US Government Threatening To Kill Free Trade With South Africa After Hollywood Complained It Was Adopting American Fair Use Principles

from the what-the-actual-fuck? dept

Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.

The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.

And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Most recently, the National Assembly of South Africa adopted legislation in December 2018 that also features a broad spectrum of vaguely delineated exceptions. On top of a set of extremely broad new exceptions and limitations to copyright protection (and the existing “fair dealing” system), the new law adds a version of the U.S. “fair use” statute that will allow judges to excuse certain uses from licenses. This version of “fair use” can be applied to eight broad and unclear “purposes” of use, such as “scholarship, teaching and education,” and “expanding access for underserved populations.” The proposed “fair use” system lacks the decades of legal precedent that have served to define, refine, and qualify that doctrine in the United States. The effects of this provision, along with overlapping exceptions and limitations, will result in confusion and uncertainty about which uses of copyright works require licenses, and could hinder investment in and the development of new copyright services in South Africa. It will, in particular, imperil the legitimate markets for educational texts, locally distributed works, and online works in general. Taken as a whole, these provisions are inconsistent with South Africa’s international obligations since they far exceed the degree of exceptions and limitations permitted under the WTO TRIPS Agreement (the “three-step test”).

First, kudos to the IIPA for at least admitting outright that South Africa is looking to implement a "version of the U.S. 'fair use' statute," because I wouldn't have put it past them to ignore the fact that this exists in the US and all of the IIPA members' members have used it to build parts of their business.

But the claim that this is inconsistent with international obligations is utter hogwash. As we've discussed in the past, the "three-step test" is often used by Hollywood as a strawman pretending that it blocks users' rights in copyright law. But that's not true. If it was, then the US couldn't even have the fair use system we do. But we do. So, no, the three-step test doesn't prevent it.

Now, here's the really fucked up part in all of this. While any competent US Trade Rep (USTR) would look at this and laugh off Hollywood's usual nonsense and point out that if we have fair use here in the US, it's pretty fucking rich to think that we should attack an ally for implementing the same law, that's not what happened. Instead, just recently the USTR directly announced that because of these very concerns, it's opening an investigation into South Africa's intellectual property processes, and it could lead to the USTR kicking South Africa out of a very favorable free trade agreement (the Generalized System of Preferences (GSP)):

South Africa: USTR is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa’s compliance with the GSP IP criterion, in the area of copyright protection and enforcement.

This could lead to a huge change in South Africa's access to the American market, potentially putting over $2 billion worth of South African exports at risk.

All because South Africa wants to implement a totally reasonable copyright plan that respects the public's rights in a manner entirely consistent with current US law. And the US (by way of Hollywood lobbyists) wants to punish the country for that. This is a potentially huge and incredible situation which is not getting very much attention at all -- which is just how Hollywood, the IIPA, the MPAA, and the RIAA want it.

Filed Under: copyright, fair use, free trade, south africa
Companies: iipa, mpaa

US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement

from the also:-our-jacked-up-rates-no-longer-as-lucrative-as-they-used-to-be dept

Access Copyright, the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010. Anyone with a passing familiarity with the term "pricing yourself out of the market" could have predicted the inevitable outcome. Faced with suddenly exorbitant fees (that even covered stuff nominally outside of AC's purview -- like hyperlinks), Canadian universities dropped Access Copyright and began working to license educational materials without AC's assistance.

Access Copyright thought being the "only game in town" would prevent a mass exodus, but it soon became clear universities would be more than happy to deal with the complexities of direct licensing rather than take the easy route and be gouged by AC. (Fun fact: rates jumped 1,300% but less than 10% of these fees make their way back to the actual authors.) 14 of Canada's top 25 universities had dropped Access Copyright by the middle of 2011.

US publishers aren't happy with the outcome of Access Copyright's rate hike, which has resulted in a considerable revenue drop. Of course, they don't blame Access Copyright. In its submission for the 2014 Special 301 report (the report that serves as the copyright industries' naughty/nice list), IIPA (the uber trade group representing all of the other copyright maximalist trade groups) blames everyone and everything but Access Copyright.

As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action.

Yep, the problem here is fair dealing (the Canadian version of fair use), open access and the universities' willingness to swim in the convoluted waters of individual licensing rather than be extorted by Access Copyright. A few long paragraphs from the submission detail US publishers' unhappiness with the current situation and their expectation that the US government will "do something" to restore its access to exorbitant licensing fees.

U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes.

Interrupted here to note that US publishers do not consider a steep rate hike to be the problem. Instead they call out "judicial decisions" and "drastic legislative changes," ignoring the economic reality that if you suddenly jack up prices, customers tend to flee.

The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions).

Entities heavily vested in copyright protection hate exceptions…

Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market. These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”; that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence.

Canada has gone considerably farther than the US, viewing fair dealing both as a right and something subject to "liberal interpretation." The complaint here boils down to that last sentence: Canada's law isn't as restrictive as the US's and, therefore, must be forced into compliance by the US government.

Although the Alberta Education v. Access Copyright case in the Supreme Court’s pentalogy directly affected only a marginal aspect of the educational copying collective licenses — reprographic copying of a few pages per student per year of short excerpts of already purchased supplemental texts by K-12 teachers for use in class instruction — its ultimate impact has been much more destructive.

Only in the fevered mind of a maximalist is expanding fair use exceptions considered "destructive." Keep in mind that this is an industry that is actively begging its respective governments to help it make it more expensive to educate students.

Lawyers for primary and secondary school systems across Canada, giving both the precedents and the new fair dealing amendment the “large and liberal” reading that the pentalogy decisions encouraged, concluded that fair dealing now eliminates the need for them to obtain any license from a collecting society such as Access Copyright, including for uses such as copying of primary textbooks or of newspaper articles, course packs, digital copying (including digital storage and distribution through learning management systems), and copying for uses outside the classroom. Consequently, as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright.

The publishers once again fail to consider the possibility that lower rates might have helped it retain more licensees. This isn't just because of legislation and court decisions. This is also the bleeding that normally results from an enormous, self-inflicted wound.

Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors — much of it destined for U.S. publishers, which enjoy a large market share in the educational sector – evaporated. Similar legal advice was provided to post-secondary institutions, and many of them have declined to renew their Access Copyright licenses as they expire. Access Copyright negotiations with two of Canada’s largest universities — the University of Toronto and Western University – collapsed in recent weeks over this issue. The licensing revenue stream from higher education – historically larger than the K-12 revenue – is thus in immediate jeopardy...

Just in case anyone reading the submission might be unsure of whose interests are being protected, the publishers spell it out in black and white.

After stating its case against fair dealing, the publishers move on to their demands for government intervention.

Publishers are already re-assessing their planned investments in new materials for this core market. We urge the U.S. government to engage with Canadian authorities to ameliorate this threat to the entire educational publishing market in Canada, which is already having deleterious impacts on publishing revenue, investments and jobs on both sides of the border.

In other words, punish the Canadian government for Access Copyright's sins.

But all of this above isn't even the best/worst aspect of this submission. This long complaint about the whirlwind Access Copyright reaped after its 1,300% fee increase makes up the bulk of a subsection in the IIPA's submission. Guess what subheading the US publishers chose to place their attack on fair dealing under.

The Piracy and Infringement Situation in Canada – Offline

That's right. US publishers feel fair dealing exceptions are inseparable from piracy and infringement. Legal exceptions also known as the rights of users, backed by Canadian legislation and judicial decisions, are discussed (well, complained about) in a subsection supposedly dealing with infringing activity. By the time the US publishers have finished griping about fair dealing, there's hardly any room left to discuss actual infringement or piracy. But if you have any doubts about the mindset of US publishers when it comes to fair use exceptions, check this out. This is the last sentence of the last paragraph dealing with Access Copyright and fair dealing.

Even if some expanded uses are permitted, the appropriate balance must still be struck so that educational publishers are duly compensated for their works, thus ensuring a viable domestic \ marketplace for commercially-published educational materials.

This is the first sentence of the immediately following paragraph.

Serious piracy problems persist in Canada’s offline marketplace as well.

The annual Special 301 reports have always been a joke -- albeit an in-joke created by lobbyists and subservient government officials. If there was ever any doubt US copyright industries are lobbying hard for the US government to remake the world's IP laws in its own image, this long complaint about the "unfairness" of another country's fair dealing laws completely erases it.

Filed Under: canada, education, fair dealing, fair use, licensing, publishers, special 301 report, ustr
Companies: access copyright, iipa

TPP Defenders Take To The Internet To Deliver Official Talking Points; Inadvertently Confirm Opponents' Worst Fears

from the TPP-doesn't-do-anything-opponents-claim-it-does,-except-for-all-this dept

The leaked TPP draft, pried loose from the "open and transparent" grip of the USTR, is generating plenty of commentary all over the web. After getting a good look inside, it's little wonder the USTR felt more comfortable trying to push this through under the cover of darkness.

As the criticism of the push for IP maximalism mounts, the treaty's defenders have leapt into the fray, hoping to assure everyone who wasn't previously aware of the treaty's contents (which is pretty much everyone) that there's nothing to see here and please move along.

Mike recently broke down the ridiculous claims and posturing of the USTR's "talking points." Amanda Wilson Denton, counsel to the IIPA (International Intellectual Property Alliance) has showed up right on cue to "set the record straight" on the leaked TPP draft. Let's see how well she followed the talking points. (Talking points in bold.)

The Draft Is Already Outdated

The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations...

If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights…

Sure, it's only a "snapshot." But unless everything's changed since then, it's a very representative snapshot of the involved countries' stances on IP issues. Just because the work is "ongoing" doesn't mean its improving.

What It Would Not Require: Changes to U.S. IP Law

While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law.

The U.S. proposals mirror the current duration of copyright in U.S. law. They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012…

In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners…

While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.

So, if you love current US IP law (and wish it would be expanded), you'll love the TPP. If you don't, well… get used to it. The US is running your IP show now, foreigners.

Denton does admit there is one change to existing US law, something only a maximalist would be happy to see -- a provision that would allow rights holders to pursue criminal charges against those who "aid and abet" copyright infringement. Great news! That means you no longer have to actually infringe to be held criminally accountable. All you have to do is be adjacent to it.

The Only Real “News” – Many Bogus Claims Are Now Verifiably False.

The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.

[T]he issue that generated controversy surrounding SOPA—website blocking through DNS blocking—is entirely absent from the text as recently noted by Ambassador Froman. Froman specifically raised the issue of “blocking rogue Internet sites from accessing the Internet from the United States” in a recent interview published in the November 18, 2013 issue of Washington Trade Daily. He stated unequivocally: “There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that...”

Any comparison to SOPA/PIPA is completely inappropriate and inaccurate.

Comparisons to SOPA are valid because the leaks show the US is pushing a maximalist hard line, one that goes much further than most other countries are willing to go (Australia being the notable exception).

SOPA was a maximalist's dream. Since a majority of Americans are not maximalists, the bill was tough to sell. The USTR knows this, which is why every aspect of these negotiations has been as secretive as possible. Simply stating the TPP is not SOPA because it isn't exactly the same is a weak dodge. It has the same intent. The TPP will harm internet freedom the same way SOPA would have. Secondary liability will now be a criminal act, as Denton points out in her defense of the agreement.

And as for Ambassador Froman's claim that the TPP doesn't provide for the blocking of "rogue sites," former USTR employee and current analyst for the ITIF (SOPA's "intellectual backer") Michelle Wein actually points out that it does in her op-ed defending the proposal.

In addition, the text does not require ISPs to block access, but instead asks that they take reasonable steps: "Court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. [emphasis added]" Essentially, this means that courts cannot make ISPs financially liable for copyright infringement by their users, but can ask them to take steps to block access.

When the government starts "asking" ISPs to "take reasonable steps" (what does that even mean?) to block sites, it's not a request. It's a very forceful suggestion with potential legal implications, as most court ORDERS are. ISPs may not be liable for customers' infringement, but they can certainly be held liable for not "taking reasonable steps" to block access. "Reasonable" is in the eye of the beholder, and what that means for ISPs is that courts will be making this call after they've already issued an order "asking" them to block sites.

What's being witnessed here is the US attempting to make the world beholden to its rights holders. The TPP makes a mockery the last word in its title. There's no "partnership" here. Just a country misusing its stature and economic power to rewrite international IP laws in servitude of a few select industries.

Filed Under: copyright, defenders, patents, talking points, tpp
Companies: iipa

Copyright Lobbyists And The $1 Trillion Fallacy

from the even-if-we-take-the-bogus-stats-at-face-value dept

Well, here we go again. Earlier this week, the IIPA (a sort of uber copyright maximalist lobbying group, made up of other copyright maximalist lobbying groups, including the MPAA, RIAA, BSA, AAP, NMPA, ESA and IFTA) released a new report on the economic impact of "the Copyright Industries." This report comes out every few years, written by the copyright maximalists' favorite economist, Stephen Siwek, who is well known for both these reports and another set of reports in which he tries to calculate "losses" due to infringement using the most ridiculous and misleading methodology imaginable. This report is slightly different. There's not much in the way of direct methodology: he's basically lumping together a bunch of industries as "core copyright" industries, and presenting some stats around them. There are also the "partial copyright" industries, which are kind of laughable, since it includes things like "furniture."

The report is incredibly misleading (and is being used in a misleading way), but we'll get to that. Instead, let's start out by taking the report at face value, and assuming that it is accurate. The claim that the backers of the report (including NBCUniversal, which funded it) are latching onto is the big round number: the claim that:

for the first time, the contribution of the core copyright indus- tries of the U.S. economy surpassed one trillion dollars in 2012

One Trillion! Big number. So big that the IIPA was even able to get the head of the Copyright Office, Maria Pallante, to highlight it in her presentation that coincided with the launch of the report. She apparently put that number on a single powerpoint slide and asked people to remember that number.

As we'll describe, that number doesn't actually say what Pallante and others are pretending it says, but even if it did... doesn't it suggest that the industries are doing fine? Even as infringement has continued to be a major issue, and there are new ways to share content around the globe, the data in the report suggests that the "core copyright industries" have continued to grow and thrive at a very consistent pace -- completely contrasting the supposed doom and gloom these same folks tell us about how piracy is supposedly killing these industries.

Instead, the report shows a steady increase in revenue within these industries, a steady increase in employment and a steady increase in the salaries of those employed in those industries -- in which they make more than people in many other industries. Basically, every chart in the report suggests that the "core copyright industries" are thriving, especially compared to the wider economy. Take, for example, the compensation chart: And yet, during those same years, we were being told, repeatedly, that those industries were dying, that jobs were going away and that we needed much stricter new copyright laws. This chart seems to debunk all of that.

But... of course, that's not how the IIPA and its supporters are spinning this report. Instead, they're using it to argue that "the core copyright industries" are "so important" to the US economy that they need to new laws and protection:

"This study represents a milestone," said Steven J. Metalitz, counsel to the IIPA. "In order to preserve and enhance jobs, exports and economic contributions, it is critical that we have strong legal protections for U.S. creativity and innovation in the U.S. and abroad."

[....] "This report makes it crystal clear that workers in the creative industries make a huge contribution to America's economy," said Matt Loeb, international president of the International Alliance of Theatrical Stage Employees, which represents crew members on movies and TV shows. "It also underscores the urgent need to do more to build, strengthen and protect employment in this dynamic part of our nation's economy."

But... neither of those claims follows from the numbers presented. If these people knew anything about basic economics, they'd know that protectionism doesn't help grow markets -- it constrains them. The way you "strengthen" employment in these markets is by allowing competition and innovation to flow, which is the exact opposite of the legal regime they're pushing for. Of course, everyone knows what this is really about. The report is supplied by a few legacy players in this space, the ones threatened by innovation and upstarts. It's being pushed by the gatekeepers who don't want to compete. They don't want there to be more competition and innovation, because that tends to allow artists and creators to go direct -- and not to have to rely on gatekeepers, who take an 85% cut of all revenue.

Even worse, the report is incredibly misleading -- in effect allowing Siwek, the IIPA, Maria Pallante and other copyright maximalists to blatantly use the success of others who did not rely at all on copyright to support their notions that we need more copyright. That's because of a basic fact that is totally ignored in the report: just because you produce "copyright" covered content, it does not mean that you needed copyright to do so, or that you require copyright laws to do so. Instead, the report and its supporters are falsely claiming that every bit of revenue from the "core copyright industries" is because of strict copyright law. That's provably false. Hell, technically, the revenue that this very site that you're reading now produces is almost certainly included in that "$1 trillion." We're very much a part of the "core copyright industries." And yet we don't rely on copyright. At all. In fact, we dedicate all of our content to the public domain.

And it goes beyond that. A significant portion of the revenue they're discussing actually comes from computer software: But that's an industry where there's tremendous support for changing copyright laws so that there's less protection and more sharing. The growth of the open source movement, and the fact that it powers so much of what we do today, is hardly an argument for stricter protectionism and ratcheting up copyright laws. But, by lumping them all in as "core copyright industries" and then pretending that means you need strict copyright laws to create that content, Siwek, his funders and their friends get to actually use the innovations and business models that show why stricter copyright may be a bad idea... to argue for stricter copyright law.

It's not just blatantly dishonest, it's co-opting the economic activity that disproves their argument to pretend it supports their argument. That Maria Pallante would quote that number and support it suggests serious problems in how the Copyright Office views things today. This kind of report has no business being taken seriously, let alone being used in any policy arguments at all. But, if it is, at the very least, people should point out that, if taken at face value, it pretty clearly shows that the copyright maximalists have been flat out lying about their industries struggling, and how they need things like SOPA, TPP and other legal changes.

Filed Under: copyright, copyright industry, copyright maximalism, core copyright, economic impact, fallacies, stephen siwek, steve metalitz
Companies: bsa, iipa, mpaa, nmpa, riaa

IIPA Wants Canada And Spain On The 'Naughty' Special 301 List Even Though They Brought In Tough New Copyright Laws

from the base-ingratitude dept

Here on Techdirt, one of the things we look forward to each year is the comedy production known as the 301 Report, where the US makes the world line up in a row, and then names and shames all the naughty countries whose intellectual monopoly laws aren't outrageous enough. In advance of the official naughty list, there are helpful suggestions from the fans of monopoly maximalism, including the International Intellectual Property Alliance (IIPA), which has just released its 2013 demands. Mostly it's the usual suspects -- China, India, Russia etc. But there's an interesting change from the previous year's list: Canada has moved from the really naughty "Priority Watch List" to the only slightly naughty "Watch List".

As Michael Geist points out, far from being good news, that's outrageous:

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

Nor is Canada the only country that might be surprised to find itself on the naughty step again. As Mike explained last year, Spain was removed from the official Special 301 list for being an obedient little vassal state and bringing in the punitive Ley Sinde, as instructed, despite huge public and business opposition. And now, guess what? The IIPA already wants Spain back on the list for not doing enough in this area (pdf):

Contrary to the expectations surrounding the implementation of ley Sinde that led to Spain's removal from the Special 301 Watch List last year, Spain saw no positive developments in 2012.

Let's hope Canada and Spain -- and everyone else -- draw the obvious conclusion from the IIPA's latest calls: that no matter what countries do, no matter what legislation they bring in, and no matter what disproportionately harsh punishments they inflict on their own people, it will never, ever be enough, and there will always be further demands, and further threats to put them back on the naughty lists. The only solution is to stand up to this blackmail once and for all, and to treat the Special 301 list with the contempt it deserves.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: 301, canada, copyright, new laws, spain, special 301 report
Companies: iipa

Entertainment Industry Flips Out At The Good Parts Of Canada's New Copyright Law, Demands Changes Via TPP

from the but-of-course dept

In discussing Canada's C-11 copyright reform, we noted that while we were troubled by the "digital locks" provision that mirrors the DMCA's ridiculous anti-circumvention rules, there was actually plenty of good things in the law, that other countries should take note of. Not surprisingly, the entertainment industry feels differently. With Canada joining the TPP negotiations, entertainment industry lobbyists are seeing it as an opportunity to roll back all of the good parts of Canada's copyright law. Michael Geist has the story on how the IIPA -- an organization made up of a bunch of other copyright maximalist organizations, like the RIAA and MPAA -- have put in a filing that argues TPP should wipe out many of the reasonable parts of Canada's new copyright law:

The IIPA, which recently submitted its position on Canada's entry to the TPP as part of a U.S. regulatory process, takes particular issue with the role of Internet providers in enforcing Canadian copyright law. The Canadian "notice-and-notice" approach, which requires providers to forward thousands of infringement allegation notices to their subscribers, strikes a balance between effective enforcement and free speech, while preserving users' privacy.

The model has begun to attract global attention with countries such as Chile adopting it within its own domestic law. The IIPA sharply criticizes the approach, however, calling for dramatic reforms. It argues that Canadian law "fails to provide meaningful incentives for network service providers to co-operate with copyright owners to deal with copyright infringements that take place in the digital network environment."

Instead, the copyright lobby wants Canada to implement measures that would require Internet providers "to take action to prevent recidivists from repeatedly using their services to commit copyright infringement." The plain language demand: a termination system that would cut off Internet access for subscribers accused of infringement.

The IIPA also wants Canada to undo statutory damages changes from Bill C-11 that created a liability cap of $5,000 for non-commercial infringement. It claims that the non-commercial cap renders statutory damages "ineffective in achieving its goals of full compensation and deterrence in the online environment."

Even with the change, Canada remains one of the only developed countries with statutory damages that create the prospect of multi-million dollar damage awards for commercial infringement. The government created the non-commercial cap because it was uncomfortable with rules that could spur thousands of lawsuits against individuals.

This isn't surprising, of course. These groups have always used international trade agreements to force through IP laws that they can't get otherwise. In fact, what's slightly ironic is that the whole reason that Canada was pressured to put in place C-11 in the first place, was because all of these same trade groups kept insisting that Canada was not living up to its "international obligations" with regards to earlier copyright-related agreements. So now that Canada has updated its law with some good ideas and some bad... the industry goes running right back to international agreement negotiations to try to delete the good parts, which it doesn't like.

And, really, this is a big part of the problem with all the secrecy around the TPP. While the process in Canada to approve C-11 certainly had its issues, at least the bill itself was public and was open to significant discussion for quite some time. And if you look back to previous attempts to reform copyright law in Canada, the proposals had gone through significant public scrutiny. None of that will happen with the TPP, which is still being negotiated in secret, and will only be revealed as a done deal: take it or leave it. And none of it will involve real input from the public, who can give talks around the edges of the negotiation, but are never invited to comment on the actual proposals at all. Of course, the entertainment industry, being on various "advisory committees," do have full access to TPP negotiating docs.

Filed Under: canada, copyright
Companies: iipa

The USPTO's Reality Distortion Field: Web Filter Blocks Critics Like EFF, Welcomes Maximalist Lobbyists

from the but-techdirt's-available dept

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

Filed Under: advocacy, uspto, web filter
Companies: aclu, bsa, cdt, eff, iipa, ipi, kei, mpaa, phrma, public citizen, public knowledge, riaa

Hollywood Lobbyist Hasn't Seen The TPP Text, Cannot Read The TPP Text, But Knows What's In The TPP Text?

from the fascinating dept

The Daily Dot's Kevin Collier has a detailed article about his experience as a journalist at the latest TPP negotiating round. He talks mainly about the various "stakeholder" presentations, which are the only access concerned groups have to the negotiators. As we've already noted, the USTR made sure to limit access to the stakeholder presentations, giving them 8 to 10 minutes (reduced from a promised 15) and then scheduling a bunch to run concurrently -- and during a time when many negotiators would likely be out to lunch. From Collier's report, we also learn that the rooms where these presentations were held only had about 20 seats in them -- and there are more than 400 negotiators. He attended the EFF's presentation, but also noted that "Attendees from a nearby presentation exited their conference room and loudly spoke outside the open door to [the EFF's Carolina] Rossini’s room, drowning out her message."

But, perhaps more interesting was Collier's encounter with Michael Schlesinger, a lobbyist for the IIPA (the International Intellectual Property Alliance -- a sort of "super group" of lobbying organizations, including both the RIAA and the MPAA, among others). The IIPA presentation immediately followed the EFF presentation, and involved Schlesinger promising to debunk the "myths" being spread by folks like the EFF. Key among them? That TPP would mandate disconnecting people from the internet. Myth, myth and more myth, Schlesigner declared: there are "no mandates to kick legitimate users off the Internet." Note the weasel word "legitimate."

However, Collier wasn't born yesterday. So he went and found the leaked draft of the IP section that was revealed back in February of 2011. And he noted that it does seem to include mandates for kicking people offline, such as saying that "effective action against any act of copyright infringement" would include things like "removing or disabling access... [and] terminating specified accounts." So, Collier went and found Schlesigner to bring this up, and Schlesinger made a remarkable admission: he claims he hasn't seen the text:

I asked him whether he stood by his presentation's claim that "TPP will result in 'kicking people off the Internet'" was a myth.

"It is," he said.

I showed him a printed-out copy of the section of the TPP leak that referred to "terminating specified accounts" of copyright infringers.

He visibly stiffened. "I'm not commenting on a leaked draft," he told me. "From what I know, the TPP framework would not force anyone off the Internet. I don't know anything about the TPP draft."

Had Schlesinger actually read the TPP, either the leaked chapter or the current draft? I can't say for sure. Legally, he can't have read the latter, because he's a federally registered lobbyist, which would bar him from seeing the text.

Got that? (1) He's not allowed to see the text. (2) He gets upset when someone points him to the leaked text. (3) He... also insists he knows, absolutely, what will not be in the text. How is that even remotely credible?

Filed Under: disconnection, lobbyists, michael schlesinger, three strikes, tpp
Companies: eff, iipa, mpaa, riaa

Copyright Industries Massive Success Shows That They're Dying And Need More Draconian Copyright Laws?

from the say-what-now? dept

One of the favorite misleading tricks of supporters of more draconian copyright laws is to put out a report each year about the "size" of "the copyright industries," by the "International Intellectual Property Alliance" (a trade group made up of other trade groups, including the RIAA, MPAA, BSA, ESA, NMPA and others) There are numerous problems with this report. First off, it makes the ridiculously wrong assumption that "the copyright industries" exist solely because of copyright law. That is, they use the size of the numbers to suggest that stronger copyright law is necessary. Yet that's ridiculous. They present no evidence that the industries would be any different size, if copyright law were weaker or stronger. They simply present that as the obvious implication. Furthermore, their definition of what makes up "the copyright industries" is insanely broad, and tends to include plenty of operations who don't actually want stricter copyright laws at all. For example, I'm sure Techdirt technically qualifies under whatever measure they're using. After all, we're a publisher, so technically we're in "the content industries." Yet I can tell you right now that exactly zero percent of our revenue is due to copyright law. That's true of many, many of the companies included as being in "the copyright industries."

Unfortunately, this myth persists that if you add up all of the broadly defined "content industries," it somehow shows why you need stricter copyright. But that makes no sense. If they actually showed a direct causal relationship -- or even any evidence that copyright policy directly drives aggregate revenue, they might have some argument. But they don't go near such things. But it doesn't stop grandstanding around the issue. With the latest release, Senators Sheldon Whitehouse and Orrin Hatch, along with Reps. Bob Goodlatte and Adam Schiff, welcomed the various lobbyists who produced this report (i.e., the heads of the ESA, NMPA, RIAA and MPAA) to cheer on the report and use it to falsely pretend this is proof that more draconian copyright laws are important.

This makes no sense and, frankly, it insults the intelligence of just about everyone, to pretend that total revenue within an industry is the automatic indicator of how policy should be determined for that industry. You determine policies based on deltas, not absolutes.

It gets even worse, when you look at the actual report, which shows the industries in question are doing tremendously well. In fact, as many are noting, the report actually appears to undermine the industry's entire argument that "piracy" is somehow decimating their businesses. Instead -- even through a recession, these companies are making a ton of money, and there's no evidence of significant job losses.

It's a pretty weak move when our Congressional leaders to then take those points, that simply do not support the need for more copyright law in any way... and then use it to support such policies. Each year, of course, CCIA puts out a report that shows that if that's how you're going to calculate "the copyright industries," it's only fair to use the same methodology to calculate the industries that are built from "exceptions to copyright law," which turns out to be significantly larger than "the copyright industries." So if any of the elected officials praising this latest report are intellectually honest, they should actually be advocating for weaker copyright laws. After all, the same methodology shows that exceptions to copyright law contribute much more to the economy than copyright law itself.

Filed Under: copyright, copyright industries, orrin hatch, sheldon whitehouse, studies
Companies: bsa, esa, iipa, mpaa, nmpa, riaa

IIPA's Section 301 Filing Shows It's Really Not At All Interested In Reducing Copyright Infringement

from the incredible dept

We've covered some of the better comments to the USTR over the Special 301 report, such as the submission from the CCIA. But, of course, there were some ridiculous submissions as well -- and at the top of the list has to be the submission from the IIPA -- the International Intellectual Property Alliance, a trade association/lobbying group of trade associations/lobbying groups (including the RIAA, MPAA, BSA, ESA and NMPA) that proudly highlights how it has filed comments for the Special 301 report since such things began in 1988. But what's stunning is what the report effectively admits. Even though it claims to want to focus on ways to cut down on copyright infringement, the details show it wants the exact opposite. That's because in reports on a variety of countries, the IIPA seems to suggest that policies encouraging or mandating the use of open source software is somehow a bad thing.

But if your goal is to actually reduce infringement, then wouldn't you want to encourage the use of legal software? And by encouraging the use of open source software, you are making it that much less likely that infringement will be a problem, since the software will be cheaper. Basically, the IIPA is flat out admitting that it's not actually interested in reduced copyright infringement. It's abusing the USTR's Special 301 process to set up protectionist policies for the companies and organizations it represents -- and trying to use that process to deny efforts to actually reduce infringement.

This is really incredible when you think about it. Even though the USTR 301 report is supposed to be about figuring out ways to reduce infringement in countries around the world, the IIPA is trying to shoehorn open source software into the mix, claiming that it's somehow worse than infringing. While many of the IIPA's complaints have to do with mandates for open source software, it even goes after Indonesia, which is just recommending gov't agencies consider open source software -- and here, the IIPA basically exposes its agenda even further:

It encourages a mindset that does not give due consideration to the value to intellectual creations. As such, it fails to build respect for intellectual property rights...

Yes, you read that right. The IIPA is claiming that telling people to consider open source technologies -- which are not at all "anti-intellectual property rights" -- "fails to build respect for intellectual property rights" and doesn't properly value intellectual creations. In other words, in the eyes of the IIPA, properly licensed software that happens to be under an open source license is worse than infringing because of its price.

Filed Under: copyright, open source, special 301, ustr
Companies: iipa