machine-envy

So Craig Murray, former UK ambassador to Uzbekistan, whose memoir Murder in Samarkand was finally published last week after spending months in legal limbo following claims from the UK government that they damaged the national interest, has attracted fresh legal trouble in the form of copyright takedown notice from none other than the FCO.

Murray alleges that the UK was complicit in the torture of suspected al-Qaida operatives in Uzbekistan, and he’s got the documents to prove it. After the FCO suppressed the publishing of these documents in the memoir, Murray obtained a second set of copies through the Freedom of Information Act (guess it helps when you know where to look) and published them on his website (available here), whereupon the FCO sent him a takedown notice (pdf), compaining the docs were subject to Crown Copyright.

So either the Queen was planning to make a tidy profit later down the line by exposing her good servants’ misdeeds, or this is a classic case of copyright law used directly to suppress free speech, a la Diebold/Swarthmore. But the funny thing is, although the more political UK blogs are picking up the story (cf Blairwatch, the FOIA blog) the international open access/free culture blogs are too busy worrying about the latest moves by the BPI to target UK filesharers to take advantage of this golden opportunity to stop sounding like the music industry took their toys away and get political, despite the fact it’s broken in the UK press.

(originally published on openDemocracy)

American free speech is being squeezed by bad case law and the disproportionate power of intellectual property owners. US citizens must be vigilant, says Becky Hogge.

While the Bush administration stands accused of complicity in torture, corrupting the political process, and spying on its own citizens, the average American may find it hard to summon up the energy to get angry about copyright law. But a report published in December by New York University’s Brennan Center for Justice should make any American possessing even a passing familiarity with the works of George Orwell choke on their coffee.

Will Fair Use Survive?: Free expression in the age of copyright control represents a year-long survey of the health of “fair use”, a provision in US law that exists to ensure First Amendment rights when handling material protected by copyright and trademark law. The prognosis delivered by the report’s authors Majorie Heins and Tricia Beckles is grim. It seems that legal haziness surrounding fair use, and an increasing will among intellectual property owners to pursue infringement-related grievances through a prohibitively expensive legal system, are combining to stifle free expression.

Fair use is what lets me discuss the Brennan Center report in the first place. By quoting its title I am technically infringing the authors’ intellectual property rights (or the Brennan Center’s, depending on the terms of Heins’ and Beckles’ employment contracts). But because I am engaged in what the 1976 Copyright Act describes as “criticism, comment, news reporting, teaching…scholarship or research”, I’m not expecting to hear from NYU’s lawyers anytime soon.

Copyright terms in the United States can extend beyond a century, thanks to the 1998 Sonny Bono Copyright Term Extension Act. Consider the sentence “I disapprove of what you say, but I will defend to the death your right to say it”. Often misattributed to Voltaire, it was written by SG Tallentyre (Evelyn Beatrice Hall) in her 1906 work The Friends of Voltaire. Thus it is most likely still protected by copyright law. Can I quote it under US law? It illustrates a key view of free expression – but I am not critiquing it here. Am I, therefore, stealing it?

As an artist, critic, activist or scholar, gaining a judgment of fair use in the US relies on four considerations:

• “purpose or character of the use” – is the new use of the “stolen” work transformative, in the artistic sense? Does it advance political debate? Was it “borrowed” for the good of society, or “stolen” to profit the “thief”?
• how special was the original work? Was it an act of pained creative gestation, or an office memo (of which more later)?
• how much of the original work was stolen?
• what effect has the copyright infringement had on the market of the original work?

So far, so good. Indeed, in a recent piece on openDemocracy, Michael Handler of the Australian National University’s law faculty, offered muted praise for US fair use, in contrast to its more restrictive cousin, fair dealing, which only allows for the borrowing of copyrighted work for specific purposes.

But with flexibility comes uncertainty. And legal uncertainty will often be exploited by the party with the most legal resources – which leads to bad case law, which leads to more legal uncertainty… The history of fair use judgments since the 1976 act is a troubled one. In 2003, on completing a survey of US fair use judgments, copyright expert David Nimmer concluded that “had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same”.

Fair use, then, has become an unreliable tool for free-speaking Americans. This means that artists and critics are being intimidated as they go about their business of enriching society and pushing intellectual and creative boundaries through critique and appropriation of previous human endeavour.

Contrary to a stereotype popular among Europeans, most Americans would happily go through their entire lives without uttering the words “I’ll see you in court!” Pro bono lawyers are hard to find and the chance of losing a fair use case conjures the prospect of penury and occasionally jail. As a result, the Brenner Center report found, many copyright infringement claims for which a valid fair use defence might exist are never fought, and criticism of commercial, political and religious practices is silenced.

The floodgates for spurious claims of copyright infringement are propped open further by the 1998 Digital Millennium Copyright Act (DMCA), which holds internet service providers (ISPs) responsible for infringing material they host on behalf of third parties. This piece of legislation – akin to motorway owners being held liable for traffic accidents, or telephone companies for prank phonecalls – means that more often than not a disinterested party gets to choose whether to flick the censorship switch.

The US legal environment surrounding fair use has thrown up some truly Orwellian situations. In 2003, a manufacturer of electronic voting machines used in the US election, Diebold Inc, sent a DMCA takedown notice to the ISP of students at Swarthmore University. Their crime? They were circulating internal memos discussing serious defects in the company’s product, memos for which Diebold claimed to own the copyright. Confident they had a fair use case, the students stood their ground. With support from the Electronic Frontier Foundation, they sued and Diebold backed down.

But Howard Hallis was not so pushy. When his ISP let him know they’d received a DMCA takedown notice from Chick Publications, one of whose creationist cartoons he had satirised on his website, he complied almost immediately, with the rueful comment, “the piece was done in fun, but you got to realise that the laws can censor you”.

Should the American public be so complacent, the frontiers of free speech may well retreat. The Brennan Center report’s recommendations call for better education of artists and critics over their rights to use others’ speech, backed by a larger pool of pro bono lawyers ready to take on the big boys for the sake of the First Amendment. As for a change in the law? Don’t hold your breath. As Lawrence Lessig candidly observed last month: “The good stuff on ‘fair use’ just won’t stop coming (if only now we could get some good judicial decisions).”

(originally published on openDemocracy)

The debate about who governs the internet will dominate the World Summit on the Information Society meeting in Tunis this week – but the world’s web users have more important things on their mind, says Becky Hogge.

One of the biggest draws of the information technology scene is that, unlike nearly any other sector of civic life, it does not tend to attract argumentative people in the twilight of their careers debating aimlessly in closed rooms without having the first notion of what they’re talking about, just because they’ve come to feel very lonely when not accompanied by the sound of their own voice. If technology has one central piece of lore, it is “find it, fix it”. But times they are a-changing. Take a ringside seat at WSIS round two, starting this week, and you can say you were there when the tides turned.

Instead of getting down to the real business of pondering why, if this info-juice is so wonderful and free and everything, whilst I’m timestamping my political satire .mp3 downloads on the bus, there’s a whole village in east Africa sharing one mobile phone, at the UN’s World Summit for the Information Society in Tunis on 16-18 November we’ll be asking: who controls the net? That’s right, it looks like after all this time – why, we nearly had Mr Murdoch in a sweat back there – the world wide web was something that could be controlled after all.

The question being put to the floor is, should the US government cede its control of the Internet Corporation for Assigned Names and Numbers (Icann) to the UN? To most of global civil society, the answer seems clear. Of course the internet, a global phenomenon, should be controlled by a global organisation, no matter what we might think of the UN right now. Why leave it up to the Americans? What have they done for world peace recently?

But to every point comes a counterpoint. “Will the internet become the Unternet? ” screeched Tech Central Station last month. The headline (which, however misguided, possesses a beauty to make your average sub weep) captures perfectly American fears that its homegrown, freedom-delivering invention will become bogged down in geopolitical grey goo the moment it cedes control to the UN.

The minute you scrutinse what “control” Icann currently exerts over the net, both these arguments start to look a little premature. Because the holy grail of internet governance about to be debated at WSIS is a little thing called the root zone file – the system which controls the distribution of top-level domains (like .com, .org and .net) that make up the majority of the World Wide Web. Icann maintains the root zone file by virtue of a very tight, exclusive contract with the United States department of commerce. And the reason the DoC exerts control over the root zone file is because it bought it from a geek called Jon seven years ago.

As the Internet Governance Project so rightly point out in their recent report The political oversight of ICANN (no pun intended), this knotty arrangement with Jon (now deceased, who’s company, VeriSign, currently owns the largest domain-name registry business in the world) means that wresting control of the root zone file from the US commerce department would most likely involve a Congressional debate. US law and technology do not happy bedfellows make (the US Supreme Court recently outlawed the photocopier) and the prospect of a nationally-lobbied US Congress having ultimate say in the future of the root zone file is almost as haunting as that of a conglomerate of techophobe heads of state working out what to do with it.

A debate about the governance of Icann is long overdue. But what that debate is not about is freedom of speech, human rights, spam, or any other of the motley crew of concerns that have been brought to the negotiating table at WSIS. Icann may be an opaque and cumbersome organisation, but the root zone file is not the internet. George W Bush cannot delete it in a fit of neo-conservative pique.

True, religious lobbying of the DoC did result in severe delays in the assignment of a dedicated top-level domain name for pornographic material, .xxx. Further, accusations have been levelled at Icann that (rather unsurprisingly) it favours US business interests and has been slow to move on multilingual top-level domains.

But Icann is not watching you, nor is it scanning your correspondence for keywords like democracy. Icann is not partitioning off the bit of the web that tells you the meaning of life, or tomorrow’s outcome at the horse races. Just as American liberals are wrong when they opine that ceding “control of the internet” to an international body would allow repressive regimes like Saudi Arabia and China to cripple the net overnight, so civil society is misguided when it looks to UN “control of the internet” to bridge the digital divide (and in this respect it might well like to look at the UN-sponsored International Telecommunication Union’s record on competitive internet service provision in the developing world)

Throughout its short history, Icann has tried to find ways to “control” the web beyond the assignment of top-level domains, and Icann has failed. Now it’s the UN’s turn to fail. “Strong feelings about protecting the internet are to be expected” wrote Kofi Annan in a tempered Washington Post editorial comment (“The U.N. isn’t a threat to the net”, 5 November 2005), his attempt at calming everyone down. But feelings, no matter how passionately felt and how eloquently debated in Tunis, will not change the internet.

Whether we rent our space in the virtual world from a US-controlled Icann or a UN-controlled Icann, in the end we, the users of the internet, are the ones in control. And the World Summit on the Information Society would better spend its time this week working out how to get the next 5 billion users onto the information superhighway, rather than wasting our time erecting the kind of top-down policy roadblocks that the “find it, fix it” web has categorically demonstrated it can easily route around.

(originally published on openDemocracy)

On World Intellectual Property Day, Becky Hogge speaks to Cory Doctorow, who has been campaigning for reform at the World Intellectual Property Organisation for two years, about the strains put on the democratic process by the arrival of dissenting voices.

Today, 26 April 2005, is World Intellectual Property Day, a celebration of the power of the copyright, patent and trademark disciplines to foster creativity and innovation around the world. It is a day sponsored by the United Nations’ World Intellectual Property Organisation (Wipo), a UN organisation unlike any other. In the flock of the organisation with aspirations towards international democracy, yet funded by the big business of worldwide trademark and patent registration, Wipo’s plush Geneva headquarters have traditionally played host to lobbyists of corporate power, not champions of the developing world.

Why this should be so boils down to a simple equation – that copyright, patent and trademark law incentivise creators and therefore stimulate development. Now, technologists and their allies with a different vision of how Wipo should operate are challenging the logic of that equation. And in the face of such dissent, the democratic fabric of the institution is being stretched taut.

Cory Doctorow is one lobbyist who has been at the front line in Geneva for some time. Back in 1999, his fledgling technology company’s investors “freaked out” about a copyright-driven lawsuit filed against a company using a similar technology to his - Napster. As he faced growing pressure from his investors, Doctorow sought help from the Electronic Frontier Foundation (EFF), an advocacy organisation and impact litigation house that campaigns for the rights of technologists. He later left his company to work for EFF full time. His speciality is legislation on copyright, legislation that in his experience is often exploited in the drafting stages by lobbyists from incumbents on the market seeking to create a “permissions culture” for technologists and other innovators – in his words, “profoundly anti-competitive stuff”.

A different world

Two years ago, the EFF got a call from James Love, head of the Consumer Project on Technology and celebrated hero of access to medicine initiatives that saw big pharmaceutical players slope away from lawsuits against the South African government over the purchase of generic versions of patented retrovirals in the fight against HIV/Aids. Love had spent years at Wipo, mainly agitating for patent reform, and had noticed a vacuum of dissent against draft global copyright treaties. Delegates without a strong handle on the potential of new technologies, were, in the name of copyright, putting checks and balances on these technologies that would make valuable innovations illegal. The only lobbyists present were those representing the incumbent rightsholder and broadcasting groups. Could the EFF help?

“It’s a very different world working at Wipo”, says Doctorow,

“so when [Love] approached us the initial reaction from the people on staff was ‘how can we possibly make a difference here? We’re outgunned, we don’t know what’s going on, it’s diplomatic, we don’t know who to sue – all the stuff we’re good at we don’t know how to do here.’ But there were elements of history that resonated”

. At Wipo, just as in the various midnight meetings on broadcasters’ rights in the digital age the EFF had gradually been gaining access to in the United States, the democratic process was in danger of breaking down for lack of people speaking up for the other side: “The most egregious lies were being told about how the world worked and nobody was sticking their hand up and saying that’s not true.”Cory’s first job at Geneva was to step into negotiations over the Broadcast Treaty, a theatre of discourse aimed at updating a 1961 treaty in the light of the impending switch from analogue to digital. What he found was an audience of national delegates already held captive through five years of negotiation by lobbyists from rightsholder groups and incumbent broadcasters. New technologies were represented solely by webcasting businesses keen to sew up the market against future competition.

The arrival of dissenting voices at Wipo, where Doctorow has forged alliances with various intellectual property (IP) reform NGOs, has tested the democratic process. Their lobbying on such diverse tickets as international development, the safeguard of the public domain and the rights of archivists, says Doctorow, is viewed as “arriviste” – they are a “rabble” capable of swerving carefully planned negotiations off course when there was policy to make.

Delegates whose tentative grasp of the meanings of new technologies often came from close collaboration with incumbent lobbyists such as the National Association of Broadcasters suddenly found they were being asked to pick sides.

One of the more controversial activities of the IP-reform lobbyists since their arrival at Wipo, Doctorow remarks, has been the spontaneous publication on the web of impressionistic notes taken from the various negotiations through at-table blogging.

“Normally the way that Wipo transcripts are produced is there’s a six-month delay during which the secretariat’s notes are sanitised by circulation to all the members – ‘here’s what we’re gonna say you said, would you care to re-write it?’. And you end up with this kind of linen-draped version of the negotiation months after it happened. Whereas we go in and take collective notes which we publish twice a day. We are told that there are delegates who get phone calls in the afternoon about what we’ve posted about what they’ve said in the morning.”

Doctorow is puzzled at the reception of this practice: “They characterise that as an abuse of their hospitality because we’re telling tales. But it’s the UN, right? The idea that the UN proceeds in secret is the stuff of paranoid fantasy.”

Indeed. Last November, during the twelfth session of the standing committee of copyright and related rights, Doctorow found himself clinging on to the reins of reality after literature IP-reform NGOs had produced for the session was continually moved from the handout table to the wastepaper basket in the first-floor men’s toilets.

“This wasn’t flyers with skulls and crossbones on them saying you guys can all burn. This was thoughtful, well-informed, substantive comment on the process that we as observers have been invited to present. We ended up posting Rufus (Pollock, from the Campaign for Digital Rights). Rufus stood by the table for two days.”

Doctorow claims that further attempts to exclude the reformist argument from treaty discussions were made when Wipo “switched policy” on attendance leading up to talks on the Development Agenda earlier in April. The Development Agenda is the first piece of legislation to pass through Wipo that questions the direct link between strong intellectual-property protection and development, and had been directly facilitated by Doctorow and his allies. Whereas previously both ad hoc and permanent observers had been welcome at such talks, Wipo announced that only permanent observers could attend this meeting; thus excluding the majority of reformist NGOs, although not the EFF.

Whose democracy?

Doctorow and his partner NGOs’ message is perhaps a little too much for the delicate ears of Wipo, an organisation funded by the trademark and patent-registering business that until recently would never have given the appropriateness of that arrangement a second thought. The three aims of this year’s World Intellectual Property Day suggest Wipo’s continued belief that development comes from protection of intellectual property and that if you want more development, you need more protection. That core idea has now been challenged.

After a two-day conference in September 2004 a coalition of NGOs produced the Geneva Declaration on the Future of WIPO. Signed by high profile free software and copyleft advocates, access-to-medicine campaigners, library associations, academics, Nobel prize-winning scientists and development organisations such as Oxfam, the declaration demands that Wipo re-examine its ideas about the logical link between copyright, patent and trademark protection and the ultimate goal of its UN mandate: development.

Noting the emergence of other intellectual-property disciplines within which development has been shown to flourish, and condemning the anti-competitive advantage Wipo had bestowed on its most vocal lobbyists in the past, the Geneva Declaration has already provided a springboard to Argentina and Brazil from which to launch the Development Agenda.

These and other rebel delegates from the global south, who have identified an opportunity to swing the global intellectual-property agenda – so intricately linked to world trade – in their favour, have a tough battle ahead. Doctorow reveals the tensions at one meeting:

“There was a proposal to cancel the June meeting in favour of a series of regional meetings, which is widely understood to be a divide-and-conquer tactic. Brazil, Chile, Argentina, India…spoke out passionately against it and said ‘we block it, this is a consensus body, and without our consensus you can’t go forward with this’. And the chair put it to a vote, and they had a vote, and he said ‘well that’s democracy’. Their response was ‘what do you mean that’s democracy? We have a deliberative process, and the deliberative process is consensus oriented, there’s no consensus in this room’. The chair’s reply was that the consensus is on substance not on points of procedure.”

Cory Doctorow is confident that his and other NGOs’ activities will end up having a lasting, positive effect on Wipo’s engagement with the developing world. As with many geeks, there is idealism just underneath the earnestness. At the end of our interview he quotes Gandhi: “‘First they ignore you, then they laugh at you, then they fight you, then you win”.