Implementing the Right to Be Forgotten

It isn’t easy to implement the European Court of Justice’s right to be forgotten decision.  According to one press report, Google has received 70,000 requests for link removal through its online form since the program went into effect last month.  Another report says requests to remove links are arriving at an estimated rate of one every seven seconds.  As predicted here after the court’s decision in May, the results are not pretty. But the fault is not in implementation but in the flawed underlying decision that restricts free expression and puts substantial legal discretion in the hands of search engines.

Let’s recall how extreme the decision was.  It said that under European law privacy trumps free expression in the context of Internet search.  The right to respect for private life and the right to the protection of personal data “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.”  There can be an exception to this general rule: “…for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.”

The court’s standard for determining whether privacy interests are implicated was whether the information was “inadequate, irrelevant or no longer relevant, or excessive…”  The court added that triggering privacy interests did not require a finding that “the inclusion of the information in question in that list causes prejudice to the data subject.” So what would trigger privacy interests? To say the court’s guidance is extraordinarily vague is an understatement.

Given the court’s reference to search engines in making access to information “appreciably easier” and playing “a decisive role” in the dissemination of information on the Internet, it is hard to avoid the conclusion that the intent of the court was to limit the effective dissemination of information on the Internet. But it did so by granting discretion to search engines to make some delicate value judgments and without specific guidance on how to make those judgments.

So how’s the implementation going? Certainly Google hasn’t done everything right. Taking down some links and then apparently restoring them certainly seems to be a misstep. But on the whole they’ve done a pretty balanced job.  They are requiring the filing of a request, including a statement on why release of the information would not be in the public interest.   There is no indication that they are granting all requests or turning all requests down.  They notify the publisher of the links removed from search results, but they do not reveal the identity of the person requesting the take down, since this would reveal the information that the data subject was trying to conceal.  They are following the law by limiting take down’s to EU citizens and to EU search results rather than extend the EU regime to the world.

Some commenters suggest that search engines are granting too many deletion requests and should instead routinely decline them all – which would force the data subjects to go data protection authorities or the courts to get links removed. [Read more...]

Intellectual Property Roundup

House Commerce Marking Up Rogue Patent Letters Bill (Broadcasting & Cable)
The House Commerce, Manufacturing and Trade Subcommittee has scheduled a July 10 markup for the Targeting Rogue and Opaque Letters Act, a bill that would crack down on “illegitimate” patent demand letters.

Singapore Passes Law to Block Illegal Sites (CNET)
The Singapore government has passed an amendment to the country’s Copyright Act that will let content owners compel service providers to block infringing sites.

30,000 ‘Pirates’ Receive Fake ‘Fines’ With Trojans Attached (Torrent Freak)
An estimated 30,000 Internet users have recently received emails containing copyright warnings and demands for cash settlements. These fake emails detail alleged infringements, and contain Trojans waiting to be installed.

China’s ‘Little I Robot’ Prevails Over Apple in Patent Case (The Wall Street Journal)
Apple has suffered a legal setback in China, after a court rejected its claim against a Chinese company related to its voice-controlled assistant, Siri.

Why Apple Losing a Siri Patent Case in China is Great News for IP Holders Everywhere (Forbes)
A look at why Apple’s loss may be good for intellectual property holders everywhere- Chinese courts and Chinese companies are only going to start taking IP protection seriously when they have some of their own to protect.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

Digital Policy Roundup

SIIA Event to Explore Real-World Impact of Big Data & Policy Implications

Join SIIA for lunch and exciting technology presentations on how big data is being employed to empower and protect citizens. The lunch workshop, “Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention,” will take place on July 17 from 12-1:30pm in Room G11 of the Dirksen Senate office building. RSVP HERE.

Executive Director Marjory Blumenthal of the President’s Council of Advisors on Science and Technology (PCAST) will open the event with discussion of the Administration and PCAST reports on Big Data and Privacy released in May. In addition, the SIIA workshop will provide for Q&A and discussion about key policy considerations to maximize data-driven innovation. For more information, or to register, click here.

WIPO Considers Copyright Exceptions for Libraries and Archives

Discussion continued at the World Intellectual Property Organization during the 28th meeting of its Standing Committee on Copyrights and Related Rights on the need for exceptions and limitations for libraries and archives. The US and EU opposed a new treaty, noting that countries had flexibility to craft their own national exceptions to allow libraries to fulfill their public mission, subject to internationally recognized constraints. Blocks of other countries urged the need for a treaty to overcome coordination difficulties. The US urgedwork on principles and objectives to guide national legislation and the EU did not object. SIIA weighed in with a statement supporting the US position and encouraging further productive discussion. The meeting adjourned without a resolution of the issue. They will be taken up again at the next meeting of the SCCR in December.

Garnering Considerable Attention, European Commission VP and Commissioner Kroes Delivers Speech on Copyright

On July 2 the outgoing Commissioner, Nellie Kroes, delivered a speech in Amsterdam entitled: “Our single market is crying out for copyright reform.” Kroes said she wanted to see reform “now,” which would include more possibilities to access content online cross-border, harmonized exceptions, and flexibility. She strongly suggested that she would favor a copyright exception covering text and data mining. She mentioned that in 2009 Japan adopted a copyright exception covering text and data mining, including for commercial use. Kroes also referred to the two Communications the Commission issued on July 1 to better enforce Intellectual Property Rights (IPRs).

The first Communication is an Action Plan involving ten actions, many involving more stakeholder consultation. The Commission makes clear that it wants to act against commercial-scale IPR infringer, not individual “consumers” of infringing materials. Clearly influenced by voluntary stakeholder agreements in the United States, the Commission wants to pursue a “follow-the-money” approach to curb commercial-scale infringements. The second Communication lays out a Strategy for dealing with enforcement of IPRs in third countries. The Communication does not really announce anything new, although the Commission wants to conduct regular surveys to identify a list of “priority countries” for focused EU efforts, which is similar to the Special 301 process the U.S. government engages in every year.


David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

SIIA Announces Event to Explore Real-World Impact of Big Data & Policy Implications

You’re invited! Join SIIA for lunch and exciting presentations on how big data is being employed to protect citizens. The lunch workshop titled “Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention,” will take place on July 17 from 12-1: 30pm in Room G11 of the Dirksen Senate office building. RSVP HERE

Executive Director Marjory Blumenthal of the President’s Council of Advisors on Science and Technology (PCAST) will open the event with discussion of the Administration and PCAST reports on Big Data and Privacy released in May.

Featured Presentations include:

  • “Big Data Analytics for Financial Regulation” IBM.
  • “Harnessing the Power of Data to Help Small Businesses Access the Funding Sources They Need to Grow” Intuit QuickBooks Financing.
  • “Using Identity-Based Filters to Prevent Tax Fraud, Waste and Abuse” LexisNexis Risk Solutions.
  • “Using Data to Combat Fraud in Government Programs” SAS.
  • “Utilizing Data to Help Recover Missing and Exploited Children” Thomson Reuters.

As data-driven innovation changes consumers’ lives, policymakers around the world are continuing to assess big data to maximize the benefits while calculating potential harm.  To help bring light to the real-world impact of data-driven innovation and to inform policymakers, SIIA will host a series of presentations that explore how data is creating economic and social value.  In addition, the SIIA workshop will feature an in-depth discussion about key policy considerations when maximizing data-driven innovation.

WHO: The Software & Information Industry Association (SIIA)
WHAT: Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention
WHEN: Thursday, July 17, 2014 at 12 pm – 1:30 pm
WHERE: Dirksen Senate Office Building, Room G11

To learn more about the event, and to RSPV click here.


David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

Intellectual Property Roundup

IP News

The Right to Resell eBooks- Major Case Looms in the Netherlands (GigaOM)
A startup called Tom Kabinet opened the virtual doors on its secondhand ebook bookstore, pointing to a 2012 ruling by Europe’s top court regarding reselling licenses for downloadable software. A deadline the publishers set for the site to stop operations has passed, and the case looks set to go to court.

Fox Moves to Use Aereo Ruling Against Dish Streaming Service (The Guardian)
A day after the U.S. Supreme Court decision to outlaw streaming TV service Aereo, U.S. broadcaster Fox has moved to use the ruling to clamp down on another Internet TV service offered by Dish.

‘Failed’ Piracy Letters Should Escalate to Fines & Jail, MP Says (TorrentFreak)
The UK Prime Minister’s IP advisor says VCAP- the Voluntary Copyright Alerts Program- needs to be followed by something more enforceable, including disconnections, fines and jail sentences.

Staunch Opponent of Report Tapped to Head US Patent Office (Ars Technica)
The Obama administration intends to nominate Philip Johnson, the head of intellectual property at Johnson & Johnson, to be the next director of the US Patent and Trademark Office. The selection is a setback for the tech sector and a seeming 180-degree turn on the patent issue from the Obama administration.

Aereo Looks to Congress for a Lifeline (The Washington Post)
Days after Aereo suspended its service in response to a Supreme Court ruling against the company, the service is now calling on consumers to protest the disruption and pressure Congress to consider rewriting the Copyright Act.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

Digital Policy Roundup

SIIA Testifies at Joint Congressional Subcommittee Hearing on Student Privacy

SIIA’s Mark MacCarthy delivered testimony on the issue of student data privacy in a joint hearing Wednesday before subcommittees of the Committee on Education and the Workforce and the Committee on Homeland Security. The hearing titled “How Data Mining Threatens Student Privacy” featured three witnesses in addition to SIIA: Fordham University’s Professor Joel R. Reidenberg, Idaho Department of Education CIO Joyce Popp, and Alliance for Excellent Education’s Digital Learning Director Thomas Murray. SIIA advised committee members that “no new federal legislation is necessary at this time,” citing a three part system of protection – federal law (FERPA, COPPA), contracts, and industry best practices.

Alice Corp v. CLS Bank Ruling

On June 19th, the Supreme Court decided the business method patent case of Alice Corp v. CLS Bank Corp, unanimously holding that implementing an abstract idea through a general purpose computer is Ineligible for patent protection under section 101 if the Patent Act. The case involved a method for reducing the risk that the parties to a transaction will not pay what they owe. The Court has long held that abstract ideas are not patentable subject matter. Writing for the Court, Justice Thomas said that “merely requiring generic computer implementation… fails to transform the abstract idea into a patent-eligible invention.” The decision would seem to have limited applicability to software patents as the term “software” does not appear in the decision and Justice Thomas acknowledges in the decision that “many computer-implemented claims are formally addressed to patent-eligible subject matter.”

OECD Committee for Digital Economy Policy (CDEP) Meets June 16-20 in Paris

CDEP is of interest because its work on digital economy issues is influential. For instance, the OECD’s 2011 Internet Policymaking Principles (IPP) and the revised 2013 OECD Privacy Guidelines are documents that are often consulted in other fora and are considered generally helpful by industry, including SIIA. The CDEP also works on Internet governance, big data, measuring the digital economy, the relationship between technology and jobs, and intellectual property. The work on intellectual property is often considered more controversial, and SIIA works to make it balanced.

Last week’s meeting focused particularly on the 2016 OECD Ministerial which will be held in April or May of 2016 in Cancun, Mexico. The Ministerial is important to the head of the organization, Angel Gurria, who is Mexican and reportedly interested in seeking a third term as Secretary-General of the OECD. The CDEP is currently considering “Digital Innovation Transforming our Societies” as the title for the Ministerial. The OECD has ambitious plans for the Ministerial and hopes to attract ministers responsible for labor and education, as well as ministers responsible for the ICT sector. The OECD has five themes for the Ministerial:

  1. Fostering new sources of growth spurred by converging networks, services and data analytics.
  2. Analyzing the effects of the digital economy on growth, jobs and skills.
  3. Developing recommendations and building evidence for Internet policy and governance.
  4. Managing the digital risks and enabling trust for continued prosperity.
  5. Looking to the future.

SIIA will be engaged in advocacy with a view to influencing work documents and the 2016 Ministerial, especially in the areas of growth, jobs and skills: Internet governance; privacy; and data analytics.


David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

Intellectual Property Roundup

IP News

Lawmakers Blast China, Russia for Piracy (The Hill)
In a report released by the International Creativity and Theft-Prevention Caucus (formerly the Congressional International Anti-Piracy Caucus), the U.S. pointed to policies and enforcement practices in China, Russia, India and Switzerland that they said allow for the theft of U.S. intellectual property.

Justices Deny Patent to Business Methods (The New York Times)
The Supreme Court unanimously ruled that basic business methods may not be patented, even if computers are used to apply them. The ruling appeared to be modest and in line with earlier decisions of the court that were wary of stifling innovation.

U.S. Supreme Court Pulls the Plug on Aereo’s Streaming TV Service (NBC)
The U.S. Supreme Court dealt a potentially fatal blow to Aereo, finding that Aereo violates federal copyright law by retransmitting copyrighted programs without paying a copyright fee.

Government Control Emerges as Central Issue at ICANN Meeting (PC World)
More than 3,300 representatives from around the world met in London to discuss what will happen after the U.S. turns over control of ICANN, and government control over the Internet emerged as a central issue.


Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

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