White House Withholds Details Of Its Role In 'Voluntary' Agreement Between Payment Processors And Copyright Industries

from the of-course-not dept

The Obama White House has been a big supporter of getting companies to come up with what they like to call "voluntary agreements" for various issues where both the White House and Congress know that there just isn't enough political will in Congress to pass a law. Not that Congress is particularly good at legislating, but sometimes these "voluntary agreements" don't appear to be all that voluntary, and at other times they appear to border on being collusion against certain competitors and innovators. This focus on "voluntary agreements" has been a big part of the administration's approach to dealing with copyright law. That was true prior to the SOPA debacle, but even more so since that legislative effort fell flat on its face. The most high profile of these was the six strikes "voluntary agreement" between certain major ISPs along with the RIAA and MPAA.

Of course, a Freedom of Information Act (FOIA) request from Chris Soghoian showed that rather than a truly "voluntary" agreement, the White House, in the form of then IP czar Victoria Espinel, was heavily involved in the process. However, the Office of Management and Budget (OMB) (where the IP czar position is housed) withheld most of those emails. Soghoian sued and lost, as the court ruled that OMB was okay to hide the documents claiming either that they contained confidential commercial information or that it was part of the "deliberative process privilege."

It appears that the IP czar and OBM are going to get away with this again. A professor from the University of Iowa School of Law, submitted a similar FOIA request for details of the IP Czar's involvement in the creation of a similar voluntary agreement with payment processors -- an effort to get Visa, Mastercard, Paypal, American Express and others to stop doing business with sites deemed evil by the MPAA and RIAA. In this case, OMB is admitting that it has found 60 pages of relevant information but is withholding all of it for the same reasons given to Soghoian. Specifically:
We are withholding the 4-page final agreement under FOIA exemption 4... which protects from disclosure "... trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential. We are withholding the 56 pages of various drafts of such agreement and other related documents under FOIA exemption 4 and FOIA exemption 5.... Exemption 5 protects interagency and intra-agency predecisional, deliberative materials, the disclosure of which would inhibit the frank and candid exchange of views that is necessary for effective government decision-making.
So, once again, the main issue here is the deliberative process privilege. In theory, it makes some sense to have such an exemption, because you want government employees to be willing to discuss things frankly when shooting around ideas. But here's the problem in both of these cases: these aren't government policies. The whole point is that they're "voluntary agreements" between private parties. And thus, there's no government policy involved, and thus it's difficult to see how the deliberative process privilege could or should possibly apply. Unfortunately, the court ruled otherwise against Soghoian, and I'd imagine that should Gleason appeal this rejection the results would be the same.

Of course, the end result now is that the office of the IP Czar now realizes that it has basically free rein in browbeating companies into collusive positions against upstarts and innovators as pushed for by copyright maximalists -- and it can keep the efforts of the government (i.e., threats of "do this or we'll pass legislation" or "do this or we'll make life difficult for you") totally secret. That should raise serious questions about the appropriateness and legality of nearly all of these so-called "voluntary agreements."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), Feb 21st, 2014 @ 10:17am

    When you are talking about agreements that involve basic infra-structure that is widely used and mostly cannot be easily exchanged for other companies then it's a very problematic issue. Visa barred me from donating to Wikileaks a while back (despite what you think of Assange it was important), Paypal et al are interfering with our right to support sites that provide services we want and build a community around them (file sharing sites) instead of letting law enforcement do their job if it really is a problem (answer: it's not, it's manufactured by a obsolete industry). They shouldn't. It's not simple to replace those behemoths.

    The bright side is that since those huge players started meddling where they shouldn't there has been a call to arms to got some competition up.

     

    reply to this | link to this | view in thread ]

  2.  
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    silverscarcat (profile), Feb 21st, 2014 @ 10:38am

    Course, you know, that since this is an "agreement" and not binding by law, they can be sued by people.

    After all, didn't Visa and the other credit card companies get sued for blocking payments or something?

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 12:35pm

    Just like we all "voluntarily" hand over all our metadata to 3rd parties under Section 215, even though I see no such "OK" or "Cancel" options every time I make a phone call.

    Just as the definition of "relevant" and "terrorism" have been stretched beyond any meaning. So too has the meaning of "voluntary".

    Our entire democracy is being turned into a sham! There's no accountability or transparency. Our representatives, represent campaign donors with the most money, not people who's votes vastly outnumber wealthy donors.

    It's only a matter of time before the population reclaims their own country. Like events happening in Ukraine, Egypt, Syria, and Greece. Time is running out quickly for the 1%.

    You can't outrun time. It stands still for no one.

     

    reply to this | link to this | view in thread ]

  4.  
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    Gwiz (profile), Feb 21st, 2014 @ 12:57pm

    The whole point is that they're "voluntary agreements" between private parties. And thus, there's no government policy involved, and thus it's difficult to see how the deliberative process privilege could or should possibly apply.


    Wouldn't it also follow that since the court upheld the deliberative process privilege that three strike programs could then be considered government policy and therefore subject to First Amendment protection?

    The White House seems to be wanting it both ways - that it's a voluntary agreement between private parties that is created and enforced with governmental power.

     

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  5.  
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    Richard (profile), Feb 21st, 2014 @ 1:07pm

    that it's a voluntary agreement between private parties that is created and enforced with governmental power.

    Which sounds remarkably similar to the kind of collusion that is illegal under anti-trust law.

     

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  6.  
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 1:16pm

    You reap what you sow. Remember this when they ask for your documents then take them illegally.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 1:23pm

    My index and middle fingers are getting tired from the all the "voluntary" air quotes. Though my middle is a little more tired from doing other things...

     

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  8.  
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    That One Guy (profile), Feb 21st, 2014 @ 1:24pm

    Re:

    Indeed, they should get the government... to.. prosecute...

    Dammit.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Gabriel Levitt, Feb 21st, 2014 @ 1:32pm

    voluntary agreements and access to medicine

    The voluntary agreement scheme is also at large with Big Pharma colluding with IPEC to pressure Internet companies -- such as Google. Check it out at http://infojustice.org/archives/31846.

     

    reply to this | link to this | view in thread ]

  10. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 2:11pm

    Mike Masnick just hates it when copyright law is enforced.

     

    reply to this | link to this | view in thread ]

  11.  
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    That One Guy (profile), Feb 21st, 2014 @ 2:45pm

    Re:

    What copyright law?

    Perhaps you missed it in your rush to post your ever so original comment, but the entire point of such 'agreements' is that at no point do they involve the law, it's just 'agreements' between companies/industries, essentially making up and enforcing their own laws, 'laws' that they know would never make it through the system and into the books.

     

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  12.  
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    kenichi tanaka (profile), Feb 21st, 2014 @ 2:48pm

    The White House, in particular, the Obama Administration (along with Congressional Democrats) are nothing more than "House Bit$#%es" for the MPAA and the RIAA. I don't care how pretty you dress it up as, nobody cares about these two useless and impotent organizations.

    All they ever do is cry about their spilt milk and I'm so sick to death of hearing about how piracy is hurting their profits. Piracy increases sales on their product, it doesn;t hurt it.

     

    reply to this | link to this | view in thread ]

  13.  
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    lucidrenegade (profile), Feb 21st, 2014 @ 3:01pm

    Re:

    God just hates it that you survived birth.

     

    reply to this | link to this | view in thread ]

  14. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 3:18pm

    Re:

    "Piracy increases sales on their product, it doesn;t hurt it."

    Yes of course, that's why recorded music sales have been cut in half since 2001 and Napster. Uh huh.

    You're a complete fucking idiot. Congratulations.

     

    reply to this | link to this | view in thread ]

  15.  
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    That One Guy (profile), Feb 21st, 2014 @ 3:47pm

    Nice try

    Worldwide Music Industry Revenues:
    2006 ($60.7 billion), 2007 ($61.5 billion), 2008 ($62.6 billion), 2009 ($65.0 billion), 2010 ($66.4 billion), 2011 ($67.6 billion)

    Unless you're going to argue that they were making over $130 billion in 2001, try again.

    But perhaps you just means US recorded sales, let's look at those shall we?

    North American Music Industry Revenues:
    $23.1 billion (2006), $24.2 billion (2007), $24.7 billion (2008), $25.3 billion (2009), $26.0 billion (2010), $26.5 billion (2011)

    Hmm, no, that's an increase, perhaps if we narrowed it down, and looked only at the Recorded Music in particular?

    North American Recorded Music Revenues:
    $12.6 billion (2006), $13.0 billion (2007), $12.8 billion (2008), $12.6 billion (2009), $12.6 billion (2010), $12.4 billion (2011)

    Ahah! That one has seen a decrease, of 200 million in the 6 year period!

    But I'm sure it has nothing do do with this...

    US Digital Music Revenues :
    $1.9 billion (2006), $2.8 billion (2007), $3.7 billion (2008), $4.5 billion (2009), $5.2 billion (2010), $5.7 billion (2011)

    Nope, obviously the massive explosion of digital music sales has nothing to do with any decrease in recorded music sales, nothing at all... /s

    Source:
    http://www.grabstats.com/statcategorymain.aspx?StatCatID=9

     

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  16. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 4:01pm

    Re: Nice try

    You're a complete fucking idiot. Congratulations.

    http://money.cnn.com/2010/02/02/news/companies/napster_music_industry/

     

    reply to this | link to this | view in thread ]

  17.  
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    PopeyeLePoteaux (profile), Feb 21st, 2014 @ 4:04pm

    Re: Re:

    As usual, you're pulling things out of your ass, Darryl.

    And to complement what That One Guy already said, it has been shown that the pirates you despise so much, actually spend more money on entertainment.

    http://stakeholders.ofcom.org.uk/binaries/research/telecoms-research/online-copyright/ deep-dive.pdf

    And actually, the box office records have been raising since the 80's to date.

    Why is not the other way around if piracy is really a big problem?

    http://www.boxofficemojo.com/yearly/?view2=domestic&view=releasedate&p=.htm

    Do you ever grow tired of lying, Darryl?

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    PopeyeLePoteaux (profile), Feb 21st, 2014 @ 4:26pm

    Re: Re: Nice try

    From your article:

    "Forrester forecasts music industry revenues will continue to decline until it reaches about $5.5 billion a year by 2014, as new revenue sources begin to lift sales again."

    Now, from IFPI's global statistics:

    Global recorded music sales totalled US $16.5 billion in 2012.

    http://www.ifpi.org/global-statistics.php

    "For years, the music industry’s decline looked terminal, with the record companies seemingly unable to come up with digital business models that could compete with the lure of online piracy."

    It has been demonstrated over and over again, that piracy don't affect music, its the obsolete business models of the recording labels.

    "Last year, however, digital sales and other new sources of revenue grew significantly enough to offset the continuing decline in CD sales."

    Innovating business models is the best alternative to counter piracy.

    http://www.nytimes.com/2013/02/27/technology/music-industry-records-first-revenue-increase-si nce-1999.html?_r=0

     

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  19.  
    identicon
    zip, Feb 21st, 2014 @ 4:50pm

    The Executive branch is doing a complete end-run around the Constitution by essentially acting as legislator, judge, and jury, by rubber-stamping, in a secret agreement with one party of a dispute, the punishment to be doled out to the other party of the dispute, and pressuring a 3rd party to deliver that punishment through a boycott -- and then saying the whole thing was completely voluntary.

    These would indeed need to be a "voluntary agreement" (and of course a secret one) because of the questionable legality of the Executive branch ordering payment processors to boycott a company that operates completely legally -- as the vast majority of blacklisted filesharing sites (both domestic and foreign ones) are fully DMCA-compliant, have broken no laws, and have no court judgements against them.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 5:47pm

    Re:

    The president is the executive branch, they are responsible for enforcing the law (enforcing existing laws). While the white house can't directly pass laws alone it can selectively enforce existing laws based on who caters to their will.

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    That One Guy (profile), Feb 21st, 2014 @ 5:52pm

    Re: Re:

    While the white house can't directly pass laws alone it can selectively enforce existing laws based on who caters to their will.

    Close, but I'd say it's more 'based upon the desires of whoever happens to be paying them the most at the time'.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Feb 21st, 2014 @ 6:58pm

    average_joe just hates it when due process is enforced.

    Remember to read this blocked comment too, joe, because we all know blocked comments are insightful.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    That Anonymous Coward (profile), Feb 21st, 2014 @ 7:32pm

    So many words to just say - Fsck you, we don't have to answer to you because you don't give us enough cash.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Feb 22nd, 2014 @ 1:32am

    So, under this logic, I'm legally allowed to decline a tax record request as a trade secret if I'm running a business.

    Sweet!

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    techflaws (profile), Feb 22nd, 2014 @ 3:30am

    Re: Re: Nice try

    Says the fucking idiot who is too stupid too even understand the numbers he's bringing up. Congratulations.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Feb 22nd, 2014 @ 7:27am

    Can this most transparent administration in history get any more transparent?

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Feb 23rd, 2014 @ 8:19pm

    Re: Re:

    Hey kid. After you're done figuring out how to form cogent sentences, have a look at this. It's from the London School of Economics.

     

    reply to this | link to this | view in thread ]


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