Disaster In The Making: Article 13 Puts User Rights At A Disadvantage To Corporate Greed

from the don't-let-it-happen dept

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won't be harmed. This is only sort of true. It does say that... but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it's the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we'll all burn up and die, the legislators tack onto the end of the bill "... and don't let anyone burn up and die" without any further instruction.

Specifically, in the text, it says things like the following:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

a) quotation, criticism, review,
b) use for the purpose of caricature, parody or pastiche.

And also they insist that this shouldn't require mandatory filters, while providing no explanation for how to abide by the law otherwise:

The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC.

And, perhaps my favorite, the "and don't let this impact anything it shouldn't" clause:

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.

Of course, all of that is nonsense, because before you get to that part in the Directive, you have everything else that clearly requires automated filters. Section 4 of the text says that if you haven't paid off EVERY SINGLE COPYRIGHT HOLDER, then you're liable for any infringement "unless" you make:

"best efforts to ensure the unavailability of specific works"

And, if told about certain works:

"made best efforts to prevent their future uploads"

How the hell do you "prevent their future uploads" if you're not filtering everything uploaded? And, how does an automated system determine if those future uploads are actually parody, or fair dealing, or some other exception. The general response from supporters of Article 13 is a giant shrug. As Communia notes, there is literally no way to abide by the law without filters, and it is literally impossible to comply with the section about protecting user rights:

If you can't see that full chart, it's reproduced here as well:

If you look at that full chart, you see something pretty important. The ordering of the obligations here is key, as pointed out by Kristofer Erickson. First up, you need to try to license all works. Second, if you fail to license all works in existence, you need to employ expensive and faulty filters to keep down anything that you've received a notice over. Only after all of that are you able to consider user rights.

To be more explicit about this, Article 13 puts user rights at the very end of the line, way past the massive corporate handout the law gives to record labels, movie studios and book publishers. Then, at the very, very end, where it doesn't even matter, it says "don't let all the bad stuff that everyone knows will happen actually happen." But it does not explain how that's possible, because it's not. The law has all sorts of problems, but trying to shove in "user rights" as subordinate to the special privileges of a few giant industries is especially disgusting and corrupt.

Filed Under: article 13, corporations, filters, user rights

CNBC Worries About Poor, Helpless Multinational Corporations Who Are Being 'Cyberbullied'

from the worst.-'victims.'-ever. dept

Do you remember the last time your tweets made a corporation cry? Or when you Facebooked a multinational into deleting its home page? Or that one time when police were called in to investigate threats to withhold future purchases?

In an article far less overwrought than its title would suggest, some analysts are comparing social media backlash to "cyberbullying."

Cyberbullying isn't something normally associated with large corporations. However, in the last week alone social networking played a big role in humbling two culturally influential institutions: Starbucks and DC Comics. Both companies beat a hasty retreat from planned campaigns, and in the process learned a painful lesson in frontier Internet justice.

They join a gallery of big companies that have learned the hard way that hell hath no fury like a Twitter user scorned. So has social media ushered in the age of cyberbullying of big companies?

According to experts, the answer is yes … and no. By and large, the Internet is seen by many as a way to hold companies accountable for their business practices, and give consumers a measure of leverage. Yet it also means big firms no longer totally control their own narratives, and companies can quickly become helpless bystanders in their own story.

Since the average social media user's market cap is far below that of the "bullied," this would seem to be be more evidence that the internet levels the playing field like nothing that has come before it. Sure, pre-internet backlash was possible, but it involved letter-writing campaigns that worked only for those who enjoyed delayed gratification, boycotts that generally had more effect on local media coverage than the bottom lines of the companies targeted, and petitions with actual handwritten signatures very few people in the upper management levels ever saw.

Now, the backlash is not only immediate, but it's massively multiplied. The word "firestorm" is thrown around, but despite its causal ubiquity, it's actually a rather apt metaphor. When a company (and there's so many to choose from) screws up -- especially if its first reaction is to quell/ignore criticism -- the complaints of the few become the movement of the masses. An entity's reputation can go up in flames in a matter of hours, especially if its responses are combative or defensive. Memory-holing offending content or killing off social media pages is completely suicidal. And complaints about the "unfairness" of the criticism (even when the criticism isn't legitimate) isn't going to turn the tide, because no one really wants to hear a multi-million dollar corporation indulging in self-pity.

Of course, the same platforms that are decried as being tools of bandwagon-jumping haters can be used proactively by companies. Too many companies believe a fire can be extinguished by waiting for it to burn itself out. Engagement means more than blasting out corporate site links and discount codes. It means listening. It also means publicly dealing with screw-ups in real time. Some companies can't handle this, having outsourced their social media presence to random employees or interaction-free bots. The internet can be "won," but most companies apparently aren't in the position to do so, despite years of social media unrest clearly indicating the importance of agility and responsiveness.

No matter what it feels like to be the target of the well-oiled internet hate machine, it's a stretch to call this sort of thing "bullying." Wrong or right, internet backlash usually involves "punching up." Sure, the number of people involved can give this a "bullying" appearance, but the same tools being used to criticize can be used to connect. Far too many companies either can't or won't perform this essential part of maintaining an "online presence." And when they don't, they lose. Unlike most other bullying, the power still remains in the hands of the "bullied." It's up to them to use it effectively.

Filed Under: corporations, cyberbullying, public criticism, social media

Shameful Business: Corporate Giants Target Activists And Non-profits For Corporate Espionage

from the can't-take-the-heat dept

It's no secret that big companies, especially the giant multinationals, often have very advanced corporate espionage teams (sometimes staffed by former government spooks). The practices can sometimes be extreme and problematic, like when HP used its corporate espionage team to spy on board members and journalists. However, it seems that with the rise of consumer interest groups and very effective activists, many of these giant companies are using their corporate espionage team to spy on those non-profits and activists instead.

Many of the world’s largest corporations and their trade associations — including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald’s, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON – have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers.

Many different types of nonprofit organizations have been targeted with corporate espionage, including environmental, anti-war, public interest, consumer, food safety, pesticide reform, nursing home reform, gun control, social justice, animal rights and arms control groups.

Corporations and their trade associations have been linked to a wide variety of espionage tactics against nonprofit organizations. The most prevalent tactic appears to be infiltration by posing a volunteer or journalist, to obtain information from a nonprofit. But corporations have been linked to many other human, physical and electronic espionage tactics against nonprofits. Many of these tactics are either highly unethical or illegal.

The full report includes plenty of examples, including the famous HBGary Federal/Hunton & Williams/Bank of America attempt to infiltrate Anonymous (and Wikileaks). It also includes stories about Stratfor, Monstanto and others. There was one example in there that I was unaware of, involving the giant pharmaceutical lobbying group PhRMA trying to spy on Jamie Love and Knowledge Ecology International. Love is a friend and KEI has done amazing work in informing the world about dangerous efforts by PhRMA and others to use international trade agreements to push through rules and laws that harm the public around both copyright and patent issues. So, perhaps it's not a surprise that they'd spy on him, but it's still quite troubling. The same report notes that a bunch of others, including Microsoft, hired another company closely associated with former IP czar Victoria Espinel to try to spy on Love and KEI:

Shortly after the passage of the Affordable Care Act, Love says he received a visit in his offices from a man who said he was recently let go from his job at Pharmaceutical Research and Manufacturers of America (PhRMA). “He said his job involved monitoring what I was doing, every day.” Love said. “He told me that PhRMA had hired a private investigator to investigate us, from the West Coast.” Separately, from 2007 to 2008, Love says that PhRMA and some companies in the copyright sector funded efforts to investigate the sources of funding for NGOs working on intellectual property issues, and to press those foundations to end their support of consumer advocacy.

Around 2008 or 2009, General Electric, Microsoft, Pfizer and other firms funded an effort by the National Foreign Trade Council (NFTC) to provide intelligence on NGOs working on intellectual property issues. Love says, “They approached someone we knew, with a proposal to provide information on Knowledge Ecology International and other NGOs working on intellectual property issues, as part of a program to counter NGO advocacy efforts on behalf of consumers.” Eventually, Love says, the NFTC contracted with the Romulus Global Issues Management, an “international policy consultancy” that advises “several members of the Fortune 100.” The managing partner of Romulus is John Stubbs, whose wife is Victoria A. Espinel, a former Romulus employee. Espinel was U.S. Intellectual Property Enforcement Coordinator (IP czar) for the Obama administration, and is currently the CEO and President of the Business Software Alliance (BSA).

This is really playing dirty. While these companies may not appreciate what public interest groups like KEI do, digging into their activities and spying on them seems to go way beyond reasonable.

Filed Under: activists, anonymous, corporations, espionage, non-profits
Companies: hbgary federal, kei, phrma, us chamber of commerce, walmart

Activist Tells Court That Since Corporations Are People, He Can Drive In The Carpool Lane With Incorporation Papers

from the nice-try,-but,-no dept

I know that many people get up in arms over the concept of corporate personhood, but the reality is often a lot less problematic than many people make it out to be. It's not a concept that is free from problems, but it's not quite as silly as some argue. Still, it sometimes does lead to some amusing stunts. For example, a couple years ago, a company tried to run for President, in an effort to make a statement on the issue. Up in Marin County (just north of San Francisco) an activist has tried a similar move, arguing that he's able to drive in the carpool lane without another human passenger because he had incorporation documents for a company riding along in the passenger seat. Apparently, he's actually been doing this for about a decade, just waiting to get pulled over.

It finally happened and the driver, Jonathan Frieman, made his argument -- and the somewhat befuddled patrolman told Frieman to take it up with the court. That finally happened recently, and Frieman's lawyer actually made a fairly compelling legal argument. He noted that California Vehicle Code Section 470 specifically defines a "person" by saying it "includes a natural person, firm, copartnership, association, limited liability company, or corporation." It also discusses the carpool lane by saying, "No person shall drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices." Finally, the street signs themselves say "2 or more persons per vehicle." Thus, his lawyer argued, at the very least, this is unconstitutionally vague.

“Central here is the concept of double meaning,” Greene said in court. “Citizens should not be left to guess when he or she is in violation of the statute.”

The judge, however, did not buy it, pointing to another section of the Vehicle Code, on the purpose of the carpool lanes:

Judge Drago also referenced California Vehicle Code 21655.5, noting instead subsection F, which states “It is the intent of the Legislature, in amending this section, to stimulate and encourage the development of ways and means of relieving traffic congestion on California highways and, at the same time, to encourage individual citizens to pool their vehicular resources and thereby conserve fuel and lessen emission of air pollutants.”

He then noted that Frieman's workaround didn't match the intentions.

It seems like the judge may have gotten to the right answer, but I'd argue for the wrong reasons. First of all, while the intention of the legislature is helpful, it doesn't excuse it from poorly written legislation which could be seen as being unconstitutionally vague. However, it seems to me there's a much easier way for the judge to reach the same conclusion without going down that path: just point out that incorporation documents are not the corporation itself. That's both accurate and would solve the issue. Incorporation documents explain that a corporation has been created, but they are not "the corporation." A birth certificate may announce the arrival of a person, but the document itself is not "a baby." I'm somewhat surprised the judge didn't just go with that as an answer.

Either way, it sounds like this isn't over, as Frieman has announced his intentions to file an appeal -- which is to be expected, since much of this really appears to be a form of protest against the very concept of corporate personage.

Filed Under: carpool lane, corporations, driving, jonathan frieman, people

Supreme Court Says AT&T Has No Right To 'Personal Privacy'

from the don't-take-it-personally dept

Last year, we wrote about an important case in which AT&T bizarrely claimed that it had personal privacy rights over information the FCC collected in an investigation concerning AT&T overbilling the government. An organization had made a Freedom of Information Act (FOIA) request on the info, but AT&T protested that, as a corporation, it had a personal right to privacy. As we noted, that seemed like a pretty ridiculous claim, but the appeals court accepted it. We were therefore happy to see the Supreme Court pick up the case last fall, and now it has unanimously ruled against AT&T (8 - 0, with Kagan not taking part, since she filed the original brief for the federal government in support of the FCC). Considering the complaints some have made about the Supreme Court taking the idea of "corporate personhood" too far, I think plenty of people (who don't work for AT&T) will agree that this ruling makes plenty of sense. A corporation has a right to keep certain information secret and confidential, but the idea it has a "right to privacy" makes no sense.

The actual ruling (embedded below) is quite interesting in noting, while corporations may be "persons," that does not automatically afford them "personal" rights.

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002); "corny" can mean "using familiar and stereotyped formulas believed to appeal to the unsophisticated," id., at 509, which has little to do with "corn," id., at 507 ("the seeds of any of the cereal grasses used for food"); and while "crank" is "a part of anaxis bent at right angles," "cranky" can mean "given to fretful fussiness," id., at 530.

Even in cases such as these there may well be a link between the noun and the adjective. "Cranky" describes a person with a "wayward" or "capricious" temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a "crank" takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC's argument that "personal" does not, in fact, derive from the English word "person," but instead developed along its own etymological path, Reply Brief for Petitioners 6, simply highlights the shortcomings of AT&T's proposed rule.

"Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, we typically "give the phrase its ordinary meaning." Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). "Personal" ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word "personal" to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that's personal." A company spokesman, when asked for information about the company, would not. In fact, we often use the word "personal" to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view.

Justice Roberts, who wrote the decision, then goes on to pick apart each argument made by AT&T as to why it should be allowed "personal" privacy, leading to the rather obvious punchline that you have to think the Justices had in mind to use from the very beginning:

We reject the argument that because "person" is defined for purposes of FOIA to include a corporation, the phrase"personal privacy" in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Filed Under: corporations, fcc, foia, personal privacy, personhood, privacy, supreme court
Companies: at&t, fcc

Supreme Court Agrees To See Whether Or Not AT&T Has 'Personal Privacy' Rights

from the do-corporations-have-privacy-rights? dept

Back in May, we wrote about an important case questioning whether or not companies have privacy rights. Traditionally, privacy rights were seen as being for individuals, not companies, but AT&T claimed that it had privacy rights over data collected by the FCC in an attempt to determine if AT&T was bilking the e-rate program (for installing broadband connections to schools). Some people filed a Freedom of Information Act request over the data, and the FCC released some of it (keeping some secret to protect trade secrets). However, AT&T sued the FCC claiming that even releasing the limited info the FCC was planning to put out would violate the company's personal privacy. The Third Circuit appeals court in the case sided with AT&T, saying that companies could have personal privacy -- and the case was appealed to the Supreme Court.

The Supreme Court has now announced that it will hear the case. The Obama administration had asked the Supreme Court to hear the case, claiming that it did not believe "personal privacy" applied to companies. Elena Kagan, who had filed the brief for the administration, will obviously sit the case out now that she's a Supreme Court justice. However, this will be yet another, in a recent line of cases, trying to establish the boundaries (if there are any) between the rights of individuals and the rights of corporations.

Filed Under: corporations, e-rate, personal privacy, supreme court
Companies: at&t, fcc

Google For President? If Corporations Are People...

from the free-speech-and-its-consequences dept

A bunch of folks have sent in the Citizens United Supreme Court decision and asking for my opinion on it. The ruling came out last week when I was traveling, and I didn't have that much time to look at the details or think about what it all meant until now. It's one of those cases where I see both sides of the argument, but am troubled by what comes out of a ruling in either direction. There is a real worry of a First Amendment problem if you restrict any kind of speech -- but I do worry about giving corporations even greater power in influencing elections. But my real issue with the ruling goes back deeper, with the generally accepted concept that a corporation is a person. That seems like an even bigger problem, because the fact is that we don't actually treat a corporation like a person at all. A corporation does not get a vote. A corporation cannot be put in jail (yes, its executives or employees might be able to, but not the same thing). And a corporation may not run for office. This point was brought to my attention by my friend Jeff, who sent over a link to a story arguing (in a very much tongue-in-cheek manner) that if a corporation has the same rights as a person, why can't Google run for President.

That said, while I would remove the idea that a corporation is ever "a person," that doesn't change the fact that I would be careful about limiting any type of speech -- including a politically motivated movie, which was at the heart of this case. Instead, I tend to think that the problem is one of information (not money) asymmetry. And while it may appear idealistic, this is the sort of thing that the internet is helping to combat, even if it takes time, and there are some losses early on. In copyright policy, it's true that the entertainment industry has still been able to push through laws in its favor over the past few years, but a lot more people are paying attention to the issue, and the changes that are getting through are of much lower impact than what they used to regularly get through. I don't think that the entertainment industry would be able to push through the kind of massive sweeping changes that it has successfully pushed through in the past. Instead, I tend to agree with Julian Sanchez, in discussing a recent conversation with Larry Lessig, that points to a more organic way to respond to corporate influence on politics:

Look at it this way: We don't get draconian copyright policies because the RIAA and MPAA actually have more money, all told, than those of us who'd benefit from a more balanced intellectual property regime.  They're richer, of course, but there's a lot more of us. The problem is that their resources are already pooled, and they're far more acutely aware of which side their bread is buttered on. That's the asymmetry we need to address. And as Clay Shirky has so cogently argued, we may finally have the means to do so, because for the first time in human history, we have in the Internet (and Web 2.0 especially) a mass medium that is simultaneously good at enabling interactive conversations (as the telephone does) and groups (as magazines or television did).  The costs of processing and disseminating information have fallen dramatically over the past decade, and now the same is happening to the costs of organizing people and coordinating action.

That's why I think Lessig's focus on public finance as a silver bullet is less likely to bear fruit than an array of solutions that exploit transformative technology--something he's so keenly analyzed in his writing on Free Culture. My colleague Jim Harper's Washington Watch project, or the efforts of the folks at the Sunlight Foundation, are one part of the solution: Backroom deals are typically held in the back room for a reason. Sites like ActBlue and Slatecard are another, because they make it easier for a national audience to punish bad actors in their local races.

This doesn't mean that corporate influence has been -- or ever will be -- neutralized. But it does suggest that it's becoming easier for the voices of those actually impacted to speak up and make themselves heard. It will take a lot of effort -- and certainly, corporations are often a lot more tied into the levers of power, but there is more of an opportunity for groups of people to use information tools to their advantage, and to counter efforts by anyone, whether its corporations or individuals, to push through harmful legislation. It may seem idealistic (and, it is), but the unintended consequences of barring speech seems like it could be much worse.

Filed Under: campaign finance, citizens united, corporations, people, supreme court

Stephen Fry: Time For Politicians To Represent People's Interest On Copyright, Not Corporations

from the like-that'll-ever-happen dept

Stephen Fry is a very well known British actor, comedian and writer. He's also known as a real tech geek sorta guy -- who doesn't mind getting his hands dirty with new technologies to learn about them. He apparently gave a speech (made up on short notice) about copyright and the future of music, where he complained that politicians, such as those who created the Digital Britain report were clearly reflecting the views of various industries and not of the people. Fry made it clear that he doesn't endorse the idea of widespread file sharing -- and he warned against misinterpreting his speech that way -- but still admitted that he's been known to fire up BitTorrent himself to get the latest episodes of 24 or House. And he admits that he feels a bit guilty about it, but the reason is that he can't really get that content elsewhere. The fault is with the industry, and yet the gov't is trying to protect that industry, rather than recognize that the real problem is the industry not giving people what it wants. Having the gov't come up with a plan to try to stomp out file sharing misses the point. The problem isn't the file sharing -- it's the industry not responding to the market.

This is an important point, actually. Thanks to some of the press coverage, and the way the industry often tries to frame this debate, you get this picture of evil kids destroying an industry by downloading tons and tons of content. And, there are some folks out there who do download a ton of stuff. But the real issue isn't with that group of folks, who would never have bought any content in the first place. It's with the everyday folks, like Stephen Fry, who would just like to access the content in the most convenient way possible -- and the industry is failing him. The answer isn't to go after some kids and fine them millions or throw them in jail. It's to respond to the market.

Filed Under: copyright, corporations, stephen fry, uk