For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.
The next scheduled Pwn2Own hacking competition has lost Hewlett-Packard as its longstanding sponsor amid legal concerns that the company could run afoul of recent changes to an international treaty that governs software exploits.
Dragos Ruiu, organizer of both Pwn2Own and the PacSec West security conference in Japan, said HP lawyers spent more than $1 million researching the recent changes to the so-called Wassenaar Arrangement. He said they ultimately concluded that the legal uncertainty and compliance hurdles were too high for them to move forward.
There are dozens of companies engaged in so-called “copyright trolling” worldwide, the majority connected with adult movie companies.
While most are generally dismissed as second-rate companies out to make a quick buck, U.S. producer Voltage Pictures has developed a reputation for making fairly decent movies and being one of the most aggressive ‘trolls’ around.
The company has targeted thousands of individuals in the United States, Canada, Europe, Asia and most recently Australia. The company has largely prevailed in these actions but a new case filed this week in the U.S. sees the company on the receiving end of procedures.
The spat concerns Voltage’s plans for a new movie. Starring Anne Hathaway and titled ‘Collosal‘, the flick sees a giant lizard-like creature stomping its way over Tokyo. It sounds an awful lot like Godzilla, recognized by Guinness World Records as the longest-running movie franchise ever. Toho, the Japanese movie studio behind the Godzilla brand, noticed the similarities too.
In a lawsuit filed yesterday in the United States District Court for the Central District of California, Toho highlights the hypocrisy of Voltage’s actions.
Describing the company as a “staunch advocate for the protection and enforcement of intellectual property rights” after filing hundreds of copyright suits involving its movies The Hurt Locker and Dallas Buyers Club, Toya says that Voltage began promoting its new movie via email at the Cannes Film Festival earlier this month.
As can be seen from the screenshot below, the email features three large photos of Godzilla, actress Anne Hathaway, and a giant robot.
“Gloria is an ordinary woman who finds herself in an extraordinary circumstance. Tokyo is under attack by Godzilla and a giant robot and, for some strange reason, Gloria is the only person who can stop it,” the email reads.
Predictably Toho is upset at Voltage’s use of the Godzilla character and associated breaches of the company’s copyrights and trademarks. Only making matters worse is the fact that the image of Godzilla used by Voltage is actually taken from promotional material published by Toho to accompany the release of its 2014 movie, Godzilla.
“Godzilla is one of the most iconic fictional characters in the history of motion pictures. Toho Co., Ltd., the copyright owner of the Godzilla character and
franchise of films, brings this lawsuit because defendants are brazenly producing,
advertising, and selling an unauthorized Godzilla film of their own,” Toho begin.
“There is nothing subtle about defendants’ conduct. They are expressly informing the entertainment community that they are making a Godzilla film and are using the
Godzilla trademark and images of Toho’s protected character to generate interest in
and to obtain financing for their project,” the company continues.
“That anyone would engage in such blatant infringement of another’s intellectual property is wrong enough. That defendants, who are known for zealously protecting their own copyrights, would do so is outrageous in the extreme.”
Noting that at no stage has Voltage ever sought permission to exploit the Godzilla character, Toho says it asked Voltage to cease and desist but the company refused.
Back in March, we reported on a campaign in Japan seeking to raise awareness about the extreme copyright provisions in TPP. Of course, making copyright even more unbalanced is just one of many problems with TPP, and arguably not even the worst. Now activists in the country have launched a much broader attack on the whole agreement by filing a lawsuit against the Japanese government in an attempt to halt its involvement in the talks. As Mainichi reports:
A total of 1,063 plaintiffs, including eight lawmakers, claimed in the case brought to the Tokyo District Court that the Trans-Pacific Partnership pact would undermine their basic human rights such as the right to live and know that are guaranteed under the Constitution.
The envisaged pact would not only benefit big corporations but jeopardize the country’s food safety and medical systems and destroy the domestic farm sector, according to their written complaint.
As well as oft-voiced concerns that Japan’s key agricultural sector would be harmed, the plaintiffs are also worried that TPP will push up drug prices — something that is a big issue for other nations participating in the negotiations. The new group rightly points out that corporate sovereignty jeopardizes the independence of Japan’s judicial system, and said that the secrecy surrounding the talks:
violates the people’s right to know as the document is confidential and the negotiating process will be kept undisclosed for four years after the agreement takes effect.
Although it is hard to judge how much of a threat this move represents to Japan’s continuing participation in TPP, the legal firepower behind it is certainly impressive: according to the Mainichi story, there are 157 people on the legal team. At the very least, it shows that resistance to TPP and its one-sided proposals is growing — and not just in the US. But you can’t help thinking it would have been a good idea for concerned Japanese citizens to have made this move earlier, rather than leaving it to the eleventh hour, with TPP close to the finishing line.
The Senate today is holding a key procedural vote that would allow the Trans-Pacific Partnership to be “fast-tracked.”
So who can read the text of the TPP? Not you, it’s classified. Even members of Congress can only look at it one section at a time in the Capitol’s basement, without most of their staff or the ability to keep notes.
But there’s an exception: if you’re part of one of 28 U.S. government-appointed trade advisory committees providing advice to the U.S. negotiators. The committees with the most access to what’s going on in the negotiations are 16 “Industry Trade Advisory Committees,” whose members include AT&T, General Electric, Apple, Dow Chemical, Nike, Walmart and the American Petroleum Institute.
The TPP is an international trade agreement currently being negotiated between the US and 11 other countries, including Japan, Australia, Chile, Singapore and Malaysia. Among other things, it could could strengthen copyright laws, limit efforts at food safety reform and allow domestic policies to be contested by corporations in an international court. Its impact is expected to be sweeping, yet venues for public input hardly exist.
Industry Trade Advisory Committees, or ITACs, are cousins to Federal Advisory Committees like the National Petroleum Council that I wrote about recently. However, ITACs are functionally exempt from many of the transparency rules that generally govern Federal Advisory Committees, and their communications are largely shielded from FOIA in order to protect “third party commercial and/or financial information from disclosure.” And even if for some reason they wanted to tell someone what they’re doing, members must sign non-disclosure agreements so they can’t “compromise” government negotiating goals. Finally, they also escape requirements to balance their industry members with representatives from public interest groups.
The result is that the Energy and Energy Services committee includes the National Mining Association and America’s Natural Gas Alliance but only one representative from a company dedicated to less-polluting wind and solar energy.
The Information and Communications Technologies, Services, and Electronic Commerce committee includes representatives from Verizon and AT&T Services Inc. (a subsidiary of AT&T), which domestically are still pushing hard against new net neutrality rules that stop internet providers from creating more expensive online fast-lanes.
And the Intellectual Property Rights committee includes the Recording Industry Association of America, the Pharmaceutical Research and Manufacturers of America, Apple, Johnson and Johnson and Yahoo, rather than groups like the Electronic Frontier Foundation, which shares the industry’s expertise in intellectual property policy but has an agenda less aligned with business.
The Chiba District Court today issued a preliminary injunction forcing the U.S. internet company to remove two anonymous reviews for an undisclosed medical clinic in the country. While they document negative customer experiences at the clinic, neither review violates the policies that Google has in place for user generated content within the Maps service.
Nothing special there, you might think, but there’s a sting in the tail:
The court ruled that Google not only removes the content in Japan, but across the entire globe too.
That’s troubling, because it’s yet another case of a local court asserting its right to affect what happens across the entire internet — the best-known example being the EU’s claim that its privacy regulations have to apply globally if they are to be effective. It’s worrying to see a similar ruling from Japan, albeit only in a preliminary injunction, and one that Google is appealing against, because it risks normalizing that view, with serious consequences for the online world. Far from being a domain subject to no rules, as politicians love to claim, the internet would begin to turn into the one place that has to obey every country’s laws.
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.
We noted that this was likely about a month ago, but IP-Watch is confirming that the USTR has bullied Japan, Canada, New Zealand and three other countries into agreeing that copyright terms must be life plus 70 years in the latest draft of the TPP agreement. This makes absolutely no sense, in part because even the head of the US copyright office has argued for the US to look at returning to the “life plus 50” baseline standard currently required by the Berne Agreement, and which those countries already abide by. Yet, here the USTR is rejecting that idea and saying that “life plus 70” will be required. That means that those countries will now have to jack up their copyright terms for absolutely no reason, even though it almost certainly harms the public for no benefit.
It’s not like these countries don’t know this is a bad idea. It’s been explained to them multiple times that even though the countries that have life plus 70 already are regretting it — and yet the USTR pushed for it anyway, and these countries backed down.
As we’ve noted for years, this is the really nefarious part of the agreements that the USTR negotiates. While this particular change won’t go against current US law, it makes copyright reform virtually impossible. That’s the real point of all this: by tying us up in “international obligations,” negotiated in backroom deals with no public input or review, the USTR is able to block Congress from having any meaningful chance at fixing the US’s broken copyright laws. Anyone who tries to put in place more sensible regimes will be told that they’re “violating international obligations” which will tie up the US government in things like those corporate sovereignty ISDS tribunals, in which merely fixing American copyright law will be seen as an unfair “appropriation” by the US government.
New Zealand launched a covert surveillance operation targeting candidates vying to be director general of the World Trade Organization, a top-secret document reveals.
In the period leading up to the May 2013 appointment, the country’s electronic eavesdropping agency programmed an Internet spying system to intercept emails about a list of high-profile candidates from Brazil, Costa Rica, Ghana, Indonesia, Jordan, Kenya, Mexico, and South Korea.
New Zealand’s trade minister Tim Groser was one of nine candidates in contention for the position at the WTO, a powerful international organization based in Geneva, Switzerland that negotiates trade agreements between nations. The surveillance operation, carried out by Government Communications Security Bureau, or GCSB, appears to have been part of a secret effort to help Groser win the job.
Groser ultimately failed to get the position.
A top-secret document obtained by The Intercept and the New Zealand Herald reveals how GCSB used the XKEYSCORE Internet surveillance system to collect communications about the WTO director general candidates.
XKEYSCORE is run by the National Security Agency and is used to analyze billions of emails, Internet browsing sessions and online chats that are vacuumed up from about 150 different locations worldwide. GCSB has gained access to XKEYSCORE because New Zealand is a member of the Five Eyes surveillance alliance alongside the United States, the United Kingdom, Canada and Australia.