CRS Report Withheld By USTR Confirms That ACTA Language Is Quite Questionable

from the revealed dept

We're happy to announce that we've been able to get our hands on the -- until now -- secret Congressional Research Service analysis of ACTA. You can see it embedded below, and it shows that the language used by the USTR in ACTA has lots of weasel words that let them claim it doesn't impact US law, but the interpretations of the language could very much impact US law. First some background.

A few weeks back, we mentioned that KEI was appealing the fact that the USTR was refusing to release a Congressional Research Service report on the legality of ACTA, claiming that it couldn't release the report because it was controlled by Congress. However, there is little evidence to support that. Not surprisingly, the USTR's response to KEI's appeal was to again deny the FOIA request to release the report, claiming:

The [USTR FOIA Appeals] Committee undertook a comprehensive review of the circumstance of the creation of the document at issue and the conditions under which it was sent to USTR, including through statements provided by members of USTR's Office and Congressional Affairs and Office of Intellectual Property and Innovation. The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA.

What struck us as odd about the whole thing was why KEI was focused on the USTR, rather than Senator Wyden. So we asked Senator Wyden to release the report, and about an hour ago, his office sent us the CRS memo, in slightly redacted form. The redactions are around a specific issue relating to ongoing negotiations over the degree to which patents are covered by ACTA -- the one key sticking point in the remaining negations. The US wants to include a footnote that effectively lets it ignore a key point about patent injunctions, because US law has certain prohibitions on injunctions, and the current ACTA text suggests that all signatories would have to offer up injunctions as a possibility in those cases.

As you read through the document, however, what becomes clear is that nothing is very clear in ACTA, and there are all sorts of weasel words and poorly-defined aspects to the drafting. What that means is that it all depends on the interpretation. If certain sections are interpreted one way, then ACTA clearly conflicts with US law. If they're interpreted in a more permissive fashion, then the US can walk the tightrope and comply with ACTA without having to change US law. But the problem is that it's not at all clear. This leads ACTA supporters to be in a position to say, "well, it doesn't require changes to US law," and then not have to deal with the issue that, down the road, lobbyists (and other countries) will inevitably point to language in ACTA and push the US to change its laws in order to comply. That's the really nefarious part about all of this.

The memo also notes that while technically Congress is not supposed to be restrained by ACTA, the practical realities may be different:

Congress may not feel compelled to take into account the requirements of an agreement that it had no formal role in approving. On the other hand, it may well be that Members of Congress might be reluctant to consider legislative approaches that would alter federal law in a manner that might make the United States in default of its ACTA obligations. The seriousness of such a concern may turn on the extent to which the United States may be held accountable for ignoring its ACTA obligations, or how successful the United States is in convincing other ACTA Parties of its compliance with the ACTA commitments even with such legislation.

In other words, if the US can weasel its way around complaints from other countries and industry lobbyists, it might still be able to fix broken parts of copyright, trademark and patent law... but most folks in Congress probably don't want to bother with that fight. More simply: technically, ACTA probably doesn't constrain Congress, but the political reality is that it absolutely does constrain Congress. But we knew that already.

Most of the other concerns are specific to the language choices used in ACTA. For example, in this section, the CRS researchers note how the drafters try to distinguish rights from enforcement in ways that might not be reasonable or even possible:

Another initial provision in the draft tax declares: "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law." Note that this language refers to intellectual property rights (as opposed to remedies for violation of those rights). Thus, this provision allows a Party to have domestic laws that contain exceptions, limitations, and conditions concerning the "availability, acquisition, scope, and maintenance" of IPR. It does not, however, appear to apply to a Party's domestic laws that provide exceptions to the remedies that are available to intellectual property holders that seek to enforce their IPR. Yet it may be difficult in certain circumstances to draw a distinction between a Party's domestic laws that establish rights and those that provide remedies for violation of those rights; if the domestic law clearly concerns the latter, then this provision does not appear to be relevant. For example, a law that specifies that "injunctive relief is not available..." for certain acts of infringement, appears more clearly to be a limitation on available remedies. However, a law that specifies that "it is not an act of infringement to" perform a specific action could be considered a limitation on remedies, or it could also be regarded as an exception, limitation, or condition regarding the availability and scope of IPR.

Really, what becomes clear in all of this is just what a dreadful document ACTA is. It's vague in all sorts of important places, in order to give the USTR and ACTA supporters wiggle room to claim that it is in line with US law, but allow folks in other countries to claim that the US is not in line with ACTA. Agreeing to ACTA is a disaster in waiting. Even if it doesn't technically constrain Congress, it's going to tie us up in a series of ridiculous fights over compliance, and the pressure will clearly be on the US to interpret the provisions in ACTA in the most stringent ways (necessitating changes to US law) to avoid fights over whether or not we've lived up to our "international obligations."

Filed Under: acta, congress, crs, restrictions, ron wyden, ustr

Are Geographic Restrictions On Content Obsolete?

from the seems-like-it dept

I know that every time we embed a Hulu video here or link to another content site that has geographic restrictions, our comments light up with complaints. There is something just naturally frustrating about some internet company deciding I can't see a video because of where I happen to be sitting physically. There's obviously no technological reason for it, and all it serves to do is anger people. But, of course, the reason for it is that the content world's old way of doing things was to offer up separate licenses in separate geographies -- back when that made sense. On the internet it doesn't make technological sense. The problem, as Michael Geist is noting, is that it still appears to make business sense for companies selling those rights.

Geist is careful to point out that the business model of geographic licensing of content is old but not necessarily obsolete. I'm going to ask the next obvious question: aren't they obsolete? The only reason that geographic restrictions used to make sense was because you needed to do deals with local gatekeepers to make that content available and to promote it. But when you're dealing with content on the internet, that's no longer true. The borderless nature of the internet takes down those barriers. Businesses should be rejoicing that the old baggage and blockades and gatekeepers -- and all associated expenses -- are no longer necessary. They can now distribute their content worldwide with no additional hassle. That should be celebrated. But, of course, since business models were structured under those old systems where gatekeepers mattered, the content providers are addicted to that structure, and the revenue promises that come with it. However, it seems like only a matter of time until businesses start to recognize the sheer inefficiency of doing things that way, and stop wasting so much time with geographic restrictions on a platform where such restrictions make no sense.

Filed Under: business models, geography, licensing, restrictions

Even Senators Hated NBC Universal's Olympic Coverage

from the ouch dept

With NBC Universal already under a fair amount of scrutiny by the Senate, as it seeks to merge with Comcast, it seems that it's antiquated broadcast schedule of the recent Olympics isn't helping matters. Senator Herb Kohl apparently sent a letter to NBC Universal boss Jeff Zucker, asking him to explain why NBC Universal's Olympic coverage was so incredibly lame. More specifically, he questioned if NBC's incredibly restrictive online Olympics video (much more restricted than two years ago at the Beijing summer Olympics) is a preview of "what is to come with respect to TV programming shown on the Internet."

While it may be a bit of a stretch to connect the two, it does seem like particularly poor timing and bad strategy by NBC Universal officials. Just as they're trying to convince the Senate (and others) that of course their content will be widely available in a post-merger world, they thought it would make sense to massively restrict the content shown during the Olympics -- including requiring viewers to first prove they had cable TV access from certain cable providers? And no one at NBC Universal thought that the loud complaints all over the internet about the ridiculous process and restrictions might wake up someone in the Senate?

Filed Under: coverage, delays, herb kohl, jeff zucker, limitations, merger, olympics, real-time, restrictions
Companies: comcast, nbc universal

Debunking Reasons For ACTA Secrecy: Just Enforcement Doesn't Tell The Whole Story

from the open-things-up dept

We've had a series of posts debunking all of the bogus claims from supporters of ACTA and the current secrecy involved in the ACTA process -- such as how this secrecy is "normal" (no its not), how this is "just an executive agreement, not a treaty" (the difference is effectively meaningless) and how this can't change US law so there's nothing to worry about (even if it doesn't change US law directly, it can prevent fixing problems in the law, while putting pressure on legislators to change the law anyway). Well, here's another one, courtesy of the folks over at Public Knowledge.

One of the claims that's been made in defense of the "secrecy" around ACTA is that the agreement is really just about "enforcement," rather than any legal changes. While we've already questioned how true that claim really is, John Bergmayer, does a nice job explaining why we should be worried about an agreement on "enforcement" anyway: because the question of enforcement is meaningless compared to the actual procedure of enforcement. Bergmayer quotes Rep. John Dingell to make the point:

"I'll let you write the substance ... you let me write the procedure, and I'll screw you every time."

The fear here is that while ACTA might not technically change US law, it could easily change US procedures and policies on "enforcement" allowing the effective change in the law, without people even realizing it. He quotes Professor Thomas Main, saying:

"procedural reforms can have the effect of denying substantive rights without the transparency, safeguards and accountability that attend public and legislative decision-making."

And, indeed, this is what we've see in the leaked drafts of ACTA. While most (though, certainly not all) of the proposals that have been leaked don't necessarily include a direct change to US law, they often do subtly word things so that existing rights, safeguards and accountability are left out, just as Prof. Main warns. To make sure those subtle changes do not have serious impacts that let certain special interests (in the words of Rep. Dingell) "screw" the public, doesn't it make sense to reveal the contents of what's being negotiated?

Filed Under: acta, enforcement, laws, procedures, restrictions

Reuters, AP Refuse To Cover Cricket Matches Over Restrictive Press Accreditation Rules

from the but-football?-baseball? dept

Sports leagues around the world have been trying to put more and more restrictive rules on various journalists and news organizations when it comes to reporting on their events. In the US, both the NFL and the MLB have put ridiculous restrictions on what reporters can write about or post on their websites. While, technically, these leagues cannot stop news organizations from covering their events, they can restrict what kind of access they have. Of course, for basic coverage, when the events are televised, reporters could just as easily cover the event while watching it on TV. Still, it's been disappointing that the major news organizations have refused to stand up to the football and baseball leagues over this attempt to restrict their reporting.

Apparently, they only do that on sports that don't get as much attention (in the US, at least).

Last year, we wrote how the press was planning to boycott various cricket matches over similar attempts to limit reporting. And, once again, major news organizations like Reuters are proudly announcing that they will not be covering certain cricket matches due to the press policies. The Associated Press has announced similar plans, and says that the AFP is also refusing to cover the matches. At what point do these sports leagues realize that they're better off with press coverage than without?

Filed Under: australia, cricket, reporting, restrictions, sports

Even The Open Source Community Gets Overly Restrictive At Times

from the stop-worrying-about-the-freeloaders dept

Reader Brad sent in a fascinating post from a little while back by Steve Streeting, a software developer who created an open source 3D rendering engine called OGRE. In the post, Streeting describes his evolving view on open source licenses. He basically points out that that open source licensing -- the kind that forces anyone who uses the code to open up and contribute back their code -- is actually creating an unnecessary restriction on developers as well, and it often doesn't make sense to have such restrictions. It's really quite a fascinating post, that brings up a number of issues I hadn't really thought about too much. For example, he points out that the restrictions aren't very helpful for code, because the best code contributions are from those who are contributing code willingly anyway -- so the restrictions are meaningless for them. Separately, he points out that the restrictions on licenses, such as the LGPL, simply are too complex and too restrictive for some developers, and the end result is fewer developers, which is the last thing you should want:

It was at this point that I realised that my previous opinions about permissive licenses not providing enough safeguards against exploitation for an open source project were off-base. In practice, open source projects don't really need protection, because their best contributors are going to be there regardless (yes, I realise the GPL provides more protection to end users who want to get at the source code, that's not what I'm considering here). 'Freeloaders' -- people who use or modify the open source project for their own ends but give no code or community contribution back -- are always going to exist; even under the GPL it's easy to freeload, if you make your money from hosting services for example, and thus license choice has little impact on the scale (if not the nature) of the freeloading. Besides the annoyance of 'that guy took my work and made some money out of it' -- which you have to accept as an inevitable outcome of going open source, so stick to making proprietary software if that bugs you -- freeloaders have little negative effect on an open source project, and actually their use can contribute positively to [publicity for the project]. The key is to recognise that in practice you can really just ignore freeloaders, and instead concentrate on maximising the positive contributors in your community.

So, if we acknowledge that the people whose contributions we actually want are those who contribute voluntarily, regardless of license, we quickly come to the conclusion that all that really matters is the size of the community. It's a fair assumption that for a given project there is a relatively stable percentage of users who will choose to contribute back (the percentage itself varies per project, but is fairly stable per project in my experience), therefore the easiest way to increase your contributors is to just increase your user base. Forget about trying to coerce people into being 'good' members of the community, just trust that the percentage will be there and will track your overall numbers.

One way in which to attract more users is to make the licensing simpler and more easier to understand. Programmers hate legalese, and a simple, clear license is bound to be more attractive than our LGPL (with static link exclusion), plus OUL option. It's for this reason that from OGRE 1.7 we're switching to the MIT License.

I find this fascinating on a number of different levels. The argument he's making -- within the open source world -- pretty much mirrors the arguments we make to copyright maximalists: that focusing so much on "freeloaders" is pointless, they're going to exist. Instead, focus on building your overall community, adding value, and setting up a model that works for those people. It's amazing to think that the excess restrictions in some open source licenses creates something of a parallel world, with parallel issues.

Once again, it all seems to come down to the same thing: restricting what others do is rarely a good strategy. Let people do what they want, and focus on providing the most value for the largest community that wants to be a part of what you're doing.

Filed Under: ogre, open source, restrictions, steve streeting

If Your Business Model Requires An Overly Restrictive Contracts... You Have No Real Business Model

from the that's-not-satisfying-customers dept

We've discussed in the past how consumers are gaining more power over companies these days (and how that's a good thing), and that leads to a separate, but also interesting observation: if your business model relies on denying customers what they want -- such as through the use of overly restrictive contracts -- your business model is in trouble. Thomas O'Toole has a good discussion about some recent lawsuits involving overly restrictive contracts that try (and usually fail) to prevent customers from doing what they really want to do. First, it discusses the recent attempt by MediaFire to stop the distribution of a Firefox extension that routes around MediaFire's ad-driven business model. Second, it discusses a legal fight between Virgin Mobile and MetroPCS over whether or not MetroPCS can legally reprogram Virgin Mobile phones to work on its network.

The thing that shines through in both instances, however, is that they involved companies who didn't rely on providing the best product for consumers, enabling them to do what they wanted -- but instead, relied on contracts with overly restrictive terms designed to prevent customers from doing what they want. As far as I'm concerned, in most cases, business models like that won't be long for this world. Consumers are increasingly fed up with bogus legal restrictions that try to prevent what the technology clearly allows. If you're trying to create a business model, the second you consider putting in ideas that inherently limit your consumers from doing what they want, you're asking for trouble. A smart business model enables more customers to do what they want, and does so in a way that makes everyone better off. While there are still companies who can get away with anti-consumer business models enforced by overly restrict contracts, it's not a long term strategy for success.

Filed Under: business models, restrictions

Gannett And AP Tell SEC They Won't Sign Up For Restricted Reporting

from the pushback dept

Well, we've already joked about how the Associated Press seems to have a bit of a double standard in complaining about the Southeastern Conference's (SEC) restrictions on journalistic activity during SEC sporting events, but it's nice to see the Associated Press and the Gannett chain of newspapers both take a stand and tell the SEC that it simply won't sign the agreement. It's not entirely clear what happens next. The SEC is likely to change the policies and try to come to some sort of compromise, but I'd love to see news organizations get a backbone and tell such sports leagues that there's no compromise and no deal to be had. They're reporters and they'll report as they see fit.

Filed Under: journalism, restrictions, southeastern conference
Companies: associated press, gannett, sec

The AP Not So Happy About Reporting Restrictions When It Goes In The Other Direction

from the good-for-us,-not-for-them dept

Well, this is amusing. Remember how the AP is trying to limit how others can report on or make use of AP news? Right. Hold that thought. Now remember how the Southeastern Conference (SEC) is trying to restrict how both the fans and reporters can report on games? Well, you know what's coming next. Stephen points out that the AP is now protesting the SEC's policies. Apparently, the AP is only a fan of such reporting restrictions when it impacts others rather than themselves. The full letter (pdf) sent to the SEC by the AP and some other reporting groups takes issue with many of the restrictions, and apparently doesn't notice the irony in the fact that the AP is trying to restrict others in much the same way.

Filed Under: reporting, restrictions, sec
Companies: associated press

Newspaper Stands Up For Its Right To Report Sporting Events Without Restrictions

from the good-going dept

Last year, we were dismayed that newspapers seemed to be willing to agree to certain rules placed on how they could report on sporting events, as per the National Football League and Major League Baseball. In both cases, these involved significant restrictions on what and how they could report. At the time, we suggested that newspapers stop accepting the restrictions, even if it meant they were no longer granted a press pass -- but every newspaper we know of gave in. Covering baseball and football was just too important -- even though these newspapers could easily still report on games without the benefit of a press pass. You don't need a press pass to report on an event.

That said, while it's on a much smaller scale, it's nice to see the Redding Record Searchlight stop covering the local rodeo over this same issue (found via Romenesko). The rodeo decided that it would only give press passes to those who were "willing to work with us," which meant covering things in a way that was favorable to the rodeo. Good for the Redding Record Searchlight. Hopefully some other newspapers will get up enough courage to tell other (bigger) sports what they can do with their restrictions as well.

Filed Under: journalism, redding, reporting, restrictions, rodeo, sports