The Biggest Threat to Free Speech and Intellectual Property That You’ve Never Heard Of

Πηγή: ACLU
By Sandra Fulton, ACLU Washington Legislative Office
August 29 2012

As we have seen in the failed attempts of SOPA/PIPA, and the floundering Anti-Counterfeiting Trade Agreement, intellectual property (“IP”) laws are often poorly constructed, hastily proposed and ultimately both ineffective and potentially abusive.

Now, the latest threat to free speech in guise of IP reform is a multilateral trade agreement currently being negotiated (in secret) by the Office of the United States Trade Representative (“USTR”). That agreement—the Trans-Pacific Partnership, or “TPP”—would reportedly include dramatic changes to intellectual property laws, changes that could potentially permit the patenting of plants, animals, and medical procedures.

And, while some of the proposed changes run contrary to enacted federal law, the USTR is not only pushing for TPP, it is doing its best to avoid congressional oversight. For instance, they recently rebuffed a request from the staff director on the Senate Finance Committee's international trade subcommittee to review documents pertaining to the negotiations. Senator Wyden, chairman of the subcommittee, wrote:

[M]y office is responsible for conducting oversight over the USTR and trade negotiations. To do that, I asked that my staff obtain the proper security credentials to view the information that USTR keeps confidential and secret. This is material that fully describes what the USTR is seeking in the TPP talks on behalf of the American people and on behalf of Congress. More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.

USTR later gave in a bit and allowed the Senator himself to view the documents but still refused the staffer’s access.

Prominent senators aren’t the only ones being kept in the dark. Consumer and advocacy groups are also totally shut out of the negotiations, while certain interested corporations have a preferred seat at the table. As Senator Wyden further explained:

The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations – like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America – are being consulted and made privy to details of the agreement.

Aside from the cloak and dagger nature of the negotiations, some of the most troubling aspects of the TPP are significant expansions of patent protections. While we tend to hear a lot about how IP regulations will affect online content, leaked versions of TPP would require the signatory countries to permit the patenting of plants and animals as well as diagnostic, therapeutic and surgical methods of treatment of humans or animals—all without explicit limits on enforcement. Current U.S. law forbids the enforcement of surgical patents against medical practitioners for good reason. We do not want doctors wondering if they’ll be risking a patent infringement suit every time they want to try a new surgical technique.

While the ACLU believes that the First Amendment can be served by effective IP protections that provide artists, writers, scientists and other innovators and creators with the incentive to innovate and create, any IP enforcement regime must be crafted carefully and after full public deliberation. Expect to hear much more about TPP in the coming days. We’ll be digging into the leaked draft, and will continue to raise concerns with the USTR and Congress about both the secrecy of the negotiations and the substantive problems in the agreement. The patent laws must yield to the First Amendment, and it seems likely that the opposite has been true in the USTR’s efforts on TPP.

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Reid postpones vote on anti-piracy bill

Πηγή: AP
By JIM ABRAMS
Jan 20 2012

WASHINGTON (AP) -- Yielding to strong opposition from the high tech community, Senate and House leaders said Friday they will put off further action on legislation to combat online piracy.

Senate Majority Leader Harry Reid, D-Nev., said he was postponing a test vote set for Tuesday "in light of recent events." Those events included a petition drive by Google that attracted more than 7 million participants and a one-day blackout by the online encyclopedia Wikipedia.

House Judiciary Committee chairman Lamar Smith, R-Texas, quickly followed suit, saying consideration of a similar House bill would be postponed "until there is wider agreement on a solution."

The Senate's Protect Intellectual Property Act and the House's Stop Online Piracy Act have strong support from the entertainment industry and other businesses that lose billions of dollars annually to intellectual property theft and online sales of counterfeit products. But they also have strong opposition from Internet-related companies that argue the bill would lead to over-regulation and censorship of the Internet.

Reid has also seen at least a half-dozen senators who sponsored the bill announce they now oppose it.

Reid said counterfeiting and piracy cost the American economy billions of dollars every year and "there is no reason that the legitimate issues raised by many about this bill cannot be resolved." He said he was optimistic about reaching a compromise in the coming weeks.

The main Senate sponsor, Judiciary Committee chairman Patrick Leahy, D-Vt., said he respected Reid's decision to postpone the vote but lamented the Senate's unwillingness to debate the bill.

"The day will come when the senators who forced this move will look back and realize they made a knee-jerk reaction to a monumental problem," he said. Criminals in China, Russia and other countries "who do nothing but peddle in counterfeit products and stolen American content are smugly watching how the United States Senate decided" it was not worth debating the bill.

The two bills would allow the Justice Department, and copyright holders, to seek court orders against foreign websites accused of copyright infringement. They would bar online advertising networks and payment facilitators such as credit card companies from doing business with an alleged violator. They also would forbid search engines from linking to such sites.

The Tuesday vote was on whether to move the legislation to the Senate floor for debate. With the recent desertions and a statement Thursday by Senate Republican leader Mitch McConnell that it is too early to consider the bill, it appeared supporters lacked the 60 votes needed to advance the measure.

McConnell on Friday applauded Reid's decision, saying it would "prevent a counterproductive rush toward flawed legislation."

In the House, Smith said he had "heard from the critics" and resolved that it was "clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products." Smith had planned on holding further committee votes on his bill next month.

The bill's opponents were relieved it was put on hold.

Markham Erickson, executive director of NetCoalition, commended Congress for "recognizing the serious collateral damage this bill could inflict on the Internet."

The group represents Internet and technology companies including Google, Yahoo! and Amazon.com. Erickson said they would work with Congress "to address the problem of piracy without compromising innovation and free expression."

Rep. Darrell Issa, R-Calif., who has joined Sen. Ron Wyden, D-Ore., in proposing an alternative anti-piracy bill, credited opponents with forcing lawmakers "to back away from an effort to ram through controversial legislation."

But the CEO of the Motion Picture Association of America, former Connecticut Democratic Sen. Chris Dodd, warned that, "as a consequence of failing to act, there will continue to be a safe haven for foreign thieves." The MPAA, which represents such companies as Walt Disney Studios Motion Pictures, Twentieth Century Fox Film Corporation and Warner Bros. Entertainment Inc., is a leading advocate for the anti-piracy legislation.

SOPA opponents gaining momentum; Wikipedia to join blackout

Πηγή: The Redtape chronicles
By Bob Sullivan
Jan 16 2012

UPDATED Jan. 16, 3:15 ET -- Opponents of controversial federal anti-piracy legislation known as SOPA seem to be picking up steam. Supporters of the legislation in both houses of Congress appear have backed off, the Obama administration has expressed concerns with the legislation, and an Internet blackout slated for Wednesday is picking up supporters.

A House subcommitte was slated to prepare the Stop Online Piracy Act, or SOPA, for a vote later this month; the Senate had planned a vote on the companion bill, PIPA (The Protect IP Act,) even sooner. Now, it appears both votes will be deplayed.

SOPA opponents are rallying around an effort to call attention to the legislation by convincing Web sites to "go dark" on Jan. 18, and display only a simple message of protest on a black background. On Monday, Wikipedia co-founder Jimmy Wales announced that his Web site will go dark for 24 hours starting at midnight ET Tuesday, following the lead of other high-profile promised blackouts. Reddit.com will go black from 8 a.m.- 8 p.m. on Wednesday. The hacker group Anonymous also encouraged others to join in the 12-hour blackout, garnered a lot of attention with its Twitter postusing the hashtag #BlackoutSOPA.

Meanwhile, several signs point to SOPA legislation hitting some serious speedbumps. On Saturday, a statement issued by White House cyberczar Howard Schmidt, and other administration technology officials, threw cold water on SOPA's anti-piracy efforts.

"Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online," says the response, referring to SOPA's proposal to allow law enforcement officials to blacklist Web sites -- cut them off from U.S. users -- that allegedly encourage piracy. The response,posted at WhiteHouse.gov on Saturday, does not take a position on SOPA, but it cautioned lawmakers that the administration will opposed anti-piracy efforts that might increased censorship.

"Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small," the memo reads.

In Congress, supporters of the legislation have recently indicated they are open to changing their proposals.

Late Friday afternoon, Rep. Lamar Smith (R-Texas), said he planned tone down enforcement powers that would be granted by the proposed Stop Online Piracy Act (SOPA). A new version would not include the most controversial provision, which would have enabled federal authorities to "blacklist" domains that were alleged to be involved in distribution of pirated content, effectively cutting portions of the Web off from all U.S. users.

"After consultation with industry groups across the country, I feel we should remove Domain Name System blocking from the Stop Online Piracy Act so that the Committee can further examine the issues surrounding this provision," Smith, one of SOPA's chief backers, said in a statement. "We will continue to look for ways to ensure that foreign websites cannot sell and distribute illegal content to U.S. consumers."

The move comes after a similar step taken on Thursday by Sen. Patrick Leahy (D-Vt.), sponsor of the Senate version, PIPA. Leahy said complaints from "human rights groups, engineers, and others" had convinced him to change his thinking on the bill.

"I remain confident that the ISPs — including the cable industry, which is the largest association of ISPs — would not support the legislation if its enactment created the problems that opponents of this provision suggest. Nonetheless, this is in fact a highly technical issue, and I am prepared to recommend we give it more study before implementing it," he said in a statement on his website.

"As I prepare a managers’ amendment to be considered during the floor debate, I will therefore propose that the positive and negative effects of this provision be studied before implemented, so that we can focus on the other important provisions in this bill, which are essential to protecting American intellectual property online, and the American jobs that are tied to intellectual property. I regret that law enforcement will not have this remedy available to it when websites operating overseas are stealing American property, threatening the safety and security of American consumers."

While Senate debate on PIPA is slated for later this month, advocacy group Public Knowledge said on Friday that it believed debate on SOPA was going to be postponed until February.

Either way, removal of DNS blacklisting provision is unlikely to satisfy critics of Congressional anti-piracy efforts. They find other provisions — such as the ability for the Justice Department to cut off payment processing for alleged "rogue" websites — to be nearly as problematic.

"The DNS filtering provisions represent only some of the fundamental flaws in PIPA," the Electronic Froniter Foundation said in a statement to Geek.com. "This bill, and its House counterpart, cannot be fixed — they must be killed."

Meanwhile, discussions about SOPA hung over the annual CES geek-fest, held this week in Las Vegas. At the trade show, Rep. Darrell Issa (R-Calif.) talked up his legislative alternative to SOPA, the OPEN Act, or Online Protection and Enforcement of Digital Trade Act. He also promised to hold hearings next week on the issue.


See also: Stop Online Piracy Act: Legitimate Protection or Whistleblower Suppression?