Back in December, when the Sony emails first leaked, we wrote about how Sony hired super-high-powered lawyer David Boies to send off ridiculously misinformed letters to media outlets warning them that they should not write anything based on information in the leaks. Boies took it a ridiculous step further, threatening to sue Twitter for not blocking screenshots of the emails. Both threats had no real legal basis.
Of course, now that the emails are in the news again, thanks to Wikileaks posting the archive online and making it searchable, Sony is apparently shelling out more big bucks to Boies to send around another version of the letter. You can see the letter here or at the bottom of the post.
Once again, the legal reasoning in the letter is… questionable at best. The included attack on Wikileaks is even more confused, arguing that freeing up this information helps North Korean censorship. It’s difficult to see how that’s really true, but okay. But the really ridiculous part is arguing that the media should not publish this information to support the First Amendment. Really.
Sony Entertainment CEO Michael Lynton mulled pulling strings to get UK culture minister Ed Vaizey fired to replace him with the grandson of former prime minister Harold MacMillan.
Vaizey, a democratically elected Tory moderniser, oversaw “digital industries” for Britain’s Coalition government – from broadband to copyright shakeups. He was comfortably reelected in 2010, and slotted into the Ministry of Fun by Prime Minister David Cameron.
The revelation that Sony’s powerful Lynton wanted shot of Vaizey emerged fresh from the mountain of emails and documents leaked from Sony Pictures by hackers, all of which were bunged into a searchable online database by WikiLeaks this week.
Brit-born Lynton was sharing breakfast with Bella Pollen – a UK socialite, journalist, and novelist – in Los Angeles in August last year when he fired off an email to her husband David MacMillan, publisher and grandson of former Prime Minister Harold MacMillan, that read:
I am sitting here with Bella and conspiring as to how to make you Minister of Culture and Sport. You are perfectly qualified. First step is to get Ed Vaizey fired. I will do this with George Osborne. Next step is to get you appointed. This requires you meeting Charles Dunstone and having him recommend you. I will make the introduction in September. The games afoot !!!
Dunstone – chairman of Carphone Warehouse – is a big contributor to the Conservative party.
Two hours later, MacMillan, in the UK at the time, responded:
Need to be elected to parliament or raised to the peerage to proceed further with your plan, but love the idea Like all being in Charles Dunston’s gift, Think Osborne will be fearful of Vaizey as he wishes to avoid the publication of various school time photos … or maybe he feels comfortable with his past.
Yesterday we talked about the ridiculousness of President Obama’s new cybersecurity executive order, in which he declares a national emergency around “malicious cyber-enabled activities” and enables his own government to do mean things to anyone they think is responsible for cyber badness (that his own NSA is the primary instigator of serious cyberattacks gets left ignored, of course). One of the points we made is that the definitions in the executive agreement were really vague, meaning that it’s likely that they could be abused in all sorts of ways that we wouldn’t normally think of as malicious hacking.
Helpfully, the ever vigilant Marcey Wheeler has provided some examples of how the vague language can and likely will be twisted:
The EO targets not just the hackers themselves, but also those who benefit from or materially support hacks. The targeting of those who are “responsible for or complicit in … the receipt or use for commercial or competitive advantage … by a commercial entity, outside the United States of trade secrets misappropriated through cyber-enabled means, … where the misappropriation of such trade secrets is reasonably likely to result in, or has materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States” could be used to target journalism abroad. Does WikiLeaks’ publication of secret Trans-Pacific Partnership negotiations qualify? Does Guardian’s publication of contractors’ involvement in NSA hacking?
And, that’s not all. How about encryption providers? Not too hard to see how they might qualify:
And the EO creates a “material support” category similar to the one that, in the terrorism context, has been ripe for abuse. Its targets include those who have “provided … material, or technological support for, or goods or services in support of” such significant hacks. Does that include encryption providers? Does it include other privacy protections?And the EO creates a “material support” category similar to the one that, in the terrorism context, has been ripe for abuse. Its targets include those who have “provided … material, or technological support for, or goods or services in support of” such significant hacks. Does that include encryption providers? Does it include other privacy protections?
We’ve already seen some — including government officials — argue that Twitter could be deemed to be providing “material support” to ISIS if it didn’t take down Twitter accounts that support ISIS. Twitter wouldn’t directly qualify under this executive order (which targets non-US actors), but it shows you how easy it is to stretch this kind of thinking in dangerous ways.
Making sure the technology we use every day is secure is important. But vaguely worded executive orders and an over-hyped “national emergency” isn’t the solution. Instead, it’s likely to be abused in serious ways that harm our freedoms.
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.