Last week, at the latest round of Trans-Pacific Partnership (TPP) negotiations in San Diego, California, the U.S. Trade Representative (USTR) announced that it has proposed a new provision on limitations and exceptions to copyright. It's nice to hear about a proposal that seems to expand limitations like fair use, and it is also nice to see that – finally - the USTR is listening to the technology industries. However, the draft treaty itself is still secret so the implications of this new provision are in fact ambiguous. We can’t know what their proposal means for copyright without knowing what’s in the rest of the chapter. It could be good, it could be bad, it could be indifferent, it could be LOLCATs.
Negotiators sitting at the table at the stakeholder briefing event
The TPP is a major threat because it will rewrite the global rules on IP enforcement. It will begin with the APEC members, binding the U.S. and other nations to SOPA-like standards. EFF was in San Diego raising awareness about the risks of an IP-maximalist agenda that has been pushed forward by powerful U.S. government. At the stakeholder events, we spoke to an audience of negotiators on the risks of technological protection measures (TPMs) and interacted with delegates and distributed material with detailed policy analysis of what we know about the TPP’s intellectual property provisions .
International Intellectual Property Director, Carolina Rossini, speaking with a stakeholder.
International Intellectual Property Coordinator, Maira Sutton, with a representative of Occupy San Diego.
Expanding limitations and exceptions (L&E) are a key part of EFF's international IP policy agenda. L&E are legal flexibilities in copyright that provide balance in a copyright system between users and creators of protected works. Fair use, first sale, and special provisions for software backups and interoperability, education, and libraries are all L&Es. They are fundamental for access to knowledge and for human, social, and economic development. They ensure that copyright policy functions for both the creators and the users. This spirit of balance is supposed to flow through all copyright laws, so that the law guarantees both the incentive to create new works and the ability of society to use and comment on them.
The World Intellectual Property Organization and the Asia-Pacific Economic Cooperation (APEC)—organizations that all of the TPP countries are members of – have at least recognized the idea of such balance to be essential for society. APEC developed a comparative survey in 2009 stating that “of the responding Member Economies, developed Economies tend to have a larger number of L&E in comparison to the developing Economies” and concluded “Finally, the fact that knowledge based Economies are those that have developed and adapted, in an appropriate manner, their L&E to the requirements of the digital economy, is one aspect that should be taken into account by APEC Member Economies when considering what L&E would be adequate to achieve an intellectual property system that ensure both enhancing access to knowledge and promoting creation of knowledge.”
The balance is supposed to be created through ideas like exceptions and limitations, including fair use   . This balance allows journalists, scholars and the general public to quote from and comment on others' writings, and artists and the general public, to create parodies and to practice basic rights of free expression. And it also generates economic value and jobs. But the rights of owners have grown far faster and larger than the limitations, and that is one of several reasons why the current state of copyright is so completely out of balance.
In the USTR blog post, the provision proposed will supposedly obligate Parties “to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” Remember, we haven’t been able to read it yet. The actual language isn't yet accessible by anyone other than the delegates and a few industry representatives.
The Three-Step Test
One key part of the proposed provision may be based on the internationally-recognized "3-step test."
The 3-step test is a classic piece of copyright jargon. It is a piece of law that emerges from one of the most important international copyright instruments, the Berne Convention for the Protection of Literary and Artistic Works. And what it does is create a set of minimum restrictions on copying that cannot be lowered by individual member countries in their own copyright laws. Even if the U.S. eventually flips from its current position and wants to radically rebalance copyright law to bring it into the 21st century, the international community could apply this vague 3-step test against it and prevent the U.S. from doing so. William Patry has written extensively on the 3-step test, the debate around it, and its potential to chill the expansion of limitations and exceptions as part of rebalancing copyright law. KEI also provides some history on the 3-step-test.
The Three-Step Test has already established an effective means of preventing the excessive application of limitations and exceptions. However, there is no complementary mechanism prohibiting an unduly narrow or restrictive approach. For this reason, the Three-Step Test should be interpreted so as to ensure a proper and balanced application of limitations and exceptions. This is essential if an effective balance of interests is to be achieved.
EFF agrees with that and believes that it is vitally important that exceptions and limitations to copyright be protected in international trade agreements.
So, in summary, the USTR has released a public blog post about a secret proposal to expand something – a filtering mechanism on copyright limitations and exceptions – which might have real social, moral, and economic value. And all we know is that the only thing the authors of the proposal really wanted to make public was the fact that no matter what the content was, it was subject to enough international restrictions that it could be effectively gutted. The only thing 21st century about that is they used a blog to tell us about it.
Today, Russian-language Wikipedia, Livejournal, and other prominent RuNet websites have gone dark to protest Bill № 89417-6, which is currently being considered in the Duma. The bill is comprised of amendments that create an Internet blacklist which opponents say poses a serious threat to freedom of expression in Russia. The blackout follows in the footsteps of other similar high-profile protests against Internet censorship bills, including SOPA/PIPA in the United States, and DDL Intercettazioni in Italy.
The Russian State Duma began initial hearings on the bill earlier this week. The legal amendments propose a national digital blacklist of websites with an .ru domain name that contain pornography, host drug advertisements, condone suicide, or include “extremist ideas,” purportedly to protect children. Criticism of the bill bears some striking similarities to criticism of other proposed Internet blacklists. Opponents have expressed concern over lack of effectiveness, the burden on Internet intermediaries, and lack of oversight and accountability that leaves the blacklist open to abuse.
The list of banned content is non-exhaustive; according to the draft document that was submitted last month on June 7, the Russian Federal Service for Supervision of Communications, IT and Mass Media will have the power to ban more items, and will charge a non-profit organization with monitoring compliance. If it finds illegal content on a website, the agency will give the site owner 24 hours to remove it. Otherwise the site will be entered onto the blacklist, or--in some cases--face a court injunction.
Multiple branches of the Russian government remain in conflict over the draft law. All four party factions in the State Duma support the bill, but Russia’s presidential Human Rights Council (HRC) harshly condemned it in a statement on Tuesday July 3. The HRC attacked the current version of the bill as an ineffective solution to “dirty” content because it does not prevent users from using non-Russian domain names and IP addresses. HRC also observed that the bill is a giant step towards a real, legal censorship regime for Russian Internet infrastructure, which would “negatively affect its speed, stability and security.” HRC has proposed that the bill should be withdrawn from debate, and instead be submitted for public discussion.
Russia’s Minister of Communications and Mass Media, Nikolai Nikiforov, also stated in an interview that his agency does not appreciate the way the current version of the bill is being fast-tracked through the Duma in spite of considerable criticism. It is relatively easy for websites to evade the content filtration that the bill attempts to establish, so intermediary Internet service providers and web hosts would end up being responsible for keeping users from accessing blacklisted content. Marina Junich, Government Relations Director of Google Russia, explained that the way the bill would be implemented in the short-term would make it standard practice for ISPs to block the entirely of websites such as Youtube when the local courts ban a single “extremist” video.
“Extremist” Internet content is already censored on the RuNet. The Justice Ministry currently runs a blacklist comprised of 1,200 websites, offline publications, and leaflets. EFF stands in solidarity with the Russian-language Wikipedia, Livejournal, and other websites in support of freedom of expression on the RuNet. EFF also urges critical parties within the Russian government to continue fighting the passage of the amendments.
For weeks, thousands of Sudanese have taken to the streets, protesting austerity policies enacted by President Omar al-Bashir and his regime, which has been in power since 1989. Journalists covering the story have faced challenges, including detention and—for foreign correspondents—deportation. In June, Sudanese security services arrested Bloomberg reporter Salma El Wardany along with Prominent Sudanese blogger Maha El Sanousi, who was briefly detained. El Wardany found herself deported back to Egypt. Sudanese authorities also arrested Agence France-Presse reporter Simon Martelli, holding him for more than 12 hours without charges. Additionally, citizen journalist and activist Usamah Mohammed Ali (@simsimt), who made this stirring video about why he is joining the protest movement, is now spending his third week in detention, after having been arrested by the authorities while attending an anti-austerity protest. He has recently been moved to Kober prison, where he cannot receive visitors, and where he continues to be held with no charges made against him.
In addition to detaining and deporting journalists and bloggers, the Sudanese government has censored news sites that have reported on the ongoing protests. Last week, EFF first saw reports that Sudanese ISPs had begun to block Sudanese Online, Hurriyat Sudan, and Al Rakoba, but was not able to independently confirm the reports. Since then, Hurriyat Sudan has confirmed [Press release in Arabic] that their site has been blocked since June 25.
Hurriyat’s Editor in Chief Elhag Warrag says government efforts to block his news website are part of “a systematic attempt by the Sudanese regime to stop news about anti-government demonstrations reaching the Sudanese people and the world at large.” He went on to encourage Sudanese users to access his paper’s news coverage by visiting its Facebook page or by using a proxy to circumvent Internet censorship (EFF recommends Tor).
Internet penetration in Sudan is low—according to ITU’s 2009 report approximately 10% of the population has access to the Internet and about 15% use mobile phones—but local news websites and Twitter accounts run by Sudanese activists have been vital to disseminating information about the protest movement. Article 39 of the 2005 interim national constitution states:
Every citizen shall have an unrestricted right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to order, safety or public morals as determined by law." The same article also states that the "state shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society.
Even so, the al-Bashir regime has engaged in blocking and filtering of pornography, tools that enable anonymous surfing or censorship circumvention, and now news sites reporting on sensitive political issues. EFF condemns these escalating attacks on freedom of expression in Sudan and will continue to monitor the situation carefully.
Thousands of security researchers, information security professionals and hackers descend on Las Vegas each summer for a trio of conferences: Black Hat USA, DEF CON, and BSides Las Vegas. We launched our Coders' Rights Project at Black Hat four years ago to help programmers and developers navigate the murky laws surrounding security research. Every year since then, our attorneys have been on hand in Las Vegas to provide legal information on reverse engineering, vulnerability reporting, copyright law, free speech, and more, and we're thrilled to return again this summer.
If you'd like to make an appointment to speak with EFF attorneys at Black Hat, DEFCON or BSides Las Vegas, contact us by Wednesday, July 18, with the name of the conference in the subject line. If we can't assist you for any reason, we'll make every effort to put you in touch with a lawyer who can.
EFF—together with Public Knowledge, two national library associations, and U.S. PIRG—submitted a brief yesterday urging the United States Supreme Court to begin the process of rescuing first sale rights, which have been under assault for decades.
The brief was filed in the case of Wiley v. Kirtsaeng, which turns on the re-sale of textbooks in the U.S. This fall, hundreds of thousands of students will head off to college, ready to fill their heads with knowledge.What they may not realize yet is that they will also be filling the coffers of U.S. textbook publishers, which sell required college texts at exorbitant prices knowing students have little choice but to cough up the cash.
Standing in the way of this tidy scheme is the used textbook market, and that market—not to mention used bookstores, libraries and video rentals—depends on our time-honored first sale doctrine. Under this doctrine, the buyer of a book or any other copyrighted work has the right to dispose of that particular copy as she sees fit.
Unless, according to two appellate courts, those books happened to be manufactured outside of the United States.Due to an obscure provision in U.S. law, those courts have held that the first sale doctrine applies only to works made in the USA. In other words, if copyright owners are crafty enough to outsource the actual manufacture of their works abroad, they can control future redistributions of copies of works that were manufactured abroad, for the entire copyright term.
Our amicus brief urges the United States Supreme Court to reject that interpretation.As we explain, courts are supposed to interpret laws so as to avoid absurd results.Limiting first sale to works made in the United States encourages at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move America manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market.
But this case is important for another reason: it is a chance for the Supreme Court to send a message about the future of first sale rights.Over the past decade, courts and copyright owners have quietly been creating a world in which goods that contain copyrighted works are never truly owned, but only licensed.And those licenses inevitably contain a plethora of legal restrictions on consumers' ability to fully use those goods. Never mind that the consumer paid for a permanent copy and the seller doesn't really expect that the buyer ever give it back—the fine print claims to transform a sale into something else.
The public should be watching this case closely.It is an opportunity for the Supreme Court to stand up for common sense and recognize that copyright is supposed to serve the public interest, not the other way around. Let’s hope it does so.
The current patent system is flawed and makes it easy for corporations (like Apple and Microsoft) to abuse the system. Patents are being used as an anti-competitive weapon. This must stop if we are to create a dynamic economy.
– Marius Caldas, Senior Software Engineer, Atlanta, GA
EFF launched our Defend Innovation campaign to put forth seven proposals that we think would make the patent system better for software, and—more importantly—to solicit feedback from the community on how to address the broken patent system. So far the response has been outstanding: thousands of individuals have left their comments about how patents impact the future of software innovation. The wide variety of replies comfirms what we already knew: the patent system affects policy makers, legal practicioners, and engineers in different ways. In fact, many in our community think our proposals go too far while others argue that they do not go far enough.
Despite the diversity of opinions, a vast majority of commenters on both sides agree that the current patent system is simply broken. Patent trolls and large corporations repeatedly abuse software patents through frivolous litigation and licensing schemes. Change must come, and EFF will use the feedback from our Defend Innovation campaign to show Congress the changes that those working in the field really want.
Here are a few prominent examples of the dynamic discussion currently going on:
There are alternatives to abolishing patent protections; for example, we've talked about trying to restrict patents to defensive-only uses. And we've talked about patent pools. I still believe that the monopoly grant given by a patent should be subject to more restrictions. But you can't just hand-wave them away and not talk about the consequences.
Timothy B. Lee from Ars Technica expressed his views on software patents ("End them, don't mend them") in an opinion piece:
Not only is abolition the right policy on the merits, but clearly advocating the elimination of software patents makes it more likely Congress or the courts will adopt more modest reforms. … There's nothing wrong with EFF formulating and advocating incremental reforms to the patent system. But in my view it's also essential for the nation's leading online civil liberties organization to clearly say that the best reform would be to eliminate software patents entirely.
The Free Software Foundation's Richard Stallman responded on Defend Innovation with a suggestion for an an alternative approach:
I … recommend that we approach the problem at the other end, by legislating that software to run on general-purpose computing hardware be excluded from patent infringement.
This means we don't need to try to distinguish between software patents and other patents. We only need to distinguish between software and hardware.
We're encouraged to see such a lively conversation happening around software patents, especially one with so many viewpoints represented. However, we would ask commentators like Mr. Lee and Mr. Wexelblat to provide their comments at defendinnovation.org, so we can ensure their opinions are taken into account when we craft our final report. To be clear, the Defend Innovation project aims to provide a platform for this important conversation, and we all serve to benefit from a lively and respectful debate on software patents.
Have you signed on to our efforts yet? Thousands of lawyers, academics, engineers, and Internet users already have. Join the discussion at defendinnovation.org.
Yesterday, Rep. Ed Markey (D-MA) revealed that federal, state and local law enforcement agencies have made an astounding 1.3 million demands for user cell phone data in the last year, “seeking text messages, caller locations and other information.” The New York Times called the new findings proof of “an explosion in cellphone surveillance” in the United States—much of it done without a warrant. Worse, the eye-popping figure is actually a significant underestimate; the actual number is “almost certainly much higher" than reported, according to the Times:
Because of incomplete record-keeping, the total number of law enforcement requests last year was almost certainly much higher than the 1.3 million the carriers reported to Mr. Markey. Also, the total number of people whose customer information was turned over could be several times higher than the number of requests because a single request often involves multiple callers. For instance, when a police agency asks for a cell tower “dump” for data on subscribers who were near a tower during a certain period of time, it may get back hundreds or even thousands of names.
This information comes on the heels of an ACLU report showing over 200 local law enforcement agencies admitted to regularly demanding cell phone location data from companies with little or no court oversight. The lack of court oversight is all the more disturbing considering we now know:
“AT&T alone now responds to 230 emergency requests a day nationwide — triple the number it fielded in 2007.”
Sprint alone processed more the 500,000 requests last year, in which only a subpoena was used.
A third party company called Neustar handles law enforcement compliance for about 400 phone and Internet companies.
It is a recipe for a privacy disaster. It's now clear cell phone companies and Congress have to work together on two things:
1. Cell phone companies need to start releasing regular, transparency reports like Google and Twitter.
Given how much information has been requested on millions of cell phone users, and how long companies keep that information, these companies need to release regular transparency reports. Wired’s David Kravets wrote an open letter to the major carriers asking for the same last month. Customers have the right to know how many requests governments make each year, what type of court oversight they have (i.e. do they have a warrant), and how many are complied with.
Remember, the type of information law enforcement is requesting is kept by the phone companies for years at a time. A previous ACLU Freedom of Information Act request revealed, “Verizon keeps that data on a one-year rolling basis; T-Mobile for ‘a year or more;’ Sprint up to two years, and AT&T indefinitely.” The companies themselves should publish the current numbers and set much shorter limits on data retention to ensure customers’ private information stays protected.
2. Congress immediately needs to pass legislation requiring a warrant for GPS location information.
The cell phone company numbers also show vital it is that Congress immediately step in and pass robust privacy legislation mandating a warrant for cell phone subscriber, cell tower and GPS data. Remember this data is extremely precise, as your cell phone sends your location back to cell phone towers every seven seconds—whether you are using your phone or not—giving police a virtual map of where you are 24/7. As the DC Circuit explained in 2010, a map of one’s travels can reveal the most intimate details of one’s life:
“[a] person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.”
Commendably, Mr. Markey told the New York Times that he and other members of Congress are working on legislation that would draw a clearer line on how the police can get access to such data. Mr. Markey likened the requests to “digital dragnets” and said, “There’s a real danger we’ve already crossed the line”.
In April, the House held a hearing on a bill that would require a warrant for location data, which EFF believes is sorely needed.
We hope this news will also cause the Obama administration to stand up for privacy and drop their objections to such law. They have previously argued before Congress that it’s “burdensome” to require law enforcement to get a warrant for such personal information. EFF believes they should be standing up for the Constitution and the Fourth Amendment instead.
Today, two representatives of Public Citizen delivered the Stop the Trap petition—which has received over 90,000 signatures—to United States Trade Representative (USTR) officer Barbara Weisel. The petition is aimed at key government leaders and trade representatives of countries involved in the Trans-Pacific Partnership (TPP) negotiations, and it calls on them to drop all provisions in the agreement that would place heavy restrictions on the Internet and digital freedoms. We have endorsed this petition along with OpenMedia.Ca, Public Citizen, Public Knowledge, ONG Derechos Digitales, Free Press, Internet NZ, and others.
USTR officer, Barbara Weisel (left) with Burcu Kilic and Peter Maybarduk of Public Citizen.
You can visit StopTheTrap.net and sign this petition no matter where in the world you live.
Also, you can take our action calling on Congressional members to demand transparency in the TPP negotiations (it can be taken more than once!):