understood that that process must be automated inasmuch as it deletes such an act automatically, without human intervention, once its function of enabling the completion of such a process has come to an end [see Infopaq, paragraph 64].

In any case, the requirement of automatic deletion does not preclude such a deletion from being preceded by human intervention directed at terminating the use of the technological process.

An act of reproduction does not lose its transient nature merely because the deletion by the system of the copy generated is preceded by the intervention of the end-user designed to terminate the technological process concerned.

As regards the other criterion, an act of reproduction can be regarded as ‘incidental’ if it neither exists independently of, nor has a purpose independent of, the technological process of which it forms part.

In the case in the main proceedings, as regards, first, the on-screen copies, it should be recalled that these are automatically deleted by the computer at the moment when the internet user moves away from the website concerned and, therefore, at the moment when he terminates the technological process used for viewing that site.

In this respect, it is irrelevant that the on-screen copy remains in existence for as long as the internet user keeps his/her browser open and stays on the website concerned because, during that period, the technological process used for viewing that site remains active.

The Court held that the period during which the on-screen copies remain in existence is limited to what is necessary for the proper functioning of the technological process used for viewing the website concerned. Consequently, those copies must be regarded as ‘transient’.

As regards cached copies, it is true that, unlike the on-screen copies, they are not deleted at the time when the internet user terminates the technological process used for viewing the website concerned. However, it is not necessary that such copies be categorised as ‘transient’ once it has been established that they are incidental in nature in the light of the technological process used.

The Court concluded that that the on-screen copies and cached copies satisfy the second condition laid down in Article 5(1) the InfoSoc Directive.

Three-step test?
Not a problem

Do not forget the three-step test!

The CJEU held that the copies at issue in the main proceedings satisfy the first three conditions set out in Article 5(1) of InfoSoc Directive. However, in order for it to be possible to rely on the exception laid down in that provision, those copies must also satisfy the conditions laid down in Article 5(5). In other words, the carrying-out of a temporary act of reproduction is exempt from the reproduction right only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders [yep, that's the three-step test].

The Court stated that, that, since the on-screen copies and the cached copies are created only for the purpose of viewing websites, they constitute, on that basis, a special case.

Although the copies make it possible, in principle, for internet users to access works displayed on websites without the authorisation of the copyright holders, the copies do not unreasonably prejudice the legitimate interests of those rights holders. Here the Court made a very interesting observation, by saying that:

"[I]t must be pointed out that the works are made available to internet users by the publishers of the websites, those publishers being required, under Article 3(1) of Directive 2001/29, to obtain authorisation from the copyright holders concerned, since that making available constitutes a communication to the public within the meaning of that article.

The legitimate interests of the copyright holders concerned are thus properly safeguarded.

In those circumstances, there is no justification for requiring internet users to obtain another authorisation allowing them to avail themselves of the same communication as that already authorised by the copyright holder in question."

Lastly, it must be held that the creation of the on-screen copies and the cached copies does not conflict with a normal exploitation of the works.

So: there are no problems of compatibility with the three-step test.

In conclusion

All this said, the Court ruled that:

"Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."

Further analysis will follow shortly, so watch this space!

BREAKING: AG Jääskinen says that a Member State may authorise libraries to digitise individual works without rightholders' consent

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Today it's Copyright Thursday at the Court of Justice of the European Union (CJEU). Not only is the Court just about to rule in in Case C-360/13 Public Relations Consultants Association v Newspaper Licensing Agency, but Advocate General (AG) Jääskinen has just released his Opinion [not yet available] in Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG.

This is a reference for a preliminary ruling from Germany seeking clarification as regards digitisation of works by university libraries, and relevant exception(s) under Directive 2001/29/EC (the InfoSoc Directive).

As this blog reported at the time when the case was refereed, the core issue on which the Bundesgerichtshof [the German Federal Court of Justice] is seeking guidance from the CJEU is whether, following the scanning of a book by a university library to allow its electronic reading, the book publisher may prevent further unauthorised reproductions of the book, say by means of library terminals that allow library users to print out on paper or store on a USB stick the works made available there.

The collection of the Darmstadt Technical University library includes a history book by Winfried Schulze, which the library scanned in 2009 without authorisation from the copyright holder (this being the book publisher, ie Ulmer), and made available to its users. In this regard, the number of simultaneous readers of the digital version could not exceed the number of analogue copies [= one] of the book that were actually available in the library’s collection. However, users of the digital version could print or save in their devices (such as USB memory sticks) excerpts from the book or even the book in its entirety. It is not difficult to imagine that, once the user had saved the work in his/her device, he/she could access it even from outside the library.

Ulmer was not particularly happy with the library's arrangements and, following a failed attempt to offer the university the possibility of purchasing its own ebooks, it brought proceedings for copyright infringement over unauthorised scanning of Schulze's book and other works.

Following partial victory before the Landgericht of Frankfurt am Main (Frankfurt District Court), both parties appealed before the Bundesgerichtshof, which wondered whether the university could actually rely on the exception pursuant to Article 52b of the German Copyright Act [this is the transposition into German law of Article 5(3)(n) of the InfoSoc Directive], which so states:

"So far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society."

Thus, the court decided to stay the proceedings and refer the following questions to the CJEU:

1. Is use subject to purchase or licensing terms within the meaning of Article 5(3)(n) of Directive 2001/29/EC where the rightholder offers to conclude with the establishments referred to therein licensing agreements for the use of works on appropriate terms?

2. Does Article 5(3)(n) of Directive 2001/29/EC entitle the Member States to confer on the establishments the right to digitise the works contained in their collections, if that is necessary in order to make those works available on terminals?

3. May the rights which the Member States lay down pursuant to Article 5(3)(n) of Directive 2001/29/EC go so far as to enable users of the terminals to print out on paper or store on a USB stick the works made available there?

According to this morning's press release, the AG Opinion is that a Member State may authorise libraries to digitise, without the consent of the rightholders, books they hold in their collection so as to make them available at electronic reading points.

While the InfoSoc Directive does not allow Member States to authorise users to save a book digitised by a library onto a USB stick, it does not prevent, in principle, the book from being printed as a private copy.

You may be able
to digitise rare works ...

It is true that Member States must grant authors the exclusive right to authorise or to prohibit the reproduction and the communication to the public of their works, but Member States may also provide for specific exceptions or limitations to that right. Pursuant to Article 5(3)(n) of the InfoSoc Directive, this option exists notably for publicly accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals.

According to the AG, even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals. It is only when such a contract has already been concluded that the library may no longer avail itself of the exception.

The AG held the view that the Directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if their being made available to the public by dedicated terminals requires it. That may be the case where it is necessary to protect original works which, although still covered by copyright, are old, fragile or rare. That may also be the case where the work in question is consulted by a large number of students and its photocopying might result in disproportionate wear.

However, the AG made clear that the Directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.

... But this does not authorise users
to save them on their USBs

Lastly, the AG took the view that the Directive does not allow the users of dedicated terminals to save the works made available to them on a USB stick. He noted in particular that the exception provided for in favour of dedicated terminals previously constitutes an exception to the rightholder’s exclusive right of communication. In the view of the AG, the concept of communication excludes from the exception’s scope the option of saving the work onto a USB stick, since that constitutes not communication by the library, but the creation of a private digital copy by the user. Furthermore, such a reproduction is not necessary for preserving the effectiveness of the exception, even though it would be useful to the user. In addition, the exception in question does not cover an act by which the library makes a digital copy accessible to the user so that the user may later make a copy and keep it on a USB stick.

While the AG was of the view that the exception provided for in favour of dedicated terminals no longer covers the printing of a paper copy, he nevertheless noted that the printing of a work available on dedicated terminals may be covered by other exceptions provided for by the Directive, including, in particular, the exception of private copying. In that regard, the AG saw no difference between a photocopy of pages of a work physically present in the library collection and the printing of pages of a digital copy. The risk of unlawful distribution on a large scale, present in the case of digital copies, does not exist in the case of the printing of a paper copy.

When the Opinion is made available, further analysis will follow, so: watch this space!

8 Common #Network #Utilities Explained

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common-network-utilities-on-linux-mac-and-windows

Tools like ping, traceroute, lookup, whois, finger, netstat, ipconfig, and port scanners are available on nearly every operating system you can get your hands on. They’re used for everything from troubleshooting a connection to looking up information.

Whether you’re using Windows, Linux, or Mac OS X, these tools are always close at hand. You’ll also find web-based versions of many of these utilities. Some are even available in Chrome OS’s hidden Crosh shell.

ping

These packets ask the remote destination to reply. If the remote destination is configured to reply, it will respond with packets of its own. You’ll be able to see how long the round-trip time is between your computer and the destination. You’ll see a “request timed out” message if packet loss is occurring, and you’ll see an error message if your computer can’t communicate with the remote host at all.The ping command sends ICMP echo request packets to a destination. For example, you could run ping google.com or ping 173.194.33.174 to ping a domain name or IP address.

This tool can help you troubleshoot Internet connection problems, but bear in mind that many servers and devices are configured not to reply to pings.

traceroute / tracert / tracepath

This tool can help troubleshoot connection problems. For example, if you can’t communicate with a server, running traceroute may show you where the problem is occurring between your computer and the remote host.The traceroute, tracert, or tracepath command is similar to ping, but provides information about the path a packet takes. traceroute sends packets to a destination, asking each Internet router along the way to reply when it passes on the packet. This will show you the path packets take when you send them between your location and a destination.

ipconfig / ifconfig

For example, you can use the ipconfig /all command on Windows to view all your configured network interfaces, their IP addresses, DNS servers, and other information. Or, you can use the ipconfig /flushdns command to flush your DNS cache, forcing Windows to get new addresses from its DNS servers every time you contact a new hostname. Other commands can force your computer to release its IP address and get a new one from its DHCP server. This utility can quickly display your computer’s IP address or help you troubleshoot problems.The ipconfig command is used on Windows, while the ifconfig command is used on Linux, Mac OS X, and other Unix-like operating systems. These commands allow you to configure your network interfaces and view information about them.

nslookup

Your computer is constantly querying its DNS servers to translate domain names to IP addresses. This command just allows you to do it manually.The nslookup command will look up the IP addresses associated with a domain name. For example, you can run nslookup howtogeek.com to see the IP address of How-To Geek’s server.

nslookup also allows you to perform a reverse lookup to find the domain name associated with an IP address. For example, nslookup 208.43.115.82 will show you that this IP address is associated with howtogeek.com.

whois

The whois command looks up the registration record associated with a domain name. This can show you more information about who registered and owns a domain name, including their contact information.

This command isn’t included with Windows itself, but Microsoft’s Windows Sysinternals provides a Whois tool you can download. This information is also available from many websites that can perform whois lookups for you.

netstat

netstat stands for network statistics. This command displays incoming and outgoing network connections as well as other network information. It’s available on Windows, Mac, and Linux — each version has its own command-line options you can tweak to see different types of information.

The netstat utility can show you the open connections on your computer, which programs are making which connections, how much data is being transmitted, and other information.

finger

The finger command is old and is no longer widely used. In theory, this command allows you to view information about users logged onto a remote computer. If the computer is running a finger service or daemon, you can use the finger command on your computer to see who’s logged in on that remote computer, their email address, and their full name. In practice, almost no computers are running a finger service you can connect to.

This utility was a cute idea in the early days of networking where you might want to see who was logged into the other few computers on your university network, but it’s not suitable for a dangerous internet. You don’t want people to see your full name and email address when you’re using a computer.

Still, the finger command lives on as a common network utility and is even still included in modern versions of Windows. Windows doesn’t include a finger service that can share this information with others, though.

Port Scan / nmap

The nmap utility is a common tool used for port scans, but there are many utilities that can run this sort of scan. A port scan is the process of attempting to connect to every port on a computer — ports 1 through 65535 — and seeing if they’re open. An attacker might port-scan a system to find vulnerable services. Or, you might port scan your own computer to ensure that there are no vulnerable services listening to the network.

source

#Amex To Notify #California Customers Of #CardDump linked to #Anonymous

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