Why Does The USTR Still Think Any Website That Might Upset Hollywood Is Illegal?

from the that's-not-how-it-works? dept

We've written a few times in the past about the USTR's ridiculous "notorious markets" report, which is an offshoot of the already ridiculous Special 301 report, in which the USTR is supposed to name and shame countries that don't respect US intellectual property laws... based on whichever lobbyists whined the most to the USTR (seriously: the process is no more scientific than that). The "notorious markets" report is even more ridiculous, and lets the USTR go even further afield, often naming perfectly legal internet services just because Hollywood doesn't like them. It got seriously ridiculous last year when the USTR expanded the list of domain registrars, including the very popular domain registrar Tucows. The USTR claimed that it was okay to put Tucows on the list because it "failed to take action" when notified of infringement.

Um. But that's the correct thing to do. A registrar's job is just to manage domain registrations and not to police what's on those sites, or to strip those domains. If someone is infringing on copyrights/trademarks/whatever, take it up with whoever is behind the site, not two steps removed to the company that registered the domain. Many people pointed this out last year, but this is the USTR we're talking about, and the USTR doesn't give a fuck. It just went right back out and with the release of the 2016 Notorious Markets List is still listing domain registrars and other websites that are perfectly legal, but which Hollywood or other big legacy industries don't like very much.

While Tucows is no longer listed, they do name Domainerschoice as a "notorious market" because many online pharmacies have purchased domain URLs from that registrar. But, again, if the online pharmacies are the problem, go after those pharmacies, don't blame the domain registrar. Domainerschoice is just creating a database and selling URLs, not hosting any content or selling any drugs, legal, gray market or illegal.

The new report also puts a special focus on the perfectly legal stream ripping business. There are many legal purposes and reasons to be able to record streaming audio/video, but the USTR pretends there are none and that this is a great scourge:

Stream ripping is an emerging trend in digital copyright infringement that is increasingly causing substantial economic harm to music creators and undermining legitimate services. Stream ripping is the unauthorized act of converting a file from a licensed streaming site into an unauthorized copy for distribution via download to the requester. Stream ripping often involves violations of terms of use and the circumvention of technological protection measures that legitimate streaming services put in place to protect music content from unauthorized copying and distribution. A study from the International Federation of the Phonographic Industry shows that stream ripping is on the rise in the world’s leading music markets. Nearly 30 percent of Internet users obtain unauthorized copies of music from stream ripping services. This is the first Notorious Markets review in which copyright stakeholders have nominated stream ripping sites for inclusion in the List.

As EFF points out, stream ripping has plenty of perfectly legal uses, and if they're a violation of a site's terms of service, that's for the site to deal with, not the US government:

In many cases, stream ripping is a legitimate, lawful activity. YouTube contains thousands of videos with audio tracks that are freely licensed, and some that aren't copyright-protected at all. In other cases, stream ripping may be a fair use of a copyright-protected audio track. In fact, EFF's Cory Doctorow writes, “I used YouTube-MP3 to rip a video of my own reading, of my own story, just today—so I could include it in my podcast feed.”

While the USTR points out that stream ripping may be in violation of the terms of use of the streaming site—YouTube, in this case—that is nobody's business but YouTube's. While YouTube is at liberty to block YouTube-MP3 from accessing its servers if indeed they are violating its terms of service, this doesn't give the government or copyright holders any similar cause for complaint.

Hell, it's not like there isn't a major Supreme Court ruling noting that recording streams (television, in that case) for the purpose of time shifting is perfectly legal fair use, and the makers of the equipment to do so are not violating the law, so long as there are "substantial non-infringing uses."

Does the USTR simply not know the law? Or do they know and just not care?

The EFF also points out two other serious problems with the new report, including naming Libgen and Bookfi to the list -- both of which are online libraries, with a focus on providing educational materials to people who couldn't otherwise access it. We've written a few times in the past about Libgen, mainly because the similarly infamous Sci-Hub uses it as a source for academic papers. While the EFF notes that it's likely that these online libraries may be violating copyright law, they are doing so to further access to knowledge and educational materials. It kinda says something when the USTR thinks that's a "notorious market" that is a problem.

Finally, there's the question of cyberlockers. Here, again, the USTR seems to ignore the law, and the fact that cyberlockers are protected by the DMCA's safe harbors. The USTR, again, doesn't seem to care, because the entertainment industry is whining. In particular, there are concerns about the naming of 4shared, a site that complies with DMCA takedowns and and has gone above and beyond that by offering up a ContentID-like filter to implement a form of notice-and-staydown that is not required by the law. But the USTR doesn't care.

Because the files uploaded to 4shared are uploaded by users, the site is protected from liability by the safe harbor provided by section 512 of the DMCA, and is only required to disable access to infringing files once a copyright holder sends it a notice in compliance with that law. This is one of the bedrock principles that underpins the success of America's dynamic and innovative Internet industry.

Like YouTube, 4shared has also voluntarily chosen to go above and beyond the requirements of the law, by also putting in place a music identification service that blocks users from sharing files that match music tracks that a copyright holder claims to own. We have serious concerns about such automated content matching systems, but leaving that aside, the adoption of such a system hardly seems like the behavior of a website dedicated to facilitating infringement.

And that's not all. The USTR has also named the popular Russian social network Vkontakte (VK). For years, VK was well-known as a place where people uploaded and could access tons of unauthorized content, but in recent years, the company has been cutting tons of licensing deals to make all of that content authorized. So the company is not at all happy to be back on the list, seeing as it's spent years getting licensing deals. So why is it still on the list? Because the USTR apparently wants to cement its reputation as a laughingstock in the copyright world, where whatever Hollywood says is the law it abides by, rather than the actual laws of the United States.

Filed Under: cyberlockers, domain registrars, notorious markets, stream ripping, ustr
Companies: 4shared, domainerschoice, libgen

USTR Goes Off The Deep End: Names Domain Registrar Tucows As A 'Notorious Market' For Piracy

from the keep-it-together,-ustr dept

As part of the annual joke from the USTR known as the Special 301 Report (which is so ridiculous that even top people at the US Copyright Office mock the USTR about it), the USTR publishes what it calls its "notorious markets list." The Special 301 Report, if you don't know, is the report where big companies whine to the USTR about countries those companies feel don't respect US intellectual property rights enough. The USTR collects all of those whinings, and rewrites it as a report to send out to US diplomats to try to shame countries into "cracking down" on the behaviors that these companies don't like -- no matter whether or not it complies with US or local intellectual property laws. Starting a few years ago, the USTR broke out a separate list of online websites, which it refers to as "notorious markets." It started doing this in 2011, in a process that was intended to support SOPA (because SOPA supporters wanted the list of "rogue" sites that would be banned under SOPA).

The USTR itself admits that there's basically no objective or legal rationale behind its process:

The List does not purport to reflect findings of legal violations, nor does it reflect the U.S. Government’s analysis of the general IPR protection and enforcement climate in the country concerned.

The latest Notorious Markets list is out (technically, it's the "2014 Out-of-Cycle Review of Notorious Markets") and it's full of the usual misleading crap. It's quite amazing to watch US government officials celebrating the censorship of online forums and websites, calling it "progress." Free expression is not particularly important to the USTR when the MPAA complains about it, apparently.

But the really astounding move in this latest report is by the USTR to start including domain registrars as "notorious markets," including one of the most popular and widely used registrar in the world, Tucows:

This year, USTR is highlighting the issue of certain domain name registrars. Registrars are the commercial entities or organizations that manage the registration of Internet domain names, and some of them reportedly are playing a role in supporting counterfeiting and piracy online.

And here is the entry against Tucows:

Tucows.com: Based in Canada, Tucows is reportedly an example of a registrar that fails to take action when notified of its clients’ infringing activity. Consistent with the discussion above, USTR encourages the operators of Tucows to work with relevant stakeholders to address complaints.

Not surprisingly, the USTR lays the FUD on thick in claiming that it feels the need to do this to protect you against dangerous counterfeit drugs that are being offered on these sites, and those evil domain registrars that refuse to shut down an entire business because someone has complained:

Several respondents to the 2014 Federal Register Request identified registrars that purportedly facilitate the distribution of unauthorized copyright-protected content. One respondent identified several registrars that have apparently refused requests to lock or suspend domain names used to sell suspected counterfeit pharmaceuticals to consumers worldwide. This conduct also presents a public health challenge, and requires a coordinated response by governments and a variety of private sector stakeholders.

According to one report, an estimated 96 percent of online pharmacies targeting U.S. consumers are operating in violation of applicable U.S. law and standards. An estimated 50 percent of websites worldwide that hide their physical address are selling illicit pharmaceuticals, including those labeled with counterfeit trademarks. The website www.LegitScript.com has reviewed over 40,000 online drug sellers, but found fewer than 400 to be legitimate. Studies have found that counterfeit anti-cancer, anti-HIV/AIDS, and other medications are not only ineffective, but in some cases may contain toxic or deadly adulterants, such as rat poison.

As you may recall, the scary stories about "counterfeit drugs" and conflating that with copyright infringement is standard operating procedure for those pushing for stronger copyright enforcement. That's because they can't show any real harm from copyright infringement, so they talk about drugs. But what they miss is the fact that counterfeit drugs are actually a very very small problem. The cases of "toxic or deadly adulterants" are exceedingly rare. Even when dealing with unauthorized pharmacies, studies have shown that they tend to deliver legitimate products (it's not good business to kill your clientele, after all).

As for the whole "only 400 out of 40,000 online drug sellers are legit" claim -- well, consider the source. LegitScript is known for frequently conflating online pharmacies that are questionable, with perfectly reasonable authorized Canadian pharmacies that merely "reimport" legitimate versions of drugs at much lower costs than US pharmacies. LegitScript has regularly been used to try to shut down or to tar and feather Canadian pharmacies that provide much cheaper access to medicine. President Obama, in the past, spoke out in favor of allowing more "reimportation," but later went back on that campaign promise, once American pharmaceutical companies got angry. Even Senator Patrick Leahy, the author of PIPA (SOPA's companion bill in the Senate) has been a big supporter of reimportation of drugs from Canada.

And yet, the USTR implies that merely reimporting drugs is the same as someone selling rat poison pretending it's something else. The big pharmaceutical companies have been really pushing a lot lately to force ISPs to completely take down websites if they sell drugs that weren't originally intended for the US, even if there is no court order or other adversarial process. They just want to complain and have the sites taken down. It appears that Tucows, quite reasonably, finds this to be somewhat excessive... and in response the USTR labels it as a "notorious market."

To put it mildly, this is absolutely crazy.

Note that this is the very same USTR that is currently negotiating the TPP and TTIP agreements, which it insists will help promote a free and open internet. Yet, at the very same time, it's going around and calling domain registrars "rogue markets" because they won't arbitrarily take down entire websites, because some pharmaceutical company complains that it doesn't want the competition and some movie studio is pissed off that a website links to some infringing content (no matter what else may be on that site, or who is actually responsible).

It is difficult to see how the USTR can claim to be in favor of an open and free internet, and the free flow of information (as it claims), when at the very same time, it's arguing that domain registrars themselves should not only be held responsible for any infringement, but rather that they should censor entire sites just because the users of some sites whose domains were registered via that registrar, happened to infringe. Next thing you know, the USTR will be demanding that the makers of asphalt be held responsible for not stopping cars that have counterfeit tires from driving.

The USTR has long been something of a joke, but recently it has tried to present itself as really "getting" the internet after years of not getting it. By naming Tucows as a "notorious market," however, the USTR has only shown how totally clueless it remains, and raises very serious questions about its focus and knowledge as it negotiates important trade agreements.

Filed Under: domain registrars, notorious markets, ustr
Companies: tucows

MPAA To USTR: More Shutdowns Like Megaupload, Please

from the protectionism-at-its-finest dept

The USTR has released the various comments sent in for its annual "notorious markets" report. This is related to its annual Special 301 report, and it's where the USTR basically takes the list of sites and countries that the entertainment industry (and the pharmaceutical industry) don't like... and declares them "notorious" for not doing enough to please the execs in those industries in cracking down on infringement. TorrentFreak points us to the latest filing from the MPAA, which is chock full of... not a single surprise. Basically it just names all the websites that it doesn't like because they challenge its business model. Same old story. But where it gets a little interesting is where the MPAA gleefully talks up how totally awesome it was when the feds shut down Megaupload, and implies that life would be that much grander if the feds did that kind of thing more often:

This year's seizures of Megaupload.com and Megavideo.com by the Department of Justice illustrate the extent and impact that hosting hubs have on the online landscape. Prior to the seizures, Megavideo.com (Alexa 177) and Megaupload.com (Alexa 72) were estimated to receive 3,447,7741 and 2,640,8452 unique visitors each month, respectively. Megaupload.com alone was estimated to have consumed 11.4% of the Internet bandwidth in Brazil. When these two websites were taken down, many linking websites, custom search engines, and custom streaming scripts that relied on the sites for content became inoperable. Some websites were abandoned by their operators, others lost traffic, while still others shifted their business model. For example, Wupload.com (Alexa 918), which was featured in MPAA's filing last year, disabled file sharing. Affiliate programs that paid uploaders for content were also discontinued or removed by many hubs. Further, infringing content was purged by operators in bulk, which was followed by uploaders who deleted their own files to prevent the hubs from profiting on the uploads without paying incentives. In sum, the impact of these seizures was massive and the hub landscape is still recovering.

I have to admit that I'm not sure I understand the comma notation in those unique visitor numbers (don't you normally put a comma every 3 digits rather than 4? Is that a phone number? Are they talking about 3.4 million or 34 million?).

But, either way, the whole bit of glee over Megaupload is fairly unseemly given a few key points. First off, the absolute disaster of the case against Megaupload so far. Eventually, they may get their act together, but to date, it's involved missing or destroyed evidence, questions about the warrant, illegal spying, more requests to destroy evidence and general attempts to demonize the people involved. While Megaupload may eventually be found guilty, that's far from certain at this point. All of these errors are certainly raising significant doubts about the DOJ's ability to understand what's actually happening.

And it's that last fact which highlights why the takedown process here is totally broken. Even if Megaupload is eventually cleared, the company will have lost more than a year (and likely more) to fight the lawsuit, and the company, as it is, is basically dead. It's still never been adequately explained why the MPAA can't do what the law requires, and take the targets to court, seeking an injunction. These aren't drug lords they're dealing with. They can be tracked down and found (without resorting to illegal spying). That's not to say the sites should be legal, necessarily. That's fact-specific. But, the idea that the US government, at the urging of Hollywood, should just take down a business, without letting the site owner even express their side, is so extreme as to be laughable. You would think that, given how badly this whole thing may backfire in its face, that MPAA would have started backing away from the whole "Megaupload is a perfect example" stump speech by now. But it seems to want to play out that lie for a while. To then play that up as a good example really suggests that the MPAA is in denial and still thinks that the scary caricature of Kim Dotcom that it has built up in the minds of Hollywood execs, is still a legitimate thing.

Filed Under: censorship, notorious markets, ustr
Companies: mpaa