Category: Law & Policy

Why is Fight For The Future Rocking Against the TPP?  

Rock the TPPI will admit it right now. I have not read the full text of the Trans Pacific Partnership agreement.  And I don’t intend to.  I also do not have even encyclopedia-entry knowledge about all of the other 11 countries involved in the TPP and do not have more than a basic understanding of global trade.  Absent this information, the honest answer is that I have no earthly idea what the full scope of consequences might be of either passing or not passing the TPP.

What I have just said about myself applies to nearly the entire American public. And it very likely applies to the folks at Fight for the Future, who are now promoting a concert event called Rock Against the TPP.  Here’s their description of the largest international trade deal in history:

“…an anti-democratic deal between 12 countries that was negotiated in complete secrecy by government officials and hundreds of corporate lobbyists. If it becomes law, the TPP would be the largest deal of its kind in history, and it poses a grave threat to good-paying jobs, internet freedom, the environment, access to medicine, food safety, and the future of freedom of expression.”

I have written previously about the false claim that TPP can have an ill-effect on free speech and that the “secrecy” thing is blown out of proportion.  (As indicated above, the full text has been freely available since early in the year, but nobody is going to read it.)

The first criticism I have about FFTF’s declaration is that this organization is not functionally concerned with good paying jobs, the environment, access to medicine, or food safety.  Individuals within the group may personally care about these things and have certain related knowledge, but nobody who works there is an international policy expert in these areas; and addressing these issues is not part of the mission of the organization.  Fight for the Future is, in principle, a “digital rights” group—concerned with “internet freedom,” a concept that is itself a little vague for my tastes, but that’s another conversation.

“Act Now! Or Things Might Stay Very Much the Same!”

That doesn’t exactly stir one to action, but it’s an honest distillation of “digital rights” groups’ complaints about the TPP with regard to “internet freedom” and free speech. This is because the part of the treaty they see as a threat are the IP provisions, which do not actually have any effect on the status of free speech online for the trading partners.

And even confined to its wheelhouse, Fight for the Future’s concern for “internet freedom” in the context of the TPP typically glosses over the complexity of interrelated issues, raising this one paradox I can’t help but repeat:  You cannot have internet freedom without global trade because you cannot have devices that connect you to the internet without global trade.  Ain’t that a bitch?

I mean I hate to be a buzzkill, but there’s a lot of environmental hazard and unsafe, unfair labor involved with producing the computers and smart phones and tablets FFTF is using to rally people to Rock Against the TPP.  So, the hard question is this:   Can we privileged Americans say with confidence that this trade deal only exacerbates these problems rather than makes progress toward improvements for workers and environmental policies in partner nations? I can’t.  Can you?  And, without this level of understanding, it seems cynically irresponsible to get people into a lather about their right of free speech—a right that is not threatened at all—while potentially denying a step forward for someone halfway around the world, who lives in pretty deplorable conditions.

Still, the economic and environmental concerns are not dismissible.  Here’s a quote cited by the organization Citizens Trade, which is linked to by FFTF:

CWA president Chris Shelton: “Even a cursory review demonstrates how this trade deal fails working families. It forces U.S. workers to compete with the 65-cent an hour wages of Vietnamese workers and the slave labor employed in Malaysia. It allows multinational corporations to challenge environmental, financial, consumer and other regulations through international tribunals – and outside the court systems of member countries. It pays lip service to addressing real concerns about currency manipulation that costs American jobs and leads to more jobs being sent offshore. And it allies the U.S. with countries that abuse their own citizens, including Brunei, Vietnam and Malaysia.”

I don’t want to support any of that.  Of course there’s a lot in that statement begging further research, but on the last point, for example, about allying with countries that abuse their citizens, here’s some sample text from the TPP:

Article 19.3: Labour Rights

1. Each Party shall adopt and maintain in its statutes and regulations, and practices thereunder, the following rights as stated in the ILO Declaration 3, 4:

(a) freedom of association and the effective recognition of the right to collective bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(c) the effective abolition of child labour and, for the purposes of this Agreement, a prohibition on the worst forms of child labour; and

(d) the elimination of discrimination in respect of employment and occupation.

So, if ratifying this trade agreement could reverse precedent disenfranchisement of minority workers in Malaysia, I don’t necessarily want to rock against it either.  So, which do we believe?  More to the point, how can we know without thoroughly digging into the laws, economics, and conditions of people in Malaysia, Brunei, Vietnam, etc.?  Fight for the Future seems to trade on a very American-centric notion that an “open internet” is all that’s needed for the rest of the world to become more democratic and socially just.

The labor-related critics cited by Citizens Trade—Steelworkers, Machinists, CWA, and the Teamsters—have an immediate, American-jobs interest in fighting against free trade. This is a valid concern to say the least, but it also makes these parties rather strange bedfellows with an organization like Fight for the Future, whose anti-copyright agenda is not exactly supportive of domestic labor. Teamsters, for example, do a lot of work for the motion picture industry. And FFTF’s criticism, based solely on the premise that copyright enforcement is in conflict with free speech, is both unsound and wants to ignore the adverse effects of criminal-enterprise infringement of works like motion pictures.

Although certain pundits like to point to the total revenues of the American film industry as “proof” that large-scale piracy does no harm, the evidence is clear that investment in middle-market production is wavering as a direct result of piracy’s eroding margins for these products.*  This can lead to fewer total projects being made with full budgets and union crews, which can lead to fewer teamsters being hired to support film and television production.  Likewise, many members of the CWA have a direct interest in protecting copyrights around the world, so how is FFTF’s anti-IP agenda not a threat to those jobs in addition to any concerns regarding other aspects of the TPP?

In the end, I think it’s very tough to say whether or not we could, or would even want to, put the global-trade genie back in the bottle.  What is not hard to say is that Fight for the Future’s gasping over the prospect that TPP would unify copyright terms among the partner nations and promote measures for enforcement is a naive, anti-progressive stance that ignores the complexities of the real world. Former Canadian diplomat Hugh Stephens describes a hypothetical—though not impossible—scenario in which Taiwan is invited to join the TPP, which would diversify its economic relationships, making it less dependent on China.  Meanwhile, what do “digital rights” activists think is more likely to motivate a nation like China to migrate toward a more open society with an uncensored internet—rock concerts or global trade?

With regard to American jobs, there’s no getting past the fact that certain sectors have suffered from free trade deals. In response, I’m with those who say there are jobs to be had by investing in domestic infrastructure; it’s long overdue for renovation and cannot be outsourced.  Maybe somebody should rock that.

*Although there is new investment in middle-market works predicated on Netflix-like models, it is too soon to know how this market will evolve to remain sustainable.  It is also equally vulnerable to piracy.

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.

DCA’s New Report on Enabling Malware

Enabling Malware

Andrew Orlowski reports at The Register that last week Google quietly suspended its legal action to “muzzle” an investigation by Mississippi Attorney General Hood into whether or not the search giant was abiding by the terms of its 2012, non-prosecutorial settlement with the government over illegal online sales of prescription drugs.  Any explanation of Google’s change in strategy or the future of that investigation are subjects for another day.  But the fact that AG Hood was ultimately not stymied—either by litigation or by a brazen attempt in the State House of Representatives to legislatively tie his hands—is probably good news for American consumers because State Attorneys General “often act as the de facto consumer protection arm in their respective states,” notes a new report published yesterday by Digital Citizens Alliance.

Following up on its December report, which presented a look into the scope of the malware hazard for consumers who visit content-theft sites, DCA and RiskIQ have again collaborated to begin looking at the hosting services that either inadvertently or knowingly support illegal sites, which then endanger consumers.  The hosting services in this regard are particularly relevant because they are not shadowy operators based in hard-to-reach geographies but are legal corporations with offices in the United States.  As such, the news that Google will now look to “cooperate with AG Hood” rather than remain on the offensive comes at a good moment for consumers.  This is because DCA notes that state AGs will be the first authorities who may choose to investigate US-operating hosting services to determine their role in fostering the dissemination of malware.

The December report called Digital Bait revealed the likelihood (about 30% in some cases) that users of content theft sites would infect their devices with malware, and the report also identified the various types of malware being deployed in order to steal information and/or assets from consumers.  Digital Bait also presented a glimpse into the dark web-based economy where criminals engage in transactions like selling the IP addresses of a girl’s computer or even a cybercriminal paying content-theft site owners to deliberately host malware on their sites.  The report contains some eye-opening statistics like the one from the DOJ, which states that 16.2 million American consumers have been victims of identity theft, incurring financial losses of more than $24.7 billion.

The report released yesterday, Enabling Malware, looks at two hosting companies, each of which responded very differently when DCA contacted them with their findings.  The first was CloudFlare, which is “known for its willingness to support, or at least overlook, illicit activities,” the report states.  CloudFlare is a hosting service that is specifically designed to mask the identity of site owners and of the true hosting site of any content, whether the content is legal or not.  The site’s blog reads, “Signing up for CloudFlare is like taking your number out of the phone book, and putting in CloudFlare’s number under your name.”

This type of service can be (and is) used by journalists or bloggers operating in locations with authoritarian governments or other hazards to free speech and reportage.  But it is also a natural hosting choice for content-theft site owners, thus earning the service the nickname “CrimeFlare” among cyber-security experts. DCA contacted CloudFlare with regard to its hosting sites like Putlocker and Animex, both of which were identified in the Digital Bait report as delivering malware to users.  CloudFlare did not respond until a day or two before the release of this new report and wrote the following:

“CloudFlare’s service protects and accelerates websites and applications. Because CloudFlare is not a host, we cannot control or remove customer content from the Internet. CloudFlare leaves the removal of online content to law enforcement agencies and complies with any legal requests made by the authorities. If we believe that one of our customers’ websites is distributing malware, CloudFlare will post an interstitial page that warns site visitors and asks them if they would like to proceed despite the warning. This practice follows established industry norms.”

In other words, CloudFlare is not going to do anything unless authorities make them.

The other hosting service DCA and RiskIQ looked at was HawkHost, whose support includes watchfreemoviesonline.top, which was found to have a 32% malware exposure rate in the research conducted for the Digital Bait report. When DCA contacted HawkHost, the company’s response was very different from CloudFlare’s, stating that the sites identified by DCA would be taken down because they “clearly violate our TOS/AUP,” according to CTO Cody Robertson. Additionally, executives at HawkHost have agreed to meet with DCA to discuss findings linking malware with content theft sites and to look for ways to better protect consumers.  DCA commends HawkHost, stating that they find the company’s response “an encouraging sign.”

DCA and RiskIQ will continue to study the link between content-theft sites and malware, as well as the legal hosting services that operate in the United States, which may be supporting malware-infested sites. These findings will be presented to State Attorneys General, who then have the authority to investigate the extent to which a particular hosting service may or may not be willfully turning a blind eye to illegal enterprise that is directly harming American consumers.  So, as mentioned, beyond any implications regarding the Google investigation itself, last week’s affirmation of AG Hood’s authority in that case is likely a good sign for protecting consumers in general from the chronic I-Didn’t-Know-Defense too-often employed by various OSPs.