Posted by: Clarinette | June 9, 2015

The Future of the Digital Music

CC Tara Taubman

CC Tara Taubman

What has changed in the music world?
Like everything, Internet plays the amplifier: bigger scale in spread and speed, free broadcast, higher reach, perfect quality duplication.
So what about digital music ? You don’t buy anymore, you get a lease. The music is not yours. You cannot sell it, not even transfer its property for free. After your death ? All will disappear. Actually, many even loose all their purchased music before, with the death of their device.
That’s all good for the music industry.
What else? No packaging, no stock, no store, no vendor. Minimal distribution cost. Higher benefit.
So why do artists don’t make more money?
Why is that the music industry is lobbying for more anti counterfeiting measure, Deep Packet Inspection and censorship?
Let’s look at what happened with the cinema. Al these warnings that home recording and TV will kill it all? Look at the results: French cinema this year had its best results ever! Le Monde May 2015 :<a href=””&gt; “Le Cinema Francais via bien, Merci”</a>
Not enough that technology evolves, you want it or not, the market will be ever strong as long as the quality is there.
<a href=””>Brian Solis slides on the future of digital music and artistry </a>

Posted by: Clarinette | February 22, 2015

Law Enforcement and Internet Jurisdiction

imageOne very active researcher I have met at Queen Mary University of London during my Masters on Internet and Telecommunications Law was Julia Hornle. Although not very helpful to resolve my personal issue when my essay was lost by the lecturer during my first online tester module, she has done extensive work on EU and cross border internet regulation and online gambling. [If you wondered, I was lucky to have the email of that lecturer confirming he had received the essay. SO after a long battle, I came out with a higher mark.]
So it was with great pleasure that I heard her presentation on the more specific issue of Law enforcement and internet jurisdiction.

Law enforcement agencies encounter many challenges when prosecuting authors of crime to investigate and gather information. One challenge is to access data stored in another jurisdiction, another is to access data of entity when the head quarter is based in another jurisdiction. (How Cyber Jurisdiction Affects Cybercrime Prosecution) Public International law is based on the connection factor of territoriality. The

The two main cases that applies here are the recent case of Microsoft Ireland v US (access authorisation to data stored in Ireland of a US entity, Microsoft, having its head quarters in the US. The other case is Yahoo Belgium access of emails.
(Jurisdiction over user data – what is the ideal solution to a very real world… )

Were discussed the 1935 Harvard research principles
and Budapest Convention with regard to the Mutual Legal Assistance Treaty. Anna Maria Osula exposed the limits of the slow process of the MLAT.

The situation is different for Criminal law investigation of a crime against state intelligence. The recent case of NSA and UK GCHQ data access have been criticised.
How much data is safe online with the accession in cloud?
Art 29WP opinion erects a distinction between sovereignty/ prosecution and law enforcement/collection of evidence
Use of encryption and wire tap barrier to access communication are privacy barriers. Recently the UK government has tried to bare the use of encryption.
To read more on the subject and access the video recording of the panel click here.

One of the very crucial issues for online privacy is how much anonymity is effective. An insightful panel discussions at the CPDP 2015 Privacy conference in Brussels was ‘To be or not to be (anonymous)? Anonymyity in the age of big and open data‘. How safe anonymised data are is at the centre of the big data debate. So far, most research, if not all, have shown how easily date could be de-anonymised. Paul Ohm and the Carnegie Melon University have demonstrated the failure of anonymization for a long time. Here is how it was announced on the program :

organised by INRIA (FR)image

Chair Daniel Le Métayer, INRIA (FR)

Moderator Benjamin Nguyen, INSA Centre Val de Loire (FR)

Panel Josep Domingo-Ferrer, UNESCO Chair in Data Privacy (SP), Mark Elliot, University of Manchester (UK), Antoinette Rouvroy, University of Namur, CRIDS (BE), Vincent Toubiana, CNIL (FR)

Anonymisation is seen as an essential prerequisite for the development of big data and open data because it is the only way to allow the disclosure of large datasets while preserving individuals’ privacy. However, what do we mean exactly by anonymisation, and what could be considered as a truly anonymous dataset? Is it possible to ensure that “anonymised” data cannot be de-anonymised one day? If not, can we draw a line between anonymous and personal data? How should data utility be taken into account?  These questions are under considerable debate and the answers are of strategic importance. Addressing these issues interdisciplinarily is essential. This panel will gather computer scientists, statisticians and lawyers to contrast and discuss their views on anonymisation.  The panel will also provide the opportunity to present and discuss Opinion 05/2014 of the Article 29 Working Party on anonymisation techniques.

  • What is anonymous data?
  • How can data be anonymised in practice?
  • What are the limitations of anonymisation?
  • How can regulation go beyond the duality personal data/anonymous data? 

More about the panelists : Vincent Toubiana, from the French data Protection Authority, the CNIL (FR) Mark Elliot, from the Manchester University (UK) Professor Antoinette Rouvroy, University of Namur, CRIDS (BE) Professor Josep Domingo Ferrer, UNESCO Chair in Data Privacy (SP) More on that very important subject of anonymization and the research results on de-anonymization. With Few bits of data, researchers were able to identify ‘anonymous’ people. All research tend to prove it is not possible to remain anonymous online.

Posted by: Clarinette | January 23, 2015

Catching up with the annual CPDP conference in Brussels

CPDP2015 The Computers, Privacy & Data Protection conference is one of the major annual privacy events. Originally founded in 2007 by research groups from the Vrije Universiteit Brussel, the Université de Namur and Tilburg University, it is not an exaggeration to say that the ‘CPDP offers the cutting edge in legal, regulatory, academic and technological development in privacy and data protection. In 2014 ‘854 guests including 343 speakers from 43 different countries dispersed over more than 60 panels which took place during three full days. It attracted another 500 people in several public evening events… this year’s main topical themes were: Data Protection Reform: European and Global Developments, Mobility (mobile technologies, wearable technologies, border surveillance), EU-US developments concerning the regulation of government surveillance, Health, privacy and data protection, Love and lust in the digital age, Internet governance and privacy. I recently published a short article on LinkedIn, ‘Bigger than Big Data, Processed Information is Gold’ on the usefulness of the storage and classification of information. The multiple topics developed during this conference was the subject of my latest curation. Using the Pearltrees application, I have started gathering all publications around this event. They are published papers, programs, pictures or tweets. Progressively I will be able to add more papers and interventions published during this conference. All this can be shareable and accessible at anytime, from anywhere on any digital device, be it a smartphone, a tablette or a computer. The content is easily modifiable, completed or shared. Have a look here, on Pearltrees ‘CPDP 2015‘ From an iPad or a smartphone, you might need to download the free App. Simply click on each square to access the relevant information on a webpage, a Pdf or text document or a picture.

Disclaimer: I have no tight or affiliation with The Pearltrees. I am simply a long time user.

Posted by: Clarinette | January 7, 2015

RIP Charlie Hebdo

Today, January 6th 2015, 12 innocent people were killed by two or three extremists during a massacre attack at the French satirique newspaper Charlie Hebdo.
Another witness of the actual climate of trouble, the three biggest recent publications in France have been, after Valerie Trierweller’s ‘Merci Pour Ce Moment’, Zemmour’s anti Islamist book and more recently, Oualbeck’s anti Islamist propaganda novel.
Drole d’epoque !
Raise of religious hater,
Bigger and bigger gap between rich and poor,
A society where some die of over eating and obesity while the other half dies of hunger,
Some sick of working too much while other are sick with unemployment,
Is this the new economic order ?
Here are the pictures published by Charlie Hebdo to deserve the death of 12 innocents, including some of the greatest cartoonists.
To support freedom of speech and if living in a free society is your ideal, you might want to share these pictures.

privacy takes a deeper meaning in such context. Don’t forget to watch Viktor Mayer’s Shonenberger or better, read his book: ‘Delete’

Posted by: Clarinette | March 1, 2014

Copyright Confusion is Madness



I have studied Copyright law in France at undergraduate level, in the UK during my postgrad LLM at QMUL and at the moment I am reading an online course on Copyright with Harvard University. I have spent the last few years looking at the intersection of privacy and copyright law. I have advocated against the recent anti piracy regulations From HADOPI- The digital Economy Bill, SOPA and et all. I have been repeating this is all too confusing. We need to adapt the law before creating new sanctions, no one today can pretend to really grasp the logic of copyright law. The decision by the 9th Circuit came out just when we were studying the question of Authorship. It is absolutely amazing to read this case where the actress Cindy Garcia is said to own a copyright on a movie where she played a small contribution which has been used without her consent in a second movie, the ‘Innocence of Muslims’. The justification being that she has been receiving death threats. What could have been resolved under contract law, had she had signed a contract, or Moral Rights, had it been in Civil Law litigation.
So the 9th Circuit has given an injunction to Google YouTube to take down this video. The Judge Kozinski has even asked Google/YouTube an injunction not to tell the world that the video had been ordered censored by a court for at least a week!
Since, Google has quickly filed an “emergency motion for a stay”.
The number of dissent opinions on this case is remarkable. I invite you to look at some of them collected on my Pearltrees. This is a crucial question as it can led to a deluge of litigation if each and any actor, performing in a movie claimed co-authorship on the work. As much as I know co-authorship is not proportional under US law. So any actor would have right on every each whole work?!!!!! It’s a mess and I fear for every law student expected to have understood. here the Hollywood Reporter reports few dissent scholars.

Check out the pearltree Authorship.

Here is an abstract of the reasoning:

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” …. That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[] general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” … Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”


This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);…. Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis…. We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.

Innocence of Muslims

Posted by: Clarinette | December 12, 2013

Mes Hommages Monsieur Sur


Discours de Pierre Olivier pour son investiture au Batonnat

Je me souviens que lorsqu’un jour on demanda a la plus vieille dame du monde comment elle se sentait du haut de son grand âge, elle répondit que tout allait a merveille pour elle mais qu’elle se souciait de sa fille qui elle, prenait de l’âge!

Aujourd’hui, en regardant le discours éloquent de Pierre Olivier Sur, je vois son crâne dégarnissant et ses poches sous les yeux qui me rappellent que de l’eau a coulé sous le pond depuis que je l’ai connu jeune étudiant. A peine plus jeune, je travaillais alors au cabinet de son père, Bernard Sur. Il n’avait que quelques pas d’avance sur moi dans ses études de droit. Il venait lui du sérail et moi d’un autre monde. C’est parachutée que je me retrouvais en fac de droit  alors que tout me prédestinait a la médecine.

C’est pourtant avec passion que j’ai poursuivi mes études tout en travaillant. J’étais pleine de ferveur et assoiffée de savoir.

Je me souviens encore très bien le traitement inégalitaire des collaboratrices femme a l’époque, surtout au cabinet Sur spécialisé dans le droit de la construction. Minoritaires étaient les femmes avocates; Majoritaires elles le sont devenues aujourd’hui au Barreau de Paris.

Olivier Sur succède a Christine Ferahl Schul. Avant elle, Dominique de la Garanderie au cabinet de qui j’ai également eu la chance de travailler alors étudiante. Elle a été la première femme Bâtonnier de l’Ordre. Une femme de grande culture et une personnalité pour qui j’ai gardé un respect tout particulier.

Malgré ce long chemin, les femmes sont encore bien loin dans la liste des ‘grands’ cabinets.

Pas facile d’être une femme et de poursuivre une carrière.

Pas facile d’être une femme encore aujourd’hui.

J’ai eu aussi la chance de travailler au Cabinet Salance, une autre dame de grande envergure. Elle a cree un des rares cabinets français présents a l’internationale.

Elles sont peu, trop peu des femmes de cette trampe.

Félicitations a Pierre Olivier Sur, tu es aujourd’hui le nouveau Bâtonnier. C’est un grand chemin que tu as parcouru.

Nous sommes beaucoup a avoir entrepris des études de droit poussés par l’amour et le respect pour la Justice.

Faites que le droit ne devienne pas un simple commerce. Chercher a tirer profit de l’état de faiblesse de son client, sans respect pour la personne, n’est pas exercer le métier d’avocat. Ce n’est rien de plus qu’un vautour ou un chacal qui se jette sur un cadavre mourant. On ne devient pas avocat comme on devient banquier. Le banquier, lui au moins ne prétend pas défendre des droits. Il s’occupe de fructifier l’argent qui n’a pas d’âme.

Ceci expliquant cela, on devinera peut-être pourquoi on aura moins de femme dans certains ‘grands’ cabinets moins humains.Discours d’investiture de Olivier Sur Batonnier de l’Ordres des Avocats de Paris

Posted by: Clarinette | December 6, 2013

To Nelson Mandela and all brave men of his kind

Read More…

The Electronic Commerce Directive (00/31/EC), in the footsteps of the 2000 Lisbon European Council, aim was set to ensure the free movement of “Information Society Services” throughout the European Community. To encourage greater use of E-commerce by breaking down barriers across Europe and to boost consumer confidence and trust by clarifying the rights and obligations of businesses and consumers.

To develop secure transactions inside the Internal Market to be able to compete with the rest of the world – by creating the European Regulatory Framework similar to the US DCMA.  the Directive came  after a German case in which a managing director of an ISP was sentenced to prison for pornography unknowingly held on its servers. Although the decision was reversed on appeal, it drew attention to the need for clear guidelines on the liability of ISPs, especially when they do not have knowledge of the infringing material

The E-Commerce Directive has been since implemented in all EU countries establishing a protection from liability for internet intermediaries.
In principal, ISPs are secured as long as they remain passive in transmitting information and avoid liability for third party content.
Would they become active and start monitoring or judging the legality of the content, that they turn liable for this content as publisher or editor.

Monitoring Activities

The Article 15 of the Directive has clearly removed any obligation on service providers to monitor content in order to qualify for these immunities.
Coming out of its passive role ISPs might consequently risk to undergo liability for content. The giant search Engine Google has always argued it could not act on its search results as his  indexing were automated by its secret algorithm.

However, the E-commerce Regulations  designed as a shield to protect ISPs, could turn to a stick with which, ISPs that monitor activities,  may be beaten

ISPs compliance with notice and take down orders

ISPs are asked to respond ‘surreptitiously’ to a Notice of take down that they usually won’t have the opportunity to verify.

In this respect, the Dutch liberty organisation Bits of Freedom* SANE and its Director, Sjoera Nas, had directed a research studying the EU safe harbour :

An initial comparison with the procedure of notice and take down in the USA under Scetion 512 of the 1998 Digital Millennium Copyright Act. It is stipulated that all categories of service providers qualify for the safe harbour provisions, access, caching, hosting and service as search engines.

The legal safe harbour consists of 5 elements.
• a complaint must identify himself and the infringements exactly
• plaintiff and the customer must act ‘in good faith’, on penalty for perjury.
• the provider must block the material upon receipt of the complaint and inform the customer
• materials must be put-back in 10, maximum 14 business days after a counter notice
• identification data can only be obtained with a subpoena

In conclusions the study found that :

‘Compared with these Safe Harbour provisions, the European legislation leaves plenty of room for doubt and misguided judgement by providers. There are no criteria to validate complaints and counter notices and there are no arrangements for the hand-over of customer data, besides general privacy principles that do allow voluntary hand-over. More-over there is no obligation in Europe to inform the customer and there are no legal guarantees to protect the freedom of speech.
Though a put-back procedure is not the ideal solution, since it leaves room for fanatics like Scientology to shut-down website and instigate long legal procedures, at least it gives some kind of guarantee to internet users their counter claim is taken seriously.’

The case mentioned refers to an action where the sect of Scientology was opposed to the Dutch author Karin Spaink and 20 providers that hosted copies of the Fishman Affidavit on her home-page. The claim was rejected in the basis of freedom of expression prevailing upon copyrights. In 2003, the Court of Appeal in The Hague recognized the copyright of Scientology, but found that Spaink’s publication should be allowed on the basis of the article 10 ECHR (freedom of speech) due to its informative character.
The Multatuli project:

Such Systematic take down results on breach of privacy and freedom of speech.

Formal exigence

Regulation 22 provides a non-exhaustive list of factors which a court will consider in determining whether actual notice has been issued to the service provider. These include whether the service provider has received a notice through any means of contact that the service provider has made available in compliance with regulation 6(1)(c).
Regulation 6(1) requires the service provider to make certain information available to the user “in a form.which is easily, directly and permanently accessible”. Regulation 6(1)(c) refers to contact details of the service provider, including email addresses, which permit rapid and direct communication. This requirement can be easily fulfilled by placing an obvious link on an institution’s homepage which points to email, telephone and other contact details. A dedicated email address for dealing with complaints may be helpful, provided that it is checked at least daily for incoming mail.
Other factors which a court should consider under Regulation 22 are:
the extent to which any notice includes
– the full name and address of the sender of the notice;
– details of the location of the information in question; and
– details of the unlawful nature of the activity or information in question.”

Failure to react promptly

The Regulations’ expectation is for ISPs to react ‘Expeditiously’.
In the Mumsnet case, the ISP had failed to react ‘expeditiously’ to take down content. Based on this obligation, ‘Mumsnet’ was sued by the child-care author Gina Ford for defamatory comments made in their site forums and not taken down expeditiously. The case was settled out of court, Mumsnet consenting to present apologies and payment of damages. However, the question of speed of reaction remained. It is now generally expected a prompt reaction within two working days.

The actual knowledge

The ISP benefits from the immunity until it has no actual knowledge of the infringement. Once it has been notified,   the content has to be removed.
In the case of Bunt v Tilley (2006), on the question of publication of defamatory allegations, the court held that : “an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law.”. However, the ISP is likely to be liable “if a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue.”

The ISP is considered to have actual knowledge if he has acted as the actual publisher or, if having been noticed, did not took the appropriate measures to prevent the infringement.

In the UK, Regulation 19 stipulates (a)(i) (the ISP) ‘does not have actual knowledge of unlawful activity or information, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful;’

The regulation 22 additionally gives a non-exhaustive list of factors which might constitute the “actual knowledge”.

Another interesting experiment was run in the summer 2003 by the Oxford Centre for Socio-Legal. A similar but wider experiment that was run by Bits of freedom. They created two mystery shoppers one in the US and one in the UK, with a section of John Stuart Mills ‘On Liberty’, published in 1869 and hence freely useable in the public domain clearly indicating “The text is freely available throughout the web.”  They then sent bogus notice of take down. ‘The result was shocking’ reports Sjoera Nas, the UK provider removed the homepage, simply following procedure.

Overall, ISPs found it challenging to comply to the spirit of the regulation. By fear of responsibility, mostly, they tend to systematically remove without prior verification of the content or the seriousness of the complaint. In most cases. The Oxford study shows that ISPS often even failed to notify the customer about the complaint while the identity of the complainer was not even real or at least not complying with Regulation 22.

A slippery move back towards shooting the messenger rectified

The court positions are not harmonious within the European countries. However, a general move towards the liability of ISPs can be seen in countries of civil law.

The French HADOPI, anti-counterfeiting institution, has created an article L 326-2 on the Intellectual Property Code (IPC) allowing copyright holders to ask the Tribunal of Grande Instance to order necessary protective measures to put an end to copyright infringements. The French courts then slipped from the notice and take down measures to a creation of a notice a stay down obligation for ISPs.

ISPs were already uncomfortably asked to be judge and jury, as part of their obligations from the eCommerce Directive, to decide when to act upon a take down notice with no element of verification. The new obligation resulting of the article L 326-2  if ordered by the judge would ask them to monitor the activities of a counterfeiter. By doing so, they will become liable. ISP immunity being knowledge based. By monitoring or filtering the ISP is not anymore a mere conduit. A dangerous move towards a publisher or editor to therefore become liable. This goes exactly against the principals of the directive.

Since 2007, some French court d’Appel had self created a new rule imposing to intermediaries the obligation to monitor subsequent publications of materials previously notified as infringing.
The three decisions of the Court of Cassation on 12 July 2012, wisely reestablished the situation ruling that general monitoring obligation, would be contrary to applicable law. The obligation belongs to copyright holders to notify each new infringement linked to the same material as Eu does not have the single publication principal as in the DMCA. A big victory for Google search.

Google & v. Mr. X

“les dissimulateurs”

“affaire Clearstream”

Since recently Twitter has started to hand pick tweets and notify its users by email. It would be interesting to see what the court position will be with regard to infringement of these selected tweets manually monitors and promoted by the ISP.

Intermediary liability for copyright infringement
Cartoon by Jonik

Posted by: Clarinette | February 6, 2013

The Interests of Authors, February 6, 7:00 p.m. EST

An invitation from the CopyrightX fellows:

This evening, will be held the first of the six “Special Events” associated with the CopyrightX course. It will start at 7:00 p.m. Eastern Standard Time (midnight GMT) and will last for 90 minutes. The topic will be “The Interests of Authors.” As you now know, many copyright laws and theories are founded upon assumptions concerning what authors and artists of various sorts care about — what motivates or concerns them. But rarely are the authors and artists themselves consulted on this matter. The goal of the event tonight is to help fill that gap.

Four speakers, representing different fields of creative endeavor, will be offering their views:

Richard Kelly is a highly accomplished professional photographer and currently President of the Board of Directors of the American Society of Media Photographers.

William Landay is a best-selling author. His latest book, Defending Jacob, has been earning rave reviews in many forums, including the New York Times.

John Drake is the Director of Communications and Brand Management at Harmonix Music Systems, the world’s leading music video game developer. In his spare time, he’s a member of the indie rock group, The Main Drag.

Dale Cendali is one of the leading copyright litigators in the United States. Her clients have included J.K. Rowling, 20th Century Fox, Victoria Secret, the makers of the Tetris video game, and the Martha Graham Dance Center.

They will talk for roughly 45 minutes and then we’ll have a general discussion of authorship and creativity.

The event will be webcast live. The URL is available through my homepage:

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