Internet legal developments to look out for in 2014 (Updated)

[Updated with progress as at 20 December 2014 and further updated 7 October 2015]

And see: Cyberlaw Memes and Themes for 2014

2013 has been a busy year for cyberlaw. But what does 2014 hold? Here are some developments in the UK and EU pipeline.

1.  Defamation Act 2013. This legislation comes into force in a few days’ time, on Wednesday 1 January 2014.   

• It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
• As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation. 
• The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.  
• There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication. 

The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.

2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force by 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014. [The copyright exceptions were intended (per the Minister in the IP Bill 2nd Reading Debate) to be laid before Parliament in February 2014 for debate under affirmative resolution procedure. Draft regulations were in fact laid before Parliament and published, together with a response to the technical review, explanatory notes, guidance and other supporting documents, on 27 March 2014 with a view to coming into force on 1 June 2014. All except the parody and private copying exceptions did so. These two exceptions were deferred following questions from the Joint Committee on Statutory Instruments. The drafts were then reissued for debate in Parliament, passed and come into force on 1 October 2014. Following a challenge by judicial review the private copying exception regulation has since been quashed.] [The European Commission Consultation response date was extended until 5 March 2014 and is now closed. 11,117 submissions were received.]

3. Blocking orders.  Constantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely. [The CJEU issued its judgment on 27 March 2014. Comments here.]

4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability. [Svensson judgment issued on 13 February 2014. Discussion here.]

5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement.  Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks. [Blomqvist judgment issued on 6 February 2014. Summary here. AG Opinion in Pez Hejduk issued on 11 September 2014 (not yet in English). CJEU judgment in Pez Hejduk issued on 22 January 2015. Opted for mere accessibility as the threshold for jurisdiction over online copyright infringement.]

6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights. [17 Feb 2014 ECHR Grand Chamber decides to refer Delfi case (i.e. hear an appeal). Hearing on 9 July according to AdVox. Papasavvas judgment issued 11 September 2014. No surprises. Confirms previous CJEU caselaw, including application of eDate/Martinez to defamation. No mention of Delfi.]

7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU. [CJEU judgment issued 5 June 2014. Browsing permission not required.]

8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights. [In the latter the ECtHR requested the UK Government to provide written observations on admissibility and merits by 2 May 2014. The complaint has been stayed pending the outcome of the IPT cases (hearings July 2014). The IPT found that the challenged activities (PRISM intelligence sharing and the hypothetical use of RIPA S.8(4) warrants for TEMPORA were, in the light of disclosures of practices and policies made by the government during the proceedings, 'in accordance with the law' going forwards. The position prior to the disclosures would require further consideration. In a further judgment the IPT found that PRISM intelligence receipt prior to the disclosures made in the proceedings contravened Articles 8 and 10 ECHR. In the meantime the CJEU on 8 April 2014 invalidated the Data Retention Directive. As a result the UK government substantially relegislated the Data Retention Regulations 2009 in the Data Retention and Regulatory Powers Act (DRIPA). On 8 December 2014 MPs David Davis and Tom Watson (represented by Liberty) were granted permission to proceed with a judicial review of S.1 DRIPA, with the Open Rights Group and Privacy International intervening. The High Court disapplied S.1 on 17 July 2015, suspended until 31 March 2016. My mindmap of the UK interception legal landscape as at 7 October 2015:]

9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then.  It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward. [Voluntary letters scheme 'Creative Content UK' announced 19 July 2014.]

See also: Cyberlaw Memes and Themes for 2014

A Cuban approach to achieving Internet connectivity

(Spanish version)

Cuba's domestic Internet infrastructure is one of the worst in the world and the prospects for improvement are dim because of the U. S. embargo, a Cuban government policy of access control and scarcity, ETECSA's power, the lack of a trained, demanding technician and user base and a lack of capital. Can these obstacles be eliminated?

The embargo will eventually be dropped, and there are signs that that may be relatively soon. In the interim, China and others are willing to sell to and trade with Cuba.

Governmental control policy can change. When Cuba first joined the Interent, there was high level debate over the dictator's dilemma -- the perceived political and cultural threat of the Internet versus its value in improving people's lives and the economy. The decision was made to control the Internet and access to it, but that is not set in stone -- it can be reversed.

How about ETECSA? Is there any nation in which the incumbent telecommunication provider -- whether government owned or privately held -- has not acted in its self interest to the detriment of the people and economy? I suspect the answer to that question is "no." I have no knowledge of the current management of ETECSA, but I would be surprised if they were different than others.

ETECSA is jointly owned by the Ministry of Information and Communication and RAFIN, SA. The Ministry is of course part of the government and subject to political will -- policies and leaders can change.

RAFIN is a different matter. I don't know what their role is in the management of ETECSA. I don't even understand what the role of an "SA" is in a socialist nation. Where did they get the capital to purchase Telecom Italia's share of ETECSA? Who are the shareholders and investors? Do they share ETECSA profits and losses? Do they have a "seat on the board" -- a voice in picking executives and making policy decisions? I need the help of an economist here.

A trained, demanding technician and user base will come after connectivity becomes useful, widely available and affordable -- it will follow, not lead the path to a modern Internet.

That leaves the lack of capital. The Chinese took an active role in the financing and installation of the ALBA-1 undersea cable, and we speculated that they might also invest in complementary domestic infrastructure, but that has not happened.

The conventional wisdom from the World Bank or International Telecommunication Union is that the way to raise capital for connectivity is to privatize the telecommunication/ISP industry, and invite foreign investors to build infrastructure and compete on a level playing field watched over by a regulating agency -- privatization, regulation and competition (PCR).

Raúl Castro announced that they are working on a new foreign investment policy, which is of "singular importance to stimulate economic and social development of the country." The law is expected to be approved next March. It remains to be seen whether the new law and perceived demand would attract major investors, but even if they would, there is a problem with the PCR strategy -- it does not work well.

Many developing nations opted for PCR between 1991 and 2008:

In 2009 I looked at the data and concluded that "PCR has had little impact on the Internet during the last ten years in developed or developing nations." I have not updated that paper with subsequent data, but our experience in the US shows that private ownership of telecommunication service providers does not guarantee competition, efficiency and good service in spite of the good intentions of the regulators and congress.

We need a Cuban solution.

It would be great if Cuba could afford modern telecommunication infrastructure, with fiber to premises and backhaul for LTE mobile communications, but it cannot, so we need to think about cheaper interim approaches. The remainder of this post will speculate on one possibility -- a decentralized, multi-satellite policy.

Several years ago, I wrote a couple of articles (here and here) surveying wireless technologies for connectivity in developing nations -- tethered and untethered high-altitude platforms (HAPs), terrestrial wireless (WiMAX was a hope at the time), low-earth orbit (LEO) satellite constellations and very small aperture satellite terminals (VSATs).

Google is experimenting with HAPs, but there are no meaningful deployments. As far as I know, no one is studying LEO satellites and WiMAX has not developed as envisioned. At the time of those earlier articles, VSAT was the only option for connecting rural areas in nations like India, but VSAT ground stations were large, expensive and slow.

Since that time, technology has progressed and the consumer market for satellite connectivity has grown. U. S. providers HughesNet and Viasat have 1,398,000 subscribers between them. In spite of long latency times, I have had smooth video conversations with friends using home satellite dishes in rural Brazil and Chile. The antennae are small, costs are down and speeds are up.

What if Cuba were to encourage the use of these dishes rather than ban them?

Cuba has said they will authorize agents to sell telephone and Internet time. What if they were to expand the program to allow those agents to own and sell time and services using satellite Internet links, in the same way Grameen Phone ladies in Bangladesh bought mobile phones to resell call time.

Today, there are a few illegal satellite installations in Cuba. Imagine 1,000 legal satellite dishes dispersed throughout the island providing Internet access and VOIP calls (which are illegal today).

If that were to be considered, I imagine ETECSA would want to own the ground stations and set prices. That would insure profits and government control over Internet access, but it would be short sighted. Allowing the satellite operators to own their own equipment, would create a decentralized, self-organizing group of entrepreneurs who would bring effort and innovation to the project.

The situation in Cuba today is reminiscent of the Internet in the late 1980s in the U. S. TCP/IP had been invented and shown to be effective in the APRANet and CSNET. The potential of the network was obvious to those who had used it, but access was restricted to a few organizations and people.

In order to bring others online, The National Science Foundation established NSFNet. They contracted for a national backbone network and offered all U. S. colleges and universities grants to cover the cost of a router and a connection to the backbone. They also offered connectivity to education and research networks in developing nations. When it was decommissioned in April 1995, NSFNet was the global backbone, linking 28,470 domestic and 22,296 foreign networks. (Note that Sprint, the developing nations connectivity provider, also provided connectivity to Cuba in spite of the embargo).

The entire NSFNET project cost the U. S. taxpayer $94.5 million -- a small investment with an inestimable return. Blanketing Cuba with small satellite dishes would have similar results.

The NSFnet investment was highly leveraged. While universities got free connections to the backbone, they were expected to provide access for faculty and students. Collectively, universities invested much more in their campus local area networks, training and staff than NSF did in NSFnet. The decentralized approach and the end-end network architecture pushed both capital formation and innovation to the edge of the network where there were eager investors and entrepreneurs.

What would be the role of the Cuban government in a decentralized satellite access world? Their most important task would be capacity planning and negotiating with satellite communication companies for bandwidth. They would also specify, evaluate and purchase ground station equipment (some of which could be manufactured on the island).

They should also take the lead in developing software for efficient offline operation with automatic compression and data transfer when the user goes online. That software would be useful in any limited bandwidth nation, not only Cuba. Necessity being the mother of invention, we might even see some novel solutions for busy executives travelling in "airplane mode."

The government should also support the satellite operators by offering loans to help with initial equipment costs and by facilitating training and the sharing of experience and best practices. One can imagine a government run micro-finance bank offering loans and the government paying the overhead costs for a satellite operator's association. As was the case with NSFNet, the government could phase out of some of this activity once the network was stable and self-sustaining.

Of course the satellite system is an interim step -- in the long run, it will be phased out in favor of modern fiber infrastructure. The satellite system would pave the way to that goal by building user skill and demand. The satellite links would also guide the government in allocating scarce fiber resources -- high demand areas would be connected before others. (Google followed a similar strategy in prioritizing neighborhoods when rolling out their gigabit network in Kansas City -- areas with many committed subscribers were the first to be connected).

Note that I have suggested the government be responsible for a fiber backbone, but not for providing Internet service. They should view the backbone as they view highways -- providing infrastructure for use by independently owned trucks, buses and cars. China followed a similar Internet rollout strategy, with government organizations building backbone networks that, by the end 1999, were being used by over 500 Internet service providers.

Recall that the NSFNet universities provided their own local area networks. One can also imagine pueblo or ciudad-area networks linking the ground stations in a town. As with NSF, the design and investment in any such networks should be local. In this case, I am reminded of the home-made TV distribution networks, in which people would install their own coaxial cable to connect homes and other locations to a central ground station.

At the start of this post, I listed hurdles along the road to Cuban connectivity. I have outlined a low-cost, bootstrap proposal for connectivity that does not require foreign investment.

That leaves the political hurdles. Maybe there is hope. As noted above, the U. S. has signaled a desire for political change and Raúl Castro has admonished Cubans to embrace economic reforms "without haste, but without pause."

More specific encouragement comes from First Vice-President Miguel Díaz-Canel, who has stated that "Today, with the development of information technologies, of social networks, of computing and the Internet, prohibiting something is almost a chimera, impossible ... makes no sense ... We must constantly be in dialogue."

I recognize the irony in proposing that the government embrace a technology that led to the imprisonment of Alan Gross and others. Reversing the law on satellite communication would require political courage, but it would also provide the government a powerful argument against the charges leveled against them and they would be pursuing a Cuban solution -- one in which the Internet is operated as a service to the people and society, not the government or telecommunication companies.
-----
Update 1/5/2014

A person commenting on this post argued that U. S. policy would not have to be changed for this proposal to succeed -- he suggested that the policy changes announced by the administration in April 2009 cleared the way for sales of satellite Internet service.

The administration fact sheet on Reaching out to the Cuban People authorizes fiber-optic cable and satellite telecommunications facilities linking the United States and Cuba. It goes on to explicitly allow satellite radio and television service, but does not mention Internet service.

I sent an inquiry to the Treasury Department asking if a satellite Internet provider would be able to get a license to serve a Cuban account. A spokesman replied that he would find out and let me know.
-----

Update 1/17/2014

Satellite ISP IPSTAR says they have connected over 26,000 schools in Thailand, allowing more than 2,000,000 students access to online learning materials and IP-based applications. They downlink to LANs in schools and learning "cafes" and focus on delivering teaching matrial. This program appears to be relatively centralized and narrowly focused, but it is an example of a government sponsored satellite connectivity project.

Here is a short IPSTAR video on education and other applications:


----

Update 2/10/2014

As noted above, there are political obstacles to this proposal in both Cuba and the U. S. I asked the Office of Foreign Assets Control (OFAC) of the U. S. Treasury Department, which oversees our Cuba trade policy, about this proposal.

OFAC's Cuban Assets Control Regulations policy regarding the Internet is as follows:

§515.578 Exportation of certain services incident to Internet-based communications.

(a) Except as provided in paragraph (b) of this section, the exportation from the United States or by persons subject to U.S. jurisdiction to persons in Cuba of services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, is authorized, provided that such services are publicly available at no cost to the user.

(b) This section does not authorize:

(1) The direct or indirect exportation of services with knowledge or reason to know that such services are intended for a prohibited official of the Government of Cuba, as defined in §515.337 of this part, or a prohibited member of the Cuban Communist Party, as defined in §515.338 of this part.

(2) The direct or indirect exportation of Internet connectivity services or telecommunications transmission facilities (such as satellite links or dedicated lines).

Note to §515.578(b)(2): For general licenses related to the provision of telecommunications services between the United States and Cuba and contracts for telecommunications services provided to particular individuals in Cuba, see §515.542(b) and §515.542(c), respectively, of this part. For a general license and a statement of specific licensing policy related to the establishment of telecommunications facilities linking the United States or third countries and Cuba, see §515.542(d) of this part.

(3) The direct or indirect exportation of web-hosting services that are for purposes other than personal communications (e.g., web-hosting services for commercial endeavors) or of domain name registration services.

(4) The direct or indirect exportation of any items to Cuba.

Note to §515.578(b)(4): For the rules related to transactions ordinarily incident to the exportation or reexportation of items, including software, to Cuba, see §§515.533 and 515.559 of this part.

(c) Specific licenses may be issued on a case-by-case basis for the exportation of other services incident to the sharing of information over the Internet.

The policy disallows satellite Internet connectivity services, which I have proposed here, but it does allow for specific licences on a case by case basis. When I asked about that, a spokesperson stated "Off the record, I just don't think our licensing policy has extended that far."

I checked with a second expert, anonymous source who disagreed, stating that a license probably would be granted and that an explicit change in policy was in fact under consideration.

He also pointed out that the biggest sticking point might be the issue of garnishment/attachment -- U. S. companies are afraid that by entering into business with Cuba/ETECSA, they would open themselves to lawsuits in the U. S. by Cuban-Americans trying to recuperate damages for expropriations by the Cuban government. This roadblock might require Congressional legislation to “protect” U. S. companies from such suits.

The bottom line from the U. S. side seems to be that there are obstacles, but there seems to be a desire to overcome them -- that would leave the ball in the Cuban government's court.

-----
Update 6/30/2014

Google has several non-terrestrial communication projects that could be deployed in Cuba and Eric Schmidt travelled there, leading us to wonder whether Google might not be intersted in providing Cuban connectivity.

-----
Update 8/22/2014

MIT Media Lab founder Nichlas Negropont gave a TED talk summrizing his work over the last 30 years. He concludes with his plan for the future -- using stationary satellites to connect the "last billion" -- the poorest, rural people -- to the Internet. (That part of his talk begins at 17:05). He mentions that he has a partner in this project -- might it be Google?


Here is what he had to say:

And so my plan, and unfortunately I haven't been able to get my partners at this point to let me announce them, but is to do this with a stationary satellite. There are many reasons that stationary satellites aren't the best things, but there are a lot of reasons why they are, and for two billion dollars, you can connect a lot more than 100 million people, but the reason I picked two, and I will leave this as my last slide, is two billion dollars is what we were spending in Afghanistan every week. So surely if we can connect Africa and the last billion people for numbers like that, we should be doing it.

VOIP in Cuba -- what is the goal?

+Alam Brito sent me a link to a story about two Cubans who were caught selling illegal voice over IP (VOIP) telephone calls on the Interent in 2009. They were accused of having cost ETECSA $150,000 in revenue.

If that was true, another way to look at is that they saved Cuban citizens $150,000 minus their profit.

I don't know if the story is fact or fiction -- the technology it describes does not seem like javascript:void(0);it would work with limited dial-up bandwidth and satellite latency -- but the part about VOIP being illegal in Cuba is true. (If you have used Cuban VOIP domestically or internationally let me know about the call quality).

The first VOIP program on the Internet was Vocaltec's 1995 Internet Phone. It was a hobbyist novelty at first, but it was clear that that it offered the possibility of cutting phone bills and therefore telephone company revenue and tax. Recall that in 1995, many nations had state-run monopoly phone companies and they derived significant revenue from them.

The reaction of governments in many developing nations was to ban VOIP calls. For example, during a 1998 study of the Internet in India, my colleagues and I observed that VOIP calls were illegal, but the law was not enforced. VOIP shops advertised and operate openly.

India realized that VOIP was significant technology for a developing nation with low teledensity and income and a large expatriate population and legalized it a few years later. While many nations have done the same, VOIP remains illegal in Cuba. (I would like to see a list of the nations where VOIP is illegal).

It is tempting to point to this as another example of the inefficiency and greed of state-run enterprises and to call for privatization, inviting competitors in and trusting in the market watched over by a regulator to work in the public interest -- a strategy of privatization, competition and regulation (PCR). Indeed, as we see below, many nations privatized their telephone companies during the early years of the Internet:

However, In 2009, I wrote wrote an article presenting "data indicating that PCR has had little impact on the Internet during the last ten years in developed or developing nations."

I have not updated that paper with subsequent data, but our experience in the US shows that private ownership of telecommunication service providers does not guarantee competition, efficiency and good service.

I don't pretend to know The Best Way to structure ownership and management of telecommunication infrastructure, but the most successful nations (and cities) seem to be those in which the government provides some wholesale infrastructure and encourages retail service providers to compete.

While the optimal telecommunication ownership and control policy may differ from one location to another, the goal of that policy should be clear -- enriching people's lives and improving the economy -- not maximizing government revenue or the income of telecommunication investors and managers.
-----

Update 12/22/2013

Raúl Castro announced that they are working on a new foreign investment policy, which is of "singular importance to stimulate economic and social development of the country." The law is expected to be approved next March.

It remains to be seen whether the new law and perceived demand would attract major telecommunication investors, but even if they could, as we saw above, that may not be in the best interest of the Cuban people.

US-Cuba thaw -- would it help the Internet?

President Obama and Raúl Castro shaking hands at the memorial service for Nelson Mandela drew a lot of news coverage, but it is just the latest sign of softening of US policy.

In 2009, President Obama said he is seeking "a new beginning" in U.S. relations with Cuba. For over a year, Conrad Tribble, second ranking diplomat at the US Interests Section in Havana, has been visible as he engages in dialog with dissidents and loyalists on Twitter (@conradtribble). He is shown here meeting with Cuban bloggers.

Last month, President Obama called for revision of our 1961 Cuba policy to reflect the reality of "the age of the Internet and Google and world travel," and Secretary of State Kerry, speaking of Cuba, said "We have to continue to update our policies."

Change is in the air -- my question is, how will this effect the future of the Internet in Cuba?

The domestic infrastructure (mobile and landline) is woefully inadequate. A couple of years ago, I wondered whether China would finance an upgrade, and I guess the answer was "no." Might a warming of relations between the US and Cuba change China's stance?

What if the US were to drop the embargo tomorrow -- would Cuba be willing to accept foreign investment in ETECSA? In 2011 Rafin, SA bought out foreign investor Telecom Italia's 27% share of ETECSA and the rest is owned by the Ministry of Information and Communication. I do not understand how an SA operates in a socialist state or what its relationship is to the government, but they are not a foreign investor. Would the government allow competing service providers? The short term answer is surely "no."

I am not an economist, but I suspect that even if I were, it would be tough to imagine the path to modern Internet infrastructure in Cuba regardless of US policy.

Connect Cuba's video

A couple of months ago, the Foundation for Human Rights in Cuba (FHRC) used the crowd-funding site Indiegogo to raise $35,000 for a campaign to "connect Cuba".

One of the things they promised to use the funds for was a campaign video, which is now online in both English and Spanish.



Video in Spanish

You can judge for yourself, but I had mixed feelings watching the video. It accurately depicts the sorry state of Cuban connectivity, shows and promotes the use of flash drives to circulate information within the island and I am on board with the goal of improving Cuban connectivity.

But, I was put off by the heavy handed presentation. The plot -- a woman takes pictures of some prostitutes and hands them on a flash drive to a colleague who writes a blog post about sex tourism in Cuba -- is not very subtle and the video feels like "made in the USA" propaganda. It was shot in Cuba, but I doubt that the actors were from Cuba. (If they are Cubans, they are in trouble). It even crossed my mind that some of the scenes in which the actors appear may have been shot on a set.

Regardless, it is for a good cause.

The FHRC has established Spanish and English Web sites for the Connect Cuba campaign. They are soliciting signatures for a petition and promise to work on the distribution of flash drives in, out and within Cuba.

-----
Update 11/5/2014

Connect Cuba has a second video, showing their logo being stenciled on walls in Havana:

Activismo para Conecta Cuba en La Habana from Connect Cuba on Vimeo.

The also have a YouTube channel at: https://www.youtube.com/user/FHRCuba

They said they would be running a sneakernet -- distributing information in Cuba using flash drives. If anyone knows more about their sneakernet activity, please let me know.

Video game developed by the Youth Computer Club

Che Guevara and Fidel Castro have inspired a Cuban shooter game, Gesta Final

Gesta Final is a keyboard operated game developed by a 12-person team directed by Haylin Corujo, head of video game studies for Cuba's Youth Computer Club.

It is intended to teach history as well as entertain and will be sold on the island, which means it will be relatively cheap. We have suggested that Cuba could exploit the ALBA-1 cable to serve Spanish language education -- could Cuba become a game exporter?

Has there been any reverse piracy yet -- have copies turned up in the US?

Alan Gross in context

We have followed the Alan Gross case because of its tie to the Internet in Cuba, but he is not the only American citizen being held on political charges in a foreign nation.

CNN has compiled information on the cases of Gross and dozens of other American citizens held by the governments of Egypt, Iran, North Korea and Venezuela. The CNN post lists the names of the detainees along with timelines for events in their cases.

One hour Cuban Internet outage

Doug Madory of Renesys reports that Cuba was unreachable via satellite or the ALBA-1 cable for one hour today. I've no idea what the problem was -- preventative maintenance?, equipment upgrade? -- I will post a followup if I learn more.

Everyman links to a copyright work

Everyman: I’m trying to understand copyright and linking. With three pending references to the CJEU (Svensson, C More Entertainment, BestWater) I guess we will get some clarity before too long?

Scholarly Lawyer: We’ll get decisions. Clarity would be a bonus.

E: Why is this an issue at all?  Doesn’t everyone link on the internet?

SL: Of course. Trillions of links cause no problem at all. But some copyright owners want the right to control who creates links, or at least public links, to their works.

E: Do they have any basis for that? 

SL: The main battle at the moment is around the copyright communication to the public right.  Some national courts have said that it covers some types of linking.

E: Even where the rightsholder has put the material on the internet itself?  We’re not just talking about linking to infringing copies?

SL: Communication to the public is a pretty blunt instrument. It just refers to communication to the public of ‘works’. 

E: Which could cover authorised as well as unauthorised copies?

SL: Exactly. If the right covers linking to infringing copies, on the face of it copyright owners end up with a right to control linking to material that they have put on the internet themselves.

E: Which would be absurd.

SL: Most people would think so.  Even the most devoted adherents of strong copyright tend to stop short of arguing that rightsowners should be able to control simple linking to their own material.  

E: So where do they draw the line?

SL: They tie themselves in knots trying to do it.  The reality is there is no obvious principled basis on which to distinguish legitimate from illegitimate linking within the communication to the public right – and probably no comprehensible one either.

E: But didn't Mr Justice Arnold recently distil 18 principlesfrom the nine CJEU cases on communication to the public?

SL: Yes. A heavier burden than one sentence of any EU Directive should have to bear.
E: What about reference linking?  Isn’t that a good dividing line?

SL: No-one agrees on what reference linking is. All links have a reference function because they refer to resources on the internet.  But you are right: the International Literary and Artistic Association (ALAI) based their recent Report and Opinion on what they called reference linking.

E: How did they define it?

SL: They distinguished between a link direct to specific material protected by copyright, using its URL; and a link which “does not make a specific protected material available, but merely works as a reference to a source where it may be possible to access it and where access to the specific work itself or otherwise protected material is not achieved.”

E: A bit of a mouthful, but doesn’t that make some sense?

SL: Not really.  This is a link to the ALAI report – a PDF file. The ALAI’s position is that it needs their permission (assuming they are the copyright owner), because it is direct to specific copyright protected material using its URL. A link to a file, in other words.

E: OK then, this link is to the page containing the ALAI report. Aren’t they saying that that link shouldn’t need permission because it only refers to a source from which you can access the report?

SL:  If so, it doesn’t help. The page that you have just linked to is itself probably a copyright work. The link may be a reference link viz a viz the report, but it is a direct link to the webpage using its URL. The webpage is an HTML file.  So on the ALAI’s logic it must need the permission of the copyright owner of the web page. You still end up in the position that every link – even a link to a home page – needs permission, unless the target page is for some reason not protected by copyright.

E: Oh. What sort of other links are there?

SL: You name it.  Simple links, deep links, inline links, embedded links, framing links, aggregating links, links to infringing copies, links to downloads, links to streams.

E: But none of them involves the linking site in storing the copyright material?

SL: Correct, except where the linking code has captured a thumbnail of a target image or video. And in none of them is the linking site or link creator part of the transmission stream.  That always goes direct from the target site to the user.

E: Does that matter?

SL: The Copyright Directive talks about the right to authorise or prohibit communication to the public of the work “by wire or wireless means”. According to Recital (23) the right “should not cover any other acts”.

E: That’s why the UK copyright legislation says the communication must be "by electronic transmission"?

SL: Yes. So you would expect the right to apply to those who initiate or intervene in the actual transmission.  That’s been true of every CJEU case so far.  The furthest the CJEU has gone, in Airfield, is to include someone who provided the encryption key and decryption card that enabled a user to receive an encrypted broadcast. The CJEU said this was an intervention without which those subscribers would not be able to enjoy the works broadcast.

E: Seems a long way from linking.  Surely people can access a work on the internet whether or not someone has linked to it?

SL: If it is publicly available, yes. The European Copyright Society Opinion on Svensson leads with the transmission point.  They say “Hyperlinks are not communications because establishing a hyperlink does not amount to ‘transmission’ of a work, and such transmission is a pre-requisite for ‘communication’.”  

E: But many national courts have held that linking can be a communication to the public.  If intervention in transmission is required, how can they have done that?

SL: By taking a very broad view of intervention.  The courts have tended to consider intervention in the availability of the work generally, without really focusing on whether there was intervention in the transmission.

E: Does any of this really matter? Isn’t linking so widespread that we all have implied permission to do it?

SL: Not if there are express licence terms on the target website.  And probably not if the link is to an infringing file.  In any case implied licence doesn’t address some pretty fundamental objections to requiring permission. Is a Twitter user really supposed to access the target site and check whether there are express licence terms, and if not consider whether there might be an implied licence, before tweeting (or retweeting) a link to an item on it? And how can the tweeter tell if the siteowner is entitled to give permission? In Svensson the link was to articles licensed by a newspaper, but which the plaintiff journalists said the newspaper didn’t have their authority to license.

E: I feel a chilling effect coming on.

SL: You’d be right.

E: Didn’t Tim Berners-Lee say that a right not to be referred to pulls the rug from under free speech?

SL: Yes. And SABAM v Scarlet demonstrates that the days when copyright could sit in its own little bubble, finely dissecting the wording of copyright treaties without regard to the human rights framework around it, are long gone at least in Europe.

E: If there are international treaties, don’t we have to abide by them?

SL: Certainly, but copyright instruments are not the only international treaties to which we adhere. The European Convention on Human Rights is also an international treaty. A copyright treaty has to be interpreted in a way that is compatible with and takes into account international treaty obligations in respect of fundamental human rights.

E: Aren’t some types of linking still potentially damaging to copyright owners?

SL: Perhaps, but the communication to the public right is far too blunt an instrument to catch culpable behaviour while leaving the rest alone.  If you want to catch culpable behaviour, there are better tools such as accessory liability for someone else’s infringement.  However that is outside the CJEU’s remit as it is not harmonised across the EU.

E: Roll on Svensson.
 

Communication agents will sell telephone and Internet time

ETECSA is taking applications for communication agents who will sell and reload prepaid phone and Internet access cards, make calls and collect bills.

The agents will work on commission and charge the same prices as ETECSA. They will also pay taxes. Will this eliminate the black market for resale of Internet access?

This is reminiscent of Grameenphone's Village Phone agents in Bangladesh. In 1997, Grameen Bank began making making micro-finance loans to agents in rural villages who would purchase cell phones and sell calling time. They now have 210,000 phone agents and have also established "hut spots" -- village Internet access and services offices.

Quick update on Alan Gross on the fourth anniversary of his imprisonment

Alan Gross’ wife plans a protest at the White House on December 3 -- hoping to persuade President Obama to move to exchange Gross for the "Cuban Five."

I learned of this planned protest from a press release issued by JTA, a Jewish news agency. JTA has published 23 releases on Gross since he was arrested -- providing a timeline for the case.

I've also published several more detailed posts on this blog.
-----

Update 12/2/2013

What do Barbara Boxer and Ted Cruz agree on? That Alan Gross should be freed.

On the fourth anniversary of his imprisonment in Cuba, former U.S. government contractor Alan Gross wrote a letter to President Obama, asking him to personally intervene in his case.

That letter, two others, signed by 14 and 66 US Senators are reproduced along with an article on the case in the Washington Post.
-----

Update 2/10/2014

Senator Heidi Heitkamp, a Democrat from North Dakota just returned from a three day trip to Cuba to talk about agricultural trade. Heitkamp, who favors a change in our relationship to Cuba, met with Alan Gross and said that his "incarceration has really led to a point of difficulty in our continuing effort to normalize relations."

-----
Update 8/4/2014

Alan Gross is depressed and threatening suicide, saying "life in prison is not a life worth living." What he attempted would have had little practical impact had he succeeded -- why prolong his imprisonment?

-----
Update 10/5/2014

CCTV (Chinese) video (9:48) interview of Judy Gros, wife of Alan Gross, She claims he was there to connect to the Cuban intranet, not the Internet, but then what was the satellite equipment for? She also claims that Gross did not know he was violating Cuban law. They also mention the Zunzuneo project, which she calls "stupid."

-----
Update 11/3/2014

A New York Times editorial calls for a prisoner swap -- Alan Gross for the remaining Cuban Five. For more on Alan gross click here.

Supporters of Alan Gross across from the White House last year. CreditPaul J. Richards/Agence France-Presse — Getty Images

A poster in Havana of the Cuban Five, in August 2005.CreditAdalberto Roque/Agence France-Presse — Getty Images

-----
Update 11/8/2014

CNN reports that there have been government talks about a prisoner exchange:

The signs include the admission this week by senior administration officials that talks about a swap between Gross and three imprisoned Cuban agents -- part of group originally known as the Cuban Five -- have taken place.

The coverage also includes a short video:



_____
Update 11/12/2014

Senators Jeff Flake, a Republican from Arizona, and Tom Udall, a Democrat from New Mexico, said they met with Gross for about two hours during a trip that included meetings with Cuban officials and they are optimistic about the release of Alan Gross.

There has been a flurry of other news about Alan Gross lately. Articles about him have been turning up in my "Google Alerts" pretty much every day, the USAID is reviewing their Cuban-democracy efforts and the New York Times and others are calling for the release of Gross and the end of the embargo.

I would not be surprised if he were released soon.

_____
Update 12/3/2014

Suggestion for a negotiating tactic

Would it help if the US were to take responsibility for the various USAID attempts to influence Cubans?

-----
Update 12/11/2014

Clip from interview of President Obama (1m 2s) -- they've been negotiating for some time through a variety of channels.

Advocate General's Site Blocking Opinion in 15 tweets

[Update: the Court issued its judgment on 27 March 2014.  My assessment here.]

Today the CJEU issued the Advocate General's Opinion in the UPC Telekabel copyright site blocking case.  The Court's official press release is here (PDF).

And here is my attempt to summarise the Opinion (doing the best I can courtesy of Google Translate, since there is no English version) in 15 tweets:


  As a reminder, these were the questions posed by the Austrian court:

1. Is Article 8(3) of Directive 2001/29/EC (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder's consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? [AG's suggested answer: Yes.]

2. If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? [AG's suggested answer: N/A.]

3. If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Information Directive:

Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder's consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? [AG's suggested answer: No.]

4. If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? [AG's suggested answer: It can be. The national court must balance the various competing fundamental rights.]

Hat tip to Thijs van den Heuvel (@TMVDH) for Storifying my tweets.

Material para enseñar a los niños a programar y usar las computadoras

Mi hija y yo estamos preparando una colección de materiales didácticos en español dirigida a los jóvenes. Nos estamos centrando en tres programas - Tuxpaint, Scratch y FrontlineSMS.

Tuxpaint es un programa de dibujo dirigido a los niños de escuela primaria - que tiene todo tipo de herramientas, como sellos y transformaciones, que permiten de forma rápida hacer dibujos complejos con sonidos atractivos. Los niños pequeños lo aprenden con facilidad lo que les permite desarrollar las habilidades para navegar por el sistema operativo y el sistema de archivos - para construir un modelo mental de su equipo.

Scratch es un entorno de programación de arrastrar y soltar dirigido a los niños mayores. Se utiliza para crear programas gráficos que manipulan los objetos que representan los coches, pelotas, personas, etc. Los niños son inmediatamente capaces de crear programas sencillos, dirigidos por eventos, y pueden aprender cada vez más complejos programas - incluyendo muchos conceptos de programación como iteración, sentencias condicionales, tipos de datos, etc. Si tienen acceso a la Internet, también pueden compartir sus programas y colaborar con una comunidad mundial que ha compartido más de 4 millones de proyectos.

FrontlineSMS permite configurar un servidor de lista de mensajes SMS para cualquier comunidad de interés común, con independencia de lo que el interés es. Los mensajes se archivan en el servidor y se envían a los miembros de la comunidad. Esto ilustra la idea de un servicio Web y capacita a los jóvenes (o las personas mayores) para establecer comunidades de usuarios en las áreas de su interés y experiencia.

El material didáctico está en línea y usted puede usarlo para enseñarle a sus niños o uso personal. Si lo usa, o si tiene alguna sugerencia por favor háganoslo saber. Si su experiencia ha sido satisfactoria informe a otros usuarios de su existencia.

Electronic commerce in Cuba

A recent Juventud Rebelde post explains what electronic commerce is and gives a few examples of Cuban electronic commerce.

The good news is that there is a spark of interest in the topic.

The sad news is that they feel the need to explain "electronic commerce."

More sad news -- Carlos Lage (and others) pointed out the opportunity cost of restricting the Internet shortly after Cuba connected. In 1997 he said:

One telex can cost twelve dollars [whereas] the same message costs 75 cents in the form of a fax and 3 cents via the Internet ... in spite of our blockaded circumstances, we are in a relatively good position [to face the challenges of such scientific and technological changes], due to the educational and scientific work developed by the revolution.

CNN Video of Cuban Internet access centers

A short CNN news video covers one of the new Internet access centers in Havana (2m 19s).

Ilegal satellite Internet service in Cuba

Alan Gross is in prison for bringing personal satellite equipment into Cuba and a plot to smuggle dishes in disquised as surfing equipment was foiled, but it seems that a clandestine business operating out of Miami has succeded where they failed.

According to articles in the Miami Herald and El Nuevo Herald, the anonymous businessman has sold at least 35 personal satellite systems in Cuba -- for Internet access and low-cost international calls.

The anonymous business man runs a Web page which redirects to a video showing images of dishes, which are presumably in Cuba.

The video, which was uploaded on July 26, 2009 has the following description:

SI NECESITA SERVICIO DE INTERNET EN CUBA LE PODEMOS AYUDAR CON NUESTRA EXPERIENCIA, ALTA VELOCIDAD AL ALCANCE DE SU FAMILIAR, FUNCIONA PARA TODO LLAMADAS VOIP, DESCARGAS, CAMARA, VARIAS PC CONECTADAS,SOMOS LA UNICA ENTIDAD CON EXPERIENCIA PROBADA PARA HACER ESTO EN CUBA, EL SISTEMA INSTALADO ALLA CUESTA 3500$ PAGOS ANTES DE ENVIARLO, PARA MAS INFO 7864431240.

The articles also quote Ricardo Arevalo, general manager of Exede, a company that leases satellite internet equipment, as saying the "number of such systems in Cuba is closer to 300."

These systems are not cheap by Cuban standards -- getting the equipment in and installed costs between $3,500-$4.200, paid in advance in Miami. The bills are generally paid for by families members who live in the US and it seems that the motivation is purely business -- cheap phone calls and Internet access -- not political.

These reports leave me a bit skeptical -- it seems it would be too easy to entrap customers -- but, if these reports are for real, Alan Gross and USAID could have saved a lot of the taxpayer's money and Gross could be a free man.

_____
Update 11/10/2014

The video this post linked to was taken down. I've revised the video link and it works at least for now. I also tried to contact the installation company, but they did not reply to an email or call.

-----
Update 6/13/2015

Before HughesNet stopped servicing them, this post estimated that there were 30,000 illegal satellite dishes in Cuba. If that estimate is even remotely accurate, it makes what Alan Gross was trying to do look very small indeed.

Presumably, HughesNet cut their Cuban users off because they feared US government sanctions, but the government has now indemnified US companies against such sanctions. I believe HughesNet provides connectivity to many of the embassies in Cuba and I wonder if they would now be willing to resume servicing those illegal accounts.

I also wonder whether the Cuban government would allow a pilot test of satellite connectivity to a trusted site like a rural school or Youth Computer Club. I don't even wonder whether they would allow retail satellite links, but wouldn't that be nice?