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1. Thank you for the opportunity to make a submission on the Copyright (Infringing File Sharing) Amendment Bill.




2. My name is Mark Harris. I am an IT consultant for my own company, Technology Research and Consultancy Ltd. (TRACS). I have previously been a public servant, working for the New Zealand Post Office, PostBank, Inland Revenue, the Ministry of Research, Science and Technology and the State Services Commission E-government unit. I was the convener of the Government Information Managers Forum (GOVIS) for 3 years and involved for many more at a committee level. I have served 2 separate periods on the InternetNZ Council, and managed the .govt.nz domain for 8 years.




3. I am also an actor, and have been involved with theatre in Wellington for over 30 years, becoming a writer (2 plays) and director, a lighting and sound technician and designer, props maker, set designer and builder, as well as being involved in administration and organization for BATS theatre, Wellington Repertory Theatre, Stagecraft Theatre and Backyard Theatre.




4. I believe in the value of copyright but do not believe in the overvaluing of copyright. I have made submissions to the Government on the Anti-Counterfeiting Trade Agreement and the original section 92A of the Copyright (New Technologies) Amendment Act 2008 which this amendment seeks to replace. I write an infrequent blog On the Gripping Hand, on which I comment on these and other matters (http://tracs.co.nz/gripping-hand/). I wish to appear before the Committee to make my submission in person and answer any questions that may arise from it.




5. Firstly, I’d like to say that, while this amendment is more acceptable than the previous Act, in that Guilt on Accusation has been removed, requiring a standard of proof and formal quasi-judicial process, this acceptability is only relative. The amendment still has problems but, more importantly, is still the wrong thing for this country to enact.




6. I’d like to briefly touch on some of the key problems I see in the amendment itself, though I do not intend to spend much time on them.




7. The definitions are still loose, by my reading of the bill, especially that for “filesharing”:
   

   “file sharing is where material— “(a) is downloaded from the Internet; or “(b) is made available on the Internet by a user in a form in which the material may be downloaded by 1 or more other users; or “(c) is transferred, directly or indirectly, via the Internet from one user to another user”

8. That describes email, where information and “material” is transferred from one user to another, and hosting any sort of website, where “material” is downloaded from the Internet and/or made available for download. This is the point of the Internet – to make “material” available to other people.




9. I’m sure the officials will tell us that it is not the intent of the legislation to prevent people from carrying out perfectly legal activities, but that will not prevent a lawyer making use of any ambiguity in order to press his client’s case in court. If the grey area exists, someone will attempt to use it.




10. If the purpose is to prevent illicit sharing of content, let the legislation say so. At present, it does not, in my opinion. Legitimate companies use filesharing technology to distribute patches and updates to their software, open source projects use these techniques and others, web-hosting companies, non-profit organizations, charities and ordinary businesses all use email and the web, and all these will fall under the definition of “filesharing”. I submit that the Committee needs to think very hard about what the Act is supposed to achieve and whether this looseness will do that.




11. There has been a tradition in legislation of being as technology-neutral as possible, i.e. outlawing activities based on intent, rather than the tools used. I submit that this Bill is not technology-neutral and therefore runs the risk of stifling genuine opportunities for innovation by being unclear as to what activities are actually acceptable. Even if an actual complaint would not be upheld in judgement, the threat of a complaint being taken against a small company may be more than they are able to sustain. Unintended consequences of poor legislation can be devastating to small and medium enterprises.




12. I am not going to comment on the Tribunal process I am not a lawyer and there are others who are more capable of analyzing that than I am. I think there are some potential issues, but my objections are not with the details of the process. I have no doubt that the designers of the process have worked hard to get one that is as robust and fair as they can make it




13. My issue is with the entire process of enforcing copyright infringement:
    What is the problem that this Bill is trying to resolve?
    Will this Bill, once enacted, fix that problem?




14. According to the Bill:
    

    While the damage sustained by a copyright owner from a single file sharing infringement is generally small, the prevalence of infringing file sharing in the current digital environment is having a negative cumulative effect on New Zealand’s music, film, and software industries




15. According to the Regulatory Impact Statement:
    

    We are unable to accurately estimate the costs to the industry from illegal P2P file- sharing since attempts to scale the problem have been fragmented or based on limited data sets. It is also complicated by the changing business environment. The industry is in the midst of a technological revolution with an explosion of channels, formats, and business models. As revenues drain away from the industry, businesses are struggling to adapt. Consumers have also reacted to these changes in ways that the industry has not anticipated, increasing uncertainty in the industry.




16. In fact, the Ministry and the “copyright industry” representatives such as RIANZ, APRA and NZFACT are unable to present ANY evidence of ANY costs to any of their industries. Globally, the recording and associated musing industries, and the motion picture industry, have all had record years in terms of revenues and profits. I note that there is a blank “omitted” portion on page 3 of the RIS – why any information should be omitted from a regulatory impact statement is beyond me but, if it contained verifiable evidence of the size of the problem, I would expect it to be presented.




17. Where are the musicians and songwriters who have been forced out of business by filesharing? Where are the former film-makers who no longer practice their craft because someone copied their movie online? Why are they not testifying loudly and with their bank statements in hand, to prove that this is a significant issue for the Realm of New Zealand, so significant that we must create repressive legislation? I submit to the Committee that they don’t exist. There are some creators (to use a broad-brush term) who have spoken out in various fora, but not with any evidence, only fears that something might be happening and that it may change how they operate. On the other side, there are many case studies from musicians and software companies testifying to the fact that they have made money from sharing files on the Internet – the bands Radiohead and Nine Inch Nails, and writer Cory Doctorow are often cited as examples, but there are many others, overseas and in New Zealand.




18. The only area that statistics show has been materially affected is the sales of plastic discs that we call CDs and DVDs. And the above statement points out why that is occurring: people are changing the ways that they choose to receive their entertainment. Rather than change with the market, these industries have chosen to attempt entrenching their business models in legislation, such as this Bill and its underlying Act.




19. The General Accounting Office of the US Government recently reported that the numbers used by the industries to justify their demands for stronger enforcement could not be verified. One of the problems signaled by the GAO is that government officials admit that they simply reply on statistics and reports from the entertainment industries without conducting research on their own. These reports naturally lack transparency about the source of the figures and are often written to sell a political agenda through lobbying efforts. The RIS continues this trend.




20. The fact that the industries most concerned with the ‘issue’ of filesharing cannot quantify any losses in a verifiable manner should be of extreme concern to policy makers and legislators. When I ask the question “What problem is the Bill trying to solve?”, I hear no answer from the Ministry of Economic Development except repetition of that which the recording and associated industries have told them.




21. I submit to the Committee that this is not a good enough basis for legislation. Without a clear understanding of a) what the actual problem is (if there is one) b) how big a problem it is and c) how much it will cost to implement a ‘solution’ for a problem that may not exist, then there is no way the Ministry can confidently predict that their ‘solution’ will actually resolve any matter.




22. The “3 strikes” concept (dressed up as “graduated response” and a few other euphemisms) is being pushed around the world as the solution to the undefined problem of filesharing. The recording and movie industries have issued report after report with dubious analysis and numbers that indicate that the creative world is dying because of copyright infringement and that only internet termination can save it (previously, the same logic was used to justify suing filesharers, or at least threatening to sue them). While Korea and France (and non-legislatively, Ireland) have implemented legislation around this, Germany has explicitly rejected it, as has the European Parliament. Significantly, suggestions that the US adopt such a measure can’t even get to first base on grounds of free speech.




23. I submit to the Committee that termination of an internet connection will do nothing to inhibit illicit filesharing and may well cause harm through other unintended consequences. Computer users shared files long before the Internet came around, as did music fans. We used floppy disks and cassettes then – now we have flash drives and MP3 players, which are often more efficient vectors than the Internet, given the substandard network infrastructure in New Zealand that is laughingly called “broadband”.




24. Additionally, the Bill summary states:
    

    This Bill provides a regime that aims to—

    • deter file sharing that infringes copyright:
    • educate the public about the problem:
    • compensate copyright owners for damage sustained from copyright infringement by file sharing:
    • provide sanctions for serious copyright infringers:
    • limit ISP liability that may result from account holders’ infringing file sharing




25. I submit to the Committee that the Bill will not do anything about the first point, as mentioned above, and will be unlikely to do anything about the second, given the amount of information that is already out there and yet the activities continue. The framers of the Bill do not seek to educate, they seek to frighten citizens into compliance. That’s a very sad place for a government to be, regardless of the political stripe.




26. I submit to the Committee that the Bill will not be able to compensate copyright ‘owners’ as there is no way of measuring what impact filesharing has had on their business. What the Bill seeks to do is establish a revenue stream that hasn’t existed before. If you can’t show figures that indicate actual damages, how can you estimate actual compensation?




27. I submit that the sanctions provide by the Bill are meaningless, in a true sense, because “serious copyright infringers” will have many other means of continuing their activities. Technologically, it is trivial to do so. Other commentators have discussed how simple it will be to get a new Internet account with a different provider. If a “serious copyright infringer” is taken to be one who is making money from infringement, this will be regarded as a business risk and they will make continuity plans accordingly.




28. I hope that this Bill, if passed as is without some last minute amendment, will actually protect ISPs as intended, but I sincerely doubt it. I anticipate it being a platform for litigation well into the next decade. The iiNet case in Australia recently is an indication of what we can expect.




29. Let me be clear: I fully understand that filesharing exists and that some material shared is covered by copyright and is therefore being shared illegally under laws written before the technology and culture around it existed. What I question is whether this has actually caused material damage to the holders of those copyrights. Independent studies have shown that filesharers actually spend more on music than non-filesharers, both from digital and physical sources.




30. As Doctorow has said, the problem for creators is not piracy but obscurity – filesharing has enabled many musicians and bands and writers and artists to put their material in front of new audiences who can sample it and decide whether or not to support the artist directly through donations, payments for higher quality content, non-digital scarcities up to and including the opportunity to perform on the artist’s next album. We’re seeing an expansion of business models and increased disintermediation of gatekeepers such as record labels and movie studios (in the case of EMI both at once)




31. The problem here is not filesharing or even copyright infringement under old rules. The problem is a disruptive sea change in technology that is causing old business models to become irrelevant. It’s not even about people wanting material for free – evidence shows that people will pay even when they don’t have to IF they want to, IF they feel that the object of payment is worthwhile.




32. The issue facing the content industries especially is an unwillingness to change their business models, even in the face of their irrelevancy. Content business models are about selling scarce things, such as albums and movies. When things can be copied at little or no cost, they are no longer scarce. These industries now want legislators like you to impose artificial scarcities through legislation such as this Bill.




33. In summary, I submit to the Committee that this Bill is:
    • a solution that won’t work for
    • a problem that doesn’t exist at
    • a cost that can’t be calculated
    • to suit business models that are obsolete.

And he’s right. There’s nothing I want or expect from BoingBoing and Rob Beschiza at this point. There’s nothing they’re going to get from me. I won’t be reregistering, because I don’t like the arbitrary way they treat the people who make up their community. They’ve made it clear they’re not going to change that approach.

So be it.

On to other things, like saving the Internet, and defeating ACTA. Stuff that matters.

[comment number 5]

Hi Rob, thanks for stopping by. Seems a little odd to me that it takes a public blogpost to get any sort of reaction from you, rather than email nearly 10 days ago, but at least you’re here. Not listening, though, it seems.

You confuse “entitlement” with “expectation”, and then use “entitlement” in a pejorative manner. Bravo! I never said I was entitled to post at BoingBoing – I said that, as a registered participant, I had an expectation that BB would behave in a fair and reasonable manner.

Your ad-meister, Mr Battelle, charges people who advertise on BB, and other properties, based on the number of visitors and pageviews that are generated. Whether I look at the ads or not, I am a part of the value chain that pays any remuneration you receive as Managing Editor.

“Whatever the merits of our comment policy, you broke it.”

You repeat this but you don’t say who was insulted or why they felt insulted by my comment. Let’s examine the comment:

On the Cusack non-story – it wasn’t his spelling or grammar that got me to eventually unfollow him, it was his inability to articulate or to tweet anything worth reading. Sorry, Xeni, we obviously have different definitions of “down to earth”. (Are you sure he didn’t have an assistant write the guest post?)

Love your acting work, Mr Cusack, but your writing? #notsomuch

Hmm,

• I don’t appear to be insulting Cusack’s spelling or grammar.
• I state that I did not find anything he posted worth my time to read (last time I looked, that was a subjective judgement, also known as “opinion” whether explicitly stated as such or not)
• I apologize in advance to Ms Jardin for disagreeing with her assessment
• I ask if she can verify that he actually wrote the guest posts BB lists him as writing
• I salute Cusack’s acting repertoire but reiterate that I don’t like his writing

Where’s the insult? Seriously, where is it? Now, I know that someone can take an insult out of someone else breathing loudly, and it appears that someone has taken some offense on Mr Cusack’s behalf (did anyone check to see if he felt insulted, by the way?), but I really can’t see an insult in that comment and, as it’s the crux of the matter, I’d seriously appreciate you pointing out the offending words and why they were offensive? Clearly it got some-one’s panties in a bunch, but I can’t work out who or why [please note that the "who" is unimportant to me, as whoever it was has tarred the whole of BoingBoing with the same brush. The "why" still remains of interest to me].

As I said before, last time I took math, 1 did not equal “the bulk of” 2. By your own rules, my second registered post (I believe there have been others, but I was probably in a hurry and posted anonymously) does not constitute the “bulk” of my postings. With only 2 postings to go by, I cannot see how you can look so far into the future to determine I will be a troublemaker. Especially given some of the comments that do appear on BB, disemvowelled and not, from the regular contributors. How can you determine from this one comment such a future risk?

You attempt to make some point about me “jumping in” to post – did you stop to consider the fact that I first registered in 2008? Which means I have been reading the site for at least 3 years (actually, more) and maybe I’m just not the commenting type?

You say that, in practice “barely anyone gets banned on these grounds, because even consistently oppositional commenters can be good contributors. And disagreement is welcome.” and yet I did get banned. Your moderation page indcates in its comments that others have similarly found themselves banned and don’t know why. Perhaps you feel, that on a percentage basis, this equates to “barely anyone”. I’ve already mentioned that I think your maths needs work.

“You were banned because your first comment not only broke our policies, but was whiny and smarmy and too personal about it with both poster and the subject. That your second comment was so belligerent only furthers the perception that it’s all you’re likely to offer.”

I’m a little confused here. I made one comment in June 2008  which said in total:

#35 POSTED BY NZLEMMING , JUNE 8, 2008 4:15 AM

Well said Teresa.

Torporous, the reason they’re so cheap is that then they can tell themselves that they didn’t sell out, they were only taking care of the interests of their supporters.

I’m guessing that this isn’t the one that “broke our policies”, but it’s hard to tell from your writing. I made another comment on 28 April 2010 which is quoted in full above and appears to be the one that you believe “broke our policies“. So I’m not sure what you mean by “your second comment was so belligerent”. Which comment are you referring to as belligerent? This is not a smart-arse throw-away – I seriously do not understand your accusation of belligerence, which seems to be the reasoning you used to ban me.

“We then saw a demand for answers on Twitter”

A “demand for answers”? I asked Xeni Jardin:

Did you just shut down my login to BoingBoing because you disagreed with what I said?

The question there is “Did you just shut down my login to BoingBoing” and I asked because I wasn’t sure if it had been shut down or whether there was a technical issue, and that’s because no-one at BoingBoing, not even a robot, let me know that I had been banned. Had I been able to DM Ms Jardin, I would have. That was not a possibility. I knew (as closely as one can know without being a stalker) that she was online, having just responded to my comment. It seemed reasonable that she could respond with a simple yes or no.

“A stern email explaining in great detail why you should get them”

It’s quoted in the original post, in full – I’ll let readers determine how “stern” it is.

“That you apparently expected a private reply even after inviting us to respond on this public post only highlights the huge sense of entitlement manifested in all this.”

Actually, given my experience so far, I expected no response and did in fact not ask for one. I barely thought anyone from BB would come to the blog, though I made the invitation to let you know that it would be happening. That seemed only fair and reasonable, not to mention respectful and courteous.

“Antinous also sent a perfectly polite explanation why your posting privileges were cut and an offer to have them reinstated. But you turned that down, because it isn’t what you really wanted: to quote, “You need to show a little more courtesy and respect.”

Ah, cherry-picking, thy name is Rob! ;-)

The actual quote was

But when you make your money by marketing the eyeballs of your readers, I think you need to show a little more courtesy and respect than BoingBoing showed to me (and others, if you look around the net – even on BoingBoing’s moderation policy page)

That’s an if/then argument. It’s quite clearly not a demand for special personal treatment that you make it out to be. It’s a statement in support of the main premise of my post, that there is an implied social contract when you start making money off people.

“That’s freely given to courteous and respectful readers, but we’re not obliged to offer the same to those who write insulting comments about our editors and guests.”

Again I ask, where did I insult your editors or guests? Put up or shut up, Rob. Post the words and how they insulted anyone.

“It isn’t disresepctful to ask you not to make more of them, and it isn’t discourteous if we choose not to reply to your adversarial tweets or emails. Tough cheese, old boy!”

You did not ask me to not make more of them – you banned me so that I couldn’t. You did not tell me I had been banned despite 2 polite (and they were polite – there’s no abuse or swearing – they’re quoted in the previous post) requests to enquire whether that was the case. For 5 days, you did nothing about it and even when it was finally acknowledged by antinous, there was no reason given beyond some sense of “insult”, no guideline on how to not offend again, nothing but an oh-so-gracious offer of a “fresh start”. As my response indicated, I do not choose to give BoingBoing a “fresh start”.

The tweet (singular – you really need to work on that math!) was not adversarial, and neither was the first email. By the way, when someone sends email to my address, yeah, it is courteous to respond to it, especially when it’s an inquiry about a service I offer. And especially if I hold a formal position with the organisation being communicated with.

******************************

A couple of hours later, Rob returned and posted this comment [number 8]

I’ve got no objection at all to criticism. Criticism is good and healthy. I love being insulted, too: there’s no better sign that you’re doing something interesting. But when it’s delivered in a way that oversteps the rules we’ve established, we’re not going to publish it *ourselves* at *our* site. Removing people’s posting privileges is the most straightforward way to make sure that remains so.

Now, you’re saying I insulted you, personally? Unbelievable. And, out of curiousity, how would I insult you, which you say you welcome, without breaking the rules of your site? You seem to have a very arbitrary view of what’s insulting and what’s not. Perhaps you need to consider that the rules apply as much to BoingBoing editors as to commenters. Or, if they don’t, you should explicitly say so.

Also, I sincerely appreciate Mark’s entitlement-from-social contract argument. It’s a shame that others have already interpreted it as a legalistic ‘free speech’ argument, which underplays its subtlety. But it’s still wrong, both fundamentally (whatever social contract exists, it can’t involve us being made to publish something against our will) and specifically (Mark, despite his protestations, did contravene the commenting policy).

Ah, I see you’re responding to Rick here. Actually, he’s not referring to a legalistic argument – he’s talking about free speech as a principle. If you bothered to research him, rather than just insult him, you’d find that he is indeed a respected lawyer and has geek credentials, and has been a major player in the NZ Internet world for some years. We were both on the InternetNZ Council managing the .nz ccTLD for many years, and Rick is the Chairman of the Board of Directors for Netsafe.  We have locked horns on many an occasion on matters of law and principle (occasionally robustly!) yet we remain able to respect each other’s strengths and selves. While he is far more thick-skinned and is unlikely to waste his time taking insult from you, you do yourself and your company no favours in taking such an approach. We have a saying in NZ: when the hole’s over your head, stop digging.

You’re trying to make this about “free speech” on your part, but it isn’t. ANY free speech argument goes against you completely. The question I raised is that I was arbitrarily banned and *not informed of the ban* and that was poor process. I used the social contract discussion point to highlight why the process was wrong. You say “Mark is wrong” but give no reasoning why. You also say, repeatedly, “Mark, despite his protestations, did contravene the commenting policy” but again, you don’t point out how, why or who was insulted.

This is like the Bush administration saying “There are weapons of mass destruction in Iraq. Take our word for it” #notsomuch

That policy is probably indistinguishable from any other large blog’s in practice and enforcement. It may seem thin-skinned, but what appear to be arbitrary decisions often rest squarely on well-tested assumptions of what a first comment suggests about a commenter’s likely future. Tone is very important.

Again, put up or shut up. Specify what the tone was, which words indicate the tone and why it was such a problem.

I’d say get your own blog, but you have one! And here we are.

And so we are. I know why I’m here. I’m still not sure about you.

******************************

And later, Rob came back (I can’t believe how much time he’s spending commenting when he couldn’t respond to a simple email with “yes, you have been banned”). He’s still arguing with Rick but, hey, it’s my blog and I’ll post if I want to ;-)

You claim that Mark has the right to publish ‘hostile personal insults’ at our own site, and suggest that our request that he not do so is hypocritical given our hostility toward others.

Still no evidence of “hostile personal insults” in there. I guess you think, if you say it enough, everyone will believe that it was. It wasn’t.

Also, there was no request to not insult anyone – you banned me. Without warning, without notification and without any basis, according to your own rules.

But the difference is obvious. When we insult something else, we’re publishing it at our own website. We’re not demanding that the the RIAA, for example, publish our attacks on it at their own venue.

Rick’s point is that you obviously feel that insult is okay as a communication style, so why ban someone who uses it, as I read it. However, I’m still waiting for some indication of who was insulted and how.

Likewise, Mark has every right to his criticisms here, at his own site, twitter, or anywhere else that chooses to publish them. Go for it, Mark! But Boing Boing isn’t Mark’s website. We have any no moral duty to publish such hypothetical hostility ourselves (even though we did, of course, publish the first of his comments!)

Wow! Thoughtcrime! I got banned for what I *might hypothetically say* – you should make a movie. I hear Tom Cruise is available.

So, you’re saying that no-one has any expectation that they can criticize BoingBoing or *anyone* who may have written for them or is otherwise a friend of the blog or a blogger and expect BoingBoing to publish that criticism as a comment on BoingBoing? But you’re not shutting down anyone’s right to free speech, yeah? Wow. That ‘logic’ is quite literally mind-blowing.

So, why do you have any policies at all, if everything is down to an arbitrary decision based on what you *think* someone *might* say in the future? Or is BoingBoing’s thinking that policies only apply to other people, not to BoingBoing? If so, fine, it’s your blog. But say so.

This notion that our defense of free speech means others have the right to be published by us, no matter what they say… frankly, Rick, it leaves the realm of credibility. Though Mark’s remarks to Xeni were mild stuff, to entertain your vision of ‘adherence to free speech’ would force us to publish practically anything anyone sent in.

Actually, that’s what free speech is all about [see below]. But never mind that.

BUT!  now, we discover that my comments to Ms Jardin were “mild stuff” which asks the question – how were they a bannable offense? Still, as we know now, I was banned for some future hypothetical offense, not because I’d actually broken any rules, despite claims made elsewhere by you, Rob. I wonder what I was going to say?

The most saddening part is, of course, that you’re the person who has chosen to reduce Mark’s argument to a simplistic issue of free speech. I guess it’s a lot easier to deliberately confuse free speech with the right to be published than it is to explore whether unspoken social contracts should overrule the commenting policies that Mark chose to break.

Free speech is not a simplistic issue. Maybe you should read up on it before you decide it’s so simple. [http://en.wikipedia.org/wiki/Freedom_of_speech]. It’s the fundamental bulwark against censorship and arbitrary authoritarianism. Ask anyone who hasn’t got it how simple it is.

Be that as it may, I’ve yet to see any exploration by you of anything to do with the social contract argument I raised, other than denying it exists. And I’ve still sto see any evidence that my ‘mild remarks’ were in contravention of the policy. Oh, that’s right – it’s my *hypothetical* remarks that got me banned. Sorry, it’s still such a new concept to me…

Our moderators’ reaction to his comment was exactly what you’d expect given our publicly posted moderation policies. That they exist and are enforced is our end of whatever social contract may exist between us and those who wish us to publish their submissions. These guidelines may be imperfect, but the reaction they generated here — a ban for insulting an editor, however mildly, in his first ever post — was only to be expected.

Still no evidence of insult, though an acknowledgement that it was “mild”, yet somehow so belligerent that it warranted banning. The math, however, shows no sign of improvement, but indicates you really don’t have a handle on what went on here and are being instructed by someone else. Is that the case?

Contracts aren’t a one way street, Rob. They bind both parties. If what you want (and seem to operate) is the capability to ban who you want, when you want, without question or criticism – just say so. Unpublish those policies and just put one up that says “we’ll decide what you can say here” and see how long those faithful readers stick around.

You know what’s really “the most saddening part”? If this was occuring at Gizmodo or TechCrunch, BoingBoing would be all over it like a rash…

This, in itself, is not huge news and I’m not weeping in my tea over it, but the incident is worth examination, I think, as a part of the wider “knowledge economy” and the implications of that. First, here’s what happened.

BoingBoing, for those who don’t know, bills itself as a “directory of wonderful things”. Wikipedia says:

Boing Boing started as a zine in 1988 by Mark Frauenfelder and Carla Sinclair. Issues were subtitled “The World’s Greatest Neurozine”. Associate editors included Gareth Branwyn, Jon Lebkowsky, and Paco Nathan. Along with Mondo 2000, Boing Boing was an influence in the development of the cyberpunk subculture. Common themes include technology, futurism, science fiction, gadgets, intellectual property, Disney and left-wing politics. The last issue of the zine was #15.

Boing Boing became a Web site in 1995 and later relaunched as a weblog on January 21, 2000, described as a “directory of wonderful things.” Over time, Frauenfelder was joined by three co-editors: Cory Doctorow, David Pescovitz, and Xeni Jardin. All four Boing Boing contributors are, or have been, contributing writers for Wired magazine.

On 28 April, Xeni Jardin published an article about Twitter and the advent of “twitter nazis”. The way BB generally publishes is to point to an article on another site, quote a little to get your appetite going, and offer a little commentary. In this case, the article featured was on the New York Times and quoted actor John Cusack who, the article claims, has suffered at the hands of the evil spelling nazis. Cusack has written guest posts for BB in the past, and this connection was mentioned.

The kicker for me was that the picture at the top of the page was of a Boston Terrier of my online acquaintance, Mr Charles Bird, canine possessor of Natasha and Ben Lampard of Webstock fame. Charlie is also the Director, International Markets and Business Development of Webstock, has his own Twitter account (@charliebird on which he generally posts matters of flatulence) and is inordinately cute. The BB article noted that:

This dog is not a Twitter cop, I just didn’t want to reward bad human behavior by reblogging the photos of Twitter cops featured in the article

and I’m guessing the point of including the picute was a) the cuteness factor and b) a reference to the oft-quoted “on the Internet, no-one knows you’re a dog”. Cue lots of “awwwwwww, how cute” comments. So I commented, identifying the source of cuteness. I don’t often comment on BB but I was feeling expansive. I then thought I’d comment on the substance of the article:

On the Cusack non-story – it wasn’t his spelling or grammar that got me to eventually unfollow him, it was his inability to articulate or to tweet anything worth reading. Sorry, Xeni, we obviously have different definitions of “down to earth”. (Are you sure he didn’t have an assistant write the guest post?)

Love your acting work, Mr Cusack, but your writing? #notsomuch

Jardin quickly responded:

Oh that seems unnecessarily meanspirited to me, having spent time in person with the guy. He’s a wonderful, thoughtful, creative being. Not everyone gets everything about the internet when they first plug in.

I’d give him a shot on Twitter again, if I were you, I think he’s got the hang of the medium more now.

Yes, I am quite sure the guest posts (we’ve published two so far) were not written for him by an assistant, or in any way not representative of his own true thoughts. That, too, is an unfairly meanspirited thing to say, and a slam against Boing Boing and myself and our guest which I do not welcome or appreciate.

Funnily enough, I didn’t agree, so I wrote a response back:

Cardinal sin on the Internets – he was boring. Maybe he got better, but there’s so much else to read that I don’t care.

Sorry that being honest is regarded as “mean-spirited”. He may be a lovely guy and all but my opinion is my own, whether you like it or not.

I could, perhaps, have had a smiley on the “guest post” comment but your response is illuminating, anyway. Are people not allowed to question items appearing on BoingBoing the way BoingBoing questions items appearing in other areas?  (and I quote: “So many stars of his stature farm out their tweets and Facebook interactions to assistants, publicists, PR handlers.”

Defensive much?

but when I went to post it, BoingBoing no longer recognised me as a registered member. I tried several different browsers and machines (with different IP addresses, just in case it was a caching problem) but still no go – obviously, it was the UserID causing the problem.

So I tweeted Ms Jardin:

@xenijardin Did you just shut down my login to BoingBoing because you disagreed with what I said?

10:17 AM Apr 29th via Tweetie

No response, which – well, she probably gets thousands a day so I wasn’t too upset at that. It was the same user ID – nzlemming – and you’d think she’d be a little sensitised to it having just responded to my comment – however, no biggie. I waited a couple of hours and then started searching BB for a support address to ask if I had been banned. It wasn’t easy, but I finally found an address for support that just said beschizza@gmail.com. Funny again, I can no longer find that page…

So I sent, on 29 Apr 2010 11:32:48 +1200:

Subject: BoingBoing User account: nzlemming

I do not appear to be able to log in any more.

Can you advise whether I have been banned? I have no indication from anyone that I have been, and I was able to comment earlier today (http://www.boingboing.net/2010/04/28/twettiquette-cops-an.html#comment-772506), but am unable to respond further in that thread.

I tweeted Xeni Jardin to ask if she had disabled my login as a reaction to my comment, but she has not responded.

On 03 May, I received this response from Antinous <antinous@boingboing.net>

Mark,

Insulting the guest bloggers isn’t welcome, particularly on only your second comment on BB.  If you’d like a fresh start, I’d be happy to reinstate your account.

Antinous

There’s no indication on BB as to who “antinous” is but he/she is listed as Lead Moderator

I wrote a response and copied it to the 4 BBers: Doctorow, Frauenfelder, Pescovitz and Jardin, and also Rob Beschizza, who I discover is listed as “Managing Editor”. It’s their blog, so I thought they should know:

Dear “antinous”
Are you saying you suspend the accounts of everyone who insults guest bloggers (not that I did – I merely criticised his writing)?

Because that is not the indication one gets from having read BoingBoing for a long time, regardless of how many comments I’ve made, or from someone who has contributed material (via Cory) to BoingBoing.

Firstly, as to banning for insult, the Moderation Policy (http://www.boingboing.net/2009/10/01/boing-boing-moderati.html) lists 4 reasons for banning:

• Offensive, inappropriate, or just plain annoying comments may be deleted or disemvoweled.

My comment was not deleted or disemvoweled, which would have been a simple way to remove any insult. Instead, it was left up so that Xeni could make comments about me being “mean-spirited”, which is a matter of her opinion but not, according to your own policies, grounds for banning.

• Spam earns an instant ban.  If you have a history of junk comments, plus promotional copy in your profile, you may be considered a spammer.

I posted no spam.

• Astroturfers will be banned.  Cut-and-paste or nearly verbatim talking points are considered astroturf.

I posted no talking points or other astroturf material (nice redefinition of “free speech”, by the way)

• Sock puppets (alias accounts created by previously banned commenters for the purpose of avoiding a ban) will be banned.

I posted from a handle I use across the Internet, which is easily
translated into my real name – perhaps more easily than “antinous”. At no point did I pretend to be anyone I’m not, the principal reason for a ‘sock puppet’ alias

• If the bulk of your comments are whining, hostile, insulting or otherwise annoying, you may be banned.

If, as you say, I  have only posted 2 comments, I can’t see how one equals “the bulk of [my] comments”.  I also dispute that it was insulting, as I stated my opinion of John Cusack’s tweeting as “shockozulu”. Am I allowed no opinions on BoingBoing? I also questioned whether, if the writing had been so good on his guest posts, whether he might not have got an assistant to write them, a point already made about celebrities in the article by Ms Jardin”:

“So many stars of his stature farm out their tweets and Facebook interactions to assistants, publicists, PR handlers.”

While Ms Jardin may be satisfied that he wrote it himself, are we not allowed to question, in the same way that BoingBoing itself regularly questions, whether things are always what they seem? Are we also not allowed to use sarcasm? Incidentally, I went back and read Mr Cusack’s guest pieces, which I had overlooked before. I stand by my opinion of his writing, which I find disjointed, unimaginative and heavily derivative of Hunter S. Thompson in style. The difference, I believe, is that Thompson could write.

I pointed out in my post that it wasn’t his spelling or grammar or even his irregular use of capitals that caused me to unfollow him. It was “his inability to articulate or to tweet anything worth reading” in my opinion. I even stated my opinion that I think his acting is excellent. I was playing the ball, not the man. How does one insult a ball?

On the matter of process, it seems odd to me, after umpty-mumble years on the Internet, that banning just happens – with no warning, no notification and no obvious recourse. From reading the comments on the Moderation Policy (including one from the thread in question), it seems I am not alone in finding this confusing and concerning.

I posted my comment at 1400 BoingBoing Time, Xeni Jardin responded at 1407 BBT and within 5 minutes, my access had disappeared as I was unable to respond to her comment. I sent her a tweet at that time, which was never responded to, and I sent an email to beschizza@gmail.com as that was the address on a support page – that I can no longer find – on that day, (29/4/10 on NZ time). It has taken you 5 days to even respond.

Amazing, given the promptness in banning.

You offer to reinstate my account for a “fresh start” – I don’t think so.

I may still read BB on occasion, though mainly for Cory’s copyright stuff, most of which can be found elsewhere, but I don’t think I can again be a part of a community, however peripherally, that behaves so arbitrarily towards the people that make it what it is, its readers.

Without readers, bloggers have no reason to blog. You may say “it’s our blog, we’ll behave how we want to” but you’ve amassed a web-savvy audience that has some expectation of participation, and you have a responsibility to meet that expectation in a fair and reasonable manner,
not on a whim. After all, you present advertisements to those readers in order to make money from their participation in your blog…

Finally, I find it incredibly ironic that this resulted from a post complaining about other people complaining about a “friend of the blog”, i.e. Mr Cusack, and his writing capability or otherwise on Twitter. It seems that there are still some sacred cows that may not be questioned or criticized.

I will be posting about this on my own blog (http:/tracs.co.nz/gripping-hand/) at some point, and you’ll all be welcome to comment there. I only delete spam.

Regards

Mark Harris

Former BoingBoing account holder nzlemming (since June 2008)

I have waited 4 days now, and have had no response, which I would happily publish if received.

So, what’s the point of this post? It’s not to garner “poor you” or “BoingBoing are wankers” responses, okay? So don’t do that, please.

It’s to point up a matter that I’ve been thinking about for some time – in a knowledge economy, knowledge is the currency. A knowledge economy is not about buying and selling knowledge – it’s about trading knowledge to get a result. Those services you access for no financial cost on the Internet generally aren’t doing it out of the goodness of their hearts. Entities the size of Facebook and Google are getting value from providing you with “free” services. They’re advertising to you – direct financial gain for them – and they’re aggregating your usage information and demographic data (at least, we *hope* that’s all they’re aggregating) and selling it to other players who see value in targeting their services and advertising. While the selling of info is an example of old economy, the trade of your information for the service provided is an example of the knowledge economy. Both parties get value out of the transaction. (We’ll be in this hybrid stage for some time, by the way). In 2006,  BoingBoing apparently made good money:

Today, Boing Boing’s roughly 325,000 daily visitors make it the most lucrative property in Battelle’s stable. Though not all of Boing Boing’s ad inventory is sold, the site will gross more than $1 million this year, based on CPMs and traffic. “It’s turned out to be a good business,” Frauenfelder says.

There’s very little out there to say what they’re making at the moment, but http://www.statsaholic.com/boingboing.net reports them as having around a million regular visitors a month and http://www.quantcast.com/traffic-compare.jsp?domain0=boingboing.net has them at around 200K a day. With rates of  http://www.federatedmedia.net/authors/boingboing, you do the math. This is, indeed, a good business.

Now, I want it clear: I’m not bitching about them advertising (I’ve clicked on their links) and I’m not complaining about them making money (good luck to them). But when you make your money by marketing the eyeballs of your readers, I think you need to show a little more courtesy and respect than BoingBoing showed to me (and others, if you look around the net – even on BoingBoing’s moderation policy page). If you have policies, and BoingBoing does, you need to abide by them and be up-front about applying them, not operate on a whim because your feelings have been hurt or someone you regard highly has been dissed, in your opinion.

I believe that there’s an implied contract between the blogger and the reader, especially where cash money changes hands *because* of the relationship. And I believe BoingBoing breached that contract. Researching around the net indicates that I’m not the only one. They may feel that “This is a directory of wonderful things. If we no longer think something is wonderful, we have every right to remove it from this directory.” but, once they take money for delivering me to advertisers, I think they owe me a little more than ‘it’s my blog and I’ll cry if I want to’ as a defence.

From a knowledge economy perspective, what BoingBoing did was prevent me from participating in that particular part of the economy, the exchange of knowledge with other users. In the long term, that’s even more disturbing to me and more ironic, given BoingBoing’s own stance on entities not living up to their terms of service (e.g MagicJack, Apple, Amazon) and the controversy around their previous censoring of blogger Violet Blue, and other commentators.

And, in the end, that’s why I won’t be taking up the magnanimous offer from “antinous” of a “fresh start”. I’ll be voting with my feet – there’s plenty of other stuff to read, after all, and there is no longer the same value for me in the BoingBoing brand or products.

If I want you to take anything from this saga, it’s that I think you should consciously evaluate the value proposition for every transaction you undertake online, whether it’s ‘free’ email or search from Google, ‘free’ hosting from rapidshare or ‘free’ information from a blog or article, including this one. Do the cost/benefit analysis and do read terms of use, so that at least you know the rules. Sometimes, even that’s not enough – be prepared to walk away, and be prepared to state publicly why.

Otherwise nothing changes.

No surprise to those of us who have been calling “bullshit” all along, but what’s really interesting is why they’ve made the study. According to Ars:

It’s all due to the PRO-IP Act, which passed under President Bush and has led President Obama to appoint an Intellectual Property Enforcement Coordinator within the White House. Part of the IPEC’s duties include gathering data on piracy and counterfeiting, and current IPEC Victoria Espinel is now rounding up that data. The GAO report is part of this process, and it certainly doesn’t make industry estimates look compelling.

Espinel hasn’t said much since her appointment, but what little she has said has pointed to a desire to do her job properly, which may annoy the industry trade organizations who urged the Senate to appoint her. Espinel came out of the USTR, and many expected her to follow the same old line that Susan Schwabbe and Ron Kirk have been following, namely: “copying is bad, mmmkay?”. However, Gigi Sohn of Public Knowledge was one of the first on the ‘open’ side of the debate to declare support for Espinel saying “We believe she will be fair in her approach to intellectual property enforcement issues.”

It’s important to distinguish, however, between the GAO’s report and Espinel’s ultimate decision. The GAO report is only one of the inputs for Espinel to consider, and I have no doubt that industry spin-meisters are working hard to counter its implications, as I type. But it is a significant data point, as the GAO is an arm of Congress, not the Executive, and their reports carry a lot of weight with lawmakers in the US.

It’s also worth remembering that the GAO accepts that piracy and counterfeiting are real and “sizable” problems, but their assertion that the accepted figures, the studies leading to those figures and even the base data that fed into the studies are all flawed is a huge admission from any branch of the US government, and a big boost to those of us who have been arguing this for what feels like forever.

What would be interesting to do, if I had the time, would be to go through official pronouncements and Congressional records to find out where these bogus studies have been cited, and determine what policies became law because of them (I suspect the PRO-IP Act would be one of them) and how much has been spent on the basis of them.

I’ll await Espinel’s final report with interest.

The event was streamed and recorded and you can play or download the video at http://www.r2.co.nz/20100410/

The outcome of the meeting was the Wellington Declaration which you can sign up to if you agree with it at http://www.gopetition.com/online/35443.html. Russell Brown has a very nice summary of it over at Public Address.

More than 2000 have already signed, from around the world. The petition will remain open but PublicACTA will be delivering a physical copy to the negotiators tomorrow, so the more signatures the better.

Tell your friends

• Nat Torkington
• Michael Geist
• Jamie Love
• Cory Doctorow

One thing that stands out, as Nat notes, is that the reported New Zealand positions are much more realistic and reasonable than MED’s public utterances would have lead us to anticipate. That’s great, but we’re only one voice at a table we shouldn’t really be sitting around. And I say again, there is nothing in a confidentiality agreement that limits you exposing your own position to your own citizens. If you’ve got nothing to fear…

ACTA is coming!! That’s right, sportsfans! The circus called ACTA is coming to Wellington on 12-16 April this year. In the lead up to that, the Commerce Minister, Simon Power, is calling for submissions “to help set a higher benchmark for the enforcement of intellectual property rights”, so there’s obviously no prejudging going on there ¡  Make your submission by 31 March.

Also, this week, InternetNZ announced that they will be hosting a PublicACTA session on the 10th of April, as a counterpoint to the SecretACTA sessions the Government is hosting. I’ll be at that session and I encourage anyone with a Saturday to spare to be there two.

And lastly, this week, I gave a presentation on ACTA at Ignite!Wellington, focussing on the secrecy, as well as something we haven’t heard too much about – pharmaceuticals. It’s worth noting that at the USTR Special 301 meetings this week counterfeit drugs was very prominent in the committee’s questioning of NGOs.

Have a look at the Ignite! site, as there were some other good sessions (Mike Brown’s zen poem about cycling across America was my favourite) but I’ve embedded the video of my talk below as well, if you just want the ACTA bits. It’s a testing format – 5 minutes, 20 slides changing every 15 seconds – but I enjoyed it and learned heaps for the next one ;-)  Very hard to draw down hours of material into 5 minutes. Might help to think of it as a series of tweets…

I am part of the Independent Reference Group, mainly because I don’t believe the filter will work, and because I am implacably opposed to any extension of it.

The members of the IRG are:

Nic McCully Deputy Chief Censor
Office of Film & Literature Classification

Nic Johnstone
Office of the Children’s Commissioner

Steve O’Brien Manager, Censorship Compliance Unit
Department of Internal Affairs

Mark Harris
Technology Research & Consulting

Andrew Bowater Government Relations Manager
Telecom

Duncan Campbell Deputy Editor
Netguide

My understanding is that this is not an exclusive list and may be added to if the need arises. The Independent Reference Group hasn’t met yet. The first meeting will be in early March. One of the first things I will be pushing for is publication of ISPs that have decided to join the scheme. I can understand why they would, and I expect it to be a marketing point for them.

It is an HTTP filter (which is why I believe it won’t be effective, as most of the really bad stuff passes through email, exclusive file sharing arrangements and the like). Anyone serious about obtaining images of child abuse (CAI in the jargon) will find it trivial to get around the filter. As I said to Thomas Beagle (http://www.techliberty.org.nz ) the other day, I think it’s security theatre, designed to make some sectors of the community feel safer.

Officials at DIA have assured me that they do not want to extend the filter, even to cover the other parts of s3(2), or I would not have agreed to be a part of the process at all. As the ZDNet article says, they have watched the train wreck that is the Great Wall of Conroy (my words, not theirs) and are determined to not make those sorts of errors.

However, we all need to understand that DIA can be instructed to follow Government policy. We need to monitor the policy making process and head any ‘slippery slope’ plans off at the political level. I am mightily encouraged that InternetNZ is engaging with DIA on this. For those unaware, while a councillor of InternetNZ, I did the testing on the previous incarnation of a filtering product, the IWF list, in 2005. My report from that trial is still available from the InternetNZ website (PDF)

I welcome questions and discussion about filtering, CAI and censorship in general. I am also happy to take concerns to the IRG and be a conduit to and from that Group.

EDIT: Just noticed an article by Liz Quilty on the technical nature of the filter. These are good points.

There’s another interesting contrast: President Obama’s transparency memo – his first presidential act –  seems to have no impact on the United States Trade Representative, Ambassador Ron Kirk, who still insists that the ACTA negotiations are a matter of “national security”. It’s an interesting sidenote that almost all the other nations involved in ACTA swear they’ve all urged greater transparency in the negotiations, so one is left wondering which country is actually keeping it secret. Lookin’ at you, Barack!

What do we actually know about ACTA? Well, it’s named the Anti-Counterfeiting Trade Agreement, even though there appears to be nothing tradeable involved, and precious little about counterfeiting. It’s happening outside the bounds of the two international agencies specifically set up to do this sort of work – WIPO and the WTO. Why? Because the USTR couldn’t get it’s own way in those fora (having tried both – TRIPS did not deliver all the US wanted in the DMCA, and the WTO nations decided that they had more important things to worry about than the business models of US corporations) so it created a new one – a plurilateral, ‘voluntary’ arrangement where they could make up some rules and you’d have to agree if you want to play. The USTR has admitted that a lot of ACTA is based on the US-South Korea Free Trade Agreement, so anyone who wants an FTA with the US can excpect a requirement to join ACTA (“It’s not just us, you understand – it’s an *international* agreement” – yeah right).

But we are not allowed to see any details of the draft agreement or, if we are, we are not allowed to talk about it. Lawyers are, especially entertainment industry lawyers, but citizens (who are paying for it through taxes and who will be affected by it when it becomes law) are not. Even elected government representatives are not allowed to see the details that subordinate officials are negotiating – in Europe, America, the UK, questions have been asked at high levels, but no answers are forthcoming.

Pressure from individuals like Michael Geist, Jamie Love and myself through our respective freedom of information laws, from Organisations like the EFF, Creative Freedom Foundation, TechLiberty and acta.net.nz, from media commentators like Glyn Moody, Mike Masnick, Colin Jackson and many more, from actual politicians like Tom Watson(UK), Clare Curran(NZ), Jens Holm (Swe) and Senators Leahy, Spector, Sanders, Brown and Wyden(US) have forced some information into the public arena.

We know that:

There are 6 sections to the agreement:

1. Initial Provisions and Definitions;
2. Enforcement of Intellectual Property Rights;
3. International Cooperation;
4. Enforcement Practices;
5. Institutional Arrangements; and
6. Final Provisions.

The Enforcement of Intellectual Property Rights chapter has four sections:

• civil enforcement,
• border measures,
• criminal enforcement, and
• the Internet.

Other than that, we know very little. We get bland bullet point agenda and anodyne reports from the nations involved but nothing of substance, nothing that would reasssure us that the officials actually have our interests at heart, as well as the “copyright industry”.

What we do get are (very occasional) leaks – first, that list above released on Wikileaks, back in 2008 (which was probably the first time most people heard about ACTA), and more recently (via Wikileaks again) a memo from a European Commission bureaucrat commenting on some draft text proposed by the US. (Wikileaks is currently unable to be used as they are cramped for funds – please donate)

Let’s look at that memo. It’s worth quoting the summary in full:

A. GENERAL COMMENT

An overarching issue is the relationship between the US proposal and relevant EU legislation. These particular themes relating to the concepts involved the scope of the proposal and the identification of possible conflicts.

Scope of the proposal

The US proposal mainly deals with copyright, apart from a single reference to trademarks in paragraph 1. Relevant EU legislation is generally broader in scope and this issue will require further clarification from a policy perspective. This clarification concerns paragraphs 2 and 3 as paragraphs 4 to 7 are only applying to copyright.

Concept

The US proposal refers to the “Digital Environment”.

This seems to imply all digital technologies. Digital technologies are not only used in an online environment but also off-line, for example in CDs, DVDs and Blue Ray. However, this chapter has been nicknamed “the internet chapter”. Does is cover both online and offline?

The EU Acquis wording refers to “Information Society Service”.

This concept defined ISS as “services normally provided for remuneration, supplied at a distance, by electronic means and at the individual request of a recipient of services”.

Possible conflicts

1) The US proposal provides for both civil and criminal protection against copyright infringement.

This goes beyond the WIPO treaties and the EU Acquis (Directive 2001/29/EC) (CISD) which refers to “adequate legal protection” without specifying in what this protection would consist of (see 1st comment regarding paragraph 4). Furthermore, the e-Commerce Directive (2000/31/EC) (ECD) applies horizontally across all areas of law which touch upon the provision of information society services, regardless of whether it is a matter of public, private or criminal law. It is not clear how the US proposal interprets this, if at all. For example, paragraph 3.a. is limited to civil remedies only.

2) EU may wish to review the potential implications, if any, with the recently adopted Consumers Rights Directive, which is part of revised Regulatory Framework for Electronic Communications (Telecom Package).”

Right off the bat, we can see that there are inconsistencies between what the US wants and what the negotiators appear to have been talking about. The commentary points out the inconsistency with existing EU understanding, practice and law, and points to potential conflicts between ACTA, as proposed, and EU practice.

Sorry? They’ve been talking about this for 2 years and they still don’t understand what THEY mean by “digital environment”?? But we do get the point that “The US proposal mainly deals with copyright”. So why is this still the Anti-Counterfeit Trade Agreement?

I was going to go through the document point by point, but this entry is already long. It’s worth doing and I will soon, but right now I’d like to focus on a few things:

• The document is 7 pages long.
• It disects a proposal document that is probably longer, but is broken up into 7 sections.
• It comments on each section, in detail.

I don’t know how many bureaucrats are reading this but, let me tell you, my old grey ears were hearing alarms right at that point. If there’s disatisfaction with every section of a document, because of first principles, it’s time to send it back to be rethought. Instead, the EU commentary is attempting to wordsmith it into acceptability.

The sections (paragraphs in govtspeak) are:

• Paragraph 1:  General Obligations
• Paragraph 2:  third party liability for copyright infringements.
• Paragraph 3:  circumstances under which third party liability may be limited.
• Paragraph 4:  Technical Measures.
• Paragraph 5:  independent civil and criminal enforcement
• Paragraph 6:  Rights’ Management.
• Paragraph 7:  limitations of Right’s management

Without the text of the proposal, it’s difficult to really determine what the commentary is actually refering to but a few quotes stand out.

Re Para 1

However, unlike these latter provisions, the proposal does not state that the procedures etc. also shall be fair, equitable and/or proportionate in relation to, for example, an alleged infringer. Against this background, it appears like the proposed paragraph is not coherent with TRIPs and IPRED

Re Para 2

EU understands this paragraph and accompanying footnotes as providing for an international minimum harmonization regarding the issue of what is called in some Member States “contributory copyright infringement”. This concept does not exist in the current Acquis communautaire and in the law of several Member States

Re Para 3

The aim of paragraph 3(b) is to establish a system that can be considered to make the exemptions from liability subject to specific conditions: notice-and-take down procedure to address the unauthorized storage or transmission of materials protected by copyright or related rights. Such an obligation is currently not found in the ECD.

Re Para 4

It is not clear if the scope of the provision covers only phonogram author rights and neighbouring rights (performers, producers) or do the definition of ‚”author” also includes film, audio, literature.

Re Para 5

Footnote 8 seems to govern “interoperability” issues, i.e. the ability of consumers to play, for example, music which they have downloaded legally, on different players such as an iPhone or a Microsoft Media Player. The footnote seems to be intended to make sure that contracting Parties do not require that such interoperability must be achievable.

We’re talking about some new law here, to achieve this “harmonization’ ACTA seeks. Things that aren’t illegal now in most countries (including the US) will become illegal “in order to fit with our international obligations”.

The US tried this with TRIPS in order to fuel the DMCA through Congress in its original form and fell at that hurdle. The international community said ‘woah, nelly, this far and no further!” and some of the more draconian measures (like ‘graduated response’) had to be dropped. This is them trying it again.

We’re talking about major changes that will hobble innovation and tie us to decaying business models that actually only benefit a very few corporations. How do artists, musicians and authors get any benefit out of this, when they’re already struggling with their respective industries to make a buck? It’s not piracy that’s taking your money, people – it’s the contracts you signed with your publishers.

Although ACTA had its origins with Big Pharma and Big Agribusiness, the copyright industry has leapt on it holus-bolus. They’re the shock troops now, taking the heat, but my money is on the pharmaceutical and agribusiness lobbies still being heavily involved. While we are rightly concerned about what is in the “Internet chapter”, I really want to read the rest of it, where the rules against generic drugs and patent-free seeds will be. That has the capacity to be just as important and we should not lose sight of that in our desire to keep information free.

The process used to get to the end point is just as important in democracy as the result achieved, often moreso. An open, uncorrupt and objective process is the only way to gain any sort of result that benefits all parties. ACTA, so far as we can see, is only going to benefit the corporations, and that’s why, in my opinion, they’re keeping it hidden.

Secretary Clinton said:

“The final freedom, one that was probably inherent in what both President and Mrs. Roosevelt thought about and wrote about all those years ago, is one that flows from the four I’ve already mentioned: the freedom to connect — the idea that governments should not prevent people from connecting to the internet, to websites, or to each other. The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate. Once you’re on the Internet, you don’t need to be a tycoon or a rock star to have a huge impact on society.”

What we need to see now is the implementation of those high ideals, not more restrictions. The reality has to match the rhetoric. It’s way past time to open the shutters on the ACTA process. To the participating governments, if you’ve got nothing to hide, why are you hiding something?

PS You can sign an international petition for more openness in the ACTA process at http://a2knetwork.org/joint-declaration-acta

So what happened to drag me away from the keyboard?

• I got a dog (using the same rule as cats – see other blog)
• I helped run a BarCamp on Open Government
• I did a couple of other projects that I can’t link to or talk too much about
• I had bronchitis (been a pretty crappy winter all around, health-wise)
• I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
• (I’m sure there was some other stuff)
• Oh yeah, I signed up on Twitter.

That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.

So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).

So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.

Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):

Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?

So now they’re seriously talking about this area and how they want to do it.

Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.

Geist outlines five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language

Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.

We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.

The New Zealand government is no better. Our officials say:

The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.

First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.

Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.

What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.

It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference.  The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.

The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents  want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.

Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.

In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else  - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.

Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.

Don’t just sit there – DO something!