Category: Copyright

How to Protect Your Digital Rights from the TPP

By now, you know that the Trans Pacific Partnership (TPP)—a really big-ass global trade agreement among twelve nations including the United States—is at this point pending delivery to Congress for debate and presumptive ratification.  And this means we can expect to see various organizations and corporate interests dial up the rhetoric regarding key provisions in the deal.

Although the TPP is a voluminous package of agreements covering a wide range of trade sectors—and there may yet be things not to like about the treaty—the Electronic Frontier Foundation has openly announced that it is their intention to turn the TPP into the “new SOPA” principally because of the copyright provisions in the agreement.  Their stated strategy is to “Overwhelm Congress members … demanding they vote down the TPP…” and to “…turn the TPP into a household name for toxic digital policy, much like we did with SOPA.” In short, the EFF is hoping they can scare the hell out of us—again—by convincing us that the “digital rights” we have today will be adversely affected by the passage of this trade agreement.  But, if you are worried, here are some steps you can follow if the TPP is ultimately ratified:

Step 1:  Live your life.

Step 2:  Use the Internet.

Step 3:  Use social media platforms like Facebook and Twitter to share your experiences, ideas, opinions, observations, etc.

Step 4:  Try not to launch a business based on infringement of copyright, trademarks, patents, or trade secrets.

Step 5:  Return to Step 1.

If it sounds like I’m suggesting that your “digital rights” might be exactly the same after passage of the TPP as they are right now, that’s because they will be.  And we can have confidence in this assumption for two reasons.  The first is that, like all prior U.S. Fair Trade Agreements enacted over the last 15 years, implementing TPP will require no material changes to existing U.S. IP laws.  And the other reason is that the EFF seems to know this is true based on the language they use in their various warnings.  In fact, their primary concern appears to be that the TPP would be one reason US IP law will not change.  To quote:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this will further entrench controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restrict the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector.

That is a purposely vague (and frankly insulting) way to raise a red flag about a threat to our rights.  Because what that statement says, in its opaque way, is that if the U.S. becomes a signatory to the TPP, this might prevent Congress from amending “controversial” aspects of existing copyright law. So, while spreading the message that our “digital rights” are threatened by the TPP’s IP provisions (i.e. implying change), the message the EFF is really selling is that copyright law as it stands is already affecting your “digital rights”; and if Congress ratifies the TPP then it may not be able to “fix” copyright.  (By the way, this happens to not be technically true, even if we all agree about what needs “fixing” in the law. Note that even if Congress ratifies TPP, it will not consequently abandon the copyright review process currently underway.)

The general assertion that the status quo of copyright’s contours fails to “meet the evolving needs of citizens or stifles innovation” has, in my view, not yet been clearly demonstrated for as many times as this mantra has been repeated by various parties. But even if there is merit to this general argument, it’s really a debate about utilitarian aspects of copyright and business applications, which is not technically a conversation about broader civil rights, as the EFF likes to imply when they endeavor to frighten citizens with the pitchfork-wielding urgency of calling Congress to stop the TPP.

Where the EFF might almost have a point is with regard to the length of copyright terms.  Since the length of terms we have today—life of the author plus 70 years—was last extended to maintain parity with trading partners, it is not unreasonable to assume that a trade agreement like the TPP could, as they say, “entrench” the length of terms at their present state, which some people consider inappropriately long.

At the same time, other trading partners, who presently have terms of Life + 50 could extend those terms another 20 years to match other TPP signatories.  And while length of copyright terms is indeed a sticking point for many people (despite not knowing much about how they came to be where they are), there is surely no metric anyone can produce to determine the threshold where copyright terms will uphold, rather than infringe, our “digital rights.” I mean, if we roll back terms in the U.S. to Life + 50 and they have a big ol’ EFF party over it, will our “digital rights” magically be 30% more secure? This is an exercise in vagaries and illusions; and there’s a reason I keep putting the words digital rights in quotes:  it’s because I have no idea what they are.

I know what my rights are as a citizen of the United States. They’re spelled out in the Constitution and in subsequent laws based on that framework.  But there is no separate bundle of cybernetic rights that kick in while we’re using Facebook or Twitter or Buzzfeed. There are no digital rights; there are simply rights.  And if someone uses digital means to infringe your rights, whether that’s your privacy, your safety, your property (including your copyrights), your consequent right to remedy that infringement is no different than it would be in a non-digital context. Or to quote U.S. Assistant Secretary of State Michael H. Posner in a statement from 2012:

“We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil — or more noble — when it is committed online rather than offline. You can’t sell child pornography in Farragut Square or Tahrir Square, and you can’t sell it on the Internet, either. You can’t break into a theater and steal the movie reels and you can’t steal movies online, either. You can’t beat up and gag a peaceful protestor and you can’t jail her for a blog post criticizing a government policy, either.”

Issues like copyright reform and trade negotiations are conversations about details, many rather boring details that most of us citizens can be forgiven for not bothering to review.  As a result, the EFF and similar organizations have a pretty easy time frightening people with harsh yet rather vague declarations about the ways in which copyrights threaten our broader civil liberties on the Internet.

You might recall Guideline #4 from the recently posted Guide to Critiquing Copyright in the Digital Age:  Make some crazy shit up.  Well, the EFF recently posted some fifty or so bullet points describing grave concerns various constituencies should consider if the TPP with its IP provisions should pass.  None of these points are on particularly solid ground, but several of them are Prime USDA, Grade A made up crazy shit. And you don’t have to be in IP attorney to know it.  Here’s one of my personal favorites:

• Those who put on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. Again, the risks and penalties are much higher if it happens on a “commercial scale.”

I double-dog-dare anyone to say that out loud with a straight face.  If Congress passes the TPP in its present form, and then my teenage daughter and her friends have a cosplay party, take pictures at said party, and post their pictures on Facebook, the EFF really believes these kids could face a fine or have their pictures removed?  Daa-am, that’s some high-test, made up crazy shit right there, presumably trying to scare people because Anime-producing Japan would be a party to the TPP. There is nothing in U.S. copyright law to support an argument that such a scenario would constitute an infringement, and any takedown of those hypothetical pictures would be wrongful and, therefore, remedied through existing counter-notice procedures.  And no, Japanese Anime producers are not going to sue your kid for cosplay. Odds are, this came up in discussion among these rather sophisticated trading partners.

Certainly it’s true that if I wanted to launch a new product or open a retail establishment, and I used copyrighted Anime characters in a party to promote that launch, then I might be infringing.  But the boundaries and limitations of copyright in this circumstance are broadly the same today as they were before we were on the Internet and the same as they would be after ratification of the TPP.  To say otherwise is just making crazy shit up.  Here’s another one:

• If you stream some copyrighted gameplay with commentary to friends and other fans, the video may get taken down or the user may be forced to pay a fee.

The top-earning YouTube star (at $12 million a year) PewDiePie, a Swedish citizen, does exactly what’s described in this scenario; and quite a few other game commentators and critics around the world do essentially the same thing.  In general, these creators are either left to their own devices or occasionally form partnerships with game companies that recognize the promotional value of their contributions.  Once in a blue moon, a game developer has been foolish enough to use DMCA takedown provisions in an attempt to censor a vlogger game critic; and the unofficial remedy for this misuse of DMCA has often been publicly shaming the company into proper behavior, to say nothing of the actual legal remedies available to the video creator.  Again, the legal framework pertaining to this example is already in place and will not be changed as a result of passing the TPP.

Review the list, if you have nothing better to do. But if you pay close attention to the language the EFF uses in many of its most dire warnings, they don’t really assert that the TPP will impose new restrictions on us as Internet users. And with good reason.  What the litany of doom actually contains is a mundane assortment of hypothetical cases of infringement claims that could arise with or without the TPP; and each of these examples implies exactly same remedies available to all parties that have existed for years.  What the EFF is really saying, of course, is that they are opposed to anything that might validate or uphold the status quo of copyright law, which is an entirely different conversation, and one they should present more frankly.

A Guide to Critiquing Copyright in the Digital Age

Anybody can write an editorial criticizing copyright on the Internet. It’s easy and fun! By following this basic guideline to creating an effective rebuttal to any proposal for protecting or enforcing copyrights online, you’ll discover that very little understanding of the issues is required. Once you get the hang of it, you’ll see that you can apply these techniques to nearly all of your editorials by simply exchanging a few names, dates, or legal proposals.  Here’s how it’s done …

1. Remind readers how cool it was when we killed SOPA.

No matter what central point you want to communicate, you will engender confidence in readers by writing a SOPA lead, which should include a recap of how much fun we had bringing about that bill’s staggering defeat. 🙂 It does not matter if your main criticism or recommendation has anything to do per se with the fundamental mechanisms or intent of the original SOPA/PIPA bills.  Since most readers never really understood SOPA/PIPA four years ago, invoking SOPA is the ideal prelude to any criticism you want to make related to enforcing copyrights on the Internet.

In your SOPA lead, be sure to use buzzwords, preferably draconian or overreach. These are highly effective words because readers remain generally unaware that the legal remedies in SOPA already apply in domestically-focused cases of online infringement.  Please refer to the glossary of suggested buzzwords found in the Use of Utter Bullshit described in Appendix B of this guide. DO NOT UNDERESTIMATE THE VALUE OF UTTER BULLSHIT.

To help you with your editorial writing, you will find many examples of the SOPA lead throughout the Web, but here’s a well-constructed version by Mike Montgomery, executive director of CALinnovates, that appeared in The Hill last week:

“Recently, the idea of felony streaming once again reared its ugly head. Making streaming copyright infringement a felony is a terrible idea and an example of backward thinking that creates further rifts between tech and entertainment at a time when these two sectors are not only reliant upon one another, but melding. As some may recall, this kind of backward thinking famously and furiously failed before when it was a key part of the ill-conceived effort known as SOPA-PIPA (Stop Internet Piracy Act / Protect IP Act). So strong was the backlash against these would-be laws and their breathtaking overreach, to this day, the term “SOPA-PIPA” sends chills down the spines of lawmakers.” 

Note how Montgomery uses the SOPA lead in this case at the end of the paragraph to implicitly—rather than explicitly—support his assertion that a current proposal to make infringement via streaming a felony is “a terrible idea” and that it naturally drives a wedge between Hollywood and Silicon Valley.  By effectively using the SOPA lead in this way, the editorial author can avoid discussing technical details, which might  inadvertently contextualize what is actually being proposed, in this case, in the Commercial Felony Streaming Act. For instance, it would be unhelpful if Montgomery attempted to explain why the unions DGA & IATSE—which represent middle-class labor in all areas of motion pictures and television—are endorsing felony streaming. It’s better not to get bogged down in those types of details. If the proposal you want to criticize comes from any part of the motion picture industry, just write Hollywood; if it comes from musicians, just write the recording industry. Keep it simple, broad, and vague in order to properly follow Guideline #2.

2. Remind readers that all remedies to infringement are basically SOPA.

By avoiding technical details, Montgomery demonstrates that there is no need explain why he believes delivering infringed material via streaming should carry a different penalty than delivering infringed material by other means. Instead, by effective employment of the SOPA lead, he can assume the reader will give him the benefit of the doubt that it is both terrible and divisive—just like SOPA! (See how easy that is?) And as a bonus, some readers may even believe that receiving infringed material via streaming would also be a felony, which is exactly the kind of confusion that helps our constituents kill proposals without needing to understand what they are. 😉

Also note that Montgomery effectively connects his SOPA lead to the body of his editorial by a fairly thin thread when he writes that the felony provision was a “key part” of the proposed bills. This is an excellent use of utter bullshit. After all these years, readers are not going to remember that this felony provision was at some point attached to one of the bills but was never central to the remedies proposed by either bill. By avoiding just the right details, you can remind readers that all remedies to copyright infringement are basically SOPA; and then you can proceed to vamp on one of several recommended themes (See Appendix A), which are largely variations on Guideline #3.

3. Remind readers that the copyright industries hate the future.

In this case, we see Montgomery has chosen to segue to the popular theme Hollywood is out of touch, as follows:

“Toughening up the rules around copyright infringement through felony streaming legislation, though, is not the answer to Hollywood’s ills. Legitimate streaming services that, but for their best efforts, violate copyright law already are subject to $150,000 in statutory damages per infringed work. That penalty is more than big enough to make incumbents and start-ups do their best to ensure that no content streaming on their sites violates copyright.” 

Notice that by not trying to explain why he thinks elevating infringement via streaming to a felony is terrible and divisive, Montgomery is free to cite the proposal as yet another example of Hollywood’s reluctance to innovate into the streaming market. If properly executed, this technique should distract readers from considering empirical data—for instance, the rapid expansion of legal streaming platforms for filmed entertainment. This kind of observable evidence could indicate that Hollywood may actually be innovating in the streaming market, which would potentially refute the underlying theme as Montgomery has proposed. But an effective editorial using the techniques we recommend should help readers ignore this kind of contradictory evidence.

We would also not want readers to wonder, in this case, “Who are these legitimate streaming services inadvertently infringing despite their best efforts, to whom Montgomery refers?” Instead, we want readers to imagine that there are scores of innovators who would be afraid to enter a market where infringement via streaming is a felony. AVOID EXAMPLES OR SPECIFICS. It is always better to refer to innovators and innovation generically and hypothetically. Remember that above we said vamp, meaning to extemporize. This is critical. One of the most effective ways to enhance your editorial is to follow Guideline #4.

4. Make some crazy shit up.

This is not the same thing as utter bullshit, which is more akin to what we like to call a reality inversion technique (See Appendix I). Making some crazy shit up is more creative; it’s your opportunity to let your imagination make the editorial your own (not that we encourage ownership of writing per se). For instance, here’s Montgomery making up some pretty crazy shit:

“But the key idea to focus on is “best efforts.” A streaming platform is incentivized to make its best-faith effort on an ongoing basis to ensure that all copyright holders are getting paid but very often the records of who holds those copyrights are unclear. A song might have had 12 writers on it but only ten are listed. Should an executive at a music streaming company be penalized with a giant fine, or jail time, because he didn’t know about those two extra writers?”

That last part about the 12 songwriters, and the executive acting in good faith but going to jail anyway is an excellent example of making crazy shit up and a superb use of the buzzword jail. If you can scare the bejesus (See Appendix K) out of your readers, they may not ask themselves probing questions like these:

What the hell is he talking about?

Does the law really work that way?

Have I ever heard of a case anything like what he’s describing?

These are the types of questions you want to avoid provoking among readers, which is why that SOPA lead is so vital. Think of it as a shield that protects you against readers noticing that you might be making some crazy shit up. Don’t be afraid to get creative! And that brings us to Guideline #5.

5. Write a misleading headline.

You do not have to deliver on the promise of your headline in the body of your editorial. Remember, millions of readers will only ever glance at the headline, so pick one that reinforces a general bias that’s good for our industry but makes us sound reasonable—and that fits the length of a tweet!  As you see, Montgomery has chosen the headline Time for Hollywood and Silicon Valley to stop fighting over copyright. Thousands of social media followers are apt to “Like” and share that headline without knowing what the article actually says. (This is exactly the kind of grassroots activism of the future that the copyright industry likes to hate on.)

Notice how Montgomery’s headline might make a reader think the author has written some kind of thoughtful compromise on copyright between the named parties. DO NOT WRITE SUCH AN EDITORIAL. Instead, as we have seen, the central argument of Montgomery’s article boils down to the following:  That Hollywood is only focused on legal remedies to infringement because it has not accepted the future potential of streaming. That’s not exactly what the headline implies the article will be about, but when we combine the misleading headline with the central argument made in the article itself, we get Hollywood should stop fighting over copyright.  Pretty cool, right?

Ordinarily, if Montgomery’s core argument were presented as a thesis without a SOPA lead, and without employing the techniques described above, some readers might immediately doubt his premise in light of the dramatic growth in legal platforms for streaming filmed entertainment, news, and sports.  And this doubt could, in turn, prompt readers to consider whether or not huge investment in legal streaming and legal remedies for mass copyright infringement might have to coexist in a sustainable, digital marketplace. But by effectively using the techniques in this guide, you can distract the reader from these and many other complex questions.

Good luck. And thank you for being a member of The Future! 🙂

THIS JUST IN:  An expert rebuttal to Montgomery written by Matthew Barblan and Devlin Hartline of The Center for the Protection of Intellectual Property.

Yunghi Kim puts real skin in the game.

In a Thanksgiving announcement, veteran photojournalist Yunghi Kim created ten $1,000 grants to be awarded one time to ten photographers.  The $10,000 kitty fueling this generous gift came from awards to Kim paid by copyright infringers of her work, and she states her reasons for creating the grants thus:

“I am doing this to emphasize the importance of copyright registration of your work and as a way for me to give back to the profession of photojournalism, an industry that I love and I am proud to be a member of for more than 32 years.”

It’s hard to miss the significance of Ms. Kim’s use of this money in contrast to Google’s recent announcement that it would pay legal fees IF certain YouTube video creators happen to find themselves in lawsuits resulting from DMCA disputes. At best, that announcement is an empty PR gesture; and at worst, it’s a $400-billion-dollar gorilla potentially menacing independent rights holders.  Meanwhile, ten grand is real money for a photographer–real money for most people–and the fact that Kim decided to do this with it, and to emphasize the need for creators to protect their work, is an encouraging start to the week.

See the full story at Petapixel here.