Chamber Of Commerce, Main Lobbyists Behind SOPA, Suddenly Wooing Silicon Valley

from the good-luck-with-that dept

The US Chamber of Commerce doesn't have a particularly good reputation among innovators for a very good reason. It's the epitome of protecting legacy players from innovation, using backroom lobbying and dealmaking, and representing the interests of the highest bidder. While it trades off its name -- and the fact that some people think it's actually a part of the US government, rather than an extremist lobbying group -- its positions are generally considered problematic to actual innovators that are driving the "commerce" of tomorrow. The US Chamber was the main outside lobbying group (beyond the MPAA) that was behind SOPA and PIPA, and was a major voice pushing completely ridiculously bogus "facts" about the evils of "IP theft" and "rogue sites."

While some big tech companies were members, the relationships have frayed over the past few years. Apple dumped the Chamber over its anti-science position on climate change. Yahoo dumped its membership because of the US Chamber's position on SOPA and PIPA. While some other big players, including Google have made noises about dropping out, they haven't yet done so. But, smaller startups and innovators know the Chamber's reputation, and are staying away for good reason.

Perhaps realizing that relying on Hollywood to keep paying for lobbying powers going forward isn't the best idea, the Chamber has apparently decided to start wooing Silicon Valley, opening an office here and sending one of its top execs to try to convince entrepreneurs and venture capitalists that they need to join the Chamber. As the WSJ article notes, this is a long shot at best. The US Chamber of Commerce's position on a whole lot of things is antithetical to nearly everything entrepreneurs in Silicon Valley stand for. The USCoC is about using politics to kill off competition and let a few top businesses collect more of the pie. Silicon Valley is about trying to innovate and expand the pie, even if there's lots of competition.

And, really, just the fact that the Chamber of Commerce still runs its laughably bogus propagandist Global IP Center, which does nothing but push for greater and greater intellectual property maximalism, shows how out of touch it is with the innovation community. I'm sure they realize that they backed the wrong horse on SOPA, but it's not like everyone in Silicon Valley is going to be fooled by their name.

Filed Under: copyright, crony capitalism, lobbying, politics, silicon valley, sopa, tech
Companies: us chamber of commerce

The Rebranding Of SOPA: Now Called 'Notice And Staydown'

from the catchy-and-stupid dept

On Thursday morning, the House Judiciary Committee held its latest in a long series of hearings concerning potential copyright reform -- sometimes referred to as "the Next Great Copyright Act" after the Copyright Office kicked off the process with a talk on that topic (I'd quibble with the word "great" in there given how things are going so far). The latest hearing focused on Section 512 of the DMCA, better known as the "notice and takedown" provisions, or, more broadly, as the "safe harbor" provisions, which (mostly) protect service providers from being held liable for infringement done by their users. You've heard all of the arguments concerning this on both sides before -- and we had a post describing 5 myths likely to come up during the hearings (which did not disappoint). If you missed it, you can live through the torture below: Or, if reading is your thing, Professor Rebecca Tushnet did her usual amazing job of taking insanely detailed notes of both the speechifying section and the Q&A section. There's a lot to cover, so we're going to break it down into a few different posts. This one is going to focus on the catchy phrase that came up repeatedly throughout the hearings: the idea that rather than the "notice and takedown" provision we have today, there should be a "notice and staydown." While mentioned repeatedly during the hearing, the concept was also outlined by two of the more maximalist (and clueless) defenders of extreme copyright law, Reps. Judy Chu and Tom Marino, in an opinion piece pushing for such a "notice and staydown" concept.

The idea is, more or less, that if a site receives a takedown notice concerning a particular copy of a work, it should then automatically delete all copies of that work and, more importantly, block that work from ever being uploaded again. This may sound good if you're not very knowledgeable about (a) technology and (b) copyright law. But if you understand either, or both, you quickly realize this is a really, really stupid solution that won't work and will have all sorts of dangerous unintended consequences that harm both creativity and the wider internet itself.

First, as was pointed out in the 5 myths piece, content itself is not illegal. It's actions concerning a piece of content. So, by doing a notice and staydown, you're guaranteeing that perfectly legitimate uses -- including both licensed uses and fair uses -- get blocked as well. That's because to determine if something is infringing, you have to view it in the full context. No matter how much some copyright maximalists want to believe that copyright is a strict liability law, it is not. The very same content may be infringing in some cases and not infringing in others. Not checking the context of each use would clearly block forms of perfectly legitimate expression. That's a big problem.

Second, and perhaps even bigger, is the fact that such a law would more or less lock in a few big players, like YouTube, and effectively kill the chance of any startup or entrepreneur to innovate and offer a better solution. Throughout the hearing, you hear people refer to Google's ContentID system -- which takes fingerprints of audio and video works and matches new uploads against it -- as an example of a proactive system "done right." Except, that system cost Google somewhere around $50 or $60 million to build. No startup can replicate that. And, even then, if you ask plenty of regular YouTube users, ContentID is really, really bad. It kills off fair use work all the time, it creates tremendous problems for legitimate and licensed users of content who suddenly find their content pulled and strikes on their account. It more or less proves that even if you have all the money in the world, no one can yet build a fingerprinting system that is particularly accurate.

If such a rule did get put in place, however, it would basically just guarantee that the few big players who could afford both the technology and the legal liability/insurance over the inevitable lawsuits, would be able to continue hosting user generated content. That's more or less ceding much of the internet to Google and Facebook. Considering how often copyright maximalists like to attack big companies like Google for not "sharing the wealth" or "doing their part," it's absolutely ridiculous that their biggest suggestion is one that would effectively give the big internet players more power and control.

The reality of the situation is that "notice and staydown" is really just SOPA 2.0 in disguise. The whole goal of SOPA was to basically to shift the issue of copyright infringement to the tech industry from the MPAA/RIAA. The idea was that if you add liability to the tech players, then it would magically force the tech companies to figure out a way to "clean up" infringement (leaving aside all the collateral damage). That's the same thing with "notice and staydown." The real issue is trying to shift the liability burden to tech companies.

It's the same story over and over again. The business model that the legacy players used to rely on has melted away in the age of the internet. Rather than truly adapt and change, they just get jealous of successful tech companies, and think that those companies somehow "owe" them money. And the best way to legally do that is to get politicians to magically place legal liability on those companies, so they have to pay up. Notice and staydown has nothing to do with actually stopping copyright infringement. It's about taking the burden off of the legacy players, easing the need for them to adapt and change, while trying to force big tech companies to pay up. The irony, of course, is that in the process it would harm much needed innovation from startups and entrepreneurs (the companies that the content creators really need the most) and lock in bigger, more powerful internet players.

Filed Under: 512, content id, dmca, judy chu, notice and staydown, notice and takedown, safe harbors, sopa, tom marino

MPAA Shifts Its Funding Efforts To Republicans After SOPA Defeat

from the but-of-course dept

You may recall that, as SOPA/PIPA were in their final death throes, MPAA boss Chris Dodd made a significant political faux pas in flat out warning politicians that if they refused to stay bought, the MPAA might not keep funding them:

"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake. Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake,"

Historically, of course, it has always been the Democrats that Hollywood has backed the most. While there are some high profile exceptions, Hollywood is a Democratic town. And, of course, with the Democrats failing to give Hollywood its desired censorship tool, the MPAA has apparently shifted strategies and has ramped up its funding of Republicans (possible paywall, depending on where you visit from):

Last year, the MPAA replaced its longtime lead lobbying firm, considered to be close with Democrats, with a lobbyist with ties to key GOP lawmakers. Its political-action committee now gives more donations to Republicans than Democrats. And it has sent money to a GOP super PAC, a conservative antitax entity and a business lobby helping Republicans in the 2014 elections.

Of course, this isn't so much the end result of Dodd's promise, rather it appears to be the MPAA recognizing that the party that bailed first (and most loudly) on SOPA and PIPA... were the Republicans, who have begun showing sparks that suggest that they may break from the bipartisan support for copyright maximalism.

While it's easy to be cynical about the MPAA here, it's more likely that this is all by design by Congress itself. For all the belief that lobbyists drive the agenda in Congress via money, when you dig down, you realize it's often the opposite, with the politicians themselves effectively extorting money from lobbyists by threatening to push certain laws.

In fact, right before SOPA blew up, a cynical, but knowledgeable (and all too prescient) friend of mine pointed out that the whole point of SOPA/PIPA was to pit two "rich" industries -- tech and Hollywood -- against each other to make donations rain from the sky. As this friend pointed out, for years, Congress would pit two other "rich" industries -- radio broadcasters and the recording industry -- against each other by pushing a performance rights bill, and both sides would donate heavily to various candidates in support of or against it. However, by 2010, it was quickly becoming clear that neither the radio industry, nor the recording industry were going to continue being huge successful industries with lots of money to throw around lobbying. So, folks on the Judiciary Committee looked around and sought a bill that would get the tech industry and Hollywood all riled up to start donating. It didn't much matter if the bills passed or not -- just that people got angry.

And that's more or less what happened.

And, now the MPAA is raining dollars on candidates it hasn't in the past:

In 2010, MPAA had a budget of about $50 million, down from $70 million in 2008, according to tax forms. In 2012, the last year for which tax forms are available, MPAA's budget was back to nearly $70 million....

The fastest-growing part of the MPAA budget is donations to interest groups and political organizations. It made $2.5 million in grants to third-party groups in 2012, up from just $120,000 in 2009. Many were routed to nonpolitical organizations that share Hollywood's interest in copyright protections or lower taxes. About $600,000 went to organizations that play a more political role.

MPAA gave $75,000 to the U.S. Chamber of Commerce, which is a top supporter of Republican candidates for Congress; $100,000 to Americans for Tax Reform, the antitax group run by conservative advocate Grover Norquist ; $25,000 to the large pro-Republican super PAC American Action Network; and $20,000 to Let Freedom Ring, whose mission is to "counter the attacks of anti-conservative groups," according to its website.

Cynical or not, if the plan all along with SOPA/PIPA was basically a fundraising plan for Congress, well, mission accomplished.

Filed Under: chris dodd, pipa, republican party, sopa
Companies: mpaa

NY Times Unimpressed With Any Online Protest That Doesn't Rattle The Earth's Very Core

from the you're-not-helping dept

As we recently announced and participated in, a group of websites, companies, consumer advocacy groups and digital rights organizations all joined forces for a day of action last Tuesday against mass surveillance. That protest, dedicated to the memory of Aaron Swartz, involved participants and websites running banners that urged visitors to head over to the protest website and contact their representatives. An underlying goal was to harness some of the outrage against SOPA/PIPA and direct it toward the NSA's ongoing surveillance abuses, since online protest have been proven to help move the needle, even if they can't all be on the scale of SOPA.

Not everybody was impressed. Because the NSA and friends didn't immediately admit fault and declare an end to all surveillance before crying a lot, launching balloons and committing coordinated seppuku on the steps of the Capitol building, Nicole Perlroth at the NY Times took to penning a slightly-snotty article strongly suggesting the effort was a waste of time and "barely registered":

"...the protest on Tuesday barely registered. Wikipedia did not participate. Reddit — which went offline for 12 hours during the protests two years ago — added an inconspicuous banner to its homepage. Sites like Tumblr, Mozilla and DuckDuckGo, which were listed as organizers, did not include the banner on their homepages. The most vocal protesters were the usual suspects: activist groups like the Electronic Frontier Foundation, the American Civil Liberties Union, Amnesty International and Greenpeace."

Apparently because the "usual suspects" like the EFF are always saying lot of weird stuff, there wasn't much point in paying attention to them (or something). Perlroth also implies that if large companies like Google and Wikipedia aren't going to loudly participate in your online protests, you might as well go home and cry in your pudding, because as we've seen all throughout history, it's impossible to enact meaningful social change without the help of a large corporate donor.

Some of the folks more closely associated with the protest didn't agree, like Sina Khanifar, who helped coordinate the campaign. Khanifar points out in a blog post that Perlroth's definition of "barely registering" could use some fine tuning:

"I'm not sure how 80k calls and over 500k emails counts as "barely registering." That's not to mention over 400k shares on Facebook, and another 100k on Twitter and Google Plus. And over 200 million page views of the banner. Compare Tuesday with the lead-up to the vote on Rep. Amash’s bill to defund NSA’s call records program. In two days about 15,000 calls were made through DefundTheNSA.com. Staffers reported that their phones rang heavily in support of the bill."

Khanifar rather amusingly picks apart numerous other problems with Perlroth's article, like the claim there was no substantive discussion on Reddit (there were roughly 7,000 comments, and Redditors are busy organizing the next wave) and the argument that participants Tumblr, Mozilla and DuckDuckGo did nothing to their websites (they did), while noting that this was one small part of a much broader effort towards NSA reform. He also quite correctly points out that if you're going to compare every online protest to the single largest and most successful protest in the history of the Internet, you're probably going to spend a lot of time disappointed. To make Perlroth happy though, perhaps next time we get the urge to protest, we'll pre-emptively realize the futility of the effort and stay home to watch reality TV instead. That'll learn 'em.

Filed Under: day we fight back, eff, nsa, pipa, protest, sopa
Companies: new york times

How Free Speech Online Is Enabled By Not Blaming Websites For The Actions Of Their Users

from the save-section-230 dept

We've written many, many times about the importance of Section 230 of the Communications Decency Act, which provides protections against secondary liability (except for intellectual property) claims for internet service providers. In the simplest form, Section 230 says that if a user does something on a site that's illegal, you need to blame the person who did it, rather than the site. As we've said repeatedly, this makes so much sense it's almost troubling that you need a law to make the point. You blame the person who broke the law, not the tools they used. Duh. You don't blame Ford because that was the getaway car in a bank robbery and you don't blame AT&T because the extortion call was made via an AT&T phone line.

But, on the internet, blame often gets thrown around wildly, and websites themselves are too frequently targets of misguided legal claims. Section 230 protects against that and lets companies quickly extricate themselves from bogus legal claims. Unfortunately, Section 230 has been under attack lately by a number of parties. There are a bunch of state Attorneys General who are looking to change the law to exempt it from applying to cases they might bring against sites. You have short-sighted law professors who think that a way to fix "bad" sites online is to gut Section 230. And, unfortunately, you have one really bad district court ruling (which disagrees with every other ruling on the law) which hopefully will get reversed on appeal.

Much of the academic discussions concerning the importance of Section 230 have, quite reasonably, focused on the impact on innovation. As some have pointed out, Section 230 can, in many ways, be credited with "giving us the modern internet." So many of the sites you know, love and use today probably wouldn't exist, or would exist in greatly limited forms, without Section 230. It's truly enabled a revolution in innovation online, allowing sites to build powerful tools for the public, without having to be liable for how the public then uses those tools.

And that brings us to a second important point about Section 230 that perhaps gets less attention, though it probably should get much more. Section 230 has really helped to enable a tremendous amount of free speech online. On a recent edition of his Surprisingly Free podcast, Jerry Brito interviewed Anupam Chander who recently co-authored a paper (with Uyen Le), which highlights "the free speech foundations of cyberlaw" and how Section 230 has been truly key in guaranteeing a lot of free speech online -- basically highlighting how the First Amendment and Section 230 work well together. However, it also points out that it was the First Amendment that underpins all of this, and that we should be wary of challenges to the law that might undermine the First Amendment.

If you know the history of the Communications Decency Act, you know that it was a very, very different bill than Section 230. The original CDA was basically the opposite. It was a bill to censor websites that had "indecent" communications. Most of that got thrown out (after quite the legal fight) as unconstitutional under the First Amendment. What remained, and should continue to remain, is Section 230 -- which was the one part of the bill that was consistent with the First Amendment.

The paper also goes into how copyright law, separately, has been trying to chip away at the First Amendment online, and how dangerous that is as well. Remember, Section 230 doesn't apply to copyright law, though there is Section 512 of the DMCA, which is similar, but not nearly as strong. The paper notes that things like SOPA really were a direct attempt to attack the First Amendment, which is why it's a good thing that it failed.

All in all, it's a good reminder of both how important protecting free speech online is today and how fragile it is, since the laws that have made it possible are so constantly under attack.

Filed Under: cda, dmca, first amendment, free speech, secondary liability, section 230, sopa

Another Friend Of The Recording Industry Joins The House Subcommittee On Courts, Intellectual Property And The Internet

from the another-revolving-door dept

There's a new ranking member of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, and it's another copyright maximalist. Mel Watt, the former ranking member and one of SOPA's biggest supporters, has moved on to the Federal Housing Finance Agency. Before Mel Watt, there was subcommittee chair "Hollywood" Howard Berman, whose nickname clearly spells out which side of the copyright argument he espoused.

The newest ranking member is Jerry Nadler and he's virtually indistinguishable from his preceding party members. Nadler's previous legislative efforts have been the (unofficially titled) "RIAA Bailout Act of 2012" (in which he sought to raise satellite and cable radio royalty rates to match the exorbitant amount demanded of internet streaming sites) and an attempt to create a "resale right," which would give rights holders a cut any time a creation was resold. Nadler also supported extending copyright protection to fashion designers, something that industry has proven it doesn't actually need.

Now, he'll be advising Bob Goodlatte (another SOPA supporter), who's currently in the middle of a "comprehensive copyright review." The deck seems to be rather well-stacked in favor of the copyright industries at the moment, and if the past is anything to go by, this won't be changing in the future.

Back in 2008, there was a good chance that Rick Boucher, a legislator who had a history of siding with consumers in copyright battles, and who had been pushing to rewrite the DMCA, would succeed Berman. Rather than allow this opening to be filled by someone who might push for copyright reform, John Conyers (the head of the Judiciary Committee at the time -- and another pro-copyright legislator) simply declared the subcommittee "unnecessary" and shut it down. When Boucher lost his reelection run, the subcommittee was magically resurrected and the open position given to Mel Watt.

Nadler issued some bland "working together" assurances in his press release about his new position.

"These laws are at the core of how we consume media, from watching TV and listening to music to enjoying a movie or sharing photos,” Nadler said in a statement announcing his new assignment.

“We will seek to strike the right balance between how artists, authors, musicians, photographers and other content creators are compensated for their work with the desire of technology companies to provide new and innovative ways for consumers to access this content like never before," he said.

As The Hill's article notes, the recording industry seems pleased with this decision, noting that Nadler's views are aligned with outgoing member Mel Watt (and, of course, the industry's) on the issue of levying royalties on AM and FM radio stations, formerly known as its preferred promotional tool. Nadler namechecks the future but his supporters have their sights set on extracting a revenue stream from old school, terrestrial radio. In context, the "right balance" means siding with the copyright industries and those not inclined to do so may find themselves to be ranking members of nothing, personas non grata on a subcommittee that no longer exists.

Filed Under: bob goodlatte, howard berman, jerry nadler, mel watt, revolving door, sopa

Copyright Week: Why Hollywood And The USTR Hate Transparency

from the the-public-needs-to-have-a-say dept

Two years ago, then US Trade Representative Ron Kirk told Reuters, effectively, that he would not release the negotiating texts of the Trans Pacific Partnership (TPP) agreement, because if the public knew what was in TPP, it would not allow the agreement to be approved. His reference was to a previous attempt at a trade agreement, the Free Trade Area of the Americas, which failed after negotiators released some draft texts. Kirk and the entire USTR seem to have taken exactly the wrong lesson from this. Rather than recognizing that the way to pass comprehensive trade agreements is to actually be more open and involve the public from the very beginning, so that there's more widespread agreement and support for what the USTR is doing, they've gone in the other direction. Believing that keeping the negotiating position of the US a total and complete secret is the way forward. As Senator Elizabeth Warren wrote to the current USTR, Michael Froman, last summer:

I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.

The EFF and a bunch of other organizations have designated this week as Copyright Week -- a chance for the public to weigh in and discuss copyright law and where it needs to go. They've put together a series of principles, that are worth reading. Each day will discuss different topics related to copyright law, specifically focusing on the aspects that are important to the public -- and which seem to be ignored (or pushed to the side) by copyright maximalists.

Today's principle is "transparency" -- something that has been sorely lacking in copyright law for quite some time. As you know, the history of copyright law is that it's supposed to be about using limited monopolies to encourage the dissemination of knowledge for the purpose of scientific advancement and learning. Yet, from the very beginning, it's been used for other purposes: initially for censorship and control, usually by gatekeepers, who are attempting to limit and control content production and dissemination for the sake of keeping the costs artificially high, allowing them to take the majority of the profits, often leaving the actual creators with little -- and the public with extreme limits on how they can communicate.

In recent decades, this has gotten much more extreme, as those gatekeepers have hijacked the legislative process multiple times with a very clever, but ultimately bogus "story," in which they pretend that they are representing content creators, even as they work hard to screw over those artists. Maximalist lobbyists have taken an incredible approach to ratcheting up copyright laws around the globe, hitting on dozens of different ways to continually push through changes without public input or opinion.

One recent example: in 1995, President Clinton's "commissioner of patents and trademarks," Bruce Lehman, released a white paper that pushed for the draconian copyright provisions of the DMCA, including takedowns and anti-circumvention provisions. In the light of day -- where at least some people were watching what Congress was doing -- no such laws could be passed. However, Lehman was so tied to Hollywood's interests, that he's actually happy to admit that when Congress wouldn't pass such a law he did "an end-run around Congress" by running to WIPO (where the public was not watching), and getting a "treaty" passed, which basically required the DMCA.

Treaty in hand, maximalists ran back to Congress, screaming about how we had to pass the DMCA or violate our "international obligations." And, it worked. While large ISPs were (thankfully) able to make enough noise to include the one good part of the DMCA -- the safe harbor provisions for service providers -- the rest of the terrible DMCA came into law entirely because of this sneaky process used by Lehman and other maximalists to hide away from where the public was looking, and push through some agreement. This has been the ongoing plan for quite some time. Maximalists will push through bad legislation wherever possible, and then use international treaties and trade agreements to try to take the worst laws they were able to get in one place, and "harmonize" them, to make them required everywhere.

And it's been quite effective. Using international agreements, negotiated in secret, to then tie the hands of legislatures has been used countless times to expand copyright law around the globe over the last couple decades.

But in the last couple years, something changed. It started with SOPA. A deal that was entirely negotiated in the backrooms by copyright maximalists and their friends in Congress failed completely when the public realized what was going on. Soon after that, ACTA, yet another "international agreement" that pushed for "harmonizing" maximalist rules, and which was negotiated entirely in secret, flopped in Europe after the public was exposed to it. And yet, the maximalist lobbyists and their friends at the USTR (who, surprise surprise, are often the same people), continue to believe that they can use this strategy going forward. Negotiate in secret, refuse to be open to the public, and then tie Congress' hands.

That's what's happening now with the TPP and the TTIP/TAFTA agreements. The USTR has absolutely refused anything resembling transparency -- while insultingly insisting that they're being incredibly transparent, because they'll "consult" with anyone. But, as we've explained countless times, listening is not transparency. Transparency is about providing information back, sharing what's being negotiated in our name, and then not supporting Congress limiting itself from actually discussing what's in the document.

The USTR and Hollywood have a playbook from the last couple of decades to continually ratchet up copyright law, and limit any attempt to roll back its excesses. And it starts with a complete lack of transparency. It has to. Because, as we saw with SOPA and ACTA, when you actually let the public see what's being pushed for in our name, they fight back, and they say "we do not want this." And, as Senator Warren pointed out, if the American people do not want it, then it should not be the policy of the United States.

A lack of transparency in copyright policy serves only the desires of the maximalist to control speech, to limit innovation and to harm creators and the public (who are often one and the same). It's an undemocratic attempt to aid a group of greedy gatekeepers, whose interests are antithetical to the intent and purpose of copyright law. That the USTR has been willing to support this effort, and works hand in hand with Hollywood to make sure there is no transparency at all is the true travesty in all of this, and should raise significant questions about whom the USTR really works for. Is it the American public or is it Hollywood?

Filed Under: acta, bruce lehman, copyright, copyright week, dmca, international agreements, lobbyists, maximalists, sopa, tafta, tpp, transparency, ttip, ustr

USTR Insists Secret, MPAA-Backed TPP Is 'Most Transparent Trade Negotiation In History'... From Hollywood Studio

from the does-anyone-believe-this-crap? dept

Honestly, it's somewhat difficult to believe that someone who works in the USTR didn't recognize that it was a bad idea to have their new boss, Michael Froman, who was once called one of the most "egregious examples" of the "revolving door" between companies and government, head out to visit two of the largest Hollywood studios just days after the IP chapter of the secretive TPP agreement was leaked, showing that it was basically Hollywood's wishlist of copyright crap. It's even more difficult to believe, given all that and given that Froman decided to go hang out with some friendly folks in Hollywood anyway, that someone at the USTR didn't think maybe, just maybe, Froman should avoid giving an interview in which he'd be asked about the leaked chapter.

But, it happened. Of course, the interview was with Variety, so maybe they figured that only Hollywood people would read it, and that the rest of the world would never catch on to the fact that Froman is either totally clueless or a blatant liar about the TPP. However, he did give an interview, while "touring Paramount's backlot" in which he said a bunch of nutty things. Here's my favorite:

He also called the talks over the trade pact “the most transparent trade negotiation in history,” noting that they have held more than 1,000 briefings on Capitol Hill, have enlisted 600 advisers for input from various groups and have invited stakeholders to address negotiators from all 12 countries, among other efforts.

Let's just say, this is pure bullshit. Extreme bullshit. Honestly, even Variety (which, as you might imagine, tends to toe the Hollywood line) seems to suggest that this claim isn't actually true. And, of course, considering that the USTR is infamously secretive, being "the most transparent in history" doesn't mean you were actually transparent at all. And, in this case, the fact that he's claiming it's "the most transparent in history" days after a chapter that no one in the public has seen during nearly four years of negotiations had to be leaked should highlight the level of bullshit that Froman is spewing.

He seems to have pulled this "most transparent" bullshit from his predecessor, Ron Kirk, who used to claim the same thing. Both are fundamentally trying to mislead. We've said it before, and we'll say it again, listening to lots of people, while not revealing what you're doing, is not transparency. It's listening. Listening may be better than not listening, but it's completely different than "transparency." Let me make this even clearer:

• Listening: People ---- information -----> USTR
• Transparency: USTR --- information ----> The Public

What Froman described above is about listening. They get "advice" from various stakeholders. That's not transparency. That's listening. So long as no one gets to see what crap they're negotiating "on our behalf," there's no transparency. At all. The only time this negotiation had any transparency was when Wikileaks finally released the IP chapter which the USTR should have and could have done years ago.

The other bit of bullshit in the interview was his misleading response to the claim by some that TPP is like SOPA. Now, I should be clear that we've avoided making that comparison, because there is a different set of issues here. And Froman used those differences to try to discredit all criticism of TPP:

“For example, as I understand it, I wasn’t around for it, (the Stop Online Piracy Act) was about blocking rogue Internet sites from accessing the Internet from the United States. There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that,” he said.

But "blocking rogue websites" isn't what's making people make the comparison between TPP and SOPA. It's two things: (1) a backroom deal negotiated in secret with no input from the public which (2) includes basically a wishlist from Hollywood. The fact that the two wishlists are not identical is not really the point, but it's the point Froman chose to focus on, because he's trying to mislead the public.

Froman continues to demonstrate that he has no business in the role he's in:

“Our goal through these trade negotiations is to make sure we are raising the standard of protection around the world, for artists and the people who support them,” he said.

Except that's not supposed to be the goal at all, and the fact that he thinks it is makes him clearly unqualified for his job. Remember that the TPP is supposed to be about free trade, yet here he is admitting that his actual agenda is increasing protectionism. Second, as anyone who knows anything about intellectual property knows, "raising the standard of protection" has been shown repeatedly to be rather harmful to creators and the public. And, again, the entire purpose of copyright law is supposed to be about promoting progress for the public. It would appear that Froman doesn't know this. And yet he's in charge of negotiating this thing? Really?

This is the reason why transparency matters. Because when you take someone who doesn't understand intellectual property at all, such as Froman, and tell him to negotiate a trade agreement in which the only people he shares the negotiating text with are maximalists, all he hears is how they have to "raise" standards, even as most of the world has realized that the "standards" are already way too high and tremendously damaging to the economy and innovation.

Either way, this whole situation is incredible. You have the USTR, just days after the secret treaty that was written with the help of Hollywood's lobbyists is leaked out, declaring that it's the most transparent in history despite the fact that, if he had his way, none of the public would have seen it, and saying so while touring Hollywood studios. The USTR is either extremely confident that no one cares about trade agreements, or a large segment of the staff there is profoundly clueless. Or maybe it's both.

SOPA was taken down because it was a backroom deal and a Hollywood wishlist, without respect for the public. ACTA went down for the same reason. If Froman doesn't want the same thing to happen to TPP, he might want to learn a thing or two about intellectual property and what transparency means. Because as of right now, he appears to be setting himself up to be roadkill for another internet uprising.

Filed Under: acta, michael froman, sopa, tpp, transparency, ustr
Companies: disney, mpaa, paramount

GoDaddy's Chief SOPA Supporter Now Running For Arizona Governor Highlighting Her 'Internet' Experience

from the oh-really-now? dept

As anyone who followed the SOPA fight remembers, GoDaddy was an early (and vocal) supporter of SOPA. This was mainly the work of its General Counsel, Christine Jones, who (prior to SOPA specifically being released) testified before Congress in support of a law sounding very much like SOPA (supporting making search engines, service providers, credit card companies and others liable). When SOPA was released, she wrote an op-ed strongly in favor of it for Politico (who appear to have made it disappear), calling the bill "a welcome step in the right direction." She did this even though -- under the bill's initial definition -- GoDaddy itself was clearly "dedicated to theft of property."

As you probably remember, the internet backlash was strong, and GoDaddy had to drop its support, giving the company a major black eye. Since then, a very large percentage of the management team has changed, including Jones, who left the company a few months after SOPA collapsed.

What's she up to these days? Oh, she's just running for governor of Arizona... on the basis of her wonderful "internet" experience. That seems... wrong. The "about" section on her campaign page kicks off with this:

Christine made it a priority to establish Go Daddy as a leader in the fight to make the Internet better and safer for users, particularly children. She has testified numerous times before U.S. Congressional Committees in Washington, D.C. about various issues related to the Internet. She also helped drive federal Internet-related legislation, including laws to keep the Web safe from child predators and rogue online pharmacies. For example, she helped push through bills such as the Ryan Haight Online Pharmacy Consumer Protection Act, the Protect Our Children Act, and the Keeping the Internet Devoid of Sexual Predators Act. These bills were signed into law by President Bush in October 2008 and have been used by law enforcement and others to shut down illegal online drug sellers and to prosecute online child predators.

Nothing about SOPA, you see. But she does highlight these kinds of grandstanding laws that have great titles that sound like they're trying to make the internet safer from evil things like fake drugs and sexual predators. In reality, most of these bills have done nothing particularly useful. That's because they were all about getting headlines so politicians could claim they were doing something about some "big problem" without tackling the actual underlying problems. In some cases, they have serious problems. The "Keeping the Internet Devoid of Sexual Predators" made all registered sex offenders register their emails in a weak attempt to keep them off of social networks (even when the "offenders" did not have a history of being predators or anything like that).

These are the kinds of bills that someone supports because they want more political cred, not because they have any interest in actually solving real problems. Either way, it just seems really wrong for a person who was heavily involved in supporting SOPA in the early days to now be running for political office arguing that she was focused on making the internet "a better place."

Filed Under: arizona, christine jones, copyright, grandstanding, internet, protect the kids, sopa
Companies: godaddy

Better Business Bureaus Pushing For 'SOPA For Trademarks' On Domain Registrars & Registries

from the bad-ideas dept

Never underestimate the ability of those who over-rely on intellectual property to not just push for greater protections, but to try to pin greater and greater liability on others who they want to rope into their own fights. Phil Corwin has an article about how the Council of Better Business Bureaus, along with the Coalition Against Domain Name Abuse (a motley crew of mostly banks and insurance companies, but with random others like Dell, DirecTV and Eli Lilly thrown in there), are looking to change the Anti-Cybersquatting Protection Act (ACPA) to make it more SOPA-like when it comes to cybersquatting.

Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants.

As with SOPA, they're using pure FUD to make this argument, inflating the "threats." With SOPA, copyright maximialists sought to conflate actual dangerous situations like counterfeit drugs (which were minimal in number) with non-dangerous activities that were more widespread (sharing movies and music). Here, the BBB and CADNA ramp up FUD about how phishing attacks use cybersquatted domains to trick people into handing over their info. Except, as Corwin notes, the actual evidence on phishing shows that it's rarely cybersquatted domains that are used in phishing (in part because companies are already quick to spot those and deal with them). In fact, he points out that the very research the BBB and CADNA are relying on to hype up cybersquatting notes that only 2.3% of phishing domains actually contain a brand or variation of a brand.

And, as with SOPA, the real goal here is to pin liability on a ton of third parties (beyond just registries and registrars) making them responsible if they happen to do business with a cybersquatted domain:

Of course, under CADNA’s proposal this potential financial jeopardy would be faced by parties far beyond the domain registrant, as they also want to “Establish liability against an affiliate, representative, or any other person or entity that is in active concert or participation with the registrant, including but not limited to a domain name registrar or domain name registry.” Potential liability would also accrue to “Internet parking pages, pay-per-click advertising, and other monetization schemes”. In other words, not just domain industry participants but everyone else involved in the Internet business ecosystem, including ad providers and payments processors, would be brought under ACPA jurisdiction if CADNA had its way. As we saw with the rightfully failed SOPA legislation, secondary liability would either vastly expand the potential windfall to litigants or cause these service providers to cut off domains at even the hint of a lawsuit, depriving registrants of the very domain-generated income required to fund litigation defense when they believe the allegations against them are bogus.

While this wouldn't impact the public as directly, it's basically a trademark version of SOPA, more specifically focused on cybersquatting. But even just setting the precedent of greater secondary liability would be a huge problem. Trademark already suffers from a lack of secondary liability safe harbors. Pinning direct liability on third parties for the actions of others is a step in the wrong direction.

Filed Under: cybersquatting, domains, liability, secondary liability, sopa, trademark
Companies: better business bureau