Copyright Law Discriminating Against The Blind Finally Struck Down By Court In South Africa

from the about-time dept

Most people would agree that those who are blind or visually impaired deserve all the help they can get. For example, the conversion of printed materials to accessible formats like Braille, large print, or Digitally Accessible Information System (DAISY) formats, ought to be easy. Who could possibly object? For years, many publishers did; and the reason – of course – is copyright. For example, publishers refused to allow Braille and other accessible editions to be shared between different countries:

while the ONCE library in Spain has more than 100,000 titles in accessible formats and Argentina has over 50,000, these titles cannot be shared with the 19 Spanish-speaking countries across Latin America. Similarly, some years ago, charities working in five English-speaking countries, including the Royal National Institute for the Blind in the UK and Vision Australia, were obliged to produce five identical Braille master files for the same Harry Potter book, costing them valuable time and money.

The Electronic Frontier Foundation (EFF) described the situation back in 2012:

Copyright protections create barriers for people with disabilities, yet big publishers continue to block efforts to create exceptions to remedy the problem even as hundreds of millions of people would stand to benefit worldwide. In the US alone, those with print disabilities represent 30 million people. According to an estimate by the World Health Organization, there are about 285 million visually impaired people in the world, and 90% of those are in the developing world.

Later that same year (2012), negotiations finally began on a treaty laying down copyright exceptions and limitations that would allow those with visual impairments to convert works, and share them internationally. The World Blind Union had some modest aims for the new treaty:

Make it legal for print disabled individuals and specialist organizations to make accessible copies of published works in all countries which sign the treaty;

Make it legal for accessible books to be sent internationally without permission from publishers;

Prevent contracts with publishers from undermining copyright exceptions for print disabled people (currently they sometimes do).

Pretty reasonable, most people would say. But the EFF reported at the time that negotiators were “unable to reach a consensus on many of its most contentious issues, such as allowing exports of adapted works across borders and circumventing technological protection measures to enable accessibility”. In addition, people with hearing disabilities were “written out of the draft“, and US negotiators blocked exceptions and limitations for audiovisual works at the behest of the Motion Picture Association of America (MPAA).

It took another four years before what came to be known as the Marrakesh Treaty was agreed on and entered into force. Since then, countries around the world have been ratifying the treaty, with greater or lesser degrees of haste. One nation that has still not yet ratified the Marrakesh Treaty is South Africa. The reason given was that the country’s main Copyright Act, from 1978, prevented the government from doing so. Happily, that obstacle has finally been removed, reported here by the Oxford Human Rights Hub:

After hearing arguments from the amici on important issues of the rights of all people to freely impart and receive information and the interpretation of South Africa’s existing obligations under international human rights law and copyright law, the Pretoria High Court held that the Copyright Act is unconstitutional to the extent that it unfairly discriminates against people living with visual and print disabilities as it effectively prevents them from accessing materials under copyright.

It’s simply scandalous that in 2021 the visually impaired still need to fight in this way for their basic rights to “freely impart and receive information”. Once again, it is outdated copyright law that is to blame – together with the selfishness of publishers who view their rights to exclude people from knowledge as more important than those of the blind to access it.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Story originally posted to the excellent new Walled Culture website.

Filed Under: accessibility, blind, braille, copyright, large print, marrakesh treaty, south africa, wipo

If You Want To Know Why Section 230 Matters, Just Ask Wikimedia: Without It, There'd Be No Wikipedia

from the also-just-grow-up,-china dept

It sometimes seems that Techdirt spends half its time debunking bad ideas for reforming or even repealing Section 230. In fact, so many people seem to get the law wrong that Mike was moved to write a detailed post on the subject with the self-explanatory title "Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act". It may be necessary (and tiresome) work rebutting all this wrongness, but it's nice for a change to be able to demonstrate precisely why Section 230 is so important. A recent court ruling provides just such an example:

On September 15th, in a victory for the Wikimedia movement and for all user-driven projects online, a Florida judge dismissed claims of defamation, invasion of privacy, and infliction of emotional distress against the Wikimedia Foundation. The judge found that Section 230 of the Communications Decency Act immunizes the Wikimedia Foundation from liability for third-party content republished on Wikipedia. In other words, Section 230 helps Wikimedia safely host the work of Wikipedia's contributors and enables the effective volunteer-led moderation of content on the projects.

As the Wikimedia blog post notes, this was an absolutely crucial result. If collaborative projects that are created, maintained, and curated by volunteers could be held liable every time a user contributed something that was inaccurate or offensive, none of them would last very long -- not least because they generally lack the resources to fight expensive court cases. Back in 2017, Wikimedia wrote a detailed post on Section 230, and why it made Wikipedia and other sites possible

The court's ruling is a big win for Wikimedia. On the other hand, in something of a (minor) defeat, China has yet again blocked the Wikimedia Foundation's application for observer status at WIPO -- the only country to object. This is the second time it has done so, and for the same reason:

As in 2020, China's statement falsely suggested that the Wikimedia Foundation was spreading disinformation via the independent, volunteer-led Wikimedia Taiwan chapter. The United States and the group of industrialized countries at WIPO -- which also includes many European Union member states, Australia, Canada, the Holy See, Israel, Japan, New Zealand, Norway, Switzerland, Turkey, and the United Kingdom -- expressed their support for the Foundation's application. Since WIPO is generally run by consensus, any one country may veto accreditation requests by non-governmental organizations.

China's blocking of a small, apolitical organization that aims to promote knowledge around the world just looks incredibly petty, and is hardly befitting for a world power.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: china, defamation, free speech, internet platforms, section 230, taiwan, wikipedia, wipo
Companies: wikimedia foundation, wikipedia

WIPO Says Johnson & Johnson Can't Seize Parody Website Suggesting Band Aids With Corporate Sponsors

from the brand-aid dept

Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quit your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.

There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.

Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.

Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.

Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.

The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:

Here, the Panel considers that the phrase chosen by Respondent in the Domain Name – “brandedbandaids” – does not itself convey parody of Complainant, its trademarks, and related products. Moreover, and while the Panel tends not to find Respondent’s arguments on this point terribly persuasive, it is also at least debatable whether the website linked to the Domain Name targets Complainant and its BAND-AID marks, or rather is intended as a more general parody of “the capitalization of public health,” as initially claimed by Respondent. See e.g., A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. supra (“In order to constitute parody, the web site must poke fun at the goods or services associated with Complainants’ marks: use of another’s trademark to poke fun at something unrelated to Complainant’s mark is not parody.”) Of course, the Panel also recognizes that Respondent has free speech interests protected as a constitutional right in the United States; however, under the law individuals do not enjoy absolute freedom of expression especially with respect to terms protected as trademarks.

But the key issue for WIPO is really whether or not the domain was registered in bad faith, and there's no evidence to support that.

Here, there is no doubt that Respondent, when registering the Domain Name, was aware of Complainant and its BAND-AID brand. The question is whether, despite that awareness, and in view of Respondent’s asserted artistic parody intention for registering the Domain Name, the registration and use amounts to bad faith.

Complainant has contended that Respondent’s registration of the Domain Name without authorization reflects opportunistic bad faith and was intended to exploit the goodwill and fame of Complainant’s marks in bad faith to improperly deceive Internet users and benefit Respondent financially. Complainant has pointed out that when Respondent initially launched her website, the disclaimer was not prominently placed and Respondent used an allegedly infringing version of the BAND-AID mark in the font and color typically used by Complainant. Further, Complainant argued that the ultimate effect of use of the Domain Name will be to cause confusion with Complainant, and thus the registration and use of the Domain Name must be considered to be in bad faith. Complainant has sought to emphasize that Respondent’s use should not be considered “purely noncommercial” because an Internet user, by using the link to Respondent’s Twitter account and then clicking through to her personal website, could be introduced to commercial ventures offered by Respondent.

In the face of these contentions, Respondent has argued that while a given use may or may not meet the standards for the parody defense, it may still be a sufficiently plausible, good-faith motive to overcome Complainant’s proposed inference of bad faith within the meaning of the Policy. Given the facts and circumstances of this case, the Panel agrees with Respondent on this point. See The California Milk Processor Board supra (“This may or may not meet the standards for the parody defense under United States trademark law, but it is a sufficiently plausible, good-faith motive to outweigh the Complainant’s inference of bad faith within the meaning of the Policy.”). Respondent has provided evidence to demonstrate that she is, in fact, an artist who engages in parody of the Internet, capitalism, online businesses and the technology industry more generally, while using websites, domain names and social media. Respondent has not demonstrated any interest in selling or transferring the Domain Name, nor is there evidence that she has previously made a practice of acquiring domain names resembling trademarks for sale. Respondent has claimed that the website linked to the Domain Name has no revenue or plan to seek revenue, and has submitted a sworn affidavit to this effect:

“I registered and used the website solely for the purpose of artistic parody. At no time have I ever sought commercial benefit from either the website or from the registration of the domain name.”

The evidence in this case supports Respondent’s assertion concerning noncommercial use. As for the link on the Domain Name’s website to Respondent’s Twitter account, which in turn might be used to link to Respondent’s personal website that reflects one or more commercial ventures, the Panel finds that this path is too attenuated such that it would by itself disqualify the Domain Name from noncommercial use. Further, since being contacted by Complainant’s counsel, Respondent has taken steps – through a disclaimer on the website and changing the font and color of text on the site – to respond to Complainant’s demands concerning the content of the website. This point is important because UDRP panels tend to assess relevant facts concerning use of a domain name with a view to the circumstances prevailing at the time of the filing of the complaint, and Respondent made the relevant changes before the Complaint was filed. See WIPO Overview 3.0, section 2.11. Ultimately, and acknowledging that the Policy criteria are non-exclusive, looking at paragraph 4(b)(iv) in particular, the Panel finds that owing to the credibility of the sworn assertion as to the noncommercial nature of the Domain Name and attendant website, the Domain Name was not registered and used in bad faith.

Finally, the Panel emphasizes that the decision in this case is limited to the criteria under the Policy, and the Panel makes no findings concerning the parties’ rights under applicable national law – which may in any event be better suited for determination by a court.

Complainant has failed its burden to demonstrate that the Domain Name was registered in bad faith.

As the panel makes clear, that doesn't mean Baskin is totally free and clear. J&J could still go after her in court for trademark infringement, in which case the fair use, non-commercial use and other defenses would be used and could prevail (though it would still be quite a mess). Hopefully, J&J realizes not only what a wasteful headache that would be, but also how it would make the company look like a ridiculous, censorial bully who can't take a joke.

Anyway, to celebrate, I'm going to go put Techdirt logos on some generic Band-Aids.

Filed Under: advertising, brand aids, commentary, danielle baskin, domains, parody, satire, trademark, vaccines, wipo
Companies: johnson & johnson

China Blocks Wikimedia From WIPO... Because There's A Taiwanese Wikimedia Chapter

from the petty dept

The World Intellectual Property Organization, WIPO, who has a long history of poor decision making despite its crucial role in helping to define standards regarding copyright and patent rules around the globe, is now letting China block Wikimedia from having "observer status." As Tersa Nobre from Communia notes, tons of civil society/public interest orgs have been granted observer status at WIPO, including EFF, Creative Commons and others. In fact, the only other time anyone can remember an organization being blocked is when Pirate Parties International was blocked. Indeed, when we wrote about that, we noted that it coincided with WIPO granting observer status to an organization that claimed its goal was to "free individuals and organizations from space lizards' control." Really.

In other words, it's not that common for WIPO to block anyone from observer status.

So why was Wikimedia blocked? The answer is that China doesn't like the fact that Wikimedia Taiwan exists.

China was the only country to raise objections to the accreditation of the Wikimedia Foundation as an official observer. Their last-minute objections claimed Wikimedia’s application was incomplete, and suggested that the Wikimedia Foundation was carrying out political activities via the volunteer-led Wikimedia Taiwan chapter. The United Kingdom and the United States voiced support for the Foundation’s application.

This is just petty assholery by the Chinese government and its infatuation with denying Taiwan's independent existence. Again, the Wikimedia Taiwanese chapter is an effort by volunteers in Taiwan. And, so what? How is that chapter going to have any impact whatsoever on Wikimedia's observer status at WIPO? Does China really believe that because there's a volunteer effort to support Wikimedia in Taiwan, it's somehow impossible for Wikimedia to be an observer at WIPO?

If China is legitimately arguing that no one should be able to engage in any international organization if they have some loose connection to Taiwan, they're going to find that not many organizations are able to participate. There is no legitimate reason for China to do this, and all it does is call that much more attention to China's obsessive attitude over the existence of an independent Taiwan.

Filed Under: china, observer, taiwan, wipo
Companies: wikimedia

The US Spent Years Telling China To Take Patents Seriously; Now It's Freaking Out That China Is Doing So

from the come-on-guys dept

By now, I'm sure, you've heard the story over and over again about how China "doesn't respect" things like patents, and how the US has had, time and time again, needed to use diplomatic pressure to try to get China to stop trying to copy American inventions, and to start "respecting" patents. Yet, for many years, we've been pointing out how brain dead this logic has been. All the way back in 2009, we warned that China was using this bizarre American obsession with patent monopolies against us. And that has continued over the years. Suddenly, China started flooding foreign patent offices with millions of Chinese patents. Indeed, the country started to "respect" patents so much, that it basically turned into a giant patent troll, shaking down foreign companies for money -- and more importantly, using those patents to block competition (remember, patents are a monopoly right).

In the last few years, this has ramped up, and, just as we warned, China began using that monopoly right as a tool to punish and block foreign competitors, clearing the market for Chinese firms -- all because the US and its patent maximalists demanded that China "respect" such monopoly rights.

Given that history, it's now absolutely hilarious to see the collective freak out going on among patent system supporters about the fact that a Chinese national, Wang Bingying, is in line to become the next head of WIPO, the World Intellectual Property Organization. Now we've had our problems with WIPO over the years. It's a UN body that is completely one-sided towards patent and copyright maximalism -- spreading the message of more monopolies around the world. Wang is currently the deputy director, and the obvious next in line after WIPO's current controversial leader Francis Gurry -- who was accused of many questionable activities, from ignoring sanctions to giving computers to North Korea and Iran, ostensibly to set up domestic patent systems, but which many argue were used in nuclear programs -- from surreptitiously collecting DNA of WIPO employees to try to spot a leaker, to (incredibly) threatening a blogger with criminal charges for reporting on some of Gurry's misconduct.

Gurry's position runs out this year and a bunch of candidates are jockeying to replace him. Given Wang's current role, he's an obvious next choice, but to hear American patent maximalists talk about it, they act as if WIPO under Wang is basically shutting off the entire patent system. Current US Patent Office director Andrei Iancu warned that Wang leading WIPO would be totally unacceptable. Patent maximalist, Tom Giovanetti, warned that letting Wang take over would be "surrendering the global IP system to China." Former National Security Advisor John Bolton even tweeted that letting Wang take the top job at WIPO means that "the ability to protect intellectual property is gravely threatened."

Secretary of State Mike Pompeo is also warning people that letting Wang take over "would be absurd."

To be clear: almost all of this is absurd. Wang has worked at WIPO since 1992, including for years in his current position as deputy director. No one has presented any evidence of malfeasance by Wang, or anything beyond racist fear mongering that because of his nationality, he'll somehow destroy all intellectual property around the world.

But, more to the point: after decades of US officials and patent system lovers whining that China doesn't respect patents, now that it's finally "respecting" the patent system, their first reaction is to say that someone of Chinese nationality can't run a UN organization that focuses on global patent policy? It's almost like we never actually wanted China to "respect intellectual property." People just wanted China to bow down to American inventions.

Filed Under: china, francis gurry, patents, wang bingying, wipo

WIPO Says Websites In Its Pirate Database Don't Deserve Due Process Because 'They Know What They're Doing'

from the they-know-what-they're-doing dept

You may recall that, recently, I posted on WIPO's bizarre decision to host a database of "pirate" sites that it would share with advertisers, encouraging them to block ads from appearing on any of the sites in the "Building Respect for Intellectual Property" (BRIP) database. As we noted in our original post, previous attempts at such databases showed how problematic they could be, as they almost always swept up perfectly legal sites, and they provided no due process, no checks and balances or anything of the like. I also had a list of questions about this for WIPO, which I noted were unanswered at the time of posting. WIPO actually did get back to me, but we'll get to that.

First, I wanted to point to a Twitter thread by New Zealand internet lawyer Rick Shera, who, in response to the news of the BRIP database, gave a real world example of how such databases create real harms for internet services through false accusations with no due process. Here's a lightly edited part of Shera's tweetstorm (the full thing is longer, but you get the point). After describing how the database is set up, he tells a story relating to one of his own clients:

WIPO does not disclose who the “Authorized Contributors” are, but, according to TorrentFreak, they are expected to be a mix of law enforcement, and industry groups such as MPAA and RIAA. Which reminds me of what happened to my client Mega a few years ago. In 2014 a UK-based online brand management agency NetNames published “Behind the Cyberlocker Door: A report on how shadowy cyberlocker businesses use credit card companies to make millions" commissioned by Digital Citizens Alliance, a US rightsholder lobby group.

Mega was included in the report as a “cyberlocker”, without being given any opportunity to comment or rebut. Even by the report’s own criteria, Mega’s inclusion was patently incorrect.

But don’t take my word for it. Mega commissioned Olswang, one of the leading IP, media and IT law firms in the UK, which in turn had Grant Thornton in New Zealand analyse Mega’s systems. Olswang concluded the NetNames report was clearly false and defamatory. NetNames and Digital Citizens Alliance of course refused to withdraw the report and, at that early stage in its operation, it was uneconomic for Mega to take defamation action in the UK.

But it’s what happened next that provides a salutary lesson on the dangers of copyright guilt on accusation. The NetNames report was picked up by US Senator Patrick Leahy, who, also without the courtesy of checking with Mega, wrote to Visa and MasterCard encouraging them to cease providing payment services to anyone listed in the report. Here’s his letter to MasterCard.

The NetNames report was picked up by US Senator Leahy, who, also without the courtesy of checking with Mega, wrote to Visa and MasterCard encouraging them to cease providing payment services to anyone listed in the report. Here’s his letter to MasterCard. pic.twitter.com/26nV1pMWgU

— Rick Shera (@lawgeeknz) July 24, 2019

Visa and MasterCard blacklisted Mega, again, without notice. That resulted in PayPal ceasing service literally overnight. This despite the fact that PayPal had itself conducted exhaustive due diligence on Mega before giving it a clean bill of health just months earlier. Mega is not a cyberlocker. It complies with NZ and with European and US copyright laws. It is one of a handful of companies in NZ that publish a transparency report. Naturally, as a privacy protective business, it has put a huge effort into GDPR compliance. It has excellent relationships with law enforcement agencies worldwide operating under its takedown guidance policy.

And yet a spurious report, commissioned by a non accountable industry backed lobby group, was able to run roughshod over all that. If Mega was not so well supported by its users and stakeholders, that false accusation would have driven it out of business. This is the danger in WIPO encouraging advertisers to cease service based on unsubstantiated allegations by non publicly accountable third parties. The allegations alone, which may be false, as they were for Mega, can kill a business.

That's a great example of the kind of mistake that is quite often made. We highlighted some other examples in our original post. Also, it's important to note that early innovations in new spaces often appear to be infringing. Imagine a similar rule in the time before the Supreme Court ruled that the VCR was perfectly legal. If retail shops relied on a "list" from the MPAA on what they shouldn't stock, it certainly would have meant they never would have sold VCRs (the same VCRs that helped drive the home video market, which quickly surpassed the box office market and saved Hollywood in the 1980s).

Back to WIPO's list, however. I had reached out to them before my story went up -- and they responded saying they'd be happy to set up someone for me to talk to, though that email was sent right around the time my original story went out. I told them I was hoping to do a follow up story and would like to speak to someone there. After a number of emails back and forth, WIPO eventually told me that since this database is "under formal discussion by WIPO member states at a meeting of the Advisory Committee on Enforcement" in early September, WIPO felt that it was best not to comment until after it's too late for it to matter and after the member states have discussed it. That strikes me as odd.

However, a WIPO employee, Jeremy Thille, decided to come into our comments and take it upon himself to give, as he called it, "WIPO's reply." Thille is a web developer, who notes that he helped build the database. I am quite sure that Thille thought he was being helpful here -- and, he actually was being super helpful in revealing WIPO's complete and utter disgust for basic due process on issues that impact speech and innovation. Most tellingly, he responded to my question about whether or not sites are notified that they're being put in this database that can literally put them out of business by saying:

No. They know what they're doing.

This isn't a surprise. In two decades of doing work in and around the copyright space, this attitude is pervasive. It ignores, of course, that throughout all of this time, those in legacy industries are often way too quick to declare something, or some tool or service, "dedicated to infringement," when it is not. It ignores that making mistakes here have massive impacts on both free expression and innovation. This is especially galling given that WIPO is a part of the UN and the UN is supposed to be bound by the principles of free expression in the Universal Declaration of Human Rights. To brush off such blatant censorship without any due process as "they know what they did" is astoundingly cavalier.

Other parts of Thille's responses (er... "WIPO's reply") are equally enlightening, if not surprising. He argues that there really aren't any problems with WIPO keeping such a censorship database, because it's all really maintained by member countries:

The BRIP platform is merely a central repository for national authorities such as HADOPI in France, AGCOM in Italy, or Roskomnadzor in Russia.

These authorities are governmental and they declare websites as infringing, as they legally have the power to do so. We don't have this power, so we don't add or remove anything from the database.

He leaves out the earlier statements that industry representatives get to take part as well. He also leaves out the, uh, rather checkered history of some of the agencies he names in censoring the internet. Remember, when the company that Hadopi employed to run its copyright enforcement program decided that the DNS address 127.0.0.1 was a pirate site? (For the non-technically savvy, 127.0.0.1 is your own local machine). Or how about the time that Roskomnadzor used its copyright naughty list to shut down an entire news site. AGCOM? Remember how they ordered a user-generated-content platform blocked throughout Italy based on claims of 11 infringing works, and then ignored the fact that the site quickly removed all 11 works when informed?

Odd that the three examples of "trusted" government agencies that WIPO uses as examples for its database all have histories littered with problematic sites and censorship. Seems like, maybe, something WIPO should have considered, rather than merely assuming that if a government says "kill this site" that it must "know what they did."

Thille also passes the buck on WIPO's database, noting that while WIPO won't remove stuff, it will be left up to those problematic trusted authorities to create any due process. Though, he is candid that basically, any site in the database is fucked:

If they have been flagged by their national supreme internet authority, it will be difficult to contest, but here again, this is a process we have noting to do with. Displeased websites will have to try and contact their national authority directly, as they alone can remove a website/domain from their list in the BRIP database. Technically, we could of course remove a website from an official list, but legally we absolutely can't.

That's fascinating. Given just how hard all of the industry reps have been fighting over the years to argue that the maintainer of a website should have liability for what's in it, it does seem just slightly ironic for WIPO and the industry to team up on a database while insisting they have no liability whatsoever for putting companies into it incorrectly, even if it cuts of free expression or innovation.

Thille further clarifies -- as we expected -- that there is literally no way for the public, or even an NGO, to check the database and review it for accuracy. So it's a hidden, secretive database, put together by organizations that have a troubled history of censorship, that will be used to starve sites out of existence, and there is no due process, no transparency, no way to review, no way to appeal. But it's all cool because, WIPO believes, those sites "know what they're doing."

Of course, as we saw with Mega, yes, those sites know that they're complying with the law. And it didn't matter.

I asked WIPO whether or not it would like to comment on Thille's clarifications, suggesting that as an organization pushing such a database, it would probably be in their interest to have a better response to these questions. WIPO declined to respond and has provided no additional comment. It seems like the kind of thing that might help member states have a more informed discussion at their meeting September 2 - 4, at which there will be a discussion on "recent activities" regarding the BRIP database.

Unfortunately, responding to pesky journalists asking silly questions about censorship and due process is not on the agenda. I guess, the best you can say about WIPO and this database is... "they know what they're doing."

Filed Under: accusations, brip, copyright, database, due process, free speech, infringement, innovation, wipo
Companies: mega, wipo

WIPO Now Gets Into The Extrajudicial, Zero Due Process, Censorship Act Over Sites It Declares 'Infringing'

from the not-this-again dept

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."

These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.

That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.

WIPO, which is part of the United Nations, was founded more than 50 years ago with the aim of protecting intellectual property. This includes combating online piracy, something it hopes to facilitate with its ‘BRIP’ Database, short for “Building Respect for Intellectual Property.”

So, uh, what's the process to get on the list? Surely it must involve a court of law determining that a site is engaged in copyright infringement, right? Oh, of course not.

The goal of the project is simple: allow stakeholders from member states to report problematic sites and share this list with advertisers, so they can block bad apples. This will result in less money going to pirate sites, making it harder for them to generate profit.

"Stakeholders"?

“The BRIP Database is now open for the acceptance of Authorized Contributors from WIPO Member States and Authorized Users from the advertising sector,” WIPO writes.

“It comprises a secure, access-controlled online platform, to which authorized agencies in WIPO Member States may upload lists of websites which deliberately facilitate the infringement of copyright.”

Ah. So, it's "Authorized Contributors" and "Authorized Users from the advertising sector" and the entire list is secret. It's "secure, access controlled." I'm sure that won't be abused at all.

Not answered:

• What is the process to make sure sites on the list are actually engaged in ongoing infringement?
• Are sites notified?
• Do sites have any due process by which they get to plead their own case?
• Is there any appeals process?
• How are "authorized contributors" vetted and approved?
• Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?
• Is there any way for the public or NGOs to review the list for accuracy?

I've sent these questions to WIPO, which has not yet responded at the time of publication.

What's fairly stunning about all of this is that anyone who knows anything about these issues and how they've been treated over the last few decades would recognize the pitfalls of WIPO's approach with BRIP. And yet... no one at WIPO even seemed to bother to care about some fairly fundamental issues regarding due process and proper adjudication of accusations of infringement. Honestly, it raises significant questions about WIPO's own understanding of copyright law.

Filed Under: advertising, blacklist, censorship, due process, transparency, un, wipo

WIPO Didn't Want The Pirate Party To Observe Its Efforts, But Happy To Include A Group Whose Mission Is To Battle Space Lizards

from the say-what? dept

You may recall five years ago how WIPO -- the World Intellectual Property Organization, a UN body that is famous for its maximalist and expansionary approach to intellectual property -- delayed and then rejected the Pirate Parties International request to become an "observer." As we noted, the "observer" process is more or less a formality, and it's pretty common to see everyone who applies get approved. So it was a bit odd that WIPO rejected the Pirates.

And it's even odder when you consider just who WIPO allowed in this year. As noted by Intellectual Property Watch, one of the organizations whose application was rubber-stamped this year to become a WIPO observer is that of the generically named "IP Centre." However, that group's website at the time that it was granted observer status claimed the following as its mission:

Our mission

As a global conspiracy investigation institution with a pioneering awareness raising model, our mission is to create an environment that brings together open-minded people, cultures and ideas from around the world, in order to free individuals and organizations from space lizards’ control.

Let me just repeat that again. WIPO -- which rejected the application of a political party for whom intellectual property is a central plank in its platform -- instead approved a group whose stated mission on its website was to free us from "space lizards' control.".

Space. Lizards.

The webpage has since been changed to some boring boilerplate, but here's what it looked like before:

It's entirely unclear what happened here, though a charitable explanation is someone posted some jokey text when the website was first being designed, and no one ever checked out the website to see what was there (or no one read enough to care) until this whole situation happened, at which time the organization got a bit more serious about its mission. However, it still does raise some questions about the due diligence of WIPO folks.

Though, conceivably, perhaps WIPO is just too busy fighting space lizards to read that carefully.

Filed Under: copyright, space lizards, wipo

How We Got To The Point That Hollywood Is Trying To Attack The Internet Via NAFTA

from the a-little-history-lesson dept

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

Last week we announced our new site EveryoneCreates.org, featuring stories from many different creators of music, books, movies and more about how important the internet and fair use have been to their creations. As we noted, the reason for the site is that the legacy copyright gatekeepers at the MPAA and the RIAA have been using the Trump-requested NAFTA renegotiations to try to undermine both fair use and internet safe harbors by positing a totally false narrative that the internet has somehow "harmed" content creators.

Yet, as we know, and as the stories from various artists show, nothing is further from the truth. For most artists and content creators, the internet has been a huge boon. It has helped them create new art, share it and distribute it to other people, build a fan base and connect with them, and make money selling either their work or related products and services. As we've discussed before, in the past, for most artists, if you did not find a giant gatekeeper to take you on, you were completely out of the market. There was very little "long tail" to be found in most creative industries, because you either were "chosen" by a gatekeeper or you went home and did something else. But the internet has changed that. It has allowed people to go directly to their audiences, or to partner with platforms that help anyone create, distribute, promote and monetize. Indeed, the internet has undoubtedly helped everyone reading this to create art -- whether for profit or just for fun. And if that's the case with you, please share your story.

But it is worth taking a step back and asking an even larger question: how the hell did we get here? How did we get to the point that the MPAA and the RIAA are using NAFTA negotiations to try to undermine the internet. Rest assured: there's a long, long history at play here, and it's important to learn about it. The idea that you can or should regulate the internet or intellectual property in trade agreements should seem strange to most people -- especially as most trade agreements these days are about increasing free trade by removing barriers to trade, and copyright by its very nature is mercantile-style trade protectionism that places artificial limits and costs on trade that might otherwise be cheaper.

An excellent history on this topic comes from the aptly named 2002 book Information Feudalism: Who Owns the Knowledge Economy by Peter Drahos and John Braithweaite. It tells the story of how a concerted effort by legacy copyright maximalist organizations laid the groundwork for making sure that copyrights and patents were always included in trade agreements, by getting them in as a key part of the World Trade Organization and by the creation of TRIPS -- Trade-Related Aspects of Intellectual Property Rights. The book details how the legacy industries turned "intellectual property" from a question of benefiting the public to a solely commercial arena of corporate ownership and trade.

Once that was in place, these same industries wasted little time in exploiting the reframing of issues around copyright and patents. Famously, the DMCA itself was created in this manner. The record labels and movie studios had a friend in the Clinton White House in Bruce Lehman, who wrote a white paper in 1995 requesting draconian changes to copyright law targeting the internet. However, he found little support for it in Congress. Five years ago, Lehman himself admitted that when Congress refused to act he did "an end-run around Congress" by going to Geneva and pushing for a trade agreement via the World Intellectual Property Organization (WIPO) which required DMCA-like copyright rules.

With that treaty in hand, Lehman and his Hollywood friends came back to Congress, insisting that our "international obligations" now required Congress to create and pass the DMCA, or we'd suddenly face all sorts of trade and diplomatic problems for failing to live up to those "international obligations" that they themselves had put into the trade agreement. Indeed, ever since then, nearly every international trade agreement has included some crazy provisions related to copyright and patents and other IP rights -- all designed to effectively launder these laws through the highly opaque international trade negotiation process, and then insist that legislatures in various countries simply must ratchet up their laws to meet those obligations.

Given all that, there's at least some irony in the fact that these same groups that forced the DMCA on Congress through an international trade agreement back in the mid-1990s are now trying to use a different trade agreement 20 years later to force changes to that very same law (and others). Once again, the process is opaque. And once again, the industry is well connected and represented on a variety of the "Industry Trade Advisory Committees" (ITACs), giving them much greater access to the details of the negotiations while the public is kept in the dark.

But the history here is clear. Moving copyright into trade agreements was a purposeful move, pushed for by legacy industries so they could promote their favored protectionist laws around the globe, in part by moving them away from being designed for the public's benefit and towards a world in which information and knowledge was considered to be privatized, owned, and locked up by default. It ignored the fact that, often, the public can benefit the most when information is open and widely shared. And, decades later, we're still dealing with the fallout from these bad decisions.

And that's why it's so important for policy makers to understand that it's complete hogwash to argue that the RIAA and MPAA are "representing artists" in trying to undermine the internet this way. Most artists recognize that the internet and various platforms are a key part of their ability to create, distribute, share, and support their artwork these days -- and they are not being represented at the NAFTA negotiating table.

Share your story at EveryoneCreates.org to let policymakers know how important an open internet and fair use is to your own creativity.

Filed Under: cda 230, copyright, dmca 512, everyone creates, fair use, international trade agreements, patents, safe harbors, trade agreements, wipo, wto