My latest Guardian column is "Why did an MPAA executive join the Internet Society?" which digs into the backstory on the appointment of former MPAA CTO Paul Brigner as North American director of the copyright-reforming, pro-net-neutrality Network Society group, which manages the .ORG domain name registry.
I asked Brigner whether his statements about DNS blocking and seizure and net neutrality had been sincere. "There are certainly a number of statements attributed to me that demonstrate my past thoughts on DNS and other issues," he answered. "I would not have stated them if I didn't believe them. But the true nature of my work was focused on trying to build bridges with the technology community and the content community and find solutions to our common problems. As I became more ingrained in the debate, I became more educated on the realities of these issues, and the reality is that a mandated technical solution just isn't a viable option for the future of the internet. When presented with the facts over time, it was clear I had to adjust my thinking.
"My views have evolved over the last year as I engaged with leading technologists on DNSSEC. Through those discussions, I came to believe that legislating technological approaches to fight copyright violations threatens the architecture of the internet. However, I do think that voluntary measures could be developed and implemented to help address the issue.
"I will most definitely advocate on Internet Society's behalf in favor of all issues listed, and I share the organization's views on all of those topics. I would not have joined the organisation otherwise, and I look forward to advocating on its behalf."
CISPA, the Cyber Intelligence Sharing and Protection Act of 2011 (H.R. 3523), is a successor, of sorts, to the loathesome SOPA legislative proposal, which was shot down in flames earlier this year. EFF's chilling analysis of the bill shows how it could be used to give copyright enforcers carte blanche to spy on Internet users and censoring the Internet (it would also give these powers to companies and governments who'd been embarrassed by sites like Wikileaks).
Under the proposed legislation, a company that protects itself or other companies against “cybersecurity threats” can “use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property” of the company under threat. But because “us[ing] cybersecurity systems” is incredibly vague, it could be interpreted to mean monitoring email, filtering content, or even blocking access to sites. A company acting on a “cybersecurity threat” would be able to bypass all existing laws, including laws prohibiting telcos from routinely monitoring communications, so long as it acted in “good faith.”
The broad language around what constitutes a cybersecurity threat leaves the door wide open for abuse. For example, the bill defines “cyber threat intelligence” and “cybersecurity purpose” to include “theft or misappropriation of private or government information, intellectual property, or personally identifiable information.”
Yes, intellectual property. It’s a little piece of SOPA wrapped up in a bill that’s supposedly designed to facilitate detection of and defense against cybersecurity threats. The language is so vague that an ISP could use it to monitor communications of subscribers for potential infringement of intellectual property. An ISP could even interpret this bill as allowing them to block accounts believed to be infringing, block access to websites like The Pirate Bay believed to carry infringing content, or take other measures provided they claimed it was motivated by cybersecurity concerns.
Former Senator Chris Dodd, head of the MPAA, has hinted to the Hollywood Reporter that he's already greasing the wheels for a new version of SOPA, though he's shy about revealing details because of the public outcry that might ensue. Dodd is the guy who went on the record to tell Obama that he would instruct his members to stop donating to the Democratic party because Obama didn't usher in the laws they wanted.
Dodd: I'm confident that's the case, but I'm not going to go into more detail because obviously if I do, it becomes counterproductive.
THR: Did you feel personally blindsided by Obama over SOPA?
Dodd: I'm not going to revisit the events of last winter. I'll only say to you that I'm confident he's using his good relationships in both communities to do exactly what you and I have been talking about.
This exchange comes days after the White House issued a report that urges a redoubling of efforts to crack down on piracy.
Hollywood and Obama should've learned: No form of censorship will be acceptable to Internet users, and we're fed up with corrupt, back-room deals that are driven by the rich and well-connected. Any major Internet policy changes should be negotiated in the light of day, so the millions of people who'd be affected can have their say too.
Please tell President Obama to reject Hollywood's backroom deals -- just add your name at right.
Test PAC, the Reddit-based PAC founded to raise money to support opponents of Lamar Smith, the author of SOPA, has placed its first billboard and is set to run its first advertisements. The materials direct people to unseatlamar.com. Ajpos from TestPAC explains:
Analytics take a few days to come in, and the billboard has been up for only about three hours.
I want to stress that the PAC has about 300 members right now and we have plans to air two commercials, so the billboard serves a few other purposes besides getting Texans to visit the website:
1.) This is an example of the internet flexing its muscles and showing that we can make political speech. This is Test PAC's first venture into the "real world" and shows that we have some teeth. The NYT, Guardian, and Forbes all wanted to do an article on us but ultimately decided not to until we've grown a bit. This is the first example of how we're growing.
2.) We hope this will generate some publicity nationally so people from other districts and states can generate more public support for the campaign. 300 members is not enough, in my opinion, to air two commercials.
3.) It also gives both Mack and Morgan something to use in their own campaigns. They can show how people besides their campaign staff are interested in them. We are a "tertiary" campaign, so we cannot do their campaigning for them, but this certainly helps.
Of course, we would absolutely be thrilled if we start getting hits from San Antonio, and I'll be disappointed if we don't, but it's not the end of the world.
Forbes's Carol Pinchefsky profiles "4 Public Interest Groups Who Are Fighting for Your Digital Freedom" including EFF, Public Knowledge, TechFreedom and the Center for Democracy and Technology. It's a great cross-section of the different approaches that activist groups take to technology and freedom (but I would lobby for the inclusion of some of the newer groups, like AmericanCensorship.org and DemandProgress.org, who were so key to the SOPA/PIPA fight). This is part one, focusing on Public Knowledge and EFF.
Cohn said, “We continue to battle the warrantless wiretapping that was started by the Bush administration and continued by the Obama administration. The administration has been trying to avoid a court looking at what they’re doing by hiding behind the state’s secrets privilege, so we’ve had to have a lot of fights around that.”
Among other battles, the EFF is fighting copyright trolls, people who “use copyright claims to try to shake down people. The business model is not about the lawsuit, it’s about the strategy of extracting money.” For example, Camelot Distribution Group blanketed the users of a peer-to-peer downloading site with threatening letters, claiming that the users illegally downloaded the “nunsploitation” movie, Nude Nuns with Big Guns.
According to Cohn, Camelot Distribution Group told users, “You can pay us a thousand dollars and this whole thing will go away.” She said, “People feel intimidated by this, whether or not they did it, because even if they fight this and they’re exonerated, they’re going to be forever linked to Nude Nuns with Big Guns.”
Worse, the lawsuits are usually created in locations that are geographically undesirable for the defendants, which makes it hard for them to defend themselves. Cohn said, “We’ve been filing amicus briefs and getting appointed by courts across the country to defend these people and to develop some processes that is more fair than the trolls want to do it.”
Mike sez, "With the Texas Primaries coming up in May, I thought you would be interested to know that some of the Redditors that were involved in the boycott on GoDaddy.com and 'Operation Pull Ryan' (where Reddit raised money for Rep. Paul Ryan's opponent), have started TestPAC, a non-connected, registered PAC, with the goal of defeating Lamar Smith in the Republican Primaries."
You'll remember Lamar Smith from such stupid Internet laws as SOPA and the Protecting Children from Internet Pornographers Act of 2011 (AKA "the Spy on Everyone Always Act"). He's a 25-year incumbent and a powerful committee chairman. And he's kind of a tool.
What we aim to do is a bit unorthodox: use Texas’ semi-open primary system to edge Smith out in favor of another Republican candidate. When voters identify themselves to the election officials, they must request a party’s specific ballot. As explained on Wikipedia:
Only one ballot is cast by each voter. In many states with semi-open primaries, election officials or poll workers from their respective parties record each voter’s choice of party and provide access to this information. The primary difference between a semi-open and open primary system is the use of a party-specific ballot. In a semi-open primary, a public declaration in front of the election judges is made and a party-specific ballot given to the voter to cast.
This means that Republicans, Independents and Democrats can participate in the choosing of either party’s candidate in the primary election. While Democrats who choose to participate in the Republican primaries are exempt from also voting for their own party’s candidate, it is important to note that their actions would speak volumes in regards to changing the political landscape in their district. Keeping in mind the fact that Smith has enjoyed comfortable margins of victory over the years in a district that heavily favors Republican candidates, a vote for another candidate in Texas’ open primary would possibly have a greater effect than simply voting in the Democratic primary and ultimately losing the race.
The long road of Canadian copyright reform is nearing an end as the Bill C-11 committee concluded hearing from witnesses yesterday and indicated that it will begin a "clause-by-clause" review of the bill starting on Monday. While there will still be some additional opportunities for debate - third reading in the House of Commons, Senate review - the reality is that next week's discussion will largely determine the future of Canadian copyright law.
For the thousands of Canadians that have participated in consultations and sent letters to their MPs, there is reason for concern. On one side, there are the major copyright lobby groups who have put forward a dizzying array of demands that would overhaul Bill C-11 including requiring Internet providers to block access to foreign sites, take down content without court oversight, and disclose subscriber information without a warrant. On top of those demands, the industry also wants individuals to face unlimited statutory damages and pay a new iPod tax.
On the other side, there are groups such as Access Copyright that are calling on their members to urge the government and committee MPs to undo the Supreme Court of Canada's CCH decision on fair dealing.
While many of these demands are clearly far beyond "technical amendments" and should be ruled out of order, the last minute push must be met by Canadians who favour a balanced approach to copyright reform that retains the best of Bill C-11 and makes some modest changes to digital locks, the one remaining area of concern. My message to the MPs focuses on three simple principles:
1. No SOPA-style amendments. That means no website blocking, no warrantless disclosure of subscriber information, no expanded enabler provision, no unlimited statutory damages, no iPod tax, and no content takedowns.
2. Maintain the fair dealing balance found in C-11 by expanding the provision to include education, parody, and satire and relying on the Supreme Court's six-factor test to ensure that the dealing is fair.
3. Amend the digital lock rules by following the Canadian Library Association's recommended change linking circumvention to actual copyright infringement.
The message is going to my local MP, the Ministers and to Bill C-11 committee members.
The Canadian committee on copyright reform conducts its final witness hearing today and not a moment too soon. Based on the demands from music industry witnesses this week, shutting down the Internet must surely be coming next. The week started with the Canadian Independent Music Association seeking changes to the enabler provision that would create liability risk for social networking sites, search engines, blogging platforms, video sites, and many other websites featuring third party contributions. It also called for a new iPod tax, an extension in the term of copyright, a removal of protections for user generated content, parody, and satire, as well as an unlimited statutory damage awards and a content takedown system with no court oversight. CIMA was followed by ADISQ, which wants its own lawful access approach that would require Internet providers to disclose subscriber information without court oversight based on allegations of infringement (the attack on fair dealing is covered in a separate post).
Yesterday the Canadian Music Publishers Association added to the demand list by pulling out the SOPA playbook and calling for website blocking provisions. The CMPA argued that Internet providers take an active role in shaping the Internet traffic on their systems and therefore it wants to "create a positive obligation for service providers to prevent the use of their services to infringe copyright by offshore sites."
The net effect of the music industry demands represents more than a stunning overhaul of Bill C-11 as it is effectively calling for a radical reform of the Internet in Canada. Taken together, the proposals would require Internet providers to block access to foreign sites, take down content without court oversight, and disclose subscriber information without a warrant. On top of those demands, the industry also wants individuals to face unlimited statutory damages and pay a new iPod tax. It also wants an expanded enabler provision that is so broadly defined as potentially capture social networking sites and search engines.
The "Irish SOPA" law, which makes provision for arbitrary, ISP-level national censorship without court orders, has been signed -- despite the law's unpopularity and the widespread protests against it.
The Irish Minister for Research and Innovation, Sean Sherlock, is insisting that the final version of the bill is much more limited than earlier proposals, and that it took guidance from recent EU Court of Justice rulings that say ISPs shouldn't have to be proactive about blocking. That still means that copyright holders can petition to force ISPs to block all access to various websites, and as we've seen in other countries in Europe, you can bet that the major record labels and studios will be doing just that very soon (if they haven't already) -- though their track record on properly calling out infringement isn't very good.
Lamar Smith (R-TX), author of the ill-starred SOPA Internet regulation, has an even dumber idea for the Internet. In the name of fighting child pornography, he wants to force ISPs to log everything you do online, then make it available to police and government agents without a warrant. Leslie Meredith has a writeup on the mounting opposition to Smith's latest act of unconstitutional lunacy:
However, under Smith’s bill, records of both suspects and ordinary citizens would all be available to any government agency at any time, no warrant required.
"This type of legislation goes against the fundamental values of our country where individuals are treated as innocent until proven guilty," Reitman said. "H.R. 1981 would uproot this core American principle, forcing ISPs to treat everyone like a potential criminal."
The bill has been forwarded from committee to the full House of Representatives for consideration, which is expected later this year. There is no sign of a Senate version at this time.
If the past is any indicator, Smith may be in for a hard fight with activists. He was also sponsor of the Stop Online Piracy Act (SOPA) bill that would have shut off access to foreign websites accused of hosting pirated content. But he was forced to withdraw the legislation after massive protests by many of the same opponents who likewise thought the remedy was too harsh for the problem.
James from New America Foundation sez, "Mike Masnick has done an incredible job covering copyright issues and the SOPA debates at Techdirt but today he had a troubling post: an important post on why SOPA/PIPA are misguided has been removed from Google over a DCMA request. Mike writes:"
We've talked a lot about how copyright law and the DMCA can be abused to take down legitimate, non-infringing content, interfering with one's free speech rights. And we're always brushed off by copyright maximalists, who insist that any complaints about taking down legitimate speech are overblown.
So isn't it interesting that we've just discovered that our own key anti-SOPA blog post and discussion... have been blocked thanks to a bogus DMCA takedown?
You'd think that the proponents of SOPA would give up that legislative dead parrot's ghost. But they're still doing the rounds on radio and in print, claiming that millions of Americans were 'duped' into opposing their harmless little internet censorship law.
The fresh (!) talking points go like this: Wikipedia, Reddit, Boing Boing and others 'lied' to the public about what SOPA was in the crucial final moments, 'abused our power' by going dark for a day, and thereby tricked legislators and the public into turning on a much-needed new law.
Aaron Swartz, the young activist and entrepreneur who kicked off the fight against SOPA and PIPA, talks strategy and tactics with the MIT Technology Review, and makes a lot of important points about the way that the future's information wars will be fought.
Swartz: I first heard of the bill shortly after it was introduced in September 2010—back then it was called something else. They kept changing the name. I heard about it and quickly put together a website, which ended up becoming Demand Progress, to try to make people aware of the issues. Their plan was to rush it through a vote before anyone could have a chance to raise any objections.
Very quickly our protest started going viral. Several hundred thousand people signed the petition, and the vote was delayed. And that began this long fight. Since then, my engagement has been on and off. I've had other things to do but have tried to be a catalyst at key moments. The main thing was the incredible community building. That was basically what stopped it in the end.
Michael Geist sez, "Barry Sookman, lawyer and registered lobbyist for the Canadian Recording Industry Association (now Music Canada), the Motion Pictures Association - Canada, and Canadian Publishers Council, has an op-ed in the National Post claiming that concerns that proposed amendments to Bill C-11 could result in SOPA-style rules in Canada are the stuff of wild claims and hysteria.
"The short response is that Sookman's column - along with his clients - downplay the dramatic impact of their proposed amendments. Their proposed amendments to C-11 would radically alter the bill by constraining consumer provisions, heaping greater liability risk on Internet companies, and introducing website blocking and Internet termination to Canada. Several of these provisions are very similar in approach to SOPA in the U.S. and the comparison is both apt and accurate. Moreover, the column leaves the false impression that Bill C-11's digital lock rules are standard when they are widely opposed by numerous stakeholders that Sookman would not dare to call anti-copyright. There is much more to take issue with in the column and I've done so in paragraph-by-paragraph format in the post."
Michael Geist sez, "I've posted a video version of a recent talk on SOPA activism and what it means for the next generation of global copyright agreements such as the Anti-Counterfeiting Trade Agreement and the Trans Pacific Partnership. The talk is about an hour as it also assesses the global strategies employed by the U.S. and copyright lobby groups of shifting away from WIPO toward closed negotiations (like ACTA) and domestic copyright pressure (like the Canada's Bill C-11, which is a combination of DMCA + potentially SOPA)."
The reports that the music industry lobby (along with the Entertainment Software Association of Canada and the movie lobby) is seeking the inclusion of SOPA-style provisions into Canadian copyright has generated considerable discussion online and in the mainstream media. Yesterday, Balanced Copyright for Canada, the group backed by the music industry, fired back with several tweets claiming that opposing their reforms would benefit "illegal BitTorrent sites"and "illegal hosting sites." Leaving aside the fact that if these sites are illegal, they are by-definition already in violation of current law, the claims point to what seems likely to become a SOPA-like scare campaign that seeks to paint skeptics of CRIA demands as supporters of piracy.
The music industry claims to be a big supporter of Bill C-11, yet few groups have demanded more changes. In fact, when it appeared before the House of Commons committee reviewing the bill, one MP noted that their demands were "substantial" and "anything but minor." Their demands include:
- expansion of the enabler provision to include SOPA-style expanded liability
- create new injunction powers to block websites
- create new injunction powers to remove content from websites
- require ISPs to implement a policy on repeat infringers that could include Internet termination
- remove the non-commercial liability cap for statutory damages
- restrict the user-generated content provision
- create new limits on personal copying exception
- create new limits on time shifting exception
- create additional limits on backup copy provision
- limit the safe harbour for ISPs
- limit the safe harbour for caching activities
- limit the safe harbour for hosting content
- limit the search engine (ILT) exception
- eliminate the ephemeral recording amendment