Self-Regulation: Should Online Companies Police The Internet?

from the who-needs-evidence? dept

For anyone in Belgium on Wednesday, here's an afternoon event open to all that might be of interest: "'Self'-regulation: Should online companies police the internet?" If you can't make it to the European Parliament in Brussels, there's also a live video stream available.

It turns out that the seminar has an interesting connection with Techdirt. Back in September, we wrote about a proposed law in Italy that might lead to people losing their Internet connection after just one accusation of unauthorized sharing. Somebody who noticed this article was Marietje Schaake, the Member of the European Parliament who has organized the seminar to discuss self-regulation. She even mentioned the fact in a written question to European Commission:

Via the press, it has come to my attention that the Italian Parliament is currently considering a draft law under which Internet users may be disconnected and blacklisted if they have been accused of an intellectual property infringement. The accusation does not necessarily need to originate from the rights holder of the work in question.

The draft law, as proposed, violates several EC laws and principles, including:

— Article 1(3a) of the telecoms package, amending Framework Directive 2002/21/EC,
— Article 6 ECHR concerning a fair trial,
— Article 10 ECHR concerning the freedom to seek, receive and impart information,
— the principles of necessity and proportionality, and
— depending on implementation, the intermediary liability exemptions in the e-Commerce Directive 2000/31/EC.

1. Does the Commission agree that the Italian proposal is in violation of EC laws and principles? If not, why not?

2. What concrete action will the Commission undertake to put a halt to measures being implemented by Member States whereby citizens may be disconnected from the Internet?

The Commission has now replied [pdf], although its answer is not particularly helpful:

The Commission has not yet received the notification of the draft law to which the Honourable Member refers.

However, it does add the following interesting comment:

limitations of end-users' access and use of electronic communications networks must be subject to adequate procedural safeguards, which ensures that these cannot be enacted on the basis of mere accusations alone.

That provides a clue as to why the copyright industries are so keen for online companies to "police" themselves in Europe: it avoids the need for accusations - or proof - altogether.

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Filed Under: brussels, internet, marietje schaake, regulation

SOPA And Its Broad Regulation Of VPNs, Proxies And Other Important Tools

from the is-this-what-we-really-want? dept

There are so many scary parts to SOPA, it's taking some time to pull out all the pieces. One of the scarier parts of SOPA that isn't found in PROTECT IP, is the addition of a form of an "anti-circumvention" rule, which makes it illegal to try to get around any blockade on the US government's blacklist. Like the DMCA's dreadful anti-circumvention clause, this one is also vague and overly broad -- and would create problems for all sorts of legal services. The EFF is listing out some perfectly legal services that would suddenly be in legal crosshairs:

In this new bill, Hollywood has expanded its censorship ambitions. No longer content to just blacklist entries in the Domain Name System, this version targets software developers and distributors as well. It allows the Attorney General (doing Hollywood or trademark holders' bidding) to go after more or less anyone who provides or offers a product or service that could be used to get around DNS blacklisting orders. This language is clearly aimed at Mozilla, which took a principled stand in refusing to assist the Department of Homeland Security's efforts to censor the domain name system, but we are also concerned that it could affect the open source community, internet innovation, and software freedom more broadly:

• Do you write or distribute VPN, proxy, privacy or anonymization software? You might have to build in a censorship mechanism — or find yourself in a legal fight with the United States Attorney General.
• Even some of the most fundamental and widely used Internet security software, such as SSH, includes built-in proxy functionality. This kind of software is installed on hundreds of millions of computers, and is an indispensable tool for systems administration professionals, but it could easily become a target for censorship orders under the new bill.
• Do you work with or distribute zone files for gTLDs? Want to keep them accurate?  Too bad — Hollywood might argue that if you provide a complete (i.e., uncensored) list, you are illegally helping people bypass SOPA orders. 
• Want to write a client-side DNSSEC resolver that uses multiple servers until it finds a valid signed entry? Again, you could be in a fight with the U.S. Attorney General.

This is how the Great Firewall of China works as well -- by threatening service providers who don't help block with the idea that they might be liable if they don't figure out "some way" to block things. Then everyone scrambles to censor well beyond what is required under the law, just to avoid liability. The end result of this will make the internet significantly less secure. VPN providers will go out of business or be severely limited. This is exactly the opposite of the direction we should be moving in.

Filed Under: copyright, proxy, regulation, sopa, vpn

Michele Bachmann Comes Out Against PROTECT IP

from the interesting-developments dept

Whatever you might think of Rep. Michele Bachmann, she certainly gets attention, and as a bunch of folks have just sent over, she's just come out against PROTECT IP. In a letter responding to someone asking her opinion, she stated:

Thank you for taking the time to contact me with your opposition to S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act. As your Representative for the 6th district of Minnesota, your views are very important to me and I appreciate hearing from you.

While I understand the importance of safeguarding Americans' intellectual property rights, I have serious concerns about government getting involved in regulation of the internet, and about ambiguities in this legislation which could lead to an explosion of destructive, innovation-stalling lawsuits.

This is likely as a result of recent Tea Party concerns about the bill as well, since Bachmann is often associated with the Tea Party.

The interesting bit here is that it certainly sets things up for some more vocal opposition of PROTECT IP. Supporters of the bill had been arguing that it would just be "the usual suspects" who were against PROTECT IP, and would talk about how they had bipartisan support for the bill. But we're seeing more and more people in the House begin to express concerns about the bill... and do so on both sides of the aisle. Intellectual property issues, for better of for worse (and I think, for better) have never been a really partisan issue, and I do hope it stays that way, but Bachmann's opposition puts up another roadblock in place to getting PROTECT IP passed. We'd heard that the House version of the bill was supposed to drop today... (after a couple months of being told "in the next two weeks"), but then late yesterday heard that it was pushed back again. It wouldn't be surprising to find out that Bachmann taking a position on it is part of the delay. At the very least, this is going to mean that PROTECT IP won't be able to sail through as supporters expected, and (most importantly) there is likely to be a lot more public scrutiny of a bill that is nothing but a favor to the MPAA/RIAA.

In the end it's good news that people elected officials are increasingly realizing that IP issues aren't as simple as has been put forth by the entertainment industry for so long. The fact that entrepreneurs, venture capitalists, and top technologists have already vocally expressed their concerns about PROTECT IP hindering innovation, it's nice to see that these voices are starting to be heard. Maybe, just once, the entertainment industry won't get away with a bill to prop up their failing business models without everyone else just letting it happen.

Filed Under: censorship, copyright, internet, michele bachmann, protect ip, regulation

The Industrial Governmental Complex Paradox

from the foxes-guarding-the-henhouse dept

Filed Under: government, regulation

Canada's Failure To Actually Enforce Its Net Neutrality Rules Shows Why Focusing On Regulation Is Missing The Point

from the competition-is-the-thing dept

For many, many years we've pointed out that the debate over "network neutrality" in the US was a red herring. The discussions around net neutrality are really just a symptom of the real problem: that we lack true competition in the broadband market. Furthermore, we've noted that any attempt to put in place net neutrality regulations would likely be a failure, because of the lobbying clout of the likes of AT&T and others. The end result would be incredibly favorable to the telcos, not to the public and, in fact, we've seen glimpses of that happening already.

Adding another datapoint (or, several) to this debate is Michael Geist, who got access to information about how Canadian regulators enforced that country's net neutrality rules and discovered that regulators there basically don't enforce a damn thing. They more or less let the telcos do what they want.

Although the CRTC has not publicly disclosed details on net neutrality complaints and the resulting investigations, I recently filed an Access to Information request to learn more about what has been taking place behind the scenes. A review of hundreds of pages of documents discloses that virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process. In fact, the CRTC has frequently dismissed complaints as being outside of the scope of the policy, lacking in evidence, or sided with Internet provider practices. Rogers Communications has been the target of nearly half of all cases opened in response to net neutrality complaints. In recent months, there have been multiple complaints arising from bandwidth throttling of World of Warcraft, a popular multi-player online game. Rogers initially denied any wrongdoing, only to later acknowledge that there was a problem. The company promised to address the issue, though no consequences arose and it was not forced to publicly disclose the issue.

Once again, the problem is not with net neutrality, but with a lack of competition. If you had real competition, people would choose to go with more neutral providers, forcing the market to follow. It's the lack of competition that lets telcos push for less than neutral solutions, and it's the regulatory capture that makes any attempt to legislate neutrality next to useless.

Filed Under: canada, competition, enforcement, net neutrality, regulation

Why Propping Up Old Business Models Is Bad For The Economy And Bad For Innovation

from the too-big-to-fail? dept

Certainly a common enough theme around these parts is the effort of old companies with legacy business models to do everything in their power (often through regulatory capture and other political tricks) to retain their market position by regulating in a specific way. This means regulations that empower legacy firms specifically, or by outlawing and/or limiting disruptive upstarts. All too often, these firms succeed in convincing politicians (and even the press and some portion of the public) that their own potential failures mean the failure of a larger industry as a whole. And yet, that's almost never the case. In fact, the protectionism often does the exact opposite of that, in that it prevents the necessary innovations from flourishing, thereby limiting an industry and, at times, making it uncompetitive with other industries in other countries.

A recent Planet Money episode discussed this in talking to economist Tim Harford about his new book, Adapt, which talks about how important failure is for economic growth and innovation. This should intuitively make sense for many regular Techdirt readers, since we make this point, in a different manner, quite frequently.

In the Planet Money episode, they do a "walking tour of failure in New York," looking at things like the Gutenberg bible, which many credit with kicking off a revolution in printing, but was a giant commercial failure for Johannes Gutenberg, who put up the money for it, but couldn't find the buyers (yes, for the first printed edition of the best selling book of all time). Elsewhere, they talk about the failure of Woolworth, which had been an early retail innovator, being one of the first retailers to realize that putting goods out where customers could see them and touch them, rather than cramming it all behind a counter, was a good idea. But, eventually, others out-innovated Woolworth as well. In many ways, this reminds me of the book Copycats by Oded Shenkar, which we spoke about last year and which had plenty of similar stories.

Some of the discussion also reminded me of our discussion on the series of economic studies that have shown that people changing jobs is often a key indicator of economic growth because it helps the spread of ideas and innovations faster across the economy. While that might not seem to directly impact the question of "failure," Harford mentions the research of economist Randall Morck, who found that (and I'm paraphrasing from Harford's brief summary of Morck's work) in places where there is greater turnover of big companies failing and upstarts taking their place, there is greater economic growth. I have to admit being unaware of Morck's work previously, but now have it on my list to dig in and check it out. I can definitely see a connection here.

Big companies often get stagnant, focusing less on innovation and more on protecting a market. In the Clayton Christensen world of the Innovator's Dilemma, they focus on incremental innovations and market protectionism. And, as Andy Kessler noted in his most recent book, the innovators, who get around those things and unleash value, are often derided as thieves and criminals for undermining established business models. But what comes out of those upstart efforts is, generally, much better for the consumer. And, on top of that, the collapse of those big firms often allows many of the folks, who did have good ideas and knowledge within those firms, to spread out and to join the more innovative upstarts, which will actually implement and execute on those good ideas, rather than be stymied by bosses who don't want to undercut the old business models.

This is why we should always be wary of efforts by politicians to protect jobs, companies, industries and business models. These efforts may come from a reasonable place -- in the belief that it's for the best to "protect" such a large company. But history has shown over and over again the value of creative destruction and disruptive innovation. While it may take down old legacy players, what rises in its place is almost always better for everyone.

Filed Under: business models, creative destruction, failure, innovation, regulation

Copyright Czar Agrees That The Gov't Should Let Business Models Decide Winners, Rather Than Legislation

from the time-to-walk-the-walk dept

While I certainly have my disagreements on a variety of points with US Intellectual Property Enforcement Coordinator Victoria Espinel, I will say that she's always been open to talking about the issues (unlike many others). She's also worked hard to really listen to people on all sides of the debate around intellectual property, and from what I can tell, take most of their opinions quite seriously, rather than just brushing them off. While I disagree with where she's ended up on an awful lot of issues, I respect her willingness to listen, and still have high hopes that she's coming around to realizing that strict enforcement often isn't the best answer. In the past, she's specifically reached out to us to discuss different business models and different ways that people can make money without relying on intellectual property, and it appears that she's been thinking even more about that lately. In a talk at the World Copyright Summit in Brussels, she made it clear that a lot of the issues can be taken care of through business model innovation, rather than legislation:

"The U.S. government doesn't need to pick winners and losers and the last thing we should think about doing is messing up the Internet with inappropriate regulation," she told the World Copyright Summit in Brussels.

She also talked up the value of new services, including various "cloud" services from Amazon, Google and Apple (which is interesting, since the record labels still seem to be hinting that Amazon and Google's services may not be legal, in their minds).

So, kudos to Espinel for making such a statement.

That said, it would be nice if we could see a bit more walking the walk, beyond just talking the talk. Espinel has certainly had a role to play in the PROTECT IP Act, which many people are warning could "mess up the internet," through its messing with DNS. On top of that, Espinel was also the driving force behind the new bill we recently spoke about that could make embedding and linking to infringing material a felony by extending the coverage of criminal copyright law to include "public performances." This sort of law does lead to the government picking winners and losers, and is totally unnecessary.

The focus really should be on encouraging the embrace of new business models, rather than ramping up enforcement. The recent SSRC study highlighted clearly the fallacy of ramping up enforcement as a means of dealing with infringement, as it simply doesn't work and has massive unintended consequences. Hopefully, Espinel will begin moving away from pushing new legislation like these recent efforts, and really will focus on helping content creators and others in the industry to move towards smart new business models instead.

Filed Under: business models, ip, regulation, unintended consequences, victoria espinel

Hungarian Media Puts Up Blank Pages To Protest Censorship Bill

from the good-for-them dept

We noted that some media publications in Hungary were considering a "media blackout" to protest new laws that would greatly increase government control over the media, by forcing the media to reveal sources and threatening fines if the government felt that coverage wasn't "balanced." While we doubted that such a protest would have much of an impact, it does appear that many of the major media properties put up blank pages on their websites to protest the law. And now we'll see whether or not it has any impact at all...

Filed Under: free speech, hungary, journalism, regulation

How Involved Should The Government Be In Protecting Online Privacy?

from the hands-on,-hands-off dept

The Economist is having one of its regular debates, this time on the question of whether or not governments should do more to protect online privacy. Speaking for the motion that government should do more is Marc Rotenberg of EPIC, while arguing that there are better ways to protect your privacy than expecting your government to help you is Jim Harper from the Cato Institute. Right now more people are siding with Rotenberg, but it seems like a classic "oh, somebody has to protect me!" sort of response. Harper's arguments make a lot more sense to me, with the key point being: do you really trust the government to protect your privacy?

The American government, like others around the world, is a voracious information collector. It facilitates and promotes private-sector tracking and surveillance. It skirts and sometimes violates laws intended to restrain its snooping, and it cannot be held accountable when it does.

This does not seem like the kind of institution one would turn to for privacy protection. "Independent privacy agencies" and government bodies like the tiny, well-meaning American Federal Trade Commission do not tip the balance the other way.

Rotenberg responds that individuals really can't do much in response, and uses the example of Google Buzz's privacy screwup as an example. But, the response to that sort of proves Harper's point rather than Rotenberg's. Right after Google screwed up with the Buzz launch, in a manner that caused serious privacy concerns, the public and the press responded within hours, calling out Google for what it had done, and forcing Google to backtrack almost immediately and admit that it had screwed up. What more could the government have done? If it was solely up to the government, there would have been a months (years?) long investigation, and finally some sort of wrist-slap and a fine. The public response to Google's misstep and the concerns that raised among many people about their privacy in using Google seemed to function fine, and should (one hopes) cause Google to think a lot more carefully before making a similar mistake in the future.

Either way, as with all of the Economist's debates, there's a lot of interesting discussion going on, not just between the two main participants, but in the discussion section as well.

Filed Under: debates, government, jim harper, marc rotenberg, privacy, regulation

Just Because A Site Has A Privacy Policy, Doesn't Mean It Will Keep Your Data Private

from the that's-how-it-works dept

Last week there was a fair amount of coverage of the fact that Canadian regulatory agency, CRTC, had revealed private data on its website. That story, by itself, is interesting enough, but the followup from the CRTC was even more interesting. It claimed that since the CRTC's privacy policy stated that any data you gave it was a part of the public record, it was fine:

Note that all information you provide as part of a public process, except information granted confidentiality, whether sent by postal mail, facsimile, e-mail or through the Commission's website at www.crtc.gc.ca, becomes part of a publicly accessible file and will be posted on the Commission's website. This information includes your personal information, such as your full name, e-mail address, postal/street address, telephone and facsimile number(s), and any other personal information you provide.

Fair enough, right? After all, the privacy policy states right out that the data will be revealed. Except... as we've noted in the past, most people falsely believe that if a site has any privacy policy, it means their data will be safe. This situation highlights this exactly. Most people assumed that the existence of a privacy policy itself meant the data would be kept private -- even though the policy itself says otherwise. Most people never bother to read the policy, and assume privacy policy = privacy. The truth, of course, was that the CRTC's "privacy policy" was actually a "non-privacy policy," but most people had no idea.

Filed Under: canada, privacy, regulation
Companies: crtc