Been meaning to get to this for a few days now, but finally had the chance now. Last week the always excellent radio program On The Media from WNYC, I had a bit of a discussion on SOPA/PIPA (and the Megaupload shutdown). I was on the first segment discussing some of the problems with the bills. The actual interview happened Tuesday, before the big protest, before all the politicians dropped off, and before the Megaupload takedown occurred. Otherwise I might have had a few more comments about all of that. There's probably not too much surprising in what I have to say if you're a regular reader of my SOPA/PIPA coverage.
Right after me, however, they also talked to Steve Tepp from the US Chamber of Commerce. Tepp is the point person at the USCoC who has been more or less in charge of getting SOPA/PIPA passed. Amusingly, the segment that I recorded with OTM was recorded about half an hour after I got off stage at the Congressional Internet Caucus' State of the Net event, where I debated Tepp on some of these issues (video from that is apparently forthcoming). If I'd known they were going to have both of us on, perhaps we could have both gone into the same empty ballroom at the hotel to record the session together. Either way, Tepp, says a bunch of things that I believe are simply not true.
"The legislation is, in fact, very narrowly targeted. The bill requires - for example, the Senate bill, the Protect IP Act, that the website in question be dedicated to infringing activities, that its primary design and primary use is counterfeiting or piracy."
I know that SOPA/PIPA supporters love to say this, but they do so while ignoring what the specific definitions say. The problem is how broadly worded and open to interpretation the definitions actually are. While the most recent version of SOPA trimmed back some of the more ridiculous parts of the definition found in the original SOPA, I can't think of anyone who's looked at these laws objectively and seen them to be truly narrowly tailored. That may be the intention, but the language suggests otherwise.
Thankfully OTM host Bob Garfield calls Tepp out when Tepp tries to claim that all of the people protesting against the bill are doing so because of "misinformation online." Garfield notes that Google is against the bill, and it's not like it got its information via a Google search. Tepp's response is misleading:
Well, the one provision that got all these folks excited was the requirement that after the Attorney General brings a case and after a Federal court finds that a site is dedicated to this criminal activity, that the site not be reachable from the United States, that the Internet companies would block access to that site. And that's what a lot of folks said, oh, this is -- this is a problem for the Internet, it's gonna break the Internet.
Now, that seemed to me to be quite overblown but, in any event, in the spirit of compromise, sponsors of both the Senate bill and the House bill have said, we're gonna roll that back. And yet, folks are moving the goalpost and saying, nope, still not good enough. So I don't know what the concern is. To me if I get what I ask for, I stop complaining.
That was indeed one very big problem with the bill, but it was hardly the only problem. And Google and many others laid out a bunch of problems. The fact that DNS blocking was delayed (not removed, by the way) hardly fixed the problems. To pretend that that was all that Google wanted would be to ignore what Google has actually been saying. Either way, Tepp goes on to trot out the standard talking points:
But at the end of the day, we know that protecting American consumers and protecting American jobs from foreign criminals is in the best interest of this country. We know that members of Congress are gonna see that. And we are going to hold their feet to the fire and make sure that these criminals can't continue to get away scott free.
Except, of course, as was shown the very next day after the interview took place, existing laws already have the power for the US to take down foreign websites and arrest foreign website owners. That certainly seems to deflate much of the argument that Tepp has been making. Furthermore, it's worth noting that one of Tepp's favorite talking points -- about there being "53 billion visits" to these "foreign rogue websites," involves a study that concluded that Megaupload supplies a rather large percentage of those 53 billion visits. So, why, again, do we need this new bill?
If anything, the Megaupload takedowns are showing exactly the fears that many people worried about with SOPA. That is, even if Megaupload execs were skirting the law, the takedown has caused tons of legitimate users of Megaupload to lose out on their own content and storage, disrupted businesses, and caused many other cyberlockers to have to remove useful features, or block access to US users. These are exactly the kinds of collateral damage that people were worried about in protesting SOPA/PIPA -- and now they're realizing that the US government already has that power, and Tepp's insistence that there would be no real damage to anyone other than "foreign criminals" has been proven wrong.
Last year, we pointed out that Steven Tepp, who worked at the US Copyright Office at the time, and was heavily involved in pushing for ACTA (and downplaying the legitimate concerns of ACTA critics), jumped ship to the private US Chamber of Commerce, which has been one of the stronger supporters of such bad laws. The Chamber of Commerce, which is basically a lobbying organization for some of the world's biggest businesses, has a history of making up absolutely ridiculous claims about intellectual property, so it's really not a surprise that it would hire Tepp, who did the same thing from within the government.
However, when Tepp speaks out in support of greater protectionism, especially based on a complete lack of evidence, shouldn't the press point out that he was heavily involved in the crafting of some of the legislation he's now supporting from the "outside"? For example, Hillicon Valley has an article about a silly new study from MarkMonitor, which notes the unsurprising fact that, gosh darnit, there are a lot of sites out there that offer infringing products. Big shock. But the article then quotes Tepp saying:
"Online counterfeiting and piracy is a destructive force that threatens consumers, hurts our businesses, and costs American jobs."
That's a sort of go to line that we hear all the time. Funny thing is, no one supports it with any actual evidence. It's purely faith-based. What's the neat trick that Tepp pulls is he says this in commenting on a report that sounds like it's presenting evidence to back up his claims. It is not. The report says that there are lots of sites out there offering pirated or counterfeit content. That's different than proving that those sites are "destructive" or harm consumers or businesses. In fact, over and over again, when you have independent research that looks at those actual questions, you discover that the actual impact of such activities is significantly less than industry lobbyists would have you believe.
So rather than just letting someone like Tepp, who is inherently biased, comment on a report that does not make the claims he says it makes, why not speak to folks who might question some of the claims from the report... or at least note that Tepp is hardly an impartial observer here, but someone who is paid to pretend that the impact of copyright and trademark infringement is significantly worse than any of the evidence actually suggests?
As for the actual report that Tepp was commenting on, it doesn't actually say what Tepp says it says. You can read the details of the report (pdf) here. It's almost laughably weak in its methodology. Nowhere does it support any of Tepp's claims -- and you would think that a journalist wouldn't quote a biased commenter making claims that have nothing to do with the report in question. Specifically, the MarkMonitor report simply looked at some sites that are used for infringement, then assumed that they were used entirely for infringing purposes, and then used Alexa ratings (perhaps the least credible measuring system out there) and simply added up all visits, and seemed to suggest that this was all for infringement. When it came to pharmaceuticals, the researchers did not appear to make much of an attempt to determine which offerings were really gray market importers of generic drugs, as opposed to counterfeits. Instead, it just made some assumptions based on the sites themselves.
So basically, all the report actually shows is that, according to Alexa (again, not considered to be even remotely accurate), some sites that may have some infringing downloads or may sell some unauthorized products get a lot of traffic. Like that's a surprise. And yet, that leads to a quote from a biased ex-government official, now paid to hype up the "threat" of infringement, as if this study proves we need the new laws he was a part of writing? How is that responsible journalism?
The session kicks off with U.S. Copyright Office official Steven Tepp defending ACTA, by saying right from the outset, "Quite candidly, we're in the midst of a worldwide epidemic of copyright piracy." What kind of epidemic? Well, he uses that old line about how organized crime groups and terrorists are being funded by copyright infringement -- a claim that the industry keeps making, but which makes little sense. Even if it were true that some crime operations are selling bootleg DVDs and such, aren't they under the same, if not more, pressure from unauthorized internet file sharing?
But, even more to the point, tossing out the "organized crime" and "terrorists" claim (never with any actual evidence, of course) is a pure moral panic. If organized crime groups and terrorists are a problem, go after them for their organized crime and terrorism efforts. Don't claim that we need to put in place restrictive copyright laws that impact everyone just because law enforcement is unable to stop these organized crime groups. And it's worth pointing out while Tepp claimed this is all about organized criminals and terrorists... pretty much all of his comments following that had nothing whatsoever to do with either, but were more directed towards file sharing.
Tepp's next point is to back this up by quoting the widely laughed at (even by Tepp's own bosses) USTR Special 301 report, which has no actual methodology, other than to repeat whatever complaints are made by the entertainment industry and the pharma industry, without any effort to back that up with facts or data. That's not evidence. That's just US companies begging the government for protectionist policies against competitors. Amusingly, Tepp won't even name the countries he's talking about, so that people can point out the mistakes or problems in the USTR's report. He refers to "one Latin American country" or "one Western European country," by which he means Spain, but never says that -- perhaps because the USTR's report on Spain is misleading and not accurate. For example, he claims that in Spain (er this "Western European country") "internet piracy is no longer prosecuted and that government seems to be moving in a number of wrong directions with regards to online enforcement."
That's insulting to the Spanish and blatantly incorrect. Spanish copyright law has recognized that private, non-commercial file sharing is not the same thing as commercial counterfeiting. It's really quite misleading and disingenuous for Tepp to kick off this talk by saying he's not talking about internet downloading but about organized crime and terrorists... and then just a couple sentences later, complain about Spain not punishing kids for downloading some songs for their iPods. Furthermore, the big complaint about Spain is that it properly recognizes that a search engine or a tool should not be blamed for the actions of users. The US used to believe that too. But does Tepp explain any of this? Nope. He makes it out like the Spanish gov't is supporting terrorists. This is blatantly untrue and misleading. And, honestly, claiming that Spain's decision to create copyright laws that make sense is the country going in "the wrong direction"? That's insulting.
However, it does show how the whole ACTA debate is being distorted by the industry. They'll claim over and over again that it's about stopping organized crime and terrorists, but then immediately assume that people doing file sharing online should get lumped in with those people.
From there he goes on to pull out the usual bogus (and legally false) claim that these actions "rob" the United States. Uh, what? If the US is being robbed, charge the perpetrators with theft, and move on. A government official should not be making such legally incorrect statements to support a policy. This is not about anyone being robbed. This is about countries that have made reasonable determinations on how copyright law should be applied. And many folks have figured out how to work successfully within those legal regimes. That a few US companies don't want to adjust shouldn't lead the US gov't to forcing other governments to change their laws.
And then, the kicker. Like Ron Kirk recently claimed, Tepp says that now that the ACTA document has been released, it's proved all the "wild internet rumors" to be "false." Um. Except that's not true. The details showed that there are massive problems with ACTA, in that it only exports the restrictions with none of the exceptions. While it is true, technically, that it is "consistent with US law," today, that ignores the fact that US law is constantly changing, and ACTA would lock in aspects of the law, without allowing Congress to make important and necessary changes for fear of "not living up to our international obligations." Fixing problems with current case law (not statutory law) on what constitutes "contributory" infringement? ACTA limits that. That's a huge problem that many people pointed out in those "wild internet rumors" and it was proved 100% true.
Later on Tepp makes even more bizarre claims (amusingly, right after he slips up and calls it a "treaty" despite all the efforts of US negotiators to make sure they never called it a treaty). He says that ACTA has no intention of changing whatever balance each individual country makes in terms of copyright sanctions or exceptions. He specifically says:
"ACTA very clearly, from day one, has never been about changing the balance of copyright law. It doesn't talk about rights. It doesn't talk about exceptions... ACTA's just saying, whatever the infringement provisions and exceptions you have in your law, are up to you (consistent with all those other treaties we've all negotiated and agreed to), and you should have some minimum type enforcement actions available so that the remedies for violating those rights... have some meaning... So to say that ACTA is exporting without exceptions is to ignore that it's also exporting without rights. It's not talking about rights or exceptions."
That's blatantly untrue. The provisions on secondary liability do exactly that -- increase restrictions, without corresponding exceptions. And if it's not changing what any country does, then what's the point of the document in the first place? To say that it's just setting a "minimum type [of] enforcement" is to say that it's requiring specific copyright sanctions, which was exactly the complaint. Furthermore, the idea that this is needed to make sure enforcement "has some meaning" is again incredibly insulting to the decisions on copyright law that those other countries have made -- such as Spain's decision that personal, non-commercial copying should not be treated like for-profit, commercial copying.
Tepp is playing sneaky word games. When people complained about how ACTA exports enforcement provisions without the exceptions, Tepp focuses on the fact it doesn't export rights, but ignores the enforcement provisions -- which is what people were concerned about in the first place!
Anyway, he goes on to try to address the secondary liability claim, first by mocking the example that was brought up earlier of the Google execs found guilty of criminal privacy violations:
In terms of secondary liability issue, this is another red herring. The Google case in Italy, that happened entirely without ACTA. How is that possible? How could something bad happen without ACTA?
Once again, blatantly misleading. The example of the Google execs was used to show how secondary liability could create harm for American companies, by highlighting troubling secondary liability rulings in a different realm -- in this case privacy law. It wasn't saying that it was directly an example of what would happen with ACTA, but highlighting how secondary liability, as a concept, can lead to bad results. Tepp either feigned ignorance or was actually ignorant of the fact that this example was just showing secondary liability problems in privacy law, to suggest how those problems might also show up in copyright law. Mocking such a serious problem with secondary liability does not inspire confidence that Tepp or the US Copyright Office has even thought through the consequences of secondary liability.
That's scary.
Tepp continues:
ACTA doesn't mandate every jot and till of secondary liability. It sets forth the basic approach to it in the US and proposes that as standards to follow elsewhere. Could countries go beyond that? Sure. Have countries already gone beyond that already? Sure. Does ACTA require it? No... This is something ACTA does not require...
Um. What? Section 2.18.3 of ACTA, as it stands, appears to require third party liability (i.e., "secondary liability") and the related footnote to that section defines it pretty clearly:
For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another.
Once again, Tepp is being misleading. He's pointing out that ACTA sets the floor for secondary liability based on what's in the US, but totally ignores the fact that secondary liability for copyright in the US is a highly dynamic area. It's not in the statute anywhere -- a law that tried to put it there did not pass -- and really was only defined by the Supreme Court just a few years ago in a manner that many people find problematic. If ACTA sets that as the floor, then it limits the US from being able to fix the problems with the Supreme Court's definition. At the same time, note that Tepp only talks about going "beyond" what's in the US today. He doesn't seem to realize that many countries find the US's view of secondary liability as already having gone way too far.
He's right that countries can already go further, and some do, on their own, but that does not minimize the fact that encouraging greater secondary liability will likely come back to haunt many US companies.
Thankfully, Michael Petricone from the Consumer Electronics Association responded to Tepp's statements by making many of the same points I'm making. Later he highlights many of the other problems with ACTA, including the lack of Congressional oversight, and the failure to involve stakeholders and the public (Tepp, amazingly, says that the process has been open to anyone who wanted in). A great moment, about halfway through, is when Petricone challenges Tepp, by saying that if he's right that "there's no 'there' there," then "why the secrecy?" Tepp's response? Basically "that's not my department."
A few other points:
Richard Bengloff, from A2IM (representing independent labels), admits that they decided to support ACTA despite not having seen it. He says that someone from the RIAA "briefed him" on the background and that was enough for them to support it wholeheartedly. That's scary. Considering that the specific language choices are really important for the kind of impact ACTA will have, to say that an entire organization was in full support of the document, without even knowing what it really said, is stunning and a huge question market for A2IM. Why would you trust an organization that blindly accepts an important document it hasn't seen?
Later on Bengloff makes this hilarious statement: "We're going to support anything of any type that stops this crime." And, of course, he emphasizes the word crime. Like Tepp before him, he is deliberately mixing certain criminal activities and civil infringement for personal use as if they are the same thing. And, he's being woefully uninformed if he thinks that ACTA will actually do anything to actually stop file sharing. He's doing the labels he represents a great disservice.
Petricone does an excellent job responding to Bengloff on this point, noting that it's ridiculous to say you'll support "any" action designed to stop file sharing, when you don't look at the wider consequences of those actions -- including on other industries and the public at large.
Petricone also highlights how the entertainment industry has been blurring issues by lumping copyright in with counterfeiting, saying that if the agreement focused on actual counterfeiting, there wouldn't be so many complaints about the proposed agreement.
Malini Aisola, from KEI, reminds everyone how silly it was that the USTR wouldn't share the documents earlier, despite FOIA requests, claiming that keeping the documents secret was a matter of national security (a position that still has never been explained).
Tepp is incredibly condescending to Aisola, when she expresses concerns about some of the language in the text and how it will impact seizure of legal generic drugs. He reads off a press release from ACTA negotiators that says ACTA won't impact that issue. As if the press release of what ACTA negotiators say the agreement will do has any impact on what the agreement actually says. Aisola has a list of text KEI would like included in the document, as a "consumer Bill of Rights" to ensure that what's in the press release is true, and Tepp shoots her down by saying that such agreements don't usually contain that kind of text. He says we should only discuss what's directly in ACTA, and if it violates those principles -- again, dismissing the idea that exceptions are important to making sure enforcement is not overly draconian.
A final point from Bengloff, equally as jaw dropping as his earlier comments: "If we don't stop piracy, we won't be in the music business because there will be no more creation." Yes, that's why more music is being created today than ever before, and there are more people making money from music than ever before. This argument that without strong copyright law there will be no more creation is beyond laughable. Lots of folks have figured out business models that work without involving copyright law. Pretending those models don't exist is blatantly ridiculous. You would think that, as an industry association for independent labels, A2IM would be on the forefront of encouraging these better business models, but instead they're sucking up to the RIAA demanding protectionism for the same copyright laws that have allowed the major labels to be the gatekeepers in the market, at the expense of indie labels.
