USTR Releases Its Annual Special 301 'Naughty' List Of Countries; EFF Responds With 'Special 404' List

from the who's-naughty,-who's-nice dept

We’ve written plenty about the ridiculousness of the USTR’s Special 301 list that comes out every year at this time, naming what countries are “naughty” on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this “official” list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don’t “do something” (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries — Canada in particular — has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to “stay on the good side” of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I’ve pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That’s because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation.

Anyway, it’s that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same “big guys” as always: China, Russia and India. And it celebrates “progress” from countries that have promoted out and out censorship. For example, it praises Italy:

On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy?s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome.

This is misleading at best and insulting at worst. We wrote about those Italian “regulations,” which actually gave power to regulators to flat out censor websites with no due process at all. It’s not clear how the USTR considers those appropriate “due process safeguards” when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we’ve seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all.

Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that’s the message that’s being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is?

Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes:

On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what?s missing from Special 301 and give some balance to the USTR?s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide.

EFF?s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR?s report is fundamentally defective.

While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he’s facing such jail time was a terrible copyright law rushed through to appease an angry US government.

Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the ?violation of [his] economic and related rights.? Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial.


There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over “unauthorized” sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez.

And yet, amazingly, the USTR’s Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn’t it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn’t seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism.

The Special 301 list remains a joke — but unfortunately, it’s a joke that many countries feel they need to take seriously. Hopefully, the EFF’s responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn’t really mean they should have to change their laws.

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Comments on “USTR Releases Its Annual Special 301 'Naughty' List Of Countries; EFF Responds With 'Special 404' List”

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That One Guy (profile) says:


And yet, amazingly, the USTR’s Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research).

They say nothing about those things because to them, and the ones adding entries to the list, they are inconsequential at best, if not desired. I have no doubt at all that if a country eliminated even the idea of Fair Use in their laws, the USTR would be holding them up as an example of how other countries should act, and praising them for their ‘dedication to protecting the IP of companies and creators’.

tqk (profile) says:

The land of the free, home of the brave, exporting economic tyranny and attacking scholastic achievement.

I think a few countries out there (or their citizens and consumers at least) would love to see some regime change exported to the US, as soon as possible. I’m also sure that Russia is giggling its head off at this pathetic attempt at “Black Humor”, one of their acknowledged specialties.

It takes an exceptional level of dumbth to keep pushing this farce after so many years, and a few countries’ citizens should be ashamed for electing the idiots/toadies who fall for it, or let them get away with it. “Baaaaaaaa!”

tqk (profile) says:

Re: Re:

I suppose people might be more inclined to listen to the EFF and you if it wasn’t so obvious Google was talking when your lips move.

Don’t I wish? I’ve even given you a funny vote for that. Somebody actually pointed G. at me in the ’90s, but I guess they weren’t interested. Meh.

I use Youtube from time to time. That’s our only connection, other than broad philosophical issues. I don’t use any of their other toys. I’m allergic to most advertising and marketing, but I’ve nothing much else against them, and I do respect some things they do. Showing monopolist moochers how capitalism is supposed to work is one of them.

I do wish they’d tell the NSA to go piss up a rope, but expecting miracles of that sort in 21st Century USA is a pipe dream.

Anonymous Coward says:

Re: Re: Re:

It’s funny seeing him trying to judge how many people listen to Techdirt when it’s coming from an AC. Who is this AC and where is his blog that we may judge how many people listen to him.

As a shill he’s probably not too happy with his job. His boss is a dishonest jerk (what do you expect from an IP extremist) and it’s not like he’s doing anything socially constructive. He’s not even helping his own cause and is doing more to hurt his cause by posting stupid irrelevant things here than anything and he probably doesn’t even really care.

He should consider volunteer work or something. I suspect it would be a lot more self fulfilling. There are many hospitals, clinics, and charitable organizations that would be willing to consider him and it’s not that difficult to get into.

Anonymous Coward says:

Re: Re:

Start your own blog. Oh, that’s right, no one would visit. You must come here to get anyone to read anything you type. No one listens to you.

IP extremists hatred for Google and Megaupload is one of the strongest pieces of evidence for their true motives. Here we have/had companies that overwhelmingly deal in non-infringing content/information and that go well beyond the laws in their attempts to remove infringing content and follow DMCA takedown notices. Sure, infringement may make its way in the system every once in a while but that’s no different than saying people may use public roads to rob a bank. That’s no excuse to destroy public roads. Yet we have IP extremists that absolutely hate Google and Megaupload and just want them taken down. Why? They provide competition and the selfish IP extremists don’t want content producers to be able to self promote. They want to fully control all content distribution channels to the detriment of both the artists and the public.

The current state of IP laws (ie: lengths and retroactive extensions, the unlevel penalty structure, secretive meetings with industry intersets) also evidences their true selfish motives. It was the middlemen, like the MPAA and Disney, not the artists or public, that undemocratically pushed for the current state of copy protection laws, expansions and extensions. It is industry interests that are being invited to negotiate these laws in secret. It’s despicable that these thugs in government can be so transparently putting their own personal interests over the public interest and the interests of content creators/artists and that we as a public can even come close to tolerating such undemocratic nonsense.

tqk (profile) says:

Re: Re: Another list

How about a Special 500 list of all of corrupted officials in government that cause these sorts of problems?

That’s about 99.999999999999999999999999999999999999999999% of them.

Yes, better to go with listing the exceptions, those not (yet?) determined to be corrupt and have not caused these sort of problems, because they’re apparently doing the things they were elected to do.

i) Elizabeth Warren
ii) Bernie Sanders (?)
iii) He who smacked down the Intel committee asking for magical encryption (whose name escapes me).
iv) ?

Uriel-238 (profile) says:

Re: Re: Re: I think a naughty/nice officials list would be good

Just one that specifies the highlights / lowlights of the kind of crap they did.

I’d be more interested in the bullshitting-on-the-floor, creative-accounting-for-personal-gain, blatant-hypocrisy, screw-the-public-for-corporate-money stuff than the sleeping-with-my-mistress stuff (unless the mistress is his biographer and is illicitly privy to classified information) but still all categories for everyone.

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