Tag: ISP

Carbon Games or the scapegoat of a bad initiative

Blocking sites with no supervision whatsoever... what can possibly go wrong?

Blocking sites with no supervision whatsoever… what can possibly go wrong?

So… The implementation of a protocol to fight online piracy has led to the imposition of technical restrictions on the access to the website of Carbon Games in Portugal.

Indeed, a few weeks ago, any person, player or consumer who tried to access the website was prevented to do so by restrictions imposed by the Portuguese ISPs, namely Cabovisão, Meo, Nos and Vodafone. Any attempt to reach the site resulted in the following message “the site that you’re trying to reach was blocked due to an order from the Regulator Agency”.

Those who are neither Portuguese nor familiar with the case might fail to grasp the myriad of subjacent issues which are wrong with this statement.

Therefore let me explain.

Last year, a protocol was signed – more specifically a ‘memorandum of understanding’ – between the content industry representatives and telecom operators according to which the latter will be required to restrain the access – i.e. blocking – websites with copyright infringing content.

Among the involved parties one can outline IGAC (Inspeção Geral das Atividades Culturais – General Inspection of Cultural Activities), DGC (Direcção Geral do Consumidor – Directorate General of Consumer), APRITEL (Associação dos Operadores de Telecomunicações – Telecom Operators Association) and MAPINET (Movimento Cívico Anti-Pirataria na Internet – Civic Movement for Anti-Piracy on the Internet).

Following the long judicial process which ended with the Portuguese Intellectual Property Court giving ISPs Vodafone, MEO and NOS the order to block the access to the The Pirate Bay website, such entities felt that a faster and less-expensive site-blocking mechanism was required. One that would not require an individual judicial assessment of copyright infringements.

The abovementioned memorandum intends to frame the cooperation of the signatory parties regarding the protection of authors’ copyright rights, while intending to circumvent the limitation arising from the absence of any duty to monitor of ISPs in regards of the information they transmit or store, thus attributing to IGAC such monitoring obligation.

Thus, under these new incumbent responsibilities, IGAC ought to collect and analyse claims of infringements and to order ISPs to prevent the access to legally protected contents unlawfully made available online.

According to the memorandum, the infringement claims ought to demonstrate the lack of authorization of the copyright owner in regards of the works thus made available. In that regard, claims must also be accompanied by a document certifying that, following the request to remove infringing contents, no answer was obtained from the website administrator.

The specifics are as follows: websites which deal predominantly with making available works protected by copyright without the authorization of the rights’ holders will be denounced by the entities representing the rights owners and, once the claim is confirmed by the IGAC, telecom operators are notified to block the websites at stake. The denouncing claims are expected to be filed periodically (twice a month) through MAPINET and referring to a block of up to 50 allegedly infringing websites. However, it is possible to file individual claims in situations particularly detrimental to copyright owners.

In this context, websites containing more than 500 non-authorized works or distributing repositories containing at least two thirds of illegal copies are deemed to predominantly making available works protected by copyright without the authorization of the rights’ holders.

The protocol has been diligently implemented in practice since its signature as, as far as I am aware, up to 180 websites have been blocked under this procedure.

As the case regarding Carbon Games demonstrates, there are several flaws in this system.

To start with, it is important to clarify that Carbon Games is a US videogames developer and its website deals with games of which they are the original creators.

Secondly, this process is undertaken by several private entities and one public body, the IGAC. While it is expected that the interests of private entities will not forcefully coincide with the general interest of the public, one would at least risk hoping that IGAC, within its recently established obligations of analysing claims of infringements, would not rush such analysis.

While one would expect that the infringing nature of the activity of a website should be adequately assessed, it is evident that the system does not work properly, considering that Carbon Games legally produces videogames and, all considering, should have its interests protected by the implementation of the initiative.

Additionally, the fact that ISPs ought to be compensated for all the trouble that the implementation of this protocol may entail for them actually risks to disincentive the establishment of any internal assessment system regarding the legitimacy of the infringement claims raised.

Moreover, the requirement of 500 illegal works or two thirds of illegal copies seems absolutely discretionary. What is the expected outcome of this decision? That websites containing 499 illegal works will remain fully operational? And if this is really the criterion, then it makes the Carbon Games case all the more ludicrous.

One would expect that a website allegedly managing illegal content would have the chance to contra-argument and present its defence. Apparently, it is not the case. In fact, considering the communication of Carbon Games on its own website, it was not aware of any suspicion of infringement content, any administrative proceedings nor of any blocking order prior to the occurrence of the effective blocking. In fact, it seems that no mechanism has been put in place in order to appreciate the wrongful blocking of websites.

In the meantime, it has been admitted that the order of blockage was unduly given and, accordingly, all the providers of online services have been notified that the blocking should be annulled, thus enabling the proper functioning of the website.

I cannot help but wonder how such an error is even possible. Isn’t the list provided to IGAC supposed to be validated?

While the efficacy of such an agreement is questionable considering that it is quite easy to circumvent such technical restrictions implemented by the ISPs by simply altering DNS servers or by changing the website’s domain, the users not aware of this are actually prevented to access the content of blocked websites.

More gravely, it seems that having a website, disregarding the legal nature of its content, is sufficient to be exposed to such mistakes. And the economic consequences can be quite worrisome for the website considering that an unjustified blocking leads platforms to be deprived from the access of their customers for an undefined period of time. In fact, in the Carbon Games case, it took up to two months (!!) to correct the error.

From the reading of the protocol, I honestly fail to see how the owner of a website, facing an unfounded blocking order, is expected to react and speedily regain control of its full functioning. Of course there are proper judicial means such as filing for an injunction. Nevertheless, considering that all this implemented ‘administrative’ procedure disregards any judicial assessment, it seems counterproductive to only foresee such judicial intervention when it is needed to react to unfounded orders.

It is evident that creativity should be rewarded and incentivized through a great protection and enforcement of IP rights. However, it has been made evident that, without proper legal and judicial oversight, access to legitimate content can be unjustifiably restricted. And while the e-Commerce Directive already includes procedures for removing illegal content, considering this whole experience, this specific solution does not seem to be the right path.

Net Neutrality in the EU – A work still in progress

Which neutrality do you prefer?

Which neutrality do you prefer? 1)Copyright by EFF-Graphics under the Creative Commons Attribution 3.0 Unported

Aiming to allow everyone to communicate with anybody globally, the net neutrality principle establishes that all content providers should have equal access on networks. In this context, it enables people to access and impart information and it provides entrepreneurs with the proper platform to invest and develop new businesses models. Therefore, non-discrimination commitments are required from Internet Services Providers regarding users, contents, devices or communications.

But it is easier said than done… In fact, it appears that net neutrality is not a straight forward principle, thus allowing different interpretations. Perhaps the very own nature of the concept can – at least partially – explain the difficulty of the institutional and political debates surrounding the legislative reforms in the telecommunications sector both in the EU and in the USA.

On the EU side, the negotiations regarding the draft regulation laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent (the TSM proposal) have been quite tumultuous.

As you might well remember, it all began with the text proposed by the European Commission, in 2013, which was claimed to fully implement the principle of net neutrality, while it actually stripped it of all real meaning. In fact, it foresaw an almost unlimited right of Internet Services Providers (hereafter ISPs) to manage Internet traffic.

Afterwards, there were the debates within the European Parliament, which first reading ended successfully last April, resulting in a clear and strict interpretation of the net neutrality principle and a proper framework for ‘specialised services’. Indeed, according to the text, telecommunications operators would be allowed to develop access offers with an optimised quality of service for specific applications, which wouldn’t be able to not run properly on the so-called ‘best-effort Internet’.2)A Best Effort Internet refers to the model of the Internet that does not differentiate between ‘levels’ of content providers. All web authors, large and small, enjoy the same ability to produce content or services that can, via the Internet reach an audience / customer base.

Currently, the debates are being held within the Council of the European Union which, along the European Parliament, is the EU co-legislator. However, the meeting of the EU Member States’ telecommunications ministers, held in Luxembourg, past June, clearly demonstrated the existing major divisions among Member States.

Considering the most recent proposal of the Italian Presidency (see here and here), it was quite evident that Member States were heading to a looser and weaker approach to net neutrality rules. The proposal consisted in a ‘principles-based approach’ in order not to inhibit innovation and to avoid having an obsolete regulation in the future.

However, the proposal did not address the principle of net neutrality but rather its opposite, as it set principles to traffic management:

Clear principles for traffic management in general, as well as the obligation to maintain sufficient network capacity for the internet access service regardless of other services also delivered over the same access.

In fact, the very important definitions of net neutrality and specialised services were not included in the text.

According to the document of the Italian Presidency, “instead of a definition of net neutrality there could be a reference to the objective of net neutrality, e.g. in an explanatory recital, which would resolve the concerns that the definition might be at variance with the specific provisions.” However, clear provisions are required in order to ensure its full enforcement.

Specialised services, which refer to the types of content that operators could prioritise over others, despite not being regulated, were not prohibited. Thus said, if they were not foreseen in the text, the principle of non-discrimination should at least have been clearly stated instead. It was not the case.

In its place, it was foreseen that ISPs will be able to apply traffic management measures as long as they were transparent, proportionate and not anti-competitive. Measures “that block, slow down, alter, degrade or discriminate against specific content, applications or services, or specific classes thereof” could be applied under certain circumstances, such as to “prevent the transmission of unsolicited communications”; to prevent “temporary congestion control”; or to meet their “obligations under a contract with an end-user to deliver a service requiring a specific level of quality to that end-user”.

Moreover, the proposal did not contain any reference to the obligation of Member States regarding the guarantee of the right to freedom of expression, which must be ensured at both the end-user and the content provider.

Thus said, this text raised some confusions and concerns. To start with, regarding unsolicited communications, it must be noted that an e-mail service is not an internet access service. Moreover, it should have been clarified that the prevention of temporary congestion should be an exception and not be established ‘by default’. Furthermore, the concept of a “contract with an end-user to deliver a service requiring a specific level of quality to that end-use” is not fully compatible with the ‘best effort’ Internet concept.

Last but not the least; the text lacked a clear non-discrimination principle for Internet access providers. For instance, the text did not refer the discrimination based on pricing which would lead to a result where big telecommunications companies would be able to pay for preferential treatment for their services or to have their services accessible for free, while others, with less financial capacity, would end up being excluded due to throttling of their services.

As a result, ISPs would turn themselves into the gatekeepers of a market of customers which would only be accessible for those companies willing to pay accordingly. In fact, this is a crucial point because consumers will invariably prefer the websites or services made available for free.

The direct result of such a text was that telecoms operators would be able to discriminate between different users, their communications or the content accessed. Internet access providers, and not users, would therefore decide what applications and content could be freely used.

In an unfortunate coincidence, Günther Oettinger, the already well-know Digital Commissioner for its ‘inside the box’ way of thinking, published his first post on his blog, arguing that the full coverage of internet access in rural zones would be finally possible if the telecommunications operators would be allowed “to reap the benefit of their investments”.

Moreover, a letter sent from Jean-Claude Juncker and Frans Timmermans to the other commissioners is being interpreted as suggesting that the European Commission might change direction regarding its initial proposal.

In this context, the main challenge is to conciliate the open internet as a instrument for the democratic expression, which promotes informed citizenship and plurality of opinions, with the network operators own interests in managing their networks, namely through specialized services. ISPs should be entitled to manage traffic – namely offering customers internet access packages with different speeds and volumes – but the traffic should neither be prioritized nor discriminated based on the content, services, applications, or devices used.

More recently, the Italian Presidency appears to have distanced itself from its own proposals, alleging that

none of the compromise drafts, which had been developed at a technical level, has gathered enough consensus. Such drafts (…) are significantly different from the positions of the single Member States, including Italy, that has always chosen to act as a neutral mediator under the Presidency rather than imposing its own point of view.

This is just the consequence of the strong divergences which oppose EU Member States, which is expected to be resolved at a political level.

In this context, the recent resolution adopted by the European Parliament does not come as a surprise as it stresses that

all internet traffic should be treated equally, without discrimination, restriction or interference, irrespective of its sender, receiver, type, content, device, service or application.

In these dark times for net neutrality, one can only hope for the right balance between net neutrality and reasonable traffic management to be found.

And as Christmas is getting closer, one can also wish for the EU and the USA to ultimately adopt compatible rules on guaranteeing an open internet. As announced recently, Barack Obama is taking strong positions in favour of Net Neutrality and is calling on the Federal Communications Commission (FCC) to adopt rules to prevent ISPs from blocking and slowing down content.

References   [ + ]

1. Copyright by EFF-Graphics under the Creative Commons Attribution 3.0 Unported
2. A Best Effort Internet refers to the model of the Internet that does not differentiate between ‘levels’ of content providers. All web authors, large and small, enjoy the same ability to produce content or services that can, via the Internet reach an audience / customer base.

Hungary’s Internet Tax:
Free Internet 1 – Órban 0

My precious 50 cents.

My precious 50 cents.

It seems that EU Member States do have some issues regarding Internet in all its different features. After Belgium, Germany and Spain, it was the turn of Hungary to address the profits generated online.

Indeed, the Hungarian Prime Minister, Viktor Orbán, tried to tackle the important deficit in the country’s budget through the proposal of a tax on Internet data traffic, which would have required Internet Service Providers (ISPs) to pay about €0,50 per gigabyte of data traffic.

It was quite evident for everybody, except, apparently, for the Hungarian Government, that such a measure would have direct negative effects on Internet users, as ISPs would most certainly try to pass on the supplementary burden to their clients.

In this context, more expensive services would be mostly detrimental to individuals with smaller incomes, who wouldn’t be able to afford such an increase. Therefore, equal access to Internet would end up being prevented and would lead, in due course, to the curtailing of freedom of expression and access to information. Moreover, the additional financial burden over ISPs would undoubtedly retract investments in broadband network infrastructures, preventing innovation and, ultimately, affecting final consumers.

Coming from someone who has proposed to establish an illiberal democracy in Hungary, stating his admiration to political regimes such as Russia and China, the intention might have not come as a surprise. Mainly considering that the initiative fits into a pattern of imposing taxes over the communications industry in order to support the Hungarian faltering economy and lower its budgetary deficit.

Also unsurprisingly, the proposal’s announcement faced a large-scale strong public opposition. Of course the tax on Internet traffic was only the top of the iceberg, being the most visible face of the general dissatisfaction over Viktor Órban authoritarian policies.

As a result of these mass protests, on 31st of October, Viktor Orbán stated that the Internet tax will be withdrawn. Nevertheless the discussions over Internet regulation and taxation will most likely resume in January 2015, in the form of a national consultation.

Free Internet may have won for now… But it is yet to soon to celebrate.

The biaised path of Net Neutrality

Net Neutrality

Net Neutrality?

Network neutrality or Internet neutrality, commonly referred as ‘Net Neutrality’ is a principle according to which all the data trafficked on the Internet should be treated equally by governments and service providers, without discrimination, restriction nor interference.

It means that Internet Services Providers (ISPs), although their management systems enable them to prioritize, block, filter out content, artificially slow and degrade specific network traffic, shall not make a distinction nor charge differentially the different types of traffic, i.e., independently of the sender, receiver, user, content, device, service, site, platform, application, etc.,…

Net Neutrality is, therefore, an important element of an open Internet. Not only does it allow an easy and fast access to information, it boosts as well entrepreneurship through the creation of online services, such as Google, Facebook, Dropbox, Twitter, Skype, just to mention a few, who were able to develop online and freely compete with existent services. The direct and ultimate beneficiaries of all these innovative ideas and the competition it entails are, undoubtedly, the consumers.

So, having these benefits into consideration, what is the problem?

Well, there is indeed a reverse of the medal. Requiring broadband providers to treat equally all traffic makes networks less profitable. For that reason it can discourage investment in network infrastructures and the consequent beneficial innovation in favor of online services.

Managing the proper balance between these diverging interests represents an unsteady pathway, as well demonstrated by the tumultuous efforts at the EU level regarding the adoption of the regulation laying down measures to achieve a European single market for electronic communications.

On September 2013, the European Commission, represented by the former Commissioner for the Digital Agenda, Neelie Kroes, proposed an important legislative package, which contains the new rules for the telecoms industry, intended to achieve the Telecoms Single Market (TSM), namely by ending roaming charges, guaranteeing an open Internet, coordinating spectrum licensing for wireless broadband.

One of the most trumpeted and criticized measures concerned Net Neutrality as it contained very conflicting provisions. Indeed, it foresaw that providers of Internet access services shall not restrict the freedoms of communication by blocking, slowing down, degrading or discriminating against specific content, applications or services. However, it added some confusing exceptions that could undermine the open and neutral internet.

For instance, it allowed the evident differentiation and consequent prioritization between services though the provision of

specialized service […] with an enhanced quality of service

Moreover, in order to enable the provision of specialized services to end-users, it allowed providers of content applications and services and providers of electronic communications to

enter into agreements with each other to transmit the related data volumes or traffic […] with a defined quality of service or dedicated capacity

Furthermore, it stated the possibility to apply reasonable traffic management measures according to the internet access providers’ necessities.
This would open the door for telecommunications operators granting prioritized delivery through specialized services to the players who would be willing and financially able to engage in such agreements, while deprioritizing new entrants or existing players who wouldn’t have the capacity to engage in such agreements. It would also permit mobile networks and broadband providers to block services that compete with their own offerings. This would of course impair competition and undermine room for innovation and freedom of communication as we know it on the internet.

On late April, despite the tight schedule, the lobbying frenzy of civil society and telecommunications industry and the conflicting visions that have divided the MEPs, the European Parliament adopted, in first reading, the Regulation on the TSM.

Although, along the way, it has been proposed that Net Neutrality should be defined as the principle according to which only equivalent traffic should be treated equally, allowing for different quality of service (let’s remember the proposal of Pilar del Castillo Vera (ES – EPP), the ITRE rapporteur on this dossier, in her compromise amendments), the adopted text contains substantial amendments to the EC proposal, including a rigorous definition of Net Neutrality.

The adopted text provides a framework for ‘specialized services’, which are defined, in article 2(15) of the text, as

an electronic communications service optimized for specific content, applications or services, or a combination thereof, provided over logically distinct capacity, relying on strict admission control, offering functionality requiring enhanced quality from end to end, and that is not marketed or usable as a substitute for internet access service

Moreover, specialized services can be offered only in addition to Internet access services, provided that such offers are in addition to internet access services and are not to the material detriment of their availability or quality, thus ensuring non discrimination between providers of such applications.

The concept of network management has been narrowed to where it is necessary to apply reasonable traffic management measures to prevent or minimize the effects of network congestion, provided that equivalent types of traffic are treated equally, or to implement a court order.
Due to the divergent interests at stake, this outcome has not pleased everyone. While it has been perceived as a victory by the consumers’ advocates, the communications industry representatives have been manifesting some concerns over the vote, stating that this will prevent them from being able to offer enhanced services.

Considering the cost of infrastructure upgrades to cope with increasing data demands, one might ask if consumers should expect bigger bills from telecom and cable companies.

In addition, considering the prohibition of ISPs blocking content, concerns have been raised regarding WebPages containing images of child pornography, as a court order would be required in those cases in order to deter any further sharing. To avoid the undesirable consequences of any delay, it would be important to reflect on some exceptions.

The text is currently being discussed by the Council of the European Union, which includes representatives of each member state. The meeting of ministers which took place, on June 6, in Luxembourg, demonstrated that EU Member States might be far from reaching a common position. So the big question mark concerns the possibility of the Council to deviate from the position adopted by the European Parliament.

The path that lies ahead might continue to be hazardous. And only time will tell if the necessary safeguards to protect net neutrality and prohibit network discrimination in Europe will be maintained. At this point, looking at the other side of the Atlantic wouldn’t be of much help, considering the recent decision of the Federal Communications Commission regarding commercial discrimination on the Internet.

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