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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  1. 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!!

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