A Secret Copyright Treaty

- - copyright

I’m not sure how much of this is true but Cory Doctorow at Boing Boing is reporting that a secret copyright treaty has been leaked (here) and there’s some very interesting language in the draft text (again, who knows if it is true):

“A requirement to establish third-party liability for copyright infringement.”

“in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content”

Which Cory is interpreting to mean ISP’s have to police copyright and have to cut off internet access to accused copyright infringers or face liability.

Nobody knows what the future looks like from here but certainly some type of deterrent that makes people think twice about [illegally] downloading music, software, movies and even grabbing photos would be good for us. Cory is saying it would be impossible to run a service like Flickr, YouTube or Blogger but would you really care if those services didn’t exist? There’s plenty online I can live without and certainly if it means a robust media industry I’m all for it but I’m a little biased.

There Are 43 Comments On This Article.

  1. um yes, youtube has been absolutely invaluable in education (and to culture as a whole). There’s a lot of tomfoolery there, but we’re also seeing a lot of clips from video archives that haven’t been unearthed in decades.

    And blogger? Don’t even get me started. There are huge benefits to having easily accessible platforms of expression.

  2. The Wallbanger

    “..would you really care if those services didn’t exist?”

    Yes, of course we’d care! These companies represent the democratization of information and expression for the common individual. Just because the potential for copywrite abuse exists, doesn’t mean that the framework of a social internet needs to be abolished. I imagine a robust media industry to include millions of participants, not just the archaic objectives of the 5 big media corporations.

    It’s clear that you haven’t given this development much thought, especially considering that the opinions and content you release on your own blog is a product of the very concept you wish to do without.

    • @The Wallbanger,
      Explain that to me. I actually don’t need youtube to post videos, I don’t use blogger and I don’t use flickr to post photos. When I post copyrighted material I link to the source, only use a small portion of the original material and write about the material I am excerpting.

      Is it more democratic that everyone has a website or that corporations like google and yahoo sell advertising against user generated content.

      • @A Photo Editor, the average net denizen will probably never have the know how to create their own website at a level to compete for attention. I would love to see that possible, but the reality of the situation seems to suggest that easy to use platforms such as youtube (corporate owned or no) help level the playing field.

      • @A Photo Editor, Also, automated systems might not be able to tell the difference between fair use and copyright infringement. It’s already something real live human lawyers have trouble with.

        • @Ian Aleksander Adams,
          Wikipedia doesn’t allow copyrighted material but you can dispute the charge by providing evidence that a human looks at. I think there are ways.

          • @A Photo Editor, Are you suggesting we somehow hire a staff to daily moderate the entire internet? Who is paying these people? Even if they’re just looking at the disputed charges, it’s an insane workload. And they should be highly trained as well.

      • The Wallbanger

        @A Photo Editor, What Flickr, YouTube, and Blogger offer is the concept of a collective community, sharing ideas through open communication channels and searchable collections. Their success is a testament to the needs and wants of the public.

        You explain that these services are of little value because you’ve been able to earn success through self-publishing. Congratulations, you’ve navigated through the dense jungle of ISP contracts, domain appropriation, web publishing software, and countless other hurdles. How would my 60-year old mother fare when she simply wishes to send a webcam congratulations to my daughter for a first lost tooth? I suppose she could email a video, but by your own description of self-reliance wouldn’t that transmission be built on the backbone of corporate email providers?

        Where does it end? At what point do we admit that we can’t go it alone?

        And a final point regarding the democracy of website ownership vs. social network participation. Both are democratic. In each instance you have the freedom of choice. Unsatisfied with a provider or terms of service? Then move on.

        You lose these freedoms when the arm of the government and these proposed laws overrides the will of the people or their constitutional right to due process. The blocking of internet access without fair trial does a disservice to the individual as well as the content providers.

    • @The Wallbanger,

      These companies don’t represent the “democratization of information” they represent the communistic sharing of information, the belief that the property should be freely shared. The problem is that the platform/pipeline profits and the property holder suffers.

      • @Victor John Penner, this is not accurate. the sharing of information on these sites is not compulsory (communist), it’s participatory (democratic). they are rooted not in the belief that property SHOULD be freely shared, but that it CAN be.

        • @francisco,

          You are correct, it is NOT compulsory to post information, however the general consensus of the users/viewers is that if the information is online, it belongs to the “community” and should be shared “freely”.

          The general population feels that if they pay for internet access that the information is free for them to use.

          • The Wallbanger

            @Victor John Penner, Regardless of semantics, I am sure that a freedom-loving American such as yourself can identify the obvious assault on personal liberties presented by this treaty. While the intent is well-meaning, the execution is clearly unacceptable.

            The treaty proposes the following:
            1) Gives corporations police powers.
            2) Circumvents your right to fair and speedy trial.
            3) Asserts guilt until proven innocent.
            4) Ignores personal accountability by punishing household rather than the individual.

            The ramifications of this law are further amplified as we see the merger of internet providers and content creators.

            A hypothetical.. Recently, you may have read about Comcast’s proposed purchase of NBC/Universal. Being a fair and balanced individual yourself, you set out to correct inaccuracies in MSNBC reporting. You upload a video to the internet with excerpts of a recent broadcast along with your analysis of the program’s truthfulness. This critical exercise in free speech is protected by “Fair Use”, an important element of the First Amendment. However MSNBC doesn’t see it that way, so through accelerated channels of expedition your Comcast internet is promptly shut down. For months. You have been blacklisted without a speedy right to recourse.

            While this scenario may seem extreme, it is currently the status quo in France, as they have passed a three strikes law governing internet access and copywrite.

            So two questions.. What do you have against the American system of personal liberty? And why should we model our rule of law after a socialist country like France? ;)

  3. Yeah….. don’t forget all that porn too

    It seems like a fine line to enforce though. Whether or not its a step in the right direction? Time will tell I am sure

  4. Would this mean that when presidential campaigns, large corporate marketing campaigns, etc steal IP they will lose their ISP?
    Or is this just another attempt to hold on by large groups that are becoming more and more unnecessary.

    A robust media industry means changing with the time instead of forcing consumers into ‘the good ol days.’ As Media creators photographers seem to have more to worry about from these big companies (you know the ones that don’t pay on time, ask for free work because “I could just get someone else to copy you”, etc.) than the small infringements of consumers and fans.

    • @Ari, Exactly. I highly doubt we will see action on the Obama campaign (questionable infringement anyway) or the million clothing companies stealing designs from students, etc.

      It’s mainly going to be on the little guy, making little or no profit.

      And I don’t think it’s even going to help. It’s just going to push actual pirating even more underground. The community/userbase is too large to actually dissipate without given some extremely good alternatives.

    • @Ari,
      I’m positive this is large corporations trying to maintain a strangle hold on content but I don’t think they can because the monopoly has always been because of the cost of distribution not the cost of creation.

  5. So far the comments have been a little short-sighted. All of that historic, invaluable content that is mentioned above was (for the most part) made by people who got paid for their work. What’s the motivation to do that today? If you can’t profit from your work, there’s no reason to keep doing it.

    Sorry, like anything else “democratized” information is worth about as much as you pay for it.

    Current example, shouldn’t all that priceless and historic footage of the last days of Michael Jackson be available to everyone for historic, educational and even entertainment purposes? Well, it is for $10. Of course Sony had to shell-out $60,000,000 in the first place to make that happen, and their motivation was to make ten times that much, not to “democratize” it.

    If you got your wish, if great content was free for you to use anytime you wished, who would create this content? Or would you just be happy with whatever a random person managed to capture on their cell phone and upload to Twitter?

    There are more images available today then ever before, 99% of them are free and 99% of them are crap. The pipeline is drying up. Free content is forcing paid content out of the marketplace and lowering the standards of what’s available to all of us.

    In the end, democratization means that those willing to pay for quality content won’t have anyone to buy it from.

  6. ‘third-party liability for copyright infringement’ is really bad.

    Correct me if I’m wrong, but isn’t APhotoFolio a lot like Flickr in that it provides a structure, and users provide the content?

    Essentially, you could be liable if a photographer uploaded a copyrighted image to their APF site. And you would have to come up with a system to keep that from happening (and not just contractual language). That sounds like a real pain in the ass.

    • @Mason,
      Right, so you change the way you do business. Instead you just sell someone a product and be done with it. Like selling a hammer. They can build a house or hit someone over the head with it.

      • @A Photo Editor,

        But hammers don’t kill people. People kill people.

        By your line of reasoning, maybe content providers like photographers should start selling hammers, instead of trying to lease them ;)

    • photographer

      @Mason,
      Sites like Flickr have tons of work by famous photographers posted by third parties. And its really hard to get the images removed. Yahoo who owns Flickr can do more to educate users about the Copyright Law.
      In all this free images and download, companies who own these , Flickr owned by Yahoo are making tons of money. Youtube own by Google as well.
      And once an images are on these sites, it spread on the internet like a virus and the creator has little control over it. SOMETHING HAS TO BE DONE.

  7. “Nobody knows what the future looks like from here but certainly some type of deterrent that makes people think twice about downloading music, software, movies and even grabbing photos would be good for us.”

    I assume you mean “think twice about [illegally] downloading …”

    But who is this “us” you talk about? Photographers, content providers, or everyone generally?

  8. one of the primary benefits of sites like youtube and flickr is their ease of use, which empowers those with limited resources to create their own content for no reason other than they like to. sure, the majority of it is crap. but the majority of that crap isn’t intended for a significant audience, or to be profitable.

    as The Wallbanger says, these companies represent the democratization of content creation. sure there are other online outlets, but many of those represent an investment of time or energy to get working, which can be prohibitive to less experienced users.

    a framework that allows everybody to create content is extremely valuable. not only does it enable a community to develop for people to share ideas and content with each other (which, in addition to simply being enjoyable, improves the work of all its members), it gives a voice to talented content creators who might not otherwise have been able to find their way into such a notoriously difficult market.

    of course there are pitfalls with these changes. with ease of use comes the increased risk of theft, not to mention a saturated market with a plummeting signal-to-noise ratio. but as you said, Mr. Editor (or can i call you A?), people are resourceful. i’d never suggest that people don’t still deserve ownership of their content, or shouldn’t be able to profit from it. but the nature of intellectual property is changing rapidly, and old models are simply no longer sufficient. the question isn’t “how can they be preserved,” it’s “how can they be improved?” a new policy that precludes the existence of social media networks is in no way an improvement.

  9. Another likely ramification: If I disagree with you about something (as I do here), I could get your entire website (and your company’s, too) taken offline simply by writing to your ISP alleging infringement.

    Even if the charges are baseless, it’s guilty unless proven innocent, with no court oversight, recourse, or remedy for lost business (or your customers’ lost business).

  10. Establishing third party liability is a huge mistake. Companies that traffic in the enormous amounts of information like youtube, flickr, and large ISPs are never going to find it profitable to risk liability in defense of legitimate uses of intellectual property. Fair use and parody will have a very difficult time. Large corporations will have an incentive to go after such use and the third parties will either spend limited resources defending the use, putting them at a competitive disadvantage, or cave. Call me a cynic, but I think the outcome is obvious. Over-defense in the face of liability is too attractive. You see it all the time already. For example, I was a small town last year and wanted a print to give to a particularly helpful subject. I go to a walmart and am told they won’t print it because it is obviously an image from a professional photographer and they can’t reproduce copyrighted material. It was incredibly difficult to prove to a walmart employee standing right in front me that the image on the CD was mine. You already see it on the web too. Photo.net, a large photo community, won’t allow users to post small, third party images in their forums for discussion or critique, clearly fair-use, because they can’t afford to defend themselves against complaints. What ISP employee is going to stand up for fair use when they get a cease and desist from Sony?

    As a photographer I am a staunch supporter of copyright, but as human being who values my right to free speech I support fair use even more. Since fair use needs to be actively defended it is appropriate that I except the liability for using material under fair use, but expecting a third party corporation like an ISP to also stand up for my right in a context that requires judgement and an active defense is expecting too much. It is not in their best interest to do it. If this treaty is real and becomes law it will inevitably become a tool to suppress free speech.

    • @Mark M,
      Yes, I suppose this is why people are freaking out about this. I guess we need to solve a couple things first. What exactly constitutes fair use? Can we just define it? How can you prove you created something?

      • @A Photo Editor, first I’m horrified: except = accept. How does that happen?

        To your point, I don’t think it’s possible to define fair use anymore that it is to define parody or pornography. It requires case-by-case human judgement. The problems with a treaty like this are mechanical—changing the system in such a way that the intent of the law has been circumvented. Fair use, being an ‘affirmative defense’ requires the usual machinations of justice—you must be accused and then defend yourself with fair use, which of course is expensive. It seems the treaty is designed specifically to transfer this expense to the party least willing to bear it and to remove those who might be willing to incur the cost of defense from the system thus moving them from the relatively familiar legal system to a Kafkaesque labyrinth of mid-level clerks working at your ISP.

  11. I would be the first time in the history of modernity that the genie is put back in the bottle, wouldn’t it?

    Yes you can try to control, regulate , embrace and live with it, and prob should.
    But Flickr Blogger and other sites who use images without caring for copyright – these won’t go away – we can all get excited about it, but it just wont happen.

  12. It is interesting, I get an email from Lucinda M. Dugger [ldugger@copyrightalliance.org] about a letter to the president on this very issue. Is this really a leak or a very sly way to get the same kind of reaction as when David letterman announced his controversial behind the scenes life. The public reaction was short lived and they moved on to other media emphasized controversy.

    Everyone in the big media companies like Microsoft and such are trying to keep the level of piracy down. If you had the time and watched the recent 20/20 or 60 minutes piece on piracy of movies (not sure which did it-sorry), you can see there is a concerted effort to slow it down. I was stated that they don’t think that piracy can be eliminated.

    I think education, respect, ethic/morals, personal responsibility should be brought to the public eye. There have been many issues that have been media blitzed, like campaign for volunteering to help out the less fortunate and giving back to the country. This is an issue that can benefit from the same kind of media campaign.

    This is an issue where those who create content need to become educated. I know that I will bone up and find out all that I can. IMHO.

  13. I don’t pretend to understand all this. That said, the only thing I post on Flickr is probono work I do for MoveOn or snaps at a gallery event.

    I won’t be losing any sleep if flickr and youtube go away, at least in their current form. So many online providers rely on cheap to free content and help.

    I just had to force someone else on a volunteer committee I serve on NOT to go to Flickr. I was the office joke for forcing my last publisher not to steal images from the internet and needless to say I no longer have that job.

    The idea of free content kills those of us trying to make a living a little more everyday. That’s much I do know.

    Something has to happen or we are all done. Except as hobbyists.

  14. From what I have read on this issue since this topic was posted it seems to me that the issue is to prevent piracy on a large scale such as “file sharing” sites that claim fair use and hold no personal liability but in fact are allowing the sharing of intellectual property without compensation to the property owners.

    I am the first generation of my family born to be born outside of the former Soviet Union so I am MORE than aware of my civil liberties and what we have here. I don’t see this as a rights grab or an erasure of fair use, I honestly see this as a way for the owners or controllers (rightfully) of content to be able to charge for it. They have to make it profitable somehow.

  15. The Wikipedia on this does not quite match the article you started on:

    http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement

    Seems to me that the most controversial proposal is to make ISPs release information on a suspected infringer upon request. Depending upon how the final version is worded, such a treaty might conflict with many existing laws in many countries.

    I see a larger issue trying to be addressed: should content creators be able to profit from their creative works? I think the answer to that is YES. I do feel that something needs to be done to curtail infringement for illicit profit, but I don’t necessarily think ACTA is the best way to do that. Besides, those who want to infringe could simply do their activities through ISPs in countries not a part of any Treaty, much like spammers now operate.

  16. The whole issue of copyright violation would be easily solved if ISPs Youtube or any site facilitating the posting of intellectual property was required to have the identification of a person or entity responsible for a posting. The identification of the copyright violator would only be released upon proof of ownership of copyrighted material illegally posted. The party responsible for the illegal posting would be subject to the existing penalties for copyright violation which are sufficient, as long as there is a way to identify those responsible for illegal posting(s), the DMCA (Digital Millennium Copyright Act) does not address this issue.

    If there is no recourse for those who spend the money and time to produce copyrighted material of interest to the public, the future of the most sophisticated creative efforts will all be sponsored by advertisers and special interests. Individual expression should be protected for the sake of individual expression. As civilized human beings we should have the right to benefit from our efforts and the choice to share our efforts in a manner that we choose.

    • @Keith,
      So, doesn’t 3rd party liability force this to happen. You either know the names and addresses of people posting material or you sell them a product and be done with it.

  17. Just to clarify:

    There is already third-party liability for copyright infringement. If you enable someone to infringe copyright and you profit from that enabling, you can be liable.

    The DMCA that the bloggers all hate, provides a “safe harbor” for the ISP from that third party liability; if certain procedures are followed, the ISP is not liable for the copyright infringement done by the customer. It is the only reason that YouTube, et. al. can do business. If an international treaty has a similar provision they are safe. http://www.copyright.gov/title17/92appb.html

    Also, nobody is attacking the free sharing of information. They are attacking the sharing of stolen, copyrighted expressions of that information.

    If you separate the two concepts- “using other peoples intellectual property to communicate ideas” from “creating your own expression,” you will see that nobody’s right to express themselves is affected by copyright protection. If anything, copyright makes it possible for professional communicators (i.e. professional First Amendment’ers ) to stay in business.

    The solution for bloggers is simple. Just restate the information in your own words and your own pictures and you won’t be sued.

    @ A Photo Editor. Fair use is unfortunately a balancing test, which means it often escapes clear cut answers. But the four factors considered are these:

    - The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    - The nature of the copyrighted work
    - The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    - The effect of the use upon the potential market for, or value of, the copyrighted work

    http://www.copyright.gov/fls/fl102.html

    -Alicia Wagner Calzada

  18. I don’t think it’s really possible to track all the internet traffic and differentiate illegal from legal downloads. Only in a limited way, for example they may track bit torrent users sharing files or other p2p networks and file sharing services. It doesn’t make sense to track all the html traffic.

    Alex