WIPO Says Websites In Its Pirate Database Don't Deserve Due Process Because 'They Know What They're Doing'

from the they-know-what-they're-doing dept

You may recall that, recently, I posted on WIPO’s bizarre decision to host a database of “pirate” sites that it would share with advertisers, encouraging them to block ads from appearing on any of the sites in the “Building Respect for Intellectual Property” (BRIP) database. As we noted in our original post, previous attempts at such databases showed how problematic they could be, as they almost always swept up perfectly legal sites, and they provided no due process, no checks and balances or anything of the like. I also had a list of questions about this for WIPO, which I noted were unanswered at the time of posting. WIPO actually did get back to me, but we’ll get to that.

First, I wanted to point to a Twitter thread by New Zealand internet lawyer Rick Shera, who, in response to the news of the BRIP database, gave a real world example of how such databases create real harms for internet services through false accusations with no due process. Here’s a lightly edited part of Shera’s tweetstorm (the full thing is longer, but you get the point). After describing how the database is set up, he tells a story relating to one of his own clients:

WIPO does not disclose who the ?Authorized Contributors? are, but, according to TorrentFreak, they are expected to be a mix of law enforcement, and industry groups such as MPAA and RIAA. Which reminds me of what happened to my client Mega a few years ago. In 2014 a UK-based online brand management agency NetNames published ?Behind the Cyberlocker Door: A report on how shadowy cyberlocker businesses use credit card companies to make millions” commissioned by Digital Citizens Alliance, a US rightsholder lobby group.

Mega was included in the report as a ?cyberlocker?, without being given any opportunity to comment or rebut. Even by the report?s own criteria, Mega?s inclusion was patently incorrect.

But don?t take my word for it. Mega commissioned Olswang, one of the leading IP, media and IT law firms in the UK, which in turn had Grant Thornton in New Zealand analyse Mega?s systems. Olswang concluded the NetNames report was clearly false and defamatory. NetNames and Digital Citizens Alliance of course refused to withdraw the report and, at that early stage in its operation, it was uneconomic for Mega to take defamation action in the UK.

But it?s what happened next that provides a salutary lesson on the dangers of copyright guilt on accusation. The NetNames report was picked up by US Senator Patrick Leahy, who, also without the courtesy of checking with Mega, wrote to Visa and MasterCard encouraging them to cease providing payment services to anyone listed in the report. Here?s his letter to MasterCard.

Visa and MasterCard blacklisted Mega, again, without notice. That resulted in PayPal ceasing service literally overnight. This despite the fact that PayPal had itself conducted exhaustive due diligence on Mega before giving it a clean bill of health just months earlier. Mega is not a cyberlocker. It complies with NZ and with European and US copyright laws. It is one of a handful of companies in NZ that publish a transparency report. Naturally, as a privacy protective business, it has put a huge effort into GDPR compliance. It has excellent relationships with law enforcement agencies worldwide operating under its takedown guidance policy.

And yet a spurious report, commissioned by a non accountable industry backed lobby group, was able to run roughshod over all that. If Mega was not so well supported by its users and stakeholders, that false accusation would have driven it out of business. This is the danger in WIPO encouraging advertisers to cease service based on unsubstantiated allegations by non publicly accountable third parties. The allegations alone, which may be false, as they were for Mega, can kill a business.

That’s a great example of the kind of mistake that is quite often made. We highlighted some other examples in our original post. Also, it’s important to note that early innovations in new spaces often appear to be infringing. Imagine a similar rule in the time before the Supreme Court ruled that the VCR was perfectly legal. If retail shops relied on a “list” from the MPAA on what they shouldn’t stock, it certainly would have meant they never would have sold VCRs (the same VCRs that helped drive the home video market, which quickly surpassed the box office market and saved Hollywood in the 1980s).

Back to WIPO’s list, however. I had reached out to them before my story went up — and they responded saying they’d be happy to set up someone for me to talk to, though that email was sent right around the time my original story went out. I told them I was hoping to do a follow up story and would like to speak to someone there. After a number of emails back and forth, WIPO eventually told me that since this database is “under formal discussion by WIPO member states at a meeting of the Advisory Committee on Enforcement” in early September, WIPO felt that it was best not to comment until after it’s too late for it to matter and after the member states have discussed it. That strikes me as odd.

However, a WIPO employee, Jeremy Thille, decided to come into our comments and take it upon himself to give, as he called it, “WIPO’s reply.” Thille is a web developer, who notes that he helped build the database. I am quite sure that Thille thought he was being helpful here — and, he actually was being super helpful in revealing WIPO’s complete and utter disgust for basic due process on issues that impact speech and innovation. Most tellingly, he responded to my question about whether or not sites are notified that they’re being put in this database that can literally put them out of business by saying:

No. They know what they’re doing.

This isn’t a surprise. In two decades of doing work in and around the copyright space, this attitude is pervasive. It ignores, of course, that throughout all of this time, those in legacy industries are often way too quick to declare something, or some tool or service, “dedicated to infringement,” when it is not. It ignores that making mistakes here have massive impacts on both free expression and innovation. This is especially galling given that WIPO is a part of the UN and the UN is supposed to be bound by the principles of free expression in the Universal Declaration of Human Rights. To brush off such blatant censorship without any due process as “they know what they did” is astoundingly cavalier.

Other parts of Thille’s responses (er… “WIPO’s reply”) are equally enlightening, if not surprising. He argues that there really aren’t any problems with WIPO keeping such a censorship database, because it’s all really maintained by member countries:

The BRIP platform is merely a central repository for national authorities such as HADOPI in France, AGCOM in Italy, or Roskomnadzor in Russia.

These authorities are governmental and they declare websites as infringing, as they legally have the power to do so. We don’t have this power, so we don’t add or remove anything from the database.

He leaves out the earlier statements that industry representatives get to take part as well. He also leaves out the, uh, rather checkered history of some of the agencies he names in censoring the internet. Remember, when the company that Hadopi employed to run its copyright enforcement program decided that the DNS address 127.0.0.1 was a pirate site? (For the non-technically savvy, 127.0.0.1 is your own local machine). Or how about the time that Roskomnadzor used its copyright naughty list to shut down an entire news site. AGCOM? Remember how they ordered a user-generated-content platform blocked throughout Italy based on claims of 11 infringing works, and then ignored the fact that the site quickly removed all 11 works when informed?

Odd that the three examples of “trusted” government agencies that WIPO uses as examples for its database all have histories littered with problematic sites and censorship. Seems like, maybe, something WIPO should have considered, rather than merely assuming that if a government says “kill this site” that it must “know what they did.”

Thille also passes the buck on WIPO’s database, noting that while WIPO won’t remove stuff, it will be left up to those problematic trusted authorities to create any due process. Though, he is candid that basically, any site in the database is fucked:

If they have been flagged by their national supreme internet authority, it will be difficult to contest, but here again, this is a process we have noting to do with. Displeased websites will have to try and contact their national authority directly, as they alone can remove a website/domain from their list in the BRIP database. Technically, we could of course remove a website from an official list, but legally we absolutely can’t.

That’s fascinating. Given just how hard all of the industry reps have been fighting over the years to argue that the maintainer of a website should have liability for what’s in it, it does seem just slightly ironic for WIPO and the industry to team up on a database while insisting they have no liability whatsoever for putting companies into it incorrectly, even if it cuts of free expression or innovation.

Thille further clarifies — as we expected — that there is literally no way for the public, or even an NGO, to check the database and review it for accuracy. So it’s a hidden, secretive database, put together by organizations that have a troubled history of censorship, that will be used to starve sites out of existence, and there is no due process, no transparency, no way to review, no way to appeal. But it’s all cool because, WIPO believes, those sites “know what they’re doing.”

Of course, as we saw with Mega, yes, those sites know that they’re complying with the law. And it didn’t matter.

I asked WIPO whether or not it would like to comment on Thille’s clarifications, suggesting that as an organization pushing such a database, it would probably be in their interest to have a better response to these questions. WIPO declined to respond and has provided no additional comment. It seems like the kind of thing that might help member states have a more informed discussion at their meeting September 2 – 4, at which there will be a discussion on “recent activities” regarding the BRIP database.

Unfortunately, responding to pesky journalists asking silly questions about censorship and due process is not on the agenda. I guess, the best you can say about WIPO and this database is… “they know what they’re doing.”

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Companies: mega, wipo

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Comments on “WIPO Says Websites In Its Pirate Database Don't Deserve Due Process Because 'They Know What They're Doing'”

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61 Comments
Anonymous Coward says:

Interesting that an organization with no sovereign powers is expected to extend “due process”. How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?

As for the “great example”, it is useful to bring to the attention of readers that Mega was the brainchild of Kim Dotcom, a mega-infringer who stole away to NZ to hide from criminal prosecution.

Mike Masnick (profile) says:

Re: Re:

Interesting that an organization with no sovereign powers is expected to extend “due process”. How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?

WIPO is part of the UN, and intergovernmental organization, and the people who are supply the database with their pirate lists are governmental organizations. In other words, yes, it’s a governmental organization, and yes, due process here is key. Separately, we have, repeatedly advocated for the fact that private platforms should increase their own due process, but you’re pretending otherwise.

As for the “great example”, it is useful to bring to the attention of readers that Mega was the brainchild of Kim Dotcom, a mega-infringer who stole away to NZ to hide from criminal prosecution.

Leaving aside your mischaracterization of Dotcom, the question was not about Kim Dotcom, but about the company (of which he is no longer associated with and hasn’t been in years), and whether or not it was a cyberlocker dealing in infringement.

But, hey, if you want to tar everything because of things its one time execs did in the past, you’re not going to like how the big movie studios and record labels come out in the wash….

Anonymous Coward says:

Re: Re: Re:

Would you be so kind as to direct me to where it is referenced that WIPO holds legislative and judicial powers equivalent to those of sovereign nations? Until then use of the phrase “due process” in reference to WIPO is misleading.

As for KDC, his case is pending before the NZ Supreme Court for final disposition, arguments having been presented earlier this year. It will be interesting to see how the court decides.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Would you be so kind as to direct me to where it is referenced that WIPO holds legislative and judicial powers equivalent to those of sovereign nations? Until then use of the phrase “due process” in reference to WIPO is misleading.

They are determining which websites can live or die in partnership with national governments. This isn’t hard.

As for KDC, his case is pending before the NZ Supreme Court for final disposition, arguments having been presented earlier this year. It will be interesting to see how the court decides.

Yes. That’s true. But his case has nothing to do with Mega, so why are we even discussing this other than you deciding to try to undermine a story with something totally unrelated.

Anonymous Coward says:

Re: Re:

"Interesting that an organization with no sovereign powers is expected to extend “due process”."
Agreed, who in the hell do these people think they are?

"How many times has this site come to the defense of social media organizations when allegations of censorship on their sites are made?"
Oh, not this bullshit again. You have been informed of the legalities in these cases and yet you still refuse to acknowledge the way things are. If you do not like it you are ranting to the wrong audience.

Now, please explain how and why due process is not something that an accused, in the US, is granted.

Anonymous Coward says:

Re: Re: Re:

Due process in the US is a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.

Respecting the first amendment is likewise a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.

WIPO is an organization that has members which are governments, but the organization itself does not have any customary governmental powers.

Now, extending principles consistent with due process to others is an entirely legitimate and laudable goal, but it is not a constitutional imperative.

This site goes nuts when someone comes along and equates copyright infringement with theft. To be consistent, it should take issue when persons come along, including the authors of articles, and begin associating with non-governments constitutional obligations that are unique to governments.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Due process in the US is a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.

Again, WIPO is a governmental organization, and this censorship/defund list is created by governmental organizations, all of whom owe a right to due process before seeking to censor content.

Respecting the first amendment is likewise a constitutional obligation of the states and the USG. An entity that is neither of these does not have such an obligation.

WIPO, as a part of the UN, is bound by the Universal Declaration on Human Rights, which includes both free expression and due process.

Now, extending principles consistent with due process to others is an entirely legitimate and laudable goal, but it is not a constitutional imperative.

It is for a UN organization creating a list that is driven by UN member state governmental agencies.

Anonymous Coward says:

Re: Re: Re: Re:later on

Site operator: so as you can see your honor the UN a foreign entity that offers no redress or anything “because you know what your doing” just delisted a #### load of people sites on US soil with absolutely no redress whatsoever in violation of several principles of this nations foundation and laws and takes away power from the people itself through such acts. ????

Judge:……uh give him back his site “pounds gavel”

Wipo: what the #### just happened?

Rico R. (profile) says:

The open internet is dead, just so that you can make more bread!

That subject is from a line in an original song I wrote about copyright. I wrote it in anger right after the EU voted to approve Article 13/17 in their copyright directive. Unfortunately, this article only proves that this is sadly going to become a reality.

Forget copyright for a second. Let’s call the situation for what it is: A new invention that enables all of humanity to communicate with each other at the click of a finger. This invention allows you to say whatever you want to whoever will listen, all without the need of someone else in some high-up company to approve of what you’re going to say. But those same higher-ups hate this new invention. They want to control everything and hold a monopoly on enabling people to speak. So they throw a tantrum over not being able to keep making profits like they used to, and for whatever reason, the government listens to them, sides with them, and passes and enforces laws that enable them to hold a monopoly.

The above statement can apply to the Internet, but it also can easily apply to the printing press. Sadly, history is repeating itself. Copyright was never about trying to protect creators or stop people from ripping off artists. It wasn’t even about making sure authors and artists are paid for their work. It’s all about making sure the gatekeepers stay in control and keep making huge profits like they used to.

No. They know what they’re doing.

Yes, someone knows that they’re ripping off artists and making a quick buck off of their hard work. But if you think that the "pirates" are the ones doing so, I think you better look in the mirror. The gatekeepers are the ones who "know what they’re doing", and unfortunately the government is handing them tools to allow censorship in hopes that they can start making legitimate profits. What’s going to happen when the Internet is gone, every legitimate site is blacklisted, and you STILL aren’t making the profits you want to make? Stop making a scapegoat out of piracy and evolve with the times. The internet has allowed a massive increase in creativity; don’t let greed destroy it by turning copyright into a tool to censor the creativity it is supposed to help foster.

Peter (profile) says:

There may be a second recourse

Sue local ISPs for censorship and prevent them from using pressure-group blacklists as a basis for restricting access to internet sites. Given that Google reports 90% errors in industry-provided block lists, local courts might be convinced that at least some due process is required for fairly cuts into constitutional rights.

ECA (profile) says:

its hard..

To understand 1 nations laws over another..
What is legal Here may not be over there.. who wants to Chew gun in public in Taiwan??

Anyone want the Spanish Inquisition??

How about the idea that That USA is NOT supposed to have religion in the Gov…for 1 basic reason. WHICH RELIGION, WHICH SEC, Which one do you choose…
With over 40 Different Christian religions, How many Muslim? Jewish??

then add this ideal, with a FEW CORPS, getting together and creating an agency… That give you NO CHANCE.
Corps controlling this??
And this Agency has the RIGHT, to report to Visa, MC, PP and other companies and DEMAND/suggest?? That they Do something in another country?

Can we as a nation, Demand that Bayer, and Monsanto, GET OUT OF INDIA and quit being MEAN about seeds they are selling with Contracts??
I REALLY dout it.
Can India do it…They can ask..but Probably wont do much good.

Vic says:

RE: Governmental organizations?

Mike, tell Thille (as a WIPO representative) that I am deeply offended they did not contact a government with the most extensive list of sites to block – the Chinese one. I believe that China is still a member of UN, China is a place where about a quarter of the whole Earth population lives, so they MUST have a voice in this one. I wonder how much of the Internet we will have left after their contribution…

Anonymous Coward says:

So:

  • Steal someone and you’ve got the right to due process.
  • Kill someone and you’ve got the right to due process.
  • Rape someone and you’ve got the right to due process.
  • Run a pirate site and you don’t have the right to due process because you "know what you’re doing".

Sure, rapists don’t know what they are doing, no.

Anonymous Coward says:

Re: Re: Re: As I keep saying, 'copyright causes brain damage'

Also, and sorry for nitpicking, but you don’t need to specify about actual theft.

Copyright infringement isn’t theft. I know what copyright zombies moan about, and I guess that you are putting emphasis in that word because you’re trying to refer to what they do.

But IMHO, we should be very careful with words. I remember Rick Falkvinge once writing about the war on words, particularly in copyright, but it also applies to other areas.

We shouldn’t let them decide or even try to bias the meaning of a word towards something else. That’s a very important fight that would end up deciding the society’s support or rejection on copyright.

Or at least, their willingness to trade civil rights for copyright enforcement.

That One Guy (profile) says:

Re: Re: Re:2 As I keep saying, 'copyright causes brain damage'

The emphasis was meant to differentiate copyright infringement, which is not theft, from something like stealing a DVD from a store, which is theft, and point out that the despite the latter having real demonstrable harm(in that the store has one less of a physical item to sell) copyright infringement, which lacks that, is treated much more serious under the law, with basic protections like ‘due process’ and ‘innocent until proven guilty thrown under the bus as a result.

Anonymous Coward says:

Re: Re: Re:3 As I keep saying, 'copyright causes brain damage

I know.

And see that in my answer I tell you about you putting the emphasis in that word.

My point is that we shouldn’t even give them that chance with the "actual" part. That we should be more assertive in the use of our language.

Because we might end up losing that war on words.

That One Guy says:

Re: Re: Re:4 As I keep saying, 'copyright causes brain da

Hmm, I think I see where you’re going with that, though I’m not sure I agree. Given they already dishonestly conflate copyright infringement with theft I think it’s important to make a clear distinction between the two(‘this is claimed to be theft but it’s not. That on the other hand actually is theft.’), otherwise it would be all too easy for them to just lump the two together.

When only talking about copyright infringement I try to avoid even the ‘piracy’ label, as much like theft that’s a dishonest loaded word, but when it comes to a discussion/comparison between copyright infringement and theft I feel it’s worthwhile to emphasis that despite the repeated claims one is not the same as the other; that one actually does fit the label they are throwing around while the other doesn’t.

Anonymous Coward says:

Re: Re: Re:5 As I keep saying, 'copyright causes brai

Well, think of it this way.

The moment you write "actual" theft it means that you’re taking in mind that there is "copyright" theft, or at least, you’re admitting its existence or that there might be a distinction.

What I do, in a very 1984-esque way (they started it), is removing the term "copyright" theft from the dictionary.

That is, "theft" means that you take away something from someone depriving him of his use.

"Copyright theft"? What the fuck is that? Can you eat it?

That is, I deny them of using that word. Moi no habla Spanish, capisce?

tp (profile) says:

Easy steps how to regognize pirate sites for your content filter

Here’s the steps needed to regognize a pirate site:
1) they have large amount of content (==they’re not author of all that content)
2) they publish the material (== their system is setup to utilize the copyright owner’s exclusive property)
3) they didn’t bother to do the legal paperwork (== they don’t have a license to use the material they publish)
4) their popularity is based on steps (1) to (3). (== their main business is piracy)
5) they were sued by an author or publisher (== their infringement was large enough that authors need to do something to it)
6) authors of the material never received their money (== their money handling is sloppy)

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