This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index

The digital age has inevitably shaken the concept of copyright to its core. When you have “digital” content, you always have the “human readable” format and you also have the digital expression of the copyrighted material translated by computers into bits — the ones and zeroes. As a result there is a degree of inevitable copying of the work in question. “Digital” means copying, in other words.

Similarly, networks must make temporary copies to function. So, “network” means copying.

Computers make copies in order to process and display information. Therefore “computer” also means copying. As a result, the growth of computers accessing content over digital networks means either reinventing information and communications technologies or re-inventing copyright to some extent.

Unfortunately, it has taken a painfully long time for this fairly simple realisation to dawn on many of the analogue industries that had grown too comfortable to grab the opportunities that the digital revolution offers. One of the best examples of this dogged refusal to accept the most basic concepts of digital technologies was the debate surrounding the copyright status of temporary technical copies created by computer networks.

In 1999/2000, publishers and the music industry ran an energetic lobbying campaign against a copyright exception for incidental network copies that, “do not interfere with the normal exploitation of the work” by the copyright owner.

The European Publishers’ Council (EPC) warned in 2001 that “unless we have Parliament’s amendments [to prohibit unauthorised temporary copying] or something similar in effect, we do not have the ability to authorise any kind of copy, regardless of its economic significance, and thereby lose our control over illegal, piratical distribution of our works.”

The logic of the publishers was somewhat more subtle and more dangerous than it sounds. If every copy in an internet provider’s network would be a copyright infringement, the provider could not function without prior authorisation. Providers would be liable for copies made in the transmission of legal/authorised content and doubly liable (for the copy and the facilitation of the infringement) for illegal/unauthorised content.

If the amendments in question had been adopted, European Internet companies would have had no option other than to monitor, delete, censor and restrict their customers in every way that the publishers considered appropriate for fighting against copyright infringement — as well as increasing prices by demanding royalties for legitimate content. Of course, 1999/2000 was a lifetime ago in internet years and things have moved on in the meantime.

Or have they? In 2012, the Austrian High Court has referred the “kino.to” case to the European Court of Justice. One of the questions asked in that case is: “are reproduction [sic] for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?”

The referral attempts to re-open the question of making internet companies independently liable for copyright infringement in relation to every unauthorised file that passes over its network. So, we are back in 2000, with a threat that internet companies could be forced into a “gatekeeper” role as a privatised police force.

An unwise ruling from the European Court of Justice would speed up an already problematic trend that is fuelled by efforts to use internet companies as private enforcement “tools” in order to protect copyright in the online environment. Even though both ACTA and SOPA failed, their proposals on the enforcement of copyright through “voluntary”arrangements with any or all internet intermediaries live on. The US-led OECD “Communiqué on Principles for Internet Policy-Making”[pdf] adopted in June 2011 talks obscurely of norms of responsibility that enable private sector voluntary co-operation for the protection of intellectual property.

It somewhat less obscurely reflects an active choice to avoid references to the right to a fair trial and due process of law, choosing instead to refer to “fair process” — which sounds like both, but means neither. This practical implementation of such a policy can be seen in efforts of the United States “IP Enforcement Coordinator”, to exploit the global reach of US companies to take “voluntary” punitive actions against foreign online services considered to be breaching US copyright rules. The “voluntary” measures taken against Wikileaks also give a taster of where this policy is heading. Payment service providers blocked payments to Wikileaks while Amazon withdrew hosting services.

Amazon pulled hosting services from Wikileaks in 2010 after pressure from the US government

This increasing pressure on intermediaries to meddle with content is happening at a particularly inauspicious time. Internet access providers are increasingly demanding the right to interfere with the functioning of the open internet (i.e. undermining the concept of network neutrality). The core value of the internet for free speech is the “any-to-any” concept whereby any part of the network can (broadly speaking) communicate unrestricted with any other part of the network.

This is now under threat from the privatised enforcement measures demanded by some policy-makers from internet intermediaries that are increasingly finding commercial advantages in making such interventions.

Suddenly, we end up confronted simultaneously with all the worst aspects of policy-development over the past fifteen years. We have courts questioning the most fundamental elements of the networked environment — the “right” of network providers to make the transient copies that are essential to the functioning of the Internet — the argument that we already had thirteen years ago.

Layered on top of these existential questions, we have policy-makers tinkering with the most fundamental legal principles of a society that is based on the rule of law, seeking to replace the regulation of free speech and communication by laws and courts with terms of service and the whims of internet access providers, hosting providers, domain name registrars, domain name registries, search engines, payment providers and advertising networks.

And layered on top of this, we have internet access providers raising their own existential questions about the viability (from their perspective) of the core concept of the internet – the  ”any-to-any” principle.

Joe McNamee is EU advocacy co-ordinator at European Digital Rights

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Barack Obama’s administration cast free speech aside in its pursuit of file sharers and whistleblowers, says Mark Rumold

Four years ago, President Obama’s campaign platform didn’t include sweeping promises about promoting free speech. He wasn’t elected because he swore to vigorously defend the First Amendment, and to protect speakers no matter the content of their speech.

In contrast, the President did campaign on a platform of government transparency. As a transparency advocate, I can confidently say that, by almost any measure, the President failed to live up to those lofty guarantees.

But what about free expression — a value so roundly cherished in the United States that a promise to support it would almost seem unnecessary? Without a clear benchmark or unambiguous campaign commitment on the issue, it’s not so simple to assess his record. But sadly, like his commitment to transparency, the President’s commitment to free speech was often collateral damage in his pursuit of other policy objectives.

This was most evident in the administration’s actions in two areas: intellectual property and national security.

The administration’s often misguided attempts at combating online copyright infringement frequently resulted in harm to protected expression. For example, in 2010, working in close cooperation with industry trade groups like the Motion Picture Association of America and the Recording Industry Association of America, the administration began seizing the domains of websites that government officials deemed to contain infringing material. Except that wasn’t always the case: in at least two instances, the government seized — and refused to return — domain names without any apparent connection to copyright-infringing material. The seizures resulted in complete censorship of the sites for over a year.

The same is true of the administration’s heavy-handed treatment of Megaupload, an online file-hosting service. In January 2012, the Department of Justice seized Megaupload’s domains and servers, froze its assets, and attempted to have the site’s founder, Kim Dotcom, extradited to the United States to face criminal charges. While the site undoubtedly hosted some infringing content, there was also a vast amount of non-infringing content stored on the site’s servers — family photos and videos, personal documents, and other protected expression. All this unquestionably protected speech was swept up in the name of combating online copyright infringement.

While the administration’s pursuit of intellectual property enforcement caused collateral damage to protected expression, the administration’s biggest tests — and, subsequently, biggest failures — in its commitment to free speech occurred in the national security arena.

National security concerns caused the Administration to investigate and charge government whistleblowers under the Espionage Act and led to the questionable prosecution of alleged terrorists for “crimes” as innocuous as translating YouTube videos and writing vulgar and hateful poetry.

Yet nowhere were the administration’s First Amendment failings more evident than in its handling of Wikileaks. After Wikileaks published thousands of confidential (and, in some cases, classified) State Department diplomatic cables, the administration embarked on an unprecedented intimidation campaign. In particular, the Department of Justice’s long-running grand jury investigation of Wikileaks and its founder, Julian Assange, stands as a press-chilling stain on the administration’s First Amendment record. The message the administration sent through its investigation is clear: if you publish classified information — and, in particular, classified information that portrays the government in an unflattering light — we may prosecute you. Classified information is published almost daily in the country’s most reputable newspapers and magazines. Punishing the publication of truthful information about the government, absent a clear and present danger posed by the information’s disclosure, is intolerable under the First Amendment. Yet this was precisely the administration’s extraordinary approach. Indeed, the most enduring legacy of the Obama administration’s commitment to free speech may be the long shadow in cast upon national security reporting.

There were bright spots, however. The administration made promoting free expression abroad a focal point of Secretary of State Hillary Clinton’s international agenda. For example, in a thinly veiled jab at China, Secretary Clinton stated, “Countries that want to be open for business but closed to free expression will find that this approach comes at cost[.]” Secretary Clinton similarly called on regimes in the Middle East to ease restrictions on free expression.

But these are the easy cases — it’s not politically difficult to champion the rights of those living beneath repressive regimes. The true test of an administration’s commitment to free expression can only come in relation to the closer cases — those that strike near home or that implicate other policy goals. Seen through this lens, over the past four years, the Obama administration often abdicated its responsibility to protect free expression in pursuit of more politically expedient goals.

Mark Rumold is the Open Government Legal Fellow at Electronic Frontier Foundation (EFF) 

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We are disappointed by the statement from Ecuador’s Foreign Minister that Ecuador has offered political asylum to Julian Assange. Under our law, with Mr Assange having exhausted all options of appeal, the British authorities are under a binding obligation to extradite him to Sweden. We shall carry out that obligation. The Ecuadorian Government’s decision this afternoon does not change that. We remain committed to a negotiated solution that allows us to carry out our obligations under the Extradition Act.

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Manning’s court hearing will begin on 16 December

After nearly 18 months’ incarceration and punitive treatment described as “torture” by human rights activists, accused leaker and former US Army intelligence analyst Bradley Manning will finally get a day in court.

This is not a trial, but an “Article 32″ hearing, the US military equivalent to a civilian pre-trial hearing, where the defence can evaluate the government’s case and obtain facts through pre-trial discovery. It begins on 16 December at Fort Meade, Maryland and is expected to run right through the weekend for approximately five days. Despite press interest, only a small number of seats are available for the public and reporting restrictions are in place to prevent live coverage.

Saturday will mark Manning’s 24th birthday, the second birthday he has spent in custody since his arrest in May 2010 for allegedly leaking a US Army video that showed soldiers gunning down Iraqis, including two Reuters journalists. He was later charged with 22 violations of military law for allegedly leaking records and transmitting defence information. He faces life in prison if convicted. The hearing will determine whether or not he goes ahead for a full court-martial.

The length of time Manning has been in pre-trial confinement is controversial, but more so has been his treatment while confined — seeming more like punishment than justice. While in the military brig in Quantico, Virginia he was in maximum custody and controversially placed on prevention of injury (POI) watch, which meant he was in solitary confinement, forced to spend 23 hours in a cell six feet wide and twelve feet in length.

His lawyer David Coombs reported Manning was woken at 5am weekdays and 7am on weekends and was not allowed to sleep any time between then and 8pm. If he attempted to sleep during those hours, he was made to sit up or stand by the guards.  Guards checked on him every five minutes by asking him if he was okay. He had to surrender his clothes at night apart from boxer shorts. He was not allowed a pillow or sheets, nor any personal items in his cell, and was prevented from exercising apart from one hour when he would walk in a figure of eight motion.

The harsh conditions were denounced by human rights groups, including Amnesty International, and brought the attention of the United Nations’ rapporteur on torture Juan Mendez, who tried to visit Manning but was refused a private and confidential meeting with the prisoner. More than 50 members of the European Parliament signed a letter to the US government expressing their concern over the whistleblower’s treatment in custody, and  250 American legal scholars signed a letter to President Obama protesting that Manning’s “degrading and inhumane conditions” were illegal, unconstitutional and could even amount to torture.

It was the sort of treatment one might expect from third-world or despotic countries, not the supposed leader of the free world purporting to set an example on human rights. Even the former State Department spokesman PJ Crowley broke ranks and said the treatment was “ridiculous, counterproductive and stupid”.

Following these worldwide criticisms, Manning was moved to a facility in Fort Leavenworth, Kansas, where his conditions were said to be better.  The US military conducted an internal investigation into the alleged mistreatment at Quantico and found he had been improperly placed on “prevention of injury” watch against the recommendations of qualified medical personnel. However, the prison official implicated by the report was able to overturn it.

Manning’s “guilt” so far has been based on chat logs of dubious prominence: conversations he allegedly had with hacker Adrian Lamo between 21-25 May. In these logs he”‘confesses” to leaking the video and US Army records of the wars in Iraq and Afghanistan, 260,000 State Department cables and personal files of Guantanamo prisoners to whistleblowing site Wikileaks. The logs also provide a motive: not spying or stealing for material gain, but a desire to educate the world’s citizens about what governments do in their name.

Manning’s story reads like a betrayal by all sides. Not just by those he thought he could confide in but by a government supposedly committed to human rights.

By its punitive pre-trial treatment of Manning and the extra-judicial attempts to shut down Wikileaks, the US Government has renounced the moral highground. It had a unique opportunity to show by action rather than rhetoric how best to practice due process, the rule of law, human rights and freedom of expression. How sadly it has failed to live up to the values it preaches.

Heather Brooke is a writer, journalist, and activist. Her campaign for the full disclosure of MPs’ expenses led to a full-scale reform of the Parliamentary expense system. Her latest book is The Revolution Will Be Digitised. She is on Twitter – @newsbrooke

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Index on Censorship Chief executive John Kampfner commented: “Sites such as Wikileaks will continue to emerge, and will have an important role to play. But they should be operated with a great duty of care, both to whistleblowers and to individuals who may find themselves in danger after irresponsible leaks of diplomatic, intelligence or other material.

“Among the responsibilities of journalism are protection of sources and the avoidance of reckless endangerment of innocent people. These same responsibilities should be adopted by whistleblower sites.”

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