Singapore Says 3 Strikes Is Too Intrusive For Copyright Reform, So Goes With SOPA-Style Censorship Instead

from the say-what-now? dept

I saw two headlines in a row recently about Singapore's plans for copyright reform. The first one sounded good, and the second one sounded dreadful:

1. Singapore decides 'three strikes' laws are too intrusive
2. Singapore proposes law to block sites such as Pirate Bay

It turns out that both headlines are accurate, though it's the second one that's the bigger issue here. You can see the details laid out (quite clearly) by Singapore's Ministry of Law. It notes that they currently have a DMCA-like notice-and-takedown setup, but have apparently decided that this is somehow too burdensome for rightsholders who have pushed the government to come up with an alternative plan (gee, this sounds familiar...). They don't seem to explain why this is so burdensome, they just say that there's too much "uncertainty" in having to actually "establish the liability for infringement." So, rather than do that, it appears that the Singaporean government is willing to chuck basic due process, and go for flat-out censorship without due process.

Under the proposed legislative changes, rights holders will also be allowed to apply directly to the Courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement. This judicial process is more efficient and avoids implicating the ISPs unnecessarily.

So, just as in SOPA, the idea is that rightsholders can suddenly declare that certain sites are "rogue" and courts can agree to wipe them off the face of the internet, by ordering ISPs to block access to them. The Singaporean government insists this won't be a problem for legitimate sites, because it seems to have bought into the Hollywood fallacy that what is a "legitimate" site and what is a "pirate" site are somehow obvious, rather than a spectrum in which nearly everything is some form of gray.

This is targeted at websites that show a blatant disregard for, and that clearly infringe, copyrights. Legitimate search engines and content sharing sites such as Google and YouTube will not be affected.

Notice how they just blithely insist that YouTube is legitimate. That may well be news to YouTube's lawyers, who just concluded (via settlement) a seven-year battle in which Viacom literally insisted that YouTube was the equivalent of a video Grokster (the file sharing service that lost its court case for enabling infringement). And that's where the real problem is. It's easy to claim that it's obvious when a site is legitimate and when it's not, but reality doesn't work that way. For years, many people were pretty sure that Napster was perfectly legitimate under the rules of the Sony Betamax ruling, but then a court decided otherwise. Similarly, many assumed that YouTube was illegal, until that case settled. Hell, even the VCR was a "pirate tool" until the Supreme Court ended that argument thirty years ago.

And, of course pretty much all of modern entertainment history is filled with similar examples of new innovations in the delivery and consumption of content that are at first deemed illegal, until suddenly they're not. The player piano, the phonograph machine, radio, television, cable television, the photocopier, the DVR, the VCR, the mp3 player, and many other innovations were first decried as "pirate" technologies. And then they weren't. But with the Singaporean government insisting that it's somehow obvious which ones are legitimate and which ones are not, Singapore is almost guaranteeing that important legitimate innovations that help move the industry forward will, instead, get censored and blocked across the entire country.

That's no way to present yourself as an innovative country.

So, yes, later in the document, they reject three strikes (and administrative, rather than judicial, blocking) as too draconian and intrusive:

Countries like Spain and Malaysia have implemented an administrative site-blocking approach where rights holders can apply for site-blocking orders from a Government-appointed body. Countries like France have introduced a “graduated response” system where individual internet users are notified of their infringing activity by the ISP, and can be penalised if they continue their infringing activity despite repeated notifications (or “warnings”).

We considered the alternatives above but assessed that they may not be suitable in Singapore’s context as they are too intrusive on internet users.

But, in many ways, the alternative "solution" that Singapore appears to be supporting is worse than three strikes. It's outright censorship against innovation, based on a faulty belief that it will be immediately obvious whether or not new innovations and technologies are "legitimate" or "pirates."

Filed Under: 3 strikes, censorship, copyright, injunctions, notice and takedown, singapore, sopa

UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation

from the nice-to-see dept

Via Michael Geist, we learn of a new UN report on Human Rights, that (among many other things) talks up the importance of free speech online (pdf), worries about the expansion of third party liability laws as a tool to suppress speech online, and is generally concerned about government attempts to censor the internet. Where it gets even more interesting is where it pretty clearly states that three strikes or other efforts to kick people off the internet for file sharing is a trend it does not approve of at all:

While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes- law” in France and the Digital Economy Act 2010 of the United Kingdom.

Of course, supporters of such laws will downplay the significance of this, but they might not realize just how much influence these types of reports can have over time. Either way, it's nice to see UN officials recognizing that yes, copyright can and often is used for censorship.

The report goes on to worry about ACTA as well:

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

We keep hearing from supporters that there are no "free speech" concerns here, and yet the UN clearly sees the issues. Seems like ACTA supporters have a serious case of willful blindness.

On top of that, the UN report points to all sorts of other serious concerns that we've raised, including how "notice-and-takedown" provisions such as those found in the DMCA are open to widespread abuse.

In the recommendations section, the UN report is pretty clear and damning. Kicking people off the internet is a violation of existing civil rights:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Now watch as our usual "law & order" commenters rush to talk about how the International Covenant on Civil and Political Rights can be ignored as it's no big deal.

Finally, the report actually (amazingly) goes so far as to suggest countries "repeal or amend" any law that would kick people off the internet for infringing:

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

While I doubt the report will have too much impact, it certainly is nice to see it getting some significant attention. It's too bad, but you can bet that politicians around the globe will simply ignore it... and when asked about it, will instead just point to debunked industry claims of "losses" to back up their ongoing push towards censorship and civil rights violations in the name of protecting the obsolete business models of a few industries.

Filed Under: 3 strikes, acta, civil rights, copyright, dmca, free speech, notice and takedown, un

Danish Discussion On 3 Strikes Plan Done In Secret, Leaving Consumers Out Of The Mix Again

from the nobody-cares-about-the-consumer dept

Now that most of the ACTA negotiations are complete, you would think that governments would recognize the problems of trying to negotiate big deals that impact internet users in secret without involving the users themselves. No such luck. Apparently, over in Denmark, the government, the entertainment industry and ISPs have been secretly negotiating a 3-strikes plan for Danes, with an agreed upon press blackout, where none of the participants will speak to the press. They're pretty upfront as to why not:

After experiencing difficulty, Comon was told by Committee members that they had "promised to keep working secretly in order not to create too much fuss" and "could never agree on some recommendations if there was too much public debate about its work."

Yes, you see, we couldn't actually come to agreement if the people this will actually impact the most are allowed to chime in and point out why they don't like their rights being taken away. It's probably worth reminding folks at this point that Denmark was one of the players in the ACTA negotiations who was vehemently against transparency. Apparently, that's carried over into domestic discussions as well.

Filed Under: 3 strikes, denmark, transparency