More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:

These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

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ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA

from the but-what-about-the-public dept

With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington "insiders" under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests. But, still, it's a bit troubling that the whole conversation remains secret for "national security" reasons. If we're talking about changing copyright laws that effect everyone, why not let everyone know? Sherwin Siy, from Public Knowledge, told KEI (in the link above) about his experience viewing the document, which sounded greatly limited, and notes that while the document has been adjusted, "the most troubling aspects" have not been "resolved."

In the meantime, it's worth asking why this is necessary again. First of all, in a world where trade agreements are supposed to be about breaking down trade barriers, ACTA seems designed to be putting up protectionist policies. Protectionism doesn't work and only creates more harm. But, much more importantly, much of the push for ACTA is based on lobbyists' claims of the "harm" done by counterfeiting. Except both the GAO and the OECD have put out independent reports showing that counterfeiting isn't that big a problem, and that whatever problems there are seem to be significantly exaggerated by lobbyists. Yes, those same lobbyists who were given much earlier access to the document and, records suggest, had a hand in shaping the document itself. So why do we need ACTA again? And why are we allowing those who the government has already found to have exaggerated the problem drive the negotiations?

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Israeli Judge: Watching Streaming Games Online Is Fair Use

from the wow dept

The entertainment industry has, in the past, accused Israel of not properly respecting copyright, but Israeli officials, rather than bending to the will of Hollywood lobbyists hit back with a long and detailed response, noting that its copyright law has already been influenced too much by American-style copyright law -- and just because they didn't go completely draconian and implement a version of the DMCA, it doesn't mean they don't have strong copyright laws. You have to imagine, however, that Hollywood's lobbying community is about to go ballistic after reading a recent decision (sent in by a ton of people -- including one of the lawyers involved in the case!) concerning an attempt by the Premier League to unveil the owner of a website, LiveFooty, that allowed people to watch streaming football (soccer for folks on this side of the Atlantic) matches.

Now, we've already covered incredibly aggressive legal strategy of suing any site that lets people stream its matches. Quite often, it goes after service providers rather than the actual users, and also goes after services in places where the games aren't viewable anyway (so it's not even taking away any real revenue). Either way, the judge in an Israeli district court was not impressed and tore apart the Premier League's arguments:

the Tel Aviv District Court ruled that it was a case of "fair use" since no profit was made from the broadcasts and that, in Israeli law, breach of "broadcasting" copyright only referred to cable or wireless transmission and not streaming over the internet.

The judge, Michal Agmon-Gonen, furthermore ruled that the site had important social aims -- "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it" -- and argued that those who view online were not damaging the revenues of broadcasters. She said they were mainly "those of small means or who are not sufficiently interested in sport to pay".

That's the report from the Guardian, but the full ruling from the judge gets a lot more interesting. In refusing to reveal the name of the owner of the site, she talked about the importance of not giving in to the chilling effects of copyright infringement claims, and the importance of setting a very high bar on such things:

"Someone who claims breach of copyright must meet two conditions. The first is to present prima facie evidence of a breach, that will lead with a high degree of probability to proof of it. Secondly, the breaches claimed must be especially severe, wrongs committed in aggravated circumstances," the judge said. This is because "unintentionally, millions of people infringe copyright every day; there are no grounds for disclosing their identities in such cases, but only when it is a matter of blatant and severe infringement."

As far as I know, this is the first time I've seen a judge highlight unintentional infringement, and the chilling effects of making it such that anyone needs to constantly look over their shoulder and be afraid that almost anything they do may be judged to be a violation of copyright laws.

The Premier League will certainly appeal, and you can bet that Hollywood lobbyists will soon come out with yet another report claiming that Israel is a "haven for pirates" or some ridiculous claptrap along those lines. One hopes that this thoughtful ruling that focuses on the public's rights will stand up and get recognized for recognizing that copyright isn't just about the rights of the copyright holders, but about the rights of the public too. However, given the history of the entertainment industry lobby, it seems unlikely.

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Recording Industry Lobbyists Says Politicians Worried About User Rights Are 'Disgusting'?

from the that-doesn't-seem-right... dept

Well, well. Last week there was a "town hall" meeting in Toronto about new copyright laws in Canada, and we'll have a more detailed post on that later. But there is one story that popped up from all of this that deserved a separate discussion. Apparently two Parliament Members, Olivia Chow and Charlie Angus, who have been big supporters of consumers' rights on copyright issues, have been called out by music industry lobbyists for distributing a 'disgusting' flyer. Why? Because that flyer contained an interview with Angus (a former musician in a popular punk band), where he talks about the importance of consumer rights and not following through with a DMCA-style law in Canada. It's hard to read anything in that interview that is "disgusting" -- unless you don't believe consumers have any rights. But that apparently was the position taken by Alan Willaert, the Canadian representative of the American Federation of Musicians, who not only called it disgusting, but also demanded a retraction and an apology.

It doesn't sound like he's going to get it. Charlie Angus is defending himself ably:

I was elected to participate in discussions about public policy. I have never heard of a lobbyist group demand an apology for speaking out about a totally botched piece of legislation like Bill C-61. If they spent less time running e-mail attacks and more time speaking with the various players they might realize that the NDP position has been balanced and consistent from the beginning.

As for a public recanting to satisfy the C-61 lobby ? Sorry, dude....it ain't happening.

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Consumer Group Wants ACTA Discussions Stopped Until Consumer Rights Are Represented In Negotiations

from the would-be-nice,-but-seems-unlikely dept

We've discussed in great detail how the current ACTA treaty has been mostly driven by corporate interests as a way to sneak in more draconian copyright laws through international treaty, rather than through legislative means. When consumer groups have requested a seat at the table, they've been rejected, even as industry lobbyists have had no problem being active participants in the process.

Now, a group called the Trans Atlantic Consumer Dialogue has demanded ACTA negotiations be put on hold until consumer groups have a real seat at the table, or at least are given access to documents being negotiated. TACD raises a number of important issues, such as respecting privacy rights and the rights of developing nations, who are often trampled over when it comes to IP protectionism from developed countries. But best of all, it points out one of the most annoying things in all efforts by copyright holders to extend copyright protection: they never, ever present any evidence for why it's necessary. It's an evidence-free zone. TACD specifically requests that real evidence be used:

Public policy on the enforcement of intellectual property rights should be informed by creditable evidence, transparent and realistic assumptions and objective peer reviewed analysis. Multiple approaches to addressing the legitimate concerns of right owners and consumers should be considered.

• Statistics on counterfeiting and or infringement must be objective, accurate, and presented in the appropriate context.
• Statistics on counterfeit and substandard medicines should not be combined when this misleads policy makers about the extent of either problem. The solutions to counterfeit and substandard products are often quite different.
• Estimates of losses from infringements of intellectual property rights should be based upon realistic demand and usage parameters.
• Governments should collect and analyze statistics on the relationship between infringement and affordability of products.

Here's TACD's full proposal:

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Is It Trademark Infringement To Resell A Product You Legally Bought?

from the here-we-go-again... dept

It seems like we have a few of these cases every year or so, where some company that tries to maintain strict control over its distribution channels freaks out about people reselling products online. A few years ago it was a shampoo company that said no one could resell their shampoo bottles. Now, it's the famed cosmetics firm Mary Kay, who is claiming that an online retailer is violating its trademark.

The details of the case are pretty interesting. Basically, Mary Kay requires its "independent" distributors buy a certain amount of product every month to sell -- and the amount required is often a lot more than they can reasonably expect to sell. So, one former Mary Kay distributor set up a pretty good business in buying the "remnant" inventory from others at lower prices (better than being stuck with it completely) and then reselling it online. It's basically arbitraging the inefficiencies set up by Mary Kay's ridiculous system that pushes excess product onto its distributors.

But, of course, Mary Kay doesn't like any of this (despite the fact that it still gets paid for its product) -- and, in theory it should have no case due to the always popular first sale doctrine (i.e., you can resell stuff you bought). Except, Mary Kay is trying to get around this by claiming that the online seller's goods are "materially different" and thus first sale doesn't apply. Why are the products materially different? Apparently, they're old, expired and not supported any more -- which doesn't necessarily seem to be "materially different," but perhaps a judge will find otherwise.

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