FOSS Patents

[Update] The Federal Commissioner's spokesman has thankfully communicated the agency's approval of my translation as correct, and everyone disseminating it will be able to point to that fact. Thanks to fellow IP blogger Dr. Birgit Clark for telling me that an official translation would be more helpful, an impulse that led me to seek official approval. [/Update]

To skip to said translation of the statement, please click here.

In my previous post I reported and commented on the two-thirds majority of the members of the European Parliament's legal affairs committee (JURI) that voted in favor of the proposed EU Copyright Directive and announced at the end that I was going to translate--in the post you now have in front of you--a statement that came out just before the JURI vote and may help with a view to the European Parliament's plenary vote as well as the further process, provided there is a further process, which requires the Parliament to reject or amend the directive.

The Federal Data Protection Commissioner of Germany, Ulrich Kelber, issued a statement voicing his concerns about the most problematic element of the bill in its current form: upload filters. The bill doesn't mention them explicitly, but simply makes them a de facto requirement, and Mr. Kelber's statement (in German; I'll translate the full text below) addresses the ramifications of upload filters for data protection.

Please bear with me for a minute before I provide the translation because I have an anecdote to tell. In 2004, a parliamentary aide employed by his party (SPD = social democrats) arranged a meeting for me and a fellow anti-software-patent activist, Marco Schulze, with Mr. Kelber in his Bundestag (German federal parliament) office. When suggesting the meeting, that aide had told us: "You guys gotta meet Uli. He's sympathetic to your concerns about software patents because he has a computer science degree and knows the stuff." At the start of the meeting, I said "As a programmer, you obviously...," but he interrupted me: "No, I'm not a programmer. I hate programming." My conversation starter had failed. I asked anyway: "But you do have a computer science degree?" And he replied: "Sure, but there's a whole lot of things you can do with that degree other than writing code." Well, in his case it's obvious that he made a political career anyway. And that conversation back in 2004 went very well despite my unawareness of his despise of the activity of coding. Years later, I contacted him about standard-essential patents, and while patent policy was no longer his focus, he told me he read a few of my blog posts anyway just to reminisce our joint efforts against software patents...

So here's my translation of the statement he issued today, which should really come in handy in the build-up to the EP's plenary vote:

This translation, which was furnished by Florian Mueller (fosspatents.com), has been approved as correct by the Federal Commissioner for Data Protection and Freedom of Information. Feel free to disseminate, but please do include this notice.

Copyright reform also poses risks to data privacy rights

Bonn/Berlin -- February 26, 2019

The copyright reform package that is currently being discussed in Brussels could also pose significant risks relating to data privacy rights. Above all, the use of so-called upload filters presents a threat of a few large providers of such technology gathering even more data concerning the users of many Internet platforms and services.

The Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, therefore warns against the potential consequences of the reform in question: "Even though upload filters are not explicitly mandated by the bill, they will be employed as a practical effect. Especially smaller platform operators and service providers will not be in a position to conclude license agreements with all [copy]right holders. Nor will they be able to make the software develoment effort to create upload filters of their own. Instead, they will utilize offerings by large IT companies just the way it is already happening, for one example, in the field of analytics tools, where the relevant components created by Facebook, Amazon and Google are used by many apps, websites, and services."

"At the end of the day, this would result in an oligopoly consisting of a few vendors of filtering technologies, which would then be instrumental to more or less the entire Internet data traffic of relevant platforms and services. The wealth of information those vendors would receive about all users in the process is evidenced by, among other examples, current media coverage of data transfers by eHealth apps to Facebook."

Therefore, the Federal Commissioner for Data Protection and Freedom of Information sees a clear and present danger of a further concentration of data in the hands of an oligopoly of vendors as an adverse effect of the present EU proposal. Against the background of the decision the Federal Cartel Office [Germany's national antitrust authority] handed down against Facebook a few weeks ago, the objective should actually be to achieve the opposite [of such concentration of data].

Ulrich Kelber calls for further steps to be taken to avert the previously-outlined scenario: "If the EU believes platform operators can meet their new obligations [under the proposed copyright directive] without upload filters, it must make a clear showing. That is why I am awaiting with great interest the [European] Commission's forthcoming recommendations. In the other event, data privacy considerations require a thorough overhaul of the bill. Notwithstanding the need to update the protection of author's rights in our times, such a measure must not harm or compromise the protection of Internet users' data."

With its present copyright bill, the EU is seeking, among other goals, to strengthen the position of creators enforcing their rights against commercial Internet platforms such as YouTube. The objective is to establish liability for platform operators failing to take measures to prevent the illegal distribution of copyrighted works via their services.

[END OF OFFICIALLY APPROVED TRANSLATION]

Follow @FOSSpatents

Share with other professionals via LinkedIn:

About two months after I expressed the opinion that potential union recognition by the European Patent Office (after some 40 years of existence) would be insufficient to solve the social conflict there, it turns out that things have not only failed to improve but actually deterioriated. And president "Blatterstelli"'s days may already be numbered because even the government of his own country appears ready to sack him anytime.

Yesterday, the Staff Union of the European Patent Office (SUEPO) held a demonstration in front of the EPO's main building in Munich. While there have already been various other SUEPO demonstrations in Munich, a couple of which I reported on, yesterday's protest had a new (though not exclusive) focus: surveillance by means of hidden cameras and keyloggers. Participants in the demonstration carried signs showing surveillance cameras:

It appears credible to me that, as the organizers claimed, approximately 1,000 EPO employees participated -- a fairly high percentage of all Munich-based EPO staff. On the next three pictures (this post continues below them) you can see parts of the crowd:

SUEPO's message to the EPO's leadership, particularly the self-serving Administrative Council (which bears the ultimate responsibility for the whole mess), is loud and clear: EPO employees want to see actions, not words. Improvement, not promises. And this has to start with at least a modicum of respect for fundamental human rights, no matter how hard that may be for the members of the Administrative Council, the president and the vice presidents of the EPO.

In April it was already remarkable when a Munich-based Dutch diplomat addressed protesters and expressed concern over bad press. At the same demonstration it was also mentioned that Mr. Battistelli threatened to resign. His resignation may actually be closer than ever now. At a recent EPO event in Paris, French innovation minister Axelle LeMaire said (starting at 109:40 in this official video recording):

"L'innovation c'est un impératif, un impératif économique. Et ce qui est vrai pour la technologie, l'est aussi pour l'innovation publique, les modes de gouvernance, l'innovation sociale. Et à ce titre, même si ce n'est pas l'objet de notre rencontre ce matin, le gouvernement français connaît les difficultés sociales qui s'expriment au sein de l'Office Européen des Brevets et à ce sujet, l'office a un devoir d'exemplarité, de transparence absolue dans le respect des droits des agents qui y travaillent."

My unofficial translation:

"Innovation is imperative, imperative for the economy. And what is true for technology is also true for public innovation, meaning governance structures and social innovation. And while we are on this subject, though this is a departure from the subject of this event here, the French government is aware of the social issues at the EPO and, in this regard, the EPO has a duty of being exemplary, a duty of absolute transparency with respect to the rights of the people who work there."

It's really unusual in two regards. One, this speech was given at the European Inventor Award ceremony, an event at which the EPO wanted to celebrate itself. I consider that event a sad thing. In my opinion, a patent office that promotes in any way (by this I also mean the USPTO with its Steve Jobs patents exhibition) patents that are or could still be used in litigation miserably fails to be neutral and its leadership should be replaced. But for the EPO's leadership, that event is meant to be a day of joy and self-aggrandizement. The fact that a politician would touch on the delicate issue of the EPO labor conflict and human rights issues on such an occasion gives those remarks about ten times more weight than if they had been made in daily business. Two, Mr. Battistelli is French and the national governments of officials of international organizations are usually the last ones to withdraw their support.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Given Germany's experience with totalitarian surveillance states before and (in the eastern part) after World War II, I wonder for how long Germany's chancellor and minister of justice, as well as the Bundestag (parliament), can tolerate an international organization on German soil that appears to stop at nothing in its human rights violations. The European Patent Office (EPO) abuses its "immunity" and one of the first reform measures should be to put each facility of the EPO under the jurisdiction of the respective country, at least with respect to human rights including data privacy. There is now conclusive evidence that the EPO has violated basic human rights not only of its staff but even of unsuspecting visitors of one of the EPO's Munich facilities.

On Friday, the data protection officer of the state of Bavaria (whose capital is Munich, where the EPO is headquartered) was quoted by a newspaper (English translation here) with the suggestion "that an external data protection supervisor be assigned to the EPO because the internal inspectors are not independent enough and in the absence of any action matters are likely to get out of hand." It has become known that the EPO used keyloggers and hidden cameras in its internal investigations of what may actually just have been the exercise of one or more people's freedom of speech with respect to the EPO's Jack Warner, vice president Željko Topić. After Mr. Topić lost a court ruling in his country of origin (Croatia), can be accused of pretty bad stuff. The Bavarian data privacy commissioner was spot-on: while the EPO does have a "data protection officer," that person is just a dictator's minion with no say over anything important.

A document has been leaked to me that proves a complete dereliction of duty. The "data protection officer" in name only signed off on covert surveillance measures (keyloggers and hidden cameras) on December 3, 2014 with the following rationale:

"Given the seriousness of the allegations I consider the proposed measures as proportionate."

Seriousness of the allegations? Are you kidding? This here is not about an assassination plot, or about gaming the patent system in the sense that someone would have leaked sensitive information to a patentee's competitors, or about bribery in connection with patent grants. Under such circumstances I would actually support the use of covert surveillance (I'm all for law and order and not really a privacy activist, to be honest). But the request that the "data protection officer" (who is more than 25 years late to serve as a Stasi official) authorized merely refers to freedom-of-speech issues: "a sustained campaign of defamatory and insulting communications against [the EPO's Jack Warner], other senior managers of the Office and possibly Administrative Council Delegates, in the form of normal post and electronic mail."

I also have my doubts that the communications in question were "defamatory and insulting" in light of the aforementioned Croatian court ruling. It's fairly possible that some people just said what one would be allowed to say anywhere except under a lawless regime backed by government officials who are far more interested in getting a well-paid job at the EPO than in supervising its management.

The EPO's lawlessness knows no limits. It would have been unacceptable to use keyloggers and cameras for covert surveillance of people's workplaces, but as the approved request states, "[t]he workstations in question [...] are located in public or semi-public areas of one Office building in Munich."

Here's the complete document with certain passages marked up in red:

EPO 'Data Protection Officer' Authorizing Surveillance by Florian Mueller

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn: