Fighting the IP Mafia

Intelectual property issues

EU Parliament Rejects ACTA; USTR Starts To Get Clue, MPAA/RIAA Still In Denial.

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Well, it’s been a fun week on the international trade agreement front. Monday began yet another negotiating round for the Trans-Pacific Partnership (TPP) trade agreement, this time in San Diego. To the amazement of everyone, the U.S. Trade Representative (USTR) announced on July 3 it would now include a provision in the intellectual property (IP) chapter recognizing the importance of “limitations and exceptions” to copyright and embracing the international 3-part test for what constitutes suitable limitations and exceptions. (For those not familiar with this term of art, “limitations and exceptions” are things like Fair Use and and First Sale Doctrine in the United States. As the name implies, limitations and exceptions to copyright limit the rights of the copyright holder and create exceptions to the general rule against copying without permission.)

It is difficult to convey to people who don’t routinely deal with USTR and the copyright maximalists that dominate trade negotiations just how stunning a turn around this is, given the fairly well-established limitations and exceptions in U.S. law and the fact that — as USTR acknowledged in its announcement — the three-part test for what constitutes suitable limitations and exceptions is already well-established and incorporated into international law. Indeed, given all this, the incredible thing is that this is, as USTR acknowledges, the first time USTR has included any explicit reference to limitations and exceptions. In addition, as my colleague Rashmi Rangnath points out over at the Public Knowledge blog, while this is a positive step for USTR, we have not seen the new draft TPP text, so the actual implementation of these principles in the TPP draft could still be a major step backward from existing U.S. law.

More . . . .

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USTR Manages To Make The ITU Look Good — Which Will Bite Our Rear Ends In Dubai

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Pointing out that the United States Trade Representative (USTR) does not understand the concept of “transparency” hardly qualifies as news. It’s kinda like “Jerusalem Chief Rabbi Places Last In Pulled Pork Cook Off.” But every now and then, USTR’s generalized failure to understand why increasing public participation, sharing more information with the public, and generally bringing the standard of transparency up to what we would actually consider vaguely transparent actually threatens U.S. interests in other areas.

 

Case in point, the International Telecom Union] (ITU) meeting in Dubai for the World Conference on International Telecommunications (WCIT) this December.  I’ve written before on why I worry a number of the proposals at made by various repressive regimes at WCIT may have long-term consequences for freedom of expression online.  Many global civil society organizations, as well as many countries committed to freedom of expression and fundamental human rights, oppose these efforts to leverage WCIT for such ends. At the same time, however, many of these countries and organizations have long standing serious concerns around Internet governance. In particular, they resent what they see as the dominance of U.S. government and U.S. corporate interests in supposedly neutral “multistakeholder” forums like the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is the current home for much of what people mean by “internet governance.” This makes expanding ITU jurisdiction to include Internet issues attractive to some of these countries and organizations, despite the danger to free expression, as one of the few possible counterweights to the U.S.

Persuading enough of these countries and other stakeholders that the downside of expanding ITU authority outweighs the potential benefit is therefore the chief challenge for the U.S. delegation. Unfortunately, the continued conduct of USTR in reenforcing the view that the U.S. Government is the tool of industry by doing things like pushing ACTA (which continues to be held up in Europe and elsewhere as a symbol of the U.S. shilling for Hollywood at the expense of free expression), and maintaining a cloud of secrecy around the Trans-Pacific Partnership (TPP) negotiations, makes this much harder. While we are kind of stuck with ACTA, the USTR can do a heck of a lot more around transparency in TPP. Given that the ITU has made a number of conciliatory gestures to civil society on the transparency front in the last few weeks, It would be really helpful if USTR would at least stop pissing on its critics and generally making ITU look good.

More below . . . .

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RIAA — Take Us Back To The Days of Illegal Price Fixing.

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One final point about Recording Industry Association of America (RIAA) CEO Cary Sherman’s NYT Op Ed on “how the Internets did us wrong.” Mr. Sherman notes that:

They [Congress] knew that music sales in the United States are less than half of what they were in 1999, when the file-sharing site Napster emerged, and that direct employment in the industry had fallen by more than half since then, to less than 10,000.

There are two caveats here worth noting. The first is that when Mr. Sherman talks about sales and the “music industry” generally he means his organization’s members — specifically the four (soon to be three) “major labels” and all of their various sub-labels and subsidiaries.

This is important because in 1999, according to the Federal Trade Commission (FTC), the major labels were engaged in an illegal price fixing scheme. The major labels agreed to discontinue their price-fixing practices as part of settlement decree in May 2000. Not surprisingly, once the major labels stopped violating antitrust law, their artificially inflated profits declined and independent competitors saw a significant rise in profits.

Needless to say, as part of the general magical thinking problem of the industry, Mr. Sherman and his fellows don’t believe the loss of their stranglehold on industry distribution and the rise of competitors (online and offline) has anything to do with their fading fortune. No, it is all that evil Napster and its wicked legacy of Internet piracy. But any legislators and policymakers who expect to be taken seriously ought to seriously consider using a benchmark other than the period from 1995-2000. It would be embarrassing for those not explicitly in the pay of the music industry to believe that it is the responsibility of government to return the industry to glory days of price fixing and monopoly profits.

Stay tuned . . . .

Mr. Sherman’s Magical Thinking

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I am always impressed with the utter unwillingness of the Entertainment industry to acknowledge the world as it actually is, rather than the world as they want it to be. Perhaps it is a side effect of being in the business of ‘selling dreams.’ In any event, I could not help but marvel at Carey Sherman’s recent New York Times Op Ed “What Wikipedia Won’t Tell You.” Even for the Entertainment Industry, it is astounding. It actually crosses the boundary from an industry-centric bias to outright magical thinking.

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What The SOTU “Piracy” Reference Means: Back In The USTR With Special 301 and The Trans-Pacific Partnership Agreement.

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It don’t take much to excite the Twitterverse. Obama makes a passing reference to intellectual property enforcement as a sop to the MPAA by saying foreign piracy hurts trade, and my reader explodes with “Obama’s flipping on PIPA/SOPA! Betrayal!” While I have no reason to believe that the Administration is backing away from its current hardline position against PIPA/SOPA, it doesn’t have to in order to show MPAA some love (and remind them this is a long-term game with many fronts and that they depend on the federal government for enforcement — something to think about when considering whether to go through with the threats to cut off campaign contributions).

On the other hand, the fact that it does not require new policy, merely continuation of existing policy, should be just as disturbing for anyone who cares about Internet freedom and burdens on innovation. (I exclude from this concern the proposed beefed up task force for intercepting counterfeit goods until we hear more. If it focuses on stopping delivery of counterfeit goods at the border, then excellent! That is exactly the kind of enforcement we need to keep things like fake heart medicine out of the country. OTOH, if they try to make ICE-style seizures of domain names on dubious pretexts, then we got problems.)

What the President was talking about, and how to stop the People Who Brought You SOPA from getting what they want through the back door of trade agreements, below . . . .

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The PIPA Aftermath — Will Senate Democrats Drive Off A Cliff For Hollywood?

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One of the more surprising developments in PIPA/SOPA politics has been the transition of Hollywood-backed legislation from a bipartisan issue with both Republican and Democratic proponents and opponents to a partisan issue. Democrats (particularly Senate Democrats) are increasingly identified as supporting the legislation and Hollywood while Republicans increasingly frame this as an exercise in big government and crony capitalism.

On the one hand, this seems remarkably unfair given that Democratic Senator Ron Wyden (D-OR) was the first Senator to oppose PIPA and one of the chief architects of the bipartisan alliance of Senators and Representatives that kept PIPA/SOPA from advancing to the point of no return. It also ignores the role the Obama Administration played in legitimizing and galvanizing anti-PIPA/SOPA efforts (including the SOPAStrike web blackout) by strongly opposing PIPA/SOPA before the SOPAStrike, despite the naked threats of Hollywood moguls to punish the Obama campaign by cutting off any further contributions.

But too many Senate Democrats seem intent on handing Republicans a partisan victory. Whereas even Republican champions such as Rep. Lamar Smith (R-TX) and Rep. Marsha Blackburn (R-TN) have acknowledged “legitimate concerns” of opponents and have “shelved” SOPA so that it can be “scrapped” and a new approach developed, high profile Senate Democrats continue to insist that they will press on against what they regard as unwarranted opposition motivated either by financial interest, disinformation, or political opportunism. Indeed, PIPA author Senator Pat Leahy (D-VT) used his opening floor speech yesterday to chastise Republicans for their opposition to PIPA and his hope that, now that Republicans are back in Washington and away from all those annoying constituents protesting PIPA, they will return to the True Path of Reason — which lies in fanatically embracing any legislation that gets the MPAA seal of approval.

Which brings us to the interesting question for the legislative season: will prominent Senate Democrats chose to make this the issue on which they will drive the Democratic Party generally off a cliff by continuing to try to “sell” PIPA/SOPA, thus embracing Republican charges of a “culture of corruption” and “crony capitalism?” Or will they finally come to their senses and publicly embrace those like Wyden who insist that measures directed against online infringement must not also threaten free speech and innovation?

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An Astounding Week In PIPA/SOPA Comes To A Close

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Today brought a dramatic conclusion to an extraordinary week and the culmination of months of amazing activism on PIPA/SOPA. A month ago, hardly anyone had heard of PIPA and a few more had heard of SOPA and its passage was regarded as virtually assured. Today, Harry Reid (D-NV) finally threw in the towel and called off Tuesday’s scheduled cloture vote. In the House, Lamar Smith and Marsha Blackburn, the last SOPA holdouts, threw in the towel and promised to go back to drawing board and totally rework their approach. Yes, the ill-grace with which the chief Democratic architects of PIPA in the Senate have responded, coupled with Chris Dodd’s increasing resemblance to Muppet Movie villain Tex Richman by openly threatening on Fox News to stop campaign contributions to any politician who didn’t keep pushing PIPA, make it clear PIPA’s sponsors (in both the legislative and financial sense) are as utterly unrepentant as they are in common sense. So yes, they will come back and try again and all the usual caveats that responsible people seem compelled to add to any moment of real triumph.

To which I say, feh. We can celebrate until at least Monday. No, we have hardly solved all the problems of our democracy, or even prevented the Entertainment industry from coming back to try again. However, “the work is not for you to finish, but nor are you free to set it aside.” (Pirkei Avot 2:21) Or, in the words of Matthew 6:34: “sufficient unto the day is the evil thereof.” It would be a poor world indeed where no victory is every enough, where all we see when we look ahead are the challenges and all we see when we look behind are our defeats. So let us celebrate with a whole heart, because in a mere 3 days we accomplished something wonderful.
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SOPASTRIKE The Day After

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Yesterday was absolutely one of those days that reminds me why I stay in public advocacy. I’m a democracy junkie. Yes, I admit it. The sight of literally millions of people remembering that they are citizens and not just consumers gets me juiced.

The good news is that by every possible metric, SOPAStrike was an enormous success. We absolutely scared the poop out of members of Congress and broke through the infamous “Washington bubble” that separates our elected officials from what is actually going on in the real world. As a result, we forced more than 20 Senators to come out publicly against PIPA/SOPA, including a number of co-sponsors withdrawing support. Fantastic!

Some of these conversions are people who hadn’t really thought much about this and are now going “I co-sponsored what? You told me this was a non-controversial bill to stop online piracy and the only opposition was Google! You totally lied to me!” But a lot of them are Senators and Representatives who would still loooove to find a way to make Hollywood happy while not getting tarred and feathered by constituents back home. The chatter on Twitter among the political set is that Pat Leahy (D-VT), who has drunk so much Hollywood Kool-Aide he pees purple, has retired to a backroom with Jon Kyl (R-AZ) to prepare a “managers amendment” that will purport to “address all the issues” (primarily the DNS blocking). The idea is to provide a fig leaf for members so that all the Senators and Representatives who caveated their opposition to PIPA/SOPA with the words “as written” can say “I had concerns, but they were addressed. Don’t worry constituents, I totally had your back and stood up to Hollywood even though I voted for the bill.”

Needless to say, the idea that you fix a lobbyist-drafted bill that is this utterly and comprehensively wrong by going into a backroom with the same lobbyists and trying to push a vote through before people can see it and debate it would be crazy anywhere but D.C. So we will need to continue pounding Senators with the clue-by-four of reason until either Reid finally calls off the cloture vote scheduled for January 24, or we win the cloture vote by keeping 41 Senators honest. My employer, Public Knowledge, has a nifty text-to-call feature you can sign up for so you can make absolutely sure you don’t forget to call your Senators on January 23.

You can find an excellent example of why pulling DNS blocking is not enough to fix PIPA/SOPA from my colleague Sherwin Siy here, and why PIPA/SOPA needs a total reset from my colleague Michael Weinberg here. Alternatively, you can watch this clip from last night’s Daily Show where Jon Stewart, as usual, manages a more in depth analysis that the supposed real news.

Stay tuned . . . .

SOPABlackout And the “Internet Spring”

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January 18, 2012 should be remembered as the first day of the “Internet Spring.”

I like to say that the worst thing about PIPA/SOPA is that it confirms every awful, cynical thing people say about how Washington DC works. But the best thing about PIPA/SOPA is how it can also confirm the best things we say about American democracy.

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