E-book customer sharing with anti-piracy group BREIN faces political backlash

[Alexander Turcic]

Remember the news that a number of Dutch-speaking e-book vendors had agreed to share information of customers, ehm, suspected pirates, with the anti-piracy watchdog BREIN? Well, it caused quite the backlash. The Dutch Ministry of Security and Justice is now faced with a handful of unpleasant questions regarding the legality of this agreement. As MobileReader Katsunami reports, one of the questions is (translated):

Is it true that web stores connected to the distribution platform eBoekhuis can be compelled to submit customer information to Foundation BREIN? If yes, how does submitting this sort of information to third parties relate to the laws and regulations with regard to to the protections of personal data? If no, then what is not true in the above statement?

There is no denying that e-book piracy on the Internet is rampant; yet the question remains: Should private organizations such as BREIN, who have no legal or investigative authority, be allowed to access private customer information in their attempt to identify the people alleged to be offering pirated content?

[image: Ruben Holthuijsen /Flickr]

[tubemonkey]

Originally Posted by Alexander Turcic

Should private organizations such as BREIN, who have no legal or investigative authority, be allowed to access private customer information in their attempt to identify the people alleged to be offering pirated content?

Absolutely not! This is a matter for the justice system.

[Apache]

Originally Posted by tubemonkey

Absolutely not! This is a matter for the justice system.

This is what I was going to post. Otherwise we might as well allow private companies to have their own police forces. And we all know how well that would work.
Apache

[HarryT]

The problem with the current system is that copyright infringement is, in most cases, a civil, rather than a criminal, offence, and that means that "justice" is outside the reach of everyone except the largest of companies. If I find that someone has uploaded a pirated copy of my software to a web site, then even if I know the username of the uploader on the site, there's absolutely nothing that I can do about it. I can't afford the legal costs to go to court to get a court order to force the site to reveal the identity of the uploader, or the cost of a private prosecution to do something about it even if I did know their identity.

I don't know what the answer is, or whether this BREIN group has any good ideas to solve the problem, but from the viewpoint of the content creator (and don't make the mistake of thinking that all content creators are large companies - they certainly aren't) there is a very real problem with the current judicial system.

[fjtorres]

Originally Posted by Alexander Turcic

There is no denying that e-book piracy on the Internet is rampant;

Is it?
I don't deny it is trivially easy.
(And, of course, in certain countries "piracy" is part of the mainstream culture.)

But, is *ebook* "piracy" really that prevalent in the countries mounting these internal dragnets?

Just asking, you know.
Some actual proof, instead of vague assertions from self-interested parties (on both ends) would be nice.

[Alexander Turcic]

Originally Posted by fjtorres

Is it?
I don't deny it is trivially easy.
(And, of course, in certain countries "piracy" is part of the mainstream culture.)

But, is *ebook* "piracy" really that prevalent in the countries mounting these internal dragnets?

Not sure about the statistics in Western cultures; it's why I referred to the Internet rather than to specific countries. On the Internet, it's relatively easy to see how "free" e-books have gained popularity... whether you look at torrents, newsgroups, or IRC - the volume of available e-books of all kinds has increased substantially over the past few years.

[fjtorres]

Originally Posted by Alexander Turcic

Not sure about the statistics in Western cultures; it's why I referred to the Internet rather than to specific countries. On the Internet, it's relatively easy to see how "free" e-books have gained popularity... whether you look at torrents, newsgroups, or IRC - the volume of available e-books of all kinds has increased substantially over the past few years.

But just because there is a culture of "piracy" in Russia/Argentina/Peru etc, why are the publishers in the Netherlands/US/UK harrassing their *paying* customers?
In software, Microsoft and the other big companies focus the bulk of their efforts where the "pirates" operate, and especialy where the *commercial* "pirates" operate. They throw out DRM measures to discourage casual piracy but DRM is not a foil for the commercial operators. Those they go after with private investigators, sting operations, police actions, lawsuits...

But publishing, instead of going after the sites profiting from "piracy", go after their own customers (one or twice removed).

And all without showing much evidence tying those buyers to the activities elsewhere. Which may not even be impacting *their* product.
The backlash should be more than political.

(The biggest targets of video piracy are HBO and Showtime, for example, yet it is the studios/networks with the crappy unpopular shows that whine the most about piracy. Makes you wonder if it's not all just a smokescreen to hide their own lack of performance, no?)

[Mivo]

Originally Posted by Alexander Turcic

There is no denying that e-book piracy on the Internet is rampant;

I wouldn't deny it for (popular) fiction, but I would question that statement for non-fiction.

[Alexander Turcic]

Originally Posted by Mivo

I wouldn't deny it for (popular) fiction, but I would question that statement for non-fiction.

Not sure, but I remember following a case where a few individuals had been allegedly uploading tens of thousands of non-fiction books/textbooks on Usenet. Links:

http://torrentfreak.com/major-book-p...oaders-130612/

http://www.contrapositivediary.com/?p=2925

[Katsunami]

The translated question in the opening post was question 2. I'll translate the other ones below.

1.

Kent u het bericht «Inzet BREIN juridisch afgedekt in nieuw e-bookdistributiecontract»?

"Do you know the post <<Usage of BREIN is legally covered in a new ebook distribution contract>> ?" (refers to ereader.nl news post)

2. (for completeness)

Is het waar dat webwinkels die aangesloten zijn op het distributieplatform eBoekhuis verplicht kunnen worden om klantinformatie door te geven aan Stichting BREIN? Zo ja, hoe verhoudt het doorgeven van dergelijke informatie aan derden zich tot de wet- en regelgeving ten aanzien van de bescherming van de persoonlijke levenssfeer? Zo nee, wat is er dan niet waar aan het gestelde?

"Is it true that web stores connected to the distribution platform eBoekhuis can be compelled to submit customer information to Foundation BREIN? If yes, how does submitting this sort of information to third parties relate to the laws and regulations with regard to to the protections of personal data? If no, then what is not true in the above statement?"

3.

Mag met het oog op de wet- en regelgeving ten aanzien van de bescherming van de persoonlijke levenssfeer een derde winkels dwingen om klantgegevens minimaal twee jaar te bewaren? Zo nee, waarom niet?

"When taking law and regulations with regard to the protection of personal data into account, is it allowed for a third party to force stores to store customer data for at least two years? If not, why not?"

4.

Acht u de bestaande mogelijkheden om tegen verdenkingen ten aanzien van inbreuk van de auteurswet afdoende? Zo ja, hoe oordeelt u dan over de bepalingen met betrekking tot klantgegevens in de in het artikel genoemde overeenkomst «digitale distributie voor webwinkels»? Zo nee, waar zitten volgens u nog tekortkomingen?

"Do you think that existing possibilities are adequate to act against suspicions with regard to copyright infringement? If yes, what is your judgement about the clauses with regard to customer data, that are stated in the mentioned contract? If no, are there any shortcomings [Kat: within the judicial system, not the contract], and where?"

5.

Is het in Nederland toegestaan dat de oorspronkelijke koper van een e-book dit doorverkoopt? Zo ja, op welke wijze kan dan worden aangetoond dat met het doorverkopen van een e-book de auteursrechten niet worden geschonden? Zo nee, waarom is dit niet toegestaan en op grond van welke bepaling(en)?

"In the Netherlands, is it allowed that the original buyer of the e-book resells it? If yes, in which way can be shown that copyrights are not infringed by reselling the e-book? If not, why is it not allowed, and because of which rule(s)?"

6.

Is er vanwege de positie van het Centraal Boekhuis (CB) ten aanzien van de distributie van Nederlandse e-books nog wel sprake van een vrije markt van e-books in Nederland? Zo ja, waarom? Zo nee, waarom niet en ziet u mogelijkheden om de mededinging op deze markt te verbeteren?

"When taking into account the position of Centraal Boekhuis (CB) within the market of distribution of Dutch e-books, can we say that there is still a free market of e-book distribution within the Netherlands? If yes, why? If not, why not, and do you see possibilities to improve competition within this market?"

[crich70]

Originally Posted by Alexander Turcic

Not sure about the statistics in Western cultures; it's why I referred to the Internet rather than to specific countries. On the Internet, it's relatively easy to see how "free" e-books have gained popularity... whether you look at torrents, newsgroups, or IRC - the volume of available e-books of all kinds has increased substantially over the past few years.

I think part of the appeal of the 'free' ebooks that are out there illegally is the fact that in many cases no legitimate source for a given book exists. Either the author doesn't want them published that way for some odd reason or the publisher fails to take advantage of a new medium by which they could make more sales. Add to that the fact that sometimes the ebooks that are offered are set at higher prices than the paper copy of the same title and you have a situation that is ripe for problems.
Also it sometimes seems publishers are trying to take more and more rights from the readers. When I buy a paper book I don't have the right to make and distribute additional copies to others but I do have the right to keep the copy that I have paid for. Now here comes ebooks and it seems publishers have the idea that even if you have paid for your books they have the right to take your copy away from you if you don't do exactly what they say. Even if they drop support for your type of reader and your books then become unreadable they don't seem to feel any responsibility to the customer.
Mobipocket is a good example of that. They stopped supporting the ebookman so new books (that weren't free) wouldn't be readable on the device. But they are owned by Amazon so everything is ok and you can read them on the Kindle right? Wrong. Short of stripping the DRM from the file they are not readable on the Kindle.

[crich70]

Originally Posted by HarryT

The problem with the current system is that copyright infringement is, in most cases, a civil, rather than a criminal, offence, and that means that "justice" is outside the reach of everyone except the largest of companies. If I find that someone has uploaded a pirated copy of my software to a web site, then even if I know the username of the uploader on the site, there's absolutely nothing that I can do about it. I can't afford the legal costs to go to court to get a court order to force the site to reveal the identity of the uploader, or the cost of a private prosecution to do something about it even if I did know their identity.

I don't know what the answer is, or whether this BREIN group has any good ideas to solve the problem, but from the viewpoint of the content creator (and don't make the mistake of thinking that all content creators are large companies - they certainly aren't) there is a very real problem with the current judicial system.

I think it will probably continue to be Civil rather than Criminal myself. I mean it isn't a violent crime against a person like murder or something. At least I have yet to hear of an author dying because someone pinched an illegal copy of one of their books. Short of changing to a Draconian legal system whereby even the smallest of crimes is punishable by several decades in jail or even execution I can't see that changing any time soon.

[HarryT]

Originally Posted by crich70

I think it will probably continue to be Civil rather than Criminal myself. I mean it isn't a violent crime against a person like murder or something. At least I have yet to hear of an author dying because someone pinched an illegal copy of one of their books. Short of changing to a Draconian legal system whereby even the smallest of crimes is punishable by several decades in jail or even execution I can't see that changing any time soon.

Nobody is suggesting that copyright infringement should be punished by "several decades in jail" - please don't put words into peoples' mouths.

The issue is not the scale of punishments for copyright infringement, but the fact that the entire legal process is beyond the reach of all but the largest companies, and so unwieldy that it's effectively unenforcible. I don't know the details of what this BREIN group is proposing, but something really does need to be done to allow small content producers to take advantage of the protection that the law claims to offer them, but in reality doesn't.

[Katsunami]

Chrich70: There is one thing you are forgetting:

The epic lameness of some people.

I've seen people build a desktop computer costing €2000, and then running a cracked version of Windows 7 on it (€89 for a Home Premium OEM), having to re-install / re-crack each time the OS is updated. Couldn't they have built a computer costing €1911, and then buy Windows along with it?

Even worse. People buying a €1500 notebook, running Windows 8, and then using a cracked version of Stardock Start8 (€5), even though there are similar free alternatives such as classic shell.

Think you've hit rock bottom? Think again. I know some people who go to great lenghts, such as searching for 4 hours, to find a full version of an Android application they want, on the internet. The app costs like €1. Those people are "working" HOURS, to save €1.

Epic lameness trumps all. There are quite a lot of people who are of the opinion that if it is digital, it can be pirated and therefore SHOULD be pirated to save money, whatever the cost.

Saving €1, or even €5 or €10 if it takes me a day to do it, then that's a very bad deal, except if you have both no money whatsoever (and no income) and unlimited time.

Originally Posted by HarryT

The issue is not the scale of punishments for copyright infringement, but the fact that the entire legal process is beyond the reach of all but the largest companies, and so unwieldy that it's effectively unenforcible. I don't know the details of what this BREIN group is proposing, but something really does need to be done to allow small content producers to take advantage of the protection that the law claims to offer them, but in reality doesn't.

I agree, but it should not be done the way BREIN is trying to do it; by giving itself rights it does not have. If BREIN wants access to customer data and then use that data to investigate copyright infringement, they should first be authorized by the government to do so, and should be given investigative privileges. In short, they'd need to OFFICIALLY become part of the judicial system.

At this point they aren't, so this contract should be shot.

The problem is, as I've said: as soon as one writer or publisher is willing to say: "You may enforce my copyrights", then I can create my own BREIN. And, if BREIN can get customer data at their whim with such a contract, I can too. Of course I'd be to small to force vendors into a contract, like eBoekhuis can, offering just books of one writer or one publisher, but I'm talking purely theorethical here.

BREIN is a private organization (a Foundation), and anything they can get away with, *I*, or you or anyone could get away with. This would the door for everybody to just go and put stuff like that into their contracts and start collecting data whenever they see fit.

[Greg Anos]

Originally Posted by HarryT

Nobody is suggesting that copyright infringement should be punished by "several decades in jail" - please don't put words into peoples' mouths.

The issue is not the scale of punishments for copyright infringement, but the fact that the entire legal process is beyond the reach of all but the largest companies, and so unwieldy that it's effectively unenforcible. I don't know the details of what this BREIN group is proposing, but something really does need to be done to allow small content producers to take advantage of the protection that the law claims to offer them, but in reality doesn't.

But that's the way the big companies wanted it, for most purposes. Things like "loser pays" are there to discourage the exercise of legal rights by small, weak people/organizations. Now, in the I.P. arena, these very same concepts are biting the companies back.

"Be careful of what you wish for, you might get it."