Choosing an Internet service provider is something millions of individuals do every year, with pricing, speed and reliability major considerations. But what if there was an option to choose a broadband provider that not only offered decent service for a fair price, but also ran its very own pirate site for customers? Believe it or not, one actually exists.
It’s not exactly great filmmaking, but it does show how he has to give up his electronics and sign a document before entering the room (quickly, so as not to allow anyone to see what’s in there). And then he comes back out after being handed a document saying that it’s also against the law for him to copy down anything from the draft text verbatim. He expresses his concern about how ridiculous this is and is told to take it up with someone else, who then tells him that he should be happy that MEPs can even view the document at all within the EU Parliament, and that this is a “great achievement.”
Senate leaders were all smiles Wednesday after they broke a 24-hour impasse and announced they had reached a deal on how to move forward on a fast-track trade negotiating bill. That legislation would give the president expedited authority to enter into a trade agreement with Pacific Rim countries, otherwise known as the Trans-Pacific Partnership, or TPP.
But how senators will vote on this bill depends largely on how they feel about TPP. And there’s one problem.
“I bet that none of my colleagues have read the entire document. I would bet that most of them haven’t even spent a couple hours looking at it,” said Democratic Sen. Sherrod Brown of Ohio, who has acknowledged he has yet to read every single page of the trade agreement.
Because, as Brown explained, even if a member of Congress were to hunker down and pore over a draft trade agreement hundreds of pages long, filled with technical jargon and confusing cross-references –- what good would it do? Just sitting down and reading the agreement isn’t going to make its content sink in.
For any senator who wants to study the draft TPP language, it has been made available in the basement of the Capitol, inside a secure, soundproof room. There, lawmakers surrender their cellphones and other mobile devices. Any notes taken inside the room must be left in the room.
Only aides with high-level security clearances can accompany lawmakers. Members of Congress can’t ask outside industry experts or lawyers to analyze the language. They can’t talk to the public about what they read. And Brown says there’s no computer inside the secret room to look something up when there’s confusion. You just consult the USTR official.
“There is more access in most cases to CIA and Defense Department and Iran sanctions documents — better access to congressional staff and others — than for this trade agreement,” said Brown.
Sen. Barbara Boxer, D-Calif., today blasted the secrecy shrouding the ongoing Trans-Pacific Partnership negotiations.
“They said, well, it’s very transparent. Go down and look at it,” said Boxer on the floor of the Senate. “Let me tell you what you have to do to read this agreement. Follow this: you can only take a few of your staffers who happen to have a security clearance — because, God knows why, this is secure, this is classified. It has nothing to do with defense. It has nothing to do with going after ISIS.”
Boxer, who has served in the House and Senate for 33 years, then described the restrictions under which members of Congress can look at the current TPP text.
“The guard says, ‘you can’t take notes.’ I said, ‘I can’t take notes?’” Boxer recalled. “‘Well, you can take notes, but have to give them back to me, and I’ll put them in a file.’ So I said: ‘Wait a minute. I’m going to take notes and then you’re going to take my notes away from me and then you’re going to have them in a file, and you can read my notes? Not on your life.’”
The Office of the United States Trade Representative, the agency responsible for negotiating two massive upcoming trade deals, is being led by former lobbyists for corporations that stand to benefit from the deals, according to disclosure forms obtained by The Intercept.
The Trans-Pacific Partnership (TPP) is a proposed free trade accord between the U.S. and 11 Pacific Rim countries; the Transatlantic Trade and Investment Partnership (TTIP) is a similar agreement between the U.S. and the E.U.
The Obama administration is pushing hard to complete both deals, which it says will increase U.S. trade opportunities. Critics say the deals will provide corporate interests with sweeping powers to challenge banking and environmental regulations.
Here is information on three major figures in the Trade Representative’s office, gleaned from their disclosure forms:
— Sharon Bomer Lauritsen, the assistant U.S. trade representative for agricultural affairs, recently lobbied for the Biotechnology Industry Organization, a trade group for biotech companies. Lauritsen’s financial disclosure form shows she made $320,193 working to influence “state, federal and international governments” on biotech patent and intellectual property issues. She worked for BIO as an executive vice president through April of 2011, before joining the Trade Representative office.
— Christopher Wilson, the deputy chief of mission to the World Trade Organization, recently worked for C&M International, a trade consulting group, where he represented Chevron, the Biotechnology Industry Organization, British American Tobacco, General Electric, Apple and other corporate interests. Wilson’s financial disclosure shows he made $250,000 a year, in addition to an $80,000 bonus in 2013, before he joined the Obama administration. Wilson left C&M International in February of 2014 and later joined the Trade Representative’s office. C&M International reportedly lobbied Malaysia, urging it to oppose tobacco regulations in Australia.
— Robert Holleyman, the deputy United States trade representative, previously worked as the president of the Business Software Alliance, a lobbying group that represents IBM, Microsoft, Adobe, Apple and other technology companies seeking to strengthen copyright law. Holleyman earned $1,141,228 at BSA before his appointment. Holleyman was nominated for his current position in February of last year.
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.
For years now, we’ve been warning about the problematic “ISDS” — “investor state dispute settlement” mechanisms that are a large part of the big trade agreements that countries have been negotiating. As we’ve noted, the ISDS name is designed to be boring, in an effort to hide the true impact — but the reality is that these provisions provide corporate sovereignty, elevating the power of corporations to put them above the power of local governments. If you thought “corporate personhood” was a problem, corporate sovereignty takes things to a whole new level — letting companies take foreign governments to special private “tribunals” if they think that regulations passed in those countries are somehow unfair. Existing corporate sovereignty provisions have led to things like Big Tobacco threatening to sue small countries for considering anti-smoking legislation and pharma giant Eli Lilly demanding $500 million from Canada, because Canada dared to reject some of its patents noting (correctly) that the drugs didn’t appear to be any improvement over existing drugs.
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.
It would be fair to say that the relationship between the world’s major recording labels and streaming music service Grooveshark is a rocky one at best.
Founded in 2006 as a site where users could upload their own music and listen to streams for free, friction with record companies built alongside Grooveshark’s growth. EMI first filed a copyright infringement suit against the company in 2009 but it was withdrawn later that year after the pair reached a licensing agreement.
Since then there have been major and ongoing disputes with the labels of the RIAA who accuse Grooveshark of massive copyright infringement. Those behind the service insist that Grooveshark is simply a YouTube-like site which is entitled to enjoy the safe harbor protections of the DMCA.
Part of Grooveshark’s DMCA responsibilities is to remove infringing content once a copyright holder asks for it to be taken down. Grooveshark doesn’t publish any kind of transparency report but there is nothing to suggest that in 2015 it doesn’t take that responsibility extremely seriously.
However, Google’s transparency report reveals that the world’s major recording labels are currently hitting Grooveshark particularly hard. In fact, between the RIAA, IFPI and several affiliated anti-piracy groups, Google handled 346,619 complaints during the past month alone, with up to 10,000 URLs reported in a single notice.
In recent years copyright holders have demanded stricter anti-piracy measures from ISPs, search engines, advertising networks and payment processors, with varying results.
Continuing this trend various entertainment industry groups are now going after companies that offer domain name services.
The MPAA, for example, has joined the domain name system oversight body ICANN and is pushing for policy changes from the inside.
A few days ago the RIAA added more pressure. The music group sent a letter to ICANN on behalf of several industry players asking for tougher measures against pirate domains.
The RIAA’s senior vice president Victoria Sheckler wants the Internet to be a safe place for all, where music creation and distribution can thrive.
“… we expect all in the internet ecosystem to take responsible measures to deter copyright infringement to help meet this goal,” she notes.
The music groups believe, however, that domain registrars don’t do enough to combat piracy. ICANN’s most recent registrar agreement states that domain names should not be used for copyright infringement, but most registrars fail to take action in response.
Instead, many registrars simply note that it’s not their responsibility to act against pirate sites.
“We […] do not see how it is an appropriate response from a registrar to tell a complainant that it has investigated or responded appropriately to a copyright abuse complaint by stating it does not provide non-registrar related services to the site in question,” Sheckler writes.
In what appears to be a coordinated effort to pressure ICANN and other players in the domain name industry, the U.S. Government also chimed in last week.
According to the U.S. Trade Representative, Canada-based Tucows is reported as “an example of a registrar that fails to take action when notified of its clients’ infringing activity.”
Despite the critique, it’s far from clear that Tucows and other registrars are doing anything wrong. In fact, the Electronic Frontier Foundation
“Domain registrars do not have an obligation to respond to a random third party’s complaints about the behavior of a domain name user. Unless ordered by a court, registrars cannot be compelled to take down a website,” notes Jeremy Malcolm, EFF’s Senior Global Policy Analyst.
“What the entertainment industry groups are doing is exaggerating the obligations that registrars of global top-level domains (gTLDs) have under their agreement with ICANN to investigate reports of illegal activity by domain owners, an expansion of responsibilities that is, to put it mildly, extremely controversial, and not reflected in current laws or norms.”
Law or no law, the entertainment industry groups are not expected to back down. They hope that ICANN will help to convince registrars that pirate sites should be disconnected, whether they like it or not.