Conservative shadow culture secretary Jeremy Hunt (right) says he doesn’t believe the Digital Economy Bill will get through Parliament before then, “even with Tory support,” according to Times Online, which goes on:

“The Conservatives back most of the proposals, which include disconnecting persistent internet pirates,” the so-called ‘graduated response’ developed by Vivendi Universal, EMI, Warner Music and Sony Music, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures, it says.

And it’s just been revealed that secretary of state Peter Mandelson, who’s representing the entertainment industry in Britain, is demanding changes to the bill.

They’d mean he, or his Tory successor, another unelected official, would be free to do anything they wanted without parliamentary oversight or debate or, as long as it was in the name of  ‘copyright protection’.

Or as the story puts it, “The Bill will also contain a controversial last-minute amendment that will give ministers the ability to change copyright law to combat file sharing. The clause will grant ministers the right to update the Copyright, Designs and Patents Act of 1988 in response to new technlogies as they appear, which has led to accusations from online campaigners that it would give future governments too much ammunition against pirates.”

Stay tuned.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

Times Online – New Digital Bill unlikely to become law before election, warn Tories, November 20, 2009
demanding changes – Biggest copyright sting in history, November 20, 2009

‘Workers of the World Unite’ was “one of the most famous rallying cries of communism,” says the Wikipedia, and the phrase has been lampooned over and over again.

However, with the first word replaced by ‘Music Lovers’, it’s no joke in 2009 as the entertainment industry, with the major record labels out front, subborns world governments in purely corporate interests.

The Hollywood and Big Music appointee in the British Labour government is ‘lord’ Peter Mandelson — unelected. Rather, he was inserted “by his friend Gordon Brown,” as KevinH points out in a Reader’s Write.

He’s been named Britain’s official government ‘face’ as national elections, expected in spring, approach.

He’s now demanding dictatorial powers to wield against  online music lovers. And if he gets them, it’ll be the thin end of a wedge which will eventually be used every time the government wants something, anything, done without public knowledge or consent.

We can’t let this happen and I’m proposing the formation of a global OMLC – Online Music Lovers Coalition.

Mandelson, Gordon Brown, and every other politician who believes vested corporate interests come before those of the people, must be shown we, and not they, call the shots.

‘The power to do anything’

Secretary of state Peter Mandelson “is planning to introduce changes to the Digital Economy Bill now under debate in Parliament,” said Boingboing yesterday, continuing:

“These changes will give the Secretary of State (Mandelson — or his successor in the next government) the power to make “secondary legislation” (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988)”.

That would give an unelected official “the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright,” said Cory Doctorow in the post, going on »»»

Mandelson elaborates on this, giving three reasons for his proposal:

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a “three-strikes” plan that costs entire families their internet access if any member stands accused of infringement)

2. The Secretary of State would get the power to create procedures to “confer rights” for the purposes of protecting rightsholders from online infringement. (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

3. The Secretary of State would get the power to “impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement” (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright “militias” can be formed with the power to police copyright on the web)

“If we can’t stop this, it’s beginning of the end for the net in Britain,” says Cory Doctorow in the Boingboing post, going on »»»

It’s a declaration of war by the entertainment industry and their captured regulators against the principles of free speech, privacy, freedom of assembly, the presumption of innocence, and competition.

This proposal creates the office of Pirate-Finder General, with unlimited power to appoint militias who are above the law, who can pry into every corner of your life, who can disconnect you from your family, job, education and government, who can fine you or put you in jail.

But Britain is only the tip of the iceberg.

This isn’t a local issue, and Mandelson is no more than the UK front man for Vivendi Universal, EMI, Warner Music and Sony Music, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures, as they try to use their Three Strikes and you’re Gone scheme to gain control of online product and content distribution by turning governments into copyright agents, the bill footed by local taxpayers, and ISPs into enforcers, acting against their own clients.

Online Music Lovers Coalition

I’m proposing the formation of a global OMLC — Online Music Lovers Coalition — with individual chapters in countries such France, New Zealand, and South Korea where  entertainment cartel lobbyists with unlimited  and financial  and political resources have set up shop, usurping elected administrations.

We can use it to make it clear that in the 21st century our will, and not theirs, is what’s important.

This morning (November 20), at the National Press Theatre, 150 Wellington, Ottawa, at 10:00 am, UK recording artist Billy Bragg will join New Democrat Charlie Angus to “talk about how artists, not corporate lawyers, are taking the lead on establishing basic rules for the development of digital culture online”.

“The internet brings fans and artists closer together than ever before and brings great benefits to both,” said Bragg, a co-founder of the new artists-to-fans-to-artsts site, a2f2a.com. “Let’s not allow the record industry to keep us apart in order to protect their old broken business model.”

Let’s not.

Also present will be the Songwriters Association of Canada’s Don Quarles, and Wide Mouth Mason’s Safwan Javad, who’ll represent the Canadian Music Creators Coalition.

But the most important people of all,  the ones  upon whom everything political, musical, you name it, depends, are missing.

You and I. Because we have no one to represent us.

Corporate corruption is now endemic around the world with industry efforts to gain control of music on the internet only one manifestation of it.

We used to be called the Great Unwashed, the Silent Masses, but thanks to the net, that’s no longer true, and we’re no longer silent.

In the 21st digital century, we have a voice which can’t be ignored. The world is changing and as our online communities continue to grow, our powers of persuasion and our abilities to directly influence actions and events are expanding exponentially.

It’s called People2People Power and no one can stand against it.

Can an Online Music Lovers Coalition be put together?

I believe it can and if you agree, as a first step, no matter what country you’re in, email me at  p2pnet 2 shaw dot ca and let’s see if we can create a working group to hammer out the how-to’s and get the ball rolling.

10 years ago, this could never have happened, but the net is the Great Equaliser, so in the words of John, Paul, George and Ringo, let’s come together.

Right now …

Stay tuned.

Jon Newton – online citizen

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

government ‘face’ – Anti-P2P politician UK government ‘TV face’, November 16, 2009
protecting copyright – Biggest copyright sting in history, November 20, 2009
Boingboing – Leaked UK government plan to create “Pirate Finder General” with power to appoint militias, create laws, November 19, 2009
establishing basic rules – Billy Bragg, Charlie Angus, on digital culture, November 19, 2009

More radical than disconnecting people if they fail to toe the corporate entertainment cartel party line?

Yup.

Head slap, who told us about this in a Reader’s Write, wonders if it isn’t some kind of joke, quoting a cut from the post, to wit »»»

Secretary of State Peter Mandelson is planning to introduce changes to the Digital Economy Bill now under debate in Parliament. These changes will give the Secretary of State (Mandelson — or his successor in the next government) the power to make “secondary legislation” (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

What that means is that an unelected official would have the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright.

But it’s no joke, no more than is the Three Strikes entertainment industry business plan that’ll soon become law in the UK, if Mandelson and his Big Music and Hollywood pals have their way.

‘Unworkable and unlawful … ‘

Beau Bo D’Or (from whence came the pic) says Petey is trying to “set up biggest copyright sting in history,” linking to a Guardian article which states »»»

In a letter to Harriet Harman, the leader of the house and head of the committee responsible for determining changes to such legislation, Mandelson says he is “writing to seek your urgent agreement” to changes to the 1988 Copyright, Designs and Patents Act “for the purposes of facilitating prevention or reduction of online copyright infringement”.

By writing to Harman, the business secretary is seeking to get the change made through a “statutory instrument” – in effect, an update to the existing bill that the government can push through using its parliamentary majority.

That can be done with the minimum of parliamentary time, which is already at a premium.

The letter, which is circulating inside the government, comes as ministers prepare to publish the digital economy bill at 7.30am tomorrow. That is expected to set out a “three strikes” policy under which people who are found to be illicitly downloading copyrighted material have their internet connections withdrawn after three warnings.

Internet service providers have warned that the scheme is unworkable and unlawful.

The proposed alteration to the Copyright Act would create a new offence of downloading material that infringes copyright laws, as well as giving new powers or rights to “protect” rights holders such as record companies and movie studios – and, controversially, conferring powers on “any person as may be specified” to help cut down online infringement of copyright.

The changes proposed seem small – but are enormously wideranging, given both the breadth of even minor copyright infringement online, where photographs and text are copied with little regard to ownership, and the complexity of ownership.

Mandelson says in his letter that he is concerned about “cyberlockers” – websites that offer users private storage spaces whose contents can be shared by passing a web link via email.

“These can be used entirely legitimately, but recently rights holders have pointed to them as being used for illegal use,” Mandelson writes in the letter.

But the proposal to alter the Copyright Act in this way has caused alarm within government, where some fear that an incoming Tory administration could use it to curry favour with Murdoch, head of the News International publishing group.

“They’ve seen that file-sharing is essentially unpoliceable, but the net effect is that a future secretary of state could change copyright law as they see fit,” said one Labour insider.

In his letter, Mandelson sets out the expected reaction from the three groups who would be affected by the changes: rights holders such as record companies, internet service providers (ISPs), and consumers.

“I expect rights holders to welcome this and to support it. ISPs are likely to be neutral until it is clear what effect it will have on them in terms of costs.” Consumer groups “are likely to oppose [the move] but will see it may lead to further unquantifiable measures against infringing consumers.”

“He also expects “a great deal of scrutiny” of the idea in parliament, says the story.

But not worry, eh Pete? Your mates — Vivendi Universal, EMI, Warner Music and Sony Music and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures — will be busily greasing wheels behind closed doors.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

Boingboing – Leaked UK government plan to create “Pirate Finder General” with power to appoint militias, create laws, November 19, 2009
Guardian – Mandelson seeks to amend copyright law in new crackdown on filesharing, November 19, 2009
entertainment cartel party line – Britain changes 3 strikes to 2 strikes, November 18, 2009

“The Office of the United States Trade Representative (USTR) has already announced that the next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will take place in January — with the aim of concluding the deal ‘as soon as possible in 2010′,” h says, continuing »»»

For the rest of us, with access to only leaks and whispers of what ACTA is about, there are many troubling questions. How can such a radical proposal legally be kept so secret from the millions of Net users and companies whose rights and freedoms stand to be affected? Who decides what becomes the law of the land and by what influence? Where is the public oversight for an agreement that would set the legal rules for the knowledge economy? And what can be done to fix this runaway process?

We wrestle with these questions in an essay on “The Impact of ACTA on the Knowledge Economy”(PDF here) in the Yale Journal of International Law (November 2009 edition). We explain how ACTA got this far, in this form, and propose four mechanisms for USTR transparency reforms, that will give the public a voice in ACTA, if U.S. citizens — and their elected officials — speak loudly and quickly enough.

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade the debates about intellectual property (IP) at established multilateral institutions. The Office of the USTR has chosen to negotiate ACTA as a sole executive agreement. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all. But the negotiations do not have to be secret, and the sole executive agreement process does have mechanisms for oversight: they have not been used in ACTA, but can and should be.

The excuse for using sole executive agreements is that ACTA will be fully respectful of U.S. law. But the constraint of coloring within the lines of US law, as one anonymous trade official described it, is a fragile linchpin upon which the weight of public trust and democratic legitimacy is bearing down. In an interview with “Inside U.S. Trade”, for their June 19, 2009 edition (paywall link here), the USTR was far less confident:

When pressed whether the U.S. would be open to any negotiated difference from U.S. law in the ACTA, the official said that the goal of the U.S. “is to stick as closely to U.S. law as possible.”

How can the USTR negotiate an international agreement that sets new global IP enforcement norms requiring changes to U.S. law and policy as an Executive Agreement, without the knowledge or involvement of Congress? Having failed to get similar proposal adopted via the World Customs Organization, the USTR conceived ACTA as a plurilateral agreement, avoiding the checks and balances of existing multilateral norm-setting bodies. After the announcement of ACTA but prior to commencing formal negotiations, the USTR had prepared a confidentiality agreement that it asked all negotiating countries to accept, which explicitly binds the negotiating partners from public disclosure.

The USTR has exploited this as the justification for classifying all correspondence between negotiating countries in the interest of national security under Executive Order 12958. The Mexican IP Office, which is hosting the next ACTA negotiations, still gave indications that the documents will not be made available to the public. The Internet Chapter was reportedly delivered to negotiating partners in physical, watermarked copies designed to guard against leaks. If the traditional justification for secrecy in trade negotiations is to safeguard details of sensitive US positions in negotiations for diplomatic advantage over other foreign governments, then why is this confidentiality agreement being used to prevent disclosure of ACTA texts to its own citizens?

Upon the expiration of Trade Promotion Authority in 2007, the USTR chose to negotiate ACTA as a sole executive agreement. As a result, ACTA will not require congressional advice and approval, which is integral to the constitution’s delicate balance of executive and legislative powers. As staunch a defender of executive privilege as John Yoo once convincingly argued that the limits of executive power to negotiate foreign agreements on intellectual property matters unchecked would deprive the House of its constitutional function.

From early on, civil society has protested ACTA’s secrecy, and despite continued public pressure, the USTR’s transparency theater rehearsals of internal review have concluded that showing a selective few Washington insiders the Internet provisions under non-disclosure agreements would satisfy the demands of openness, transparency, and oversight.

Sole executive agreements are not meant to be unaccountable. There are in fact systems in place to stop our executive (and private interests) from having untrammeled power to change the law. We’ve outlined four ways that Congress, or an Administration sincere about transparency, could put their house in order.

Reform trade advisory committees for more diverse representation

Input to U.S. trade negotiators on IP needs to reflect the views of all stakeholders in the U.S. knowledge economyreform of the current trade advisory committee system to include civil society and technology industry participation in the tier 3 industry trade advisory committee on intellectual property, ITAC-15, or the creation of new equivalent level advisory committees. Public interest values such as health and consumer protection should play an important role in the new bipartisan trade policy for the knowledge economy. to counterbalance the disproportionate influence of lobbyists for incumbent industries. This requires

Strengthen congressional oversight and negotiating objectives

Congressional oversight of foreign trade negotiations, especially agreements affecting areas of non-trade domestic policy, should require the USTR to comply with negotiating objectives that reflect the interests of all stakeholders in the U.S. economy. In addition to the labor and environmental standards articulated in proposed bills like the TRADE Act (H.R. 3012), IP enforcement provisions in agreements must not undermine internationally agreed upon commitments on public health, and flexibilities that protect citizens’ access to knowledge, nor obstruct IP exceptions and limitations appropriate for the digital age. In addition, the Congressional Oversight Group, a statutory supervisory group comprising members of the House and the Senate designed to liaise with the Trade Representative could conduct a thorough review and certify that the new negotiating objectives have been met before a trade agreement could be brought for a congressional vote.

Institutionalize transparency guidelines for trade negotiations

Given the significance of the substantive provisions being debated to Internet users, the ACTA process especially should enable citizens to participate and provide input on the public policy impacts like in other negotiations, where it is customary practice to make documents available. The Office of the USTR incorporating these reforms should heed the Attorney General’s instruction to adopt a presumption in favor of disclosure to usher in the President’s new era of open Government. At a minimum, negotiating texts, when distributed to all negotiating countries should be made public.

Implement the State Department’s Circular 175 procedure.

Finally, the State Department plays an important role in checking the unfettered power of the USTR through its Circular 175 Procedure. These are the regulations that “ensure the proper exercise of the treaty-making power.” The State Department Foreign Affairs Manual goes into great detail on the Legal Advisor’s criteria for review of international agreements. There are multiple procedures on hand, including formal congressional consultation, when there is a serious question regarding the type of agreement being negotiated. [11 FAM 723.4(b)] It is also made clear that the approval of authorization to negotiate does not constitute advance approval of the text or authorization to enter into the agreement. [11 FAM 724.2] The State Department investigates whether the proposed agreement is “in conflict with other international agreements or U.S. law” [11 FAM 722(2)] and whether it follows the “general international practice as to similar agreements.” [11 FAM 723.3(8)] Most significantly for the public’s stake in Internet freedom, the Circular 175 declares that:

The interest of the public be taken into account and, where in the opinion of the Secretary of State or his or her designee the circumstances permit, the public be given an opportunity to comment. [11 FAM 725.1(6)]

The Office of the USTR transparency practices must be reformed, and they have failed at reforming themselves. Now that the leaked documents confirm everything we feared, it is time to take a look at how we might hold USTR Ambassador Kirk and Assistant McCoy, the lead ACTA negotiator, to account for their promises:

• On diverse representation for advice on trade: “I can assure you that I am committed to working very closely with Congress and all interested stakeholders on all of our trade
  agreements and negotiations, including ACTA.” (Ronald Kirk Confirmation Hearings, March 9, 2009)
• On congressional oversight and legislative power: “Q: Will the ACTA rewrite U.S. law? A: No. Only the U.S. Congress can change U.S. law.” (ACTA Fact Sheet, August 4, 2008)
• On transparency practices: President Obama’s trade officials met with several civil society groups and promised a thorough review of the USTR policies regarding transparency. The review is expected to be completed within a few months. The process will include a meeting within a month to discuss initial specific proposals for openness and transparency. Citizens and NGOs are encouraged to think about the specific areas where openness and transparency can be enhanced and how. (USTR Transparency Review KEI Report, March 19, 2009 – as reviewed by Daniel Sepulveda, Assistant USTR for Congressional Affairs)
• On public participation: The ACTA negotiations “[p]articipants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process.” (USTR Press Release, November 6, 2009)

“Such accountability is available in the U.S. system, but it cannot come from the Office of the USTR alone,” says the EFF’s Katz, adding:

“If ACTA is going to regulate the global Internet, we believe that should warrant the opportunity for public comment.”

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

Deep Links – Stopping the ACTA Juggernaut, November 19, 2009

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]]> http://www.p2pnet.net/story/31335/feed 1 http://www.p2pnet.net/story/31336 http://www.p2pnet.net/story/31336#comments Thu, 19 Nov 2009 12:46:20 +0000 Jon http://www.p2pnet.net/?p=31336 p2pnet news view P2P | Politics:- The outgoing British Labour government wants to leave as its legacy a law to victimise members of the P2P communities, including children, who share with each other online.

“Initially the Government will aim to educate and those identified as downloading unlawfully, will be sent letters,” says the Telegraph. “If this proves insufficient, technical measures will be introduced — including the powers to disconnect pirates.”

The ‘graduated response’ Three Strikes plan, touted as separate ‘initiatives’ by individual governments such as Britain’s, is  in fact a major component of a massive global entertainment industry scheme to acquire the net as an exclusive corporate marketing and distribution vehicle.

Big Music is in the forefront and the first effect of the adoption of any such plan will be to drive a huge wedge between online music fans and musicians. However, anyone accused by the cartels of being copyright infringers of corporate ‘product’ will utimately become targets as well.

With that the background, UK recording artist Billy Bragg (left) will join New Democrat Charlie Angus, himself a musician, to “talk about how artists, not corporate lawyers, are taking the lead on establishing basic rules for the development of digital culture online,” says an NDP statement.

“The internet brings fans and artists closer together than ever before and brings great benefits to both,” Bragg, a co-founder of the new artists-to-fans-to-artsts site, a2f2a.com, told p2pnet.

“Let’s not allow the record industry to keep us apart in order to protect their old broken business model.”

Hearings on digital culture and new media are set to start at the heritage committee, says Angus, adding he and Bragg will be joined by the Songwriters Association of Canada’s Don Quarles, and Wide Mouth Mason’s Safwan Javad, who’ll represent the Canadian Music Creators Coalition.

The meeting will be tomorrow at the National Press Theatre, 150 Wellington, Ottawa, at 10:00 am.

Stay tuned.

Follow p2pnet on Twitter.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

share with each other – Britain changes 3 strikes to 2 strikes, November 18, 2009
Telegraph – Powers to disconnect pirates in Digital Economy Bill, November 18, 2009

This innocuous looking sentence is the lead item in the BBC’s summation of UK government plans to gain control of the Internet on behalf of  Vivendi Universal, EMI, Warner Music and Sony Music, with trumped up allegations against P2P file sharers as the linchpin, and the Queen’s speech as the excuse.

“Plans for tackling pirates will be a two-stage process, according to the Bill,” says the Telegraph. “Initially the Government will aim to educate and those identified as downloading unlawfully, will be sent letters. If this proves insufficient, technical measures will be introduced – including the powers to disconnect pirates.”

Spelled out, that means Gordon Brown’s Labour  government intends to install entertainment industry business plans aimed at gaining total control of product distribution online, as law in Britain.

And it’ll drive a huge wedge between online music lovers and the coterie of music makers who belong to the Featured Artists’ Coalition and  who recently, and unanimously, came out in support of the scheme.

Predictably, “The music industry, who has lobbied the Government hard to tackle illegal downloading, has welcomed the Bill,” says the Telegraph.

However, “internet service providers have been critical of the proposals, and BT claims that forcing ISPs to police piracy could cost the industry £1m a day,” it says, and, “Consumer organisations have warned that plan to cut off subscribers infringes the rights of internet users.”

‘Serial copyright infringers’

‘Education’ means UK politicians will be parroting Big Music mis- and disinformation as though it’s reliable and accurate material emanating from credible sources.

And it’s already begun. “It is good news for fans of British music,” the story has BPI boss Geoff Taylor stating.

It is, of course, the exact opposite. The only ones to benefit will be the Big 4 labels. Everyone else, including the musicians who wrong-headedly voted to penalise their own fans, will be  left out in the cold.

Says Computing.co.uk, “Downing Street made it clear the proposal to disconnect serial copyright infringers from the internet are ‘reserve powers’ which will only be used ‘if needed’.

“The main plank in its two-stage approach to copyright is to make legal action more effective and educate consumers about copyright online.”

The assertion is, of course, completely worthless. The entertainment cartels, not the politicians, are calling the shots and Big Music in particular is noted for favouring the sledgehammer approach when it comes to ‘negotiating’ with members of the online P2P constituencies, and file sharers.

“The Open Rights Group is urging people to contact their MP to oppose the plans,” says the BBC, quoting it as stating:

“This plan won’t stop copyright infringement and with a simple accusation could see you and your family disconnected from the internet – unable to engage in everyday activities like shopping and socialising.”

‘Offline, no-one can hear you whine’

In a Reader’s Write to the open letter to the FAC, “It is important to recognise that 3-strikes is fundamentally unjust/unethical given that no evidence is required,” said Digital Productions‘ Crosbie Fitch summed it up, going on »»»

The victim is simply given two warnings (tipped-off as to what’s about to happen without any way of preventing it) before they are disconnected.

He adds »»»

Your evidence of innocence has to wait until after your ISP has disconnected you, after your PC has been confiscated, after your assets have been seized, after you have located a lawyer willing to take on your case, after you have paid your lawyer to demonstrate at a tribunal that you have grounds to plead for an appeal against your disconnection, and then at your appeal your evidence can be presented (if you still have it).

Maybe, you will then be reconnected … until the next time.

There is NO SANCTION for 3 strikes, even for suspected terrorists, let alone suspected file-sharers. Read The Crucible to get a vague clue as to why incrimination upon suspicion/accusation is such an abomination.

If you thought being sued for copyright infringement in court was an injustice, wait until you suffer disconnection at the whim of the MAFIAA.

The sad thing is, no-one will notice your anguish because you’ll be disconnected, and as they’ll say “Offline, no-one can hear you whine”.

What’ll happen? Nothing.

The only people who haven’t been consulted and who haven’t had a say in any of this are the fans and the electorate, the millions of citizens who keep the politicians, the labels and musicians — contracting and independent, both — alive.

What’s going to happen?

To all intents and purposes, nothing.

The music is out there, and has been since last century. Nothing can change that. File sharers will continue to share files, the labels  will continue to haemorrhage customers, and online music distribution will ultimately be in the hands of cooperating and independent providers and labels who are inexorably  replacing corporate music industry.

The online communities will continue to grow and as they do, their powers of persuasion will expand exponentially while the waning influence of Vivendi Universal, EMI, Warner Music and Sony Music will continue to be reduced proportionally, as will their consumer bases.

The cookie-cutter, formulaic ‘product’ is in 2009 being steadily supplanted by exciting, innovative works from independent musicians, and, “what was previously known as promotion becomes known as discovery,” said Fitch in a comment to a post to The sky isn’t falling! on a2f2a.com, launched under the premise that musicians need to be paid, and fans want to pay them.

“Instead of record labels pushing their music into the remote corners of the world so it meets the widest possible audience, the widespread audience instead sucks the music they like to them from the farthest reaches of the Internet so their desires find the greatest number of artists possible,” said Fitch, adding »»»

Instead of artists having promotion agencies, audiences have discovery agencies (bloggers, etc.). Pandora is an example of a discovery agent.

Artists liberate the public to share their music, and so make themselves as easy to discover as possible. The audiences then have the task of finding the music they like, and the respective artists they would commission to produce more.

Audience=potential fans, auditioning and seeking music.
Fan=someone who’s discovered some music they like, and the artist thereof.

Audiences pay artists with their attention.
Fans pay artists with their money.

Stay tuned.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

BBC – Government lays out digital plans, November 18, 2009
came out in support – Open letter to Featured Artists’ Coalition, November 16, 2009
Telegraph – Powers to disconnect pirates in Digital Economy Bill, November 18, 2009
Computing.co.uk – Queen’s speech highlights digital priorities, November 18, 2009

Bell Canada, Telus Corp., and Rogers Communications, the big three incumbent carriers, unsurprisingly opposed the new rival.  First they lobbied against a set-aside of spectrum for new entrants. When that failed, they argued Globalive failed to comply with the Telecommunications Act’s foreign control restrictions.

Last month, the Canadian Radio-television and Telecommunications Commission agreed. While Industry Canada previously concluded the company met the Canadian control requirements for the purposes of the Radiocommunications Act when it bid for spectrum, the CRTC concluded that its ownership and control structure do not meet the legal requirements to operate as a wireless carrier.

The commission identified a number of changes that will be needed to comply with the law and Globalive says it is evaluating its options. The first option is presumably for the federal cabinet to overrule the CRTC.

Last week, Industry Minister Tony Clement gave Canada’s telecom players until Wednesday to provide their views on the issue as he conducts a pre-cabinet review.  A decision may be weeks away, but the process puts a much bigger question into play: Will the Globalive case become the catalyst for the elimination of telecom foreign control restrictions?

This is hardly the first time the foreign control issue has been raised in Canada.  There have been earlier recommendations to scrap the requirements, most recently in the 2006 Telecom Policy Review Committee report, which concluded that Canada has “one of the most restrictive and inflexible set of rules limiting foreign investment in the telecommunications sector” among all OECD countries.

With hindsight, it should have been obvious that the foreign control issue would be the elephant in the room around the government’s efforts to inject greater competition into the Canadian telecom sector.  There is little doubt that officials — not to mention Canadian consumers — were anxious to encourage new entrants.  While the set-aside in the spectrum auction guaranteed the new entrants, leaving the foreign control rules untouched meant the job was only half-done.

With the Globalive entry into the Canadian market at risk and hundreds of millions in spectrum in limbo, Canadians must ask hard questions about the merits of foreign control restrictions.

The days of retaining Canadian control over physical telecommunications infrastructure connected to millions of homes are over. Wireless networks involve significant investments in cellphone towers, but not direct connectedness into individual homes.

Further, the notion that Canadian control guarantees Canadian jobs is also part of a by-gone era.  Canadian carriers regularly outsource some of their customer service jobs out of the country.  Meanwhile, other parts of the organization — retail and business sales as well as network building — involve jobs that will remain in Canada regardless of a company’s country-of-origin.  While some head office jobs may be at risk, new companies operating in Canada could potentially create more jobs, not fewer.

It is tempting to blame the CRTC or the incumbent telecom providers for the current mess, but the real culprit lies with outdated legislation that prioritizes Canadian ownership over a competitive Canadian marketplace. The solution lies in changing the law to facilitate foreign ownership of common carriers — both to facilitate immediate competition and to pave the way for more foreign bidders in the next round of spectrum auctions.

Michael Geist — Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

November, 2009

Pictured on the right after a discussion with environmentalists, he’s the front man for Big Music and Hollywood plans to use their Three Strikes and you’re Gone scheme to gain control of online product and content distribution by turning governments into copyright agents, the bill footed by local taxpayers, and ISPs into enforcers, acting against their own clients.

In the process, one of his most outstanding achievements has been to pit members of a new independent music coalition against their fans, the people who keep them and their music alive.

Said Mandelson in a letter to Indiana Gregg, recently »»»

We propose to legislate to ensure that consumers whose broadband account has been identified in connection with alleged copyright infringement would be alerted by letter.  This would set out the legal position but also provide pointers for help and information on, for example, how to protect wireless networks properly, where to find legal sources and routes of appeal.  This letter would come from the Internet Service Providers (ISP) concerned, not a law firm.  This should help address many concerns about individuals being wrongly identified, not having the correct information or indeed feeling pressured by the threat of legal action.

For those individuals who choose to ignore the letter, they will receive a number of further warnings before they are ultimately addd to a list of those subscribers most frequently alleged to have breached copyright.  Rights holders will be able to use a court order to obtain the details of these individuals and then take targeted legal action as appropriate. This should ensure that individuals have ample opportunity to change their behaviour, take appropriate action to, for example, secure their wireless connection or indeed appeal.  It would also mean that only those who chose to ignore the warnings and who appeared to continue to infringe copyright on a large scale would face legal action.

In a strange and dangerous (for Featured Artists’ Coalition members)  reversal, the plan, the UK component of a  carefully orchestrated global project, is now also supported by the FAC.

And in a comment post on artists-to-fans-to-artists site a2f2a.com, “It’s a front to weave in a new set of laws which will ultimately lead to legislation towards the personal ID system and ‘internet passports’,” says Gregg, adding:

“And although half the web thought I was a little crazy last year for mentioning it, here we have Kaspersky’s point of view only a year later: http://www.zdnetasia.com/insight/security/0,39044829,62058697,00.htm?tag=mncol;txt.”

Now, “Lord Mandelson will become the ‘public face’ of the government by giving regular televised press conferences as it tries to sharpen its message in the run-up to the general election,” says The Independent, going on:

“The Business Secretary is expected to answer journalists’ questions on camera once a week following a review announced yesterday of the way the Westminster lobby system works.”

In what has  to be at least a partial explanation for his continuing blunders, as well as becoming unofficial ‘Minister for Information’ and heading the department for business, he’s an adviser to Gordon Brown, “and sits on 35 Cabinet committees.”

Thirty-five committes?

No need to stay tuned.

Jon Newton – p2pnet

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

Indiana Gregg – ‘Three strikes’ Mandelson to Indiana Gregg, November 9, 2009
carefully orchestrated global project – Three strikes world-wide, and a global DMCA, November 4, 2009

Webcasts of the two panels are available online (my panel on TRIPs and ACTA; a second panel on U.S. efforts to increase international IP enforcement).

My 20 minute talk was essentially an ACTA 101: when it started, what it involves, and what may lie ahead.

I’ve taken a recording of the talk mixed with the slides and posted a video version of the talk on Blip.tv.

Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

November, 2009

RIAA is, ironically, short for Recording Industry Association of America.

And now ex-MPAA staffer Angela Belden Martinez has become senior advisor, director of outreach for economic development, at the United States Department of Commerce.

“Angie is an intelligent, dedicated and creative professional who served the MPAA well, and I have no doubt that she will be a tremendous asset to the Obama Administration,” says outgoing MPAA boss Dan ‘The Joker’ Glickman.

No doubt.

How many other Hollywood supporters (actual or ex) are helping the current American president, one wonders?

Apart from US vice president HoJoe Biden (right), that is.

Not that Hollywood, through its MPAA, is without political influence in other areas.

Glickman, for example, was the US secretary of agriculture before joining the MPAA and until this year,  Susan C. Schwab was the US trade rep, taking over from Rob Portman, a loyal Hollywood friend, as p2pnet observed.

Interestingly, “Schwab started out as a USTO agricultural trade negotiator …”

Not only but also, when Victoria Espinel was named America’s new IP czar, or Intellectual Property Enforcement Coordinator, “We applaud President Obama’s decision,” said Glickman.

Hmmmm.

Stay tuned.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

loaded to the gills - Jenner & Block – running the DoJ?, April 26, 2009
Dan ‘The Joker’ Glickman – MPAA boss Glickman’s new job, July 7, 2009
HoJoe Biden – How much will Biden influence Obama?, November 5, 2008
p2pnet – Hollywood lauds US trade office, April 29, 2006
We applaud – Anti-P2P Espinel new IP czar, September 28, 2009

Instead it has BREIN, a kind of combination of the two and, “According to BREIN, the production of intellectual property contributes for 5,9% to the Dutch economy and is an important export product for The Netherlands,” says a p2pnet Reader’s Write.

I’ve renamed the poster ‘Mr xxx’ because I have reason to believe the  original name is a fake.

But that’s OK because the comment goes on, “When copyright is not enforced, not only content producers suffer, but indirectly also society as a whole through missed tax income, loss of employment and decreasing culturl [sic] diversity,” and links to an undated Future of Copyright item.

ACTA is the Anti-Counterfeiting Trade Agreement.

“While battling commercial counterfeiting would seem like a good idea, the ACTA process has been marked by unprecedented secrecy as well as leaks revealing that the treaty is really about copyright rather than counterfeiting,” noted Michael Geist.

Said the Future of Copyright post in part »»»

The ACTA negotiations occur behind closed doors, which is not uncommon when trying to establish international treaties.

Civil rights organisations and ISPs have acted against the proposal to include the online environment in the treaty. The Electronic Frontier Foundation, for example, views the plans as a way to force upon the world a global three strikes policy. “The proposals have nothing to do with fighting counterfeit goods, but form a system of copyright pressure for the world wide web, including the obligation for ISPs to comply with a three strikes policy”, states Webwereld.

If ISPs would choose not to comply, they would lose their ‘safe harbors’ and would be liable for any copyright infringements by their clients.

This is not completely true. According to a leaked document of the European Commission, there are safe harbors for ISPs as long as they take steps to fight piracy. Three strikes regulations are an option, not an obligation.

In a letter to undersecretary for Economic Affairs Heemskerk, BREIN clarifies why the organisation thinks it is important that the ACTA negotiations do include digital distribution.

According to BREIN, the production of intellectual property contributes for 5,9% to the Dutch economy and is an important export product for The Netherlands. When copyright is not enforced, not only content producers suffer, but indirectly also society as a whole through missed tax income, loss of employment and decreasing culturl diversity.

Therefore, BREIN requests the undersecretary to make policies to counter any kind of piracy in the ACTA negotiations, including piracy in the online environment.

A number of United States senators and representatives have stated that the rights and interests of consumers are not safeguarded sufficiently. “Left out of the ACTA text are the elements most favorable to consumers, including those intended to curb anticompetitive practices, and to protect innovation. The result is an agreement that is therefore unbalanced.”

Now you know.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

Future of Copyright – BREIN pleads for inclusion of online environment in ACTA
Michael Geist – ACTA talks – the ‘highest level of secrecy’, November 10, 2009

From the moment the talks began last year, observers noted the approach was far different from virtually any other international treaty negotiation.

Rather than negotiating in an international venue such as the United Nations and opening the door to any interested countries, ACTA partners consisted of a small group of countries (Canada, the United States, the European Union, Japan, Korea, Australia, New Zealand, Mexico, Morocco and Singapore) meeting in secret and opposed broadening the process.

The substance of the treaty was also accorded the highest level of secrecy. Draft documents were not released to the public and even the locations of negotiations were often kept under wraps. In fact, the U.S. government refused to disclose information about the treaty on national security grounds.

Despite the efforts to keep the public in the dark, there has been a steady stream of leaks. Earlier this year, it was revealed criminal provisions would target both commercial and non-commercial infringement, creating the prospect of jail time even in cases where there was no intent to profit. Further, border guards would be given new powers to search people and seize products as they enter a country.

Just as negotiators were sitting down to discuss ACTA’s Internet-related provisions last Wednesday, information on those proposals also leaked. The disclosures were the most disturbing to date, since they conclusively demonstrated that ACTA is fundamentally not a counterfeiting treaty, but rather one focused on copyright.

The Internet provisions feature specific requirements on the legal protection for digital locks that extend far beyond those required under international law. Moreover, they would move Canada toward a three-strikes-and-you’re-out approach that requires Internet providers to cut off subscriber access on three allegations of infringement. Canada’s successful “notice and notice” approach to addressing infringing content hosted by Internet providers – adopted by both Conservative and Liberal copyright bills – would be rejected in favour of a U.S. model that requires removal of content without evidence of infringement.

The combined effect of these provisions would dramatically reshape Canadian copyright law and eliminate sovereign choice on domestic copyright policy. These issues were at the heart of thousands of submissions as part of this summer’s national copyright consultation. However, if Canada agrees to ACTA, flexibility would be lost and the government would be forced to implement a host of new reforms.

Such an approach contradicts recent comments from Industry Minister Tony Clement. In an interview earlier this month, he stated “Canada and its international trading partners each have distinct copyright policies, laws and approaches for addressing the challenges and opportunities of the Internet. Canada’s current framework provides strong intellectual property protections and our copyright laws apply in the digital context, including on the Internet. Moreover, Canada’s regime for the protection and enforcement of intellectual property rights is fully consistent with its international obligations.”

Yet the ACTA provisions seek to remove those distinctions.

If adopted, the robust copyright debate that occurred over the summer would be rendered moot. Instead, it would appear that a made-in-Canada approach would give way to decisions made last week at secret meetings in Seoul.

Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

November, 2009

In turn, a2f2a.com is the world’s first, and still the only, site founded specifically by music artists and fans for music artists and fans.

So it’s  appropriate that John Barron, who leads the UK Pirate Party’s copyright working group subcommittee, is a frequent, and articulate, poster on a2f2a

As he points out,  the strap-line  is “Start your own revolution – cut out the middleman !” – and, co-founded by UK artist Billy Bragg, a2f2a went online recognising artists need to be paid, and fans want to pay them — directly.

Its goals are to:

• Help each community better understand the other;
• Help find a practical and workable system which offers artists fair remuneration in exchange for access to material by fans; and
• Help set the agenda for discussions about the role P2P can play within the emergent digital record industry.

“We’ve seen some proposals, such as the blank media levy, and a lot of discussion about copyright, and particular aspects such as performance rights and radio plays, and others,” says Barron on one of the hottest the a2f2a discussions.

“Everything I’ve seen has been very good-natured, despite significant differences of opinion, as is only to be expected,” he says, going on »»»

We’ve also had some comments and posts from artists, and I’m getting the impression that there are more who may look at the website and read, whether they directly interact or not.

I’d like to draw your attention to a specific, detailed, proposal, about all this, made not by me, nor by the Pirate Party of which I’m a member and activist. I saw this recently from Techdirt, pointing to an academic paper recently written by Jessica Litman, law professor and copyright expert. The actual paper is quite lengthy, with all the citations and so forth that you might expect. However, summarised down to its essentials, it’s saying some things which make me wonder, “How much of this could we actually adopt, or agree as a consensus, here on a2f2a?”.

Talking for consensus, from what I’ve seen so far, the two main items that there is wide (though not universal – sorry, Crosbie!) agreement on seem to be:

• That private, personal use, copying, and distribution, for love not commercial gain, should not be restricted
• That artists still need an opportunity to earn a reward, and that commercial use where someone is directly profiting from creative work, should require agreement/remittance back to the artist in some way – leading to the slogan “Where money is made, artists must be paid”

Both of these have been stated here, and both I agree with and also form part of the Pirate Party core values. Beyond that, however, when I look at the abstract to the paper, and at the excellent summary made by Techdirt/Mike Masnick, I’m wondering if we could find common ground on several of Professor Litman’s proposals, perhaps?

Abstract to the paper:

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. [...]

The foundation of copyright law’s legitimacy, [Jessica argues], derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another’s exploitation of copyrighted works.

[Jessica argues] that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, [Jessica suggests], is to reallocate copyright’s benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.

The Pirate Party support the concept of copyright, and wish to reform it, rather than abolish it, so that it can once again serve its intended purpose of encouraging the creation of new works, so that more is produced than otherwise might be the case, and we all gain from the increase in knowledge and the richness of our culture. However, the freedoms of us all to enjoy the results of that, and in time to develop from that, is the whole point and it cannot work if copyright is so long and restrictive as to impede that. We would seek evidence-based policy, which really does encourage production of work, and which becomes part of our common shared culture, rather than “owned” by anyone, within a reasonable time period.

From Techdirt:

Litman goes on to suggest that the fact that so many people out there don’t have any respect for copyright law at all is pretty clearly the fault of the current copyright holders who have twisted and abused the law to the point that people just don’t respect it. So, her ideas for copyright reform are based on bringing back “legitimacy” to copyright law by focusing on four principles:

1. Radically simplifying copyright law
2. Empowering content creators (rather than intermediaries and distributors)
3. Empowering readers, listeners and viewers (who, after all, are supposed to be part of the beneficiaries of copyright law)
4. Disintermediating copyright away from the middlemen who seem to control the law today

My comment:

Again, this is perfectly in tune with Pirate policy, and I also support wholeheartedly. The only additional comment I’d make is to point out that the ranks of (2) above are drawn from the ranks of (3), and the barrier to being a “content creator” continues to drop dramatically.

From Techdirt:

To then accomplish this, [Jessica] suggests the following steps:

1. Focus on commercial exploitation (rather than personal use)
2. Simplify what copyright covers (rather than breaking out each separate exclusive right within copyright)
3. Reconnect creators to their copyright (via a termination right that lets them take copyrights back from third parties)
4. Clearly recognize readers’ (or viewers’, listeners’, users’, etc) rights
5. Get rid of existing compulsory license (and similar) intermediaries, such as ASCAP, BMI, SoundExchange and others

My comments:

(1) as discussed above, seems like an early area of broad agreement here. (2) is really just about simplifying the whole edifice so it’s understandable, which is more important than ever now that everyone can copy and copyright affects everyone.

(3) I suspect would fit right in with Billy’s proposals for essentially the same; for the Pirate Party, I expect this is something we wouldn’t agree on, as we propose a much more radical termination right, that copyright should expire entirely (apart from the non-assignable attribution right to be identified as the creator) within a reasonably short time, such as 10 years.

However, I would also point out that even as the Pirate Party becomes politically significant, some of the changes we want would breach international treaties, such as the Berne convention. Therefore these are things we may need to pursue above national level (this is where it’s useful being a pan-European and wider international movement), and may not happen overnight. So… while we might not be satisfied with the proposal here, it certainly doesn’t sound any worse than what we have now, and perhaps begins to establish the principle that creative work is not “intellectual property” transferable entirely like physical property, but something which can and should terminate in time.

(4) is the type of area where Pirate policy would speak for individual freedoms, against for example digital restrictions, and where perhaps (as mentioned above, readers/users are not so clearly separated from creators, and we have a much more participatory environment where it is easier than ever before to create or remix what has gone before. Which is wonderful, and to be celebrated and encouraged in every possible way.

(5) perhaps might be a big fight with some of the vested interests which control existing collection arrangements. However, as was clear in the threads on the ideas such as media levies or ISP taxes, there’s a big suspicion in our minds that these can be a slush fund, and that they tend primarily benefit the collecting agency and the established industry. These organisations have a very bad history in the minds of many people, and could be seen to be part of the problem, rather than part of the solution.

As mentioned in some of the comment threads to previous posts here on a2f2a, it may be that initiatives and conversations such as this, and the growing freedom of both artists and fans to be able to connect directly, are the biggest nightmare imaginable for the established “intermediary” media industry.

Last words

Finally, I’ll leave you with this thought:

Remember that people love to enjoy and share our culture, and artists love to reach the widest possible audience. Overall, we still have exactly as much disposable income to spend on being entertained and informed as we ever did, and if we can also share more widely than was possible before, or that we could ever have afforded in 20th century physical media, this is good for all of us, and only likely to encourage us to spend more on information, art, and culture, and to create more as well.

[This is my personal take on the Litman proposals.]

John Barron – PPUK

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November, 2009

Who would have done the tracking?

Britain’s Home Office

However, ‘would have’ is the operative phrase because the UK government now says its “Big Brother” scheme has been delayed until after the election “amid protests that it would be intrusive and open to abuse,” says The Independent.

“A Whitehall source told The Independent last night that the project, estimated to cost up to £2bn over 10 years, was ‘in the very long grass’,”  says the story, continuing »»»

Civil rights campaigners welcomed the move but warned that ministers were already responsible for introducing a range of databases and surveillance measures that breached basic liberties.

The data retention proposals have been championed by the intelligence agencies and police as a vital tool for tracking terror plots and international crime syndicates. Under the plans, communications companies would keep a record of phone numbers rung, addresses to which emails are sent, details of internet sites visited and the use of social networking sites such as Facebook – and would be required to surrender details to police when asked. They would not hold records of phone conversations or the contents of emails.

The planned Communications Data Bill, which would have created a giant database of this information, was dropped from last year’s Queen’s Speech in the face of public hostility.

Predictably, “If the Government does not maintain the capability or capacity for the police to determine … who has communicated with whom and when, the police service will face a fundamental breakdown in our ability to function in the communications age,” said the Association of Chief Police Officers.

“Earlier this year the Government clashed with the European Court of Human Rights over its determination to allow the police to keep DNA records of innocent people,” the story adds.

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andThe Independent – Ministers cancel ‘Big Brother’ database, November 10at, 2009

“This agreement, though named the Anti-Counterfeiting Trade Agreement (ACTA), implicates changes to international intellectual property norms far broader than its name suggests,” they say to the US Senate Judiciary Committee; Senate Finance Committee; House Committee on the Judiciary; House Committee on Energy and Commerce; and, House Committee on Ways and Means.

“We write today to register our grave concerns with the provisions purportedly contained within ACTA, and their effects upon the public,” say the two public interest organisations, going on »»»

We have often expressed our concerns about the need for transparency of this negotiation, and have joined others in asking the Congress and the Administration to open this negotiation to public oversight and input, as is customary in other areas of global norm setting for intellectual property rules. Only through such openness can we ensure the legitimacy of any policy norms resulting from this process.

However, we also maintain serious reservations about ACTA’s contents and substance, based upon what is known about the negotiation from public press reports an credible leaked documents.

While we would vastly prefer to rely upon official sources and documents in raising our concerns, the secretive nature of the ACTA process leaves us with no alternative in discussing these pressing matters. We urge you to insist that the Administration to provide the public with the actual text of the ACTA proposals so that all stakeholders, including the public, can have productive and informed discussions on substantive issues.

Given what has been disclosed so far, the U.S. and other ACTA parties are seeking to create a set of obligations for countries that expand upon certain elements of the Word Trade Organization’s Trade Related Aspects of Intellectual Property (TRIPS) agreement. Rather than taking as their starting point the entire TRIPS agreement, it would seem that the ACTA negotiators have identified certain parts of the TRIPS agreement most favorable to particular groups of intellectual property holders, including certain publishers, media conglomerates, and pharmaceutical companies. Left out of the ACTA text are the elements most favorable to consumers, including  those intended to curb anticompetitive practices, and to protect innovation.

The result is an agreement that is therefore unbalanced. ACTA would appear to be an expanded version of the TRIPS enforcement sections, but without the balance and safeguards that have given TRIPS such legitimacy. There is no evidence that ACTA contains any of the safeguards which are embodied in Articles 1, 6, 7, 8, 40 and 44.2 of TRIPS. These provisions provide a wide range of necessary protections, including:

• Article 1 of the TRIPS provides that countries are “free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.”
• Article 6 of the TRIPS is a guarantee that the agreement will not limit the scope of the exhaustion of intellectual property rights, so that WTO members have flexibility when implementing policies concerning parallel trade or the first sale doctrine.
• Article 7 of the TRIPS provides that “[t]he protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”
• Article 8 of the TRIPS is a guarantee that WTO members may “adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance” and take appropriate measures to “prevent the abuse of intellectual property
  rights by right holders.”
• Article 40 of the TRIPS concerns the ability of countries to control anti-competitive practices, and curb abuses of intellectual property rights.
• Article 44.2. of the TRIPS allows governments to eliminate the possibility of injunctions to enforce intellectual property rights, in certain cases where governments provide for remuneration to right owners. This flexibility is part of several sections of U.S. law, all of which are important to consumers and are at risk if the ACTA discards the flexibility now found in Article 44.2 of the TRIPS.1

These different provisions, which are evidently being discarded or ignored, are collectively essential to protecting the public interest.

Meanwhile, other provisions of ACTA have apparently refashioned a number of TRIPS provisions in more restrictive ways. By specifying particular remedies and means of enforcement, ACTA restrains the application of Articles 41, 44.1, 45, 46, 47, 50, most of Section 4, and Article 61.

Current revelations about ACTA suggest that its provisions are overwhelmingly selected to advantage a narrow set of interests, failing to take into account its effects on the overall economy, the civil and economic rights of the public, and other elements of the public good.

In this regard, and for constructive comments on how enforcement policy should be designed, we call your attention to the recommendations of the Trans Atlantic Consumer Dialogue (TACD) Resolution on the enforcement of copyright, trademarks, patents and other intellectual property rights (IP 09-09), adopted June 2009.

The ACTA negotiations, while operating in extraordinary secrecy, are leading to a result that is anti-consumer and anti-innovation. The public should be allowed to raise its concerns in an open and democratic environment where everyone will be able to observe and influence these alterations to our intellectual property policy. We urge you to end this exercise in unbalanced, opaque policymaking. The ACTA negotiations should be made open, or they should be stopped.

Respectfully Submitted
James Love Gigi Sohn
Knowledge Ecology International Public Knowledge

Footnote:

1 For example, U.S. law places limits on the use of patents for civil nuclear energy [48 USC 2184], as well as limits on the use of patents, copyright and plant breeder rights by or for the U.S. government [28 USC 1498]. The treatment of injunctions in the ACTA is also relevant to the use of patents by medical practitioners: [35 USC 287 (c)(1)], the safe harbor infringement exception for generic medicines [28 USC 271 (e) (3)], and for the ability of the U.S. to acquire generic medicines for use in the President’s Emergency Plan for AIDS Relief program, when products are shipped as “goods in transit” through countries with different intellectual property regimes and registered rights. http://keionline.org/blogs/2009/07/31/acta-injunctions.

http://www.publicknowledge.org/pdf/kei-pk-acta-letter-20091109.pdf

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

KEI and Public Knowledge – Missing Safeguards in ACTA present risks to consumers in the United States, November 9, 2009

The words belong to Jordan Carter, deputy executive director of Internet New Zealand.

It “would not be in New Zealand’s best interest to sign a global treaty on copyright law, as each individual country should develop its own regulations,” he says, quoted by the National Business Review.

His statement follows the latest round of anti-counterfeiting trade agreement ACTA, which wrapped up in Seoul, Korea, last week.

“InternetNZ deputy executive director Jordan Carter said the organisation was all in favour of developing an international treaty against content piracy but strongly disagreed against a global policy that enforced punishment on individual users  who breached infringement notices,” the story continues.

“Instead, New Zealand should be able to develop its own regulations,” he said.

If the country decides it, rather than the corporate entertainment industry, should be drawing up rules and regulations which affect its citizens, it’ll be joining Spain and Germany which have both decided they, and not Hollywood or Big Music, will decide what, if anything, to do about the spectre of ‘piracy’.

The UK seems determined to become a taxpayer-funded extension of the corporate entertainment industry, and as p2pnet revealed today, “We propose to legislate to ensure that consumers whose broadband account has been identified in connection with alleged copyright infringement would be alerted by letter,” says business secretary Peter Mandelson, going on »»»

This would set out the legal position but also provide pointers for help and information on, for example, how to protect wireless networks properly, where to find legal sources and routes of appeal.  This letter would come from the Internet Service Providers (ISP) concerned, not a law firm.  This should help address many concerns about individuals being wrongly identified, not having the correct information or indeed feeling pressured by the threat of legal action.

For those individuals who choose to ignore the letter, they will receive a number of further warnings before they are ultimately addd to a list of those subscribers most frequently alleged to have breached copyright.  Rights holders will be able to use a court order to obtain the details of these individuals and then take targeted legal action as appropriate. This should ensure that individuals have ample opportunity to change their behaviour, take appropriate action to, for example, secure their wireless connection or indeed appeal.  It would also mean that only those who chose to ignore the warnings and who appeared to continue to infringe copyright on a large scale would face legal action.

As a final safeguard, this activity would be underpinned by a Code overseen by the independent regulator the Office of Communications (Ofcom).  A key issue the Code would have to cover is consumer protection- one of Ofcom’s prime roles.  However, we are breaking new ground in legislating to tackle this type of activity and while we are confident these measures will significantly reduce the level of unlawful file-sharing, we cannot be sure.  That is why we are also including the option to allow the introduction of technical measures if the notifications and legal action do not prove as effective as we expect.

But, “We don’t support this three strikes approach, and would be very disappointed if John Key signed an agreement [than implemented this],” says Carter in the National Business Review story.

Moreover, the government should clarify its stance on the matter and “put more information about what exactly is under discussion into the public domain,” he says.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

National Business Review – NZ should not sign international piracy agreement, November 9, 2009
wrapped up in Seoul – Three strikes world-wide, and a global DMCA, November 4, 2009
Spain – Spain says No! to 3 strikes law, November 6, 2009
Germany – Germany says ‘No!’ to 3 strikes law, October 28, 2009

Like TPB is HOLY! No one attacks them!

She and her husband, Ian Morrow, asked TPB to remove a .torrent linking to Gregg’s ‘Woman At Work’ album.

And they suffered the wrath of the net as a result.

That was more than a year ago and Indiana, still front and centre in the copyfight, recently decided she wasn’t content to accept the mainstream media reports of the UK government’s plans for its version of the Three Strikes and you’re Off The Net policy.

Anyone who “persistently” downloads ‘illegal’ content after being twice warned not to do it will be disconnected, business secretary Peter Mandelson said.

Print and electronic mainstream media consistently lay the plan on his doorstep, presenting it as a UK ‘initiative’. But it’s world wide and ISPs everywhere may be forced to snoop on their customers and cut them off if they’re found to have shared copyright-protected music online, said the IDG News Service in a story on the latest round of the secret ACTA talks which have just concluded in Korea.

Because ACTA and the Three Strikes plans go hand-in-hand.

“Promoted by America, Yes — but on behalf of the entertainment industry,” said p2pnet, going on the ‘initiative’ is “touted around the world as individual government plans is nothing but a part of a carefully orchestrated campaign to turn governments into copyright agencies  funded by local taxpayers, and ISPs into  copyright police, acting against their own customers.”

Mandelson is, then, doing no more than handling it  in Britain on behalf of Vivendi Universal, EMI, Warner Music and Sony Music, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures.

What, specifically, does he have in mind?

When Indiana asked him, she received a reply from James Matthews of the BIS ministerial correspondence unit  which, among other things, shamelessly and blatantly promotes Virgin Media and Universal.

It says »»»

The Government wants as many people as possible to enjoy all the benefits that broadband internet can bring. New technology has changed the way people want to use and access media content, in some cases faster than products and services commercially on offer have developed. But we are also clear that the benefits of the internet must include economic benefits for our creative industries and artists. We therefore take extremely seriously the problem of illegal file sharing, and have been working closely with rights holders, media companies and internet firms to develop practical solutions to reduce and prevent this.

Whilst all parties would prefer a voluntary, rather than a regulatory solution, it is clear that such a commercial solution is very difficult to achieve.  We recognize that one problem is the need for a level playing field and therefore acknowledge the need for a regulatory baseline.  Last year we hed a consultation on possible legislative options to tackle file-sharing; this, submissions received and the Government’s response can be found at:  http://www.ber.go.uk/consultations/page47141.html

We set out how we pan to move forward on this in the Digital Britain Report published on 16 June, which identified the need to encourage new sources of content and increased levels of media literacy as well as how to tackle whose unlawfully sharing copyright material (chapter 4).  The report can be found at:

http://www.dcms.gov.uk/what_we_do/broadcasting/5631.aspx

We propose to legislate to ensure that consumers whose broadband account has been identified in connection with alleged copyright infringement would be alerted by letter.  This would set out the legal position but also provide pointers for help and information on, for example, how to protect wireless networks properly, where to find legal sources and routes of appeal.  This letter would come from the Internet Service Providers (ISP) concerned, not a law firm.  This should help address many concerns about individuals being wrongly identified, not having the correct information or indeed feeling pressured by the threat of legal action.

For those individuals who choose to ignore the letter, they will receive a number of further warnings before they are ultimately addd to a list of those subscribers most frequently alleged to have breached copyright.  Rights holders will be able to use a court order to obtain the details of these individuals and then take targeted legal action as appropriate. This should ensure that individuals have ample opportunity to change their behaviour, take appropriate action to, for example, secure their wireless connection or indeed appeal.  It would also mean that only those who chose to ignore the warnings and who appeared to continue to infringe copyright on a large scale would face legal action.

As a final safeguard, this activity would be underpinned by a Code overseen by the independent regulator the Office of Communications (Ofcom).  A key issue the Code would have to cover is consumer protection- one of Ofcom’s prime roles.  However, we are breaking new ground in legislating to tackle this type of activity and while we are confident these measures will significantly reduce the level of unlawful file-sharing, we cannot be sure.  That is why we are also including the option to allow the introduction of technical measures if the notifications and legal action do not prove as effective as we expect.

We committed in the interim Digital Britain report to consult on the detail of the legislative proposals and this sonsultation was issued on 16 June.  Following this, concern was expressed at the length of time it would take to implement these measures- or indeed move to technical measures.  We therefore decided to modify these proposals and issued a statement on 25 August explaining our thinking. The consultation on these proposals closed on 29 September.  We are in the process of analyzing all the responses received and intend to issue a summary along with the Government’s top-level response in November.  I hope your constituent was able to contribute to the debate.

However, it is not possible to look at file-sharing in isolation.  There is also the need to ensure proper education of consumers, for new attractive legal sources of content as well as a system of notifications; these will play a significant part in that education role.  It is vital that there are attractive legal offers available so that unlawful behaviour is no longer the default” for many seeking content online.  That is why we welcomed the recent announcement by Virgin Media and Universal on the launchof a subscription download model, allied with Virgin taking anti-piracy measures on its network.  This is the type of agreement which will play a critical role in moving the majority of people away from piracy.

Our ambition is to see the UK as the leading major economy for innovation, investment and quality in the digital and communications industries.  The Digital Britain Report aims to secure four key conditions, namely: open markets; empowered and informed consumers and citizens; universal access to public service content; and a responsive regulatory framework.  One work-stream will explore business models for content deveopment in the digital age and the impact of new media on the content market.  In addition, the UK Intellectual Property Office will take forward work to deliver a digital copyright framework which supports creativity, investment and job creation.

Definitely stay tuned.

Follow p2pnet on Twitter.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

wrath of the net – Indiana Gregg versus The Pirate Bay, July 5, 2008
IDG News Service – Trade Talks Hone in on Internet Abuse and ISP Liability, November 3, 2009
p2pnet – Three strikes world-wide, and a global DMCA, November 4, 2009

“ISPs around the world may be forced to snoop on their subscribers and cut them off if they are found to have shared copyright-protected music on the Internet, under an international agreement being promoted by the U.S.,” said the IDG News Service.

Promoted by America, Yes, we said, “but on behalf of the entertainment industry”.

Because as we’ve stressed repeatedly, the Three Strikes and you’re Off The Net ‘initiative’ touted around the world as individual plans is nothing but a part of a carefully orchestrated campaign to coerce milquetoast governments into  acting as corporate copyright agents  with taxpayers footing the bill, and local ISPs acting as enforcement cops against their own customers.

And leading the way at the moment is Britain, with secretary of state for business Peter Mandelson as the front-man, and the Digital Economy Bill slated for debate by the UK parliament.

However, Spain has now joined Germany in refusing to adopt the scheme.

It does not intend to disconnect Internet users who repeatedly ignore warnings not to download copyright protected content, Billboard has culture minister Angeles González-Sinde (right) saying.

The government “is not considering punitive measures for the end user of Internet,” González-Sinde stated during a TV show,  says the story, going on »»»

This ruled out following the three-strikes tendencies of France or the United Kingdom against illegal downloaders.

González-Sinde said the first thing to do is “attack the origin of all these products that are on the Web sites, as well as those who benefit from them.” She added that Internet piracy was “a very complex matter,” and would surely be very present in debates during Spain’s six-month presidency of the European Union that begins Jan. 1.

Meanwhile in the UK, First Secretary of State, Lord Mandelson, has been pushing the government’s plans to disconnect illegal file-sharers in legislation similar to the French “three-strikes” Hadopi laws passed earlier this year.

Mandelson said that the days of “consequence-free” web file-sharing are over, although he promises internet disconnections would only be used as a last resort.

Jane and John Q. Public

We’ll never know how many hundreds of millions of dollars Vivendi Universal, EMI, Warner Music and Sony Music have squandered on their vicious worldwide media blitz designed to paint the men, women and children who share music  online as hardcore criminals and thieves — money which rightfully should have gone to paying and promoting contracted artists,  not to mention shareholders and investors.

In an ideal world, they’d now be reaping the vast financial benefits of tapping into the  burgeoning world of online digital music.

Instead, they’re reporting diminishing sales, which is hardly surprising given their sue ‘em all campaigns have been  publicising and promoting file sharing, the very thing they’ve been failing at enormous cost to crush.

Using ‘copyright infringement’ as their justification, they’ve attacked young children, dead grandmothers, people with serious medica conditions for whom undue pressure could cause potential fatal repercussions, all to no avail.

And their willing parners throughout have been, and continue to be, mainstream print and electronic news outlets.

The only people who haven’t had any say at all have been the ones who keep everyone in business — Jane and John Q. Public.

However the net and P2P are changing that.

Jane and John now have online voices which can’t be muted.

Stay tuned.

Follow p2pnet on Twitter.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

IDG News Service – Trade Talks Hone in on Internet Abuse and ISP Liability, November 3, 2009
coerce milquetoast governments – Three strikes world-wide, and a global DMCA, November 4, 2009
joined Germany – Germany says ‘No!’ to 3 strikes law, October 28, 2009
Billboard – Spanish Govt Rules Out Three-Strikes Law, November 5, 2009

“Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public,” he blogged.

Now, “As the ACTA story begins to capture mainstream media attention (front page of the Ottawa Citizen, coverage from the Washington Post, NZ Herald, the Atlantic, Wired), the press release from the now-concluded Seoul talks should be released shortly,” he says today, going on:

” If the past releases are any indication, it will thank the Korean government and blandly describe the talks on Internet and criminal provisions.

And in an update, ” release out, exactly as predicted“.

We’ve reproduced it in full below, for what it’s worth, which is nothing »»»

The 6th Round of Negotiations on Anti-Counterfeiting Trade Agreement

The 6th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) was held in Seoul on November 4th to 6th, 2009, hosted by the Republic of Korea. Participants in the negotiations included Australia, Canada, the European Union, represented by the European Commission, the EU Presidency (Sweden), and EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America (alphabetically ordered).

The meeting was chaired by Mr. Gheewhan Kim, Director-General, and Ms. Miyon Lee, Director, Multilateral Trade Bureau, Ministry of Foreign Affairs and Trade. Participants underlined the importance of ACTA as an agreement which shall provide for an enhanced framework to fight global infringement of intellectual property rights, particularly in the context of counterfeiting and piracy.

The discussions at the meeting were productive and focused on enforcement of rights in the digital environment and criminal enforcement. Participants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process.

Participants in the meeting agreed that the next meeting would be hosted by Mexico in January 2010. Participants also reaffirmed their commitment to continue their work with the aim of concluding the agreement as soon as possible in 2010.

However, says Geist, “More informative is the actual document that served as the basis for my postings earlier this week …

He has the documet embedded on his blog, pointing out a login is required for PDF download.

Definitely stay tuned.

Follow p2pnet on Twitter.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

summed up – ACTA in Korea: ’secret talks on transparency’, November 5, 2009
blogged – ACTA Negotiations, Day Three: Secret Talks on Transparency, November 5, 2009

She says on her website posted, obviously, before she was named as an MEP  »»»

My name is Amelia Andersdotter and I am 21 years old. I study Economics and Spanish at Lund University in southern Sweden. I am one of the top candidates in the 2009 European Parliament elections for Piratpartiet (the Swedish Pirate Party).

My political ambitions include a thorough revision and change of the copyright legislation, a complete removal of the patent system and a more balanced approach to security, safety and the market versus privacy, where the latter in particular needs to be taken much more into consideration.

I believe in strong civil rights, even in a digital environment.

I have been working toward this end for some three years, beginning in the spring of 2006.

During that period of time I have managed to take an active part in the development of Ung Pirat, the political youth organisation associated with Piratpartiet.

I have also taken an active role in the development of the party’s European political programme and the co-operation between Pirate Parties and Young Pirates organisations in Europe and around the world.

We’ll stay tuned, Amelia.

Good luck.

Follow p2pnet on Twitter.

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

November, 2009