Legislative Analysis
MPAA Asks Obama for More Copyright Surveillance of the Internet
Legislative Analysis by Tim JonesAs part of their commitment to transparent and open government, the Obama Transition Team is posting the lobbying agendas of the groups it meets with for public review and comment. One of the more interesting documents to be found there is the Motion Picture Association of America's "international trade" agenda.
Some of the MPAA's agenda is reasonable, such as cracking down on commercial optical disc piracy. But much of it, if adopted, would result in a substantially less free and safe internet, at little or no actual benefit to the artists and workers the MPAA claims to represent.
Of course, this may not be immediately clear when reading the document, since it's all couched in DC lobbyist-speak. Here, then, is a guide to understanding what's really being talked about.
First:
"Achieving inter-industry cooperation in the fight against online piracy, including through automated detection and removal of infringing content is imperative to curb the theft of online content...
This kind of automated-detection technology has long been a favorite fantasy of the MPAA and affiliates. They've pushed for it on US campuses, in US states, in US trade law [PDF], and in Europe, so it's hardly surprising to see them pushing for country-wide requirements at the federal level.
The MPAA's faith in "filtering" is pure magical thinking. It presupposes invading the privacy of innocents and pirates alike by monitoring every packet on the Internet (which is bad enough when the NSA does it). And it ignores the reality of strong encryption, which will utterly defeat network filtering techniques (thus necessitating more intrusive alternatives — how about a copyright surveillance rootkit on every PC?). Sacrificing our privacy for the pipe-dreams of one industry is a bad idea.
These reasons and more were outlined by EFF in a 2005 white paper, and again last January in a memo to European lawmakers [PDF].
Next up:
"MPAA views recent efforts by the Governments of France and the United Kingdom to protect content on-line and facilitate inter-industry cooperation as useful models.
Here, the MPAA is advocating for a number of things, the most problematic of which is a "three strikes" internet termination policy. This would require ISPs to terminate customers' internet accounts upon a rights-holder's repeat allegation of copyright ingfringement. This could be done potentially without any due process or judicial review. A three-strikes policy was recently adopted by the French Senate, and may become the law if adopted by the French National Assembly next year.
Because three-strikes policies do not guarantee due process or judicial oversight of whether the accusations of copyright infringement are valid, they effectively grant the content industry the ability to exile any individual they want from the internet. Lest we forget, there is a history of innocents getting caught up in these anti-piracy dragnets. (Copyfighter Cory Doctorow has wondered what would happen if the MPAA's erroneous notices were subject to a similar three-strikes law.)
Thankfully, members of the European Parliament vehemently rejected these measures, resolving that "The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion." Let's hope the US government's decisions on this are as wise.
EFF outlined these concerns and more in our September 2008 comments to the US Trade Representative [PDF].
And, finally:
"MPAA has identified the following countries for priority trade policy attention in 2009: Canada, China, India, Mexico, Russia and Spain.
Translation: Not satisfied with wrecking the internet for US citizens alone, the MPAA would like the US government to pressure foreign governments to adopt the same harmful measures. This is made explicit by a look at, for instance, the International Intellectual Property Association's 2008 one-sheets on Canada [PDF] and Spain [PDF]: The MPAA wants these governments to institute mandatory internet filtering and three-strikes laws. Canada is being singled out by the MPAA because of its sensible rejection of the Canadian version of the US's deeply flawed Digital Millenium Copyright Act. In Spain, the MPAA is frustrated with rulings in 2006 that failed to punish Spanish citizens sufficiently harshly for file-sharing.
This week in the San Jose Mercury News, Ed Black, CEO of the Computer & Communications Industry Association, described how adoption of the MPAA's international trade demands would deeply set back US innovation and foreign policy.
How the Obama administration will react to these demands remains to be seen. The adoption of a Creative Commons license for Change.gov content indicates that there just might at long last be a seat at the table in the White House for smart thinking on copyright issues. Hopefully the Obama Administration will prove strong enough to stand up to the MPAA's lobbying, and instead institute positive reforms of US copyright law.
If you'd like to share your thoughts on this matter with the Obama Transition Team, the MPAA's agenda is open to public review and comment on Change.gov.
Updated Dec 15: The original post mistakenly indicated that France's three-strikes law had already gone into effect.
A Transparency Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the final post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on government transparency. Previously, we've written about surveillance and intellectual property.
The past eight years have seen an increase in government secrecy and a decrease in government accountability. These factors have led to record levels of distrust in our government. Here are three steps the new leadership should take to begin to restore that trust:
Leverage new technology to provide authoritative government data. It's notoriously difficult or impossible to find and manage data on legislation (both passed and proposed), on election day polling locations, on the boundaries of Congressional districts, and on government spending. All of these should be made available online for the federal and state levels, in open formats, with no intellectual property restrictions on their use, distribution or ownership.
Review the entire information-classification infrastructure and reform it to create meaningful oversight. This system has been repeatedly abused by the White House. It leaves far too much discretion in administration hands, allowing them to "capture" legislators who want to be "in the loop," forbidding them from conducting any serious investigation into the administration's illegal or questionable practices.
Restore strength to the Freedom of Information Act (FOIA). Encourage government agencies to produce documents, instead of withholding documents under overbroad pretenses. This will allow the government to assist in uncovering misconduct. A good start would be to re-introduce and pass the Faster FOIA Act.
An Innovation Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the second post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on innovation, fair use and intellectual property. On Friday, we posted about privacy and surveillance, and tomorrow we'll discuss government transparency.
Today's intellectual property (IP) laws frequently fail to strike the proper balance between the rights of creators, copyright holders and the public. Powerful companies interested in maximizing their investments in intellectual property have run roughshod over the people's fair use rights. This has been especially problematic given the explosion of user generated content sites like YouTube, which celebrate creativity and innovation and actively encourage a remix culture. It is our hope that our government leaders will work to bring balance to the law. Here are some suggestions to get things started:
Repair the Digital Millennium Copyright Act (DMCA). Eliminate the ability of copyright holders to get statutory damages for noncommercial violations of copyright laws. Require proof of actual damages prior to any award based on copyright liability. Raise the requirements for content owners to receive preliminary injunctions against technologies in copyright cases. Congress should pass the FAIR USE Act and the Orphan Works Act.
Reform the U.S. Patent and Trademark Office (PTO), emphasizing its role to promote, rather than impede, innovation. Patents, by constitutional design, are supposed to "promote the Progress of Science and useful Arts." All too often today, patents are used to hold innovation hostage. Patent office procedures should be reviewed to ensure that patent examiners are being given the tools and incentives they need to challenge overbroad patent applications. Simultaneously, avenues for post-grant administrative review procedures should be broadened, ensuring that public interest groups can continue to raise post-grant challenges without restrictive time limitations on their participation.
Don't let the content industry use our government resources to pressure universities and others to participate in their intimidating peer-to-peer dragnet operations.
Show caution before regulating the use of technologies that limit consumer choice or consumer rights. In the United States and abroad, our government should advocate for policies that promote the ability of consumers to use technology they purchase however they choose.
A Privacy Agenda For The New Administration
Legislative Analysis by Tim JonesThis is the first post in a three part series directed at restoring some of the civil liberties we've lost over the past eight years. Today's post is about our privacy rights. We'll follow this up early next week with our thoughts on intellectual property rights and government transparency.
As new leaders prepare to move into the White House and Congress over the next few months, we'd like to call on them to restore Americans' privacy rights. Here's a little "wish list" we'd like to put forward:
Repeal or repair the FISA Amendments Act (FISAAA). There are a great many flaws in FISAAA, which was passed last Summer after a long and difficult fight. Most significantly, the provisions granting retroactive immunity from litigation to telecommunications companies complicit in the Bush Administration's warrantless wiretapping program should be repealed so that the millions of Americans who have been illegally surveilled can have their day in court.
Reform the Electronic Communications Privacy Act (ECPA). ECPA is a major law restricting the government's ability to surveil citizens and is in desperate need of reform. It has become dangerously out-of-sync with recent technological developments and Americans' expectation of online privacy. In particular, the privacy of personal data should not depend on how long an ISP has stored that data or whether the data is stored locally or remotely.
Reform the State Secrets Privilege. The State Secrets Privilege has been radically abused by the Bush Administration, particularly to shield its electronic surveillance activity from judicial review. The new administration should voluntarily reduce its use of the privilege, and work with Congress to reform the privilege and insure that claims of state secrecy are subject to independent judicial scrutiny.
Scale back the use of National Security Letters to gag and acquire data from online service providers. The REAL ID Act, with its requirement that Americans carry a national ID card, has been rejected by many U.S. states and should be federally repealed. Large-scale government data collection and data-mining projects like Automated Targeting System (ATS) should be reduced or eliminated. Invasive border-searches of electronic devices should be stopped.
DoJ Agrees: IP Enforcement Bill is a Bad Idea
Legislative Analysis by Fred von LohmannYesterday, the Department of Justice delivered a letter to Senators Specter and Leahy, blasting S.3325, the "Enforcement of Intellectual Property Right Act of 2008." In the letter, the DoJ echoes, almost exactly, the concerns that EFF and other public interest groups have had for months:
We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure "restitution" damages and remit them to the private owners of infringed copyrights. First, civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and U.S. law already provides them with effective legal tools to protect their rights....
Second, Title 1's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.
Third, the Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the Department of Justice may bring. In an era of fiscal responsibility, the resources of the Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions.
Unfortunately, pressed by the entertainment industry, the Judiciary Committee has already approved S.3325, and the measure has been "hotlined" for speedy passage by unanimous consent. Let's hope that Congress, even if it won't listen to the public interest community, will listen when the Department of Justice itself says this is bad legislation.
UPDATE: Congress listens! At the request of Senator Ron Wyden of Oregon, the civil enforcement provisions have been stripped out of S.3325:
I am happy to announce that after substantial discussions Chairman Leahy and the Senate Judiciary Committee have agreed to remove provisions from S.3325 that would have resulted in a massive gift of scarce federal resources to Hollywood and the recording industry.
