October 14, 2008
Ugh. I’ve been ranting about this idea for a while, but now it’s actually come to pass. Thank the folks at RIAA, MPAA, the entertainment industry lobbyists, and their hired guns friends in Congress (ahem, Conyers, Berman, Leahy, Specter, et al) for this criminally inefficient use of government funds during a time of economic crisis. Even George Bush and the Department of Justice tried to avoid passing this one, but to no avail.
Art Brodsky, Communications Director of Public Knowledge has the understated quote: “It would’ve been nice to have something to benefit the public and artists instead of big media companies.”
Sigh. Dream on.
October 14, 2008
Larry Lessig’s WSJ Op-ed “In Defense of Piracy” is quickly making the rounds of inboxes via a few email lists I’m on, suggesting that re-posting it here will not be news to anybody.
What I thought I’d mention in conjunction with Lessig’s piece however, is a link and some thoughts on yet another sad chapter in the entertainment industry’s long brutal fight against creativity and non-traditional business models online.
Former Berkman Intern Zach McCune first brought Muxtape – a site dedicated to facilitate music playlist sharing – to my attention sometime during the summer.
An undergraduate and the victim of an RIAA file-sharing lawsuit, Zach is a grizzled veteran of the copyright wars. He and I agreed that while Muxtape was a beautiful idea, it was only a matter of time before it got mangled by the legal machinery of the music industry.
The truth has turned out to be somehow more complex and twisted than we had ever imagined.
Muxtape founder Justin Ouellette’s September 25 post to the site breaks down the last few months in some detail. Here are the highlights:
- “In the end, Muxtape’s legality was moot.”
- “In May I had my first meeting with a major label, Universal Music Group.”
- “The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid.”
- “Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations.”
- “The first red flag came in August…the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted.”
- “…on August 15th, I received…a complaint from the RIAA.”
- “…on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account.”
- “…the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.”
- “And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to.”
- “Muxtape is relaunching as a service exclusively for bands…”
- “The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format.”
Ouellete’s experience with Muxtape demonstrates that the actions of the RIAA constitute an egregious, anti-competitive abuse of the American legal system. Perhaps the most troubling aspect of the story is the fact that they effectively shut down Ouellete’s business while several of their constituents were in the process of negotiating with him (indeed, the takedown episode looks like a sorry excuse for a bargaining tactic).
When is congress going to stand up to these goons? At the moment, our elected representatives are too busy passing the PRO-IP act, yet another gift of federal enforcement resources to the content industry (against the wishes of the Department of Justice!) at the same time as the US economy struggles to avoid a free-fall.
September 12, 2008
Haven’t written about ACTA in a little while, but I couldn’t help myself from responding to this piece on the Intellectual Asset Magazine website.
Taking a short-term perspective shared by many large IP owning firms, the author Joff Wild argues:
My view is that countries in which IP is a very valuable asset are perfectly entitled to get together to work out ways in which it can be better protected.
The problem with this argument, and with much of the ACTA proceedings thus far, is that the countries involved have not integrated the competing interests of stakeholders into the negotiation processes in an effective way.
Even if you, like Joff, are not compelled by the claim that ACTA will be bad for global governance, bad for developing countries, and bad for global equality (which it almost certainly will), it is crucial to recognize that many of the most important and innovative firms in the U.S. and Europe are also likely to suffer from this agreement.
Don’t take my word for it, though.
Check out this letter recently submitted by AT&T, Amazon.com, Computer and Communications Industry Association (CCIA), Consumer Electronics Association, eBay, Information Technology Association of America, Internet Commerce Coalition, NetCoalition, US Internet Service Provider Association, US Telecom Ass., Verizon Communications, and Yahoo! Inc.
The letter is addressed to US Trade Representative Susan Schwab and leaves no doubt that these Telecom and IT giants do not appreciate the cavalier IP extremism on offer from the ACTA proponents thus far (all emphases are mine):
We appreciate your objective of protecting the intellectual property of American
rightsholders from infringement overseas. However…there is a very real possibility that an agreement that would require signatories to increase penalties for “counterfeiting” and “piracy” could be used to challenge American companies engaging in online practices that are entirely legal in the U.S., that bring enormous benefit to U.S. consumers, and that increase U.S. exports.
…because ACTA risks having such an adverse impact on intermediaries operating
in full compliance with U.S. law, the negotiating process should be as open and
transparent as possible.
and last but not least:
…given the importance and complexity of the issues under discussion, we urge you
to proceed with the negotiations at a more deliberate pace. It is critical that there be
sufficient time to ensure that the agreement is in the broad national interest.
Unless Schwab, the USTR office, and other negotiating parties recognize this reality soon, the results of their well-intentioned actions will be bad for the Internet economy, bad for innovative industries, and generally bad for society as a whole.
If, as Wild puts it, ACTA faces “a long and tortuous path to ratification” that might be the best news yet about this half-baked proposition.
August 6, 2008
Mark Harris filed a request with the New Zealand Ministry of Economic Development (MED) to release all documents pertaining to the ongoing ACTA negotiations.
Here’s what happened:
The Ministry of Economic Development has released just 13 out of 91 documents relating to its negotiation of a controversial international Anti-Counterfeiting Trade Agreement (ACTA) after an official information request.
Consultant Mark Harris made a request for “any and all information” the MED holds on ACTA. In response, MED identified 91 documents falling within the ambit of the request. The department has supplied Harris with just 13 of these and some parts of most of have been withheld.
The disclosure was mostly denied because it is considered likely to “prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government.”
I haven’t had a chance to look through the docs yet, but it will be very interesting to find out if there’s any new information.
The real question, of course, is what’s in the rest of those 91 documents and why can’t the negotiating parties be transparent about this process?
August 4, 2008
Monika Ermert has filed another insightful piece on ACTA over at Intellectual Property Watch. She discusses the latest round of secret negotiations in Washington; compares the statements of the negotiating states on the progress of the agreement; and lays out a number of critical perspectives emerging from private industry and non-governmental groups that don’t trust a secret negotiation process to represent the rights, interests, and complexities of the many issues involved.
Professor Geist’s latest update on ACTA shenanigans in Canada came out on July 28, in The Toronto Star.
You really should go read the whole thing, but here are my two favorite chunks:
What [Canadian Industry Minister Jim] Prentice did not reveal is that officials have been developing plans to establish an “insider” group comprised solely of government departments and industry lobby groups that would be provided with special access to treaty documentation and discussion.
The decision to create a two-track approach for ACTA consultations appears to have been deliberate. The same documents discuss the prospect a public track that would include a general public consultation (which was held in April) along with the insider group that would be privy to treaty information
there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.
The government documents indicate that members would engage in “in-depth exchanges on technical negotiating issues” and therefore be required to sign confidentiality agreements in order to participate.
This is egregious stuff. Kudos to Geist for breaking the story – and unfortunate that it hasn’t gotten much play in the international press.
I also have to wonder whether this formalized two tier approach been pursued elsewhere?
FOIA request anyone?
July 30, 2008
I got a friendly email from Mark Harris pointing to the comments on ACTA he recently submitted to the New Zealand government.
Harris’ comment is quite in-depth and brings together many sources. He concludes, succinctly,
Therefore, I submit that the NZ position should be to:
* regularly review the IPR regime in New Zealand to ensure that it encourages actual innovation while respecting the rights of creators
* does not allow measures to continue within New Zealand that encourage infringements of IPR
* respect the existing global bodies (WIPO and WTO) and refer trade and IP matters through them
* not be a party to the development of ACTA
* not recognize ACTA if it reaches fruition
I just got word that Australian trade officials are accepting comments on the next round of ACTA negotiations.
Predictably, their request for input from is inexcusably opaque. The announcement (link above) alludes to three topics: “border measures”, “civil enforcement”, and “institutional isssues” (I’m nominating that last one for the Max Weber Prize for lack of imagination by a bureaucrat).
Without more substantive public disclosure and debate of the topics under consideration in the ACTA negotiations, such public comments requests remain little more than a shadow play of actual democracy.
This is simply unacceptable given the scope of issues ACTA will address and their potential impact on the future of the Internet, the digital economy, global development, and law enforcement.
Small wonder, the Office of the US Trade Representative has not even bothered to request comments.
Hat tip: Kimberlee Weatherall
James Boyle has an excellent editorial in the Financial Times today criticizing the efforts of members of the U.S. Congress to create an “IP Czar” through the so-called “PRO-IP” Act.
The bill, sponsored by representative John Conyers (D-MI) passed the house and is awaiting the creation of companion legislation in the senate. Sentors Orrin Hatch (R-UT) and Patrick Leahy (D-VT) have expressed interest.
Here’s my favorite quote from Boyle:
We create a czar when we think that something is so important that other values must be subordinated to it, other goals ignored, power centralised, restraints discarded.The great thing about czars is that they can act alone, maximizing a single set of values, without worrying about the troubling demands of bureaucracy but also sometimes without worrying about the demands of the separation of powers and the rule of law. That latter feature is worrying.
Hat tip: Manon Ress