by Mike Masnick
Fri, Aug 10th 2012 7:39pm
by Mike Masnick
Fri, Jul 27th 2012 1:05pm
from the sneaky-sneaky dept
To be honest, this "confession" is not a huge surprise. While many people often lump the MPAA and RIAA together, SOPA/PIPA was almost entirely driven by the MPAA. The RIAA basically did the least amount required to officially show its support for the bill -- but all of the pushing for the bill was done by the MPAA. I had wondered if it was just a sign that the RIAA is simply running out of steam as its main members are dwindling, but now it seems clear that even they realized SOPA/PIPA was not an effective plan. Of course, when we explained why SOPA/PIPA wouldn't have been effective, supporters claimed we were behind a misinformation campaign. I guess the RIAA was a part of that campaign as well, huh?
But, perhaps even more interesting was another tidbit later in the TorrentFreak post, concerning how the RIAA views the six strikes plan. For some background, while various "three strikes" plans around the globe are focused on taking away internet connections after accumulating three "strikes" (based on accusations, not convictions), when the "voluntary" (with a big shove from the government) plan was put in place, part of the messaging was that disconnection was not an option.
However, according to the presentation, it appears that the RIAA has a backdoor plan to put in place a disconnection regime. Basically, they're noting (accurately) that the DMCA already requires that service providers who wish to retain safe harbors have a "termination policy" in place. That's true. But here's the sneaky part: the RIAA is ready to insist that a reasonable termination plan under the DMCA would require an ISP to terminate a user once they get to those six strikes. In other words, the plan doesn't require termination -- which was necessary from a PR standpoint -- but the RIAA is going to claim that the law already requires it. Sneaky, sneaky:
Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.This is the RIAA I'm used to. Using misdirection and sneaky language to get what it wants while claiming otherwise publicly.
In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”
So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.
For what it's worth, we've heard that some of the reasons for the delays in launching the six strikes plan has to do with the ISPs pushing back on RIAA/MPAA desire for disconnections to occur. I don't know how accurate that is, but it would fit with what's stated above -- and certainly suggests we haven't seen the last of this. If anything, it sounds like a lawsuit may eventually have to be filed to see if the RIAA can effectively force an ISP to terminate accounts over the six strikes plan...
Thu, Jul 26th 2012 11:14am
from the in-soviet-russia,-speech-censors-you dept
It began by blocking the entirety of LiveJournal, the country’s largest blogging community, to the city of Yaroslavl and part of surrounding Moscow from July 18 to 20.Wait. All of LiveJournal? Why? What could possibly go through the minds of these government officials that would cause them to block an entire network of blogs, most of which were not doing anything illegal?
On July 18, local law enforcement informed a Yaroslavl court about pat-index, a neo-Nazi blog it had found on LiveJournal during a sweep. The blog’s hateful message violates Russian federal laws against extremism. Because of Bill 89417-6, the court now has the power to stamp it out completely and immediately.You see, the court order demanded the blockage based on the IP of the blog in question. What could possibly go wrong with such a simple open and shut use of such an easy to use identification source? Oh, right. All of LiveJournal uses the same IP address. So when the government officials got their court order to block those few illegal blogs, they took out just a few extra. Kind of reminds me of when Homeland Security, here in the US, took out over 84,000 websites in a similar action.
The court ordered Internet provider Netis Telekom to block, among other illegal sites, this blog’s IP. The court order shows the IP to be blocked as 22.214.171.124.
This reminds me of the debates around SOPA. You know, when we and other people, who actually understand the dangers of the legislation, warned repeatedly that such legislation would result in collateral damage of this nature. This collateral damage is also part of the reason why this Russian bill was protested. Legitimate speech was censored for several days. That is not acceptable. It should be a wake up call to the legislators that passed the bill. Unfortunately, too many people in power are unwilling to relinquish the ability to censor speech once they have it. Hopefully, the citizens of Russia will take note of this unacceptable abuse of power and demand the law be repealed.
by Mike Masnick
Thu, Jul 26th 2012 4:16am
from the which-is-it? dept
Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.
Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:
Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.
I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.
Thu, Jul 19th 2012 9:28am
from the coming-back-to-bite-you dept
by Glyn Moody
Wed, Jul 18th 2012 9:20am
from the how-can-they-not-get-it? dept
In the wake of the recent defeat of ACTA in the European Parliament, the key questions are not just what the European Commission will now do, but what lessons the EU and US will learn from it, especially in the wake of the equally dramatic derailing of SOPA earlier this year. At the annual meeting of the Transatlantic Intellectual Property Rights (IPR) Working Group in Brussels last week, both the EU and US agencies and rights holders let slip a few hints about what they are really thinking.
Here, for example, is how the EU views the post-ACTA situation, as reported by Intellectual Property Watch:
Where IP rights once was a field for experts, now it drives the masses to the streets, the European Commission said referring to recent protests against the Anti-Counterfeiting Trade Agreement (ACTA). Without a much stronger commitment from rights holders, the rejection of ACTA would just be the beginning, Commission representatives said according to observers.
This is extraordinary: rather than taking on board the concerns expressed by tens of thousands of European citizens about how ACTA was negotiated, and the way it sought to preserve outdated business models by weakening online privacy and freedom, the European Commission instead wants rights holders to fight back against this wave of protests. No sense, then, that maybe the Commission and copyright industries should possibly change their position to reflect the clearly-expressed wishes of European citizens, only a worry that without some kind of concerted action, things might swing slightly in the public's favor for once -- perish the thought.
The European Commission wasn't even prepared to consider splitting ACTA into two separate treaties -- one dealing with counterfeits, the other with online copyright issues:
Jean-Luc Demarty, the director general of the Trade Directorate of the European Commission, said at the meeting with regard to question of a potential split of counterfeiting and copyright piracy, IPR could not just be for bags and t-shirts.
This betrays a woeful -- or perhaps willful -- lack of understanding about why physical counterfeits and digital copies are fundamentally different, and need to be addressed with different means.
The US side was not much better:
George York, deputy assistant to the US Trade Representative for IP and Innovation, and Susan Wilson, director of the Office of Intellectual Property Rights in the US Department of Commerce, confirmed during the meeting that despite ACTA’s failure in the EU, the ratification process would go on in the US, despite concerns by some experts about potential inconsistencies with US laws.
Again, no hint that maybe ACTA was the wrong solution, or that it lacked legitimacy without the support of citizens in signatory nations. Just the insistence that the US would plough ahead, regardless of any inconsistencies with those tiresome laws.
As if that weren't enough, the meeting's participants went on to express that they are "highly skeptical" about open access to scientific knowledge -- despite the huge and growing support for it among scientists themselves. The old FUD that open access somehow undermines peer review was rolled out -- even though no one who understands open access even minimally could possibly make that absurd accusation.
The US and EU administrations also both said that India's compulsory licensing of Bayer's anti-cancer drug rang "alarm bells"; tellingly, the EU side added that the EU-India Free Trade Agreement currently being negotiatied "still needs work" -- presumably so as to limit India's freedom to issue more such compulsory licenses.
The nearest thing to a tacit admission that the defeat of SOPA and ACTA indicated something was seriously wrong with the whole system came from William E. Kennard, the US Ambassador to the EU, who boldly suggested that legislators still have not got the balance in this area "quite right". Such a laughable characterization of the chasm that separates what the law tries to impose and what the public now believes is reasonable shows just how little US and EU officials and rights holders have really grasped what this year's extraordinary events mean for copyright -- and for them.
by Mike Masnick
Fri, Jul 13th 2012 6:36pm
from the seems-possible dept
Earlier this year, the RIAA said that the program would finally kick off in July. There were some rumors of delays, and then a bunch of sites (including us) got confused about the actual start date. There have been multiple reports now saying that it will actually roll out later in the fall.
Of course, this has a lot of people wondering just what the delay is about. There might be a clue in a piece over at The Daily Dot, where they say that the director of the Center for Copyright Information (CCI), Jill Lesser, has hinted strongly that the ISPs disagree with some RIAA/MPAA demands:
Jill Lesser, Executive Director of the Center for Copyright Information, told the Daily Dot that the repeated delays were because the coalition wanted an independent review from the American Arbitration Association.Of course, there's one big thing that happened between when the agreement was made and now: the huge public reaction to SOPA. After that, the EFF rightly called for scrapping the backroom deal and starting a new negotiation that actually involved the public. That recommendation was ignored by Hollywood, of course, but the news of some internal fighting hopefully means that the ISPs are asserting themselves a bit more strongly against excessive RIAA/MPAA demands. Of course, once again, this is why it would be nicer if this debate were in public, rather than hidden behind closed doors.
She hinted that disagreement between the ISPs or the lobbying groups might have held up the process. Responding to a question about the delay, she wrote “members are all very involved in internal planning and review of the alert system, which has been and will continue to be a collaborative process.”
by Mike Masnick
Thu, Jul 12th 2012 6:46am
from the ridiculous dept
What was stunning was that the SOPA protests were largely about process -- backroom deals, without public input or scrutiny -- and in this case, with this new bill (officially dubbed the Intellectual Property Attache Act) they not only did the same thing, but were trying to rush it through on a fast track significantly more extreme than SOPA. That is, they only shared the draft on Saturday and announced that there would be a markup on the bill (which they never even introduced) on Tuesday morning. That's rare. Normally, you officially introduce the bill, hold various hearings that involve experts, make some adjustments, and then hold a markup hearing to allow for additional amendments. In this case, they jumped right to that last step -- completely skipping over some rather major steps that would allow for public input and scrutiny.
In other words, they did the exact opposite of what the SOPA experience told them they should do.
However, because we and a few other sites pointed out the issues here, some of the original supporters of the bill began expressing doubts. Some others on the HJC offered up amendments -- including one that would say that the IP attaches couldn't just focus on enforcement, but also on limitations and exceptions like fair use (you know, actually focusing on what US law is, rather than what Hollywood wishes it would be). But apparently there is resistance to those amendments. However, because lots of people did speak up and let the HJC and Lamar Smith know that they would not accept them rushing through a piece of SOPA without public discussion, the bill has been (temporarily) delayed.
Of course, still not getting it, the HJC issued a petulant statement, effectively blaming us for this turn of events:
"This week, the House Judiciary Committee released a discussion draft of a bill that streamlines the IP attache program to help safeguard American intellectual property abroad. Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act. That is not the case. The bill that the Committee currently is working on is a narrow piece of legislation to ensure better use of Patent and Trademark Office funds. The current draft increases organizational efficiency at the PTO and moves the IP attache program squarely within the PTO to ensure direct accountability of the IP attaches.The statement is partially misleading and partially false. First of all, the language is quite similar to a portion of SOPA -- so claiming that it's not a "followup" to SOPA is clearly false. This was a part of SOPA, and now it's a part of a new bill -- but ignoring the fact that it was in SOPA is simply wrong. Second, the statement is incredibly misleading, in that they suggest that they were always seeking feedback. That's not true at all. It was on the markup schedule for Tuesday morning -- and that was published on the HJC website for anyone to see (though it's since been taken down). Finally, no one else saw a draft until Saturday and no one in the press got it until Monday morning -- about 24 hours before the markup (despite HJC staffers promising some members that it would release the draft at least a week before any effort to move it forward). Basically, the HJC staffers who put out this statement are creating a misinformation campaign, claiming (incorrectly) that we and a few other blogs who wrote about this were the ones spreading the misinformation.
"Since releasing that draft, for which there is bipartisan and industry support, we are making some changes based on feedback from outside groups and Members. We plan to circulate a new draft based off those changes to ensure that the development of this bill continues to be an open and transparent process."
They can't even own up to their own attempt to rush this bill through. It's shameful.
As Ernesto Falcon at Public Knowledge has written, if you want to "shake the ghost of SOPA," perhaps try to not rush through a bill that you kept secret without allowing the normal process of public comment and feedback.
The latest controversy with the Intellectual Property Attache Act, formerly a provision within the Stop Online Piracy Act (SOPA), is entirely self-inflicted by its lead sponsors.At this point, we've heard that some Judiciary Committee staffers view sites like Techdirt as "the enemy." That's completely wrong. We'd just like them to not try to sneak bad bills through -- and to actually do their job and let the public weigh in on things. Is that so difficult to comprehend? This isn't political. We have nothing against the House Judiciary Committee as a whole. We'd just like them to actually acknowledge the public's role in the process. If they did so, perhaps people wouldn't complain and speak out. If they really are being "open" about this, then there wouldn't the this sudden surprise. There wouldn't be this attempt to rush things through... and there wouldn't be a public outcry. So it's in their own best interests to actually admit that the public exists and should be a part of the process, rather than snubbing them.
You do not have to be a political strategist to figure out that trying to pass a piece of SOPA might in fact inflame the wide array of opposition to SOPA. You also can not cry foul when you secretly develop the legislation, hold no legislative hearing on its merits, and attempt (and thankfully fail) to move the legislation through the Committee almost 24 hours after it was leaked to the press. Each of these steps flies in the face of the request made by opponents to SOPA for more openness, inclusion, and transparency for intellectual property policy decisions. It is as if the some believe that the business of copyright legislating can proceed as usual and that the Internet Black Out never occurred.
If the House Judiciary Committee wants to shake off the ghost of SOPA and avoid having legislation blow up in their collective faces, they need to rethink how they move intellectual property bills. The Committee must proactively work at justifying to the public why a bill is necessary and win their support for its passage before voting it out. It should stop trying to move bills first and put the burden on the public to stop them from blindly moving forward.
by Mike Masnick
Tue, Jul 10th 2012 7:29pm
Let The Judiciary Committee Know That Creating A Mini-SOPA Without Public Participation Is Unacceptable
from the speak-up dept
It appears that this plan is falling apart. The markup did not happen this morning, and we're hearing that support for the bill is wavering. Some of the named co-sponsors have made it clear that they're just as unhappy that the bill was being rushed out this way without public comment and were uncomfortable with some of the specifics in the bill -- and that these concerns mean that the bill may actually be delayed. It may be a very temporary delay, but it does sound like some of the "co-sponsors" may have changed their minds and won't be supporting the bill. And, for the time being, the markup has been called off.
There is still a lot of back and forth going on, and it's still important to speak up. Public Knowledge pointed out that the House Judiciary Committee and Lamar Smith need to learn that secret bills are a non-starter, and they're absolutely right.
Before getting to the substance of the bill, perhaps the most shocking thing about it is how it is being handled by Committee Chairman Smith (who was a driving force behind SOPA). If Congress learned no other lesson from SOPA and PIPA, you would think that they got the message about not developing IP-related laws in secret. But you would be wrong. This bill leaked, fully formed, over the weekend and was scheduled for markup today. Needless to say, this came as a surprise to just about everyone not directly involved with drafting it and provided a very limited opportunity to meaningfully participate in the markup process. Step zero for any new IP bill should be a transparent drafting process.Given that this is still a highly fluid situation, if you're represented by any of the members of the House Judiciary Committee, you might want to give them a call and let them know that you opposed SOPA and you're shocked that the HJC might push through a piece of SOPA in a process that was even more secretive than the one for SOPA itself.
by Mike Masnick
Mon, Jul 9th 2012 1:09pm
Lamar Smith Looking To Sneak Through SOPA In Bits & Pieces, Starting With Expanding Hollywood's Global Police Force
from the learned-anything? dept
In other words, these people are not neutral. They do not have the best interests of the public or the country in mind. Their job is solely to push the copyright maximalist views of the legacy entertainment industry around the globe, and position it as the will of the US government.
It was good that this was defeated as a part of SOPA... but now comes the news that Lamar Smith is introducing a new bill that not only brings back this part, but appears to expand it and make it an even bigger deal. Politico has a short blurb:
SMITH, OTHERS UNVEIL IP BILL -- House Judiciary Committee chief Lamar Smith and other members are unveiling today their new Intellectual Property Attache Act, which realigns the Commerce Department a bit. The measure as proposed would move the current attache program housed with the USPTO to the full agency, complete with an assistant secretary of Commerce for Intellectual Property. The proposal is slated for full committee markup on Tuesday. Named as supporters on the measure are a number of panel Dems and Republicans: Reps. Bob Goodlatte, Mel Watt, Darrell Issa, Howard Berman, Howard Coble, Steve Chabot, Jason Chaffetz and Adam SchiffYou can see the current draft of the bill (pdf and embedded below), but it has not yet been officially introduced. However, the House Judiciary Committee is scheduled to mark it up in the morning, suggesting that it's on the fast track, with almost no public scrutiny. In fact, I've heard from people worried about this bill that they were only told of its existence on Saturday.
The specifics of the bill appear to go further than the version in SOPA. It is clear that the bill itself is framed from the maximalist perspective. There is nothing about the rights of the public, or of other countries to design their own IP regimes. It notes that the role of the attaches is:
to advance the intellectual property rights of United States persons and their licensees;The bill also "elevates" the IP attaches out of the US Patent and Trademark Office, and sets them up as their own agency, including a new role: the Assistant Secretary of Commerce for Intellectual Property. Yes, we'll get another IP Czar, this time focused in the Commerce Department.
When even the USTR is recognizing the importance of limitations and exceptions to copyright, to have Congress push a bill that basically ignores limitations and exceptions and only looks to expand Hollywood's special thugs within the diplomatic corp. seems like a huge problem.
But the even bigger issue is a simple one of process. Shouldn't Lamar Smith have learned by now that you don't try to sneak through SOPA or any of its components without first getting widespread public opinion on these things?