back to article Net publishing happens in the server AND the eyeball, says EU Bot

Online publishing of information takes place both in the location from where the information is served and the location where it is read, an advisor to Europe's highest court has said. Advocate General Yves Bot said the internet was a complex communications network and that the High Court in the UK had been wrong to determine …

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Anonymous Coward

Translation:

"We can tax, and prosecute you, in each and every state the bits and bytes pass through.

Well, we want to, anyway."

How is this going to end up as anything other than a horrible morass of legalese that only those with the money to hire an army of legal defenders will be able to understand?

Oh, I see.

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Re: Translation:

And what's wrong with that?

The fact that the stuff is digital is irrelevant. If I sell a substance via mail order, and send it to or through a country where it isn't legal, then I shouldn't be surprised if I run the risk of getting into trouble even if I am located somewhere else.

In the same way, if I approporiate someone else's digital property and sell it to someone in a foreign country, it shouldn't be a surprise that either country's legal rules would apply when the owner wants to defend themselves. The alleged wrongdoers here aren't saying they didn't do anything wrong, they're arguing about jurisdictions, which in my mind is trying to exploit uncertainty in the legal system, so this judgement actually makes it clearer by broadening the definitions (if that makes sense).

I know that digital ownership is theft to a lot of people, but that is a different question. The only question here is "can I commit a crime in the UK from a base in Austria?" and the answer is clearly "yes".

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Re: Translation:

When posting something, it may or may not pass through any given country, depends if it ever stops in said country.

The internet is vastly worse, as it may or may not pass through any given country each time its accessed, or sometimes even whilst its being accessed due to the way that packet routing works.

As far as jurisdictions are concerned, its much more like you flying from A to B, where youre carrying something permissible in both A and B, only to find you having to make an emergency landing in C, where you promptly get arrested.

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So, Mister Bot[1] ...

You really think that "Taxation Without Representation" is a good idea?

Gee, Bullwinkle, that trick never works!

(signed) Rocket J. Squirrel.

[1] The irony is almost palatable ...

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Re: So, Mister Bot[1] ...

"No taxation without representation"

Or as a tour boat captain once put it:

"This piece of water is called Boson Harbour. There's no 'T' in it ... and we'd like to keep it that way."

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Anonymous Coward

Re: So, Mister Bot[1] ...

What Taxation? Did you read the article? It doesn't mention taxation in there at all

... awaits for correction as to jakes "rightness"

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Coat

Re: So, Mister Bot[1] ...

Or as a tour boat captain once put it:

"This piece of water is called Boson Harbour. There's no 'T' in it ... and we'd like to keep it that way."

That would be Cap'n Higgs, yes?

Mines the Sou'wester.

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@AC 11:56 (was: Re: So, Mister Bot[1] ... )

Do you know what a "simile" is, AC? Perhaps the "Rocky & Bullwinkle" reference might have given you cause to think that maybe, just maybe, I wasn't being literal. Or perhaps not.

::shrugs::

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Pint

Re: So, Mister Bot[1] ...

Aye, matey ... Cap'n Higgs o't'good ship Cyclotron.

And it's not even September 19th ... Except September still hasn't ended. Currently, my system reports the date as September 6875, 1993 (that's UTC, BTW, for those pointing out that I'm in California where it's technically still September 6874 ... ).

Ales all 'round! Arrr!

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Anonymous Coward

Re: @AC 11:56 (was: So, Mister Bot[1] ... )

I know what a simile is, I also know what a helpless attempt at recovering some dignity looks like

::laughs::

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Devil

Just a thought...

OK I probably didn't understand this properly as I'm not really fluent in complete bollocks legalese, but does this mean, for a hypothetical example:

If somebody was to put, say, leaked diplomatic traffic on a server in Sweden, then just because somebody read that data in the USA or Iran, then the person putting the data on the Swedish server, would be effectively publishing that data in those countries as well as Sweden?

I'd better order some more beer and popcorn...

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Re: Just a thought...

Interesting one.

I suppose that one could argue that with IP geolocation it is possible to make efforts to prevent[1] publication in the USA and Iran. If no such efforts on restriction are made then it could be taken that the intent is to provide access to the data and facilitate publication everywhere.....

Pass the popcorn....

[1] Subject to circumvention of course, but in these cases it usually is the thought that counts.

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Re: Just a thought...

Precisely. Since you failed to abide by our laws while in your own country, we will arrest you as soon as you set foot in ours. In fact, you had better self-censor unless you are fluent all the laws in all the countries you might visit.

Ah! Isn't life peaceful now?

The Americans take it a bit further though, by trying to get other countries post them people they don't like so they can be prosecuted in the US.

Personally I prefer the import/export model. The "publishing" model is a flawed analogy and implies distribution for demand is known (like books/newspapers) rather than a copy sent only on request. If its illegal, go after the importer. However, as the RIAA et al have discovered, that's just annoyingly time-consuming and difficult.

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FAIL

Ummmmm

So, you open a web page hosted in the UK and that web page is now published in your country?

So, by extension...

You order a magazine from the UK which isn't printed in your country and as soon as it arrives through your letterbox it's published in your country.

Logic fail.

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Re: Ummmmm

Or more worryingly, if a provider uses an IP blacklist to avoid making something or other available outside of a specific geographical region, but someone uses a proxy to fake an IP within the region - now YOU are potentially committing a crime.

For example I could make the BBC liable for huge damages by watching Euro2012 streams in a country for which BBC doesn't have broadcasting rights.

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Mushroom

Fantastic

Anyone with a server in the EU now has to abide by at least all the different and contradictory publishing laws in all the different countries in the EU, probably has to abide by all the different and contradictory publishing laws in the EU + EEA + Switzerland + US + Canada + Australia + NZ, and at most has to abide by all the different and contradictory publishing laws in the whole world (+ the ISS).

It makes perfect sense! (to the bot from the EU)

Can we have an icon which represents that scene from Scanners?

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Re: Fantastic

Of course it makes perfect sense. Your just looking at the purported issue, and not the implications.

In six months a study will be done showing that businesses think that having to comply with legislation in so many countries is unworkable and the legislators will announce it as as widespread support for "harmonising" the existing legislation to an EU standard to solve the problem. Which the EU writes, and thus gains control over yet another area that national politicians are then perpetually unable to legislate on.

This is basically how the EU grew from a customs union to being legally defined as a country ("europe") with it's own flag and national anthem.

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Anonymous Coward

Every router is a publisher now?

The flaw in the logic comes in this paragraph:

"In so far as, in an internet context, ‘re-utilisation’ is not usually a single act but the sequential succession of a number of acts which, having as their purpose the ‘making available’ of certain data via a networked and multi-polar communication medium, occur in that medium as a result of the actions of individuals located in different territories, the conclusion must be that the ‘place’ of the ‘re-utilisation’ is that of each of the acts needed to produce the result comprising the ‘re-utilisation’, that is to say, the ‘making available’ of the protected data," Bot said.

The 'number of acts' are the emission of the published material from a server and its transmission through the network that 'makes available' the published material to the recipient. Bot is arguing that publishing happens everywhere that any one of the 'number of acts' occurs, but this is blatantly incorrect. Each of these number of acts, individually, is necessary but not *sufficient* for the overall act of 'making available' to occur; the making available only actually happens when all of the acts are carried out in the right sequence.

In other words, Bot is claiming that each act on its own is both necessary and sufficient, which would make every intermediate router hop on the internet a 'place' of publication. But the actions of any single router on its own, in isolation without first having been fed data by the entire upstream path, could not result in any data being 'made available'. Publication of anything clearly requires the entire uninterrupted causal chain to succeed.

I personally think the best legal model for the internet would be to consider accessing remote servers and the act of publication involved thereby as exactly analagous to making an international direct-dial phone call to a recorded information line sited in whatever country the server is in. There should already be plenty of clear case law to help us understand that situation that could apply to the 'net.

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Re: Direct-dial to recorded information line

There may be *some* case law, but given the cost of international calls (at least in past times) I suspect there isn't much. However, whatever case law exists for *that* scenario ought to be the same as whatever case law exists for the scenario of "I buy a magazine on my holiday and bring it home with me.". I suspect the case law here could fairly be summarised as "the material may be inspected by customs and seized at the border on the grounds of indecency or political subversion".

I suppose *that's* the model that M. Bot is reaching for. It has to be legal for the server to make it available in the country of origin and it has to be legal for the end-user to import it into the country of consumption.

(Note for politicians: In the past, people have made laws like this without worrying about whether enforcement can be automated or 100% effective. Therefore it is *not* necessary to demand that ISPs or the people who route internet traffic across borders perform deep packet inspection.)

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Re: Every router is a publisher now?

Whilst we are on the subject of routers, M. Bot might like to consider the following technicality.

It is fundamental to IP that only the end-points matter. The packets that sustain a communications stream need not all travel by the same route. Whilst, in practice, there are a limited number of obvious routes across borders, this is less and less likely to be true within continental Europe as folks build up their infrastructure.

Therefore, one the one hand the list of countries that might be touched by a communications stream is "any of the sovereign states on this small dirt ball we call Earth", and on the other hand the list of countries that are certainly touched is just "the server's and the client's".

Furthermore, the route taken is not under the control of either the server or the client. Even communications within a single state might pass through a foreign router if some routing algorithm felt it was a good idea. Pragmatically, then, only the two end-points should be considered for legal purposes. Anything else is just madness.

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What is needed

Well if the idea is to make each router responsible for what passes through it, on the basis that it is publishing rather than just transmitting on, then content will need to include permission and rules for its retransmission. That's going to be a nightmare for content uploaders.

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Anonymous Coward

Re: What is needed

"Don't route this content via satellite X. Satellite X's owner is also a primary competitor for licensing this content."

"You're hosed. Satellite X is the only route into the destination network."

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So why does anyone put up with the "football authorities"

It seems they want their match information to be known to all, yet they still want it kept secret so that they can extract more money from people.

They're useless parasites extracting as much money as they can from a game they know people will pay outrageous fees to watch being played both live and broadcast. Why does anyone bother with their product? Imagine if the music industry gave sole "performance listing rights" to one company and sued anyone else who published a list of concerts.

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Re: So why does anyone put up with the "football authorities"

Are you suggesting that the "football authorities" would sully the great sport by using it to extract money out of people? Wouldn't that tarnish the purity of the game?

BWAHAHAHA! Sorry, I tried keeping a straight face for as long as I could. Mines the coat marking a goalpost.

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@Crisp

I couldn't care less about the purity of anything, I'm wondering out loud why people who profess to love football pay these leaches and show brand loyalty to something which stopped being a "local team" years ago.

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Anonymous Coward

Re: So why does anyone put up with the "football authorities"

Imagine if the music industry gave sole "performance listing rights" to one company and sued anyone else who published a list of concerts.

They are pretty much there with Ticket Master...

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Anonymous Coward

And where America goes the world follows...

Get your passports out, we're now subject to the laws of every country in the world simultaneously.

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I await with interest his proposals for bringing all the EU's own websites into full compliance with Iranian and North Korean law, then. Better delete any references to Israel's existence, then, to comply with the laws of various Arab countries - and Kashmir will be tricky, needing to comply with both Pakistan and India's rules on that subject.

He did publish his ruling simultaneously in English and Canadian French, as required by the laws of Quebec, I hope, and make sure it's not available during any public holidays anywhere in the world in case of violating national or local holiday ordnances?

I'm in the UK, my personal server's in the US. I have no problem with complying with those laws, they are actually relevant - but the idea I now need to comply with laws of countries I have never visited, just because someone in that country looks at my website? Utterly crazy.

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Is it me, or is the opinion really an assessment of what current law exists on the subject, not so much what he thought was best (that is not for him to decide). In the absence of laws dealing explicitly with all the complications brought by the internet (and Bot discusses this to some extent), it is then useful to see what existing laws might apply. Broadcast and database use are reasonable areas to look. If the consequences of applying the existing law to the internet case are problematic (as pointed out by the other posters), new laws should be formulated.

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Think people are over complicating this..

Under English law relating to electronic publishing the act of publishing occurs at the computer screen as that is where the browser interprets, processes and publishes the data for the reader to view it. This is why the viewing of pornographic material on a computer screen by an individual makes them liable under the the Obscene Publications Act since they are responsible for publishing the material.

The case in question in the article is as a result of a claim by the defendant that they were not liable as the material was stored by them in Austria but published in the UK and therefore they could not be liable for any copyright breach in the UK as they had not published it. The opinion challenges that view.

The opinion does not say that every router on the network publishes the material. What it is saying (in my view) is that a party who makes available material even where that information is stored on a server in another country (Country A) is still part of the publishing process as a content provider and that where their actions result in an offence in the country where the final publication occurs (Country B), then whilst their actions in Country A may be legal, they are still a joint party to the offence in Country B. Therefore the English courts will have jurisdiction in the trial.

If you think this is harsh, bear in mind that London has become the libel capital of the world because of the fact that the act of publishing material happens on the screen in England and therefore constitutes publication of the subject of the libel claim.

To compare electronic and paper publishing is a nonesense since they are two separate activities which follow different processes and result in different outcomes (one is a tangible unchangeable document) the other is a transient page that can be modified or deleted at any time to stop people reading it.

Data passing through a router cannot be viewed as "publishing" for the simple reason that it is not available to the public or even a private audience since by its nature the data is transient, may not be the complete dataset and is not processed for viewing by the router.

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Anonymous Coward

So..

How many angels can dance on the head of a pin then ?

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