European Commission Suggests ACTA's Opponents Don't Have 'Democratic Intentions'

from the what-planet-are-they-on? dept

Last week, we had a story about the IFPI (the international equivalent of the RIAA) saying that the ACTA protests were trying to "silence the democratic process". You might have thought that was bad enough, but here's worse.

Netzpolitik.org points us to leaked internal minutes of a meeting of the European Commission the day before the massive Europe-wide demonstrations against ACTA. They reveal the EU's top politicians taken aback by the scale of the planned demonstrations, but dismissing them with almost the same words as the IFPI (German original):

ultimately it will be hard to convince civil society organizations [about the benefits of ACTA]. Represented among them are interests that do not reflect the wider community. Specific activities were observed that do not always live up to the supposedly democratic intentions.

The minutes went on to detail some of the things people are up to:

ACTA's opponents are trying to mobilize people against the agreement, in order to influence the remaining MS [Member States that have not yet signed] and EP [Parliament].

So the European Commission thinks that tens of thousands of people on the streets somehow don't reflect the wider community -- presumably unlike the small band of negotiators and lobbyists behind closed doors that drew up ACTA in secrecy for years, who do represent the European Union's 500 million people.

And the Commissioners are just shocked that the opponents of ACTA, who have been denied any meaningful transparency about what was being agreed to in their name during those now-concluded negotiations, are desperately trying to make their voices heard by the only institutions left that can listen: the EU nations that haven't signed ACTA, and the European Parliament that must still ratify it.

This suggests that the European Commission is completely out of touch with the people it supposedly serves, and still doesn't understand the growing anger that its arrogant approach and condescending tone continues to generate on the streets.

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Twitter Suspends Four Accounts Critical of Sarkozy: Is This What He Meant By 'Civilizing' The Net?

from the what's-going-on-here? dept

Nicolas Sarkozy, who hopes to be re-elected as French President this year, seems to have little love for the Internet. At best, he regards it as a "Wild West" that needs taming. Despite that, Sarkozy joined Twitter last week -- you can follow him @NicolasSarkozy. Posts are mainly written by his re-election team, although there seem to be a handful of personal tweets (marked "NS"). But at least he's finally engaging with the new medium on its own terms.

Or maybe not:

The morning after French President Nicolas Sarkozy announced he will run for a second term, several parodic Twitter accounts have mysteriously been suspended. @_nicolassarkozy , an account created in September 2010 and clearly labeled as a satirical Sarkozy impersonation, was suspended on Feburary 16th.

The account was run by the French website kaboul.fr:

According to Kaboul.fr, which, after complaining, received an answer from Twitter, @_nicolassarkozy was "suspended after being reported." Twitter also told Kabul.fr that to be granted such priviledge, the suspension had to be made by Sarkozy, or someone acting on his authority.

Twitter's official response has been leaked:

We have received a valid report that your account, @_NicolasSarkozy, is engaged in non-parody impersonation. Although Twitter firmly believes in the freedom of expression, impersonation that misleads, confuses, or deceives others is against the Twitter Rules (http://twitter.com/rules). Your account has been temporarily suspended due to violation of our impersonation policy.

The key issue here seems to be possible confusion, since Twitter's guidelines on Parody, Commentary, and Fan Accounts state:

In order to avoid impersonation, an account's profile information should make it clear that the creator of the account is not actually the same person or entity as the subject of the parody/commentary. Here are some suggestions for marking your account:

Username: The username should not be the exact name of the subject of the parody, commentary, or fandom; to make it clearer, you should distinguish the account with a qualifier such as "not," "fake," or "fan."

Name: The profile name should not list the exact name of the subject without some other distinguishing word, such as "not," "fake," or "fan."

Maybe the account @_NicolasSarkozy has fallen foul of those rules, although it's hard to believe anyone would mistake a parody of Sarkozy for the real thing - it was not an "impersonation". But what about the other accounts that were suspended?

three other accounts, all clearly opposing Sarkozy's political views, were suspended at the same time: @mafranceforte, @fortefrance and @SarkozyCaSuffit. Those accounts where not related to Kaboul.fr, nor impersonating local politician, but straight-ahead, and recently-created, politically-oriented Twitter accounts.

"La France Forte" -- "Strong France" -- is the slogan for Sarkozy's campaign, prominently displayed on his Twitter page, so the use of the phrase for Twitter accounts might be seen as confusing. But again, the content would surely tip people off that it was a parody. The last of the four accounts that were suspended recently is @SarkozyCaSuffit -- roughly translated as "Sarkozy, That's Enough". It's clearly what Twitter calls a "Commentary" account, making a very obvious comment about a political figure - no question of "impersonation". Unless there are any other grounds for doing so (and so far there don't seem to be any), removing it looks like pure political censorship in favor of Sarkozy.

We don't know at this stage exactly who asked for these four accounts to be removed, only that according to Twitter's rules it must have been done "by Sarkozy, or someone acting on his authority". We asked Twitter about this and it refused to provide specifics on why the accounts were closed or the timing, other than to say that just because the accounts were suspended in the same general time frame, it wasn't necessarily for the same reason.

Be that as it may, the near-simultaneous closure of four accounts all critical of a powerful national politician inevitably reminds us that for many countries, "civilizing" the Internet often comes down to censoring it. It's worrying to see France apparently starting to go down that route -- and for Twitter to be helping it.

Update @_NicolasSarkozy has been unblocked, but the other three are still suspended.

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Shining Light On ACTA's Lack Of Transparency

from the don't-a-billion-people-matter? dept

One of the key problems with ACTA is the lack of transparency during its negotiation. That this is becoming a big issue in Europe is shown by the fact that the European Commission has tried to dispose of the question twice -- first in its "10 myths about ACTA", which I discussed recently on Techdirt, and now with a page entitled "Transparency of ACTA negotiations":

This factsheet aims at clarifying the way the European Parliament, civil society and all stakeholders have been informed and involved in the negotiation process.

Note that it insists all stakeholders were "informed and involved". I'd like to explore that a little.

One important group are the MEPs (Members of the European Parliament), since they are the representatives of the 500 million citizens in the European Union. The Commission spells out exactly how often they communicated with this group of politicians:

During the ACTA negotiations, the European Commission has shared the following documents with the European Parliament (see annex for full list of documents):

7 successive draft texts of the agreement
3 detailed written reports on the negotiation rounds
14 notes and internal working papers

But there's a problem with those documents, as the Pirate Party MEP Christian Engström highlighted in a blog post back in 2010: MEPs weren't allowed to pass on any information they obtained.

The ACTA negotiators from the Commission came to the European Parliament today, to inform the Parliament about what happened in the last round of negotiations in Luzern.

However, the meeting where the information was to be given was declared “in camera”, i.e.: closed to the public.

At the meeting, I asked if this meant that there were restrictions on how the information given could be used and spread. At first the Commission seemed unwilling to answer this question with a straight yes or no, but after I had repeated the question a number of times, they finally came out and said that I would not be allowed to spread the information given.

In fact, Engström pointed out that the situation was even worse:

According Article 218(10) of the Lisbon Treaty, the Commission has a duty to keep the European Parliament “immediately and fully informed at all stages of the procedure”.

To give oral information in a closed meeting, with no documents at all handed out, hardly qualifies as keeping the Parliament “fully informed”.

It is obvious that the Commission has no intention of living up to its obligations under the Treaty when it comes to informing the Parliament.

That is disgraceful.

So according to an MEP who was theoretically privy to at least some of those drafts, reports and internal working papers supposedly available, the Commission failed even to inform the European Parliament properly. Moreover, what information there was, could not then be passed on to the people the MEPs were representing.

But there was another route for information to be conveyed to them: via non-governmental organizations (NGOs). Here's the kind of transparency the European Commission says it provided to those groups:

the team of negotiators have invited, met and extensively debriefed NGOs, academia and representatives from political parties such as the Pirate Party during the last four rounds of negotiations in Wellington, Luzern, Washington and Tokyo. These meetings took place on side events during the negotiation sessions. The stakeholders had access to the negotiators' teams and issues and concerns raised by Civil Society were discussed and explained.

That sounds pretty good, but as Techdirt reported about the last of those meetings, the reality was rather different:

For the past month, negotiators had been telling the NGOs that the meetings were starting September 27th. Then, they suddenly announced that it would actually start September 23rd, and the NGO meeting would be on the 24th. Except, by the time they announced it, it was too late for most representatives to get to Japan in time (many had booked flights for the following week), and the Japanese government refused to change the time of the meeting. Then, finally, when the meeting was held and only 2 or 3 NGOs were actually able to make it, it wasn't so much a "meeting" as it was lunch -- and, even then, all the ACTA negotiators sat together, leaving no room for the NGOs.

So, it looks like the only channels of communication that the public had were direct ones. Here's what happened there according to the European Commission:

4 stakeholders' meetings -- open to all citizens -- were organised in Brussels:
23 June 2008
21 April 2009
22 March 2010 and
25 January 2011

That's it: one opportunity a year for 500 million people somehow to find out everything that had happened with ACTA -- based on the five documents that were publicly released, three of which were "speaking points" -- and to make their own views heard.

The European Commission is obviously aware that this is a joke, and desperately tries to mitigate its blatant failure to involve ordinary citizens by adding:

During the whole negotiation process, the European Commission has not recruited any consultants, be it from industry or from NGOs or civil society. The European Commission denies having provided any kind of preferential access to information to any group of stakeholders, be it from industry, trade unions or from other stakeholders.

Even if it's true the EU negotiators didn't provide such preferential access, that's irrelevant, because the US side did:

Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.

So the European Commission's claim that "all stakeholders have been informed and involved in the negotiation process" is true only at the most superficial of levels. Yes, MEPs were told minimal information -- but weren't allowed to pass it on to the people they represent; yes, NGOs were able to sit in the same room as the negotiators for an hour or two -- if they managed to overcome the series of obstacles designed to stop them getting there on the right day; yes, members of the public could express their views – but only once a year, by travelling to Brussels at their own expense, and without access to the vast majority of relevant documents.

In reality, the only stakeholders that were truly informed and involved were the copyright industries who were present right from the start. ACTA is simply the implementation of their one-sided demands without any meaningful checks or balances for the benefit of the billion people who will be most affected by it, but who were consistently ignored during its negotiations.

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Australian Government Holds Secret Anti-Piracy Meetings; The Public Is Not Invited

from the so-20th-century dept

As Techdirt noted recently, policy-making behind closed doors is no longer acceptable. Until the end of the 20th century, it was hard for the general public to make their views heard, and so governments didn't really bother asking them. But that's no longer the case: the Internet has blown government wide open, and there is now no excuse for not consulting as widely as possible -- including the public -- before passing legislation or signing treaties.

That's a lesson that the Australian government seems not to have learned yet, judging by the following story:

The Federal Government has reportedly held a second closed door meeting held between the content and telecommunications industries to address the issue of illegal file sharing on the Internet through avenues such as BitTorrent.

The first meeting took place at the end of last year, and is part of the content industries' attempt to circumvent the Australian courts' refusal to order ISPs to act as a private copyright police force.

According to another report, the argument now seems to be mainly about who will pay for a proposed "graduated response" (three-strikes) scheme:

one source familiar with the discussions said local film industry representatives are concerned that the cost of operating graduated response schemes is too high.

Another source said the content industry’s response was to try to push the cost of managing infringement notices -- and an appeals mechanism for customers who felt they had been wrongly accused -- onto internet service providers.

Never mind the fact that the content industries not only want this kind of extra-judicial punishment, they want it for free: what's really appalling here is that "three strikes" seems to have been settled upon without any qualms about whether it is fair or would work, or whether it might be a good idea to conduct some research to find out. It's the usual evidence-free policy making that has bedevilled this area for decades. But that's hardly surprising, since the most important stakeholder here -- the public -- wasn't invited to the meetings to offer its views on moves that would have a major impact on using the Internet, on privacy and on civil liberties.

That's not only unacceptable, it's extremely unwise in view of what the Australian government plans to do next:

If the content and internet industries reach agreement on a scheme to deal with copyright infringement, the Attorney-General’s department is expected to put a draft proposal out for public consultation.

Given the way that such a draft proposal is being drawn up, any public consultation is likely to be seen as a sham, since the terms of the debate have already been set. And when the draft with a few token but irrelevant tweaks finally becomes law, guess how much public support that is going to have?

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DMCA Takedown Service Tells Copyright Companies: 'Adapt Your Business To The New Digital World'

from the they-really-get-it dept

Although DMCA takedown notices figure quite frequently here on Techdirt -- especially abusive ones that use the system to remove material covered by fair use or even in the public domain -- the industry that has grown up around them remains somewhat in the shadows. That's what makes the site with the self-explanatory name "Takedown Piracy", found via the 1709 Blog, so fascinating: it offers a glimpse of the world of DMCA takedowns as seen from the other side.

As you might expect, Takedown Piracy sends DMCA notices to sites that it believes are holding copyrighted material belonging to its clients. But what's surprising is the scale of the takedown: one recent post on the site talks of "hammering these sites with DMCAs", and later goes on to give an idea of what that entails:

Once word got around that [the #3 adult torrent site] Cheggit was complying, myself and at least one other removal company began monitoring the site daily resulting in 100s if not 1000s of torrents were being reported every day.

Since the site was "complying", that presumably meant 1000s of torrents were also being taken down every day. Making extra work in this way lies at the heart of the company's service, as this helpful FAQ explains:

Piracy is rampant and can often seem like you’re playing Whack-A-Mole. However, in this case you’re not just hitting the moles with rubber mallets but we’re dropping napalm bombs on the whole field. Part of the success of piracy sites can be attributed to them offering a superior surfing experience for users. As long as copyright owners do nothing, that experience will continue to be superior. We interfere with that experience by introducing frustration to the mix. Whether it’s the site owner frustrated at the amount of time he/she spends on removing content or the frustration the downloader feels at not being able to find free content, frustration is a very valuable tool to use in combating piracy, and we excel at that.

What's fascinating here is the recognition that piracy sites offer a "superior experience for users" – compared to the official offerings. That confirms other evidence that what people who use unauthorized sources are really seeking is not free content -- because often they must pay to access them -- but the extra convenience those sites offer.

Which means, of course, that it is the copyright industries themselves, with their failure to provide that convenience, that are helping to drive potential customers to alternatives. It also implies that if the content companies managed to make their offerings competitive with pirate sites -- that is, even more convenient -- they would win back much of that lost business.

Significantly, that is what the Takedown Piracy service seems to advocate:

While we’re doing our thing, you’re able to adapt your business to the new digital world and have a chance for your new distribution models to flourish.

If even an avowed enemy of pirates can see what's needed, why can't the copyright companies themselves?

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Would Steve Jobs Have Approved? Artist Offers His Apple Monologue, Performance Rights, For Free

from the it's-good-to-share dept

As sales of its products soar, and its share price continues to climb, Apple has come under increasing scrutiny because of the working conditions in the Chinese factories where its iPhone and iPad are manufactured. This has led Apple's CEO, Tim Cook, to announce recently that the Fair Labor Association will be conducting audits of Apple’s final assembly suppliers, including Foxconn factories in China.

That tension between the undeniably desirable products and the not-so-glamorous conditions under which they are made powers a monologue by Mike Daisey, entitled "The Agony and the Ecstasy of Steve Jobs," which we discussed last month, and described by the New York Times as:

a mind-clouding, eye-opening exploration of the moral choices we unknowingly or unthinkingly make when we purchase nifty little gadgets like the iPhone and the iPad and the PowerBook.

The NYT also has an interview with Daisey in which he makes clear his view that, for all the shiny-toy ecstasy Apple's leader purveyed to the world, Jobs could have done better:

This is someone who had an opportunity to transform the world with these devices and then did. He started as someone whose devices were forged out of piracy, and today it’s the most locked-down computer company in the world. As a capitalist I’m sure that it’s very attractive. But if we’re talking about him as an artist, I’d say that he completely lost track of his ideals.

Given that jaundiced view of "the most locked-down computer company in the world", it perhaps shouldn't be too much of a surprise to discover that Daisey the artist is trying to stay true to his own ideals by opening up his work to everyone, not just to download, but to perform:

after nearly 200 performances, the monologuist Mike Daisey was to release a theatrical transcript of his latest one-man show, “The Agony and the Ecstasy of Steve Jobs,” through his Web site, mikedaisey.blogspot.com. It will be free to download and in a rare twist, if an aspiring performer should want to mount a production of the show, Mr. Daisey will not ask for payment.

Rare indeed. Given Jobs' allergic reaction to letting people 'do what they want' without significant limits or tollbooths, would he have approved?

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Portuguese Artists Association Struggled To Get Even 100 Members On List In Favor Of Exorbitant New Private Copying Levies

from the idea-whose-time-has-passed dept

Few ideas display a sense of entitlement better than that of private copying levies. For they assume, by definition, that artists' representatives have a right to money from the public simply because there is some kind of storage that could be used to hold digital copies of copyright files, and that every time such a file is copied, money must be paid (never mind if you are just making backups or transferring your holdings to bigger storage sizes.)

This is based on the outmoded idea that the public are simply consumers, and ignores the fact that today they are also creators. Take digital photos, for example: since there is no cost involved in taking as many pictures as you wish -- unlike in the world of analog photography, where film and processing expenses act as a brake on creativity -- a typical collection of family snaps can easily run to many gigabytes. Moreover, most digital cameras also allow videos to be shot, and these generate even larger quantities of data. As a result, an increasing proportion of the data stored on devices has nothing to do with commercial works, and yet the full levy must still be paid.

A further problem is that the capacities of hard disks are now so large that even relatively low per-gigabyte rates generate significant additional costs when applied to disks with terabyte capacities, say. A case in point is the amended scale for Portugal's private copying levies, announced last month. According to an article in Exame Informatica (original in Portuguese), a 1 terabyte hard disk currently priced around $90 will cost $120 under the new scheme, while a 2 terabyte hard drive that costs $130 now will go up to $200. But this isn't just about hard drives. USBs, smartphones and even multifunction printers will all be subject to the new levy.

Naturally, the prospect of these surcharges is proving unpopular with the Portuguese public. And so the SPA (Sociedade Portuguesa de Autores -- Portuguese Society of Authors), which represents Portuguese artists in all areas -- music, audiovisual, dance, plastic arts and cinema -- decided to show how the country's creators really backed the move. The Portuguese blogger Miguel Caetano Carlos Martins describes what happened:

SPA has tried to validate their point by presenting a list of one hundred authors and artists that support this PL118 law. There's no denying that some author might think its a good idea... even though it might look suspicious that they could get only a hundred of them among their 25k+ registered members; and even though that roughly 20% of those 100 are the association board members; the really horrendous part is that we now found that some of those names were put there without any consent from the authors!

[Update: there are now apparently 200 names on the list - still rather a poor showing for such a large association.] If even a national organization for all categories of artists can't muster genuine support for such measures, it's clearly time to get rid of the whole antiquated approach. Inflated prices for digital devices will be a real drag on innovation in Portugal at a time when it is trying to modernize itself. Moreover, the manifest lack of enthusiasm for the SPA's attempt to mobilize support for the higher levies suggests that the creators themselves derive little benefit from the scheme.

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How Do We Know That Piracy Isn't Really A Big Issue? Because Media Companies Still Haven't Needed To Change As A Result Of It

from the calling-their-bluff dept

One of the positive outcomes of the debate that has raged around SOPA/PIPA is that more people have looked at the facts, rather than listened to the rhetoric, surrounding piracy. In particular, the copyright industries' hitherto unchallenged claim that piracy is destroying their business is finally being challenged – not least by reports like "The Sky is Rising" that consolidate industry figures to show that things are really looking pretty good across the board.

Another indication of that new attitude is the incredible response elicited by an article in Forbes entitled "You Will Never Kill Piracy, and Piracy Will Never Kill You", which has received over 3600 re-tweets on Twitter, and nearly 10,000 shares on Facebook. The basic argument will be familiar enough to Techdirt readers: that the war on piracy can never be "won", and that what is needed is a change of attitude on the part of the media companies. The article concludes:

Treat your customers with respect, and they’ll do the same to you. And that is how you fight piracy.

Pretty obvious, you would have thought, although strangely it isn't to the media companies.

The author of that piece, Paul Tassi, has followed it up with "Lies, Damned Lies and Piracy." Although this has proved far less popular than the first one, I think it's better, because it offers some original insights where the other went over well-trod ground.

I particularly liked his closing thoughts:

If the industry is struggling, I just don’t see it, as their projects are getting bigger and more costly with each passing year. When a movie bombs or a show gets cancelled, no one ever says “oh, well, piracy.” Rather, it’s the quality of the product that accounts for such failures. Even with relatively high piracy rates across all forms of media, we’re still seeing blockbuster films, shows and games released at a higher rate than ever, and profits to match.

I think the media industries would love to kill piracy with a quick piece of legislation that blacks out every torrent site on the internet, but I don’t think they want to fight it so much that they’ll change their entire distribution model on a dime, which would actually go a long way toward truly competing with piracy. The reason things are the way they are is because they’re working. Despite the fact that even though yes, every piece of media is available on the internet for free somewhere, people are still buying.

There are three really key points packed in there. First, that the media industries just aren't struggling, despite their cries of woe. Secondly, what causes real financial harm to the film and music worlds are bad products that lose huge amounts of money and disappoint audiences. And finally – and most importantly – if piracy really were so life-threatening to the copyright industries, and if their bottom lines really were in danger, then they would have tried something other than begging lawmakers to protect them. The fact that they haven't, as Tassi emphasizes, means that there is no real pressure on them to do so: people still buy lots of stuff, piracy isn't really a problem, things are working.

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UK Publishers Pretend To Embrace Copyright Reform... In Order To Kill Copyright Reform

from the nice-try dept

One of the bolder ideas in the UK's Hargreaves report was the suggestion that a Digital Copyright Exchange should be set up. The idea here is to promote innovative uses of digital content by making it much easier to acquire the necessary licenses from rightsholders. So it's interesting to see the UK Publishers Association (PA) backing the idea:

The Publishers Association (PA) has today called for the development of a new online platform that would act as a “one stop shop” for the exchange of information about how to license copyright works online. Such a Digital Copyright Exchange (DCE) would counteract the need for dangerous changes to copyright law proposed by government in a parallel consultation, the PA argues.

However, as this indicates, the PA's support for the DCE is actually an attempt to get all the other suggestions in the Hargreaves report thrown out:

In supporting the development of the DCE, The PA urges government to suspend progress of the parallel Copyright Consultation launched by the Intellectual Property Office late last year, which recommends drastically weakening copyright. The PA maintains that many of the consultation’s proposals would remove or undermine the ability of rightsholders to develop licensing business models, and go against the grain of the market-based voluntary arrangements proposed in the DCE.

This is, of course, nonsense: there's no suggestion of weakening copyright, just trying to update it for the digital age -- and only in very minor ways. Proposals include things like permitting format shifting and also freeing up orphan works -- hardly radical.

Moreover, it turns out that the PA is only supporting the DCE if it's watered-down to the point of uselessness :

The PA makes the case for a DCE as a fully voluntary, interoperable platform, for use by businesses and the public, which could allow rights to be licensed more efficiently and openly. Its submission makes clear that the DCE would not be a place to set prices or terms, but rather to put potential users in touch with the rightsholders in a work, in all forms of content.

In other words, the PA wants the DCE to be a totally toothless system that would not solve the problems faced by innovative startups seeking to explore new uses of digital copyright material, but would allow publishers to simply carry on as before.

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Head of Mozilla Says ACTA Is 'A Bad Way To Develop Internet Policy'

from the lizard-wrangler-speaks dept

One telling sign of the widespread concern about SOPA/PIPA was that the non-profit Mozilla Foundation, which oversees the open source Firefox and Thunderbird projects, abandoned its non-interventionist policy, and came out strongly against the bills. It first signed a joint letter sent to the key sponsors of both bills, and then modified its home page, pointing to further information about SOPA. That, in its turn, linked to a post entitled "PIPA/SOPA and Why You Should Care," written by Mitchell Baker, the Chair of the Mozilla Foundation.

Baker has now written another, entitled "ACTA is a Bad Way To Develop Internet Policy", which explicitly links ACTA and SOPA/PIPA:

One aspect of the controversy about ACTA is the closed process where only a tiny subset of people affected by the law were allowed to participate. Another great controversy is about the actual content of ACTA. We know that the goal of stopping unauthorized access to digital content can lead to very dangerous results. The proposed SOPA and PIPA legislation in the U.S made this abundantly clear. This is an area where even good intentions can lead to imbalanced and dangerous results.

The post is fairly restrained, and basically recommends that people should find out more about ACTA and "make their voice heard." But it's a further indication that people from all sectors are waking up to the problems with ACTA, just as they did with SOPA/PIPA.

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The World Of Open Textbooks Just Became A Little More Crowded -- And A Little More Open

from the sharing-the-knowledge dept

Open e-textbooks are hardly new: Techdirt has been reporting on the pioneer in this market, Flat World Knowledge, for several years now. But a new entrant called OpenStax College is noteworthy for a number of reasons:

OpenStax College is a nonprofit organization committed to improving student access to quality learning materials. Our free textbooks are developed and peer-reviewed by educators to ensure they are readable, accurate, and meet the scope and sequence requirements of your course. Through our partnerships with companies and foundations committed to reducing costs for students, OpenStax College is working to improve access to higher education for all. OpenStax College is an initiative of Rice University and is made possible through the generous support of several philanthropic foundations.

Those foundations include the William and Flora Hewlett Foundation, probably the leading philanthropic organization in the field of open education, and the Bill & Melinda Gates Foundation. But the Rice connection is just as important as the funding.

Although MIT is known as a pioneer of sharing its courses freely online through its OpenCourseWare project, arguably Rice University went even further with its highly-modular Connexions program, which offers what it calls "frictionless remixing". The use of small learning modules, together with a permissive cc-by license for everything, allows educators and publishers to create their own courses by drawing on Connexions' material.

Given that the founder of Connexions, Richard Baraniuk, is also the Director of OpenStax College, it's hardly a surprise that the same cc-by licensing applies to the latter's textbooks. Still, that's a step beyond Flat World Knowledge, which allows textbooks to be modified, but under the more restrictive cc by-nc-sa license. Even though OpenStax College is a non-profit, and Flat World Knowledge a company, both adopt the same business model: the e-textbooks are given away, while printed copies and supplementary materials require payment -- a classic example of using abundance to make money from associated scarcities.

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Dutch Government: Make European Copyright Exceptions More Flexible

from the didn't-see-that-coming dept

Well, here's a turn-up for the books. At a time when the European Commission is insisting that the copyright ratchet should be tightened up a few notches by bringing in ACTA, with its perilously vague terms that potentially criminalize even low-level acts of online sharing, here's the Dutch government planning to go in the opposite direction:

The Dutch government wants to change copyright law so new media users can continue to do "creative remixes" of protected content. [It] will no longer wait for the European Commission to find a compromise.

The Dutch government made that clear at a conference it had organized, entitled "Towards Flexible Copyright," where one of the speakers was Bernt Hugenholtz of the Dutch state committee on copyright law. On the subject of YouTube, he said:

"Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things."

Also speaking at the conference, Netherland's Deputy Justice Minister Fred Teeven said he was exploring "a more flexible system of copyright exceptions that would also work in a European context." One solution would be to replace the limited set of European exceptions to copyright, which are laid down by law and allow no flexibility, with a system more akin to US fair use, which gives courts a certain leeway to determine what exactly is permissible.

Of course, that's an eminently sensible thing to do, not least because it wouldn't require a radical overhaul of European copyright, just some tinkering at the edges. Despite that, the idea is likely to meet stiff resistance -- and not just from the industry dinosaurs that reflexively resist any change that might reverse the copyright ratchet by even a few degrees.

At a time when the European Commission is hell-bent on getting ACTA ratified by the European Parliament, it won't take kindly to national governments going their own way on exceptions. That's particularly the case since the Commission is also drafting a new directive specifically designed to harmonize EU copyright law.

The Dutch government will be well aware of all those countervailing pressures, which makes this unexpected move all the more bold. Let's hope it inspires other EU countries to lend their weight to this much-needed initiative to make European copyright laws fit for the digital age.

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Debunking The EU Commission's 'Myths About ACTA'

from the myths-about-myths dept

Crossposted from Computerworld UK where it was originally split into two separate articles.

It's a sign of the European Commission's increasing desperation over ACTA that it has been forced to send out a document entitled "10 Myths About ACTA" [pdf] that purports to debunk misinformation that is being put around. Unsurprisingly, the EC's document is itself full of misinformation. Here are just a few of the more outrageous examples.

1. ACTA will limit the access to the internet and will censor websites.

Read the text of the ACTA Agreement - there is no single paragraph in ACTA that substantiates this claim. ACTA is about tackling large scale illegal activity, often pursued by criminal organizations. It is not about how people use the internet in their everyday lives. Internet users can continue to share non-pirated material and information on the web. ACTA will not limit people's rights on the internet nor will it shut down websites, unlike the proposals discussed in the US (SOPA and PIPA).

There are some convenient half-truths here. Its supporters may claim that ACTA is about tackling large-scale illegal activity but nowhere in the document is there mentioned any minimum level for its operation. That is, potentially, it can apply to the actions of a single person, perhaps even sharing a single file, depending upon the circumstances. The problem is, ACTA's framing is so vague that it's not clear exactly who might be caught by its terms. Whatever the Commission may say now, it's how the text is interpreted later that matters.

After all, if the Commission had really wanted only to tackle "large-scale illegal activity", it would have added a minimum level to exclude the risk that ordinary Internet users would be affected. The refusal to add that minimum level to the treaty – something that would have been easy to do - can only mean that the Commission does indeed want the option of applying ACTA's rules to ordinary citizens, and that its claims to the contrary are simply whitewashing.

The next half-truth is: "Internet users can continue to share non-pirated material and information on the web". But what exactly is "non-pirated material"? Who decides? Because copyright has become such a complex set of laws that it is rarely clear – even to copyright lawyers – what exactly is or isn't "pirated": often the courts have to decide whether something is covered by "fair dealing/fair use", for example. So how can ordinary citizens possibly know in every case whether what they are sharing is "pirated"?

In particular, there is the situation that the term of copyright varies by country, and what may be in the public domain in one, is still in copyright in another. So what happens when someone in a country where some creation is in the public domain shares it with someone in a country where it isn't? The continuing injustice of the O'Dwyer case shows us that the US tries to applies its laws everywhere in the world: so does that mean its copyright laws apply in Europe?

Finally, while it is true that ACTA will not "shut down websites" directly, there is another clause that is even worse (Article 10):

judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of

Now, by definition, a Web site "creates" infringing copies when it sends or streams them to users; so lawyers could – and almost certainly will, knowing lawyers – argue that ACTA provides for the destruction and disposal of any computers whose "predominant use" is copyright infringement. So, no simple censorship, certainly, just the seizure and physical destruction of computers (assuming they are in one of the ACTA signatories), and probably the domain name too.

Not only that, but another section (Article 12) allows for "materials and implements" to be seized without informing the party affected, and even without any guarantee that people can defend themselves afterwards – so much for due process and justice.

3. ACTA is a secret agreement. Negotiations were not transparent and conducted "behind closed doors". The European Parliament was not fully informed, stakeholders were not consulted.

The text of ACTA is publicly available to all. The negotiations for ACTA were not different from negotiations on any other international agreement. It is a fact that such agreements are not negotiated in public, but with the Lisbon Agreement and the revised Framework Agreement there are clear rules on how the European Parliament (EP) should be informed of such trade negotiations. And these have been scrupulously followed.

Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations.

Likewise, the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations. The Commission released summary reports after every negotiation round and the negotiating text since April 2010. It organised press briefings and four stakeholder conferences on ACTA, one of them even only a few days before the first negotiating round.

This is extraordinarily duplicitous. The text of ACTA may be available to everyone *now*, but that is after the negotiations have been concluded – in other words, as a fait accompli. Even though the ACTA discussions began in 2006, the first formal draft that was officially released was only in 2010. The only reason people knew what was in ACTA was thanks to a document posted in Wikileaks in 2008: in other words, if the ACTA negotiators had got their way, ACTA would have been negotiated behind closed doors for four years before the public was allowed to see anything (and had there not been the Wikileaks leak, it's possible that even the draft would not have been released.)

The Commission claims "the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations": but what matters, of course, are the details, not the "general thrust". A few press briefings and stakeholder conferences are no substitute for actually allowing the public to give some – any – input to the ACTA process. But in the many years of negotiations, there was no possibility whatsoever to do that.

And yet even though the public was denied any opportunity to comment on a treaty that would have important implications for their lives, certain privileged groups were not just given access but consulted on their views, as Wikipedia explains:

Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.

Given the fact that major US corporations that stand to benefit directly from ACTA's disproportionate enforcement terms were allowed to shape its details from early on, while the 300 million European citizens who will be subject to those same terms had not a single formal opportunity even to express their views, the Commission's attempt to suggest that this was not a secret treaty, and that the public was consulted, is risible and insulting.

6. ACTA favours IP right-holders. ACTA eliminates safeguards and exceptions existing under international law.

Quite to the contrary, ACTA is drafted in very flexible terms and contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved, in line with their economic, political and social objectives, as well as with their legal traditions. All safeguards and exceptions under EU law or under the TRIPs Agreement remain fully preserved.

Notice how the "myth" has two components, but that the European Commission only answers one of them. The whole treaty is predicated on the assumption that more enforcement is good: there is no consideration of the collateral damage it might inflict, for example on members of the public. That, of course, is because the public was never allowed to present its views; inevitably, the resulting document is incredibly one sided and biased in favour of the copyright industries.

This can be most clearly seen in Article 9, which spells out the damages for infringement (my emphasis added):

1. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 1.

3. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(a) pre-established damages

(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or

(c) at least for copyright, additional damages.

Consider, now, how this might apply to sharing a few mp3s online. According to ACTA, the copyright holders can demand damages equal to the "lost profits" from those mp3s. And if you want to know how the recording industry calculates those, ask Jammie Thomas-Rasset, who was fined $1,920,000 for sharing 24 songs in the US. When that was later reduced to $54,000, the recording industries demanded a retrial because they felt it was far too low.

ACTA essentially validates this kind of deranged calculus, and permits copyright companies to claim for completely imaginary losses "to compensate the right holder for the harm caused by the infringement", even though it is impossible to quantify that "harm" in any sensible way when you're dealing with digital file sharing. Indeed, arguably there is no harm, since file sharing can actually *boost* sales – just ask Paulo Coelho; but ACTA's tunnel vision naturally cannot contemplate such a possibility.

Given these utterly disproportionate figures, it is extraordinary how the members of the European Commission can claim with any seriousness that ACTA does not "favor" rights-holders. Perhaps they imagine everyone earns the same as they do – 240,000 Euros a year - and can easily find a few million Euros down the back of the sofa if they need to....

8. ACTA leads to "harmonization through the backdoor". A study ordered by the European Parliament's committee for International Trade (INTA) to academics says that ACTA will require changes to EU enforcement legislation and/or to national laws.

ACTA provisions are compatible with existing EU law. ACTA will not require any revision or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law. ACTA is also in line with international law, in particular with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The INTA study does not show evidence of any concrete situation where ACTA would contradict, repeal or require the modification of a single provision existing in EU legislation. This has been confirmed in very clear terms by the two above mentioned Opinions of the Legal Service of the European Parliament.

If ACTA is compatible with existing EU law – and that remains unclear, despite the Commission's assertions to the contrary – that's only so because the whole treaty is so vaguely worded. It is full of options – clauses that signatories "may" implement in certain ways.

But this is the central trick of ACTA: it is not that the treaty itself imposes new laws on participants *now* - the studied vagueness makes that unnecessary. What ACTA does is to create a framework whose assumptions are that laws will be passed in the future to comply with the optional, more stringent parts. In other words, ACTA is not so much about today's legal landscape, but about tomorrow's. It will allow politicians to say: "well, we really have to implement these harsher enforcement laws because it's in ACTA, and all of our partners have done so, and it would look bad if we didn't follow suit."

In fact, European commissioners aren't even waiting for ACTA to be ratified before moving down this path: with the “Proposal for a Revision of the Directive of Intellectual Property Rights” (pdf) they are already planing to bring in harsher copyright enforcement of precisely the kind that ACTA tries to establish as a benchmark.

In other words, it's the usual copyright ratchet, whereby a country's copyright maximalism in one area is used as an excuse to "harmonize" everyone else's. That's precisely what has happened with copyright term, for example, where the varying terms for different kinds of creation – text, music, sound recordings – have gradually been extended around the world in order to bring about "harmonization" (isn't it strange that there's never harmonization *downwards*, and that it's always in favor of the copyright industries and to the detriment of the public?) ACTA seeks to use the same trick to export the worst excesses of copyright enforcement first to all signatories, and later around the world through further treaties, like the Trans-Pacific Partnership.

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'The Economist' And 'Financial Times' Already Writing Off ACTA As Dead

from the let's-put-it-out-of-its-misery dept

In the last few days, we've seen an extraordinary wave of announcements by governments in Europe, particularly its eastern part, that they would not be ratifying ACTA immediately. That sequence of events, culminating in today's news that Germany, too, would be holding off, has suddenly made lots of people sit up and take notice.

But even against that tumultuous background, few of us would have expected that two of the most serious business publications in Europe, The Economist and Financial Times, would both go much further than simply noting the problems the treaty now faces, and declare that ACTA is pretty much dead.

Under the headline "ACTA up", The Economist says: "Protests across Europe may kill an anti-piracy treaty", and points out: "Internet activists used to be dismissed as a bunch of hairy mouse-clickers with little clout. Not any more."

The Financial Times' headline is "Latest pact on internet piracy set to be derailed", and the post makes an explicit connection with SOPA and PIPA:

A controversial international trade agreement, which campaigners fear would restrict internet freedom looks likely to be delayed or scrapped, the latest in a string of measures planned to combat online piracy to falter in the face of co-ordinated protests.

It also offers some interesting thoughts on why the ACTA revolt has been so strong in eastern Europe:

The issue has stirred up deep passions there, where access to the internet is seen as one of the rewards of belonging to a democratic society. Illegal downloading is also popular, in part because those societies are poorer than those in western Europe, and in part because many content providers have made it difficult for central Europeans to buy music and films legally online.

Finally, it has a fascinating comment from David Martin, the new European Parliament rapporteur on ACTA, who took over after Kader Arif resigned in protest at the way ACTA had been negotiated. Martin says he wants to "canvas views broadly", and to get an opinion from the European Court of Justice on whether ACTA is compatible with the European Union's current laws. As result of this approach, he says:

"Realistically, if we go down this route we are looking at a vote in the spring of 2013," he warns.

The FT quotes an unnamed diplomat who suggests that this delay may "give enough time for the post-SOPA venom to clear," so that governments can quietly ratify ACTA in their national parliaments and in Brussels next year. It sounds like a clever ploy -- let protesters tire themselves out, then push through ACTA -- but on the basis of the strength of feeling that's manifested itself in Europe recently, I wouldn't bet on it working.

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Do The Differences Between Software Piracy And Media Piracy Matter?

from the important-distinctions dept

Danah Boyd (or danah boyd as she prefers to be called) is widely recognized as an authority on privacy, identity and social networks. A couple of weeks ago, in the context of the fight against SOPA, she wrote a blog post where she made an interesting distinction between different kinds of piracy:

There are many different aspects of piracy, but for simplicity sake, I want to focus on two aspects that feed into bills like SOPA and PROTECT IP: piracy as a competitive issue vs. piracy as a cultural issue. This can often be split as software piracy vs. media piracy, but not always.

She then gives a concrete example:

Imagine that you are an appliance manufacturer in the United States. You make things like toasters. You are required to abide by American laws. You must pay your employees at least a minimum wage; you must follow American safety regulations. All of this raises the overhead of your production process. In addition, you must also do things like purchase your software legally. Your designers use some CAD software, which they pay for. Your accountants use accounting software, which they pay for. Sure, you’ve cut some costs by using “free” software but, by and large, you pay a decent amount of money to software companies to use the systems that they built.

You really want to get your toasters into Wal-Mart, but time and time again, you find yourself undercut by competitors in foreign countries where the safety laws are more lax, the minimum wage laws are nonexistent, and where companies aren’t punished for stealing software. Are you grouchy? Of course you are. Needless to say, you see this as an unfair competition issue. There aren’t legal ways of bending the market to create fair competition. You can’t innovate your way out of this dilemma and so you want Congress to step in and make sure that you can compete fairly.

Well, AutoCAD, the leading CAD software, costs a few thousand dollars; the price of accounting programs for businesses varies greatly, depending on the size of the company. But the overall cost of specialized software for the toaster company needn't be more than a few tens of thousands of dollars (using open source operating systems and office suites helps minimize generic software costs.) Since you're hoping to get your toasters into Wal-Mart, out of necessity you have high-volume production runs (if you don't, then you're a boutique toaster company, and you can charge premium prices.) That means the extra cost due to software licensing per toaster will be a few cents.

Moreover, as that first paragraph quoted above makes clear, the key factor of the "unfair" competition is the radically different cost of manufacturing in countries where wages are lower, and health and environmental standards are less rigorous and hence less costly to implement. These will make far more difference to the costs than the possible use of pirated software, especially at Wal-Mart scales.

As a result, the logic behind the opening claim of this paragraph in the post seems dubious:

Combating software piracy in the supply chain is a reasonable request and part of what makes bills like PROTECT IP messy is that there’s a kernel of this issue in these bills. Bills like this are also meant to go after counterfeit products. Most folks really want to know what’s in baby formula or what’s in the medicines they purchase. Unfortunately, though, these aspects of piracy quickly gets muddled with cultural facets of piracy, particularly once the media industries have gotten involved.

The second part is absolutely spot-on, though: people rightly want to know that the medicines and foodstuffs they buy are safe. That means there is a genuine case for legislation that helps protect consumers against such health and safety dangers. But that's about combating counterfeits, not fighting digital piracy, much less software piracy. And that's the crucial distinction: not between software piracy and media piracy, but between digital piracy and analog counterfeits.

It's important not to blur that difference, as the last sentence of the above paragraph seems to do. After all, that's precisely the trick the ACTA negotiators used to bring in disproportionate punishments for digital piracy -- by confounding it with counterfeiting that endangered the public's health.

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Publishing 2.0: Content Is Marketing, Profits Come From The Packaging

from the moving-with-the-times dept

Publishers find themselves confronted by a difficult dilemma at the moment. On the one hand, they might want e-books to succeed, because digital devices represent a huge new market to which they can sell their back catalogs. On the other, they might want them to fail, because e-books will cannibalize sales of traditional books, and it's not yet clear how low the price of e-books will have to go in order to avoid the kind of piracy problems the recording industry exacerbated through persistent overcharging.

But maybe publishers can have it both ways – selling high-volume, low-price e-books, and small-run, high-price physical books. As a recent feature in the Guardian devoted to the rebirth of "beautiful books" put it:

What the rise of electronic publishing has done, rather, is create a context in which the book's two distinct incarnations – as beautiful object and as a set of vaporous pixels - are linked not by "or" but "and".

This is certainly what they believe at the Folio Society. You might think that a company that has dedicated itself since 1947 to publishing exquisite editions of classic texts – everything from Beowulf to Elizabeth David's Italian Food – would be feeling glum about its chances in this new landscape. But David Hayden, the publishing director and a bookselling veteran, is feeling perky. An unabashed fan of new technology, he reckons the result of the seismic shifts in publishing will mean "fewer and better-produced books". In particular he believes in the model of the "retroactive purchase", which goes something like this. You buy an e-reader and, at a stroke, have access to thousands of out-of-print classics via Project Gutenberg. One evening, at a loose end, you download The Mill on the Floss, having always wondered vaguely what it was about. You find yourself transfixed. You love this book, you really do, and want to suggest it to your book group. So you buy the Penguin Classic edition, because it's easy to scribble on and pass around. And then, when your Mum's birthday comes around – she loves George Eliot and has been on at you for ages to take the plunge – you give her a handsome presentation copy of the book, bound in buckram and silk, the sort of thing that the Folio Society does surpassingly well.

The rise of beautiful books described in the article is a classic example of using abundance to make money from scarcity. Freely-available e-books encourage people to read a text they might not have encountered otherwise. When they discover they enjoy it, they decide to buy it in a form that enhances the pleasure of reading – a high-quality physical book.

This phenomenon is why publishers should not see low e-book prices – which are likely to come, whether they want it or not, not least because of Amazon's growing power – as the end of the world. In the digital age, where raw information can and will be copied freely, it no longer makes sense to pursue a business model based largely on selling what's inside the book. Instead, publishers should think about the unique elements of the content's packaging, which can't be shared in this way. That's exactly what companies built around open source have done, and Red Hat is now a billion-dollar business.

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USPTO Says Copies Of Academic Articles Submitted As Prior Art Are Covered By Fair Use

from the wanna-fight? dept

With all the heat that publishers are starting to feel from the academic community, you might have thought that they'd avoid upsetting anyone else. But it seems that some publishers have decided to go after lawyers who make patent applications that include copies of academic articles as prior art. As the PatentlyO blog explains:

A number of scientific journals have begun to threaten law firms and their clients for submitting copies of journal articles to the USPTO. The typical cease & desist letter that I've seen says something like the following:

"We've been trolling through USPTO records and found that you submitted a copy of one of our articles articles to the USPTO and we suspect that you maintained other copies in your files and distributed additional copies within your organization. These actions constitute copyright infringement and are not fair use. We will sue you unless you come into compliance with our CCC licensing scheme."

In a way, that's strange: you would think that academic publishers would want to encourage this kind of use, since it establishes their titles as a kind of "gold standard" for prior art. Obviously the prospect of making some easy money proved irresistible.

Surprisingly, perhaps, the USPTO has waded in to this squabble and offered its opinion in a statement (pdf):

Patent applicants or their attorneys sometimes make copies of copyrighted NPL [non-patent literature] and submit those copies to the USPTO, pursuant to the USPTO's disclosure requirements. The USPTO considers this copying to be protected by the doctrine of fair use.

In the rest of its eight-page document, the USPTO goes on to explain the legal reasoning that led it to come to that conclusion.

It's rather remarkable to see the main US body responsible for promoting one kind of intellectual monopoly -- patents -- asserting that another -- copyright -- doesn't apply. And it will be interesting to see whether publishers want to raise the stakes by taking on the USPTO as well as lawyers, inventors and angry academics.

However, since the USPTO says that it takes "no position on whether additional copies of NPL made during the course of patent prosecution (e.g. for the client, for other attorneys, for the inventors, or for the law firm's future reference) qualify as fair use", publishers would probably do better to concentrate on pursuing licensing fees for that instead.

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We Don't Have A 'Wild West' Internet Now, But We Will If SOPA Or Similar Is Passed

from the exactly-wrong dept

Nicolas Sarkozy, the President of France, has the sad distinction of being in the vanguard when it comes to really bad ideas concerning the Internet. On his initiative, France became the testing-ground for the three-strikes approach of throwing people off the Internet upon multiple accusations of copyright infringement, without the need for proof or a court order, known there as HADOPI. He also helped put into circulation a view that is much in vogue at the moment:

"Internet is a new frontier, a territory to conquer. But it cannot be a Wild West, a lawless place"

That's what he said in 2010, during a speech he gave in the Vatican. Since then, the "Wild West" Internet has become the standard justification for bringing in harsh new laws like SOPA and PIPA. After all, the argument goes, just as the Wild West had to be tamed in order to become civilized and productive, so must the Internet.

Of course, this overlooks the fact that the Internet is already subject to a whole host of laws in every country. Indeed, often it is subject to multiple jurisdictions because of its global reach and complicated legal position. But there's an even deeper sense in which the idea that the Internet is a Wild West that needs far-reaching laws like SOPA and PIPA imposed upon it is exactly wrong.

To see why, consider one of the key ideas of SOPA in the original version:

The Stop Online Piracy Act (SOPA), the companion bill to the Senate’s PROTECT IP Act, would further privatize adjudication and punishment. Title I of that law (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed -- only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.

That was removed in December, but another section granted immunity to service providers for taking voluntary action to stop infringement. As we noted back then, in many ways that was even worse. Not only would sites on the receiving end of a notice claiming infringement have a huge incentive to take that voluntary action, rather than risk losing immunity, but there were also no counternotice rules, or anything requiring any process for those cut off to be able to have any redress whatsoever.

What both of these approaches and France's HADOPI have in common is that they all seek to institute a system that is extra-judicial, with no requirement for proof of any kind, and which is hard or impossible to appeal against. It is the very definition of arbitrary vigilantism, where private actors get to be judge, jury and executioner. In other words, far from taming a "lawless place" online, SOPA and its ilk would create one where there is none currently.

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What The Curebit Saga Teaches Us About Copyright, Plagiarism And Reputation

from the respect dept

The startup Curebit brought something of a firestorm down on its head recently. Here's how VentureBeat broke the story:

Curebit, a Y Combinator startup that just closed a round of funding from Dave McClure’s 500 Startups fund, has been caught red-handed stealing HTML code, images, and the like from 37signals.

Leaving aside the usual point that Curebit's employees almost certainly didn't break into 37signal's office and physically remove all the HTML code and images in the way that the word "stealing" suggests, here's how Curebit tried to justify its actions with the following rather weak excuse:

We had a different homepage, were a/b testing different pages, came across the 37signals post and were like 'wow we should see how that converts!' We are big fans of rails and what 37signals is doing and did not really think through the implications of what we were doing. We just kind of thought about it as a fun test to run.

Unsurprisingly, that didn't convince many people, and eventually, Curebit apologized -- sort of:

Recently we launched a site with several pages copied from 37signals’ Highrise. We did more than take inspiration from their design – we actually used html & css code, and hotlinked to images on their site. We apologize to David and 37signals for ripping off their work. It was stupid, lazy, and disrespectful of their creative efforts.

Curebit still doesn't seem to be admitting that what it did was wrong, although most people would say that it was. But there is an interesting discussion to be had about what exactly it did wrong.

Paul Carr, for example, not only believes that it was copyright infringement pure and simple, he suggests there's some deep hypocrisy flying around the developer community here:

The prevailing view, outside of Hollywood, seems to be that IP creators need to accept that copying is here to stay and that criminalising a “victimless” activity is stupid. Make it easy for us to pay for stuff and we won’t have to steal it.

And yet when the victim isn’t a big evil Hollywood mogul (or one of the tens of thousands of people who work for him) but one of our own… well, then IP thieves should be dragged through the streets until they tearfully apologise. What’s the difference?

Well, one difference is that most of the things that people copy and share are simply enjoyed in private, not displayed on a company's public web site for people to see and admire. That means that there is an element of passing off here – plagiarism, in other words. Carr addresses the possibility that the anger provoked by Curebit's actions was down to the fact that it was plagiarism rather than simple copyright infringement:

Is it, as some argued on Twitter when I asked the question earlier, that plagiarism is different from copyright theft? No. And not least because plagiarism is copyright theft. Like most copyright theft, plagiarism doesn’t deprive the creator of their original work and is usually committed by someone who is too lazy or cheap to acquire or create something legally.

Well, Curebit's wrongdoing may well be copyright infringement and plagiarism, but the latter is still very different from the former, and Carr himself goes on to identify exactly why:

The only real difference is that in plagiarism the infringer is usually pretending to be the creator of someone else’s work.

This is the cardinal sin in a world based on reputation. If you build on somebody else's work, you must give attribution for that work, just as you must cite your source if you blog or tweet a story you have learned about from someone else.

Reputation is the glue that holds together all of the hugely-successful open collaborative software projects like Linux or Apache: there's no money involved (at least, not directly), but people are paid in terms of the respect they earn from their peers for what they do and how well they do it. Failing to acknowledge the fact that you are using their work is tantamount to disrespecting that code -- and hence the norms of the community.

That, I think, is why parts of the developer world world reacted so violently to Curebit's use of 37signal's code and images. If Curebit had admitted what it was doing up front, with full acknowledgement of the provenance of the work, and noted that it was building on 37signal's code as an act of respect, I suggest that few would have cared. The community norms would have been maintained, 37signal's reputation would have been enhanced, and its coders would have received the kudos that was rightfully theirs.

So this is not, as Carr suggests, a case of double standards on copyright infringement. The "infringement" here -- which undoubtedly exists according to the letter of the law – is irrelevant for a community that has placed sharing and collaboration at its heart. This is not about who owns what, but about who respects whom -- and shows it in the appropriate way.

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Is The US Meddling In Polish ACTA Voting?

from the how-dare-they? dept

With the immediate threat from SOPA/PIPA on hold, people have started to turn their attention to the long-running saga of ACTA. While it was being negotiated behind closed doors, few people knew about it, and protests against it were muted. Now that it has finally emerged into the open and begins its last dash towards the finishing line of ratification, the pace of anti-ACTA activism is beginning to pick up quickly. That's especially true in Europe, where everything hinges on the result of the European Parliament's vote on the treaty later this year. If it rejects it, ACTA is dead.

First we had the dramatic resignation of the European Parliament's "rapporteur" on ACTA, then the public apology of the Slovenian Ambassador to Japan for signing ACTA last week in Japan. Individual members of the European Parliament are also coming out against ACTA, notably the Dutch MEP Marietje Schaake, who has prepared an excellent briefing document on the subject, together with several Bulgarian MEPs. But without doubt, the main focus of anti-ACTA actions so far has been in Poland.

As Techdirt has reported, the first demonstration against ACTA took place in Warsaw, and some Polish politicians donned Guy Fawkes/Anonymous masks in parliament to express their displeasure at the Polish government's signing of the treaty. Even the Polish prime minister is trying to back-pedal. Meanwhile, the Polish "No to ACTA" Facebook page has gathered nearly half a million supporters.

Clearly, something very interesting is happening at all levels of Polish society as a result of ACTA, and someone else has noticed this too. According to a translation of a report on the Polish web site gazeta.pl:

"--It was around 11.00 in the morning when an employee from the US Embassy called. She was curious about the voting [on ACTA]. He has counted the votes and she thought some of the deputies were missing. Eight deputies were for, three against, four have held up. Something's wrong here, because some votes seem to be missing." -- said Mieczysław Golba from Solidarna Polska.

As another Polish politician explained:

"-- If the US embassy was just interested in the voting itself, it's okay with us. But questioning about party discipline is scandalous"-- says Sławomir Neumann from PO. -- "Americans should calm down a little, as such behaviour is an interference into the internal affairs of the Polish parliament. We can treat Americans as friends, but there are some borders that one shouldn't cross.We are partners, but not a parliament dependent on the Congress or the president's Obama administration."

Assuming this really was someone from the US embassy checking up on the whether Polish politicians were following the party line on ACTA -- there's been no independent corroboration yet -- it does seem pretty extraordinary. Judging by the generally outraged tone of the 1100+ comments on this piece, the Poles themselves don't seem very happy either. I think we can expect to hear much more about Poland's resistance to ACTA in the coming weeks.

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