Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

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No, ACTA Secrecy Is Not 'Normal' -- Nor Is It A 'Distraction'

from the don't-make-us-laugh dept

Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we've seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it's been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what's going on).

One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don't support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.

A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It's as if they think that we're all idiots who haven't seen how lobbyists have historically relied on the line "but we must live up to our international obligations" to push through all sorts of laws the public does not support.

A third point raised is that this isn't a "treaty" but a "sole executive agreement," so we shouldn't worry since it can't change the law. Except, by categorizing it as such, it's actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that's in the agreement, and then just wait for the "but we must live up to our international obligations" to start pouring out of lobbyists and industry lawyers' mouths.

A fourth point of attack is that some of the descriptions of what's being discussed are inaccurate. Well that's funny since a big part of the problem is that we're not even being shown what's being discussed. So, yes, as we've been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don't want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say "oh, that's no different than what we have already." Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what's happening in South Korea now, since that's what the new agreement is supposedly "modeled" on. And, it's not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they're barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That's not the sort of world most of us want to live in.

Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are "a part of the process." That doesn't take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on "very short notice" in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy -- but the process included NDAs that prevent much discussion about what was seen. That's not serious involvement.

Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it's having its best year ever). But the most ridiculous is this:

"Outcries on the lack of transparency in the ACTA negotiations are distraction."

Yes, that's right, making sure that the public knows what the hell its government is signing up for is a "distraction." Could the MPAA's lawyers be any more obvious in brushing off the concerns of the public than by calling it "a distraction." To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn't matter. As Jamie Love notes, "transparency isn't a 'distraction.' it is an obligation of governments, to those it wants to govern."

So, yes, perhaps some of the discussion has suggested things that will go beyond what's actually in the document, but it's hilarious to see industry lawyers suggest that those concerned about our rights are "creating a moral panic" when the only reason there's concern at all is because the public is not even allowed to see what's being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA's letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.

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US Subpoenaed All Visitor Logs From Online News Publication; Falsely Said Site Couldn't Tell Anyone

from the the-abuse-of-secrecy dept

We've seen it over and over again: when the government can hide behind the veil of secrecy, it can abuse its power. That's why we're supposed to have checks and balances on power, but all too often governments figure out ways to get around that. The latest example is that US attorneys issued a subpoena to the person hosting the news website Indymedia, demanding a logfile of all visitors from a particular day and ordered the woman not to reveal the existence of the subpoena itself. Indymedia doesn't keep its logfiles, so it simply had nothing to turn over, and after realizing this, the government withdrew the request. However, the requirement to stay silent about it still was there, and the woman asked the EFF for help. With the EFF involved, the government finally backed down and admitted that there was absolutely no legal basis for demanding that the woman not talk about the subpoena, and "chose not to go to court" over the matter, despite threatening to at an earlier time.

This is hardly the first time we've heard about the government using (and abusing) procedures like national security letters to not just demand all sorts of info, but also demand that the recipient not tell anyone about it. Every once in a while we're able to hear about these situations because a group like the EFF or the ACLU pushed back and were able to get the US government to back down, but that's likely only a fraction of the situations where this has happened. In many others, we likely don't even know at all, because the recipient gave in, either because they didn't realize their legal rights, or because it just wasn't worth the fight. But when the government thinks that it can demand certain data and cloak the demand behind a related demand for secrecy, it makes it way too easy for the government to abuse the process. It basically guarantees no oversight, so why not ask for way more than the law requires, knowing that most people won't push back and no one will ever find out about it?

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More ACTA Details Leak: It's An Entertainment Industry Wishlist

from the no-wonder-they-kept-it-secret dept

The latest round of "negotiations" over the ACTA treaty continue in secret due to as yet unexplained national security reasons (despite the fact that the entertainment industry lobbyists have had full access to the document) are kicking off in Korea. Once again is becoming clear that the claims by US trade reps that ACTA did not represent any kind of major change in copyright law, and thus didn't require public scrutiny, are nothing more than a myth. Despite ridiculous efforts to keep the document secret (some countries were given only physical, watermarked, copies of the latest drafts), some of the details are leaking out and it's not pretty at all.

The plan is modeled on the ridiculously misnamed "free trade agreement" between the US and South Korea from a few years back. It's misnamed because it wasn't about free trade at all, but massive protectionism for the American entertainment industry. The end results haven't been pretty. The treaty pushed South Korea to implement new copyright laws that are perhaps the most draconian around, getting the country to be the first to kick people off the internet based on accusations of file sharing, and putting so much liability on third parties that various user-generated content services have had to turn off the ability to upload all sorts of content (no videos on YouTube, no music on blogs) and has resulted in ISPs even banning any kind of advertising that might make them liable for copyright infringement.

It's Hollywood's dream. It would require signing countries to implement a more draconian version of the DMCA, including incredibly restrictive anti-circumvention wording that has no exception for fair use. It would put liability on third parties for the actions of their users (in other words, it wouldn't include current DMCA-style safe harbors). It would create incentives to kick people off of the internet for file sharing. This is not about free trade at all. This is an entertainment industry-written bill designed to recreate the internet in its image -- as a broadcasting platform, rather than one used for user-generated content and communication.

This isn't about free trade. This isn't about "anti-counterfeiting." This is the "Protect the American Entertainment Industry" treaty.

And, of course, it's not even close to necessary. As happy as the entertainment industry is about what's been happening in South Korea lately, before these laws passed, the industry there (though, not the local subsidiaries of stodgy American entertainment firms) were adapting in amazing and fascinating ways, that didn't require new laws, but embraced what was actually happening. Yet, because the American record labels and movie studios don't want to change with the times, they're pushing through these laws, outside the judiciary process, sneaking it through via a secretive international treaty they had a hand in writing.

There is simply no reason for ACTA, at all. It is nothing but an attempt by the entertainment industry to put massive restrictions on the internet, place liability on lots of third parties, and do nothing to push themselves to adapt to a changing marketplace with new business models.

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ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA

from the but-what-about-the-public dept

With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington "insiders" under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests. But, still, it's a bit troubling that the whole conversation remains secret for "national security" reasons. If we're talking about changing copyright laws that effect everyone, why not let everyone know? Sherwin Siy, from Public Knowledge, told KEI (in the link above) about his experience viewing the document, which sounded greatly limited, and notes that while the document has been adjusted, "the most troubling aspects" have not been "resolved."

In the meantime, it's worth asking why this is necessary again. First of all, in a world where trade agreements are supposed to be about breaking down trade barriers, ACTA seems designed to be putting up protectionist policies. Protectionism doesn't work and only creates more harm. But, much more importantly, much of the push for ACTA is based on lobbyists' claims of the "harm" done by counterfeiting. Except both the GAO and the OECD have put out independent reports showing that counterfeiting isn't that big a problem, and that whatever problems there are seem to be significantly exaggerated by lobbyists. Yes, those same lobbyists who were given much earlier access to the document and, records suggest, had a hand in shaping the document itself. So why do we need ACTA again? And why are we allowing those who the government has already found to have exaggerated the problem drive the negotiations?

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If You Don't Want People To Know About Stuff, Maybe Don't Put A Press Release On Your Website With The Info

from the just-a-tip dept

Reader jprlk alerts us to the amusing news that Carleton University apparently put a press release on its website with all of the details concerning an upcoming visit by the Emperor and Empress of Japan... and opened it up by saying:

The Government of Japan respectfully requests that media outlets do not report on specific details, including exact times, prior to the events. Thank you for your cooperation.

Someone, apparently, isn't quite aware of the way the web works. When you put that info on the web yourself, Carleton University, you've already "reported on the specific details, including exact times, prior to the event." The University has since pulled the press release, but it's too late, as it's been picked up by the local press. As you can see, the blog post above summarizes the situation nicely:

So I guess the message from Carleton is that they'll put stuff on their website, but SHHHHHH! nobody else is to say anything.

Welcome to the internet, Carleton University.

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Consumer Group Wants ACTA Discussions Stopped Until Consumer Rights Are Represented In Negotiations

from the would-be-nice,-but-seems-unlikely dept

We've discussed in great detail how the current ACTA treaty has been mostly driven by corporate interests as a way to sneak in more draconian copyright laws through international treaty, rather than through legislative means. When consumer groups have requested a seat at the table, they've been rejected, even as industry lobbyists have had no problem being active participants in the process.

Now, a group called the Trans Atlantic Consumer Dialogue has demanded ACTA negotiations be put on hold until consumer groups have a real seat at the table, or at least are given access to documents being negotiated. TACD raises a number of important issues, such as respecting privacy rights and the rights of developing nations, who are often trampled over when it comes to IP protectionism from developed countries. But best of all, it points out one of the most annoying things in all efforts by copyright holders to extend copyright protection: they never, ever present any evidence for why it's necessary. It's an evidence-free zone. TACD specifically requests that real evidence be used:

Public policy on the enforcement of intellectual property rights should be informed by creditable evidence, transparent and realistic assumptions and objective peer reviewed analysis. Multiple approaches to addressing the legitimate concerns of right owners and consumers should be considered.

• Statistics on counterfeiting and or infringement must be objective, accurate, and presented in the appropriate context.
• Statistics on counterfeit and substandard medicines should not be combined when this misleads policy makers about the extent of either problem. The solutions to counterfeit and substandard products are often quite different.
• Estimates of losses from infringements of intellectual property rights should be based upon realistic demand and usage parameters.
• Governments should collect and analyze statistics on the relationship between infringement and affordability of products.

Here's TACD's full proposal:

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Obama Administration Reiterates Its Support Of Secretive, Industry Written ACTA

from the this-is-a-problem dept

We've been bothered by the incredibly secretive (except if you happen to be in the entertainment industry) ACTA Treaty negotiations for quite some time now. This is the industry-led effort to get a bunch of nations to agree to draconian and damaging new copyright laws by sneaking them through as a secretive "international treaty," such that countries are then compelled to change their copyright laws to "be in compliance with international agreements." It's a really sneaky trick that Hollywood has used for years. And then it acts all innocent when people accuse it of pushing draconian laws on consumers, claiming "it wasn't us... we needed to be in compliance with our international agreements." They just leave out the part where they're the ones who write those agreements for the various trade representatives. The early drafts of ACTA are no different. They were clearly written by industry lobbyists, and are now being pushed by various trade representatives, and then our elected officials will have "no choice" but to change copyright laws to be in compliance.

Perhaps the most troubling part of all of this is that the negotiations are happening in secret, and when consumers rights organizations ask to be given a seat at the table, they're denied. When those same consumer rights organizations ask to at least be told what's being negotiated, they're told it's forbidden because of "state secrets." However, for all that national security, the administration has absolutely no problem giving industry lobbyists access to the process. Funny how that works.

Either way, it should come as no surprise that Michael Geist alerts us to the news that the US Trade Rep, Ron Kirk, is eager to get ACTA moving forward again. In response to all that secrecy, he claims:

As we proceed with these negotiations, we will ensure that the public is kept well informed and has further opportunities to give input.

Of course, the next meeting will take place in Morocco. How many consumer representatives will be there?

In the meantime, Kirk claims:

"The ACTA negotiations provide an opportunity to toughen international standards for the enforcement of intellectual property rights, making it harder for counterfeit and pirated products to enter our country, and making the world safer for the innovation and creativity that are so critical to the U.S. economy."

But... wait. Is it really true that this is a big problem? Both the Government Accountability Office (GAO) and the Organization for Economic Co-operation and Development (OECD) have taken a close look at the numbers thrown around about the "problem" of counterfeiting, and found them to be wildly overblown by lobbyists -- the same lobbyists writing ACTA, not surprisingly. So why is the US Trade Rep agreeing to let this go forward? It's not about "making the world safer for the innovation and creativity." It's about granting special protection to a few powerful US industries with lobbyists.

Isn't that a problem?

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Since When Did We Give Lobbyists From The Tech, Entertainment And Pharma Industries Security Clearance?

from the the-RIAA-gets-national-security-clearance? dept

With the new administration sticking by the old one in declaring negotiations over the ACTA treaty somehow a matter of national security as a way of avoiding revealing any info about the proposed treaty or its ongoing negotiations, the folks over at KEI have pointed out the long list of corporate lobbyists who have been involved in the negotiations, including those from the RIAA, MPAA, ESA and a long list of tech, telco and pharma companies. So... can anyone let us know if these folks have security clearance? After all, if they're a part of such sensitive matters concerning national security that are so touchy the public can't know about them, then, surely, the administration is being careful about who it provides that info, right? Or is the national security issue the fact that these folks don't want anyone to know they're writing the rules that will bind Congress (and legislatures in dozens of other countries) to adjust copyright law without any real leeway. And, just watch, these will be the same lobbyists who will spout off about how we have to make these changes to meet our treaty obligations. leaving out the fact that they wrote the treaties themselves to force through exactly this type of legislation.

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Obama Administration Claims Copyright Treaty Involves State Secrets?!?

from the openness,-transparency dept

Plenty of folks are quite concerned about the Anti-Counterfeiting Trade Agreement (ACTA) negotiations are being negotiated in secret. This is a treaty that (from the documents that have leaked so far) is quite troubling. It likely will effectively require various countries, including the US, to update copyright laws in a draconian manner. Furthermore, the negotiators have met with entertainment industry representatives multiple times, and there are indications that those representatives have contributed language and ideas to the treaty. But, the public? The folks actually impacted by all of this? We've been kept in the dark, despite repeated requests for more information. So far, the response from the government had been "sorry, we always negotiate these things in secret, so we'll keep doing so." At one point, even the ACTA negotiators held a closed-door meeting and then released a press release saying they discussed being more transparent, but haven't actually followed through.

When the Obama administration took over, there was a public stance that this administration was going to be more transparent -- especially with regards to things like Freedom of Information Act requests. The nonprofit group Knowledge Ecology International took that to heart and filed an FOIA request to get more info on ACTA. The US Trade Representative's Office responded denying the request, saying that the information was "classified in the interest of national security pursuant to Executive Order 12958." This is a treaty about changing copyright law, not sending missiles somewhere. To claim that it's a national security matter is just downright scary. As KEI points out, the text of the documents requested have been available to tons of people, including more than 30 governments around the world and lobbyists from the entertainment industry, pharma industry and publishing industry.

But when the public asks for them, we're told they're state secrets? This is transparency? This is openness?

As Declan McCullagh points out at News.com, Executive Order 12958 only allows material to be classified if revealing it would do "damage to the national security and the original classification authority is able to identify or describe the damage." Can the US Trade Representative please describe the damage to national security if the public gets to see what's being proposed that would require governments around the country to enact significantly more draconian intellectual property laws?

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ACTA Proposal Would Criminalize Substantial Non-Commercial Infringement

from the consumers-have-no-seat-at-the-table dept

With various governments still insisting that ACTA negotiations must be done in near total secrecy, various folks are working hard to at least shine some sunlight on the details. Michael Geist discusses what he's been able to piece through, and it's not pretty. The only good news is that everything is still in the early stages, and there's some disagreement among the participating trade reps concerning how certain things should work. However, that's about the only good news. The bad news is that many of the provisions are clearly being submitted with significant "input" from industries who stand to benefit from greater IP protectionism -- and no effort has been made to see what impact the resulting output would have on everyone else.

Even more troubling are the specific details supplied by KEI, who includes some draft text, including a proposal pushed by the US and Japan to use ACTA to make certain forms of personal, non-commercial infringement a criminal offense as a "deterrent." Yes, this would include potential jailtime, even if the infringer had no intent to profit. Notice that this is happening in backrooms among trade representatives, rather than in public among elected officials -- especially as various countries have been increasingly open to the idea of exempting personal, non-commercial infringement from being subject to legal punishment. This "treaty" would force countries to put a halt to that, and then we'd hear all sorts of big-time IP defenders insist that we absolutely had to make these changes to the law to "live up to international treaties" which they helped write.

KEI also points out another downside to all of this being negotiated in secret. It appears that many of the trade representatives are ignorant of certain laws already in place in their own countries, as well as other legislation that is currently under consideration. For example, KEI notes the current debates over copyright laws concerning "orphaned works" which is a big issue in Congressional copyright discussions. Some of what's being pushed in ACTA would mess up those discussions -- but who cares, apparently, trade representatives, pushed on by industry representatives, seem to have no problem determining for themselves what copyright law should be all about.

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US Using Bogus Excuses For Denying Access To ACTA Documents

from the transparency? dept

And here's another bit of "transparency" that's just as lacking in the new administration as the last. For months, those of us concerned about backroom deals on intellectual property treaties bypassing an open legislative process have been demanding more sunlight on negotiations around ACTA, the Anti-Counterfeiting Trade Agreement. To date, the various folks negotiating the agreement -- which includes both entertainment industry representatives and government trade representatives from around the world -- have been averse to any sort of transparency, using the rather weak excuse that such treaties are always negotiated in secret. Amusingly, they even recently held a secret meeting where they promised to be more transparent. That's comforting.

In order to push this transparency issue forward, plenty of folks have been filing freedom of information requests to get documents related to the agreement and the negotiations. Up in Canada, these requests have revealed that the government may have publicly lied or misled people about its negotiations in ACTA. In the US, though, things are even more ridiculous. Apparently the US Trade Representative is refusing to release most of the documents requested under the FOIA claiming (I kid you not) that to release such documents could "implicate national security or expose the USTR's deliberative processes."

But, of course, the USTR had no problem at all sharing all this info with entertainment industry lobbyists. In the few documents that were released, it turns out that the USTR met privately with representatives of various "anti-piracy" lobbying groups multiple times in 2008 -- without bothering to consult with the folks who these laws would actually impact. In other words, they're getting one side of the story. Even worse, those lobbyists have been called out, repeatedly -- by the US government, no less -- for outright fabrications concerning the impact of piracy and counterfeiting. So why is the USTR only relying on them for determining how this trade agreement will work? And why is there no effort to make these negotiations more public so that all stakeholders have a say?

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ACTA Negotiators Hold Closed Door Meeting To Say They Need To Be More Transparent

from the irony dept

One of our biggest complaints with ACTA, the Anti-Counterfeiting Trade Agreement that was initially written by the entertainment industry, and is being used to effectively sneak through new copyright law requirements around the world (every time you hear an industry supporter claim that copyright laws must be changed to live up to "international obligations" you know they're leaving out the part where it was the same industry that wrote those international treaties), is that the whole thing is being negotiated in secret. So, it seems rather amusing that the latest (secret) negotiations resulted in a press release saying that they discussed how they need to be more transparent (found via Michael Geist). So, after holding a closed door meeting, they let everyone know that they discussed how it really sucks that they hold these closed door meetings? Here's a suggestion: instead of issuing a press release afterwards next time, why not open up the meetings?

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BT Bans Talking About Phorm, Erases Earlier Discussions

from the we-were-always-at-war-with-Eurasia dept

You may recall that BT was one of the bigger supporters of Phorm, the controversial clickstream tracking system that would allow ISPs like BT to insert their own behaviorally targeted ads into your web surfing. The company held extensive trials with the system, without letting users know that their clickstream data was being sold to advertisers in order to do more targeted advertising. Now that UK officials have decided that Phorm is legal, if clearly explained to consumers, BT has chosen a funny way to make sure there's clarity around the system. Slashdot points out that BT has apparently banned discussion of Phorm on its forums and erased earlier forum discussions about the technology. How's that for openness?

Is it really so hard to allow open discussion on such a topic? If BT believes that it's reasonable to use the technology, then why not explain why clearly, responding to the critics? The only reason to erase these discussions is if BT knows that what's it's doing is highly questionable, and BT would rather not have to explain itself.

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Judge Keeps Restraining Order On RealDVD

from the not-ready-to-give-in dept

Earlier this week we noted that the judge in the lawsuit over the RealDVD software had placed a secret temporary injunction against RealNetworks selling the software. The original promise was that a more permanent injunction -- or a lifting of the injunction -- would come Tuesday. But Tuesday has come and gone and the judge has decided she needs more time to decide on an injunction, and may want to consult some "experts" on the subject.

I can understand the desire to better understand the situation, but it's hard to see how preventing the sale of the software in the meantime does any less harm to the movie industry. In fact, you could easily make the argument that it does more harm to the industry, based on the way the industry defines harm. That is, right now, if someone wants to make a backup copy of a DVD, they're going to look online and find a variety of free ripping options, that offer no additional DRM and make totally free and clear rips. If Real's software was out there, they might discover that option and pay to get additional DRM (why, I don't know -- but some might feel comfortable with the Real brand, for example). Thus, it's difficult to see how the movie industry is any worse off if Real's software is on the market. In that scenario, at least some might end up with ripped DVDs with DRM. Without Real on the market, those who want to rip DVDs will have their rips with no DRM at all.

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Why Was The Restraining Order On RealDVD Kept Secret?

from the questions,-questions,-questions dept

Monday morning, we wrote about how a judge had issued a temporary restraining order against RealDVD until he had time to review the details and rule one way or the other on a pre-trial injunction. In our comments, one of our readers suggested this story was incorrect, as there didn't appear to be an actual restraining order on file -- suggesting that Real Networks may have pulled the software on its own. Yet, it turns out that, yes, in fact there was a temporary restraining order, but the judge ordered both sides to keep it secret. This is quite odd, as almost everyone immediately figured it out from Real pulling the software, and then it was confirmed by Real in a filing responding to the court. But all this does is raise a simple question: what could possibly be the rationale for keeping the temporary injunction secret?

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Groups Demanding That ACTA Negotiations Be Made Public

from the it's-about-time dept

We've been asking for months why the Anti-Counterfeiting Trade Agreement (ACTA) treaty is being negotiated in near total secrecy, allowing the entertainment industry to effectively rewrite international copyright law in substantial ways with almost no legislative review. Basically, various trade representatives, together with industry insiders, have been crafting ACTA to their own liking, with a plan to push it through for approval, claiming it's a trade agreement that shouldn't involve any legislative overview. It's an incredibly one-sided affair, from what's been leaked so far, and would substantially change copyright law around the globe in favor of protecting the entertainment industry's business model.

The entertainment industry had hoped to keep the whole process secret, and trade representatives have basically ignored all calls to open up the process, claiming that such trade agreements are always negotiated in secret. Of course, that doesn't make it right -- especially when this trade agreement isn't so much a trade agreement as it is a chance to sneak through legislation around the globe that is designed solely to protect a particular business model -- without any input from those who recognize that legislating business models harms both the competition and consumers. Now, over 100 public interest groups have teamed up to demand that the process be opened and that questions get answered about ACTA

While those involved in negotiating the document will continue to do what they've done all along (i.e., ignore the requests), hopefully some politicians will start to notice the complaints and begin asking questions. It's one thing for the entertainment industry to lobby politicians directly or pre-write their laws for them, but it's another to sneak widespread, sweeping -- and totally unnecessary -- changes to copyright law through without significant legislative review.

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Canada Takes ACTA Secrecy To New Levels

from the this-isn't-a-treaty,-it's-protectionism dept

We've covered the disturbing levels of secrecy surrounding the ACTA treaty -- which is basically a way for various industries to push through new copyright laws without having to actually go through the legislative process. The most annoying part is how secretive various governments have been in crafting the treaty -- basically allowing various industry groups to tell government trade representatives what they want, and then letting the governments negotiate amongst each other. This process leaves out many parties impacted by these rules (and the public!). Michael Geist has some details on how Canada has taken this process to new levels of secrecy beyond even that in the US.

Apparently, the Canadian government has created an "insider" group to work with the government on the treaty. What's disturbing is that this insider group seems to involve mostly lobbyists who have a one-sided take on this issue. Not included are any lobbyists from industries who are opposed to ACTA or any sort of representative of consumer rights or privacy issues (which is a big concern, considering that ACTA may allow border searches of laptops and iPods). Given that the Canadian government is already getting beaten up for writing its newly proposed copyright laws in secret with help only from industry representatives, you'd think that maybe (just maybe) it would try to be a bit more open and inclusive with ACTA. Apparently not.

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Why Is ACTA Being Negotiated In Secret?

from the and-why-isn't-the-press-asking-about-it? dept

We've already talked about the ACTA treaty, which is being used by the entertainment industry to basically do an endrun around the legislation process for intellectual property, and getting all its wishes encoded into an international treaty, so it can start running around claiming that every country absolutely needs to change its IP laws to "live up to" international treaties. William Patry has been asking why the mainstream press isn't covering this, and it's an excellent question.

His latest post on the topic covers the fact that the entire process is happening in secret behind closed doors and the folks negotiating the treaty seem to think this is fine:

"A spokesperson of the European Commission confirmed that consultation with different stakeholders had been on the agenda and would happen over the coming month at the domestic level. Draft text proposals still have not been published, the source said. Several parties contacted pointed to confidentiality agreed on by the negotiating partners."

Patry translates that paragraph accurately as really saying:

"Countries also discussed whether they should actually talk to those who would be affected by the agreement, and agreed that sometime they will, but everything we have done is super-secret because we agreed it would be super-secret."

So why aren't stakeholders invited into the process? Why is the whole thing being negotiated in secret, using notes in discussion with entertainment industry lobbyists but no consumer groups or other business groups who aren't necessarily supporters of more restrictive copyright regimes? And why isn't the press asking these questions?

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Domestic Wiretapping Programs Should Not Be Secret

from the oversight-needed dept

A whistle-blower reports that an unnamed wireless carrier has provided a government facility in Quantico, VA, with unfiltered access to its core network. The whistle-blower says this gives the government direct access to private information such as text messaging and call records. He doesn't name either the company or the government agency involved. But a 2006 lawsuit featuring similar allegations named Verizon Wireless as the culprit. And Threat Level says that Quantico, VA, just happens to be "the center of the FBI's electronic surveillance operations." When asked about this, a Verizon Wireless spokesman wrote "What you're talking about sounds as if it would be classified and involving national security, so I wouldn't be able to find out the facts."

The idea that ordinary domestic surveillance activities are a matter of national security, and therefore immune from public scrutiny, is both wrong-headed and malicious. I guess the idea is that we don't want to tip off the terrorists about our surveillance programs. And obviously, information about specific targets needs to be kept secret. But the terrorists have to already know that most communications channels can be intercepted. Moreover, it's just not reasonable to expect that the broad details of our government's domestic surveillance activities will remain a secret indefinitely. Despite the secrecy, we're gradually learning about the scope of these programs. If terrorists didn't know their calls were being tapped five years ago, they certainly do now.

The problem is that because details about these programs (and information about abuses) dribble out slowly over several years, Congress never has the opportunity to conduct meaningful oversight of them. For example, this week we also found out that abuse of national security letters, which was previously only reported to have occurred from 2003 to 2005, continued into 2006. Of course, the administration says they've fixed the problem and that no more NSL abuses will occur. But that's what they always say when privacy abuses are uncovered, yet new examples keep popping up. The only way the abuses will stop is if Congress rejects the idea that domestic surveillance is immune from judicial and Congressional surveillance. The Bush administration needs to disclose the exact scope of its domestic surveillance activities so that Congress can have an open, public debate about the proper scope of government spying powers.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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