WIPO Says Websites In Its Pirate Database Don't Deserve Due Process Because 'They Know What They're Doing'
from the they-know-what-they're-doing dept
You may recall that, recently, I posted on WIPO's bizarre decision to host a database of "pirate" sites that it would share with advertisers, encouraging them to block ads from appearing on any of the sites in the "Building Respect for Intellectual Property" (BRIP) database. As we noted in our original post, previous attempts at such databases showed how problematic they could be, as they almost always swept up perfectly legal sites, and they provided no due process, no checks and balances or anything of the like. I also had a list of questions about this for WIPO, which I noted were unanswered at the time of posting. WIPO actually did get back to me, but we'll get to that.
First, I wanted to point to a Twitter thread by New Zealand internet lawyer Rick Shera, who, in response to the news of the BRIP database, gave a real world example of how such databases create real harms for internet services through false accusations with no due process. Here's a lightly edited part of Shera's tweetstorm (the full thing is longer, but you get the point). After describing how the database is set up, he tells a story relating to one of his own clients:
WIPO does not disclose who the “Authorized Contributors” are, but, according to TorrentFreak, they are expected to be a mix of law enforcement, and industry groups such as MPAA and RIAA. Which reminds me of what happened to my client Mega a few years ago. In 2014 a UK-based online brand management agency NetNames published “Behind the Cyberlocker Door: A report on how shadowy cyberlocker businesses use credit card companies to make millions" commissioned by Digital Citizens Alliance, a US rightsholder lobby group.
Mega was included in the report as a “cyberlocker”, without being given any opportunity to comment or rebut. Even by the report’s own criteria, Mega’s inclusion was patently incorrect.
But don’t take my word for it. Mega commissioned Olswang, one of the leading IP, media and IT law firms in the UK, which in turn had Grant Thornton in New Zealand analyse Mega’s systems. Olswang concluded the NetNames report was clearly false and defamatory. NetNames and Digital Citizens Alliance of course refused to withdraw the report and, at that early stage in its operation, it was uneconomic for Mega to take defamation action in the UK.
But it’s what happened next that provides a salutary lesson on the dangers of copyright guilt on accusation. The NetNames report was picked up by US Senator Patrick Leahy, who, also without the courtesy of checking with Mega, wrote to Visa and MasterCard encouraging them to cease providing payment services to anyone listed in the report. Here’s his letter to MasterCard.
The NetNames report was picked up by US Senator Leahy, who, also without the courtesy of checking with Mega, wrote to Visa and MasterCard encouraging them to cease providing payment services to anyone listed in the report. Here’s his letter to MasterCard. pic.twitter.com/26nV1pMWgU
— Rick Shera (@lawgeeknz) July 24, 2019
Visa and MasterCard blacklisted Mega, again, without notice. That resulted in PayPal ceasing service literally overnight. This despite the fact that PayPal had itself conducted exhaustive due diligence on Mega before giving it a clean bill of health just months earlier. Mega is not a cyberlocker. It complies with NZ and with European and US copyright laws. It is one of a handful of companies in NZ that publish a transparency report. Naturally, as a privacy protective business, it has put a huge effort into GDPR compliance. It has excellent relationships with law enforcement agencies worldwide operating under its takedown guidance policy.
And yet a spurious report, commissioned by a non accountable industry backed lobby group, was able to run roughshod over all that. If Mega was not so well supported by its users and stakeholders, that false accusation would have driven it out of business. This is the danger in WIPO encouraging advertisers to cease service based on unsubstantiated allegations by non publicly accountable third parties. The allegations alone, which may be false, as they were for Mega, can kill a business.
That's a great example of the kind of mistake that is quite often made. We highlighted some other examples in our original post. Also, it's important to note that early innovations in new spaces often appear to be infringing. Imagine a similar rule in the time before the Supreme Court ruled that the VCR was perfectly legal. If retail shops relied on a "list" from the MPAA on what they shouldn't stock, it certainly would have meant they never would have sold VCRs (the same VCRs that helped drive the home video market, which quickly surpassed the box office market and saved Hollywood in the 1980s).
Back to WIPO's list, however. I had reached out to them before my story went up -- and they responded saying they'd be happy to set up someone for me to talk to, though that email was sent right around the time my original story went out. I told them I was hoping to do a follow up story and would like to speak to someone there. After a number of emails back and forth, WIPO eventually told me that since this database is "under formal discussion by WIPO member states at a meeting of the Advisory Committee on Enforcement" in early September, WIPO felt that it was best not to comment until after it's too late for it to matter and after the member states have discussed it. That strikes me as odd.
However, a WIPO employee, Jeremy Thille, decided to come into our comments and take it upon himself to give, as he called it, "WIPO's reply." Thille is a web developer, who notes that he helped build the database. I am quite sure that Thille thought he was being helpful here -- and, he actually was being super helpful in revealing WIPO's complete and utter disgust for basic due process on issues that impact speech and innovation. Most tellingly, he responded to my question about whether or not sites are notified that they're being put in this database that can literally put them out of business by saying:
No. They know what they're doing.
This isn't a surprise. In two decades of doing work in and around the copyright space, this attitude is pervasive. It ignores, of course, that throughout all of this time, those in legacy industries are often way too quick to declare something, or some tool or service, "dedicated to infringement," when it is not. It ignores that making mistakes here have massive impacts on both free expression and innovation. This is especially galling given that WIPO is a part of the UN and the UN is supposed to be bound by the principles of free expression in the Universal Declaration of Human Rights. To brush off such blatant censorship without any due process as "they know what they did" is astoundingly cavalier.
Other parts of Thille's responses (er... "WIPO's reply") are equally enlightening, if not surprising. He argues that there really aren't any problems with WIPO keeping such a censorship database, because it's all really maintained by member countries:
The BRIP platform is merely a central repository for national authorities such as HADOPI in France, AGCOM in Italy, or Roskomnadzor in Russia.
These authorities are governmental and they declare websites as infringing, as they legally have the power to do so. We don't have this power, so we don't add or remove anything from the database.
He leaves out the earlier statements that industry representatives get to take part as well. He also leaves out the, uh, rather checkered history of some of the agencies he names in censoring the internet. Remember, when the company that Hadopi employed to run its copyright enforcement program decided that the DNS address 127.0.0.1 was a pirate site? (For the non-technically savvy, 127.0.0.1 is your own local machine). Or how about the time that Roskomnadzor used its copyright naughty list to shut down an entire news site. AGCOM? Remember how they ordered a user-generated-content platform blocked throughout Italy based on claims of 11 infringing works, and then ignored the fact that the site quickly removed all 11 works when informed?
Odd that the three examples of "trusted" government agencies that WIPO uses as examples for its database all have histories littered with problematic sites and censorship. Seems like, maybe, something WIPO should have considered, rather than merely assuming that if a government says "kill this site" that it must "know what they did."
Thille also passes the buck on WIPO's database, noting that while WIPO won't remove stuff, it will be left up to those problematic trusted authorities to create any due process. Though, he is candid that basically, any site in the database is fucked:
If they have been flagged by their national supreme internet authority, it will be difficult to contest, but here again, this is a process we have noting to do with. Displeased websites will have to try and contact their national authority directly, as they alone can remove a website/domain from their list in the BRIP database. Technically, we could of course remove a website from an official list, but legally we absolutely can't.
That's fascinating. Given just how hard all of the industry reps have been fighting over the years to argue that the maintainer of a website should have liability for what's in it, it does seem just slightly ironic for WIPO and the industry to team up on a database while insisting they have no liability whatsoever for putting companies into it incorrectly, even if it cuts of free expression or innovation.
Thille further clarifies -- as we expected -- that there is literally no way for the public, or even an NGO, to check the database and review it for accuracy. So it's a hidden, secretive database, put together by organizations that have a troubled history of censorship, that will be used to starve sites out of existence, and there is no due process, no transparency, no way to review, no way to appeal. But it's all cool because, WIPO believes, those sites "know what they're doing."
Of course, as we saw with Mega, yes, those sites know that they're complying with the law. And it didn't matter.
I asked WIPO whether or not it would like to comment on Thille's clarifications, suggesting that as an organization pushing such a database, it would probably be in their interest to have a better response to these questions. WIPO declined to respond and has provided no additional comment. It seems like the kind of thing that might help member states have a more informed discussion at their meeting September 2 - 4, at which there will be a discussion on "recent activities" regarding the BRIP database.
Unfortunately, responding to pesky journalists asking silly questions about censorship and due process is not on the agenda. I guess, the best you can say about WIPO and this database is... "they know what they're doing."
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Filed Under: accusations, brip, copyright, database, due process, free speech, infringement, innovation, wipo
Companies: mega, wipo
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Look at the upside
A list of pirate sites might come in handy!
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“Nope they know what they are doing”
Great so someone can send a bunch of false claims that says the UN Runs a pirate website because they “know what they are doing” as well
God I love democracy
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Of course they know what they are doing. They also know that what they are doing wouldn't stand up to due process.
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Interesting that an organization with no sovereign powers is expected to extend “due process”. How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?
As for the “great example”, it is useful to bring to the attention of readers that Mega was the brainchild of Kim Dotcom, a mega-infringer who stole away to NZ to hide from criminal prosecution.
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Re:
Dear UN:
You are not UNATCO.
Signed:courts of respective countries.
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They're wondering why if the US cops can't avoid due process, and since the Special 301 has extended that to copyright in the eyes of the US Gov, why it shouldn't be true across the rest of WIPO.
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Re:
Interesting that an organization with no sovereign powers is expected to extend “due process”. How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?
WIPO is part of the UN, and intergovernmental organization, and the people who are supply the database with their pirate lists are governmental organizations. In other words, yes, it's a governmental organization, and yes, due process here is key. Separately, we have, repeatedly advocated for the fact that private platforms should increase their own due process, but you're pretending otherwise.
As for the “great example”, it is useful to bring to the attention of readers that Mega was the brainchild of Kim Dotcom, a mega-infringer who stole away to NZ to hide from criminal prosecution.
Leaving aside your mischaracterization of Dotcom, the question was not about Kim Dotcom, but about the company (of which he is no longer associated with and hasn't been in years), and whether or not it was a cyberlocker dealing in infringement.
But, hey, if you want to tar everything because of things its one time execs did in the past, you're not going to like how the big movie studios and record labels come out in the wash....
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Google is dedicated to infringement. They know what they're doing. And have the cash to pay their fines through pirate asset forfeiture.
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See, this is how you parody one of our usual trolls — you keep it subtle and low-key.
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Anonymous should hack in and get the database, then leak it for everyone to see. What have they been doing lately while these government fools have been trying to destroy the internet any way they can?
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Re: Dedicated
Hollywood is dedicated to Piracy - just look at how all the movie companies fled to California to escape the righteous IP lawsuits filed by Thomas Edison!
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The open internet is dead, just so that you can make more bread!
That subject is from a line in an original song I wrote about copyright. I wrote it in anger right after the EU voted to approve Article 13/17 in their copyright directive. Unfortunately, this article only proves that this is sadly going to become a reality.
Forget copyright for a second. Let's call the situation for what it is: A new invention that enables all of humanity to communicate with each other at the click of a finger. This invention allows you to say whatever you want to whoever will listen, all without the need of someone else in some high-up company to approve of what you're going to say. But those same higher-ups hate this new invention. They want to control everything and hold a monopoly on enabling people to speak. So they throw a tantrum over not being able to keep making profits like they used to, and for whatever reason, the government listens to them, sides with them, and passes and enforces laws that enable them to hold a monopoly.
The above statement can apply to the Internet, but it also can easily apply to the printing press. Sadly, history is repeating itself. Copyright was never about trying to protect creators or stop people from ripping off artists. It wasn't even about making sure authors and artists are paid for their work. It's all about making sure the gatekeepers stay in control and keep making huge profits like they used to.
Yes, someone knows that they're ripping off artists and making a quick buck off of their hard work. But if you think that the "pirates" are the ones doing so, I think you better look in the mirror. The gatekeepers are the ones who "know what they're doing", and unfortunately the government is handing them tools to allow censorship in hopes that they can start making legitimate profits. What's going to happen when the Internet is gone, every legitimate site is blacklisted, and you STILL aren't making the profits you want to make? Stop making a scapegoat out of piracy and evolve with the times. The internet has allowed a massive increase in creativity; don't let greed destroy it by turning copyright into a tool to censor the creativity it is supposed to help foster.
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Re:
I really hope you are posting here out of ignorance. Because if people pay any amount of money for that lame ass attempt at a “gotcha” it’s too much.
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There may be a second recourse
Sue local ISPs for censorship and prevent them from using pressure-group blacklists as a basis for restricting access to internet sites. Given that Google reports 90% errors in industry-provided block lists, local courts might be convinced that at least some due process is required for fairly cuts into constitutional rights.
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"Your Honor, the defendant is accused of, well they know what they did."
"I see, I see. Execute them."
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its hard..
To understand 1 nations laws over another..
What is legal Here may not be over there.. who wants to Chew gun in public in Taiwan??
Anyone want the Spanish Inquisition??
How about the idea that That USA is NOT supposed to have religion in the Gov...for 1 basic reason. WHICH RELIGION, WHICH SEC, Which one do you choose...
With over 40 Different Christian religions, How many Muslim? Jewish??
then add this ideal, with a FEW CORPS, getting together and creating an agency... That give you NO CHANCE.
Corps controlling this??
And this Agency has the RIGHT, to report to Visa, MC, PP and other companies and DEMAND/suggest?? That they Do something in another country?
Can we as a nation, Demand that Bayer, and Monsanto, GET OUT OF INDIA and quit being MEAN about seeds they are selling with Contracts??
I REALLY dout it.
Can India do it...They can ask..but Probably wont do much good.
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Re: its hard..
than's for the spam sample
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Re: Re: Dedicated
It goes beyond that... Hollywood tends to steal plots and sometimes entire stories from dead authors who can't defend their rights!
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Re: There may be a second recourse
Also, for many countries, you should be able to use FOIA requests to get a copy of the blacklist that country submitted to the database, including records of where the names in that blacklist came from. Good luck doing that with Russia or Italy though.
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Re:
You forgot the part where the defendant was never notified of the case against them and the first they find out about it is when the executioner arrives at their door.
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Re: There may be a second recourse
Sure, but lawsuits are expensive, especially if your revenue stream has been cut off.
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Re: Re:
Only people I had 'speaking' were the prosecter and judge. No reason to believe the defendant will be notified until after his sentance is carried out.
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True
Yes sir if that person does know what he is doing he will have you delist him and possibly more once he argues the UN has no authority in that country if he takes your people to court.
OH you were talking about pirates knowing what they are doing? Not innocent people?
Well then disregard what I said before.
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Re: "...Mega was the brainchild of Kim Dotcom, a mega-infringer.
And Microsoft is a brainchild of Bill Gates, who has been arrested twice for driving w/o license and speeding (recidivist!). So what?
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RE: Governmental organizations?
Mike, tell Thille (as a WIPO representative) that I am deeply offended they did not contact a government with the most extensive list of sites to block - the Chinese one. I believe that China is still a member of UN, China is a place where about a quarter of the whole Earth population lives, so they MUST have a voice in this one. I wonder how much of the Internet we will have left after their contribution...
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Re: RE: Governmental organizations?
how much of the what?
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Re: Re:
Would you be so kind as to direct me to where it is referenced that WIPO holds legislative and judicial powers equivalent to those of sovereign nations? Until then use of the phrase “due process” in reference to WIPO is misleading.
As for KDC, his case is pending before the NZ Supreme Court for final disposition, arguments having been presented earlier this year. It will be interesting to see how the court decides.
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Re: Re: Re:
So you are suggesting the Police officers, or their PDs have legislative or Judicial powers?
I think I found the problem that's we are seein with cops....
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So:
Sure, rapists don't know what they are doing, no.
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Re:
Why do you think John Herrick Smith is obsessed with them? It's not a coincidence.
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Re: Re:
Ouch. Saying John Smith is a rapist, con man, fraudster, and child molester could get you into trouble. With the comedy police.
I heard he fucks goats.
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Same ol' thang
WIPO's banishment list is no different from gang databases or no-fly lists, just arbitrary removal of rights by powerful groups. "#Cancel" culture is also similar in demanding that people lose their livelihoods based on allegations and zero due process.
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Those goats never loved him!
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Re:
Hence the rape charges.
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Re:
Weird Al: "Yeah?! W-well, me too!"
Tress MacNeille: outraged gasp
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Re: Same ol' thang
It's better to be without a book than to believe a book entirely.
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Re: Re: Re:
Would you be so kind as to direct me to where it is referenced that WIPO holds legislative and judicial powers equivalent to those of sovereign nations? Until then use of the phrase “due process” in reference to WIPO is misleading.
They are determining which websites can live or die in partnership with national governments. This isn't hard.
As for KDC, his case is pending before the NZ Supreme Court for final disposition, arguments having been presented earlier this year. It will be interesting to see how the court decides.
Yes. That's true. But his case has nothing to do with Mega, so why are we even discussing this other than you deciding to try to undermine a story with something totally unrelated.
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Re: Re: Re: Re:
Geography has made us neighbors. History has made us friends. Economics has made us partners, and necessity has made us allies. Those whom God has so joined together, let no man put asunder.
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As I keep saying, 'copyright causes brain damage'
When accusations of copyright infringement have less legal protections than accusations of actual theft, rape and/or murder you know the system and priorities within it are completely shot.
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Re: As I keep saying, 'copyright causes brain damage'
It causes, or it implies brain damage?
Or is like zombification, that once you bite someone he will also shuffle around moaning "copyriiiiiights... it's miiiiiiine...".
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Re: Re: As I keep saying, 'copyright causes brain damage'
Also, and sorry for nitpicking, but you don't need to specify about actual theft.
Copyright infringement isn't theft. I know what copyright zombies moan about, and I guess that you are putting emphasis in that word because you're trying to refer to what they do.
But IMHO, we should be very careful with words. I remember Rick Falkvinge once writing about the war on words, particularly in copyright, but it also applies to other areas.
We shouldn't let them decide or even try to bias the meaning of a word towards something else. That's a very important fight that would end up deciding the society's support or rejection on copyright.
Or at least, their willingness to trade civil rights for copyright enforcement.
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Re: Re: Re: As I keep saying, 'copyright causes brain damage'
The emphasis was meant to differentiate copyright infringement, which is not theft, from something like stealing a DVD from a store, which is theft, and point out that the despite the latter having real demonstrable harm(in that the store has one less of a physical item to sell) copyright infringement, which lacks that, is treated much more serious under the law, with basic protections like 'due process' and 'innocent until proven guilty thrown under the bus as a result.
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Re: Same ol' thang
Except the WIPO list of governmental. Private groups can say and do things that governments shouldn't. When a government denies you due process that's a big deal.
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Re: Re:
What if the book only says "humans need air to breathe"?
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Re:
Looks like another extortion/troll effort
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Re:
"Interesting that an organization with no sovereign powers is expected to extend “due process”."
Agreed, who in the hell do these people think they are?
"How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?"
Oh, not this bullshit again. You have been informed of the legalities in these cases and yet you still refuse to acknowledge the way things are. If you do not like it you are ranting to the wrong audience.
Now, please explain how and why due process is not something that an accused, in the US, is granted.
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Re: Re:
She turned me into a newt!
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Re: Re: Re:
"'How to serve man' is a cookbook!!!"
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Re: Re:
Due process in the US is a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.
Respecting the first amendment is likewise a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.
WIPO is an organization that has members which are governments, but the organization itself does not have any customary governmental powers.
Now, extending principles consistent with due process to others is an entirely legitimate and laudable goal, but it is not a constitutional imperative.
This site goes nuts when someone comes along and equates copyright infringement with theft. To be consistent, it should take issue when persons come along, including the authors of articles, and begin associating with non-governments constitutional obligations that are unique to governments.
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Re: Re: Re:
Due process in the US is a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.
Again, WIPO is a governmental organization, and this censorship/defund list is created by governmental organizations, all of whom owe a right to due process before seeking to censor content.
Respecting the first amendment is likewise a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.
WIPO, as a part of the UN, is bound by the Universal Declaration on Human Rights, which includes both free expression and due process.
Now, extending principles consistent with due process to others is an entirely legitimate and laudable goal, but it is not a constitutional imperative.
It is for a UN organization creating a list that is driven by UN member state governmental agencies.
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Re: Re: Re: Re: As I keep saying, 'copyright causes brain damage
I know.
And see that in my answer I tell you about you putting the emphasis in that word.
My point is that we shouldn't even give them that chance with the "actual" part. That we should be more assertive in the use of our language.
Because we might end up losing that war on words.
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Re: Re: Re: Re: Re: As I keep saying, 'copyright causes brain da
Hmm, I think I see where you're going with that, though I'm not sure I agree. Given they already dishonestly conflate copyright infringement with theft I think it's important to make a clear distinction between the two('this is claimed to be theft but it's not. That on the other hand actually is theft.'), otherwise it would be all too easy for them to just lump the two together.
When only talking about copyright infringement I try to avoid even the 'piracy' label, as much like theft that's a dishonest loaded word, but when it comes to a discussion/comparison between copyright infringement and theft I feel it's worthwhile to emphasis that despite the repeated claims one is not the same as the other; that one actually does fit the label they are throwing around while the other doesn't.
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Easy steps how to regognize pirate sites for your content filter
Here's the steps needed to regognize a pirate site:
1) they have large amount of content (==they're not author of all that content)
2) they publish the material (== their system is setup to utilize the copyright owner's exclusive property)
3) they didn't bother to do the legal paperwork (== they don't have a license to use the material they publish)
4) their popularity is based on steps (1) to (3). (== their main business is piracy)
5) they were sued by an author or publisher (== their infringement was large enough that authors need to do something to it)
6) authors of the material never received their money (== their money handling is sloppy)
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Re: Re: Re: Re:
I see in part where you are coming from. The DofHR in your mind applies with equal force to business entities. Have to disagree on this point. It would render the H in the title superfluous.
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Re: Re: Re: Re: Re: Re: As I keep saying, 'copyright causes brai
Well, think of it this way.
The moment you write "actual" theft it means that you're taking in mind that there is "copyright" theft, or at least, you're admitting its existence or that there might be a distinction.
What I do, in a very 1984-esque way (they started it), is removing the term "copyright" theft from the dictionary.
That is, "theft" means that you take away something from someone depriving him of his use.
"Copyright theft"? What the fuck is that? Can you eat it?
That is, I deny them of using that word. Moi no habla Spanish, capisce?
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Re: Re: Re:later on
Site operator: so as you can see your honor the UN a foreign entity that offers no redress or anything “because you know what your doing” just delisted a #### load of people sites on US soil with absolutely no redress whatsoever in violation of several principles of this nations foundation and laws and takes away power from the people itself through such acts. 🙂
Judge:......uh give him back his site “pounds gavel”
Wipo: what the #### just happened?
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Re: Re: Re: Re: Re: Re: Re: As I keep saying, 'copyright causes
Oh I get where you're going with that for sure, I'll have to think on it.
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so, it's helpful for me
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BRIP Developer's note
I want to make it clear that my original comment was a personal note, and in no way represents WIPO's position. I have requested to delete the comment, but Mr. Masnick rejected my request. I am therefore correcting the record in this way.
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Re: Easy steps how to regognize pirate sites for your content fi
That that demonstrated complete inability to function logically is why all your stupid arguments perenially fail here.
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WIPO problem
WIPO???
Clean nad abundent Energy EXISTS, They do not protect every thing, they know that clean energy exists and they don’t accept to protect it, details are in the link
https://www.youtube.com/watch?v=Fr-VTCzVpuE
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