ACTA: The copyright treaty that won’t die

This week’s On the Media has an excellent 4-minute segment on ACTA featuring Harvard Law Professor Jonathan Zittrain.

ACTA? Isn’t that long gone?

Well, yes. Back on July 4, the European Parliament voted ACTA down, leading to a flurry of reports like this one from Wired’s UK Site:

Acta la vista, baby! European Parliament rejects controversial trade agreement

The European Parliament has rejected the controversial Anti-Counterfeiting Trade Agreement (Acta) by a vote of 478 to 39, which means that it cannot become law in the EU. This is the first time that the Parliament has exercised its Lisbon Treaty power to reject an international trade agreement.

Acta was a proposed international agreement that aimed to create international standards on intellectual property rights enforcement. Critics likened it to the Stop Online Piracy Act (Sopa), and argued that it would stifle freedom of expression on the internet, brand individual file-sharers in the EU as criminals, and introduce disproportionately harsh sanctions for breaches of copyright.

Google the phrase “ACTA is dead” and you’ll find nearly 200,000 hits. Hasn’t rigor mortis set in by now?

Well, there’s dead and there’s undead. Zittrain observes that the ACTA corpse has become a grisly organ donor, “with various constituent parts of it able to be sewn on to other creatures”. OTM co-host Brooke Gladstone listed some of the recipients of ACTA DNA: SOPA, PIPA, TPP, and CETA. That last one, the Comprehensive Economic and Trade Agreement, is currently under secret negotiation between Canada and Europe.

The key word here is “secret”, and that’s Zittrain’s main concern:

We don’t know what’s in it until it suddenly is dropped upon everybody for ratification. … It’s the attempt to do this without the best disinfectant, which is sunshine. And if there is the sunshine and you have a process that’s more open you really will have geeks who are keeping an eye on things, they’ll raise the alarm if they see something that worries them, there’ll be a discussion about it, we’ll see if people are rallied about it, and that’s how you do things in a democracy.

Well, that’s how you do things in a democracy if you want to use the democratic process. But the motivation behind all of these initiatives is not to follow the popular will, but to prop up the business model of the content industry. This is a business model based on monopoly and artificial scarcity that is untenable in a digital world and undermines the reason U.S. copyright law exists. Without rescue by law or treaty, the legacy industry is doomed, so it should come as no surprise that the undead keep haunting us. And, as Zittrain says, “You can get fatigued, you can get exhausted again and again trying to beat this back in every form.”

But remember: Vampires hate sunshine.


“A world without SOPA and ACTA”

Neelie Kroes is Vice President of the European Commission and European Commissioner for Digital Agenda. In that role, she’s been in the ACTA spotlight, and has generally expressed support. A few months ago, the open-internet European advocacy group La Quadrature du Net found it “extremely worrying” that she was “so oblivious to the many criticisms against ACTA”.

Kroes also found herself immersed in last January’s SOPA controversy, going so far as to Tweet: “ACTA is not SOPA. ACTA does not change EU law.” Her comment thus echoed the position of Ron Kirk, U.S. Trade Representative: “ACTA is consistent with existing U.S. law, and does not require any change to U.S. law.”

Today all that has changed. Kroes now says, “We are now likely to be in a world without SOPA and without ACTA.” She thus acknowledges the ACTA/SOPA connection and recognizes the power of the Internet community. As she told a Berlin conference:

We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the Internet. This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject.

“A strong new political voice” indeed!

For more, see:


Welcome to the copyright rabbit hole, where we don’t let things like trials get in the way of verdicts

With the shutdown of MegaUpload, the FBI has established itself as Hollywood’s private police force. The MPAA has now given the FBI its next set of targets, in particular these 5:

  • Wupload
  • Depositfiles
  • Fileserve
  • MediaFire
  • PutLocker

Now, back in the day when the legal system still used due process — formal charges, trials, defense attorneys, arguments, objections, judges, juries (you know, the stuff they do on Law and Order) — we might have expected a court presentation with the details on exactly how and when these companies broke the law. And then we’d hear and evaluate the counterarguments from the accused. But today, we learn of the accusations from Paramount Pictures’ vice president of worldwide content protection speaking at a Columbia University copyright conference. The evidence is the infographic at the right. As you can clearly see, the red circle with the diagonal slash proves that these 5 “rogue cyberlockers” are in the same category as MegaUpload, which we already know is guilty because…well, just because. And look at how guilty they are: 41 billion illegal page views per year! (Yes, they left out the “illegal” part, but that’s probably just a typo, and a minor detail in any event.)

In our post-due process world, these legal disputes take place in the Court of CNet, which is where defendant MediaFire made the opening statement of their case:

MediaFire is not operated by an outlaw gang; we are in fact a group of reputable entrepreneurs with diverse backgrounds who have a history of building innovative and valuable websites and technologies. Over the last several years, we have been focused on releasing numerous updates to MediaFire’s professional and business services. For example, just in the last month we launched our document viewing system and rebuilt our image system – not the kind of features that incentivize illegal activity.

Without an infographic of their own, it’s hard to see how MediaFire can prevail, but perhaps they’ll produce one at a later stage of the proceedings. Or perhaps true due process will re-emerge at some point and we’ll have an actual trial in a real court.

Or, perhaps, as Kim Dotcom and MegaUpload have learned about the rabbit hole we’ve entered, the Queen of Hearts had it exactly right: “Sentence first – verdict afterwards.”


Porn industry has strong feelings on both sides of debate between content protection and free speech

However much Cary Sherman and Patrick Leahy protest otherwise, the vague and shifting provisions of SOPA and PIPA scream “censorship” to millions of Internet users around the world. And when it comes to censorship, no business has a larger combination of fear and finance than the pornography (aka “adult entertainment”) industry. At the same time, no content developer has a more serious concern about “piracy”. And so it’s instructive to read an article by Rick Louis in XBIZ Newswire (“Adult entertainment industry news for the media”) reporting the results of a survey on the question: “Should governments have the power/ability to stop content piracy? (e.g. SOPA/Protect IP)”. Although the question didn’t mention censorship, this was clearly in the minds of the respondents, who said “No” slightly more often than “Yes” (45.6% to 44.4% with 10% undecided). As explained by Louis:

Decades of struggle against censorship and punitive regulation have instilled in most adult entertainment professionals a reflexive mistrust of the government as watchdog. People in the adult industry may thus be especially prone to viewing any new empowerment of government to regulate the Internet as a slippery slope.

Which is not to say that this industry takes content protection lightly. Attorney Marc J. Randazza stresses:

Intellectual property creators have a right to the fruits of their labors. Those who steal that from them should be stopped and made to pay.”

Agreeing with the importance of copyright protection, attorney Greg Piccionelli provides a lesson in civics:

“The rights at issue, copyrights, are property rights provided by our government. For those property rights to have meaning, they must be protected and enforceable under the law. If the boundary to someone’s land is not enforceable, the notion of a boundary to demarcate a person’s property simply becomes meaningless, as does the concept of private property.”

But Piccionelli then goes on to talk about limitations on government power:

“This country is based on the extremely important and fundamental idea that the same government that grants copyrights must be a limited government. This is why we have a Constitution that sets forth what our government can and cannot do. The most important of the ‘can’t dos’ are the prohibitions in the 1st Amendment which protect us from governmental control over speech and other expression.”

As to SOPA, PIPA, and the process that created them, Piccionelli minces no (emphasis added) words:

“Appropriate antipiracy legislation is desperately needed. But SOPA and PIPA are not examples of a workable balance that sufficiently protects freedom of expression. To our federal legislators I say, get off your lazy asses and go back and do it right or get out of the way and let some thinking people who are not brain-dead special interest whores do the hard work that must be done to protect both property rights and our free speech rights.”

We may or may not agree with his characterization of Congress (aside to Dave Barry: “Brain Dead Special Interest Whores” would be a great name for a rock band), but his bottom-line conclusion will resonate with many:

“If a workable balance cannot be struck, count me in on the side of freedom.”

Me, too.


Wikipedia dumps GoDaddy. There’s still an elephant in the room, but it’s not the one shot by GoDaddy’s founder.

On Friday, Wikipedia announced that their migration from GoDaddy has been completed. All DNS registrations for the Wikimedia Foundation have been moved to MarkMonitor.

The Wikipedia/GoDaddy schism goes back to a Tweet from Jimmy Wales in December:

I am proud to announce that the Wikipedia domain names will move away from GoDaddy. Their position on sopa is unacceptable to us.

At the time, GoDaddy was an avid supporter of SOPA, the Stop Online Piracy Act, which eventually crashed and burned — along with its equally ill-begotten cousin PIPA — after an unprecedented outpouring of pressure from the Internet community. GoDaddy’s newly installed management eventually changed its pro-SOPA policy to one of tepid neutrality, although it was too late to prevent “Dump GoDaddy Day” on December 29.

But GoDaddy’s malevolence goes deeper than its on-again, off-again, maybe-on-again position on one or another piece of badly written legislation. The elephant in the room — as-yet un-shot — is GoDaddy’s aggressive collaboration with the US Government’s policy of seizing DNS names without benefit of court order. Even such flagrant mistakes as branding 84,000 innocent Web sites as child pornographers or the unjustified and unauthorized year-long hostage-taking of haven’t deterred federal agencies from their extra-legal pandering to the MPAA and RIAA. Just last month, GoDaddy shut down with no explanation and no court order, simply on request from the Secret Service. This was apparently yet another mistake, since the action was reversed after a day or so. The interruption remains unexplained even now. As Joe Stanganelli observed:

GoDaddy does not wait for due process. It apparently does whatever law enforcement agencies ask it to do. If you’re a law enforcement agency, why bother to get a court order when you’re dealing with fully complicit host providers?

That is, by setting itself up as a Cyberspace cat’s-paw, GoDaddy encourages federal agencies to over-reach. While the government must follow the U.S. Constitution, with its annoying guarantees of due process and free speech, GoDaddy’s terms of service provide a much more flexible approach:

Go Daddy reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.

This should come as a surprise to no one. About a year ago, GoDaddy’s General Counsel, Christine Jones, boasted to the Senate Judiciary Committee about her company’s vigilante approach to interpreting and enforcing the law:

You do not have to go to court to get an order. We will just fix it for you … We just work on it, and we fix it for people. Do not go waste your money on a lawyer and file a lawsuit, for the love of God. Just pick up the phone and call us. … Our position is if there is any offending content, the whole website comes down. … It is either all or nothing, because we do not want that crap about, Are you 50/50? Are you 80/20? Are you really engaged in illegal activity? Are you really not? No. We want it to be black and white. Either you are or you are not. If you fix it, press on. But until you fix it, you are all gone.

With a policy like that, why care about crap like their position on SOPA?


Washington’s afraid of being SOPA’d, but thinks plural of “nerd” is “the tech industry”

Pols fear ‘SOPA backlash’” is a Politico column getting a lot of attention. It begins:

In the wake of the Internet blackout that led to the dramatic death of two controversial online piracy bills, a new warning has entered the Hill vernacular: “Don’t get SOPA’d.”

The good news is that the presence of the Internet community has been felt, and felt strongly enough that it’s become part of the ongoing DC political equation. As Rep. Jason Chaffetz (R-UT) said, “The nerds are more powerful than anyone thought.”

The bad news is that Washington seems to equate the Internet community with “the tech industry”. The Politico column is replete with phrases like:

  • Tiptoeing around issues that could tick off tech heavyweights such as Google or Amazon.
  • The tech industry flexed its muscle.
  • Coming of political age for the tech industry.
  • Web companies rallied their user base.
  • Lawmakers try to line up tech industry support.

Larry Downes anticipated this miscalculation in Forbes a couple of weeks ago:

To imagine that the millions of Internet users who took to the virtual streets over the last few months were simply responding to the clarion call of technology companies misses the real point–dangerously so.

Rather, it was the users who urged and sometimes pressured technology companies to oppose the bills, not the other way around.  While the big companies eventually came on board, the push for them to do so came largely from activists using social networking and social news sites, including Facebook, Twitter, Tumblr and Reddit, to build momentum and exert leverage, sometimes on the very companies whose tools they were using.

That is, far from being Pied Pipers, the tech companies found themselves in the role often attributed (probably erroneously) to Ghandi: “There go the people. I must follow them, for I am their leader.”

The important between-the-lines message of the Politico column is that DC politicians have seen so many astroturf campaigns that they don’t recognize a true citizens movement when one explodes in their faces. The fact that this movement’s home was the Internet made it even easier for the I-don’t-understand-technology crowd to blame the technology industry. It’s Citizens United taken to its perversely illogical conclusion: To politicians and lobbyists, not only are corporations people, they’re the only people.


Internet censorship: We’ve already established that, my dear.

There’s an old joke — attributed to George Bernard Shaw, Winston Churchill, and others — whose punch line is, “We’ve already established that, my dear, now we’re negotiating the price.” The joke came to mind earlier today when I encountered an item headlined “Internet censorship in the West” from, of all places, PressTV, the Iranian international news network:

Despite its historic and international reputation for heralding free speech, the United Kingdom has the second strictest censorship of the internet in the European Union.

The UK has a number of laws and policies that restrict the way information can be made public, including some that make it illegal to report on information that the government or corporations are trying to keep secret.

During the London riots, David Cameron ordered the censorship of social networking sites, and his censorship plans have been applauded by China.

Western governments are attempting to put forward laws that further restrict the freedoms of internet usage such as the Anti-Counterfeiting Trade Agreement (ACTA), Protect IP Act (PIPA) and Stop Online Piracy Act (SOPA).

We know price negotiation when we see it:

  • “Free speech is central to our democracy but so is public safety and security.” (Shadow culture secretary Ivan Lewis on David Cameron’s plan to limit access to social media after riots in London.)
  • “This wasn’t about free speech. It was about safety.” (BART Deputy Police Chief Benson Fairow on shutting down cell-phone service in order to disrupt a planned protest in San Francisco.)
  • “SOPA does not censor the Internet. It only targets activity that is already illegal.” (SOPA author Lamar Smith on his creation.)
  • “China bans using the Internet to subvert state power and wreck national unity, to incite ethnic hatred and division, to promote cults and to distribute content that is pornographic, salacious, violent or terrorist. This is completely different from so-called restriction of Internet freedom.” (China’s State Council Information Office on Internet regulation.)
  • “According to computer crime regulations, access to this website is denied.” (Response when linking to any encrypted Web site from Iran.)

To paraphrase James Whitcomb Riley: If it looks like censorship and acts like censorship and smells like censorship, it’s censorship.