Fossil Fuel Companies Want Governments To Pay $18 Billion For Bringing In Laws Tackling The Climate Crisis Largely Caused By Fossil Fuel Companies

from the corporate-sovereignty-at-work dept

Back in 2013, Techdirt started writing about the boring-sounding Investor-State Dispute Settlement (ISDS) system. It was so boring, we decide to use a better term for it: corporate sovereignty. It's an appropriate name, since this system of secret courts effectively places companies above a government, by allowing them to sue a nation if the latter takes actions or brings in laws that might adversely affect their profits. It was originally designed to protect companies that invested in unstable parts of the world, and to discourage things like expropriation by corrupt officials. But clever lawyers soon realized it was much more general than that, and could be used as a weapon against even the most powerful -- and stable -- nations.

It allows deep-pocketed companies -- typically multinational corporations -- to threaten governments with big fines if they pass laws or make decisions that aren't to the companies' liking. That includes actions that are clearly justified and in the interests of the country's citizens. For example, over the years Techdirt has written about how corporate sovereignty was used to threaten governments that wanted to protect public health, even measures to tackle COVID-19.

In 2015, this blog warned that the TAFTA/TTIP trade agreement under discussion then would allow companies to challenge actions taken to protect the environment, such as bringing in laws to tackle the climate crisis. TAFTA/TTIP never happened, so fossil fuel companies have now turned to other treaties to demand over $18 billion as "compensation" for the potential loss of future profits as a result of recent decisions taken around the world to tackle climate change. Global Justice Now has a summary:

Five fossil fuel companies are suing governments for more than $18bn for taking climate action that could harm their profits, new figures reveal, as protestors demand an end to secretive corporate courts.

TC Energy, RWE, Uniper, Rockhopper, and Ascent are suing governments through investor-state dispute settlement (ISDS), a shadowy system of corporate courts that operates outside of a country's domestic legal system as it is built into trade and investment deals.

Four of the five cases are under the Energy Charter Treaty (ECT), an energy investment agreement that includes ISDS, which the UK and EU are signed up to. TC Energy's case against the US government is under the North American Free Trade Agreement (NAFTA).

The $18bn (£13bn) demanded by just five companies is almost equivalent to the entire net annual climate funding provided by rich countries to the developing world, which Oxfam assesses as $19-22bn.

As that last paragraph points out, if the companies are successful -- by no means guaranteed, but entirely possible, given the nature of the special ISDS courts -- the money needed to pay companies would amount to the the entire annual climate funding provided to the developing world. It seems a bit rich that these companies should not only make huge profits from selling fossil fuels that are largely responsible for our climate crisis, but also want to be paid serious money for being forced to stop. But that's corporate sovereignty for you; it's clearly time to get rid of it.

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Filed Under: climate change, corporate sovereignty, ect, fossil fuels, isds, lost profits, nafta
Companies: ascent, rockhopper, rwe, tc energy, uniper

New North American Trade Deal Keeps Useful (But Limited) Liability Protections, Dumps Bad Biologics Data Protection

from the not-bad dept

When the NAFTA replacement "USMCA" agreement was first announced last year, we noted that it included a mix of good and bad ideas. The key good idea was that the USMCA contained a bit of language establishing a requirement for strong intermediary liability protections, similar to (but not exactly the same as) Section 230's protections in the US. Among the really bad ideas was expanding the data protection term for biologics -- which, we've noted, is really dangerous for basic science and innovation for new drugs -- but was supported by big pharmaceuticals to increase their monopoly power and ability to extract monopoly rents.

So it seems like good news that the latest version of the agreement keeps the intermediary liability protections and drops the biologics piece, which has the big pharma companies screaming angrily.

The intermediary liability protections for tech also have lots of people complaining -- including from both parties, but it's all ridiculous. First of all, most of the people freaking out about this are the very same people who originally loved the idea of sneaking ideas like longer copyright terms and anti-circumvention provisions into trade deals, and are now mad that internet companies are realizing that other ideas, that are better for the internet and free speech, can be put into those deals as well.

Perhaps more importantly -- as you hear more people whining about the inclusion of intermediary liability protections in USMCA -- is that these protections aren't even that strong, and Canada is already talking about ways to put more liability on internet services, despite what it's about to agree to in the USMCA. In other words, while it's good to see this language in the agreement, which will, at the margins, help keep the internet more open for free speech, the actual impact of this provision may be limited by creative efforts to write around the agreement -- and now just becomes a stick for those pushing the whole "techlash" narrative to beat against a wall.

Filed Under: biologics, canada, free trade, intermediary liability, mexico, nafta, nancy pelosi, section 230, trade, us, usmca, ustr

Canadian ISPs Want To Amend Law To Outlaw Settlement Letters

from the about-time dept

As Canada looks to update its copyright laws as part of the USMCA, the replacement for NAFTA strong-armed into existence by Donald Trump, we covered previously how ridiculous it is that copyright interests have been allowed to stick their nose in the whole thing and make all kinds of demands. Part of USMCA involves allowing Canada to keep its notice and notice system, as opposed to the notice and takedown system we have here in the States. While Canada's system is preferable to our own, it's not without it's flaws, of course. One of those flaws is how the notice and notice system has devolved into a deluge of settlement letters.

So dire is the plague of threat letters, in fact, that ISPs in Canada are using this opportunity to suggest outlawing those threat letters be included in the updates of Canadian copyright laws.

During a hearing before the House Heritage Committee last week, Pam Dinsmore of Rogers Communications mentioned that her company sends roughly 2.4 million notices per year. Like other ISPs, Rogers is not against the system itself, but it believes that updates are required.

This was the focus of an earlier hearing last month before the INDU committee, where Canadian ISPs including TekSavvy, Shaw, Rogers, and Bell shared their experiences. One issue all parties appeared to agree on is that the notice-and-notice scheme should ban settlement demands.

TekSavvy was actually more pointed in its criticism, with its representative calling out the current settlement letter schemes as designed to intimidate and mislead consumers to extract money from the uninformed. He also helpfully pointed out that these settlement letters have all the hallmarks of spam, scams, and spear phishing attempts, often designed to simply get consumers to reveal more information about themselves that can then be weaponized for more threats and demands.

“This puts ISPs in a difficult position, since we’re required to forward notices to end-users, including whatever extraneous, misleading or harmful content may be included,” he added.

TekSavvy recommended that the notice-and-notice scheme should be updated to ban these types of settlement notices as well as other unrelated info. This ban on settlement requests or other clear abuse was shared by Shaw, Rogers, and Bell.

And why not? The copyright holders and their partners did this to themselves, after all, designing a business model built on intimidation and obfuscation, and then expecting the public and government to simply be okay with all of it. The notice and notice system, after all, was designed to curtail piracy through education and transparent oversight, not through strong-arm tactics. And it's not as though outlawing settlement letters within the notice and notice system would prevent rightsholders from targeting pirates themselves. It would just mean that they couldn't rely on ISPs to do their dirty work for them.

Filed Under: canada, copyright, copyright trolling, nafta, settlement letters, usmca

A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

Corporate Sovereignty On The Wane, As Governments Realize It's More Trouble Than It's Worth

from the but-not-dead-yet dept

A few years ago, corporate sovereignty -- officially known as "investor-state dispute settlement" (ISDS) -- was an indispensable and important element of trade deals. As a result, it would crop up on Techdirt quite often. But the world is finally moving on, and old-style corporate sovereignty is losing its appeal. As we reported last year, the US Trade Representative, Robert Lighthizer, hinted that the US might not support ISDS in future trade deals, but it was not clear what that might mean in practice. The Canadian Broadcasting Corporation (CBC) site has an interesting article that explores the new contours of corporate sovereignty:

The preliminary trade agreement the U.S. recently reached with Mexico may offer a glimpse of what could happen with NAFTA's Chapter 11 [governing ISDS].

A U.S. official said the two countries wanted ISDS to be "limited" to cases of expropriation, bias against foreign companies or failure to treat all trading partners equally.

The new US thinking places Canada in a tricky position because the latter is involved in several trade deals, which take different approaches to corporate sovereignty. As well as the US-dominated NAFTA, there is CETA, the trade deal with Europe. For that, Canada is acquiescing to the EU's request to replace ISDS with the new Investment Court System (ICS). In TPP, however -- still lumbering on, despite the US withdrawal -- Canada seems to be going along with the traditional corporate sovereignty approach.

A willingness to move on from traditional ISDS can be seen in the often overlooked, but important, Regional Comprehensive Economic Partnership (RCEP) trade deal. India's Business Standard reports:

Despite treading diametrically opposite paths on tariffs and market access, India and China, along with other nations, have hit it off on talks regarding investment norms in the proposed Regional Comprehensive Economic Partnership (RCEP) pact.

In a bid to fast-track the deal, most nations have agreed to ease the investor-state-dispute settlement (ISDS) clauses.

As with NAFTA and CETA, it seems that the nations involved in RCEP no longer regard corporate sovereignty as a priority, and are willing to weaken its powers in order to reach agreement on other areas. Once the principle has been established that ISDS can be watered down, there's nothing to stop nations proposing that it should be dropped altogether. Given the astonishing awards and abuses that corporate sovereignty has led to in the past, that's a welcome development.

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Filed Under: ceta, corporate sovereignty, isds, nafta, rcep, trade agreements, ustr

Significant Concerns About The New NAFTA Agreement's Impact On Innovation And The Internet

from the it's-bad dept

Earlier this week, we wrote about how the USTR itself appeared to be totally confused about its own NAFTA-replacement agreement with Mexico in the "Intellectual Property" section, in that it was reporting that the agreement included copyright in some works for "75 years" in places and "life + 75 years" in other places, and acted as though they were the same thing. The USTR seemed legitimately confused over this issue, which did not give people much confidence that it knew what it was doing in these negotiations on the intellectual property questions. However, since that issue appeared to be one of pure confusion, which should be easily fixed in the final text, we should put our attention more towards the actual problems with what the USTR appears to be doing here.

We don't yet have the full text -- though that should be available soon -- but from the USTR's fact sheet there are many reasons to be concerned that this agreement is a massive handout to Hollywood and patent trolls, and against innovation. Let's dig in:

Enforcement authorities must be able to stop goods that are suspected of being pirated or counterfeited at all areas of entry and exit.

This seems to be an attempt to bring back some of the features of the long-derided and eventually discarded ACTA agreement, which had all sorts of problems. A big part of ACTA was ramping up enforcement by ICE in seizing "infringing" goods. Of course, this is the same ICE who wrongly seized blogs and search engines they eventually had to return years later because there was no actual evidence they were infringing. Incredibly, it announced these evidence free seizures from Disney's headquarters, making it quite clear whose interests they were representing. There are lots of other concerns with ICE these days, but the idea that it should have more power to "enforce" copyright and trademark law is problematic.

Enforcement against counterfeits and piracy occurring on a commercial scale.

This is another one that was in ACTA. The issue was that in ACTA, they greatly expanded the definition of what counted as "commercial scale" such that it would certainly catch a ton of individuals who may have been infringing at a much smaller scale than anyone would actually consider "commercial."

Meaningful criminal procedures and penalties for camcording of movies.

This is another bogeyman that the MPAA has been overreacting to for over a decade. Despite the fact that the majority of infringing films these days leak out of the Hollywood studios and their partners directly, there are still some that are cammed in a theater. It's not a huge deal, as the quality of those tend not to be that good anyway. But, the MPAA acts as if this is a total affront to America and apple pie. And, again this leads to ridiculous situations like ICE being called in by the MPAA to interrogate a guy who happened to wear his Google Glass device into a movie theater. Really. There is no need to increase penalties here and it won't noticeably impact piracy in any way. It may lead to more felony charges for kids filming their friends at a movie theater birthday party, though.

Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.

The "consistent with US law" part seems good -- but there is a very notable absence here. The fact sheet says absolutely nothing about user rights, such as fair use. Indeed it was a big deal six years ago when the USTR for the very first time agreed to include "fair use" and other user rights in a trade agreement (even if we had some concerns about the implementation). But, prior to that, all other agreements that included US style copyright requirements on other countries only exported the enforcement side, with none of the user rights. That was a huge problem, and it appears it is back again.

During meetings with the USTR over the past few days, multiple people have asked whether or not the agreement includes fair use and other rights along with the enforcement language, and the USTR has literally ignored the question multiple times. That's extremely worrisome.

Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.

This is a backdoor favor to the recording industry, which has spent years aggressively pushing for a performance rights bill, that would make radio and internet streaming sites pay even more to the labels. Other countries do have this, but many of those other countries then withhold that money from US artists since the US doesn't have such a law. The fact that the US recording industry remains so successful and the envy of the world certainly suggests that such a law is not necessary to incentivize the creation of music, but nonetheless it is still a key plank that the industry has been asking for.

This sentence in the fact sheet certainly suggests that it will be used to pressure Congress into passing a law to "harmonize" US law with Mexico (and Canada if they join in).

Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents.

Include strong protection for pharmaceutical and agricultural innovators.

It's unclear what this would mean in practice, as we already have this, so I worry that there's something nefarious snuck into the language that would prevent other fixes that Congress has opposed to limit the damage of patent trolls and bad patents.

All in all, from what the USTR has revealed, this appears to be a massive handout to a few industries: the legacy ones which have been failing to innovate lately, at the expense of the public and the industries that have continued to innovate. We'll have the full text soon, but it's not looking good. For all of the promises of Donald Trump as the ultimate dealmaker who would drain the swamp, this looks like an extra swampy handout to some giant industries.

Filed Under: canada, copyright, enforcement, mexico, nafta

US Trade Rep Appears To Misreport Its Own Trade Agreement To Include Copyright Extension

from the or-maybe-not dept

Soooooooo, you've probably heard the news on Monday about how the Trump adminstration had struck a preliminary trade agreement with Mexico to replace NAFTA. Most of the attention over the deal has to do with the lack of Canada being a part of it, with Mexico making it clear it still thought that this was a new deal with both the US and Canada and President Trump repeatedly acting as if this deal was a "take it or leave it" deal for Canada, and if they left it, it would just be US and Mexico.

There will, of course, be plenty of time to dig into the details of what's in the actual agreement, but on stuff that matters to us, it already looks bizarre. The USTR put out a "fact sheet" about the intellectual property part of the agreement and it's causing quite a bit of consternation. In particular, it claims that copyright will be extended to life+75 years. Literally no one has been asking for this. While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.

But there's been a lot of confusion about what the "life+75 years" even means here -- and it now seems quite likely that the USTR simply misunderstood its own agreement (yes, really). Current in the US, for works made for hire or corporate works, copyright lasts 95 years, and for those made by individuals, it's life+70 years. In Mexico, it's been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.

So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction? Either the USTR negotiators have no idea what they're doing (possible!), don't realize why this is a big deal (also possible) or are misreporting what's actually in the agreement. It appears the last one is likely. While the USTR told reporters on a call that they absolutely mean extending copyright to life+75 years, after that, USTR representatives started claiming that this is not an extension of copyright, but was merely supposed to be setting the floor on copyright terms of 75 years, not "life plus 75 years," in which case copyright wouldn't change in either country. But, because this administration appears to be so clueless, someone at the USTR may have taken this news and mistakenly claimed it was now life plus 75, rather than a 75 year floor.

This does not inspire very much confidence in this USTR.

Either way, if this really is an attempt to extend copyright, at some point this would need to come back to Congress to change the law, and that might be a pretty big fight on their hands, no matter how what the administration foolishly agreed upon in this preliminary agreement.

Other aspects of the IP section are also troubling, as it all seems focused on the belief that more draconian patent, copyright and trademark laws and enforcement are what's most desirable:

The new IP Chapter will:

• Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.
• Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents. 
• Include strong protection for pharmaceutical and agricultural innovators. 
• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 
• Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.
• Provide important procedural safeguards for recognition of new geographical indications (GIs), including strong and comprehensive standards for protection against issuances of GIs that would prevent United States producers from using common names. 
• Enhance provisions for protecting trademarks, including well-known marks, to help companies that have invested effort and resources into establishing goodwill for their brands. 
• Includes 10 years of data protection for biologic drugs and expanded scope of products eligible for protection.

The "full national treatment" details will be interesting to see, but it looks like an attempt to backdoor in a performance right (which most other countries have, but the US has mostly avoided) for musicians. The various "strong protection" lines about patents is problematic, as that generally means more patent trolling. And the biologics data protection stuff was a key point of disagreement in the TPP negotiations, with the US pushing for longer terms, and other countries (such as Australia) pushing strongly for shorter terms. The whole "data protection for biologics" is a way of locking up drugs that could save lives even though they don't have patent protection. Is a dangerous idea, but unfortunately, the USTR remains the home of people who only want to expand protectionism, rather than actually supporting competition.

In the end, the details here really matter a lot -- and we don't have them. Furthermore, this administration has an extensive history of not presenting things particularly clearly or accurately. But as a first pass, these "key highlights" the USTR put out suggest an agreement that is out of touch and dangerous for American innovation. Congress should do its job, as outlined in the Commerce Clause, and not let this agreement go forward if it matches what the USTR is now claiming.

Filed Under: copyright, copyright term extension, life plus 75, mexico, nafta, ustr

As NAFTA Negotiations Finish Up, Hopefully The USTR Remembers That The Internet Has Been Good For Creators Too

from the that-would-be-good dept

Over at MorningConsult I have an op-ed piece I co-wrote with Rachel Wolbers from Engine talking about why the continued attempt by Hollywood to portray debates over intermediary liability protections and fair use as being "tech" v. "creators" is completely misguided. As we've noted, Hollywood has used this framing to try to use the NAFTA renegotiations as a backdoor way to adjust US policy both here and in Canada and Mexico. And the end result would harm not just the internet but most creators who rely on the internet to create, promote, connect with fans, and to make money.

If Congress and the courts have established a framework that has led to unprecedented growth of content creation and a booming technology industry, why would NAFTA negotiators weaken these rules through international trade agreements? Unfortunately, legacy copyright gatekeepers, such as the Motion Picture Association of America and the Recording Industry Association of America, are using their outsized influence in Washington to undermine internet safe harbors and rewrite copyright law to protect their bottom line. To do this, they are unfairly trying to pit content creators against the tech community. That argument may resonate inside the Beltway, but outside D.C., small tech companies and independent content creators work hand-in-hand to promote innovation and creativity.

Startups and artists frequently work together to launch new platforms that help creators collaborate, share, distribute, promote, and monetize their content. And that makes sense because startups and artists know they must constantly hustle to grow their respective customer bases and attract investments and a following. To do this effectively, both groups need access to foreign markets so that they can scale. But they also need a legal framework that lets innovators pursue the same business models abroad that they do at home. And while Canada and Mexico remain the largest markets for U.S. startup exports, the internet has exponentially expanded the growth potential of entrepreneurs and artists alike. This trend will only continue if we continue to have a clear legal framework guiding how content can be shared.

There's a lot more in the piece, so go check it out. And, as a reminder, we're still collecting stories of how you use the internet to create over at our site EveryoneCreates.org.

Filed Under: creators, culture, everyone creates, innovators, nafta, ustr

Hollywood Has Some Wild Ideas For Copyright In NAFTA

from the everyone-creates dept

Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.

In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.

It won’t surprise anyone that we don’t always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it’s too late:

1) Safe harbors enable child pornography and human trafficking.

Outside specialized circles, common wisdom is that “safe harbors” are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.

This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.

The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.

CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.

The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.

2) Exceptions and limitations to copyright are unnecessary in trade agreements.

According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist “[i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation.” Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.

Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.

This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don’t adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn’t work without them, especially in the digital age.

Conclusion: We need to set the record straight.

For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government’s stated policy and where the world is moving.

Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they’ve been doing so for well over a century.

It’s not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

Filed Under: cda 230, dmca, dmca 512, everyone creates, fair use, nafta, safe harbors, trade

On The Internet, Everyone Is A Creator

from the it's-not-a-broadcast-medium dept

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

One theme that we've covered on Techdirt since its earliest days is the power of the internet as an open platform for just about anyone to create and communicate. Simultaneously, one of our greatest fears has been how certain forces -- often those disrupted by the internet -- have pushed over and over again to restrict and contain the internet, and turn it into something more like a broadcast platform controlled by gatekeepers, where only the chosen few can use it to create and share. This is one of the reasons we've been so adamant over the years that in so many policy fights, "Silicon Valley v. Content" is a false narrative. It's almost never true -- because the two go hand in hand. The internet has made it so that everyone can be a creator. Internet platforms have made it so that anyone can create almost any kind of content they want, they can promote that content, they can distribute it, they can build a fan base, and they can even make money. That's in huge contrast to the old legacy way of needing a giant gatekeeper -- a record label, a movie studio, or a book publisher -- to let you into the exclusive club.

And yet, those legacy players continue to push to make the internet into more of a broadcast medium -- to restrict that competition, to limit the supply of creators and to push things back through their gates under their control. For example, just recently, the legacy recording and movie industries have been putting pressure on the Trump administration to undermine the internet and fair use in NAFTA negotiations. And, much of their positioning is that the internet is somehow "harming" artists, and needs to be put into check.

This is a false narrative. The internet has enabled so many more creators and artists than it has hurt. And to help make that point, today we're launching a new site, EveryoneCreates.org which features stories and quotes from a variety of different creators -- including bestselling authors, famous musicians, filmmakers, photographers and poets -- all discussing how important an open internet has been to building their careers and creating their art. On that same page, you can submit your own stories about how the internet has helped you create, and why it's important that we don't restrict it. Please add your own stories, and share the site with others too!

The myth that this is "internet companies v. creators" needs to be put to rest. Thanks to the internet, everyone creates. And let's keep it that way.

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

Filed Under: creativity, dmca, dmca 512, everyone creates, everyone is a creator, fair use, internet, nafta, safe harbors