Smear Campaign Ramps Up Against Those Who Believe Free Speech Is More Important Than Hollywood's Obsolete Business Model

from the what-innovation-has-the-internet-brought dept

When the entertainment industry got the usual suspects to push the PROTECT IP Act forward, the story around DC was that this bill was a slam dunk. Who was possibly going to resist a bill against evil "rogue" sites that were stealing our jobs and "ideas?" When Senator Ron Wyden put a "hold" on PROTECT IP, we were told by supporters of the bill that this was just a phantom protest and the bill was going to pass easily. It might still... but, it appears that some are beginning to get worried. After all, since the bill came to light, the complaints against it have been pretty clear and pretty loud -- and not from lobbyists, but from the actual people who understand it (much of the "support" from the bill comes from lobbyists).

Indeed, we've seen some of the most well-respected technologists, some of the top funders of innovation, biggest names in the news business and most recently, some of the most respected legal scholars all come out against PROTECT IP. And they're not all complaining about one small problem with the bill, but a series of them.

But, still, the folks who support the bill like to cling to the idea that the support for the bill is widespread and strong, and it's just a small minority against it. And, now, they're ratcheting up smear campaign attacks on those who see the problems with the bill. And, of course, Senator Wyden is apparently target number one. Take, for example, this hilariously weak attack on Senator Wyden from something called "The Chilling Report" -- a weak takeoff on "Chilling Effects," which is really a front for MiMTiD, an "anti-piracy" outfit we've written about before, due to it's laughable claim that forwarding on its takedown notices to sites like Chilling Effects was, itself, infringing (it's not). It appears that MiMTiD's John L. DuPuis is no fan of Senator Wyden, though, you won't get a coherent explanation of why from the blog post. But let's tackle some of the nuttier claims.

Of course the Rhode Island Senator [Sheldon Whitehouse] was referring to the total destruction of U.S. intellectual property over the past ten years.

Hyperbole much? Considering that actual research has shown greater creative output than ever before, how can anyone make such a claim with a straight face? If anything has been destroyed, it's the credibility of John L. DuPuis. "Intellectual property" continues to be created at record levels. Now, DuPuis might be just sloppy, and he could actually mean "intellectual property laws," even if he left off the "laws" part. But even then the statement doesn't pass the guffaw test. Over the last few decades, all we've seen are those laws (specifically copyright, since that's what we're really discussing) tilted further and further in favor of one party (and not the party that copyright laws were most designed to benefit). The 1976 Act was a massive expansion of copyright law. Add to that the Sonny Bono Copyright Term Extension Act, the DMCA, ProIP and a few other changes here and there and all we've seen is the continuous expansion of copyright law.

The most vocal opponent of new common sense legislation by Congress is Senator Ron Wyden.... His views concerning the Internet are the most pernicious for copyright holders today

"Common sense" legislation is not legislation that censors free speech, puts liability on unrelated third parties, messes with the DNS system and is wide open to massive abuse. Seriously, DuPuis, just because you call something "common sense" legislation, that doesn't make anyone who understands the bill suddenly believe it. The bill is seriously broken.

Furthermore, Wyden's views are not at all "pernicious" for copyright holders today. He appears to actually understand the unintended consequences of something like PROTECT IP and has no interest in dealing with the fallout. Considering how many wonderful things the internet has created for "copyright holders" today, and Wyden's main concerns being that such innovations will continue to be able to be made and to spread, I'd argue the exact opposite of what DuPuis has said here. It seems like Wyden is looking out for copyright holders, by making sure that new laws don't prematurely kill off or slow down the sorts of innovations that have made it possible for content creators to thrive like they never have in the past.

Wyden’s criticism attempts to make it seem so dishonorable as he attempt to vilify members on the Judiciary Committee, who are unanimously in favor of tough new oversight. Wyden’s concise use of the age-old political ploy of invoking the language of Political Idealism has the desired impact on the misinformed and weak-minded. When reading Wyden’s idealistic and negative view of new Internet oversight many will say, “...How could anyone be against free speech?” Others will probably cry out, “That’s un-American for god’s sakes...” Of course everyone knows no fair-minded American could be against any of the basic tenants of a free society, free speech, and an unfettered open Internet. I would venture to say that we are all against giving licenses to foreign regimes to sensor the Internet. But of course that’s not the issue here. The issue is not, as Wyden would have you believe, stifling free speech or tearing down the foundations of the Internet. The issue is how to maintain an environment where pirates can continue to assault rights holders while some make billions of dollars ripping off content of legitimate rights holders.

I have to admit that I read this paragraph a few times over, and I'm not quite sure what DuPuis is really trying to say here. I saw no attempt by Senator Wyden to vilify the Senate Judiciary Committee (I, on the other hand, am happy to do so, but to claim that Senator Wyden did seems strange). The rest of the paragraph comes off as a "the lady doth protest too much" sorta thing. He goes on and on, sarcastically mocking the idea that free speech might be important, while failing to explain how the concerns raised by Senator Wyden and many others about free speech have not been shown to be false by any measure.

New legislation, in the view of the majority of the Senate Judiciary Committee members, would put common sense remedies in place to stop the massive and unprecedented transfer of wealth from the United States.

Ah, once again, with the "common sense" claim. Maybe if you repeat it enough times someone will believe it.

Instead Senator Wyden releases a statement May 12th, 2011 referencing the Protect IP Act where Wyden chooses whimsical metaphorical references like “bunker busting bombs” and “strategic guided missiles” in referring to elements of the COICA legislation he opposes. Could these references be anymore misleading about the true intent of the responsible members of the Senate Judiciary Committee? Could the choice of such incendiary references, which are carefully composed by member’s of Wyden’s staff, tell us more about Wyden’s true intentions than his assertions that innovation will be stifled or trampled free speech? In my view it had nothing to do with any of those assertions, but instead more to do with the preservation of Wyden’s own political future.

I think those statements show the exact intent of Senator Wyden: to point out that the bill is written in a broad way such that the impact will be felt way beyond the targets, and that the collateral damage will be severe. This is not a hypothetical. We've already seen that similar interpretations of existing US law for US sites (PROTECT IP is targeted at foreign sites) have taken down protected free speech, seizing tons of websites without due process. Furthermore, while folks keep insisting that this law will only be used against the "worst of the worst" "rogue sites," we've also seen that Universal Music seems to define "rogue sites" as popular hip hop magazines and blogs -- and even the personal site of one of its biggest stars. And DuPuis really thinks Senator Wyden is out of line for questioning the broad reach of the law?

After ten years of Safe Harbor protection crafted and set in place to protect intellectual property but also to provide protection for technological innovation, what do we have to show for it? What we have now is a nearly bankrupt record business, Mainland China running on stolen U.S. software and thousand of websites dedicated to copyright infringment.

Correction: there are some record labels that are nearly bankrupt, but the music business is thriving at unheard of levels. And, with new business models and new revenue streams, combined with innovative new tools for creation, promotion, distribution and monetization, musicians are actually making more money than ever before. Damn those facts. As for China "running on stolen software," various reports and studies have shown that the infringement rate in China has actually helped Microsoft, by keeping much of the country on its platform rather than moving to open source alternatives. In fact, Microsoft has admitted as much in the past.

So what innovation resulted from the Safe Harbors? By far the most notable has been Google, Facebook, Farmville Games, and Pandora, which are Internet darlings at the moment.

And this is the part that should just make you burst out with laughter. Yes, those are the only innovations. Pick and choose, much? You know what other innovations have come from those safe harbors? iTunes, eBay, Bandcamp, Kickstarter, Eventful, TopSpin, SoundCloud, TuneCore, SongKick and a ton of other awesome tools for creating, promoting, funding, distributing, connecting and monetizing.

However, the protections provided by the Safe Harbor has also resulted in the loss of billions and billions dollars and hundreds of thousands of American jobs here at home. So while these new and incredible technical innovations like Facebook and Pandora are celebrated as Internet wonders, the U.S. continues to have its intellectual treasure dished out to the rest of the world in the name of free speech.

Seriously? What "billions and billions of dollars" have been lost? Nothing's been lost. If you look at the actual economics, you see that the music industry has continued to grow all this time. Yes, some of the money has shifted around, and more of it is going to the actual creators, which may put some gatekeeper middlemen out of work, but that's how disruption works. And most of us consider that a good thing. And, in the meantime, if you seriously wants to pretend that the recording industry has "lost" more jobs over the past decade than the internet has created, you've got bigger problems than just getting the latest bad law approved.

Now let’s take a little closer look at Senator Ron Wyden’s (D-Oregon) point of view. His continuing diatribe concerning potential freedoms lost is tiresome and for the most part ridiculous. His references to “…given license to foreign regimes to further censor the Internet for political reasons,” seems a bit out of touch to me as I watch events of the “Arab Spring” develop on my flat screen T.V. Just for the record, when “oppressive regimes” do what they do to “oppress” they usually do so without paying much attention to the finer issues of freedom of the Internet. As we have seen in China, which incidentally is the recipient of most of our intellectual wealth, is oppressive but ironically China has profited greatly due to inaction United States Government.

Apparently DuPuis is unfamiliar with the State Department's own claims of wishing to support internet freedom around the globe, relying in large part on the US's record on free speech to do so. Taking a step back from that with a bill designed to censor websites is already providing regimes in India, China and other countries with an argument to justify their own (much more draconian) censorship regimes.

Today in China forty-three percent of elementary age students aspire to become computer hackers then march valiantly into cyberspace looking to steal more and more American intellectual property.

I'm not even going to ask what orifice the 43% number came out of. But even if that is true, I have to question what that has to do with PROTECT IP. As defenders of the law keep insisting, under PROTECT IP, these rogue sites would still be available outside the US. So this law would have no impact on these hordes of Chinese hackers.

I can’t help but think Senator Wyden should put his country’s survival before the needs of his misinformed and misdirected constituents. He should step up and do what is right. He should stop immediately in his attempts to “gut” every effort made by Congress to clean up the Internet and secure the rights of those who own intellectual property.

Wait, what?!? His "country's survival"? Is DuPuis really trying to claim that the country will collapse without PROTECT IP? It won't. Second, like all good politicians, Senator Wyden is listening to his constituents, but he's also doing what's right. Believe it or not, the two can be the same thing. In this case, he's paying attention to a very real risk to the technical structure of the internet and the basic framework of free speech in America.

Tragically, nowhere does DuPuis even bother to try to respond to those claims. And that's probably because he can't. The technologists who understand how the internet works have already weighed in and pointed out PROTECT IP breaks the internet. The investors who funded massive amounts of innovation online have weighed in and pointed out that PROTECT IP will stifle investment into new innovation. The lawyers and law professors who helped shape the laws that make sure that free speech is preserved online have weighed in and pointed out that PROTECT IP will hinder free speech. It seems like Senator Wyden is on the side of what's good and what's right here. The real question is why aren't the other 99 Senators lined up behind him?

Filed Under: john l. dupuis, protect ip, ron wyden
Companies: mimtid

Is It Copyright Infringement To Pass A DMCA Notice On To ChillingEffects?

from the copyright-on-a-copyright-infringement-notice? dept

Tom Rubin, who happens to be Microsoft's chief counsel for intellectual property strategy, has a blog post up at the Center for Internet and Society at Stanford, where he highlights the worrying trend of filers of DMCA takedown notices forbidding the recipient to publish or pass the notice on to third parties like ChillingEffects. From the notice:

IMPORTANT NOTICE: None of the information contained in this legal notice is to be transmitted and/or released to any third party, including but not limited to Chilling Effects (chillingeffects.org), without the express written permission of the the copyright owner and or his agent. As stated in Section 512 of the Digital Millennium Copyright Act, and in the normal course of processing and notifying the infringing counter party, recipient must only include information specific to that counter party's infringement and must not include this entire notice. Any re-transmission in whole or in part of this legal notice by the intended recipient will be a direct violation of U.S. and International Copyright Law and will be prosecuted to the fullest extent of the law by the copyright owner.

Yes, that's right. The company is claiming that the DMCA takedown notice itself is copyrighted and that passing it along will constitute infringement. Of course, this raises some questions. Assuming that such a notice is copyrightable (and I'd argue that, depending on the text, it might not be), who owns the copyright. The paragraph above appears to imply that it's the copyright holder of the original content that the takedown notice is about, but that wouldn't be true. It seems that the copyright, if there is one, would be held by whoever wrote the letter, which is the third party firm hired by the original copyright holder. Also, did whoever write this letter actually register it with the Copyright Office?

Either way, I can't wait to see the DMCA takedown notice filed on a DMCA takedown notice.

Of course, it's not too hard to track down more details about this. That's because at least some of the recipients of such a warning appear to have totally ignored it. Within seconds, I found a recent letter on ChillingEffects (sent to Google) that includes this language. It's a letter from Zuffa LLC, better known as the parent company for UFC, who has been quite aggressive in copyright lawsuits. The actual letter appears to have been filed by an outfit called MiMTiD, which promises automated DMCA takedown notice submission, which only raises even more questions. If the letter itself is automated, again that raises questions about whether it's copyrightable.

Even odder is the following paragraph in the letter. After denying the recipient the ability to forward the letter to anyone, including specifically calling out ChillingEffects, it appears to indicate that it will instead forward the letter to a different aggregator of such notices, called "The Chilling Report" but apparently that database is kept secret and you need to "obtain secure access" to see it:

Please also note that with the express permission of the copyright owner, in addition to being forwarded to certain members of the United States Congress and the U.S. Department of Justice, MiMTiD will send this legal notice to a third-party that aggregates repeat infringer data gathered by different agencies and infringement mitigation service companies around the globe and provides centralized access to that data to be used by global policy makers and law enforcement agencies to create and enforce copyright law. As such, this legal notice will included in The Chilling Report (http: //www.chillingreport.com). To obtain secure access to the Chilling Report please email The Chilling Report at xxxxx @chillingreport.com or call (713) xxx-xxxx.

I checked out http://www.chillingreport.com and nothing loads. So is this an attempt to try to hide DMCA takedown notice info from the public? If so, I doubt it will work. It's nice to see that Google apparently didn't think twice before passing this letter on to Chilling Effects, despite the prohibition. Now we'll see if MiMTiD, Zuffa or anyone else actually tries to claim a copyright on the DMCA notice. I would imagine they'd have to send a DMCA notice to Chilling Effects first, and if that includes the same paragraph, we may get into an infinite loop of DMCA notices...

Filed Under: chilling effects, copyright, dmca
Companies: mimtid, zuffa