Technology that helps to save human lives is now
endangered by the copyright enforcement.
In World
Disasters Report
2013, the Red Cross celebrated an innovation developed by Dr.
Paul Gardner-Stephen from Flinders University. His
invention was designed to ease decentralized communications
between individuals in absence of any usual connectivity. This
radically helps to improve on-the-ground fight against humanitarian
crises occurring in the aftermath of disasters. The new mode of
communication is based on a simple technology that is widely
available - open WiFi. Open wireless allows for free flow of data
between rescue teams and/or victims, even in absence of any
“outside-world connection”, such as Internet or mobile networks,
that are often unavailable.
But even if the regular connectivity is available,
open wireless can be crucial. During 2012 earthquake in northern
Italy, local authorities requested
the general public to remove passwords from their private WiFi
networks in order to allow the widest possible emergency access to
communications networks. Similarly when in 2007, the 40-year old
bridge in Minneapolis collapsed into the river, open WiFi played
an important role in managing the response and recovery efforts.
In 2012, when Hurricane Sandy wreaked havoc in New York, open
wireless networks again became a crucial form of communication
infrastructure.
But saving lives goes beyond “mere” disaster
management. General Motors, for instance, is working on
Wi-Fi-equipped cars to detect pedestrians and cyclists as way of
preventing accidents. “This new wireless capability could warn
drivers about pedestrians who might be stepping into the roadway from
behind a parked vehicle, or bicyclists who are riding in the car’s
blind spot,” noted
Nady Boules from General Motors for Gizmag yet in 2012.
These and other
similar innovations are now under threat in Europe. And this is
no exaggeration. European sky of wireless hotspots might soon become
password-protected by default in order to prevent copyright
infringements (German one already is for a while). It is the
Luxembourg judges at the Court of Justice of the European Union who
hold the keys from future.
In a recent preliminary reference of McFadden
C-484/14, the judges have to decide whether password-protection is a
legitimate enforcement technique and whether it is to be expected
from the operators of open wireless or not. Since the procedure
before the CJEU (unlike ECtHR) does not allow participation of third
parties, the broad
coalition of organizations is now publicly addressing an open
letter to the CJEU demonstrating that general requirement of password
protection of open wireless would constitute an obstacle to
legitimate trade (Art. 3(2) of the Enforcement Directive, Article
41(1) TRIPS Agreement) and should be outlawed. The brief (co-authored
by me) gathers very strong evidence of socially beneficial uses
of open wireless that will be entirely crippled or at least partially
prevented if password locking becomes a standard.
The decisive legal framework is in Article 8(3) of
the InfoSoc Directive prescribing the Member States to grant
copyright holders a right to assistance against intermediaries
whenever are their services used by third parties to infringe.
In answering the demands of right holders, it does not matter whether
an intermediary misbehaved. His
factual and legal position to prevent third party wrongdoing alone
suffices to establish a course
of action. Whether
a particular type of assistance is permissible or not, thus does not
turn on
much else than how good
policy it
is for the society at
large. Fighting
copyright infringements is surely legitimate, but
as any optimal
enforcement policy, it should not be carried out at all costs,
especially when the
social
costs outweigh private
benefits.
The Luxembourg judges
have
undeniably a
track record of understanding this
basic proposition of
optimal enforcement
(e.g.
Sabam C-360/10, Scarlet
Extended C-70/10).
Our 21st
century needs 21st century infrastructure. Closing open WiFi would
be a step back, and not
a leap forward. Intellectual property enforcement should spur
economic progress and not lead to
devaluation of the society. It
is hoped that the Court
of Justice of the European Union will be
again mindful
of this when giving its
answers in McFadden. Please
readthe open letter yourself
to consider whether also your organization (commercial, academic or
non-profit) would like to support it by joining the signatories.
Cross-posted with Stanford's CIS blog.
Cross-posted with Stanford's CIS blog.
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