A year ago, the Colombian government rushed through a really bad copyright law, known as "Ley Lleras 2", pretty much as a welcome gift for President Obama, who was about to visit the country. It did this by invoking an "emergency procedure" that let it ignore nation-wide protests that had followed the presentation of a similar bill earlier, the original "Ley Lleras". In January of this year, Ley Lleras 2 was struck down by Colombia's Constitutional Court, but for purely procedural reasons, rather than because of its substance. Before this, however, another bill had been prepared that sought to fix some of the glaring problems with Ley Lleras 2. Even though the latter has been blocked for the moment, the other bill is proceeding:

This Bill contains provisions regarding limitation and exceptions to Copyright Law. Last 16 of April the Bill passed the second debate in the House of Representatives. Now it is pending for debate in the Senate.

This Bill contains six articles regarding limitations and exceptions. Article 1 mandates an exception for temporary copies made as part of a technological process in some specific circumstances. Article 2 mandates an exception in favor of people with sight or hearing disabilities. Article 3 mandates an exception in favor of libraries and archives allowing them to lend a work. Article 4 mandates an exception in favor of parody. Article 5 mandates an exception in favor of educational institutions allowing the public performance of a work under certain circumstances. Finally, Article 6 repeals all provisions contrary to the ones mandated by this Bill.

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...rightsholders may apply to the courts to have ISPs “prevent or impede access” to sites that have “extensively made available material that clearly violates copyrights.”

Website owners will be named as opposing parties in such procedures but if the owner of the site is unknown or has an unknown address “..the case can be decided without the person concerned being given an opportunity to comment.”

In dealing with end-users of unauthorized material (i.e the general public) the amendments are designed to make it easier for rightsholders to pursue individuals without falling foul of Norway’s data protection laws. Once passed, the new legislation will exempt personal data from the Personal Data Act when processing of such data is necessary for the pursuit of a legal claim.

Spain is strengthening its intellectual property law by introducing sanctions for advertisers on websites that violate copyright protection and increasing fines for websites that do not remove pirated material, the government said on Friday.

"I've never thought that copyright inhibits innovation."

Say you send out one of those mailers for a subscription to Time Magazine. And you check the box that says bill me later. Let's say that they start sending you Time Magazine, and after 2 or 3 issues they send you the bill, and you never pay. But in the meantime you have 6 or 8 issues before they cut you off for not paying. My proposal is let's adopt Six Strikes and knock somebody off the postal system. You don't pay for it, you don't get to use the postal service any longer. Or let's say somebody blows through a toll plaza 6 times, does that mean you don't ever use the highways anymore?

The function of copyright law as it has evolved is indeed to disrupt innovation and to disrupt new technologies that threaten the interest of copyright holders. Frankly all copyright legislation has been in reaction to new technologies that are developed. And copyright law has sought as its purpose, interfering with, limiting, pampering and indeed disrupting innovation of technology, business plans, even disruption of consumer choice.

Even though SOPA failed, SOPA is now in some respects the law of the land. Because we now have Soft SOPA. We have the government putting pressure on advertising networks and putting pressure on payment processors, unofficially, to take the same measures that SOPA was going to require them to [do]. But now it's a sort of 'if you know what's good for you, could you pretty please, wink-wink' method.

There are payment processors notifying companies that they are no longer willing to process payments for them. It's happening. It happened with three of my clients... [W]e have advertisers blacklisting certain sites, and telling sites. 'We're not going to place advertising on your site because people tell us you're not a good site.' So that's happening. And it's being done as "Oh it's just a private decision."

A challenge was mounted, and the Constitutional Court has now returned its verdict. The good news: the law has been struck down. The not-so-good news: it's for procedural reasons, as infojustice explains:

the Court declared the unconstitutionality of the entire law due to procedural irregularities incurred in Congress because the law was processed in the Second Commission of Congress, like an international treaty, but not as the internal implementation of an intellectual property law which the process should have been carried out in the First Commission. Furthermore, the 1520 Act was processed as an ordinary law and not as a statutory law.

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Building on an existing JCCT commitment to develop a Judicial Interpretation making clear that those who facilitate online infringement will be jointly liable for such infringement, China announced that its Supreme People’s Court will publish a Judicial Interpretation on Internet Intermediary Liability before the end of 2012.

For good cause, existing secondary liability law... does not extend to facilitation – it requires more knowing, culpable conduct, or direct financial benefit. A pirate's utility company arguably facilitates piracy by providing electric power to the pirate – and indeed, benefits from the added electricity consumed. We don't penalize utilities for piracy committed by their customers, however: since its inception, secondary liability has been wisely limited exclude such sweeping application.

The term seems particularly inappropriate in relation to commitments extracted from China regarding Internet policy. Construed broadly, "facilitate" could encapsulate any website or web service that allows users to communicate information freely. Given the ambiguity of the term, China could potentially interpret the word broadly to engage in censorship of its own, not only for IP infringement offenses, but for other activities "illegal" in China as well. If censorship concerns were sufficiently problematic in the U.S., they should be at least as problematic in China.

The problem of Internet piracy and the sale of counterfeit products online has not gone away. Senator Leahy continues to monitor law enforcement actions, significant developments in the courts and voluntary industry practices, and all those pieces will help determine what next steps are appropriate.
— spokeswoman for Sen. Patrick Leahy (D-Vermont), chairman of the Senate Judiciary committee and author of the Protect IP Act

We can all agree about the importance of protecting American innovation from foreign thieves, but I think it is critical that all parties have a seat at the table and work together to solve important policy issues. As chairman of the Judiciary committee, I look forward to working with both the technology and content communities to find ways to protect America's competitive advantage while promoting internet freedom and growth.
— Rep. Bob Goodlatte (R-Virginia), chairman of the House Judiciary committee and original sponsor of SOPA

Hollywood and Silicon Valley have more in common than most people realize. We share a commitment to innovation, to our consumers, and are working together to develop new platforms to make that content easily and legally accessible. Like the tech industry, the well-being of the film community is dependent on a vibrant First Amendment and we would never support any legislation that limits this fundamental right. We can all agree no one wins if everyone loses. Preserving freedom of speech and protecting intellectual property rights are not mutually exclusive efforts. Intellectual property protection is essential to creators and makers in both industries and we need to discuss it rationally. Let's use this anniversary to forge a path toward the future where the creative content and technology industries work together to develop meaningful solutions that ensure an Internet that works for everyone.
— Michael O'Leary, senior executive vice president for global policy and external affairs at the Motion Picture Association of America

It's a new day for a new music business and for the RIAA. For the better part of the last year, we have focused on being an evangelist for the dynamic, exciting legal online marketplace that now exists for fans. That will continue to be our priority in 2013. We earn more than half of our revenues from digital services and platforms. Not many creative industries can say that. Music helps drive social media trends and device sales. In fact, in 2012, the two top Google searches were music-related. Currently, 19 of the top 20 YouTube videos are music videos. And according to Twitter, seven of the top 10 Twitter accounts are held by artists.

What does this all tell us? Music is at the center of cultural and commercial phenomena. We are not stuck in the past but looking ahead at a promising, bright future teeming with new music options. Which is why we created, along with our online retailer partner NARM, WhyMusicMatters.com, a one-stop educational guide for digital music so fans can know where to get their favorite music in a variety of different ways. And we expect that this bright future will offer access to music in ways currently unimaginable but will perhaps seem commonplace a year from now.

Yes, piracy still continues to plague us and is a continuing threat to our business. But instead of looking to Congress for help, we are tuned in to the marketplace and actively seeking out voluntary partnerships with intermediaries like ISPs and advertisers to help curtail illegal downloading. Moving forward, we want to simplify music licensing to make it easier to develop music business models. We know that music models continue to evolve - access and listening models are becoming more prevalent and it's imperative we derive a fair market return for the music that is the foundation of those businesses. And as always, we'll continue to find new ways to promote the dynamic music marketplace.
— Mitch Glazier, senior executive vice president at the Recording Industry Association of America.

Protection of intellectual property and Internet freedom are critically important. The Chamber will work with members on both sides of the aisle to find an effective and commercially reasonable solution to address this ongoing problem.
— U.S. Chamber of Commerce spokeswoman

If you had asked me how I felt on January 18, 2012, about the prospects for protecting the creative work of artists and innovative businesses in the wake of the internet revolt against the Stop Online Piracy Act and the Protect IP Act, my response might have involved some muttering under my breath and a request for a stiff drink. In the coming week, many who seek to exploit the work of creators without their consent will be looking backwards and celebrating last year's defeat of those bills. So one might expect advocates for artists and creators to be in a dour mood again, but there is ample cause for optimism among members of the creative community...

At least some of the goals of the legislation have been achieved through increased private and government action since the introduction of the first version of the bills in 2010:

• More credit card companies are engaging in best practices. In June 2011, major credit card companies and online payment processors (American Express, Discover, MasterCard, PayPal and Visa) reached an agreement on voluntary best practices to reduce sales of counterfeit and pirated goods by cutting off sites that distribute infringing goods from conducting financial transactions through these processors.
• More advertisers are engaging in best practices. On May 3, 2012, the Association of National Advertisers and the American Association of Advertising Agencies issued a statement of best practices to address online piracy and counterfeiting.
• Internet service providers, movie studios and record labels are collaborating on a Copyright Alert System. Under this system ISPs have agreed to notify users when their accounts appear to be used for illegal downloading activity and to impose real consequences on users who refuse to stop after receiving multiple notices.
• Google finally started considering whether sites are rogue websites when doing search rankings. In August 2012, Google announced a change in its search algorithm that takes into account the number of "valid copyright removal notices" when determining the ranking of search results. In its announcement, Google indicated the goal was to help its users find legitimate sources of content more easily...

As more artists and creators stand with their peers and highlight what is really happening on the Internet, more people will listen and think twice. If there is a silver lining to the blackout, it has been the people who we have met this year: artists, reformed 'pirates' academics and lawmakers who want to begin meaningful conversations about promoting creativity and ensuring it finds a place in all of our lives.
— Sandra Aistars, executive director of the Copyright Alliance

To celebrate that victory, a bunch of groups involved in the ongoing fight for internet freedom have come together to declare Internet Freedom Day on January 18th. Here at Techdirt, we're marking the occasion with an infographic looking back at the day the internet community became a political force to be reckoned with:

In May 2011 the Ministry of Culture announced that it had put forward proposals for amendments to the Copyright Act which would “..give licensees the tools they need to follow-up on copyright infringement on the Internet, while protecting privacy.”

The key proposals included making it easier for rightsholders to identify infringers from their IP addresses and amendments to the law to allow ISP-level blocking of sites deemed to be infringing copyright.

Ten years ago, Jarvis appended this "mock copyright notice" to his blog posts:

It's mine, I tell you, mine! All mine! You can't have it because it's mine! You can read it (please); you can quote it (thanks); but I still own it because its mine! I own it and you don't. Nya-nya-nya. So there. COPYRIGHT ... by Jeff Jarvis.

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Funny how much less they were using Google takedowns before SOPA failed, when they were complaining about all the front-page pirate results.

In response to the anti-WCIT “campaign,” according to the September retreat’s preparatory materials, the ITU reluctantly launched a “counter-campaign,” which the agency believes “has been fairly successful outside the US and somewhat successful even in the US,” where “some of the statements made to denigrate ITU and WCIT are so extreme that they were easy to challenge and rebut.”

Going forward, the ITU focused at its meeting on the possibility of an “intensive anti-ratification campaign in OECD countries, based on the so-called lack of openness of the WCIT process, resulting in a significant number of countries refusing to ratify the new ITRs.” The ITU calls this possibility “the so-called ACTA scenario,” referring to sometimes violent protests against the secret ACTA treaty that took place this year.

To develop the next phase of its “counter-campaign,” the ITU hosted speakers from leading PR and advertising agencies to advise them on the use of social media. For example, Matthias Lufkens, Head of Digital Strategy for global public relations firm Burson-Marsteller, gave a presentation on how his agency helped the World Economic Forum leverage tools such as Facebook, Twitter, and Flickr to fend off “occupy”-style protests that occurred both physically in Davos and on the Internet.

“There is a risk that [the ACTA scenario] will happen, but our communication campaign can mitigate this,” the internal document says.

Here’s the unvarnished truth, which no PR agency can help the agency talk, tweet, or prevaricate their way around: The commercial Internet emerged and matured entirely since the treaty was last reviewed. It developed in spite of the ITRs, not because of them.

There is a familiar pattern here of ambitious regulators who have no expertise and little experience with the Internet proclaiming themselves its benevolent dictators, only to find the peasants revolting before the coup has even started.

The ITU is no different than the sponsors of ACTA, SOPA, PIPA, and other attempts at regulating the Internet, its content, or its users by governments large and small. Like the media lobbyists who continue to see the successful fight to kill SOPA and PIPA as a proxy war waged solely by Google and other Internet companies, the ITU simply can’t accept the reality that Internet users have become their own best advocates.

...recognizing the global nature of Internet crime, this year the IPR Center partnered with Europol, who, through its member countries, executed coordinated seizures of foreign-based top-level domains such as .eu, .be, .dk, .fr, .ro and .uk. This effort is titled Project Transatlantic and resulted in 31 domain name seizures.

"This operation is a great example of the tremendous cooperation between ICE and our international partners at the IPR Center," said ICE Director John Morton. "Our partnerships enable us to go after criminals who are duping unsuspecting shoppers all over the world.

During this operation, federal law enforcement officers made undercover purchases of a host of products; including professional sports jerseys, DVD sets, and a variety of clothing, jewelry and luxury goods from online retailers who were suspected of selling counterfeit products. If the copyright holders confirmed that the purchased products were counterfeit or otherwise illegal, seizure orders for the domain names of the websites that sold these goods were obtained from federal magistrate judges.

Current copyright law does not merely distort some markets -- rather it destroys entire markets.

1. That the purpose of copyright is to compensate the creator. No, it correctly notes, it's about benefiting the public:

   Thus, according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.
   
   This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights.

2. That copyright is a representation of free market capitalization. The paper properly notes that the reality is the exact opposite:

   Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.

3. That the current copyright regime leads to the greatest level of innovation and productivity. That makes no sense at all, the paper says:

   Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.

1. Statutory Damages Reform:
   
   Copyright infringement has statutory damages, which most copyright holders can and do use in litigation (rather than having to prove actual damages). The government sets a range – which is $750 to $30,000 per infringement – but that goes up to $150,000 if the infringement is "willful." Evidence suggests that the content holder almost always claims that it is willful. This fine is per infringement. Those rates might have made sense in commercial settings (though even then they arguably seemed high), but in a world where everyone copies stuff at home all the time, the idea that your iPod could make you liable for a billion dollars in damages is excessive.
   
2. Expand Fair Use:
   
   Right now, it's somewhat arbitrary as to what is legally fair use based upon judicially created categories. One example: parodies are considered protected by fair use but satire is not. There's an excellent book (and a shorter paper) called Infringement Nation that details how things you do every single day are infringing and leave every single person liable for billions in damages each year (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029151).
   
3. Punish false copyright claims:
   
   Because there is minimal or nearly non-existent punishment for bogus copyright claims today, false takedown requests are common and have a chilling effect upon legitimate speech. While those filing a takedown request have to swear on the threat of perjury, that swearing is only in regard to whether the work is theirs but not whether the work is actually infringing. The court has said that their needs to be “subjective bad faith” in order to be sanctioned for false takedown requests. This often leads to de facto censorship.
   
4. Heavily limit the terms for copyright, and create disincentives for renewal:
   
   Current public policy should create a disincentive for companies to continue their copyright indefinitely because of the negative externalities explained in this paper. Unlike many forms of government revenue, generating revenue by disincentivizing activities with negative externalities is one way for the government to pay for its operations. This is a far superior way for the government to generate revenue rather than having a tax system that disincetivizes work.

The European Union primarily, but with some backing from the US government, is holding blind people's access hostage in and effort to introduce new global enforcement norms for copyright. If you look at most copyright exceptions in most countries, the system works as follows. If the exception applies, an activity is not considered infringement. If you do something that is not protected by the exception, you are infringing, and all sorts of bad things can happen, depending upon your national laws for infringement, which include both criminal and civil sanctions. That is how the US exceptions work for blind persons, and that's how nearly all national exceptions work for blind persons. But here at WIPO, the EU wants page after page of detailed regulation of anyone who uses an exception. The expanding verbiage of the agreement is almost entirely about introducing ACTA and SOPA like enforcement provisions into this agreement.

Instead of trying to help one of the world´s most culturally disadvantaged groups the EU´s copyright specialists guided by Commissioner of Internal Market Michel Barnier are busy launching violent preemptive strikes against the possibility of a clear, exception to copyright for the non-profit production and distribution of works formatted for visually impaired persons.

In Geneva this week the EU made one negative proposal after another to block a global agreement that would greatly improve access to culture for the visually impaired. All of them have been rejected by the organizations defending blind and disabled persons rights. Most of them are “copy and paste” proposals from the publishing industry´s wish list. Not one EU proposal this week in Geneva was to facilitate the right to read of disabled persons as guaranteed by international law. Not one member of the EU´s delegation was a human rights or disability expert; all were hard-line copyright apologists.

The argument that copyright violates the constitutional right to free speech seems to have particular force on the Internet, because, in the words of one federal court decision, "The Internet is a communications medium." Copyright owners seem to squelch this communication: They compel websites to take down infringing videos, music and writings. The music industry successfully sued widely used peer-to-peer services such as Napster and Grokster, and it continues to use automated programs called bots to track what music people download and from what websites. SOPA expanded copyright owners' legal rights to block websites containing infringing content, in effect relegating these websites to digital purgatory. As a law professor stated at a conference over the summer: "Copyright is the engine of censorship."

Thus, copyright law secures the fruits of creative labors, but only those specific fruits — the value in the specific text, picture or song created by the artist.

The right to free speech is the right to express one's thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.

In fact, both copyright and the right to free speech are based in the Constitution — in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU. But hidden away amongst these are some breathtaking suggestions.

Here, for instance, is Section 39:

Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;

Here's Section 42:

Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle;

This trick of mixing contradictory demands is repeated in Section 59 of the EU report:

Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy;

All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA. New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.

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