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USTR Gets Piracy Website Listing Notoriously Wrong

The U.S. Trade Representative (USTR) has just released another edition of its periodic Notorious Markets List, a spotlight on websites and physical markets that it claims facilitate copyright or trademark infringement, and a supplement to its regular Special 301 Report on countries that allegedly do the same.

Here are just a few of the problems we've identified in this year's list, illustrating the overreach of the USTR's single-minded enforcement agenda.

Stream ripping

When we reported on last year's Notorious Markets List, the USTR's focus was on domain registrars that supposedly supported infringement. This year, the focus is on stream ripping sites such as YouTube-mp3.org, a free web service that takes the audio from a YouTube video and makes it available for you to download, so that you can listen to it offline.

In many cases, stream ripping is a legitimate, lawful activity. YouTube contains thousands of videos with audio tracks that are freely licensed, and some that aren't copyright-protected at all. In other cases, stream ripping may be a fair use of a copyright-protected audio track. In fact, EFF's Cory Doctorow writes, “I used YouTube-MP3 to rip a video of my own reading, of my own story, just today—so I could include it in my podcast feed.”

While the USTR points out that stream ripping may be in violation of the terms of use of the streaming site—YouTube, in this case—that is nobody's business but YouTube's. While YouTube is at liberty to block YouTube-MP3 from accessing its servers if indeed they are violating its terms of service, this doesn't give the government or copyright holders any similar cause for complaint.

Cyberlockers

Stream ripping isn't the only target of the Notorious Markets List. Also in the firing line are several cyberlocker sites, most prominent among which is 4shared. Unlike many cyberlockers, 4shared is actually closer to a user-generated content website like YouTube in the way that it highlights popular uploaded files and contains a search tool.

Because the files uploaded to 4shared are uploaded by users, the site is protected from liability by the safe harbor provided by section 512 of the DMCA, and is only required to disable access to infringing files once a copyright holder sends it a notice in compliance with that law. This is one of the bedrock principles that underpins the success of America's dynamic and innovative Internet industry.

Like YouTube, 4shared has also voluntarily chosen to go above and beyond the requirements of the law, by also putting in place a music identification service that blocks users from sharing files that match music tracks that a copyright holder claims to own. We have serious concerns about such automated content matching systems, but leaving that aside, the adoption of such a system hardly seems like the behavior of a website dedicated to facilitating infringement.

Access to knowledge

Amongst the other websites called out for infringement are the online libraries Bookfi and Library Genesis, which provide online access to ebooks, allegedly without any licensing arrangement with publishers. What is striking about these websites however is just how much of the content is educational, rather than the “mere” entertainment that is often assumed to drive much online copyright infringement.

An open letter linked from Library Genesis contains a quote from the late Aaron Swartz:

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerrilla Open Access. With enough of us, around the world, we'll not just send a strong message opposing the privatization of knowledge — we'll make it a thing of the past. Will you join us?

While we would much rather see lawful open access then guerrilla open access, we also understand the frustration of students and teachers at the sky-high prices that gatekeepers charge to access scholarship, including in developing countries. Websites like Bookfi and Library Genesis are among the fruits of the greed of the some of the world's largest academic publishers.

Domain registrars

Domain registrars don't escape the USTR's attention either. This year, the operator of Domainers Choice is called out for the number of domain names it hosts for online pharmacies. Many of the websites attached to these domain names offer pharmaceuticals that may infringe patents or trademarks, or may do neither of those things but nevertheless be listed on a private pharmaceutical industry blocklist for shipping medicines into the United States.

The thing about domain registrars, though, is that they don't actually host any content, lawful or otherwise. They simply provide a pointer from from a domain name towards an online resource such as a website. It's true that domain names can sometimes point to content deemed unlawful, but so too, ironically, does the Notorious Markets List—as well as this blog post, for that matter. Enforcing content laws against intermediaries who merely point to unlawful information is a never-ending and misdirected quest, in which freedom of expression is an inevitable casualty.

The Notorious Markets List would do better to focus on markets and websites that directly and knowingly engage in or encourage unlawful conduct for profit, rather than those that merely provide a platform through which users can share content of their choice, or a technology that can be used for lawful purposes.

Overall, the U.S. Trade Representative continues to abuse the Notorious Markets List concept by using it to condemn lawful technologies and businesses, including ones that U.S. law actually protects and encourages. This makes it less a legitimate trade policy tool and more a giveaway to powerful industries.

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