We’ve been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy — but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they’re about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We’ve already discussed many of the problems of the intellectual property chapter — which is still being fought over — including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).
And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as “investor state dispute settlement” or “ISDS” (named as such, in part, because the negotiators know it sounds boring, so they hope the public won’t pay attention). As people go through the details and the fine print, they’re finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters — the IP chapter and the investment chapter — could very likely threaten fair use (and, with it, undermine the First Amendment).
The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it’s a serious concern. Flynn’s article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its “intellectual property” has been “expropriated” in some manner. The word “investment” in the investment chapter is defined incredibly broadly and explicitly includes “intellectual property” as well as “other tangible or intangible, movable or immovable property.” It also, importantly, notes that an investment, for the purpose of ISDS, covers:
every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.
Now, it’s no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation.
Even where there are very strong arguments for fair use — such as in helping the blind access works — the entertainment industry has twisted the so-called “three step” test from the Berne Agreement to argue that that is the most that is allowed for fair use. The three step test is actually really about limiting fair use, rather than enabling it. It is in the Berne agreement (as a relatively recent addition) as one possible “exception” to copyright, but not the only one. However, the haters of fair use like to pretend that it is the only one allowed under that agreement.
Under the three step test, “exceptions” to copyright occur when there are:
limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder
And, of course, in the US, fair use goes way beyond that already. And, as Flynn points out, it appears from the leaked text of TPP, the US would now be opening itself up to an ISDS challenge from a foreign owned company (remember: Universal Music is owned by a French company, Sony Music is owned by a Japanese company and Warner Music is owned by Russians…) that the fair use doctrine itself “expropriates” its “intellectual property” rights by going beyond the three steps test. Here’s Flynn:
And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy.
And this isn’t so far fetched. As we’ve been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this “expropriated” Eli Lilly’s “intellectual property” and took away its “expected profits.”
Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?
And, if fair use is undermined, so is free speech. As we’ve noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary “safety valve” in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights.
And yet… the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to “advise” the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what’s being negotiated, and could discuss the possible consequences — like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR’s true reasoning for such provisions), it refuses to do so.
Tag: France
Spookception: US spied on Israel spying on US-Iran nuke talks
Israel spied on the recent US-Iran nuclear talks, alleges America. And the US knows enough about it to say it publicly because the NSA is spying on Israel, along with everyone else.
The Wall Street Journal reports that Israel handed over confidential information from the negotiations with friendly members of the US Congress in a bid to derail any deal.
Israel denies the accusations, which highlight a widening gulf between Binyamin Netanyahu’s hawkish government in Israel and the Obama administration.
Five Cyberlocker Operators Jailed For Spreading ‘Depraved Culture”
Three years ago file-hosting site Ryushare was a rising star in the so-called cyberlocker scene. Operating healthy affiliate and rewards schemes the site became a magnet for those looking to upload popular content.
After mere months online the site was already pressing the market leaders and by early 2013 was looking to break into the Alexa 500. Progress continued for another year but in April 2014 the site suddenly disappeared without explanation.
Rumors began to circulate that the site’s operators had been arrested but it took weeks for the arrival of an official announcement. The Vietnamese government eventually delivered the news that Ryushare had been closed down following the arrest of site owner Nguyen Duc Nhat plus three of his associates. Cars, motorcycles, and around $350,000 were seized.
While arrests are not a particularly unusual development in file-sharing cases, copyright issues weren’t at the heart of the site’s problems. It transpired that the authorities had taken offense at the huge amounts of “depraved content” being made available via the site.
YIFY Torrents Faces Domain Suspension, Moves to YTS.to
The popular movie release group YTS, also known as YIFY, has switched to a new domain name. The French domain registry FRNIC has informed the site’s operators that YTS.re will be suspended by the end of the month, an outcome most likely the result of pressure from copyright holders.
YTSOperated by the popular ‘YIFY’ release group, YTS has become one of the most popular pirate brands.
The group releases its movies on various popular torrent sites and its home base YTS.re has also become increasingly popular.
Over the past year YTS gathered fame as the movie source for the “pirate Netflix” app Popcorn Time. Pretty much all popular Popcorn Time forks get their movie releases from the YTS API.
This connection further raised YTS’s profile and turned it into a prime target for various copyright holder groups. Even the U.S. Government chimed in, labeling YTS a notorious pirate site.
Apparently this pressure has paid off. YTS is now being forced to switch to a new domain after being advised by French domain name registry FRNIC that its .re domain is doomed.
“We got a warning from FRNIC that the domain is frozen and will be suspended by the end of March,” a YTS admin informs TorrentFreak while announcing YTS.to as their new domain.
It’s unclear where the complaint originates from, but the MPAA and BREIN would be on top of the list if YTS has to take a guess. The admin is happy, however, that FRNIC informed them in advance so they have time to inform users about the transition.
France Says Corporate Sovereignty Must Come Out Of CETA, Or Be Replaced By Something Completely Different
Although he is generally in favor of this agreement [CETA], the [French] Secretary of State [for External Commerce] considers that before ratifying the treaty it will be necessary either to withdraw current sections on ISDS or rewrite them entirely. Moreover, the opinion of [the French Secretary of State] Matthias Fekl represents not only the official position of France, but also a consensus shared by Germany and the European social democrats. In the daily Le Monde, he said on Wednesday that the only options remaining on the table were “the withdrawal, pure and simple, of ISDS or coming up with something new.” There is therefore no question of the Secretary of State signing the Canada-EU treaty without “inventing something new, that is no longer [investor-state] arbitration, but a new way to settle disputes, by integrating public courts in the procedure.”
What’s Scarier: Terrorism, or Governments Blocking Websites in its Name?
The French Interior Ministry on Monday ordered that five websites be blocked on the grounds that they promote or advocate terrorism. “I do not want to see sites that could lead people to take up arms on the Internet,” proclaimed Interior Minister Bernard Cazeneuve.
When the block functions properly, visitors to those banned sites, rather than accessing the content of the sites they chose to visit, will be automatically redirected to the Interior Ministry website. There, they will be greeted by a graphic of a large red hand, and text informing them that they were attempting to access a site that causes or promotes terrorism: “you are being redirected to this official website since your computer was about to connect with a page that provokes terrorist acts or condones terrorism publicly.”
No judge reviews the Interior Ministry’s decisions. The minister first requests that the website owner voluntarily remove the content he deems transgressive; upon disobedience, the minister unilaterally issues the order to Internet service providers for the sites to be blocked. This censorship power is vested pursuant to a law recently enacted in France empowering the interior minister to block websites.Forcibly taking down websites deemed to be supportive of terrorism, or criminalizing speech deemed to “advocate” terrorism, is a major trend in both Europe and the West generally. Last month in Brussels, the European Union’s counter-terrorism coordinator issued a memo proclaiming that “Europe is facing an unprecedented, diverse and serious terrorist threat,” and argued that increased state control over the Internet is crucial to combating it.
France To Require Internet Companies To Detect ‘Suspicious’ Behavior Automatically, And To Decrypt Communications On Demand
[the proposed law] wants to force intermediaries to “detect, using automatic processing, suspicious flows of connection data”. Internet service providers as well as platforms like Google, Facebook, Apple and Twitter would themselves have to identify suspicious behavior, according to instructions they have received, and pass the results to investigators. The text does not specify, but this could mean frequent connections to monitored pages.
As well as being extremely vague, none of this “automatic detection” will require a warrant, which means that the scope for abuse and errors will be huge. And then there’s this:
the Intelligence bill also addresses the obligations placed on operators and platforms “concerning the decryption of data.” More than ever, France is keen to have the [encryption] keys necessary to read intercepted conversations, even if they are protected.
As we’ve noted before, there is a global push to demonize encryption by presenting it as a “dark place” where bad people can safely hide. What’s particularly worrying is that the measures propposed by France are easy to circumvent using client-side encryption. The fear has to be that once the French government realizes that fact, it will then seek to control or ban this form too.
NSA Director: If I Say ‘Legal Framework’ Enough, Will It Convince You Security People To Shut Up About Our Plan To Backdoor Encryption?
Admiral Mike Rogers, the NSA Director, has barely been on the job for a year, and so far he’d mostly avoided making the same kinds of absolutely ridiculous statements that his predecessor General Keith Alexander was known for. Rogers had, at the very least, appeared slightly more thoughtful in his discussions about the surveillance state and his own role in it. However, Rogers ran into a bit of trouble at New America’s big cybersecurity event on Monday — in that there were actual cybersecurity folks in the audience and they weren’t accepting any of Rogers’ bullshit answers. The most notable exchange was clearly between Rogers and Alex Stamos, Yahoo’s chief security officer, and a well known privacy/cybersecurity advocate.
Alex Stamos (AS): “Thank you, Admiral. My name is Alex Stamos, I’m the CISO for Yahoo!. … So it sounds like you agree with Director Comey that we should be building defects into the encryption in our products so that the US government can decrypt…
Mike Rogers (MR): That would be your characterization. [laughing]
AS: No, I think Bruce Schneier and Ed Felton and all of the best public cryptographers in the world would agree that you can’t really build backdoors in crypto. That it’s like drilling a hole in the windshield.
MR: I’ve got a lot of world-class cryptographers at the National Security Agency.
AS: I’ve talked to some of those folks and some of them agree too, but…
MR: Oh, we agree that we don’t accept each others’ premise. [laughing]
AS: We’ll agree to disagree on that. So, if we’re going to build defects/backdoors or golden master keys for the US government, do you believe we should do so — we have about 1.3 billion users around the world — should we do for the Chinese government, the Russian government, the Saudi Arabian government, the Israeli government, the French government? Which of those countries should we give backdoors to?
MR: So, I’m not gonna… I mean, the way you framed the question isn’t designed to elicit a response.
AS: Well, do you believe we should build backdoors for other countries?
MR: My position is — hey look, I think that we’re lying that this isn’t technically feasible. Now, it needs to be done within a framework. I’m the first to acknowledge that. You don’t want the FBI and you don’t want the NSA unilaterally deciding, so, what are we going to access and what are we not going to access? That shouldn’t be for us. I just believe that this is achievable. We’ll have to work our way through it. And I’m the first to acknowledge there are international implications. I think we can work our way through this.
AS: So you do believe then, that we should build those for other countries if they pass laws?
MR: I think we can work our way through this.
AS: I’m sure the Chinese and Russians are going to have the same opinion.
MR: I said I think we can work through this.
AS: Okay, nice to meet you. Thanks.
[laughter]
MR: Thank you for asking the question. I mean, there are going to be some areas where we’re going to have different perspectives. That doesn’t bother me at all. One of the reasons why, quite frankly, I believe in doing things like this is that when I do that, I say, “Look, there are no restrictions on questions. You can ask me anything.” Because we have got to be willing as a nation to have a dialogue. This simplistic characterization of one-side-is-good and one-side-is-bad is a terrible place for us to be as a nation. We have got to come to grips with some really hard, fundamental questions. I’m watching risk and threat do this, while trust has done that. No matter what your view on the issue is, or issues, my only counter would be that that’s a terrible place for us to be as a country. We’ve got to figure out how we’re going to change that.
[Moderator Jim Sciutto]: For the less technologically knowledgeable, which would describe only me in this room today, just so we’re clear: You’re saying it’s your position that in encryption programs, there should be a backdoor to allow, within a legal framework approved by the Congress or some civilian body, the ability to go in a backdoor?
MR: So “backdoor” is not the context I would use. When I hear the phrase “backdoor,” I think, “well, this is kind of shady. Why would you want to go in the backdoor? It would be very public.” Again, my view is: We can create a legal framework for how we do this. It isn’t something we have to hide, per se. You don’t want us unilaterally making that decision, but I think we can do this.
French plod can BAN access to any website – NO court order needed
The French government wants to block terrorist and child porn websites so badly that it’ll even pay for the privilege.
A new implementation of last year’s Terrorism Act (effectively a new decree extending the scope of the existing law) will force internet service providers to block websites within 24 hours if ordered to do so by the police – with no court order required.
However, in a sweetener to the ISPs that might well complain about the “burden” of doing so, the law promises that any costs incurred will be reimbursed.
The stick for non-compliance is a pretty big one – a year in jail and a €75,000 fine. Yet that hasn’t deterred one local access provider, Illico in Corrèze, central France, from rebelling. The body says it will refuse any blocking requests.
Civil liberties groups and open internet advocates are also up in arms.
“The measure only gives the illusion that the state is acting for our safety, while going one step further in undermining fundamental rights online,” said Felix Tréguer, founding member of digital rights group La Quadrature du Net. “We must get it overturned.”
He added that blocking is ineffective since it is easily circumvented, as well as disproportionate because of the risk of blocking perfectly lawful content.
Unpacking France’s Chilling Proposal to Hold Companies Accountable for Speech
France’s misguided efforts to grapple with hate speech—which is already prohibited by French law—have been making headlines for years. In 2012, after an horrific attack on a Jewish school, then-president Nicolas Sarkozy proposed criminal penalties for anyone visiting websites that contain hate speech. An anti-terror law passed in December imposes greater penalties on those that “glorify terrorism” online (as opposed to offline), and allows websites engaging in the promotion of terrorism to be blocked with little oversight. And following the attack on Charlie Hebdo last month, Prime Minister Manuel Valls stated that “it will be necessary to take further measures” to address the threat of terrorism.
Despite such a history, the latest proposal to emerge from the country is shocking. At the World Economic Forum last week, President Francois Hollande called on corporations to “fight terror,” stating:
The big operators, and we know who they are, can no longer close their eyes if they are considered accomplices of what they host. We must act at the European and international level to define a legal framework so that Internet platforms which manage social media be considered responsible, and that sanctions can be taken.
In effect, Hollande’s proposal seeks to hold social media companies accountable for the speech that they host. This is antithetical to US law, where online service providers are explicitly exempted from being treated as publishers, with few exceptions, thanks to Section 230 of the Communications Decency Act.