CCIA Argues Germany Should Be On The 'Naughty' Special 301 List For Attacking Fair Use

from the special-301-judo dept

Mon, Feb 18th 2013 9:01am — Mike Masnick

For years we've talked about the infamous Special 301 Report, in which copyright maximalists complain to the USTR about countries they feel aren't cracking down enough on "infringement." The USTR then comes out with an official report that lists what countries have been "naughty" (with two levels of naughtiness). There is no objective measure -- basically the USTR just lists out the countries that the biggest maximalists dislike the most. And then the State Department uses that bogus list to apply pressure to foreign governments to get them to ratchet up their draconian copyright laws. While the "comment" period is open to anyone, it tends to be dominated by maximalists. We tried filing our own comment a few years back, but have since realized that the deck is completely stacked. In fact, even the official questions they ask you to answer are heavily biased so that you can only complain about other countries that are "denying adequate and effective protection for intellectual property rights."

So while we figured it wasn't worth filing anything, our friends over at CCIA, who have backed some of the research that we've done, put in their own comment, which called out Germany for its attack on fair use. As you may recall, Germany has been pushing forward with this plan to force search engines to pay up for posting snippets and links to news sites. This is a pretty clear attack on basic fair use concepts that allow the internet to function. If you believe, as we do, that fair use is a right, then Germany's actions are, technically, a "denial of adequate and effective protection for intellectual property rights," and thus the country belongs on the Special 301 list. As CCIA writes:

These comments address a troubling new legislative proposal in Germany that would violate long-established rights of Internet services to make use of information online. The legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would prohibit Internet platforms from displaying snippets of news stories without obtaining the publisher’s permission and paying a license fee for these quotations. While it is as of yet unclear, we expect that the new right will be administered by a collecting society, with newspapers that wish to exercise the new right being required to join. If this comes to pass, no search engine or affected social media platform will be able to directly negotiate with any publisher; they would instead be forced to enter into a blanket, compulsory license, or be penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another. As such, it would constitute a costly new market access barrier. Some commentators have even speculated that the legislation might force news search services and affected social media out of the German market, by not returning results for German IP addresses. At the same time, this proposal would have obvious debilitating effects on German-based Internet platforms.

There's a lot to be said for this argument, and for recognizing that user rights are an important part of copyright, not just the rights of the copyright holders. In fact, it's quite reasonable to argue that the public's rights should greatly outweigh the privileges granted under copyright. And, now, we will see if the USTR actually pays attention to such things, or if they will ignore it and only focus on maximalist privileges, rather than the public's rights. At the very least, this provides an excellent suggestion for filings in the future: there are lots of countries that don't have nearly enough respect for fair use or for other rights of the public when it comes to copyright.

CCIA Comments on Special 301 [2013] (PDF)CCIA Comments on Special 301 [2013] (Text)

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Filed Under: copyright, fair use, germany, special 301 report, ustr
Companies: ccia

23 Comments

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Ninja (profile), 18 Feb 2013 @ 7:31am

AHAHAHAHAHAHAHAHAHAHAHAHAHAHAHHAAHAHAH *cough*cough*

Ahem. Seriously, Canada and Spain is one thing but Germany? In the naughty list? For attacking "we, the people"? We could also expect Mr Easter Bunny to bring us lots of chocolate eggs this year it laid itself.

But while this is tragically comical I disagree with the "So while we figured it wasn't worth filing anything" part. Everybody should be filling their thoughts either to add or to remove countries from these lists. I'm sure we can mount up a choir that's loud enough to at least annoy those morons. And make these fillings as public and available as possible to rise as much awareness as possible. They can ignore some whispers but they can't ignore live and loud rocket noise right beside their ears. At some point they may be forced to act for the best of for the worse. If for the worse... Well, I hope Occupy Wall Street was more than just some lone activism.
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- Mike Masnick (profile), 18 Feb 2013 @ 10:20am
  
  Re:
  Ahem. Seriously, Canada and Spain is one thing but Germany? In the naughty list? For attacking "we, the people"? We could also expect Mr Easter Bunny to bring us lots of chocolate eggs this year it laid itself.
  
  I think you may have misread the nature of the filing, Ninja...
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  - Ninja (profile), 18 Feb 2013 @ 10:35am
    
    Re: Re:
    Hmmm.. Maybe? I was actually making fun because Germany has a more central and powerful role in the world (as in would the US dare put them in the list?) and because it goes directly against the maximalist agenda. What I understood here is that this German proposal will ultimately benefit a few and largely harm the end user (and possibly their own economy by driving business out of the country).
    
    But the filling itself is great and more of such actions should be taken (ie: you guys could contribute even if it falls on deaf ears/blind eyes).
    
    Correct me if I'm wrong, I could have failed in reading comprehension yes. Or I failed miserably in expressing myself. I won't feel offended, English is not my native language!
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    - Mike Masnick (profile), 18 Feb 2013 @ 10:49am
      
      Re: Re: Re:
      Correct me if I'm wrong, I could have failed in reading comprehension yes. Or I failed miserably in expressing myself. I won't feel offended, English is not my native language!
      
      Ah perhaps something was lost in the text of your comment. :) It sounded like you were saying this was the equivalent of the IIPA filing... rather than more of the opposite. i.e., IIPA called out Spain and Canada for not being maximalist enough, whereas the CCIA filing calls them out for being too maximalist. In theory if the USTR is accepting the first argument, they should also accept the second one. But what are the chances?
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      - Ninja (profile), 18 Feb 2013 @ 10:55am
        
        Re: Re: Re: Re:
        That's what I got from it yes. Seems I failed at expressing myself then hahahaha.
        
        I'm not familiar with this process but did they (USTR) give any sort of feedback regarding your attempt a while back? I mean, was there any development regarding the fillings that were opposed to the maximalism that usually dominates the discussions?
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        Mike Masnick (profile), 18 Feb 2013 @ 11:47am
        
        Re: Re: Re: Re: Re:
        I'm not familiar with this process but did they (USTR) give any sort of feedback regarding your attempt a while back? I mean, was there any development regarding the fillings that were opposed to the maximalism that usually dominates the discussions?
        
        Nope, the eventual report was basically the same as always. Totally ignored any viewpoint that was non-maximalist. That was the "feedback" I got.
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        Anonymous Coward, 18 Feb 2013 @ 1:30pm
        
        Re: Re: Re: Re: Re: Re:
        TheMovieDB: The Shawshank Redemption (1994)
        
        Never stop writing, at some point they may notice.
        Winds change, seasons change and so do people in charge and their views.
        
        Also you can also start writing in terms they do understand today.
        
        Germany, France and Italy are threats to American economic interests since they all are trying hard to stop Google and other tech companies from being inside their markets.
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        Ninja (profile), 19 Feb 2013 @ 3:40am
        
        Re: Re: Re: Re: Re: Re:
        That's sad. But not unexpected.
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Anonymous Coward, 18 Feb 2013 @ 9:28am

Any copyright law is "draconian" to Mike Masnick lol.

This copyleft zealot stuff is just too funny.
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- Nigel (profile), 18 Feb 2013 @ 9:37am
  
  Re:
  That statement is patently fucking absurd. No pun intended.
  
  N.
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- Anonymous Coward, 18 Feb 2013 @ 10:07am
  
  Re:
  Who the hell is "Mike Masnick lol"?
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  - Josh in CharlotteNC (profile), 18 Feb 2013 @ 11:22am
    
    Re: Re:
    He's a strawman parody that only exists in the AC's twisted mind.
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- Shadow Dragon (profile), 18 Feb 2013 @ 10:07am
  
  Re:
  *yawn* Your Trollish Behavior is so predictable
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- Anonymous Coward, 18 Feb 2013 @ 10:31am
  
  Re:
  I'm sorry, but you get an F on trolling and basic knowledge.
  
  You homework is to go home and read about copyleft:
  
  http://en.wikipedia.org/wiki/Copyleft
  
  HINT: copyleft REQUIRES copyright law to work.
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- Anonymous Coward, 18 Feb 2013 @ 10:45am
  
  Re:
  And your copyright has copyleft the building.
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Anonymous Coward, 18 Feb 2013 @ 9:43am

'the public's rights should greatly outweigh the privileges granted under copyright...........we will see if the USTR actually pays attention to such things, or if they will ignore it'

HAHAHAHAHAHAHAHA

what the fuck does anyone think they will do??
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- Atkray (profile), 18 Feb 2013 @ 9:55am
  
  Re:
  Have you been reading Tim's "Onion" article today? Something is amiss with the legendary Techdirt Koolaid.
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  - Anonymous Coward, 18 Feb 2013 @ 10:17am
    
    Re: Re:
    What Koolaid? Who's got Koolaid and why aren't they sharing?
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- Ninja (profile), 18 Feb 2013 @ 10:36am
  
  Re:
  That was my first thought. Sadly.
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Anonymous Coward, 18 Feb 2013 @ 11:15am

Ican see why the CCIA is doing this. If the German newspapers have their way, linking to them will cost money, and so people will stop tweeting links, and bloggers won't be able to link too stories. This will reduce sales for the CCIA member, both at the user level and for the server farms.
/S
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ChurchHatesTucker (profile), 18 Feb 2013 @ 5:14pm

Called it!
This is exactly what I was thinking of.
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Sacredjunk, 18 Feb 2013 @ 9:37pm

Google should stop operations in Germany (for a week maybe) and ask others like Bing/Yahoo to follow suit (since it affects them as well) with a big message on the homepage explaining why

Sooner or later, the sites will not get any traffic and come crawling back
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mattshow (profile), 19 Feb 2013 @ 8:20am

Aww. Don't worry Germany, here in Canada we've been on the 301 watch list for years (even after we instituted some of the most draconian digital lock laws in the world). We've managed to make our time here quite comfortable. We've got a couch and a beanbag chair, and Spain is going to bring in a modded Xbox so we can all play pirated games.
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