Characterizations of the intellectual property chapter of the TPP ranges from “SOPA on steroids” to “DMCA++“. As someone who is building a blacklist resistant infrastructure, I needed to know the details so I treated it like a patent application and rewrote it. It turns out that the copyright lobby has succeeded in using a trade treaty to impose arbitrary censorship.
When I originally wrote this summary, I didn’t see anything in the TPP that could force DNS level blacklisting. There was some vague liability language, but it sounded like it would enable copyright holders to go after hosting providers … akin to how the DMCA has traditionally been applied in the US.
Then the email archives from the recent Sony hack revealed the copyright lobby has been planning to use civil liability to push internet blacklists on the US and that they are looking for ways around having to prove liability and efficacy,
We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA’s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.
But if the copyright lobby could have gotten sites blocked in the US using the DMCA, why did they bother with SOPA and PIPA? From the email, it sounds like they wanted to lessen their burden of proof,
We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement.
What is the All Writs Act? It turns out that it is an ancient law originally written in 1789 that essentially says that courts can compel others to aid in the enforcement of laws,
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
The All Writs Act is what the FBI uses to force phone manufacturers to unlock smartphones. However, most of the analysis I’ve read points to some sort of “reasonableness” limitation. This limitation has cropped up in discussions about whether it could be use to force Apple and Google to build backdoors into their products,
As for whether or not this law could be used to force smartphone sellers to include a backdoor or spyware for police, or even a front door as the FBI says it wants, Crocker said that such use of the All Writs Act isn’t “a settled legal issue,” and the EFF would be taking a long, hard look at any attempts to do so.
So neither the DMCA nor the All Writs Act allow the copyright lobby to force site blocking (and other methods) without addressing efficacy and burden. However, the liability language in the TPP Intellectual Property chapter would make ISPs and online service providers liable for the actions of their users:
Each Party shall provide legal incentives (exposure to potential liability) for online service providers to cooperate with [authorities or] copyright owners or help to deter the unauthorized storage and transmission of copyrighted materials.
… online service providers shall be required to expeditiously to remove or disable access to such material …
There is a suggested addendum that adds reasonableness and efficacy language, but it remains to be seen if it was adopted and how it will impact things in practice. And while the treaty doesn’t have any specific language detailing DNS level blacklists, this is a deliberate strategy,
Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of “side effects”). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.
Incredibly, the MPAA basically acknowledges that what they are doing is useless,
MPAA will continue to refrain from commenting, when asked, about the issue of the use of VPNs and other technologies to gain online access to content consumers are otherwise restricted from accessing in their geography.
Ultimately, breaking the internet and introducing censorship will lead to pushback, just as the file-sharing lawsuits and cutting off internet access backfired. Hopefully, we can use that pushback to fuel development of anti-censorship technologies. Overlay networks like Tor and naming systems like Namecoin will become a prerequisite for the expression of free speech rights online, even in western democracies.
The futile quest to stop file sharing is the 21st century version of the war on drugs and the MPAA doesn’t give a shit that they are creating infrastructure for totalitarian censorship of the internet.
The safe harbor addendum (Addendum III) had a multitude of proposed (and often compound) inline edits, the footnotes for are >100 words longer than the text itself, and it’s filled with “paragraph 2” style references.
I edited it for clarity, adopting proposed edits that simplify language but do not otherwise alter the meaning of the text. I placed substantive proposed edits in [brackets] with a pipe bar separating competing edits [let’s go north | let’s go south] and in-lined important footnotes. Non-substantive edits and footnotes were removed. Some additional edits were made for clarity. I am not a lawyer,: these changes may have altered the meaning of the text.
Definition of an online service provider,
[An online service provider is] a provider of online services or network access, or the operators of facilities therefore, and includes any person offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received [other than modifications made as part of a technical process or for solely technical reasons]. A Party may provide that network access includes cases in which network access is provided by another provider. [A Party may limit the application of this Article to entities offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received, or offering the hosting of material on websites or other electronic retrieval systems that can be accessed by a user.]
In order to facilitate the continued development of entities engaged in providing online services, while also providing enforcement procedures that permit effective action against copyright infringement including remedies for right holders to address copyright infringement in the online environment. Each party shall establish or maintain a framework that provides safe harbors with respect to copyright infringement limiting the liability of online service providers.
Such a framework includes the following elements:
- Each Party shall provide legal incentives (exposure to potential liability) for online service providers to cooperate with [authorities or] copyright owners or help to deter the unauthorized storage and transmission of copyrighted materials [in accordance to the national legislation of each Party].
- Each Party shall provide limitations in its law on the liability of online service providers for copyright infringements that they do not control, initiate, or direct, and that take place through systems or networks controlled or operated by them or on their behalf. […the failure of a service provider to quality does not itself result in liability]
- Alternate for 2 [Limitation in law on the liability of online service providers shall not affect any judicial authority, in accordance with a Party’s legal system, to compel or restrain certain actions shall be available, subject to reasonable restrictions with due regard to the relative burdens to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the relief and whether less burdensome, comparably effective enforcement methods are available.]
- The limitations described in paragraph 2 shall cover (safe harbor shall cover entities providing) the following functions:
- transmitting, routing, or providing connections for material without modification of its content, or the intermediate and transient storage of such material done automatically in the course of such a technical process;
- caching carried out through an automated process;
- storage [aka hosting], at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider [including emails and web hosting]; and
- referring or linking users to an online location by using information location tools, including hyperlinks and directories.
- Each Party shall prescribe in its law conditions for online service providers to qualify for safe harbor to incentivize online service providers [ to take effective action | to participate in a system for sending notices of alleged infringement ] [or otherwise ensure participation in such a system] with respect to infringements that take place through systems or networks controlled or operated by them or on their behalf . With respect to infringing material residing on online service providers’ networks [or systems] through storage or linking to materials, online service providers shall be required to expeditiously to remove or disable access to such material upon receiving a notification from the authority or person authorized to do so [actual knowledge of the infringement or awareness of facts or circumstances from which the infringement is apparent, such as] receiving a legally sufficient notice of alleged infringement from the rights holder or a person authorized to act on its behalf], and in the absence of [counter notice] from the person whose material is removed or disabled indicating that the notice was the result of mistake or misidentification. An online service provider that removes or disables access to material in good faith pursuant to and consistent with this paragraph shall be exempted from any liability for having done so, provided that it takes reasonable steps [in advance or] promptly to notify the person whose material is removed or disabled. [A Party need not require such notification in circumstances in which the online service provider has reasonable grounds to believe that infringement is occurring.] [The limitations shall not be conditioned on the service provider undertaking measures that impose substantial costs or substantial burdens on their systems or networks.]
- Eligibility for safe harbor may not be conditioned on the service provider monitoring its service or affirmatively seeking facts indicating infringing activity.
- Each Party shall provide procedures, whether judicial or administrative, in accordance with that Party’s legal system, and consistent with principles of due process and privacy, enabling a copyright owner who has made a legally sufficient claim of copyright infringement to obtain expeditiously from an online service provider information in the provider’s possession identifying the alleged infringer, where such information is sought for the purpose of protecting or enforcing such copyright. [Each Party shall provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counternotification that causes injury to any interested party as a result of a service provider relying on the misinterpretation.]
- This Article is without prejudice to the availability in a Party’s law of other defenses, limitations, and exceptions to the infringement of copyright.