WIPO Now Gets Into The Extrajudicial, Zero Due Process, Censorship Act Over Sites It Declares 'Infringing'

from the not-this-again dept

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."

These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.

That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.

WIPO, which is part of the United Nations, was founded more than 50 years ago with the aim of protecting intellectual property. This includes combating online piracy, something it hopes to facilitate with its ‘BRIP’ Database, short for “Building Respect for Intellectual Property.”

So, uh, what's the process to get on the list? Surely it must involve a court of law determining that a site is engaged in copyright infringement, right? Oh, of course not.

The goal of the project is simple: allow stakeholders from member states to report problematic sites and share this list with advertisers, so they can block bad apples. This will result in less money going to pirate sites, making it harder for them to generate profit.

"Stakeholders"?

“The BRIP Database is now open for the acceptance of Authorized Contributors from WIPO Member States and Authorized Users from the advertising sector,” WIPO writes.

“It comprises a secure, access-controlled online platform, to which authorized agencies in WIPO Member States may upload lists of websites which deliberately facilitate the infringement of copyright.”

Ah. So, it's "Authorized Contributors" and "Authorized Users from the advertising sector" and the entire list is secret. It's "secure, access controlled." I'm sure that won't be abused at all.

Not answered:

  • What is the process to make sure sites on the list are actually engaged in ongoing infringement?
  • Are sites notified?
  • Do sites have any due process by which they get to plead their own case?
  • Is there any appeals process?
  • How are "authorized contributors" vetted and approved?
  • Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?
  • Is there any way for the public or NGOs to review the list for accuracy?
I've sent these questions to WIPO, which has not yet responded at the time of publication.

What's fairly stunning about all of this is that anyone who knows anything about these issues and how they've been treated over the last few decades would recognize the pitfalls of WIPO's approach with BRIP. And yet... no one at WIPO even seemed to bother to care about some fairly fundamental issues regarding due process and proper adjudication of accusations of infringement. Honestly, it raises significant questions about WIPO's own understanding of copyright law.

Filed Under: advertising, blacklist, censorship, due process, transparency, un, wipo


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  • identicon
    TFG, 17 Jul 2019 @ 10:56am

    I can answer those questions!

    What is the process to make sure sites on the list are actually engaged in ongoing infringement?

    We'll just take the notifiers word for it. They obviously wouldn't lie and definitely will have verified that infringement is definitely happening. No need for us to follow up on it.

    Are sites notified?

    No. They know what they've done.

    Do sites have any due process by which they get to plead their own case?

    Pirates don't get to plead cases.

    Is there any appeals process?

    Pirates don't get to appeal, either.

    How are "authorized contributors" vetted and approved?

    We ask our cousin Jimmy if he know them. Jimmy knows everybody.

    Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?

    ...Incorrectly? That would never happen.

    Is there any way for the public or NGOs to review the list for accuracy?

    Why would we let potential pirates vet the list?

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Bucket of Cold Water, 17 Jul 2019 @ 11:10am

      Re: Thanks for quote-and-contradict.

      It relieves your frustration, but you don't thereby answer any problem.

      Now, how is it that all those people in the UN agree with ME and not with you and Masnick? That's a big question you should ponder.

      [And to answer the obvious: even the most evil of rulers and organizations, globalists here, have to do a little good, besides serve moneyed interests. I've warned for years that you pirates provide the real tyrants with excuse for more surveillance and control. That's just one aspect of your piracy, separate from my advocacy of copyright as good for persons, and in any event hasn't dissuaded you from piracy.]

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

      • icon
        Stephen T. Stone (profile), 17 Jul 2019 @ 11:15am

        I've warned for years that you pirates provide the real tyrants with excuse for more surveillance and control.

        You could eliminate piracy altogether and that wouldn’t change a thing. Tyrants will always find a pretext for their tyranny.

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

      • identicon
        Anonymous Coward, 17 Jul 2019 @ 12:34pm

        Re: I think we all know the answer to that

        Sup liar. Why do you keep running away when we ask you a question?

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

      • identicon
        Anonymous Coward, 18 Jul 2019 @ 4:38am

        Re: Re: Thanks for quote-and-contradict.

        I've warned for years that you pirates provide the real tyrants with excuse for more surveillance and control.

        While ignoring that so long as individuals have access to any technology that allows them to make copies of things, the RIAA/MPAA and allies will keep on beating the piracy drum.

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

    • identicon
      Daydream, 17 Jul 2019 @ 5:38pm

      Re:

      Kind of tangential, but I'm reminded of the Fugitive Slave Act of 1850, the one that allowed slaveowners to say 'that's an escaped slave, arrest him!'.

      Fugitive slaves, or people accused of being fugitives, didn't have any right to a court hearing, jury trial or appeal, or speak in their own defence at all really, so as you can guess, a lot of innocent people were kidnapped and enslaved using the Act.

      You can guess what will happen if accused pirate sites are refused the ability to defend themselves on the basis that they're (accused) pirates.

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

      • identicon
        Anonymous Coward, 18 Jul 2019 @ 6:32am

        Re: Re:

        It took an act of congress to declare they were even 3/5 of a person and that was not received well amongst the racist.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Bucket of Cold Water, 17 Jul 2019 @ 11:04am

    But, hey, you're all for the rest of UN and globalism!

    This, like my snark at Europeans for complaining now about the voluntary UNION that they joined, is more self-contradictory nonsense. Handing control over to bureaucrats further away and thinking that they'll do as you wish is simply another faulty notion of Ivy League masnickism.

    I'm against everything the UN does, save for debating place. Giving them control, accepting their globalist ideas such as remove all borders, is insanity.

    But Masnick loves the UN and globalism, then thinks he can be highly selective. This hits his anti-Copyright button, and he goes berserk.

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

    • icon
      Stephen T. Stone (profile), 17 Jul 2019 @ 11:07am

      And yet, you’re still not willing to denounce corporations using copyright to censor legally protected speech.

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

      • icon
        Gary (profile), 17 Jul 2019 @ 11:17am

        Re:

        And yet, you’re still not willing to denounce corporations using copyright to censor legally protected speech.

        But he IS ready to blame the jews for his problems. Go figure.

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

        • identicon
          Anonymous Coward, 17 Jul 2019 @ 5:43pm

          Re: Re:

          I love how he blames Israel for his problems but any criticism of Trump for that decision suddenly becomes unacceptable.

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

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 11:38am

    no one gives a toss about what happens to any other site, person or whatever, as long as the one(s) carrying out the 'blocks' get to do what they want! the whole aim is to stop the internet from being accessible to anyone other than those that the entertainment industries, the rich, the powerful (and their friends) and all governments and the ordinary people are stopped! no one in the groups above want to have any of their info or escapades transmitted round the globe, in seconds, but want to ensure that they know every single thing about all of us!

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

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 12:57pm

    How do they intend to block a site?

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

  • identicon
    DocGerbil100, 17 Jul 2019 @ 1:49pm

    Business as usual...?

    Hell, Mr Masnick. :)

    I get things wrong, sometimes. I'm a daft, drunken cunt, half the time, I know - so I know my alcohol-soaked brain isn't always doing the job it should, but surely...

    ... surely, all these blacklists depend on advertisers wanting to avoid association with sites alleged to be unlawful, presumably because those advertisers fear the risks posed by various constructions of secondary liability in various legal territories. No?

    ... and surely, all pirate sites would need to do to short-circuit the blacklists' value is pirate some of the ad-streams themselves, while leaving just enough gaps in coverage for advertisers and ad-networks to see a clearly-demonstrable financial advantage from continuing to do business with those sites. Yes?

    ... so, surely, if no-one on the outside can tell whether that Coca Cola ad is authorised or not, there's no shield from lawsuits and liability - and no incentive for anyone to pay staff to research and maintain blocklists. Yes? No? Maybe?

    I can see various technical and legal countermeasures the anti-piracy brigade might reach for - but they all seem likely to take a fair bit of time to develop into anything remotely reliable, leaving the field clear for a fair amount of money to change hands in the intervening gap.

    Would that be right, or have I missed something, somewhere? :P

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

  • identicon
    Anonymous Coward, 18 Jul 2019 @ 1:05am

    Yep

    "... no one at WIPO even seemed to bother to care about some fairly fundamental issues regarding due process and proper adjudication of accusations of infringement."

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

  • identicon
    Joe User, 18 Jul 2019 @ 3:03am

    won't it be great

    ...if BMG reports Sony, then GEMA reports the MPAA. The RIAA reports Universal, etc. Elavon reporting FirstData would be even funnier, almost as much as Visa reporting MasterCard, or Wells Fargo reporting BofA. I wonder if one of them reporting UN.org would be the best. What about VK reporting facebook.com? Yahoo reporting google.com. I could go on for hours. How about the FSB reporting cia.gov?

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

  • icon
    Jeremy Thille (profile), 19 Jul 2019 @ 12:52am

    WIPO's reply

    I can certainly give some insight into this article, as I am the one who developed BRIP for WIPO. Please note I am just a developer, not a director or a lawer, but here is what I can reply to your article.

    You accuse WIPO to "block sites they declare infringing".

    Well first, we don't block anything.

    Let me make it clear that BRIP's goal is not to block infringing websites, but to deprive them from advertising, therefore most of their revenue.

    Now I don't see how WIPO technically could, even if they wanted, and were legally allowed to, block advertising from being served to infringing websites. Advertising is served to websites by advertising platforms, such as Google Ads. WIPO blocking ad serving would require our systems to be layered between every advertising platform's servers and every website out there, which is unrealistic, to say the least.

    However, advertising platforms can consult the BRIP database, and therefore know whether the website they were requested advertising from has been declared as infringing. Then, with this information, they can decide to serve the ad or not. We are technically unable to prevent them from serving ads if they decide to do so anyway.

    BRIP only stores and provides information. It doesn't block anything as it has neither the technical nor the legal powers to do so.

    Second, we don't declare anything infringing.

    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.

    Now answers to your "not answered" points :

    • What is the process to make sure sites on the list are actually engaged in ongoing infringement?

    Every national authority have their own process and it depends entirely on their own judgement.

    • Are sites notified?

    No. They know what they're doing.

    • Do sites have any due process by which they get to plead their own case? Is there any appeals process?

    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.

    • How are "authorized contributors" vetted and approved?

    Authorized contributors are exclusively national/governmental internet supreme authorities.

    • Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?

    It is not our role to judge wether a flagged website is actually infringing or not. If it is in the BRIP database, it means a governmental authority placed it there, and we don't have to contest their decision.

    • Is there any way for the public or NGOs to review the list for accuracy?

    On the BRIP database itself, no. They would have to contact governmental authorities directly and request a list of the websites they declared as infringing.

    I hope this clarifies the situation, let me know if you have any more questions, hopefully I can answer.

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

    • icon
      Wendy Cockcroft (profile), 19 Jul 2019 @ 2:46am

      Re: WIPO's reply

      Hi Mr. Thille,

      thank you for responding to Mike's post. I've got some questions for you, sir.

      **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.**

      The entities you've listed are notorious for wrongly claiming infringement, even to the point of declaring that items not under their jurisdiction actually are. To trust them just because they're government agencies is the point at which the error begins. If there's no way to check whether they're right or not you're going to end up depriving legitimate sites of revenue with no due process.

      **Now answers to your "not answered" points :

      Every national authority have their own process and it depends entirely on their own judgement.

      Which is often badly flawed. *

      No. They know what they're doing.

      Not true, per years and years' worth of evidence to the contrary. See the example provided above.

      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 not[h]ing 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.

      This is the problem we're having with BRIP. Zero due process on the word of a government entity riddled with flaws and not answerable to anyone.

      Authorized contributors are exclusively national/governmental internet supreme authorities.

      Which, as I've pointed out, aren't necessarily reliable.

      It is not our role to judge wether a flagged website is actually infringing or not. If it is in the BRIP database, it means a governmental authority placed it there, and we don't have to contest their decision.

      That's the problem. You're enabling censorship and tyranny.

      On the BRIP database itself, no. They would have to contact governmental authorities directly and request a list of the websites they declared as infringing.

      See Techdirt articles on the trouble with getting any kind of response to FOIA requests. You could have written, "Ha ha, good luck with that, buddy!" It would have been more accurate.

      I hope this clarifies the situation, let me know if you have any more questions, hopefully I can answer.

      It's basically ::poker face:: "That's the law." Not helpful, and does sod all to encourage belief that respect for IPR does any good for anyone except the most powerful people, and they're powerful enough.

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

      • icon
        Jeremy Thille (profile), 25 Jul 2019 @ 4:34am

        Re: Re: WIPO's reply

        I won't make any more comment or start debating. I simply wanted to highlight BRIP's neutrality and absence of judgement or enforcement, that's it.

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

        • icon
          Cdaragorn (profile), 1 Aug 2019 @ 3:57pm

          Re: Re: Re: WIPO's reply

          In other words, you don't have to take responsibility for your completely clueless and utterly wrong list because other people are the ones that actually do anything with it.

          Nevermind your ignorance to the fact that others will simply trust that WIPO knows what it's talking about because "authority" despite the fact that this list and your responses clearly demonstrate that you have no clue in this universe what copyright is or just how wrong your list is.

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

        • icon
          techflaws (profile), 1 Aug 2019 @ 9:34pm

          Re: Re: Re: WIPO's reply

          Of course, why would you defend your actions once directed to its many problems. Rest assured you guys won't build ANY respect for copyright, quite the contrary.

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

      • icon
        Wyrm (profile), 2 Aug 2019 @ 3:55pm

        Re: Re: WIPO's reply

        You forgot to mention that, since nobody can actually review the list and submissions, a censored website might not know which country and/or which authority flagged them as "pirate".

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

      • icon
        Jeremy Thille (profile), 5 Aug 2019 @ 6:48am

        Re: Re: WIPO's reply

        I want to make it clear that my original comment was a personal note, and in no way represents WIPO's position. I have requested to delete the comment, but Mr. Masnick rejected my request. I am therefore correcting the record in this way.

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

  • identicon
    Yehya, 29 Jul 2019 @ 10:52am

    WIPO has a problem

    But there is a problem with a very important one, WIPO is not extreamly fear with all the inventors. the story is on this link
    https://www.facebook.com/yahya.amari.7/videos/2477477132272203

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

  • identicon
    Amari, 30 Jul 2019 @ 2:55pm

    WIPO Prob

    I see that there is a big problem in how WIPO considers inventions, in term of topics and countries of inventors. one story is in the link below:
    https://www.youtube.com/watch?v=Fr-VTCzVpuE

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


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