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Bringing SOPA to the Trans-Pacific Partnership

Robert Holleyman in the Seat

By Binoy Kampmark | Dissident Voice | March 6, 2014

The machinery to dominate global intellectual property by American fiat was further tightened by the announcement of Robert Holleyman as deputy US trade representative.  President Obama’s announcement is just another reminder of what sources of inspiration are governing the drive by Washington to control the downloading and dissemination of information via the Trans-Pacific Partnership. After all, Holleyman was a former lobbyist of the Stop Online Piracy Act (SOPA), the bill introduced by US Rep. Lamar S. Smith (R-Tx) to gift US law enforcement authorities with the means to combat copyright infringements.

Indeed, Holleyman’s own blurb as an author for The Huffington Post considers him as “one of the 50 most influential people in the intellectual property world”, an individual who “was instrumental in putting into place the global policy framework that today protects software under copyright law.”  Such is the nature of mislabelled internationalism – Washington’s policy by another name.

Holleyman has also been heavily involved as a former president of the Business Software Alliance, a body representing the main software vendors including Apple, IBM, and Microsoft. Through the consortium, Holleyman unintentionally put the problems of SOPA, and its sister legislation, PROTECT-IP, in the bright spotlight. He found himself fighting, at least for a time, a losing battle. Protest against them was extensive, with January 18, 2012 featuring the “largest online protest in history”. Congress took heed, shelving the bills. The vendors pondered the next move.

SOPA’s reach would have been global, enabling US law enforcement the means to target websites and individuals outside its jurisdiction. The carceral provisions of the bill were also hefty – five year prison terms for downloading unauthorised content.

It would have also been a rather formidable mechanism to insinuate censorship into the Internet. The legislation would allow the content provider or the US Justice Department to block sites hosting material supposedly in breach of copyright. Having such a provision would effectively overburden internet service providers to err on the side of caution and “over-block” material. If ever you want to enshrine censorship, a fine way of doing so is frightening the hosts into censoring themselves.

The secret negotiations of the TPP have proven to be a feast of select company. The negotiators themselves, such as Stefan Selig, nominee for under-secretary for international trade at the Commerce Department, have a direct line to the Bank of America. Selig’s accounts have been inflated to the tune of $9.1 million in bonus pay and $5.1 million in incentive pay. Happy is the bank that can sue for diminished assets and target governments in courts of law.

The clubbable ones are the software demons who have been “cleared” to have briefings, some 700 “stakeholders”. The “cleared advisors” also represent groups such as the Pharmaceutical Research and Manufacturers of America, the Entertainment Software Association, and the Recording Industry Association of America.

While the premise of having such vendors involved is ostensibly to protect innovation, the converse is true. The world of innovation does not matter to those who claim they have the ideas and want to protect them at cost. That is a recipe for sloppiness and envy.

The anti-democratic slant in the TPP process has also impressed itself upon observers. The press, and even members of Congress, have been kept at bay. Till parts of the treaty were published by WikiLeaks, elected officials could only view the document on visiting the Trade Representative Office. They would not be able to reproduce or transcribe it.

While SOPA and its twin PIPA were shelved indefinitely, the Obama administration has decided to shop in other forums to enforce some of their provisions. One way of doing so is through the faulty premise of free trade, which is simply another way of making some trade freer than others. The American firm features prominently in that guise of freedom.

Aspects of the leaked intellectual property chapter of the TPP so far indicate a model with SOPA trimmings. Provisions, for example, holding ISPs liable for hosting copyright infringement, have been preserved. The life of certain, corporate-owned copyrights will also be extended. In other words, this is SOPA by stealth, a process that “could not [be] achieved through an open democratic process.”

The fact that the Obama administration has also sought to sideline Congress in the debate is indicative of that. As Henry Farrell observed, “The United States appears to be using the non-transparent Trans-Pacific Partnership negotiations as a deliberate end run around Congress on intellectual property, to achieve a presumably unpopular set of policy goals.”  Senate Democrats have been mindful of their shrinking role, and have blocked the president’s attempt to obtain “fast-track authorisation”.

The effect of such authorisation would give the administration scope to limit congressional consultation while using its prerogative powers. Congress would become, in effect, a chamber of marionettes. Appointments such as Holleyman’s show little change of heart away from that policy. The copyright vanguard, along with the dance of secrecy, is digging its heels in.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: bkampmark@gmail.com.

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March 7, 2014 Posted by | Civil Liberties, Corruption, Deception, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Leave a comment

2012 in Review: Blackout Protests Against Blacklist Bills

By Parker Higgins | EFF | January 1, 2013

Coming into 2012, the Internet community was looking down the barrel of very dangerous legislation that would have created legal structures to silence legitimate speech in the name of curbing online “piracy.” A House bill called the Stop Online Piracy Act (SOPA) and its Senate counterpart, the PROTECT IP Act (PIPA), had been debated, amended, and looked to be on the fast track for legislative approval.

That all changed on January 18. An historic “Blackout Day” protest, loosely coordinated by a coalition of public interest groups, startups, tech companies, and thousands of different websites, resulted in millions of emails and tens of thousands of calls to legislators. As sites across the web turned out their virtual lights at once, an important but otherwise arcane copyright bill became front-page news—and impossible for the content lobby and their favorite legislators to sneak past the public.

There were plenty of reasons to be concerned. After all, Congress has passed 15 laws aimed at stopping “piracy” over the last 30 years—an impressive record given the general absence of actual facts about the problem or the effectiveness of the proposed solutions. And even after an earlier protest, held in November 2011, resulted in nearly 90,000 calls to Congress in one day, SOPA’s author (and Judiciary Committee chair) Lamar Smith seemed intent on pushing the bill through, dismissing the complaints as not being “legitimate.”

But support for the bills began to crumble when met with the magnitude of the blackout protests. Over the course of January 18, people sent nearly a million emails to their legislators through the EFF’s action center alone, and many million more through other sites. Some of the most popular sites on the Internet, like Google, Reddit, and Wikipedia, were among over 100,000 pages dark in protest.

It worked. Angry supporters of the bill may have derided the grassroots action—MPAA chief Chris Dodd called it “dangerous” and a “gimmick,” while RIAA CEO Cary Sherman said it was based on “misinformation” and, strangely, a “misuse of power”—but legislators got the message, and began jumping ship from SOPA and PIPA almost immediately. Within a month, the bills were effectively dead.

The defeat of SOPA and PIPA marked an important victory in an ongoing struggle for copyright policy that’s based on actual facts and real evidence. The January 18 protests, too, served as a template for a new era of online activism. In 2012, we’ve already seen similar battles play out all over the world; in 2013, we’re sure to see even more.

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January 2, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Leave a comment

SOPA Is Dead, Says MPAA’s Chris Dodd, But What Comes Next?

By Parker Higgins and Trevor Timm | EFF | October 4, 2012

Earlier this week, Chris Dodd, a 30-year veteran of the Senate and now chairman and CEO of the Motion Picture Association of America (MPAA), spoke in San Francisco at an event aimed at addressing “the shared future of the content and technology industries.” It’s a testament to the continuing impact of January’s blackout protests against Stop Online Piracy Act (SOPA) that Dodd should frame the discussion this way, and his conciliatory words during the talk struck a refreshing tone. But given that less than a year ago he was the nation’s leading advocate for a bill that would have censored large parts of the Internet, there’s still a long way to go.

Dodd made many positive comments during his speech, voicing strong support for freedom of speech online and calling on the content industry to move away from criminal actions against file-sharers. He also conceded that SOPA and PIPA are “dead,” and when pressed by EFF in discussion afterwards, he was emphatic that his organization no longer wanted to pursue legislation as the solution to the problems purportedly facing the content industry.

But let’s not forget that he serves as the chairman and CEO of one of the most influential lobbying groups in Washington, and that the actions of the industry have yet to back up his rhetoric. In fact, the evidence suggests the opposite is true.

After all, his words stand at odds with a statement in April that he was “confident” negotiations on SOPA 2.0 were taking place, and the MPAA is again distributing talking points to members of Congress touting copyright maximalism. We also know SOPA’s author Lamar Smith tried to re-introduce components of that bill again in July. And even now, the content industry’s “six strikes” agreement with ISPs is moving forward, and US Trade Representatives are secretly negotiation dangerous new copyright rules into international agreements like the Transpacific Partnership Agreement (TPP).

Dodd’s statements, such as “I would do anything and everything I could to protect the vitality of the internet,” stand in stark contrast to the content industry’s advocacy for the due-process-free domain name seizures conducted by Homeland Security during the past two years. Websites accused of copyright infringement on flimsy evidence were censored for a more than a year before the Justice Department abandoned the cases with no explanation. The Justice Department’s prosecution of Megaupload, a case now falling apart, also led to many innocent people losing property they stored online.

Unfortunately, Dodd’s most impassioned advocacy for the First Amendment came not when sticking up for the Internet, but when defending his job lobbying. The man who once pledged he would not become a lobbyist when he left the Senate, said freedom of speech is “critically important” because it allows lobbyists — now “experts” in his view — to inform legislators about the issues. But when members of the public speak out in one of the largest grassroots efforts in US history, Dodd and the MPAA derided it as a “stunt” and a “gimmick” and accused companies that participated in the protest of an “abuse of power.”

But more broadly, Dodd’s speech indicated that the MPAA and other content groups still remain fiercely opposed to evidence-based policy-making, in legislation and other areas. Even as Dodd pulled the heartstrings with stirring words about the middle-class jobs that the entertainment industry creates, he continued to cite bogus stats about the industry. Repeatedly he referred to the 2.1 million such jobs, despite the fact that the Congressional Research Service has pegged the number at around 374,000 — an order of magnitude off. Blatantly bogus numbers like these have become a hallmark of the content industry efforts to pervert the copyright system, so much so that the Government Accountability Office recommended other government bodies should stop citing MPAA-backed studies.

Dodd’s speech echoed the recent messages from other content industry representatives: the content and the tech industries have to work together, not as adversaries, to make “an Internet that works for everyone.” Here again, the disregard for ordinary users makes a nice commitment ring hollow. For one thing, the content industry missed plenty of opportunities before introducing SOPA and PIPA to get input from Internet users and the tech industry. They even refused to show up at the negotiating table when the tech industry was willing to work with them. But more fundamentally, Hollywood’s new rhetoric reframes “innovation” as “innovation by permission” — and the public is worse off for it.

The fundamental goals of copyright are sound: it’s a good thing when policy promotes the progress of science and the useful arts. But by continuing to reject evidence about how copyright works, by relegating freedom of speech to economic concerns, and by leaving the public out of the discussion, Dodd and the MPAA are working against those noble goals.

October 5, 2012 Posted by | Civil Liberties, Economics, Full Spectrum Dominance | , , , , | 1 Comment