Even as the US tries to ratchet up patents, copyrights and trademarks in international trade agreements, talking about how it's essential to protect the US's interests, it's amazing how the US ignores those same agreements at home. For years, we've talked about the still ongoing situation with Antigua, where the US was clearly found in violation of trade agreements, but has refused to do anything about it (other than unilatterally changing the free trade agreement in question in its own favor).

But that's just the tip of the iceberg.

Other countries are complaining that the US has lost at a variety of hearings in front of the WTO (handling disputes over those trade agreements) and then proceeded to ignore those rulings entirely.

“The conduct of the United States unscrupulously discredits the WTO dispute settlement system and also constitutes an affront to the intellectual property rights,” an ambassador from Cuba said today at the WTO.

At a WTO Dispute Settlement Body meeting today, a number of WTO members fired shots at the US delegation for its continued failure to change its laws to comply with WTO rulings that found it out of compliance on intellectual property-related issues.

The article lists out a bunch of countries all complaining that, while the US keeps pressuring them to adopt strict IP laws, the US routinely ignores the same clauses in the various free trade agreements it signs.

“It is very ironic to observe the United States projecting laws on intellectual property, despite keeping violations as egregious as Section 211,” under which the Bacardi Company continues to market rum labelled Havana Club, a mark which is otherwise owned by Cuba and partners. “This is one of the most famous cases of trademark counterfeiting and conducting misleading advertising by a company backed by the US legislation.”

And while a number of the countries complaining obviously have other issues with the US (Cuba, Venezuela), it's not just those countries. The EU also has complained that the US has been ignoring various agreements.

Even the 27-member European Union weighed in on the Section 211 case, thanking the US for its report and adding the hope that “US authorities will very soon take steps towards implementing the DSB ruling and resolve this matter.” The EU also urged that the US comply with another IP case – Section 110(5) of the US Copyright Act – which involved the US commercial practice of playing music recordings, such as Irish music, aloud in bars without paying royalties. “We refer to our previous statements that we would like to resolve this case as soon as possible,” the EU said.

Of course, the proper response to all of this isn't just putting more pressure on the US to change its laws to comply, but a more basic solution: stop agreeing to "intellectual property" issues in trade agreements. The US has now made it abundantly clear that it will pressure countries into rules that go against its own best interests and then will ignore any rules that go against its own interests. So the most basic response is that the US is clearly not trustworthy on "intellectual property" in trade agreements, and other countries should refuse to include such provisions in any agreement with the US. Don't reward hypocrisy and bullying by allowing the US to do more of the same.

Back in October, we pointed out how the US delegation to the ITU WCIT (World Conference on International Telecommunications) was pushing for much more openness and transparency for the notoriously closed and secretive process that could impact internet governance. That was certainly refreshing to see. But it also stood in stark contrast to the same US government's massively secretive and opaque process to the Trans-Pacific Parntership agreement -- which could have just as much, if not more, of an impact on internet governance issues.

With negotiations on both issues happening simultaneously (WCIT in Dubai and TPP negotiations in New Zealand) it seems quite crazy to see the US speaking out vehemently in favor of greater openness and transparency in Dubai, while actively trying to prevent similar transparency in Auckland. Here's the State Department on WCIT:

On the eve of the World Conference on International Telecommunications (WCIT), we believe that it is the right time to reaffirm the U.S. Government's commitment to the multistakeholder model as the appropriate process for addressing Internet policy and governance issues. The multistakeholder model has enabled the Internet to flourish. It has promoted freedom of expression, both online and off. It has ensured the Internet is a robust, open platform for innovation, investment, economic growth and the creation of wealth throughout the world, including in developing countries.

[....] The Internet's decentralized, multistakeholder processes enable us all to benefit from the engagement of all interested parties. By encouraging the participation of industry, civil society, technical and academic experts, and governments from around the globe, multistakeholder processes result in broader and more creative problem solving. This is essential when dealing with the Internet, which thrives through the cooperation of many different parties.

The global community has many serious topics to discuss with respect to the Internet. Collectively, we need to ensure that these matters are taken up in suitable multistakeholder venues so that these discussions are well informed by the voices of all interested parties.

Our commitment to the multistakeholder model is based on the fact that transparency, inclusion and participation are the 21st century standards governing discussions related to modern communications.

Yet, over in New Zealand, US officials, as well as negotiatiors from others countries, are taking the opposite view. They're doubling down on secrecy, not transparency. They are not using a "multistakeholder" model at all, but rather locking out civil society and public interest groups. They've ignored or limited the ability of the innovation industry to have any say in the proceedings at all, and (most ridiculously) they're enforcing a secrecy policy many times worse than what we see at the ITU with WCIT. Many of the documents from WCIT have leaked out, while precautions mainly driven by the US government have, to date, limited the leaks from TPP negotiations.

It's really quite incredible that the same government can make those claims about openness, transparency and the importance of a multistakeholder process on the one hand, while going in the opposite direction on basically the same exact issue at the very same time for an event held elsewhere. The whole thing stinks of hypocrisy, which could easily be solved by opening up the TPP process, revealing the negotiating documents for public comment, and allowing the public into the process. After all, in the words of the US government:

We have and will continue to advocate for an Internet that is not dominated by any one player or group of players, and one that is free from bureaucratic layers that cannot keep up with the pace of change. We will work with everyone to ensure that we have a global Internet that allows all voices to be heard.

If only the US government would listen to that important message.

We've argued for a while that the US's effort to censor websites at home while talking about internet freedom is hypocritical and takes away any moral high ground the US might have had with other countries concerning their efforts to censor the internet. What's stunning, unfortunately, is how rarely US officials seem to recognize this problem. When confronted on it -- they always revert to a "but that's different!" claim, missing that this is exactly the excuse that other countries use to justify their own censorship efforts.

Case in point: there's been significant concern in India, as the government has been censoring Twitter accounts of certain journalists and political groups, as well as blocking certain websites (sometimes just blog posts, other times, full websites). As that last link explains, the content targeted for censorship tends to have to do with content around "communal issues and rioting," and thus there's an argument to be made that the censorship is for the benefit of the public, to prevent riots. Even so, of course, one can question whether or not such censorship is even effective, let alone the rather obvious temptation for those in power to overblock for their own benefit. Indeed, that last link explains that there have been "egregious mistakes" in how the blocks have been carried out.

And what about the US? With plenty of attention being paid to the debate over this Indian censorship, the US State Department spokesperson, Victoria Nuland, was asked her thoughts about what was happening, and trotted out the standard line about internet freedom:

"On the larger question of Internet freedom, you know where we are on that issue, and we are always on the side of full freedom of the Internet," she said.

Which sounds great, of course, but if Nuland thought that such a blanket statement would let her off, she was mistaken. Reporters immediately hit back, pointing to examples of the US fighting against internet freedom in its own back yard. And Nuland apparently wasn't happy, and pulled out the "but that's different!" excuse:

But when she was probed on the issue of WikiLeaks, Nuland snapped: "WikiLeaks didn't have to do with freedom of the Internet. It had to do with the compromise of US government classified information."

To be fair the US government has not "blocked" Wikileaks. It has blocked it on certain government computers and has used public pressure to have its hosting and payment processors cut it off. Whether or not that's to the same level as to what's happening in other countries may be debatable, but it certainly opens up the US to criticism on that point. And that's the real issue here. Even if you argue "but that's different," just the fact that the US has opened itself up to such an easy retort any time it argues for internet freedom in countries that espouse censorship, it makes it that much harder for the US to seriously push an internet freedom agenda abroad.

We've discussed the push to get both major political parties in the US to adopt language around internet freedom in their official platforms. With the RNC Convention happening, there's been some news that they are, in fact, putting in some internet freedom language, but the specifics do matter. The Daily Caller report indicated that the language was based on the manifesto that Ron Paul and Rand Paul released a few weeks ago, which had serious problems (such as arguing that the public domain was a "collectivist plot" and that the end-to-end principles of the internet were also some sort of awful conspiracy). One would hope that cooler heads would prevail.

Of course, at the same time, there are numerous reports saying that the same GOP platform will include significant anti-porn language. The GOP has had anti-child porn language before, which makes sense, but they're expanding it to porn in general. And it's being cheered on by various groups who seem... a little excessively happy about this (you should see some of the press releases I've been getting from groups in favor of this). They argue that porn, in general, is "a major, major problem." And Mitt Romney seems to support this, arguing that "every new computer sold in this country after I'm president has installed on it a filter to block all pornography."

No matter what you think of pornography, it's hard to square the idea of supporting internet freedom (or freedom of speech in general) with mandatory filters. Porn filters already exist and are widely available in the market. For those who wish to put them on their computers, it's not like they have a lack of options. To make them mandatory seems highly questionable, and it's difficult to see how one can argue for both internet freedom and mandatory filters at the same time.

Of course, this is politics that we're talking about, where it's pretty common to hold two completely conflicting viewpoints at the same time. I expect we'll see similar contradictions in a couple weeks when the Democrats hold their convention as well...

Our first introduction with Zynga was back in 2009 when the maker of Mob Wars sued Zynga over its Mafia Wars game. Zynga was accused of copyright infringement and ended up paying a pretty penny. Later on in the year, Zynga turned around and sued Playdom over what it claimed was trademark infringement. Shortly there after Zynga was sued for trademark infringment over the name Mafia Wars. Then last year, Zynga decided to sue a Brazilian company, Vostu, for various claims of copyright infringment and even some claims that the company copied its entire business model. This lawsuit resulted in a very interesting ruling from a US Judge telling Zynga not to enforce its win over Vostu, because the US Judge wanted first dibs on the ruling. Remember this last case, because it is the most important one when reviewing this next lawsuit.

Just last week, word came in that Zynga was being sued yet again over allegations of game cloning and copyright infringement. This time the player doing the suing is none other than EA, the makers of the game The Sims Social. In its complaint, EA accuses Zynga of pretty much copying the entirity of the Sims Social in its game The Ville. In a press release about the case, EA states:

As outlined in our complaint, when The Ville was introduced in June 2012, the infringement of The Sims Social was unmistakable to those of us at Maxis as well as to players and the industry at large. The similarities go well beyond any superficial resemblance. Zynga’s design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social. The copying was so comprehensive that the two games are, to an uninitiated observer, largely indistinguishable. Scores of media and bloggers commented on the blatant mimicry.

Compare that to Zynga's statement about its lawsuit against Vostu:

Let’s be clear – it is one thing to be inspired by Zynga games, but it is entirely different to copy all of our key product features, product strategy, branding, mission statement and employee benefits lock, stock and barrel. We welcome Vostu into the arena of social games, but blatant infringement of our creative works is not an acceptable business strategy—it is a violation of the law.

In both statements, the accuser is stating that outright copying was taking place. That each accused game was a near replica of the other game. Such a claim from EA after Zynga made very much the same claims has got to be one of the largest legal karma slaps in history. One that Zynga will be very much lucky to walk away from.

Elsewhere in the filing, EA shows that Zynga's cloning is not limited to this one case. It lists numerous instances where Zynga had been accused of cloning other popular games. It lists the afore mentioned Mafia Wars, Dream Heights, Farmville and Zynga Bingo, all games that had been publicly accused of being clones. This was done to show that Zynga has an extensive history of cloning games.

EA's filing is also full of interesting screen shot comparisons in which it points out some of the more common similarities, such as the almost exact duplication of skin tone selections and personality types. EA even provided a video showing other similarities in animations.

Something to note in these examples is that they follow a very similar pattern to the filing Zynga made in its case against Vostu. In that filing, any time Zynga wanted to show off the similarities of the two games in question, it would show images that use as many similar elements arranged in as similar a fashion as possible. Something that EA does as well. This tactic is deployed as a method to project as much of a feeling of copyright infringement as possible. Unfortunately, it also clouds the fact that much of what is shown are in all actuality user made choices. 

In response to this lawsuit, Zynga has sent a comment out to the media.

The Ville is the newest game in our 'ville' franchise -- it builds on every major innovation from our existing invest-and-express games dating back to YoVille and continuing through CityVille and CastleVille, and introduces a number of new social features and game mechanics not seen in social games today. It's unfortunate that EA thought that this was an appropriate response to our game, and clearly demonstrates a lack of understanding of basic copyright principles. It's also ironic that EA brings this suit shortly after launching SimCity Social, which bears an uncanny resemblance to Zynga's CityVille game. Nonetheless, we plan to defend our rights to the fullest extent possible and intend to win with players.

Since we are in a compare/contrast mood today, let's take a quick look at how Vostu responded to Zynga's lawsuit.

Zynga has been accused of copying so many games that they’ve sadly lost the ability to recognize games like ours that are chock full of original content and have been independently created. Vostu has 500 brilliant employees working night and day making hand drawings and writing proprietary code for online games that our 35 million users worldwide enjoy. Zynga’s anti-competitive effort to bully us with a frivolous lawsuit — especially when we have some of the same key investors — is pathetic. While Zynga plays games with the legal process we will continue focusing on using our substantial resources to create games that entertain our customers.

There are two key similarities between these two defensive statements. The first is that both companies make the claim that their work is original and built with the companies' creative talents. The other is both are claiming that the lawsuits are less about copyright and more about attacking a competitor. It really boggles the mind that a company like Zynga has missed the poetics of this situation.

While we have repeatedly stated that the practice of game cloning is something that can be dealt with outside of the legal system, it is interesting to see these two players go toe to toe. What makes this case even more interesting than a typical cloning case, as I have tried to portray, is that Zynga set itself up for this lawsuit. Not just by copying EA's game, but also by providing the exact kind of legal precedent EA needs to win. If Zynga is to defend itself in this case, it is in effect defending Vostu's actions. Something that Zynga probably isn't looking forward to.

Well, this is interesting. Given the general condemnation of Wikileaks by governments, all the ongoing controversy and reputation problems faced by the organization, you wouldn't expect them to be approached with any official requests for leaked information. But it seems just that has happened in the UK, where the Leveson Inquiry into media ethics has requested and received a dossier from Wikileaks on corruption in the British press.

On the surface this is pretty hypocritical, and more than a little ironic: in the past, the UK government asked media outlets to brief them on government secrets they received from Wikileaks before publishing them. Now, a government-run inquiry is asking Wikileaks to hand over information on UK media outlets. Apparently they don't hate leaks as long as they flow in the right direction.

Hopefully this represents another step towards governments recognizing that Wikileaks isn't pure evil, even if there are questionable things about the operation. Though there are risks, bringing sensitive information to light is often in the public's best interest—indeed, that's the whole spirit behind public inquiries. The Leveson Inquiry was convened when the News of the World phone-hacking scandal pointed to a secret culture of corruption in the press, and now Wikileaks is helping to expose it further. If governments attempt to maintain secret cultures of their own, they too will be exposed.

Where's ICE when you need them? For a while now, ICE has been making the case that sites that merely link to streaming content -- especially sports content -- are the most evil kinds of criminals around. It's why they're trying to extradite Richard O'Dwyer from the UK to have him face criminal charges. It's why they recently arrested Yonjo Quiroa, who will soon be tried on criminal charges as well. Both ran sites that linked to streams of TV content, including sports content. So clearly, this is serious, criminal business. In fact, if you believe the propaganda from the RIAA, these sites contribute to gangland violence and terrorism.

But, of course, when those major label guys want to set up an illegal public performance of an NFL game, where do they turn? You guessed it! One of those rogue sites.

Jason Kincaid over at TechCrunch has the rather insane story of how Vevo, the music video streaming company created by Universal Music and owned by Universal Music and Sony Music, had a booth set up at Sundance a few weeks back, where they, quite clearly, live-streamed an NFL playoff game. Yeah. In their "lounge," they had computers showing the game, apparently sourced from ESPN America -- which isn't available in the US. And the stream came from TuTele.tv, which appears to be quite similar to many of the sites that have been seized and shut down. In fact, it sounds pretty similar to Rojadirecta, which is currently fighting the US Justice Department in court.

And the folks from these major record labels used this source to live stream the football game throughout their lounge area at Sundance. It gets even more ridiculous when you remember that Congress has been trying to pass bills that would make such streaming a felony in and of itself. Senator Amy Klobuchar's streaming felony bill, S.978 -- the one that would potentially put Justin Bieber at risk -- as well as SOPA, both had provisions that made public performance of infringing content a potential felony. Those were mainly supposed to be directed at sites that allow streaming, but I think people would find it hard to argue that what happened in that bar was not a "public performance."

Of course, what this shows is that these issues are never as black and white as the RIAA would have you believe. And, just like many others, when the industry doesn't give them a convenient way to do what they want, even the RIAA's strongest supporters stoop to making use of rogue sites to potentially do "criminal acts."

I eagerly await ICE moving in to arrest Vevo execs for this blatant criminal activity.

Remember CreativeAmerica? That's the pro-SOPA/PIPA astroturf group that the big Hollywood studios set up, pretending that it was a "grassroots" campaign (even though its grassroots efforts aren't turning up many supporters). For a group that positions itself as being really strongly pro-stronger, more draconian copyright, you would think that it would be careful to, you know, not copy others, right? But, really, what's a little copying among people lobbying over bills about the evils of copying?

Yes, it appears that the good folks at CreativeAmerica just happened to notice that the large and growing anti-SOPA/PIPA forces have mobilized the public to go out to various town hall meetings for Senators to protest PIPA... and they decided, "Hey, we should do that!" But, rather than creating their own campaign, and doing the legwork (and, trust me, there's a lot of legwork involved) to actually compile the list of townhalls and then to craft an email to supporters... it seems that CreativeAmerica thought it would be easier to just copy someone else's... and... um... "remix" it.

You can see the email that Public Knowledge sent to people protesting PIPA here. And, here is the email that CreativeAmerica just sent to people urging them to go to the same town hall meetings in support of PIPA. You... may notice some similarities. Here are the two emails side by side. Yes, they made some changes.... er... remixes... but it's pretty obvious that CreativeAmerica just took PK's email and made a few edits. It's especially obvious when you look at the 3 point list of instructions... which is almost word-for-word.
click for larger version As for the two meetup groups... you can see Public Knowledge's town hall meetup here and you can see CreativeAmerica's here. It seems pretty clear that CreativeAmerica simply scraped and copied PK's. So creative!

Of course, we have no problem with this general kind of building on the works of others. We consider such remixing and building on the works of others a true form of creativity. We just find it a wee bit (well, actually, more than that) hypocritical for an organization set up by the big movie studios for the express purpose of pushing for heftier punishment for those who copy... to then go and copy stuff themselves. Paraphrasing the critics in our own comments: What's wrong, CreativeAmerica, can't you create your own works here? Why do you have to "steal" the work of other people who actually did the work?

We've discussed how the State Department, and Hillary Clinton in particular, have been spending a lot of time talking up the importance of internet freedom, and speaking out against countries that censor the internet. That even resulted in Joe Biden's unintentionally hilarious explanation of why internet censorship is horrible... while he supports internet censorship at home.

It seems like there's a real disconnect in our government, however, when the censorship is couched in the word "copyright." We just wrote about how Spain adopted its SOPA-like law this week, despite widespread public outrage. We had noted that the US State Department was a major force behind the bill, and (no surprise) more news has leaked that there was more of the same behind this new decision to adopt the Sinde Law. It's been leaked that, just last month, State Department officials threatened the Spanish government that if it didn't pass the law, there would be repercussions. This was a letter from US ambassador Alan Solomont to the outgoing Spanish government, sent December 12th, in which he talked about "promises" made to the US government:

"The government has unfortunately failed to finish the job for political reasons, to the detriment of the reputation and economy of Spain... The government of Spain made commitments to the rights owners and to the US government. Spain can not afford to see their credibility questioned on this issue."

Stunning. Because, in actuality, the commitment the Spanish government has is to its own citizens -- who are very much against the bill. The only thing that raises questions about Spain's "credibility" is caving to US diplomatic pressure to censor the internet.

Meanwhile, if we want to talk "credibility," the US State Department is increasingly losing its credibility on this issue. How can any diplomat, with a straight face, go public talking about internet freedom and being against censorship, when the State Department demanded Spain pass a law that allows for censoring the internet?

We keep pointing out just how disastrous SOPA and PIPA look from a diplomatic perspective. Just as the US is going around talking about the importance of internet freedom, to start pushing a bill that involves censorship (and yes, it is censorship) looks really bad. SOPA supporters like to point to Hillary Clinton's letter that said there's no conflict between internet freedom and copyright enforcement. But she did not comment specifically on the bills at issue -- and furthermore her statement is wrong. There doesn't have to be conflict between the two, but you can't say there's never conflict between the two, because you could easily design a rule that proves otherwise (e.g., "we shut down the entire internet to prevent infringement.") The State Department, frankly, is having a really tough time straddling both sides of this debate, because everything they say about the importance of internet freedom acts as the perfect arguments against SOPA.

But, really, the true test of the diplomatic impact of SOPA on the international community is not what the State Department says... it's what those other countries say. And they seem pretty shocked that this is the path the US is going down. Here are two examples. First up, we have the Voice of Russia, noting that the US is joining China in censoring the internet:

The US and the West have long criticized China for stifling dissent and for censorship but now they are not only joining China but they are taking censorship even further and attempting to censor the whole world.

The international implications of SOPA are worrying for as experts claim: it appears that the US is taking control of the entire world. The definitions written in the bill are so broad that any US user who uses a website overseas immediately gives the US the power to potentially take action against it and enable them to force ISPs to DNS-block any foreign site.

On a global scale it grants the U.S. Government far-reaching powers to go after Web sites which it claims are hosting copyrighted content.... Not long ago the U.S. admitted that it was in a state of information warfare and that it was losing the war. So what do you do if you are losing the information war? You muzzle the messenger.

Considering Russia has a bit of a history using copyright law to stifle political critics... folks there certainly know exactly how censorship via copyright can lead to much more than just protecting a few companies.

Now, let's jump over to the Middle East, where Al Jazeera is pointing out the State Department's rank hypocrisy on this subject, assuming that Clinton's letter was, in fact, in support of SOPA, and showing how that seems to undermine the rest of the State Department's arguments for internet freedom around the globe -- especially when it comes to circumvention tools:

In the year and a half since, the State Department has had limited success promoting online awareness and circumvention tools in foreign countries. But given SOPA's incredibly broad definitions of which sites are liable under its censorship provisions - merely claiming the site "engages in, enables or facilitates" infringement is enough - it won't be long until the bill destroys social networks that spread news of protests and the anonymity software that keep activists protected.

Many tech groups worry social networks such as Facebook - which were instrumental in organising protests in Egypt - would be at risk under SOPA. Brooklyn Law School professor Derek Bambauer also argues YouTube, which hosts countless human rights videos, would be "clearly unlawful", since it allows users to upload videos that may contain copyrighted content. While Google and Facebook may have enough money and lawyers to fend off lawsuits and court orders without being shut down completely, emerging social networks in foreign countries would not. Any site hosting videos, even if they are used to draw attention to human rights abuses, will be easily derailed if an overzealous copyright holder decides to use one alleged violation to strangle the whole site.

But circumvention tools - which allow activists to foil internet censors and evade government surveillance - would be the bill's greatest casualties. While many are developed explicitly for human rights advocates, they can also be used to download copyrighted content. Tor, the anonymising software that masks users' IP addresses that was instrumental during Egypt protests, would be a prime target of copyright holders, despite being funded by the US government.

In fact, most of internet freedom programmes currently funded by State Department are in danger. Hillary has pledged millions of dollars to various companies to create a "shadow" internet "that dissidents can use to undermine repressive governments", according to the New York Times. But by endorsing SOPA, Hillary is giving the green light to copyright holders to destroy it. Virtual Private Networks, proxies, privacy or anonymisation software could all potentially be deemed illegal if they can also help get around SOPA's censorship mechanisms.

Even if Clinton truly believes that SOPA doesn't harm the US's diplomatic position on internet freedom around the world, it sure looks like large parts of the rest of the world disagree. The site TorrentFreak recently had a caption contest about a photo showing MPAA boss Chris Dodd sharing a hearty laugh with Chinese Ambassador Zhang Yesui. Perhaps they were laughing about how the bill that Dodd is pushing is the perfect cover for the Chinese the next time the State Department asks them to stop censoring the internet.