Why Does The USTR Still Think Any Website That Might Upset Hollywood Is Illegal?

from the that's-not-how-it-works? dept

We've written a few times in the past about the USTR's ridiculous "notorious markets" report, which is an offshoot of the already ridiculous Special 301 report, in which the USTR is supposed to name and shame countries that don't respect US intellectual property laws... based on whichever lobbyists whined the most to the USTR (seriously: the process is no more scientific than that). The "notorious markets" report is even more ridiculous, and lets the USTR go even further afield, often naming perfectly legal internet services just because Hollywood doesn't like them. It got seriously ridiculous last year when the USTR expanded the list of domain registrars, including the very popular domain registrar Tucows. The USTR claimed that it was okay to put Tucows on the list because it "failed to take action" when notified of infringement.

Um. But that's the correct thing to do. A registrar's job is just to manage domain registrations and not to police what's on those sites, or to strip those domains. If someone is infringing on copyrights/trademarks/whatever, take it up with whoever is behind the site, not two steps removed to the company that registered the domain. Many people pointed this out last year, but this is the USTR we're talking about, and the USTR doesn't give a fuck. It just went right back out and with the release of the 2016 Notorious Markets List is still listing domain registrars and other websites that are perfectly legal, but which Hollywood or other big legacy industries don't like very much.

While Tucows is no longer listed, they do name Domainerschoice as a "notorious market" because many online pharmacies have purchased domain URLs from that registrar. But, again, if the online pharmacies are the problem, go after those pharmacies, don't blame the domain registrar. Domainerschoice is just creating a database and selling URLs, not hosting any content or selling any drugs, legal, gray market or illegal.

The new report also puts a special focus on the perfectly legal stream ripping business. There are many legal purposes and reasons to be able to record streaming audio/video, but the USTR pretends there are none and that this is a great scourge:
Stream ripping is an emerging trend in digital copyright infringement that is increasingly causing substantial economic harm to music creators and undermining legitimate services. Stream ripping is the unauthorized act of converting a file from a licensed streaming site into an unauthorized copy for distribution via download to the requester. Stream ripping often involves violations of terms of use and the circumvention of technological protection measures that legitimate streaming services put in place to protect music content from unauthorized copying and distribution. A study from the International Federation of the Phonographic Industry shows that stream ripping is on the rise in the world’s leading music markets. Nearly 30 percent of Internet users obtain unauthorized copies of music from stream ripping services. This is the first Notorious Markets review in which copyright stakeholders have nominated stream ripping sites for inclusion in the List.
As EFF points out, stream ripping has plenty of perfectly legal uses, and if they're a violation of a site's terms of service, that's for the site to deal with, not the US government:

In many cases, stream ripping is a legitimate, lawful activity. YouTube contains thousands of videos with audio tracks that are freely licensed, and some that aren't copyright-protected at all. In other cases, stream ripping may be a fair use of a copyright-protected audio track. In fact, EFF's Cory Doctorow writes, “I used YouTube-MP3 to rip a video of my own reading, of my own story, just today—so I could include it in my podcast feed.”

While the USTR points out that stream ripping may be in violation of the terms of use of the streaming site—YouTube, in this case—that is nobody's business but YouTube's. While YouTube is at liberty to block YouTube-MP3 from accessing its servers if indeed they are violating its terms of service, this doesn't give the government or copyright holders any similar cause for complaint.

Hell, it's not like there isn't a major Supreme Court ruling noting that recording streams (television, in that case) for the purpose of time shifting is perfectly legal fair use, and the makers of the equipment to do so are not violating the law, so long as there are "substantial non-infringing uses."

Does the USTR simply not know the law? Or do they know and just not care?

The EFF also points out two other serious problems with the new report, including naming Libgen and Bookfi to the list -- both of which are online libraries, with a focus on providing educational materials to people who couldn't otherwise access it. We've written a few times in the past about Libgen, mainly because the similarly infamous Sci-Hub uses it as a source for academic papers. While the EFF notes that it's likely that these online libraries may be violating copyright law, they are doing so to further access to knowledge and educational materials. It kinda says something when the USTR thinks that's a "notorious market" that is a problem.

Finally, there's the question of cyberlockers. Here, again, the USTR seems to ignore the law, and the fact that cyberlockers are protected by the DMCA's safe harbors. The USTR, again, doesn't seem to care, because the entertainment industry is whining. In particular, there are concerns about the naming of 4shared, a site that complies with DMCA takedowns and and has gone above and beyond that by offering up a ContentID-like filter to implement a form of notice-and-staydown that is not required by the law. But the USTR doesn't care.

Because the files uploaded to 4shared are uploaded by users, the site is protected from liability by the safe harbor provided by section 512 of the DMCA, and is only required to disable access to infringing files once a copyright holder sends it a notice in compliance with that law. This is one of the bedrock principles that underpins the success of America's dynamic and innovative Internet industry.

Like YouTube, 4shared has also voluntarily chosen to go above and beyond the requirements of the law, by also putting in place a music identification service that blocks users from sharing files that match music tracks that a copyright holder claims to own. We have serious concerns about such automated content matching systems, but leaving that aside, the adoption of such a system hardly seems like the behavior of a website dedicated to facilitating infringement.

And that's not all. The USTR has also named the popular Russian social network Vkontakte (VK). For years, VK was well-known as a place where people uploaded and could access tons of unauthorized content, but in recent years, the company has been cutting tons of licensing deals to make all of that content authorized. So the company is not at all happy to be back on the list, seeing as it's spent years getting licensing deals. So why is it still on the list? Because the USTR apparently wants to cement its reputation as a laughingstock in the copyright world, where whatever Hollywood says is the law it abides by, rather than the actual laws of the United States.

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  • icon
    Anonymous Anonymous Coward (profile), 27 Dec 2016 @ 8:30am

    Licensing deals...

    ...do not provide the same kind of control the MAFFIAS desire. The USTR is working on making the Internets a broadcast medium rather than a communications medium, on behalf of Hollywood. After all, the function was bought and paid for.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 9:38am

    in which the USTR is supposed to name and shame countries that don't respect US intellectual property laws.

    Since when did the US rule the world?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Dec 2016 @ 3:10pm

      Re:

      Since when did the US intellectual property laws respect intellectual property? (of anyone in any part of the rest of the world)?

      reply to this | link to this | view in chronology ]

  • identicon
    Michael, 27 Dec 2016 @ 9:45am

    "International Federation of the Phonographic Industry"

    Let's go ahead and use a study about the internet from a group that includes 140 year old technology right in it's name.

    I'm sure the International Federation of the Stone Tablet Industry is going to produce a similar study about quill pen's very soon.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 10:16am

    ...they are doing so to further access to knowledge and educational materials. It kinda says something when the USTR thinks that's a "notorious market" that is a problem.

    It doesn't say something. It says everything.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 10:31am

    Every time I read an article about the USTR on techdirt my first reaction is: "what's the big deal they are just doing what a lobbying firm is supposed to do". And then I remember.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 10:41am

    Because they don't verify

    They just accept whatever they are told and screw over the public by ignoring law, precedent and proof and the result is prosecutions like Kim Dotcom.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Dec 2016 @ 3:27pm

      Re: Because they don't verify

      In their defense, if the USTR verified facts and had to work within the larger scope of laws and rules that exist beyond the bounds of its limited imagination or that contradict its self-image of omnipotence, well... that wouldn't be as profitable, now would it? And we all know that a corporation's sole duty is to generate revenue for its stockholders.

      Wait, what's that? Hmm, an earlier AC says it isn't a lobbying group. Now someone's just informed me that it's not a publicly-traded company. OK, what is it then? If you can prove to me that it's a legitimate part of the US Government, I can prove to you that the Franklin Mint runs the US Department of the Treasury.

      reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 27 Dec 2016 @ 1:57pm

    "Why Does The USTR Still Think Any Website That Might Upset Hollywood Is Illegal?" Because lots and lots, ad nauseam, of lobbyists with lots and lots of money keep feeding greedy bloody politicians that's why.

    reply to this | link to this | view in chronology ]

  • icon
    Mike Shore (profile), 27 Dec 2016 @ 2:27pm

    Thank you USTR...

    ... for providing a list of alternatives to the overpriced, limited, inconvenient "official" channels to obtain content.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 3:21pm

    The USA wants to rule the world by pushing overly strict laws on copyright on countrys , on new laws
    on stopping info leaks from companys ,
    This is even worse as many countrys don,t have the free
    speech laws that the us has or laws on public domain
    fair use that provide a balance to corporate control .american companys wanted to ban mp3 players and vhs players because the might reduce the level of control
    of what you watch or listen to ,
    Even though itunes provided a legal alternative to
    piracy .
    the riaa etc don,t care about academic research or educational use of content .
    IF it reduces their income by one dollar .

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 3:49pm

    EFF gets a pretty big fail on this one, mostly because they are trying to use exceptional legal uses to paper over the massive illegal uses.

    While stream ripping may have it's legal uses, most of the uses seem to be "rip your favorite band's songs for free!". Nobody would have gone out of their way to write a ripping tool like this only for video bloggers to download their own audio. That would be way too tiny of a market with very limited use. The millions of visits to youtube-mp3 were not video loggers. Trying to paint things in that manner is amusing, but clearly ignores the elephant in the room.

    As for 4Shared, their business model is predicated on having material people are searching for and are preferably willing to download with their app. Simple searches of Google like "4shared harry potter" shows plenty of infringing material. Section 512 requires a claim of lack of knowledge, but the knowledge is effectively public.

    If they want to justify something, they need to come up with better arguments. Their "see no evil hear no evil" stand is something that would get laughed out of court, considering how easy it is to prove common knowledge.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 27 Dec 2016 @ 5:21pm

    "causing substantial economic harm to music creators and undermining legitimate services"

    It is so substantial that we can't find anyone but groups we created and fund to confirm it.
    We care more about an industry who claims huge losses in the face of growing income. We can show you on paper this film series lost $22 Bil, ignoring that the studio is still open, everyone got paid, & we made all 5 films in the series.
    Our answers to meeting consumer demand are 2 decades behind what is currently available, why won't they be satisfied with paying a monthly fee for a 'commercial free' viewing experince (that still serves up commercials)?
    Only with your continued support can we work to roll back the world to the 1950's where we controlled everything, and robbed artists blind.
    Our industry is failing!!! Look at the collapse of EMI, and pay no attention to the fact that all of the music we claimed was made worthless by piracy still sold for $4 Bil.
    We pretend we are part of the government, but we are allowed to lie much more. Follow our lead and retard the world, so we can keep ignoring consumer demand & raking in huge profits by robbing both sides.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 7:35pm

    The examples of 4shared and VKontakte are proof that there is simply no negotiating with Hollywood. You can bend over backwards, pull down your pants and let them stick their peepee in without lube to accede to their demands, and they'll still sue you for not letting them stick in the dildo with the rusty metal spikes hammered in.

    Negotiating with terrorists is always a bad idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2016 @ 7:59pm

    the entertainment industry has the opinions that everyone is trying to steal stuff from it and therefore everyone should pay to keep the stuff safe, while the industry itself does absolutely fuck all except try to put as many people in prison and destroy as many families and lives as possible, while keeping any and all monies it happens to get from law suits it has lied about in court cases, instead of giving it to the artists who are supposedly losing from the stuff everyone is stealing and the reason the prosecutions get brought in the first place!! phew!!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Dec 2016 @ 11:55pm

    "Well if you're going to blame me anyway..."

    For years, VK was well-known as a place where people uploaded and could access tons of unauthorized content, but in recent years, the company has been cutting tons of licensing deals to make all of that content authorized. So the company is not at all happy to be back on the list, seeing as it's spent years getting licensing deals.

    Seems VK would be better off ditching the licensing deals and going right back to just hosting infringing content. I mean, if they're going to be accused as a Pirate Haven, might as well save the costs of the licenses and skip that step, really live up to the accusations.

    reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 28 Dec 2016 @ 10:02am

    Blaming Tu-Cows for 3rd party actions

    is like blaming the Phone Book (yes, that large, ugly, yellow thing) for the telemarketers that call me!

    reply to this | link to this | view in chronology ]


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