When Mike asked me to write a post about my favorite Techdirt posts of the past week, I was honored. Techdirt is one of the main blogs I read everyday to keep me informed about information law and policy developments. The Techdirt contributors focus on a number of areas of my work. That was the same this week.
ACTA & TPP
I met Mike about a month ago, when I hosted a hearing about ACTA in the European Parliament (EP). Mike was one of 12 speakers who explained the dangers of ACTA, which I consider a misguided agreement, and presented his research ‘The Sky is Rising’. Although several commentators have already declared ACTA to be dead, I still see a lot of lobby efforts trying to get approval. The article, “Time To Realize That The Obama Administration Doesn’t Even Have The Authority To Commit The US To ACTA Or TPP”, also shows the way in which lobbying continues, if not for ACTA, then now for TPP. This post highlights how the ACTA negotiators tried everything possible to circumvent the democratic process. If ACTA doesn’t bind the US, then why would Europe ratify a binding agreement and bend over backwards to get to that point?
There were a few posts about the Trans-Pacific Partnership (TPP). Although this agreement does not concern Europe directly, it will have global ramifications. The lack of transparency sets an undesirable precedent that treaties which are mostly enforcement treaties are increasingly classified as international trade agreements, thereby allowing negotiators to discuss the enforcement measures in secret, without democratic oversight. Rep. Darrell Issa was able to give some insight into the negotiations by posting a leaked version of the agreement online.
One of the reasons I enjoy reading Techdirt is the realistic outlook on intellectual property rights. We should be critical of industry statistics and figures, which aim to strengthen copyrights further. I am a supporter of rewarding and incentivizing creators of cultural, artistic or literary content. Arts and culture are essential in open societies. A strong culture develops when we can all build on these works and use them for enjoyment, study or invention. The internet offers a great platform for cultural diversity, because it democratizes the cultural process, instead of leaving some gatekeepers in charge to decide which works are mass-marketable. It is also possible to bring content to users at a lower price, as long as there are no disrupting measures in the way.
Artists and inventors are realizing you don’t necessarily need copyright to create works. Crowdfunding through services like Kickstarter (see “Biggest Kickstarter Project Ever Surpasses $10 Million; Cuts Off Funding”) or Sellaband is becoming increasingly popular and leading to many success stories where the production of creative works is pre-funded by fans.
Of course, copyright is a useful tool to monetize created works, but it is not the reason works are made in the first place. However, copyright as it is currently enacted can threaten the open internet. As economist Dean Barker suggests, copyright is an antiquated relic that has no place in the digital age. Bear in mind the principles of the law were developed at the time of the printing press. We live in a different world today, and if we do not reform copyright, it risks losing legitimacy all together.
Copyright has benefited certain monopoly stakeholders since its inception, and those who benefitted are now lobbying fiercely to keep the old laws in place as they protect their business models. The downside is that this is to the detriment of society and the development of the internet. Online enforcement will most likely infringe on internet users’ fundamental rights, as demonstrated by the Pirate Pay Bittorrent disruptor.
What politicians do not hear enough is that there is little relationship between stricter IP laws and innovation or economic growth. European politicians should also take note that spending on entertainment products and services is increasing, such as demonstrated by the record income of European cinemas and the record production of European films. In the end, even the American copyright office will circumvent rules that do not make sense in the real world.
The Pirate Party is quickly gaining popularity with this message. The party is currently being rewarded by voters in Germany for campaigning for copyright reform, transparency and many other necessary and important political changes, which have been enabled by the internet. My party in the Netherlands (D66) covers these issues well on both the national and the EU levels.
Currently there are many cases relating to copyright and the internet under way in European courts, and almost all raise a significant amount of controversy. Some have even called the judge, who deals with many of the anti-piracy issues in The Netherlands, corrupt. It appears that he and one of the main lawyers of the entertainment industry offer classes together teaching IP enforcement. Although calling this corrupt is a little unfair, I do agree with Mike that there is a conflict of interests here. No wonder this lawyer and his colleagues usually take their anti-piracy cases to the The Hague court.
On the other hand, a Finnish court displayed common sense and understanding of the open internet when it ruled that the owner of a WiFi network is not liable for copyright infringements by other users. It does send a signal however, that this case has been brought to court at all. Was it intended to set a precedent, whereby all European WiFi operators would feel the need to filter traffic?
Domain name seizures and blocking
The Finnish case is an exception to the general trend. For example, the US government seized two Spanish domains. In the current proceedings, the government claims it can “forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process — but they never have to actually prove anyone violated the specific law.” Mike rightly points out that this reasoning means that any website, including search engines, could be seized, since almost all information exchange online infringes copyright in one way or another.
Blocking and seizing domain names is supported by the movie industry, as shown in this article. According to the MPAA, blocking websites is good for consumers. I disagree strongly with the MPAA on this point and would like to point out that some great online services have been developed which compete very well with websites such as The Pirate Bay. Rights holders (whether artists or corporations) need to figure out how to monetize their works in the new digital environment. Computer nerds at IT companies are currently leading the way. Blocking has great collateral damage, which needs to be taken into consideration as well.
In the European Parliament I serve on the committee for Foreign Affairs. I’m currently drafting the report on Digital Freedom in the EU’s Foreign Policy. The post titled, “If You Meet A Censor, Ask Why They Haven’t Become Moral Degenerates Themselves”, makes a valid point with respect to blocking information which is deemed bad for society. If blocking becomes a mainstream method in the US or EU, it undermines our credibility in speaking to other countries about the way in which they block websites where an undesired (political) message is shared. We risk a slippery slope!
Are we being attacked and spied upon via ICT networks, and should we increase public finances and resources to combat this threat? I have been trying to find good, independent and verifiable information or research to answer this question. Unfortunately, I have not found it. Most of the numbers and statistics about a security threat are compiled by companies who sell security software. As the post “Fearmongering About Cyberwar And Cybersecurity Is Working: American Public Very, Very Afraid” says, these tactics seem to be working for those companies.
It is great news that Harvard and MIT will be offering courses virtually through EdX. In the committee for Culture & Education of the EP, I have been advocating to extend the European Open Data Strategy to include educational and research institutions. The initiative by the Boston-based American universities is a great step in opening up education for all.
Finally, the piece titled, “Something Is Wrong When A Judge Needs 350 Pages To Decide If A College’s Digital Archives Are Fair Use”, was interesting from several perspectives. First, I consider the fair use doctrine to be better for the digital age than the current, rigid, European system. In this case the judge gives a favorable ruling for uses of works in education, which in my view is right. However, I find it most interesting that the judge rejects the self-regulatory “Classroom Guidelines.” In my work in the EP I have also warned that these types of regulations are often not desirable and can be used to circumvent the democratic process and infringe on fundamental rights.