Corporations Are Being Forced To Take Consumer Complaints Back To Court After Arbitration Push Backfires Spectacularly

from the the-devil-you-know dept

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators, chosen and paid by the companies under fire, unsurprisingly rule in favor of companies more often than not. Initially, the lower courts derided this anti-consumer behavior for what it was, noting that however brutally flawed the class action is, binding arbitration, at least the way we let companies designed it, in many ways made things worse.

But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. In reality, it shifted things to a form of binding arbitration that was costly, lopsided, and cumbersome for consumers, and less transparent for those used to visiting Pacer to dig up legal histories.

Fast forward to a few years ago, when a growing number of companies and services (like Fairshake) began streamlining the arbitration process, making it easier and less expensive for consumers (and yeah, class action lawyers). This shifted the balance of power back toward consumers, and starting in 2018 or so companies like Uber, AT&T and Comcast began to complain they were being swamped with arbitration feuds. Now, a year later, even giants like Amazon are being forced to take consumer complaints back to the courtroom, in part because a system they constructed to dodge accountability is no longer helping them do that:

"With no announcement, the company recently changed its terms of service to allow customers to file lawsuits. Already, it faces at least three proposed class actions, including one brought May 18 alleging the company’s Alexa-powered Echo devices recorded people without permission.

The retail giant made the change after plaintiffs’ lawyers flooded Amazon with more than 75,000 individual arbitration demands on behalf of Echo users. That move triggered a bill for tens of millions of dollars in filing fees, according to lawyers involved, payable by Amazon under its own policies."

To be very clear, the existing class action system is broken as well, usually doling out relatively pathetic payouts to impacted consumers, while class action lawyers get new boats. But the premise that the binding arbitration system (at least as implemented) was somehow better, at least in the way we implemented it in the States, has never been true. If you ask lawyers that represent companies like Amazon and AT&T, the fact that folks developed new systems that shifted the balance of power ever so slightly back toward consumers and class action lawyers is seen as terribly unfair:

"It has the potential to be pretty unfair to the company,” said Patrick Bannon, an employment lawyer at Seyfarth Shaw LLP who has represented clients facing mass arbitrations. The arbitration fees put intense pressure on businesses to settle, he said, “whether the claim is valid or not."

But if you ask the folks actually fighting for consumers (and not all of them are ambulance chasers), they see it as fair play:

"Companies thought they were getting out of liability altogether,” by adding arbitration clauses, said Chicago lawyer Travis Lenkner, whose firm filed the majority of the Amazon claims. “Now they’re seeing exactly what they bargained for, and they don’t like it."

In short, corporations (beginning with AT&T) spent the better part of the last decade fighting for an arbitration system that resulted in fewer payouts, fewer successful complaints, and less overall transparency. And while happy about that initially, the second the internet and technology shifted the balance of power in the other direction, they were eager to flee back to the devil they knew. It should be curious to see if other giants like AT&T also begin stripping binding arbitration out of their end user agreements, or if this is just a temporary setback on the path toward less accountability.

Filed Under: arbitration, binding arbitration, class action, class action lawsuits, consumer rights, consumers

Cable Industry Lobbyist Proclaims Cable TV Industry 'Failing' While Advocating Against Broadband Consumer Rights

from the sigh dept

I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes.

And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously.

The cable TV business is in trouble—in fact, it is "failing" as a business due to rising programming costs and consumers switching from traditional TV subscriptions to online video streaming, according to a cable lobbyist group.

"As a business, it is failing," said Matthew Polka, CEO of the American Cable Association (ACA). "It is very, very difficult for a cable operator in many cases to even break even on the cable side of the business, which is why broadband is so important, giving consumers more of a choice that we can't give them on cable [TV]."

Well, that's certainly different. These comments by Polka about how the cable television industry is failing differ from the doom-and-gloom sideshow too often pitched as a reason for cable companies to not do all sorts of things that would benefit customers. Instead, Polka's tone appears to be sincere on this point: the cable television industry, as we have come to know it, is in its death throes. Given cord-cutting and a new customer adoption rate that has been falling in the younger generations, it's refreshing to hear a cable lobbyist come out and admit all of this.

The problem is that when you square this with the other point he made -- the importance of broadband -- a shiver bolts down the spine.

That's one reason cable companies in the ACA see broadband as "their future," Polka said. A cable company executive who appeared alongside Polka on the C-SPAN show echoed those comments.

Video is "certainly our worst product," said Tom Larsen, senior VP of government and public relations for cable company Mediacom. "It makes the least amount of money."

Larsen and Polka both praised the FCC's new Republican leadership for taking a deregulatory approach to broadband.

This, of course, refers in part to the gutting of net neutrality, the death of which is being to served to the American public by the same new leadership Polka is so happy to praise. It should be immediately clear what the ACA is hoping for when you take into account the sum of its previous stances, nearly all of which have been de facto anti-competition, as well as this newfound full focus on the broadband portion of its members' services. It expects to be able to strangle the ISP industry in the same way its anti-competitive practices helped pave the way for cable providers being unable to respond to customer demands.

Filed Under: broadband, cable, competition, consumer rights, tv
Companies: aca

Hackers, ACLU, Consumer Rights Groups, Human Rights Groups, Many More All Come Out Against SOPA

from the an-avalanche-of-no-to-sopa dept

All day yesterday, we just kept getting more and more notifications of groups coming out against SOPA. Considering that SOPA-supporters keep trying minimize the complaints about SOPA, or pretend that it's "just Google" who's against it, the outpouring of anti-SOPA feelings really paints quite a different picture. Here are just a few of the anti-SOPA statements we've seen. First up, perhaps the most interesting of all, the folks at Hacker News -- basically home base to tons of techies -- have been getting together to send physical letters arguing against SOPA. The idea here is that physical letters are more likely to get attention than email (and this is true for some, but certainly not all, Congressional offices). If you'd like to send a physical letter, the link above makes it easy. And, as we've seen with most anti-SOPA letter writing systems, it lets you customize -- unlike every single pro-SOPA letter writing system, that only lets you submit existing text.

Next up, we have that bastion of "piracy," the ACLU. Yeah, that's a joke. The ACLU is hardly a defender of infringement, but is absolutely in favor of free speech, and quite concerned about the censorship mechanisms in the bill:

By their very nature, laws protecting copyrights constrain free speech and access to information. Unlike other speech restrictions, however, copyright laws may also advance the generation of information and ideas. A robust copyright system encourages free speech by giving speakers incentives to create and disseminate works of authorship. Such laws add to the marketplace of ideas by encouraging the creation of more content through the assurance that content producers will receive the fruits of their labor. But access to information of all kinds -- even disfavored information -- is a fundamental right that must be protected. Even more to the point, the mere existence of infringing content online does not justify the removal of non-infringing content in the course of attempting to rid the internet of the former. These established principles should not change or be treated differently just because technology has changed.

[....]

SOPA, unfortunately, is substantially worse than PROTECT IP. By eliminating the concept of sites 'dedicated to infringing activity', SOPA enables law enforcement to target all sites that contain some infringing content -- no matter how trivial -- and those who 'facilitate' infringing content. The potential for impact on non-infringing content is exponentially greater under SOPA than under other versions of this bill. As such, despite our support for the protection of the legitimate copyright interests of online content producers, we cannot support SOPA, and in fact we oppose it in its current form, given its broad sweep and its heavy hand that will land largely upon innocent content producers. We urge Committee members to focus not just on the goal of protecting copyright owners, but also protecting the speech rights of consumers and providers who are reading and producing wholly non-infringing content and to eliminate the collateral damage to such protected content. Only in that way will the Committee truly achieve its goal of protecting authors and allow the legislation to survive constitutional challenge.

The letter goes on to highlight exactly how and where SOPA infringes on the First Amendment. It also notes that passing SOPA would be setting a terrible precedent for the rest of the world.

Next up, there's a letter from over 40 different human rights groups, noting their concerns with SOPA and how it will create significant problems for human rights around the globe:

Through SOPA, the United States is attempting to dominate a shared global resource. Building a nationwide firewall and creating barriers for international website and service operators makes a powerful statement that the United States is not interested in participating in a global information infrastructure. Instead, the United States would be creating the very barriers that restrict the free flow of information that it has vigorously challenged abroad. By imposing technical changes to the open internet while eroding due process, SOPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for businesses and users internationally. Business cannot be conducted online when international users and businesses do not have faith that their access to payments, domain names, and advertising will be available, raising challenges to economic development and innovation. This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.

The provisions in SOPA on DNS filtering in particular will have severe consequences worldwide. In China, DNS filtering contributes to the Great Firewall that prevents citizens from accessing websites or services that have been censored by the Chinese government. By instituting this practice in the United States, SOPA sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet.

It still amazes me that SOPA's supporters don't realize what a big deal this is. Giving foreign nations the "ok" to censor the internet is a ridiculously stupid policy.

Next up on the tour of folks coming out against SOPA, we've got a bunch of public interest groups, including the American Library Association, Association of Research Libraries, Human Rights Watch, New America Foundation's Open Technology Initiative, TechFreedom, FreedomHouse, the Competitive Enterprise Institute, EFF, Public Knowledge and others.

We do not dispute that there are hubs of online infringement. But the definitions of the sites that would be subject to SOPA's remedies are so broad that they would encompass far more than those bad actors profiting from infringement. By including all sites that may -- even inadvertently -- "facilitate" infringement, the bill raises serious concerns about overbreadth. Under section 102 of the bill, a nondomestic startup video-sharing site with thousands of innocent users sharing their own noninfringing videos, but a small minority who use the site to criminally infringe, could find its domain blocked by U.S. DNS operators. Countless non-infringing videos from the likes of aspiring artists, proud parents, citizen journalists, and human rights activists would be unduly swept up by such an actions. Furthermore, overreach resulting from the bill is more likely to impact the operators of smaller websites and services that do not have the legal capacity to fight false claims of infringement.

Relying on an even broader definition of "site dedicated to theft of US property," section 103 of SOPA creates a private right of action of breathtaking scope. Any rightsholder could cut off the financial lifeblood of services such as search engines, user-generated content platforms, social media, and cloud-based storage unless those services actively monitor and police user activity to the rightsholder's satisfaction. A mere accusation by any rightsholder would be sufficient to require payment systems and ad networks to terminate doing business with the service; the accused service's only recourse would be to send a counter-notice, at which point it would be at the networks' discretion whether to reinstate the service's access to payments and advertising. This would bypass and effectively overturn the basic framework of the Digital Millennium Copyright Act (DMCA), by pushing user-driven sites like Twitter, YouTube, and Facebook to implement ever-more elaborate monitoring systems to "confirm," to the satisfaction of the most aggressive and litigious rightsholder, whether individual users are exchanging infringing content.

Had enough yet? Okay, well how about various consumer interest groups? Consumers Union, Consumer Federation of America and US PIRG sent a letter as well.

The bill would allow rights holders to send notices to payment processors and advertising networks, ordering them to cut off funding to sites the rights holders believe are "dedicated to the theft of U.S. property." However, this definition is extremely broad. Section 103(a)(1)(B)(ii) defines a "site dedicated to the theft of U.S. property" as including any site whose owner "takes active steps to avoid confirming a high probability" that it is being used (even by others) for infringement. This means that an entirely legitimate site can be defunded, and even enjoined entirely, merely because a few of its users may have infringed. Consequently, overzealous rights holders could shut down lawful exchange sites like craigslist, eBay, swap.com, or BookCrossing, closing off valuable outlets for small-scale buying and selling. For instance, a legitimate student-to-student textbook exchange site could be hampered or shut down by a publisher for the actions of just a few infringing users, raising the costs of an already-expensive education.

Secure online communication and commerce is also of critical importance to consumers. Yet, the bill could undermine the security of consumers. Section 102(c)(2)(A) allows for court orders that would block domain name system (DNS) operators from providing access to the Internet Protocol (IP) addresses of targeted sites. In other words, a consumer attempting to access an allegedly infringing site would get an error message or be redirected to another page. However, redirecting DNS queries (to phishing sites and other fraudulent websites) is also a common tactic used by malicious hackers to steal millions of dollars from consumers....

Finally, the bill grants complete immunity to a very large class of actors, including Internet service providers, advertising networks, advertisers, search engines, and payment networks, for cutting off access to a targeted site as long as they can claim their actions were taken in the reasonable belief that the site was suspected of encouraging infringement. This blanket immunity from all federal and state laws and regulations could allow the above actors to act in ways that would harm consumers. For example, Internet service providers could block access to online services that compete with their own telephone or video offerings under a justification of curbing alleged infringement, depriving consumers of legitimate alternatives to high-priced services. The broad immunity of the statute would prevent consumers or consumer protection agencies from policing or addressing such anti-consumer or anticompetitive.

Next on the list, we have a surprise entrant: the Brookings Institution. Unlike plenty of "think tanks" who are nothing more than lobbying shops in disguise, Brookings has an incredibly strong reputation for both intellectual honesty and credibility -- and thus it's widely viewed as one of the most influential public policy think tanks around. Not surprisingly, it's take may be a bit more measured, but it raises significant concerns about the cybersecurity impact of the bill:

I highlight the very real threats to cybersecurity in a small section of both bills in their attempts to execute policy through the Internet architecture. While these bills will not "break the Internet," they further burden cyberspace with three new risks. First, the added complexity makes the goals of stability and security more difficult. Second, the expected reaction of Internet users will lead to demonstrably less secure behavior, exposing many American Internet users, their computers and even their employers to known risks. Finally, and most importantly, these bills will set back other efforts to secure cyberspace, both domestically and internationally. As such, policymakers are encouraged to analyze the net benefits of these bills in light of the increased cybersecurity risks.

Also worried about the security angle is the respected security firm ESET, who makes clear the damage the DNS provisions will do:

Based on my work, and that of my team of researchers, I have to say that this legislation, if passed as currently written, would have a chilling effect on the economy of the United States.

More than 100 million Internet users in over 180 countries rely on ESET products to protect their personal and enterprise data systems. This gives ESET a unique perspective on the DNS filtering proposed by SOPA and PIPA. There is hardly any part of the United States economy today that does not depend upon the smooth operation of the Internet, which in turn relies upon the integrity of the Domain Name system (DNS). The DNS filtering proposed in SOPA and PIPA would seriously undermine that integrity.

While ESET fully supports the goals of protecting IP and reducing piracy, our experiences combating cybercrime for more than 20 years suggest that SOPA and PIPA will do little to advance these goals. What we are sure they will do is undermine valuable efforts to improve the security of the Internet. Without those improvements, expansion of the global digital economy, of which the United States is clearly a leader, as well as a leading beneficiary, will falter.

And, finally, we have TechAmerica, one of the biggest and most respected tech trade associations, representing over 1,200 companies -- and one of the most important organizations when it comes to helping to fundraise for politicians. I'd been disappointed that TechAmerica had been relatively quiet on this issue, so it's great to see it come out strongly against SOPA. After spending over a page agreeing that rogue sites and infringement are big problems, TechAmerica's letter notes:

Sadly, neither chamber of Congress has produced thoroughly acceptable legislation, but SOPA in particular marks a clear retreat from a history of Congressional support of the digital revolution. That support has often come in the form of not imposing regulation on the industry, and certainly never before has such a wholesale shifting of costs and responsibilities of property owners onto technology companies been contemplated -- a shift away from a careful balance and toward legislation that favors one industry over another.

Put another way, the approach taken in SOPA leads one to wonder why the DMCA would even be used in the future. Using SOPA�s proposed broad new inducement provision, one could simply ignore the current DMCA safe harbors and use intermediaries to accomplish the end goal, and if damages were warranted, merely later sue for infringement. Moreover, important measures to make sure that the proposals keep pace with technology, such as the DMCA requires with the triennial rulemaking on exceptions to the prohibition on circumvention of access and use controls, are non-existent. Along those same lines we are also dismayed that the proposed legislation relies on "simple" technical measures to address complex international issues that are likely better handled through diplomacy, negotiation, constructive dialog and coordinated action. The proposed "solutions" carry risk, perhaps significant, and are likely to be easily circumvented....

SOPA merely shifts costs from content owners, the rightful protector of their content, to various other parties, rather than making sure that costs are appropriately placed.

This is a philosophical issue that runs to the heart of both proposals. Do we really want government forcing one industry to subsidize another, to be required by force of law to assist another industry in being successful? More typically we expect industries to operate within a market framework and with the freedom of contract to solve such challenges. In this case, Congress seems determined to step in and force one industry to provide subsistence to another.

I'm sure there are some others that I've missed, but it's great to see so many organizations coming out so strongly against SOPA. Can defenders of the bill continue to pretend that it's just a small opposition now? Or that it's just those who wish to infringe who are opposed to SOPA's broad language and vague definitions?

Filed Under: concerns, consumer rights, copyright, human rights, protect ip, sopa
Companies: aclu, brookings, techamerica

Double Standard On The Special 301 Report: Industry Is Allowed Vague, Unsupported Statements; Consumer Advocates Are Not

from the funny-how-that-works dept

We've already pointed out the general ridiculousness associated with the USTR's "Special 301" report, which is widely regarded as a joke. The report, which allows the administration to name which countries have been "naughty" when it comes to intellectual property enforcement, has no methodology. It has no objective measures. It has no accountability. Basically, industry groups submit their own reports on what countries are bad, and the USTR rewrites them as its own report, doing nothing to actually fact check the claims or to even quantify anything. In the past couple of years, the USTR has been more open about having consumer rights organizations -- and even consumers themselves -- submit their own reports, but there's been little indication that anyone at the USTR has actually listened to any of those reports.

And, in a rather striking demonstration of how this all works, Stan McCoy, from the USTR (and apparently a top candidate to take over the Copyright Office, despite not being an expert in copyright law), presided over hearings concerning the Special 301 report recently, in which both industry groups and consumer groups appeared. Yet, as one observer noted, McCoy appeared to have a total double-standard concerning how he viewed the comments of each:

The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups� testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.

Testimony from groups like Global Health Organization, the Forum on Democracy and Trade, Oxfam, Public Knowledge, and others were met with aggressive push back and questioning on how criticism on the Special 301 process was at all relevant to the committee�s ability to render judgments on individual countries.

But that�s exactly the problem. The report is written so vaguely, and industry complaints taken at such face value, that specific criticism of the report is near impossible. I was surprised to learn that the report doesn�t include a list of criteria used to evaluate countries or even clear explanations on why specific countries are placed on the watch list, nor does it say which industry-submitted comments were the basis for citation.

So if you're from industry, it's absolutely fine to make vague, totally unsubstantiated statements -- even if they've been widely debunked by actual experts and researchers. Yet, if you're representing consumers, you need to have specific points to make or you get chided. And, of course, you can't make any actual specific points because the USTR doesn't have any specific criteria on which it bases the overall report. Brilliant.

Also, it appears that McCoy is somewhat uninformed about his own organization's report (which he is closely connected with):

The best moment of the hearing, to me, was during Sean Flynn's testimony on behalf of the Forum on Democracy and Trade. Flynn argued (for the second year in a row, I might add) that citing countries like Finland, France, Italy, and Japan for "unfair [pharmaceutical] reimbursement policies" was incredibly vague, hypocritical (because the US has similar reimbursement policies), and--most importantly--outside the statutory mandate of the Special 301 process. McCoy retorted that no such citation was in the 2010 report [pdf].

Flynn�s response? "It's right here on page 14..."

And people wonder why foreign governments, and many of us who pay attention to these issues, consider the Special 301 process to make a mockery of the US government on intellectual property issues.

Filed Under: consumer rights, copyright, industry, politics, special 301, stan mccoy, ustr

How Copyright Takes Away Rights From Consumers

from the understanding-the-overall-purpose-of-copyright dept

It's amusing to see defenders of current copyright law often making final declarations about how copyright is a "right" for artists, and thus protecting those rights absolutely makes sense. What they never seem to talk about is how, at the same time, copyright quite frequently is removing rights from the public. Julian Sanchez points us to a fascinating new paper from law professor John Tehranian, which tries to bring user rights back into the discussion of copyright. Here's the abstract:

This Article challenges copyright's prevailing narrative on personhood, which has typically focused on the identity interests that authors enjoy in their creative output. Instead, the analysis explores the personhood interests that consumers possess in copyrighted works. Drawing on a wide range of examples -- from flag burning as copyright infringement, the Kookaburra controversy and the crowd-sourced origins of the Serenity Prayer to the reported innumeracy of the enigmatic Piraha Amazonians, the apocryphal source of ancient Alexandria's Royal Library and the unusually fragile nature of digital media -- the Article advances a Hegelian refutation to intellectual property maximalism and a theory of copyright that recognizes the crucial link between identity politics and the legal regime governing the monopolization and control of cultural symbols and creative works.

The paper is a bit long, but it's a good read, as it effectively highlights how copyright really quite frequently takes away the rights that people would have in analogous situations. For those who insist that copyright is just like "real property" this particular paragraph (after a whole section describing how, in popular culture, we often define and identify ourselves by modifying the physical things we own) suggests one of the many ways in which "intellectual property" isn't like "real property" at all:

Intellectual property laws directly mediate the vindication of formative and expressive identity interests. The modern copyright and trademark regimes do not allow individuals to manipulate and utilize intellectual property in the same way that they can customize and contextualize their experience with physical property. Simply put, most customizations or contextualizations of intellectual property are considered potential violations of a copyright owner's exclusive rights under the Copyright Act or a trademark owner's rights under the Lanham Act. So, for example, by performing the equivalent of ripping holes in one's jeans (e.g., remixing a song or altering a brand name), a consumer of intellectual property runs afoul of a copyright holder's exclusive right to create derivative works or a trademark holder's right to prevent dilution. One can contextualize and communicate one's relationship with one's jeans by wearing them in public, but the equivalent act of publicly utilizing a copyrighted work would impinge on an author's exclusive right to control public displays and performances. In twenty-first century America, our relationship with intellectual property is an essential part of defining ourselves. And in an increasingly digital and virtual world, the semiotic value of intellectual property is just as significant as physical property, if not more so.

Our identity interests therefore can become intermingled with and wrapped up in a form of property to which we technically, and legally, possess no ownership rights.

The article also explains how the famed Library in Alexandria, which -- to this day -- is held up as an example of a wonderful scenario of aggregating and sharing the world's knowledge, was effectively built via "piracy." Everyone visiting Alexandria was required to deposit any reading materials they had with the Library, where it would be copied and stored.

It was this act of infringement -- the wholesale reproduction of a work without permission of the author or publisher, sanctioned (and even dictated) by law--that allowed the creation of one of the great Meccas of education in the ancient world. The private use of these unauthorized copies fostered learning and the dissemination of knowledge so critical to both personal development and artistic and scientific progress. Indeed, without the extensive collection of learning housed at the Library, the scholarship that emerged from the institution would not have been possible.

There's also a great section on the massive expansion of secondary liability, which does not appear to be supported by federal copyright law, and which is quite frequently used as a back door to remove or limit user rights. While there may not be all that much "new" here for regular readers, the whole paper is definitely a worthwhile read.

Filed Under: consumer rights, copyright, rights

ACTA Negotiators 'Meeting' With Consumer Advocates Involved 'Negotiators Eating With Negotiators'

from the well-that-was-useful dept

We already discussed how ACTA negotiators last week announced the timing of a "meeting" lunch for negotiators with consumer rights groups in such a way that it was impossible for most of those groups to attend, and then the negotiators refused to reschedule to a more convenient time. Of course, some people were able to make it, and their reports suggest that ACTA negotiators never really intended to talk to consumer rights groups in the first place:

The meeting was an informal lunch with negotiators scattered at tables rather than structured in a means for dialogue. This is similar to the D.C. "mixer" and in contrast to Lucerne. In Lucerne the delegates requested written questions in advance and answered them in a structured dialogue around a conference table. Everything was on the record, which led to many news stories based on meeting notes released from those present. In DC and now Tokyo the engagement was more informal with no opportunities for formal question and answers of the group.

Representatives of Oxfam, Creative Commons and perhaps one or two other groups were reported to be at the meeting. According to one attendee who arrived late, there were very few open seats where NGOs could sit with negotiators. Mostly the tables appeared to be of negotiators eating with other negotiators.

Transparency in action.

Filed Under: acta, consumer rights

More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:

These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA

from the but-what-about-the-public dept

With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington "insiders" under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests. But, still, it's a bit troubling that the whole conversation remains secret for "national security" reasons. If we're talking about changing copyright laws that effect everyone, why not let everyone know? Sherwin Siy, from Public Knowledge, told KEI (in the link above) about his experience viewing the document, which sounded greatly limited, and notes that while the document has been adjusted, "the most troubling aspects" have not been "resolved."

In the meantime, it's worth asking why this is necessary again. First of all, in a world where trade agreements are supposed to be about breaking down trade barriers, ACTA seems designed to be putting up protectionist policies. Protectionism doesn't work and only creates more harm. But, much more importantly, much of the push for ACTA is based on lobbyists' claims of the "harm" done by counterfeiting. Except both the GAO and the OECD have put out independent reports showing that counterfeiting isn't that big a problem, and that whatever problems there are seem to be significantly exaggerated by lobbyists. Yes, those same lobbyists who were given much earlier access to the document and, records suggest, had a hand in shaping the document itself. So why do we need ACTA again? And why are we allowing those who the government has already found to have exaggerated the problem drive the negotiations?

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

Israeli Judge: Watching Streaming Games Online Is Fair Use

from the wow dept

The entertainment industry has, in the past, accused Israel of not properly respecting copyright, but Israeli officials, rather than bending to the will of Hollywood lobbyists hit back with a long and detailed response, noting that its copyright law has already been influenced too much by American-style copyright law -- and just because they didn't go completely draconian and implement a version of the DMCA, it doesn't mean they don't have strong copyright laws. You have to imagine, however, that Hollywood's lobbying community is about to go ballistic after reading a recent decision (sent in by a ton of people -- including one of the lawyers involved in the case!) concerning an attempt by the Premier League to unveil the owner of a website, LiveFooty, that allowed people to watch streaming football (soccer for folks on this side of the Atlantic) matches.

Now, we've already covered incredibly aggressive legal strategy of suing any site that lets people stream its matches. Quite often, it goes after service providers rather than the actual users, and also goes after services in places where the games aren't viewable anyway (so it's not even taking away any real revenue). Either way, the judge in an Israeli district court was not impressed and tore apart the Premier League's arguments:

the Tel Aviv District Court ruled that it was a case of "fair use" since no profit was made from the broadcasts and that, in Israeli law, breach of "broadcasting" copyright only referred to cable or wireless transmission and not streaming over the internet.

The judge, Michal Agmon-Gonen, furthermore ruled that the site had important social aims -- "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it" -- and argued that those who view online were not damaging the revenues of broadcasters. She said they were mainly "those of small means or who are not sufficiently interested in sport to pay".

That's the report from the Guardian, but the full ruling from the judge gets a lot more interesting. In refusing to reveal the name of the owner of the site, she talked about the importance of not giving in to the chilling effects of copyright infringement claims, and the importance of setting a very high bar on such things:

"Someone who claims breach of copyright must meet two conditions. The first is to present prima facie evidence of a breach, that will lead with a high degree of probability to proof of it. Secondly, the breaches claimed must be especially severe, wrongs committed in aggravated circumstances," the judge said. This is because "unintentionally, millions of people infringe copyright every day; there are no grounds for disclosing their identities in such cases, but only when it is a matter of blatant and severe infringement."

As far as I know, this is the first time I've seen a judge highlight unintentional infringement, and the chilling effects of making it such that anyone needs to constantly look over their shoulder and be afraid that almost anything they do may be judged to be a violation of copyright laws.

The Premier League will certainly appeal, and you can bet that Hollywood lobbyists will soon come out with yet another report claiming that Israel is a "haven for pirates" or some ridiculous claptrap along those lines. One hopes that this thoughtful ruling that focuses on the public's rights will stand up and get recognized for recognizing that copyright isn't just about the rights of the copyright holders, but about the rights of the public too. However, given the history of the entertainment industry lobby, it seems unlikely.

Filed Under: consumer rights, copyright, fair use, israel, streaming
Companies: premier league

Recording Industry Lobbyists Says Politicians Worried About User Rights Are 'Disgusting'?

from the that-doesn't-seem-right... dept

Well, well. Last week there was a "town hall" meeting in Toronto about new copyright laws in Canada, and we'll have a more detailed post on that later. But there is one story that popped up from all of this that deserved a separate discussion. Apparently two Parliament Members, Olivia Chow and Charlie Angus, who have been big supporters of consumers' rights on copyright issues, have been called out by music industry lobbyists for distributing a 'disgusting' flyer. Why? Because that flyer contained an interview with Angus (a former musician in a popular punk band), where he talks about the importance of consumer rights and not following through with a DMCA-style law in Canada. It's hard to read anything in that interview that is "disgusting" -- unless you don't believe consumers have any rights. But that apparently was the position taken by Alan Willaert, the Canadian representative of the American Federation of Musicians, who not only called it disgusting, but also demanded a retraction and an apology.

It doesn't sound like he's going to get it. Charlie Angus is defending himself ably:

I was elected to participate in discussions about public policy. I have never heard of a lobbyist group demand an apology for speaking out about a totally botched piece of legislation like Bill C-61. If they spent less time running e-mail attacks and more time speaking with the various players they might realize that the NDP position has been balanced and consistent from the beginning.

As for a public recanting to satisfy the C-61 lobby ? Sorry, dude....it ain't happening.

Filed Under: alan willaert, canada, charlie angus, consumer rights, copyright, olivia chow, politicians
Companies: american federation of musicians