Internet Censorship

White House Will Propose New Digital Copyright Laws

February 7, 2011

CNet - The Obama administration has drafted new proposals to curb Internet piracy and other forms of intellectual property infringement that it says it will send to the U.S. Congress "in the very near future."

It's also applauding a controversial copyright treaty known as the Anti-Counterfeiting Trade Agreement, or ACTA, saying it will "aid right-holders and the U.S. government to combat infringement" once it enters into effect.

Those disclosures came from a report released today by Victoria Espinel, whom President Obama selected as the first intellectual property enforcement coordinator and was confirmed by the Senate in December 2009. There's no detail about what the proposed law would include, except that it will be based on a white paper of "legislative proposals to improve intellectual property enforcement," and it's expected to encompass online piracy.

The 92-page report (PDF) reads a lot like a report that could have been prepared by lobbyists for the recording or movie industry: it boasts the combined number of FBI and Homeland Security infringement investigations jumped by a remarkable 40 percent from 2009 to 2010.

Nowhere does the right to make fair use of copyrighted material appear to be mentioned, although in an aside on one page Espinel mentions that the administration wants to protect "legitimate uses of the Internet and... principles of free speech and fair process."

The usual copyright hawks in Congress applauded the Obama administration's report.

"I'm committed to strengthening the laws that promote investment, innovation and creativity at home," said Rep. Bob Goodlatte, a Virginia Republican who chairs the House subcommittee that writes copyright law. "I share the view that our criminal and IP laws need to be modernized to ensure that legitimate online commerce is not crippled by rampant piracy and counterfeiting, much of which originates overseas."

In October 2008, President Bush signed into law the so-called Pro IP ACT, which created Espinel's position and increased penalties for infringement, after his administration expressed its opposition to an earlier version.

Unless legislative proposals--like one nearly a decade ago implanting strict copy controls in digital devices--go too far, digital copyright tends not to be a particularly partisan topic. The Digital Millennium Copyright Act, near-universally loathed by programmers and engineers for its anti-circumvention provisions, was approved unanimously in the U.S. Senate.

At the same time, Democratic politicians tend to be a bit more enthusiastic about the topic. No less than 78 percent of political contributions from Hollywood went to Democrats in 2008, broadly consistent with the trend for the last two years, according to OpenSecrets.org.

DHS Seizes Websites for Merely LINKING to Copyrighted Material

February 7, 2011

Eric Blair (Infowars.com) - Apparently the Department of Homeland Security is now authorized to rewrite and enforce copyright infringement laws. In a stunning precedent, the recent round of domain seizures to shut down websites that allowed illegal streaming of the Super Bowl, also included a few other websites that were seized simply for linking to infringing content.

Mike Masnick of TechDirt, who received and published a DHS seizure affidavit, had this to say in a must-read article:

…the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.

The biggest problem is that Homeland Security seems to suggest — without a hint of doubt — that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement.As we’ve discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.

Until these unprecedented seizures, online copyright infringement was dealt with by simply asking infringing websites to remove the material and replace it with a link to the source. Previous cases have normally been battled out in civil court. Alternative news giant, Matt Drudge, is currently fighting a seemingly ridiculous civil lawsuit over linking to news stories.

These new actions by the DHS and the courts seem to be motivated more by private corporate profits than by actual copyright law. Nonetheless, the agenda seems to be to make nearly every website that links to copyrighted material guilty of criminal infringement, thus justifying arbitrarily blacklisting domains deemed to be in violation of such a broad precedent. This is yet another Napoleonic guilty-until-proven-innocent action, apparently displaying the corporate state’s lack of concern for the rights of individuals and small businesses. What’s more, it is also another tyrannical tool being used to control the flow of information.

Additionally, this type of precedent would same to massively change the Internet as we know it. What’s next, seizing websites that link to those affiliate sites, like Facebook, Google, or Twitter? Well, that’s the exact question Masnick investigated in his follow-up article, “Homeland Security Tries And Fails To Explain Why Seized Domains Are Different From Google.” Masnick reports on an interview with a DHS agent in charge of the domain seizures, James Hayes:

In the interview, John Moe asked Agent Hayes a very simple question: given that these domains were all seized based solely on the fact that they link to infringing content hosted elsewhere, and all of the same content is also linked from Google, will the Feds seize Google’s domain name? Well, more specifically, Moe asks if ICE could seize Google’s domain name. Amusingly, right after being asked, Hayes conveniently gets cut off, but he does call back and the question is asked again.

However, once he gets back, he tries to tap dance around this issue. Hayes says “no” that ICE will not seize Google’s domain name and that’s because it’s only targeting sites that “don’t do due diligence” to make sure that the content they’re linking to isn’t infringing. There’s a pretty serious problem with this claim in that it’s wrong on both sides of the equation. First off, Google, as a search engine, does no due diligence to check that links only go to non-infringing content. Second, in at least some of the cases (specifically in the case of dajaz1), we know that it was actually Homeland Security and folks like Special Agent Hayes who “failed to do their due diligence,” so the songs named in the ICE affidavit were, in fact, provided by the labels or representatives of the musicians. In other words, according to Special Agent Hayes’ own criteria, Google is more of a criminal operation that Dajaz1.

Despite the DHS’s obvious distortion of the law, we are rapidly approaching a day where information can no longer flow freely on the Internet. We better wake up and share these stories with everyone we know, because tyranny is fast approaching. These words written above belong to nobody but the open-source, free Internet. Share and re-post at will.

For additional information about online copyright laws and guidelines, please visit the Citizen Media Law Project.