US Still 'Warning' Antigua That It Better Not Set Up Piracy Hub, Even As WTO Gives Approval

from the more-sword-waving dept

This is hardly a surprise given the decade-long history we've gone through concerning the US's attempts to screw over Antigua by violating a trade agreement, and then ignoring, repeatedly, efforts by the WTO to make things right. Given that the WTO gave initial permission for Antigua to set up shop infringing on US intellectual property all the way back in 2007, it appears that Antigua has been nothing but patient. However, last week, it finally started making moves to put this "store" in place.

In response, the US has gone typically ballistic, threatening all sorts of consequences and blaming Antigua for the problems:

The United States warned Antigua and Barbuda on Monday not to retaliate against U.S. restrictions on Internet gambling by suspending American copyrights or patents, a move it said would authorize the "theft" of intellectual property like movies and music.

"The United States has urged Antigua to consider solutions that would benefit its broader economy. However, Antigua has repeatedly stymied these negotiations with certain unrealistic demands," said Nkenge Harmon, a spokeswoman for the U.S. Trade Representative's office.

Of course, what the US claims isn't supported by, well, anyone else. The WTO has now officially signed off (yet again) on the plan. Apparently the 2007 permission was merely "preliminary," but now it's official. The WTO says this is a perfectly legitimate way for Antigua to hit back at the US for its flagrant violation of international trade agreements in trying to shut down Antigua based online gambling sites.

As for Antigua's response to the US threats, the country's legal representative Mark Mendel told Wired (the link above) a bunch of things (go read the whole article), but I think this sums up the key points:

"I do think that the US has a mixed, immature and difficult domestic situation with respect to gambling in general and remote gambling in particular," Mendel told Wired.co.uk. "However, I think the main reason the US has not complied with the WTO rulings is that Antigua is such a small country they think they can get away with it. I also think that, unfortunately, some people in the US government were almost offended that Antigua chose to challenge the US and have been so persistent in its pursuit of justice that the US government has adopted unusually harsh and unyielding lines that have made it difficult to consider our issue in its proper context."

Sounds about right.

Filed Under: antigua, piracy, us, wto

10 Years Later: Antigua May Finally (Really) Set Up Official 'Pirate' Site To Get Back What US Owes In Sanctions

from the watch-this-space dept

Well here's a story that's more than a decade in the making. Way back in 2003, we first wrote about Antigua filing for sanctions against the US for its ban on online gambling. Antigua argued (with fairly strong support) that this violated a trade agreement between the US and Antigua, by blocking a form of free trade. The case was at the WTO for years, bouncing around. In 2004, the WTO ruled against the US, which the US promptly ignored. In 2005, the WTO again ruled in favor of Antigua on the issue, and the US (stunningly) responded by pretending that it had won, when it most clearly had not. Following that, the US pretended that it could just unilaterally change its free trade agreement to carve out gambling. Not surprisingly, Antigua (and the WTO) found that to be problematic.

It goes without saying that the US is big and powerful and Antigua... is not. So, as it became clear that the US intended to ignore any WTO ruling, people began to wonder if there was any remedy for Antigua over this issue. Normally, the WTO could do something with trade sanctions against the US and in favor of Antigua, but given how much Antigua relies on US trade, that would likely hurt Antigua a lot more than the US. Somewhere in the midst of this -- around 2006 -- someone somewhere floated the idea that one way that Antigua could be made whole would be to allow it to ignore US copyright laws, allowing it to "sell" copyrighted content on the cheap, without paying any royalties. That idea took on a life of its own and Antigua began pushing the idea itself around 2007. The world community started to side with Antigua over this, recognizing that the US was being completely unfair here... and the US did what the US does, and bought off a bunch of big countries to get them to shut up and stop supporting Antigua.

In late 2007, the WTO finally said that this plan of retaliatory copyright infringement could go forward in Antigua, but limited to just $21 million worth of infringement. Even so, the US immediately warned Antigua not to even think about it, or it would retaliate. There were some negotiations between the two countries that went nowhere and then... a lot of nothing. We've barely touched on the story since 2008 when Antigua once again threatened to (no, really this time!) launch a copyright infringing store with "permission" from the WTO. But, that didn't happen.

However, reports are now coming out that Antigua finally has plans in place to launch just such a store. Of course, we'll believe it when we see it, considering the decade-long posturing over this issue. Oh yeah, and, once again, the US is warning Antigua not to move forward, claiming that Antigua is acting in "bad faith" and launching the store might "serve to postpone the final resolution of this matter." Considering that the US lost at the WTO nearly a decade ago, and still hasn't "resolved" the matter, that's a fairly ridiculous claim. And, of course, the US is threatening to "retaliate" if Antigua goes forward:

"In these circumstances, Antigua has no justification for taking any retaliatory actions against the United States. Moreover, if Antigua actually proceeds with a plan for its government to authorize the theft of intellectual property, it would only serve to hurt Antigua’s own interests. Government-authorized piracy would undermine chances for a settlement that would provide real benefits to Antigua. It also would serve as a major impediment to foreign investment in the Antiguan economy, particularly in high-tech industries."

So, the short version from the US's point of view is that it's fine to ignore its own trade agreements that wrecked a significant part of Antigua's economy -- but as soon as Antigua fights back and wins, it's not allowed to make use of WTO-approved remedies after years and years of the US refusing to fix its abuses. And somehow when it finally (years and years later) moves forward with this other plan... the US argues that it would harm its international obligations? The hubris from the US is (once again) incredible, if not particularly surprising.

Filed Under: antigua, copyright, online gambling, piracy, trade dispute, us, wto

Cyber War: A One-Sided Battle Against A Trumped Up Enemy

from the what-is-it-good-for?--absolutely-nothin' dept

You would have to be a deaf and blind person with a penchant for head-burying to have missed the drum beats of a supposed cyber war the American government has been touting over the past year or so. It's a one-sided conversation that has been hyperbolic on a level normally associated with sketch comedy. Terms like "Cyber Pearl Harbor" are thrown around without any sense of historical context. In fact, many are questioning whether the entire production is simply a political game, with no real threat existing at all. Unfortunately, many more Americans have now incorporated this manufactured fear into their psyches. Still, the drum beat continues, with the United States labeling Iran as our chief enemy in this inevitable, or perhaps already occurring, cyber war.

The problem, of course, is that anyone who spends a couple minutes studying what's actually happening realizes that this is a one-sided war, likely started by the West, and our opponent is fighting against our tanks with pea-shooters.

The first shot was probably the release of Stuxnet sometime during or before 2009. Even though no one has officially claimed responsibility everyone knows who was behind it. Stuxnet hit with a bang and did a whole lot of damage to Iran's uranium-enrichment capabilities. The United States followed that up with Flame–the ebola virus of spyware.

What did the Iranians fire back with? A series of massive, on-going and ineffective DDoS attacks on American banks. This is a disproportionate response but not in the way military experts usually mean that phrase. It's the equivalent of someone stealing your car and you throwing an ever-increasing number of eggs at his house in response.

That's what makes all of this seem so monumentally silly. The government is making use of an American public, which is massively ignorant about who and what Iran is and is capable of, to go legislatively nutbars in our own country. Don't ask me why they're doing it, but they are. Perhaps more importantly, we're being told that we need legislation to protect against an incapable enemy in a war that we started. If that makes sense to you, chances are you need psychiatric care.

And even more problematic, and frustrating for me personally, is that our government isn't even putting in the effort to fool me properly. It's one thing to have Colin Powell waving a test tube at Congress and shouting "We're all going to die!", but it's quite another to have folks like Gen. William Shelton talking about potential risks in a potential war that we potentially started with a potential threat that we created by attacking it. That's entirely too much potential and not enough blatant falsehood. If the government wants to bullshit us, they can't go in half way. I need real creative lying, not nonsense reports that they have to subsequently pull because they're...you know...made up.

ProPublica reported yesterday that a widely cited Defense Department study claiming Iran's Intelligence Ministry constitutes "a terror and assassination force 30,000 strong" has been "pulled for revisions." It seems there's no proof whatsoever that the 30,000 number wasn't pulled out of thin air.

See, it's not that I'm siding with the pea-shooters here, it's that I'm more scared of the guys that started this war with their tanks. Particularly when the result is poorly-conceived legislation.

Filed Under: cyberwar, hype, iran, us

'Quantum Copyright:' At What Point Does A Legal Copy Become Infringement?

from the spoofing-your-region-for-fun-and-profit! dept

Laws in general aren't known for their clarity, hence the need for lawyers to rack up billable hours searching for loopholes to exploit or to try to bend them to fit the case at hand. Copyright laws, while less tangled than the infamous "Patent Thicket, " are no straightforward walk in the park, either.

Eric Hellman tackles the ambiguous nature of copyright infringement, especially as it pertains to the "region-free" aspects of the internet, in a post amusingly titled, "Heisenberg's Uncertain Copyright." (via The Digital Reader)

Hellman turns his attention to F. Scott Fitzgerald's "The Great Gatsby," and using his skills in the area of "Quantum Copyright" (a term he threw into his LinkedIn profile for a bit of fun), determines that the question of whether or not copyright infringement has occurred might depend on where the copying occurred, something that is even harder to define when the copying takes place via the internet.

It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby...

The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.

If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from the CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.

While Hellman exaggerates the repercussions of making a hypothetical copy (the highest statutory claims would apply only to willful infringement [which this could be, especially when infringing in order to prove a hypothesis] and the jail time only applies to criminal infringement -- which this almost certainly would not be), the fact remains that one deterrent of infringement is the underlying threat of legal action (whether civil or criminal). No doubt F. Scott Fitzgerald's estate is in no hurry to give up the American rights (and the attendant enforcement of those rights), seeing as "The Great Gatsby" earned its author all of $8,400 during his lifetime -- but generates $500,000 per year for his daughter. This secondhand largesse enjoyed by many heirs is one of the motivators behind the ever-extending copyright lengths here in this country.

Hellman posits this not-so-hypothetical situation:

Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html

Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?

In this case, the copying process originates in a country where no copyright protection covers Fitzgerald's book. Its "assembly" in the US suddenly makes it an infringing copy. Does this make sense? More importantly, does it even matter? According to rights holders, the copy would still be infringing, simply because it was copied, at least according to the section of copyright law cited by Hellman, which states that only the owner of the copyright has the "exclusive right... to reproduce the copyrighted work."

But even that doesn't entirely clear up the situation. If no rights holder can claim this "exclusive right to reproduce" in Australia, then it would seem that "shipping" copies from Australia would be a legal act, right up until the copy "hits" the US border. Exploring this hypothetical situation further, Hellman comes up with a list of "quantum copyright" possibilities.

So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:

1. Person copying, copy source, and copy destination all in US. (US law controls!)
2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
3. Person copying and copy source in US, copy destination in Australia.
4. Person copying and copy source in Australia, copy destination in US.
5. Person copying and copy destination in US, copy source in Australia.
6. Person copying and copy destination in Australia, copy source in US.
7. Person copying in US, copy source and copy destination in Australia.
8. Person copying in Australia, copy source and copy destination in US.

So, to sum it all up, magic 8-ball style: "Answer unclear. Ask again later." More narrowly, however, the exclusive rights granted to copyright holders would find most of these situations infringing. Any copy originating in the US would violate the reproduction right as Hellman points out. Any action initiating in the US would very likely violate the holder's distribution rights. For all intents and purposes, the hypothetical copier is only 100% in the clear in instance #2, where all copying starts and stops in Australia where Fitzgerald's book is public domain. In cases where the copy is "sent" to the US from Australia, it could very well fall under the the "right to reproduce," as US consumers would be limited to "authorized" copies from the rights holders. If some Australian set up a site offering downloads of public domain books that were still under copyright in the US, the rights to reproduce and distribute would likely be pointed out as the reason any US users availing themselves of this service are actually guilty of copyright infringement. If it's under copyright in the US, then the copyright owner's rights must be respected... at $7.80 a copy.

Certainly, copyright-centered entities like the MPAA would prefer to simply have our copyright laws exported to other countries with less stringent laws, especially any sections that extend the length of copyright protection and weaken fair use/fair dealing exceptions. Getting other nations to sync up with our copyright lengths would certainly eliminate these hypothetical discussions, along with many items in the public domain. Many aspects of current copyright laws were written years ago, long before the internet made "country of origin" a meaningless term and reproductions as simple as a right-click on a mouse. What it usually boils down to, after all the discussion, is this:

You could also be a cynic and say the only thing that matters is where the judge is sitting.

Much like fair use is often determined by a courtroom appearance, the "quantum" aspects of copyright are largely theoretical -- right up to the point that someone finds themselves at the other end of an infringement lawsuit.

Filed Under: australia, copyright, jurisdiction, public domain, us

Is The US IP System Really 'The Envy Of The World'?

from the no dept

Outgoing director of the US Patent and Trademark Office famously likes to claim that the US patent, trademark and copyright systems are the "envy of the world." Here's just one recent example:

The fact is, the explosion of innovation—and follow-on litigation—that we see across consumer electronics hardware and software is a direct reflection of how our patent system wires us for innovation. It's both natural and reasonable that in a fast-growing, competitive market, innovators would seek to protect their breakthroughs using our patent system. While our IP system is not perfect, it is the envy of the world. It’s the strongest in the world, by far. That strength encourages investment and provides assurances to entrepreneurs as they enter the U.S. and global markets. At the same time, our focus on quality in the patent examination process overall ensures that patents are granted for true innovation, and not otherwise.

There are all sorts of fallacies or outright questionable statements in that one paragraph, but the popular IP blog, IPKat, decided to put that "envy of the world" argument to the test... and found that its readers don't agree. At all.

Do you envy the US its patent system? (300 responses)

Yes, it's brilliant 19 (6%)
Maybe, if the America Invents Act works out 28 (9%)
No way! 253 (84%)

Do you envy the US its trade mark system? (170 responses)

Sure, it's great for owners, competitors and consumers 23 (13%)
I might if I could only understand the Lanham Act 41 (24%)
Never! It's convoluted, complex and contradictory 106 (62%)

Do you envy the US its copyright system? (162 responses)

You bet! Google could not have been created anywhere else 18 (11%)
I might if there was some consensus as to what it actually is 56 (34%)
Not in this life or for many years beyond it! 88 (54%)

Yes, this is an internet poll, so reasonably-sized grains of salt should be applied. However, it was taken on a popular IP focused blog, so you would think that if the US's system was really envied, the IP practitioners who read the blog would speak up positively.

It makes you wonder: are the US systems for copyright, patents and trademarks actually envied anywhere around the world, except, perhaps, by lawyers who might profit off them?

Filed Under: copyright, david kappos, envy, patents, trademark, us

Mmmmm, Mmmmm Monopoly! USPTO To Hit New Record In Granting Utility Patents

from the rarest-of-circumstances? dept

Another year... another record by the USPTO in locking up all sorts of ideas with patents. Yes, that's right, it's only early december and it's being reported that the USPTO will set a new record in utility patents, blasting through the old record, set (of course) just last year with 225,000 patents. Remember back in the early days of the patent system, when Thomas Jefferson ran the patent office despite thinking that patents might actually do more harm than good? One of the things he focused on was trying to avoid granting patents willy nilly since "abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful." I kinda miss that Patent Office. Oh yeah, when he ran the Patent Office, it granted.. 67 patents over two years.

Filed Under: patents, record, us, uspto

The US's Public Domain Class Of 2013

from the short-list dept

Every year, we talk about how January 1st is public domain day in many parts of the world, but thanks to constant copyright term extension, the US is left waiting and waiting and waiting -- kind of like the famous play by Samuel Beckett, which entered the public domain in many places around the world in 2011, but is still covered by copyright here.

The folks at the Public Domain Review have put together a nice list (and photo!) of the "Class of 2013": content creators whose works will be going into the public domain on January 1, 2013 in large parts of the world, including the EU, Brazil, Russia and many other places. To help out, I thought I'd put together the list of content creators whose works are entering the public domain in the US in 2013:

Yeah. It looks suspiciously like last year's list. And the year before that. And before that. And so on. Oh, and also... I hate to ruin the surprise, but next year's list? Pretty much the same. Year after that? Yeah, that too. For anyone who actually understands the value of the public domain in enriching and enhancing culture, the fact that the US -- at the behest of the entertainment industry, which has often mined the public domain for its own works -- isn't just shameful, it's downright despicable. We're stifling our own culture.

Filed Under: copyright, europe, public domain, us

White House: We Will Not Support An ITU Treaty That Blurs Telecom Infrastructure With The Info That Crosses Over It

from the good-for-them dept

While the US's position on the ITU discussions at the World Conference on International Telecommunications has been pretty clear from the beginning, to put an exclamation point on it, the White House put out a statement saying that it will not support an agreement that tries to expand the ITU's mandate beyond telecom infrastructure and into the world of what happens on that infrastructure. The key paragraph:

But we should not confuse telecommunications infrastructure with the information that traverses it. The global consensus for a free and open Internet is overwhelming. Millions in the United States and around the world have already added their voices to this conversation, and their position is clear: they do not want the WCIT to govern the Internet or legitimize more state control over online content. Our Administration could not agree more – and will not support a treaty that sets that kind of precedent.

This is the key point. Many in the ITU seem to want to blur the distinction between the infrastructure itself and the information that runs over it. They believe that their mandate over "telecommunications" includes the specific "communications" that run over those networks. That's a massive rewriting of history. Their mandate is supposed to be focused on the technological infrastructure, rather than how it is used.

Filed Under: internet, internet governance, itu, telecom, us, wcit

China Hails ITU Internet Takeover By Blowing Its Favorite Trumpet: Distrusting The US

from the one-way-of-looking-at-it dept

While there's been plenty of talk about the upcoming ITU process, the ITU keeps attempting to downplay what it's trying to do -- and insisting that Russia, China and other regimes aren't looking to use the process to clamp down on the internet. Of course, proposal leaks from Russia suggest otherwise. As for China, Dave Farber points us to an editorial in the People's Daily newspaper in China from back in August that argues that the ITU process is necessary to wrest control of the internet away from the US.

This indicated the U.S. decision to retain ultimate control over the global Internet, which enabled it to unilaterally close the Internet of another country. A suddenly paralyzed Internet would definitely cause huge social and economic losses to the country.

More and more countries are beginning to question the U.S. control over the world’s Internet as the international resource should be managed and supervised by all countries together. However, the United States has conducted a pre-emptive strike, and refused to give up control over the Internet in the name of protecting the resource. The refusal reflects its hegemonic mentality and double standards.

The United States controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the United States, leading to the U.S. hegemonic monopoly over the world’s Internet.

This is an exaggeration of reality. While ICANN has serious problems -- which we frequently discuss here -- that doesn't mean that dumping it entirely in favor of a ridiculously secretive and bureaucratic process like the ITU makes sense. The article goes on to cite the US apparently turning off the .iq domain for Iraq during the invasion in 2003. Of course, that's an interesting rewriting of history. The issue with the .iq domain wasn't quite as cut and dried as the editorial implies. First of all, .iq wasn't a widely used domain no matter what. But, more importantly, it was entirely managed and controlled by a guy in Texas who was accused of funding terrorists and eventually sentenced to 84 months in jail. It wasn't so much a case of the US government running to ICANN and saying shut down the domain, as it was a criminal investigation into separate issues that happened to scoop up the one guy who controlled the TLD. And, it should be noted that ICANN gave .iq back to the Iraqi government years ago.

This kind of stuff indicates the lengths to which the Chinese government seems willing to go to prop up the ITU process for taking over aspects of internet governance: they'll just lie and make up stories when the truth isn't particularly convenient.

Filed Under: china, itu, us
Companies: icann

US Steadfast In Its Stand For Publishers Against The Disabled

from the bad-news dept

We've talked a few times about how the US seems to be leading the charge to block a treaty that would increase the ability of blind and other disabled people to get around copyright restrictions to access certain works. The treaty has been in negotiations for ages -- and the US position has, at times, flip-flopped. However, now it seems firmly aligned with copyright maximalist lobbyists. The latest report from the negotiations is that publishers and the movie studios have convinced US negotiators to push back on this treaty:

The United State is playing a big major role, and led by David Kappos' USPTO, generally is aligned with the publishers in efforts to narrow the agreement and limit its benefits to persons with disabilities, and is increasingly isolated in its opposition to a decision that the nature of the "instrument" will be a treaty rather than a softer non-blinding recommendation or model law. One major objective of the US delegation is to exclude persons who are deaf. Another is to limit the exceptions to text, and exclude any audiovisual content or related rights. Both of these negotiating objectives are designed to keep the U.S. movie and television industry happy. The U.S. has also been seeking ways to support other publisher friendly provisions, even when they run counter to the robust exceptions found in U.S. law.

Siding with big studios and publishers over the best interests of the blind and the deaf? How nice...

Filed Under: blind, copyright, deaf, disabled, publishers, us, wipo