voluntary agreements – Techdirt (original) (raw)

from the and-who-cares-what-you-think? dept

As Techdirt readers know, the copyright industry has almost no means to tackle infringement, or to demand that pirated materials are removed from Internet sites. At least, that’s the impression you would get as a result of the constant whining you hear from the entertainment companies that they are doomed and terribly neglected by the lawmakers. Indeed, not content with the copyright ratchet that constantly makes copyright laws longer, stronger and broader, the film, music and publishing industries are always pushing for “voluntary” agreements with the Internet industry that don’t require anything so tiresome as actual laws to be passed… or pesky things like “due process.”

One example of this approach is the “six strikes” scheme in the US. As Techdirt noted recently, the approach was a complete failure, and has just been dropped. Unfortunately, the idea lives on around the world — the EFF has an entire section on its site about what it calls “shadow regulation,” and it has just published a global review of copyright enforcement agreements. Particularly troubling are the EU’s proposals for a new copyright directive, which would require:

large user-generated content platforms to reach agreements with copyright holders to adopt automated technologies that would scan content that users upload, and either block that content or pay royalties for it.

As the EFF notes, the reason why these would be “voluntary” deals is pretty clear:

The Commission is likely taking that approach because that it knows that it can’t directly require Internet platforms to scan content that users upload — an existing law, Article 14 of the Directive 2000/31 on electronic commerce (E-commerce Directive), expressly prohibits any such requirement.

That is, it would be impossible to make this a legal requirement, because it is forbidden by another key EU directive, but “voluntary” agreements can skirt that law, which is another reason they are so insidious. The EU’s revised copyright directive is still at an early stage of discussion, so there is some hope that this harmful proposal can be fought and removed. Sadly, that’s not the case in the UK, where it seems that search engines have had their arms twisted to sign up to another “voluntary” agreement, with the threat of new laws being brought in if they don’t. As a post on TorrentFreak explains:

Google and other search companies are close to striking a voluntary agreement with entertainment companies to tackle the appearance of infringing content links in search results. Following roundtable discussions chaired by the UK’s Intellectual Property Office, all parties have agreed that the code should take effect by June 1, 2017.

TorrentFreak quotes a revealing comment made by the UK government minister that has been leading the talks, Baroness Buscombe:

“The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined,” she said.

The fact that the talks were “bilateral,” involving only entertainment companies and search engines, exposes one of the worst features of these so-called “voluntary” agreements: that there is no open debate of the kind that would be standard when actual legislation was involved, nor any opportunity for ordinary people to contribute. Instead, closed-door discussions produce deals that may be satisfactory for the copyright industry, and bearable for the Internet companies, but which are uniformly bad for the general public, whose views are simply not considered relevant.

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Filed Under: copyright, due process, removing content, search engines, shadow regulations, uk, voluntary agreements

Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead

from the about-time dept

The pointless “six strikes” plan — a hilarious “voluntary agreement” between some big ISPs and the MPAA & RIAAis no more. It’s dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure — and we’ll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) “voluntary” agreement on a six strikes program to deal with “repeat infringers.” There was a lot of history behind this, which we won’t rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they’re caught infringing three times, that would magically make piracy go away. They got a “three strikes” law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn’t from the MPAA and RIAA predicted.

In the US, it became clear that there wasn’t the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence — until the “six strikes” deal was announced. The “compromise” was that (1) it was six strikes instead of three and (2) after six strikes… nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn’t magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great — even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it’s dead:

Major internet providers are ending a four-year-old system in which consumers received ?copyright alerts? when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

?These repeat infringers are the ones who drive ongoing and problematic P2P piracy,? Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. ?In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ?

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We’ve been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn’t getting this lesson. It’s doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate “repeat infringers” but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that’s going to be super important. If BMG’s win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don’t want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood’s focus on control shouldn’t ruin people’s lives?

Filed Under: copyright, dmca, dmca 512, isps, six strikes, three strikes, voluntary agreements
Companies: bmg, cci, cox, mpaa, riaa

Paypal Cuts Off Mega Because It Actually Keeps Your Files Secret

from the doesn't-paypal-like-encryption? dept

There are way too many stories of Paypal unfairly and ridiculously cutting off services that rely on it as a payment mechanism, but here’s yet another one. Mega, the cloud storage provider that is perhaps well-known for being Kim Dotcom’s “comeback” act after the US government shut down Megaupload, has had its Paypal account cut off. The company claims that Paypal was pressured by Visa and Mastercard to cut it off:

Visa and MasterCard then pressured PayPal to cease providing payment services to MEGA.

MEGA provided extensive statistics and other evidence showing that MEGA’s business is legitimate and legally compliant. After discussions that appeared to satisfy PayPal?s queries, MEGA authorised PayPal to share that material with Visa and MasterCard. Eventually PayPal made a non-negotiable decision to immediately terminate services to MEGA. PayPal has apologised for this situation and confirmed that MEGA management are upstanding and acting in good faith. PayPal acknowledged that the business is legitimate, but advised that a key concern was that MEGA has a unique model with its end-to-end encryption which leads to ?unknowability of what is on the platform?.

MEGA has demonstrated that it is as compliant with its legal obligations as USA cloud storage services operated by Google, Microsoft, Apple, Dropbox, Box, Spideroak etc, but PayPal has advised that MEGA’s “unique encryption model” presents an insurmountable difficulty.

That last line is particularly bizarre, given that if anyone recognizes the value of encryption it should be a freaking payments company. And, of course, Paypal can’t know what’s stored on any of those other platforms, so why is it being pressured to cut off Mega?

Mega’s theory — which is mostly reasonable — is that because Mega was mistakenly listed in a report released by the “Digital Citizens Alliance” that insisted Mega was a rogue cyberlocker storing infringing content, that payment companies were told to cut it off. If true, this is problematic on multiple levels. The methodology of the report was absolutely ridiculous. Because most Mega files are stored privately (like any Dropbox or Box or Google Drive account), the researchers at NetNames have no idea what’s actually being stored there or if it’s being done perfectly legitimately. Instead, they found a few links to infringing works, and then extrapolated. That’s just bad research practices.

Furthermore, the Digital Citizens Alliance is hardly an unbiased third party. It’s an MPAA front group that was the key force in the MPAA’s (now revealed) secret plan to have states attorneys general attack Google. Think the MPAA has reasons to try to go after any potential revenue source for Kim Dotcom? Remember, taking down Megaupload and winning in court against Dotcom was a key focus of the company since 2010 or so, and Dotcom recently noted that he’s out of money and pleading with the court to release some of the funds seized by the government to continue to fight his case. The lawyers who represented him all along quit late last year when he ran out of money. It seems like the MPAA might have ulterior motives in naming Mega to that list, don’t you think?

And, this all goes back to this dangerous effort by the White House a few years ago to set up these “voluntary agreements” in which payment companies would agree to cut off service to sites that the entertainment industry declared “bad.” There’s no due process. There’s no adjudication. There’s just one industry getting to declare websites it doesn’t like as “bad” and all payment companies refusing to serve it. This seems like a pretty big problem.

Filed Under: cloud, copyright, encryption, payments, voluntary agreements
Companies: digital citizens alliance, mastercard, mega, megaupload, mpaa, paypal, visa

Senator Whitehouse Is Very Angry About A Made Up Google Search And A Made Up Pirate Bay

from the something-must-be-done dept

Senator Sheldon Whitehouse was a strong supporter of the SOPA/PIPA approach to breaking the internet to appease Hollywood. Even as lots of others bailed out on their support of the bills, Whitehouse refused to change his position. It appears he’d like to push such a solution again. On Wednesday, the Senate held hearings for the nominees for both the head of the US Patent and Trademark Office, Michelle Lee, as well as the new “Intellectual Property Enforcement Coordinator” (IPEC), Dan Marti. Marti is a bit of a wildcard, with most of his legal practice related to intellectual property being focused on trademark, rather than copyright. So it was worth paying attention to what he had to say in response to the questions. However the most bizarre and ridiculous question came from Senator Whitehouse, who proved to be rather confused about how both the internet and copyright law worked. You can see the full video here. Whitehouse begins talking around the one hour, 35 minute mark. He kicks it off by displaying his ignorance. First, he refers to Marti’s predecessor, Victoria Espinel, and how he had asked her to do more to stomp out piracy, and then launches into a statement almost entirely devoid of factual statements:

I can remember Ms. Espinel coming here, some time ago to talk about the progress she intended to make in dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers, and that they were going to work really hard, with other American corporations that were supporting that activity to try to knock it down.

So while we were having this hearing, I picked up my iPad, and I went to Google, and I Googled “pirate movie.” And Google gave me “The Pirate Bay” [holds up his iPad] which is an illegal enterprise, operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says “get access now” and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.

It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. [Incredulous expression]. Explain to me how there’s been progress made.

Almost everything Senator Whitehouse said in this statement is either wrong or totally clueless. It does not speak well of him as a Senator to be so misinformed about some rather basic things. First, there are the basics. A search engine is not and should not be illegal. Yet, Senator Whitehouse doesn’t seem to understand the different role of a system like The Pirate Bay from a site that actually hosts or uploads infringing content. Second, at the time of the hearing, the Pirate Bay is down, so his claims pretending to show the site are clearly a lie. It’s been in the news a lot that the site is gone. You’d think some staffer would have told Senator Whitehouse not to use that example.

Third, a Google search on “pirate movie” does not link to The Pirate Bay at all. Here’s the search done on Google:

Note that it actually highlights a 1982 movie, and even points people to Amazon where they can purchase it. Nowhere on the page does it point anyone to The Pirate Bay or any other site from which you can download infringing content. Not even close.

Senator Whitehouse appears to be flat out lying about what happens when you do such a search on Google, and then compounding it by lying about going to The Pirate Bay. On top of that, his description of what he claims he saw on The Pirate Bay appears to be totally false as well. And while some of my critics may find this difficult to believe, I’ve never used the site (other than occasionally reading some of its blog posts) so I reached out, via Twitter, to multiple people who had used the site regularly to see if his description was accurate. None could ever remember seeing credit card logos or Apple/Android logos. And, why would they, really, since the content found on The Pirate Bay was usually just pure files and available for free. So there would be no need to post credit card logos or even device compatibility, since that would depend more on the kinds of apps you used to view/listen/read the files obtained. Yes, there were tons of ads on the site, people point out, but they tended to be for crappy porn sites and the like.

In other words, almost every detail of what Senator Whitehouse describes is a lie. He may be describing some other site, but he didn’t find it with the search he described and it wasn’t The Pirate Bay. And even if there were logos from American companies, anyone can set up a website with such logos and it means nothing about whether they’re complicit.

And then he demands that something must be done?

Marti barely gets half a robotic sentence out in response, saying that “criminal actors, criminal enterprises have no limits” when Whitehouse cuts him off with some more nonsense:

They actually do! [Holds up iPad again] There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There’s a lot that can be done in this area, it seems to me!

Marti points out that he was talking about something entirely different — that sites will of course put up logos to make themselves try to look legit (though he doesn’t go so far as to point out that Senator Whitehouse’s suggestion that because a site puts up a logo, that doesn’t mean the company whose logo was put up isn’t “aiding and abetting” a damn thing).

Even more to the point, Whitehouse’s claim that companies can “go to court and try to knock this stuff down” also makes no sense. Under what law? What legal issue is there in the (fake) circumstances that Whitehouse describes? At most, there might be a trademark violation, and does he really think it’s worth company’s time to go after such fly-by-night sites for trademark violations? And the whole “aiding and abetting” claim is ridiculous. Is Senator Whitehouse honestly claiming that if a site that offers up infringing works notes that the works can work on Apple or Android that Apple or Google are “accessories” to a crime? Isn’t a Senator supposed to understand the law?

Whitehouse then turns to Michelle Lee, who used to work at Google, but on patent policy, not copyright, and asks her if Google could stop this. Though, again, he’s flat out lying about what Google is supposedly doing. It’s a bizarre question. And Lee just says she doesn’t know the answer to that question (how could she when it makes no sense). Whitehouse gives a sarcastic “Hmm!” in response, as if he’s discovered something — other than actually revealing his astounding ignorance. He further claims that because Lee was a deputy general counsel at Google (again on patents, not copyright issues) that it shows that Google didn’t really care about this issue. Really?

Finally, he appears to attack Marti for not having done anything, despite the fact he’s not in the job yet, and then claims that all of this proves that the “voluntary” process that Espinel championed (like the ridiculous “six strikes” agreements between some ISPs and the legacy entertainment companies) is not enough. He seems to clearly be hinting that we need more government action, or more SOPA-type laws, based on an entirely false scenario that either he or his staffers (or some… lobbyists) made up and handed to him. Instead, all it shows is him getting angry in a manner that displays his near total ignorance of the topic at hand.

Is it really too much to ask that the people who make the laws impacting technology not be totally ignorant about both the laws and the technology? Frankly, Senator Whitehouse owes Marti, Lee and basically all internet users an apology.

Filed Under: copyright, danny marti, ip czar, ipec, michelle lee, search, senate, sheldon whitehouse, sopa, voluntary agreements
Companies: google, the pirate bay

Leaked TPP IP Chapter Would Lead To Much Greater Online Surveillance… Because Hollywood Still Hates The Internet

from the shameful dept

We already wrote a big piece about the latest leaked copy of the Trans Pacific Partnership (TPP) agreement text. However, there were a few additional areas in the leaked text that deserve further scrutiny, so we’ll be having a few more posts. One significant concern is how the TPP is likely to lead to much greater surveillance by ISPs on your online surfing habits — all in the name of “copyright” of course:

Draft rules under negotiation would impose on Internet service providers a legal obligation to fight against online copyright infringement. This obligation is embodied in several provisions, which would require, for example, ISPs to communicate to their users any supposed infringement committed through their accounts, take down from the Internet information that supposedly infringes on copyright, and collect information that allows identification of users that supposedly have infringed the law.

While the text of the actual agreement sounds like it’s just internationalizing the DMCA (already problematic), it’s actually worse. Subtle language choices make a big, big difference.

First, the TPP includes provisions that would extend spying obligations not only to entities that provide Internet services, but to ?any person,? thus, not only Internet-related companies would be required to enforce the law, but ?any person,? whether human or otherwise. Rights holders would likely interpret this obligation as applying to the manager of a free-wifi zone at Starbucks or your favorite neighborhood cafe, to public libraries and schools, as well as to that neighbor of yours who shares her wifi by keeping it accessible and open.

Second, TPP provisions do not seem to limit this spying to the Internet. Instead they refer to online providers, which may extend the scope of the law to other digital networks, such as intranets and private networks. What does this mean? It means that not only ISPs would be spying on you by collecting user data to protect Hollywood?s copyrights, but also other providers of online services, like the private network you use at your workplace, at your university, or even at your kid?s school, even if those networks do not provide actual access to or from the Internet.

Although the TPP states that Internet service providers would not be required by law to ?monitor? users, it encourages this practice. Therefore, the TPP would leave open the door for private agreements between copyright holders (such as the Recording Industry Association of America and the Motion Picture Association of America) and Internet companies for enforcing the law against Internet users (for example, see the Center for Copyright Information). This raises concerns about powerful content industry players working together to promote abusive practices to enforce their interests against supposed infringers, since, in order to prevent any liability, online service providers may collaborate with rights holders to enforce copyrights beyond what is required by the law.

It’s that last part that is the most troubling. Over the last few years, after Hollywood lost the SOPA fight and realized that legislation was more difficult, it’s now seeking these so-called “voluntary” agreements — even when they’re really done by the government with the threat of regulations if an agreement isn’t reached. These kinds of campaigns are hardly “voluntary” in reality, and are generally designed to get Hollywood everything it wants without having to through any sort of democratic process. Kind of like trade agreements.

Is it any wonder why the USTR has been so adamant about keeping the details of this agreement a secret?

Filed Under: copyright, infringement, internet, liability, networks, surveillance, tpp, ustr, voluntary agreements