Copyright Week: Why Hollywood And The USTR Hate Transparency

from the the-public-needs-to-have-a-say dept

Two years ago, then US Trade Representative Ron Kirk told Reuters, effectively, that he would not release the negotiating texts of the Trans Pacific Partnership (TPP) agreement, because if the public knew what was in TPP, it would not allow the agreement to be approved. His reference was to a previous attempt at a trade agreement, the Free Trade Area of the Americas, which failed after negotiators released some draft texts. Kirk and the entire USTR seem to have taken exactly the wrong lesson from this. Rather than recognizing that the way to pass comprehensive trade agreements is to actually be more open and involve the public from the very beginning, so that there’s more widespread agreement and support for what the USTR is doing, they’ve gone in the other direction. Believing that keeping the negotiating position of the US a total and complete secret is the way forward. As Senator Elizabeth Warren wrote to the current USTR, Michael Froman, last summer:

I have heard the argument that transparency would undermine the Administration’s policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.

The EFF and a bunch of other organizations have designated this week as Copyright Week — a chance for the public to weigh in and discuss copyright law and where it needs to go. They’ve put together a series of principles, that are worth reading. Each day will discuss different topics related to copyright law, specifically focusing on the aspects that are important to the public — and which seem to be ignored (or pushed to the side) by copyright maximalists.

Today’s principle is “transparency” — something that has been sorely lacking in copyright law for quite some time. As you know, the history of copyright law is that it’s supposed to be about using limited monopolies to encourage the dissemination of knowledge for the purpose of scientific advancement and learning. Yet, from the very beginning, it’s been used for other purposes: initially for censorship and control, usually by gatekeepers, who are attempting to limit and control content production and dissemination for the sake of keeping the costs artificially high, allowing them to take the majority of the profits, often leaving the actual creators with little — and the public with extreme limits on how they can communicate.

In recent decades, this has gotten much more extreme, as those gatekeepers have hijacked the legislative process multiple times with a very clever, but ultimately bogus “story,” in which they pretend that they are representing content creators, even as they work hard to screw over those artists. Maximalist lobbyists have taken an incredible approach to ratcheting up copyright laws around the globe, hitting on dozens of different ways to continually push through changes without public input or opinion.

One recent example: in 1995, President Clinton’s “commissioner of patents and trademarks,” Bruce Lehman, released a white paper that pushed for the draconian copyright provisions of the DMCA, including takedowns and anti-circumvention provisions. In the light of day — where at least some people were watching what Congress was doing — no such laws could be passed. However, Lehman was so tied to Hollywood’s interests, that he’s actually happy to admit that when Congress wouldn’t pass such a law he did “an end-run around Congress” by running to WIPO (where the public was not watching), and getting a “treaty” passed, which basically required the DMCA.

Treaty in hand, maximalists ran back to Congress, screaming about how we had to pass the DMCA or violate our “international obligations.” And, it worked. While large ISPs were (thankfully) able to make enough noise to include the one good part of the DMCA — the safe harbor provisions for service providers — the rest of the terrible DMCA came into law entirely because of this sneaky process used by Lehman and other maximalists to hide away from where the public was looking, and push through some agreement. This has been the ongoing plan for quite some time. Maximalists will push through bad legislation wherever possible, and then use international treaties and trade agreements to try to take the worst laws they were able to get in one place, and “harmonize” them, to make them required everywhere.

And it’s been quite effective. Using international agreements, negotiated in secret, to then tie the hands of legislatures has been used countless times to expand copyright law around the globe over the last couple decades.

But in the last couple years, something changed. It started with SOPA. A deal that was entirely negotiated in the backrooms by copyright maximalists and their friends in Congress failed completely when the public realized what was going on. Soon after that, ACTA, yet another “international agreement” that pushed for “harmonizing” maximalist rules, and which was negotiated entirely in secret, flopped in Europe after the public was exposed to it. And yet, the maximalist lobbyists and their friends at the USTR (who, surprise surprise, are often the same people), continue to believe that they can use this strategy going forward. Negotiate in secret, refuse to be open to the public, and then tie Congress’ hands.

That’s what’s happening now with the TPP and the TTIP/TAFTA agreements. The USTR has absolutely refused anything resembling transparency — while insultingly insisting that they’re being incredibly transparent, because they’ll “consult” with anyone. But, as we’ve explained countless times, listening is not transparency. Transparency is about providing information back, sharing what’s being negotiated in our name, and then not supporting Congress limiting itself from actually discussing what’s in the document.

The USTR and Hollywood have a playbook from the last couple of decades to continually ratchet up copyright law, and limit any attempt to roll back its excesses. And it starts with a complete lack of transparency. It has to. Because, as we saw with SOPA and ACTA, when you actually let the public see what’s being pushed for in our name, they fight back, and they say “we do not want this.” And, as Senator Warren pointed out, if the American people do not want it, then it should not be the policy of the United States.

A lack of transparency in copyright policy serves only the desires of the maximalist to control speech, to limit innovation and to harm creators and the public (who are often one and the same). It’s an undemocratic attempt to aid a group of greedy gatekeepers, whose interests are antithetical to the intent and purpose of copyright law. That the USTR has been willing to support this effort, and works hand in hand with Hollywood to make sure there is no transparency at all is the true travesty in all of this, and should raise significant questions about whom the USTR really works for. Is it the American public or is it Hollywood?

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Comments on “Copyright Week: Why Hollywood And The USTR Hate Transparency”

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out_of_the_blue says:

Re: @ AC: "Inb4 ootb hollers how Mike hates copyright."

Thanks! Had I read your one-liner first, I could indeed have skipped mine. It’s GREAT that people (or so I presume you are) see how Mike is regarded. There are few opposition here because a) it’s clearly futile: Mike wanders along with anti-copyright schtick regardless of facts like court cases b) Techdirt is such a small puddle that really large frogs can’t even squeeze into it. But suits me for hoots, not least in ACs with one-liners embiggening my rep!

Mike frequently runs items on “copyright abuse” intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it’s difficult to see how he “supports copyright”. — Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD.


Anonymous Coward says:

It speaks for itself that this is even an article worthy of comment.

Another of the damning questions in all this favoritism is exactly why are there no penalties for false DMCAs? It’s pretty obvious it is doing damage to innocents. Otherwise Google would not need to preview these computer generated take downs. Because it is being done by computer is no valid excuse. We’ve long had the saying of “GIGO” enough so that most know what it means just by the initials. Being too lazy to pay programmers to narrow your search results down to just your products rather than general searches is what has caused this.

That and the lack of a published list saying that this particular item is protected by copyright so it can be identified. You can’t go by finding something on the internet as there are no fences around any item that can be depended on. No metadata that is unalterable. It requires a listing by the company that owns the copyright so that anyone and everyone can know. But that is work, costs money, and has at times public blowback. Still there is no other way to protect your goods for the public that would really want to avoid pirated goods.

It’s very obvious what is going on today is failing. I’m still waiting for Google to decide to up and lobby for strong penalties for false DMCAs to reduce both their workload and their financial outlays in extra people just to make the DMCA function properly.

DannyB (profile) says:

Re: Computer generated DMCAs vs Search Results

If you generate automated search results, the responsibility is upon YOU to scrutinize them.

If you generate automated DMCA notices, the responsibility is upon SOMEONE ELSE to scrutinize them for errors.

In the first case (search results), failure to find a bad search result, and take it down upon presentation of a properly formed temper tantrum should result in serious legal penalties — despite there being no requirement in law to police automated search results.

In the second case (automated DMCA notices), failure to find a bogus DMCA notice should just be ignored — oh, my bad, nevermind — despite there being codification in law that such a DMCA was sworn to under penalty of perjury.

out_of_the_blue says:

No, answer to last question is: It's a Masnick Melange!

Your inimitable feeble attempt to undermine the daily good of copyright by tenuous association with USTR, and repeated use of your favorite buzzword “transparency”.

That’s all you’ve got. Remarkable only for futile ingenuity. I suspect that you’re a bot, much like the ones that write “poetry” or compose sentences, because you keep coming up with wacky juxtaposition that’d never occur to a human. Like the lesser bot Timmy, you’re still in beta…

Mike “supports copyright” the way termites support a house: by eating away at it!


Pragmatic says:

Re: No, answer to last question is: It's a Masnick Melange!

We’re still waiting for a definition of “the daily good of copyright,” you corporate shill.

Besides, if you could even read the sources he quotes from, you’d realize that enforcing maximalists’ demands is what TPP and TAFTA are mostly about.

So far, “the daily good of copyright” appears to consist of screwing the little guy and the public. Prove me wrong.

Anonymous Coward says:

‘whom the USTR really works for. Is it the American public or is it Hollywood?’

the answer is obvious, it being Hollywood! what is even worse though, surely, is why is the USTR even allowed to exist? it has caused no end of problems but still no one says anything effective to get it closed down, with no hope of it resurrecting in any shape at all. to call itself the USTR (United States Trade Representative) is an insult to all but the most stupid person imaginable! the reason for the name being just as obvious as who it answers to. if it were called by a name that represented the string pullers, no one would bother to talk to it. as it is, those who are requested to engage in ‘negotiations’ should have the balls to simply say ‘no!’
out of curiosity, what happened to Lehman when it was discovered what the cheating, lying arse wipe had done? as it was basically treason against the American people, he should have been shot!

gorehound (profile) says:

I hate the USTR and I wish for the worst to happen to those who are in it.Here’s hoping you all have very bad lives.Hope you die young and your marriage fails.Hope you lose your homes.You are a bunch of corrupt assbags.
US Citizens are going to be utterly pissed off over this.The Nations where their corrupted leaders signed them in well those Citizens are going to be utterly pissed off.
Your toilet paper pact is going to achieve……………ANGER AND RETRIBUTION !

limbodog (profile) says:

>Kirk and the entire USTR seem to have taken exactly the wrong lesson from this. Rather than recognizing that the way to pass comprehensive trade agreements is to actually be more open and involve the public from the very beginning, so that there’s more widespread agreement and support for what the USTR is doing, they’ve gone in the other direction.

That only applies if your goal is to pass an agreement beneficial to the public. If that’s not your goal, then you want to completely avoid those sucking little rodents stealing the life force from true American corporation owners.

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