TPP Comes Back From the Dead… Or Does It?

Could the Trans-Pacific Partnership (TPP) be coming back from the dead? It is at least a possibility, following the release of a carefully-worded statement last Sunday from an APEC Ministerial meeting in Vietnam. The statement records the agreement of the eleven remaining partners of the TPP, aside from the United States which withdrew in January, to “launch a process to assess options to bring the comprehensive, high quality Agreement into force.” This assessment is to be completed by November this year, when a further APEC meeting in Vietnam is to be held.

We do know, however, that not all of the eleven countries are unified in their view about how the agreement could be brought into force. In particular, countries like Malaysia and Vietnam would like to see revisions to the treaty before they could accept a deal without the United States. This is hardly an unreasonable position, since it was the United States that pushed those countries to accept provisions such as an unreasonably long life plus 70 year copyright term, which is to no other country’s benefit.

Other TPP countries, such as Japan and New Zealand, are keen to bring the deal into force without any renegotiation, which could add years of further delay to the treaty’s completion. Japan also likely fears losing some of the controversial rules that it had pushed for, such as the ban on software source code audits. The country’s Trade Minister, Hiroshige Seko, has been quoted as saying, “No agreement other than TPP goes so far into digital trade, intellectual property and improving customs procedures.”

For now, that remains true; many of the TPP’s digital rules are indeed extreme and untested. But for how much longer? Industry lobbyists are pushing for the same digital trade rules to be included in Asia’s Regional Comprehensive Economic Partnership (RCEP) and in a renegotiated version of the North American Free Trade Agreement (NAFTA). Since RCEP and NAFTA together cover most of the same countries as the TPP, there will be little other rationale for the TPP to exist if lobbyists succeed in replicating its rules in those other deals. 

Free Trade Rules that Benefit Users

It’s worth stressing that EFF is not against free trade. If trade agreements could be used to serve users rather than to make their lives more difficult EFF could accept or even actively support certain trade rules. For example, last week the Re:Create Coalition, of which EFF is a member, issued a statement explaining how the inclusion of fair use in trade agreements would make them more balanced than they are now. The complete statement, issued by Re:Create’s Executive Director Joshua Lamel, says:

If NAFTA is renegotiated and if it includes a chapter on copyright, that chapter must have mandatory language on copyright limitations and exceptions, including fair use. The United States cannot export one-sided enforcement provisions of copyright law without their equally important partner under U.S. law: fair use.

The U.S. should also take further steps to open up and demystify its trade policy-making processes, not only to Congress but also to the public at large, by publishing text proposals and consolidated drafts throughout the negotiation of trade agreements.

The last paragraph of this statement is key: we can’t trust that trade agreements will reflect users’ interests unless users have a voice in their development. Whether the TPP comes back into force or not, the insistence of trade negotiators on a model of secretive, back-room policymaking will lead to the same flawed rules popping up in other agreements, to the benefit of large corporations and the detriment of ordinary users.

At this point we have no faith that the TPP would be reopened for negotiation in a way that is inclusive, transparent and balanced, and we maintain our outright opposition to the deal. RCEP is being negotiated in an equally closed process, though we are continuing to lobby negotiators about our concerns with that agreement’s IP and Electronic Commerce chapters. As for NAFTA, we are urging the USTR to heed our recommendations for reform of the office’s practices before negotiations commence.

The death of the TPP didn’t mark the end of EFF’s work on trade negotiations and digital rights, and its reanimation won’t change our course either. No matter where the future of digital trade rules lie, our approach remains the same: advocating for users’ rights, and fighting for the reform of closed and captured processes. Until our concerns are heard and addressed, trade negotiators can be assured that regulating users’ digital lives through trade agreements isn’t going to get any easier.

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Online Censorship and User Notification: Lessons from Thailand

For governments interested in suppressing information online, the old methods of direct censorship are getting less and less effective.

Over the past month, the Thai government has made escalating attempts to suppress critical information online. In the last week, faced with an embarrassing video of the Thai King, the government ordered Facebook to geoblock over 300 pages on the platform and even threatened to shut Facebook down in the country. This is on top of last month’s announcement that the government had banned any online interaction with three individuals: two academics and one journalist, all three of whom are political exiles and prominent critics of the state. And just today, law enforcement representatives described their efforts to target those who simply view—not even create or share—content critical of the monarchy and the government.

The Thai government has several methods at its own disposal to directly block large volumes of content. It could, as it has in the past, pressure ISPs to block websites. It could also hijack domain name queries, making sites harder to access. So why is it negotiating with Facebook instead of just blocking the offending pages itself? And what are Facebook’s responsibilities to users when this happens?

HTTPS and Mixed-Use Social Media Sites

The answer is, in part, HTTPS. When HTTPS encrypts your browsing, it doesn’t just protect the contents of the communication between your browser and the websites you visit. It also protects the specific pages on those sites, preventing censors from seeing and blocking anything “after the slash” in a URL. This means that if a sensitive video of the King shows up on a website, government censors can’t identify and block only the pages on which it appears. In an HTTPS world that makes such granularized censorship impossible, the government’s only direct censorship option is to block the site entirely.

That might still leave the government with tenable censorship options if critical speech and dissenting activity only happened on certain sites, like devoted blogs or message boards. A government could try to get away with blocking such sites wholesale without disrupting users outside a certain targeted political sphere.

But all sorts of user-generated content—from calls to revolution to cat pictures—are converging on social media websites like Facebook, which members of every political party use and rely on. This brings us to the second part of the answer as to why the government can’t censor like it used to: mixed-use social media sites. When content is both HTTPS-encrypted and on a mixed-use social media site like Facebook, it can be too politically expensive to block the whole site. Instead, the only option left is pressuring Facebook to do targeted blocking at the government’s request.

Government Requests for Social Media Censorship

Government requests for targeted blocking happen when something is compliant with Facebook’s community guidelines, but not with a country’s domestic law. This comes to a head when social media platforms have large user bases in repressive, censorious states—a dynamic that certainly applies in Thailand, where a military dictatorship shares its capital city with a dense population of Facebook power-users and one of the most Instagrammed locations on earth.

In Thailand, the video of the King in question violated the country’s overbroad lese majeste defamation laws against in any way insulting or criticizing the monarchy. So the Thai government requested that Facebook remove it—along with hundreds of other pieces of content—on legal grounds, and made an ultimately empty threat to shut down the platform in Thailand if Facebook did not comply.

Facebook did comply and geoblock over 100 URLs for which it received warrants from the Thai government. This may not be surprising; although the government is likely not going to block Facebook entirely, they still have other ways to go after the company, including threatening any in-country staff. Indeed, Facebook put itself in a vulnerable position when it inexplicably opened a Bangkok office during high political tensions after the 2014 military coup.

Platforms’ Responsibility to Users

If companies like Facebook do comply with government demands to remove content, these decisions must be transparent to their users and the general public. Otherwise, Facebook’s compliance transforms its role from a victim of censorship, to a company pressured to act as a government censor. The stakes are high, especially in unstable political environments like Thailand. There, the targets of takedown requests can often be  journalists, activists, and dissidents, and requests to take down their content or block their pages often serve as an ominous prelude to further action or targeting.

With that in mind, Facebook and other companies responding to government requests must provide the fullest legally permissible notice to users whenever possible. This means timely, informative notifications, on the record, that give users information like what branch of government requested to take down their content, on what legal grounds, and when the request was made.

Facebook seems to be getting better at this, at least in Thailand. When journalist Andrew MacGregor Marshall had content of his geoblocked in January, he did not receive consistent notice. Worse, the page that his readers in Thailand saw when they tried to access his post implied that the block was an error, not a deliberate act of government-mandated removal.

More recently, however, we have been happy to see evidence of Facebook providing more detailed notices to users, like this notice that exiled dissident Dr. Somsak Jeamteerasakul received and then shared online:

In an ideal world, timely and informative user notice can help power the Streisand effect: that is, the dynamic in which attempts to suppress information actually backfire and draw more attention to it than ever before. (And that’s certainly what’s happening with the video of the King, which has garnered countless international media headlines.) With details, users are in a better position to appeal to Facebook directly as well as draw public attention to government targeting and censorship, ultimately making this kind of censorship a self-defeating exercise for the government.

In an HTTP environment where governments can passively spy on and filter Internet content, individual pages could disappear behind obscure and misleading error messages. Moving to an increasingly HTTPS-secured world means that if social media companies are transparent about the pressure they face, we may gain some visibility into government censorship. However, if they comply without informing creators or readers of blocked content, we could find ourselves in a much worse situation. Without transparency, tech giants could misuse their power not only to silence vulnerable speakers, but also to obscure how that censorship takes place—and who demanded it.

Have you had your content or account removed from a social media platform? At EFF, we’ve been shining a light on the expanse and breadth of content removal on social media platforms with, where we and our partners at Visualising Impact collect your stories about content and account deletions. Share your story here.

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As USTR Takes Office, EFF Sets Out Our Demands on Trade Transparency

The new U.S. Trade Representative, Robert Lighthizer, took office this week. EFF has written him a letter to let him know that we’ll be holding him to the commitments that he made during his confirmation hearing about improving the transparency and inclusiveness of the USTR’s notoriously closed and opaque trade negotiation practices. Our letter, which you can download in full below, reads in part:

The American people’s dissatisfaction with trade deals of the past, such as NAFTA, does not merely lie in their effects on the American manufacturing sector and its workers.  Another of the key mistakes of previous U.S. trade policy, we respectfully submit, has been the closed and opaque character of trade negotiations. … 

Absent meaningful reforms that allow the public to see what is being negotiated on their behalf, and to participate in developing trade policy proposals, the public will reject new agreements just as they rejected failed agreements of the past, such as the Trans-Pacific Partnership and the Anti-Counterfeiting Trade Agreement.

Conversely, given a real voice in trade policy development, there is the potential for trade agreements of the future to become more inclusive, better informed, and more popular—all of which are essential if America is to retain and strengthen its global economic leadership in the digital age.

Tech industry groups the Internet Association, [PDF]  the Computer and Communications Industry Association (CCIA) and the Internet Infrastructure Coalition (i2Coalition) [PDF], have also sent letters to the new USTR. In addition to addressing how America’s future trade agreements should address tech policy issues, the CCIA and i2Coalition letter addresses the need for greater transparency in trade negotiations, stating “we encourage you to maintain as much transparency in trade negotiations as is reasonably possible. More open negotiation processes will contribute to increased support for the trade agenda.”

House and Senate Democrats have reportedly delivered the same message [paywalled] to Ambassador Lighthizer during his first week in office, urging that the renegotiation of NAFTA—which officially launched today—be made more transparent than the negotiations of its failed predecessor, the TPP.

Fixing Trade Agreements in Five Simple Steps

To further reinforce this message, EFF has gone even further—taking out a paid advertisement in POLITICO magazine’s Morning Trade newsletter which runs all this week. It directs to a new page of EFF’s website that is specifically targetted at D.C.’s trade community. You can see a copy of the banner graphic that we’ve used for that campaign to the side.

Will any of this make a difference? We certainly hope so, but we’re not counting on it. That’s why in case Ambassador Lighthizer fails to heed our message, we’ll also be supporting new legislation to be introduced in Congress to force the USTR to implement the necessary reforms. One way or another, the long overdue reform of trade negotiation processes has to happen, and we’re committed to seeing it through.

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Dear FCC: We See Through Your Plan to Roll Back Real Net Neutrality

Pretty much everyone says they are in favor of net neutrality–the idea that service providers shouldn’t engage in data discrimination, but should instead remain neutral in how they treat the content that flows over their networks. But actions speak louder than words, and today’s action by the FCC speaks volumes. After weeks of hand-waving and an aggressive misinformation campaign by major telecom companies, the FCC has taken the first concrete step toward dismantling the net neutrality protections it adopted two years ago.

Specifically, the FCC is proposing a rule that would reclassify broadband as an “information service” rather than a “telecommunications service.” FCC Chairman Ajit Pai claims that this move would protect users, but all it would really do is protect Comcast and other big ISPs by destroying the legal foundation for net neutrality rules. Once that happened, it would only be a matter of time before your ISP had more power than ever to shape the Internet.

Here’s why: Under the Telecommunications Act of 1996, a service can be either a “telecommunications service” that lets the subscriber choose the content they receive and send without interference from the service provider; or it can be an “information service,” like cable television, that curates and selects what subscribers will get. “Telecommunications services” are subject to nondiscrimination requirements–like net neutrality rules. “Information services” are not.

For years, the FCC incorrectly classified broadband access as an “information service,” and when it tried to apply net neutrality rules to broadband providers, the courts struck them down. Essentially, the D.C. Circuit court explained that the FCC can’t exempt broadband from nondiscrimination requirements by classifying it as an information service, but then impose those requirements anyway.

The legal mandate was clear: if we wanted meaningful open Internet rules to pass judicial scrutiny, the FCC had to reclassify broadband as a telecom service. Reclassification also just made sense: broadband networks are supposed to deliver information of the subscriber’s choosing, not information curated or altered by the provider.

It took an Internet uprising to persuade the FCC to reclassify. But in the end we succeeded: in 2015 the FCC reclassified broadband as a telecom service. Resting at last on a proper legal foundation, its net neutrality rules finally passed judicial scrutiny [PDF].

Given this history, there’s no disguising what the new FCC majority is up to. If it puts broadband back in the “info service” category and then tries to appease critics by adopting meaningful net neutrality rules, we’ll be in the same position we were three years ago: Comcast will take the FCC to court–and Comcast will win. It’s simple: you can’t reclassify and keep meaningful net neutrality rules. Reclassification means giving ISPs a free pass for data discrimination.

Chairman Pai’s claim that this move is good for users because it will spur investment in broadband infrastructure is a cynical one at best. Infrastructure investment has gone up since the 2015 Order, ISP profits are growing exponentially, and innovation and expression are flourishing.

At the same time, too many Americans have only one choice for high speed broadband. There are good reasons to worry about FCC overreach regulation in many contexts, but the fact is the U.S. broadband market is now excessively concentrated and lacks real choice, and there are few real options to prevent ISPs from abusing their power. In this environment, repealing the simple, light-touch rules of the road we just won would give ISPs free reign to use their position as Internet gatekeepers to funnel customers to their own content, thereby distorting the open playing field the Internet typically provides, or charge fees for better access to subscribers. Powerful incumbent tech companies will be able to buy their way into the fast lane, but new ones won’t.  Nor will activists, churches, libraries, hospitals, schools or local governments.

We can’t let that happen. So, Team Internet, we need you to step up once again and tell the FCC that it works for the American people, not Comcast, Verizon, or AT&T.  Go to and tell the FCC not to undermine real net neutrality protections.

Contact the FCC Now

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Recording Industry Claims Imaginary Value Gap as a Bigger Threat Than Piracy

One of the most significant events that took place at this month’s meeting of the World Intellectual Property Organization (WIPO), that EFF attended, wasn’t part of the meeting’s formal agenda. It came at a side-meeting organized by the International Federation of the Phonographic Industry (IFPI), an affiliate of the Recording Industry Association of America (RIAA). At that meeting, IFPI panelist David Price made the startling admission that copyright infringement is no longer the recording industry’s biggest concern.

Apparently, the industry’s biggest concern is no longer those who distribute music illegally for free. It’s platforms like YouTube that do pay copyright holders, but don’t pay enough. According to the IFPI, YouTube’s reliance on the U.S. DMCA and Europe’s E-Commerce Directive to allow it to host user-uploaded music videos has created a “value gap” that deprives the recording industry of royalties they believe should be theirs. The sudden elevation of this supposed “value gap” above the bugaboo of piracy is all the more surprising because term didn’t even exist until about 2016, when it was created out of whole cloth as a device to explain why copyright holders should be entitled to a larger slice of Internet platform revenues.

Interestingly, Price and his co-panelists at the WIPO event admitted that there ought to be free music services for those who don’t wish to pay. Currently, YouTube provides this free service for millions of users around the world. It pays royalties to copyright holders for doing so, even for user-uploaded content, where the copyright owner can be identified using ContentID fingerprint matching. (The law doesn’t require YouTube to do this, although plans are afoot in Europe to change this.) ContentID has serious problems, including imposing advertising and monetization on critical videos that are clear fair uses, against the wishes of video creators. But in the right circumstances, it also provides an important revenue stream for recording artists.

The record labels’ contention is that YouTube streaming depresses the rates that subscription-based music streaming services, such as Spotify, are willing to pay for streaming licenses. That’s an interesting theory, but research released by Google casts significant doubt on it. At least according to the Google-sponsored research, YouTube actually diverts users not from other paid services, but from infringement. Were YouTube to go away, 85% of views would simply disappear, or would move to lower-value alternatives such as illegal file sharing.

Just as the entertainment industry’s war against “piracy” harmed users, through the ratcheting up of enforcement measures and the banning of technological tools, so too the new war against user-generated content platforms will also have harmful effects. That’s because the legal foundation of user-generated content platforms, the copyright safe harbor that lies at the heart of the DMCA’s Section 512 and the E-Commerce Directive, doesn’t only facilitate the sharing of music, but also all of the other speech and innovation that happens on those platforms. Entertainment industry-driven attacks on that foundation, such as Europe’s mandatory upload filtering plan, and proposals to replace Section 512 in the U.S. with a filtering mandate, could have significant negative impacts on the viability of online content platforms, and on the rights of their users. The greatest impacts will be on platforms that are much smaller than YouTube, and on new entrants.

During IFPI’s presentation, we asked them directly about the desired “end game” of their opposition to the safe harbor protections that YouTube and similar platforms enjoy. While they denied that their goal was to dismantle copyright safe harbor protection altogether, there was no doubt that they are serious in their intent to prevent YouTube from taking advantage of it. That inevitably means eliminating the DMCA and E-Commerce Directive safe harbor rules that millions of other websites, both commercial and noncommercial, rely upon today, and replacing them with mandatory filtering rules.

It’s all rather ironic given that the IFPI acknowledge how streaming services, including YouTube, have led the recording industry to a resurgence of profitability in the past two years. If safe harbor rules have now eclipsed infringement as the biggest threat to the recording industry, and the industry can still earn record profits even so, it’s difficult to see how scrapping those rules could possibly be warranted.

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RCEP's Digital Trade Negotiations Remain Shrouded in Secrecy

From May 2-12, the Philippines hosted the 18th round of negotiations of the Regional Comprehensive Economic Partnership (RCEP), a TPP-like trade agreement covering ten members of the Association of Southeast Asian Nations (ASEAN) and six partner countries – China, India, Japan, Australia, New Zealand and South Korea. Access to the negotiators was extremely limited, with the negotiations themselves taking place behind closed doors. The non-availability of an agenda or confirmation of meetings and limited access to negotiators were amongst the factors constraining civil society organisations’ (CSOs) engagement.

For example, EFF organised a dinner presentation on May 9 for IP negotiators, with panelists from Public Citizen, Sinar Project, La Trobe University and Third World Network. Although the event drew a handful of negotiators from four of the partner countries along with an ASEAN representative, it transpired that it had been scheduled at the same time as a private RCEP event of which we hadn’t been informed. Given the high interest in the RCEP and its impact on rights of citizens across Asia, it is pitiful that groups like EFF are forced to bear the costs of reaching out to negotiators, and that negotiators show such little inclination to engage with us when we do.

Unfortunately, this is a familiar story for the hardy few civil society activists who have been covering this neglected trade deal. Few of the negotiating states have convened national consultations, held public hearings, or initiated an on-the-record public notice and comment process. There has also been no official release of the chapters and textual proposals related to rules that are being tabled. Given that the negotiations are closed to the public, we do not know what text is currently being deliberated on by the negotiators and/or the consensus on provisions among states.

Secrecy in negotiations and lack of information is a common feature in free trade agreement negotiations. In the past, CSOs have had to resort to guerilla tactics to intervene and defeat similar agreements such as the Trans-Pacific Partnership (TPP) and the the Transatlantic Trade and Investment Partnership (TTIP). Yet, just as with those better-known trade-deals, the potential significance of RCEP is immense, and so too are the dangers it could pose to Internet users if the negotiators fail to take their interests into account.

Digital Rights and RCEP

Similar to the TPP, RCEP includes provisions dealing with intellectual property (IP), e-commerce, investment, goods, services, telecommunications, and competition. The 16 Asian countries negotiating RCEP cover 12% of the world trade and represent nearly half of the global population. If ratified, the RCEP will not only be the first trade agreement for the digital economy will also set the rules for trade across Asia over the next decade. While not all institutional consequences of the partnership can be fully known in advance, much will depend on how the negotiation develops.

RCEP’s e-commerce provisions will likely deal with cross-border information flows, data localization, legal immunity of intermediaries and requirements concerning disclosure of source code that have not been tested elsewhere. We have also raised concerns that the provisions included under the leaked IP chapter notably on enforcement in a digital environment and failure to include fair-use exception may end up expanding the the digital divide. RCEP attempts to enshrine stringent obligations for the protection of broadcasters that remain controversial and are currently still under negotiation at WIPO. None of these problems would have come to light if earlier drafts of the agreement had not been leaked.

There has been a recent push to raise awareness of the RCEP with CSOs conducting strategy meetings and organizing weeks before the negotiations kicked off in Manila. Many CSOs also organised activities parallel to the negotiations clubbed under the #NoRCEP week of action. On May 10, members of the People Over Profit network staged a protest action, inside the convention centre where the negotiators were meeting with stakeholders, demanding a stop to the negotiations. RCEP will impact developers and startups, small and medium enterprises that create goods and services for an increasingly global market. The right trade policy environment, one that accounts for diverse national contexts and encourages innovation is critical for the growth and development of the region.

The next round of negotiations set to happen in Hyderabad, India in July this year. Hoping to address the lack of representation of views included in the process and reflect on some of the concerns raised, EFF will facilitate engagement between negotiators and affected stakeholders at a public meeting in Hyderabad. In the meantime, we maintain our call for ASEAN and the RCEP member states, many of which have complained about their lack of representation in US led trade agreements, to improve on the broken process that resulted in the failure of the TPP, and create avenues for meaningful consultation and participation from stakeholders.

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Why the Patching Problem Makes us WannaCry

Over the weekend a cyber attack known as “WannaCry” infected hundreds of computers all over the world with ransomware (malware which encrypts your data until you pay a ransom, usually in Bitcoin). The attack takes advantage of an exploit for Windows known as “EternalBlue” which was in the possession of NSA and, in mid April, was made public by a group known as “The Shadow Brokers.” Microsoft issued a patch for the vulnerability on March 14 for all supported versions of Windows (Vista and later). Unfortunately at the time the attack started many systems were still unpatched and legacy Windows systems such as Windows XP and Windows Server 2003 were left without a patch for the vulnerability. Since the attack began Microsoft has issued a patch for Windows XP and Windows Server 2003 as well. 

Certainly, some of the blame falls on the NSA, which developed EternalBlue and then lost control of it. But these attacks are a complex failure for which there is plenty of blame to go around. The WannaCry ransomware attacks demonstrate that patching large, legacy systems is hard. For many kinds of systems, the existence of patches for a vulnerability is no guarantee that they will make their way to the affected devices in a timely manner. For example, many Internet of Things devices are unpatchable, a fact that was exploited by the Mirai Botnet. Additionally, the majority of Android devices are no longer supported by Google or the device manufacturers, leaving them open to exploitation by a “toxic hellstew” of known vulnerabilities

Even for systems that can be patched, applying patches to large enterprise or government systems in a timely manner is notoriously difficult. Enterprise and government systems can rarely afford the potential downtime that goes along with a software patch or upgrade. As one researcher put it, “enterprises often face a stark choice with security patches: take the risk of being knocked of the air by hackers, or take the risk of knocking yourself off the air.”

This attack raises two extremely important areas of research: writing software that is less prone to the most common security vulnerabilities (such as by using memory safe languages, formal verification techniques, etc.), and solving the patching problem.

Reportedly about 90 percent of all spending on cyber programs is dedicated to offensive efforts, leaving a mere 10 percent for defense.  During his candidacy, President Trump expressed tremendous concern about national cybersecurity weaknesses, stating “the scope of our cybersecurity problem is enormous. Our government, our businesses, our trade secrets and our citizens’ most sensitive information are all facing constant cyberattacks….” 

If the Trump administration is serious about improving cybersecurity, it should place a greater emphasis on funding defensive security research. Research into defensive methods and better strategies for patching systems is less sexy than over-hyped zero-day vulnerabilities or imaginary “cyber-missiles,” but it is the surest path to a more secure internet for everyone. 

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Secret New European Copyright Proposal Spells Disaster for Free Culture

EFF has learned about a new proposal for European law that takes aim at online streaming services, but which will strike a serious blow to creators and their fans. The proposal, which would effectively ban online streaming services from hosting works under free licenses, could spell an end to services like the Luxembourg-based Jamendo that offers access to free music online, and raise new barriers to offering freely-licensed works on other streaming platforms.

This is all part of Europe’s proposed new Digital Single Market Directive, which is presently doing the rounds of the three European institutions (the European Commission, European Parliament, and Council of the European Union) that will have to reach agreement on its final text. As part of this process, proposals for amendment to the Commission’s original draft are coming up from several of the committees of the European Parliament. We’ve previously sounded the alarm about other aspects of this Directive, including its misguided link tax and plans for an upload filtering mandate, both of which are the subject of ongoing compromise negotiations.

But this latest amendment proposal, coming out of left field, would be added to another section of the Directive, that proposes to ensure fair remuneration to authors for the use of their works, an objective that EFF otherwise supports. The Parliamentary committee leading the negotiations is the Legal Affairs (JURI) committee, but other committees are preparing opinions on the draft and can also propose their own amendments to it. This proposal has come from the Committee on Culture and Education (CULT). Although the text of the proposal is not available online, as it is under discussion by the Rapporteur and Shadow Rapporteurs of the CULT behind closed doors, EFF has obtained a copy, which says:

  1. Member States shall ensure that, when authors and performers transfer or assign the right of making available to the public of their works or other subject-matter for online on-demand services, they retain the right to obtain fair remuneration derived from the direct exploitation of their works present in the catalogue of those services.
  2. The right of an author or performer to obtain fair remuneration for the making available of his/her work as described in paragraph 1 cannot be waived.

In short, this creates what amounts to a tax on copyright works made available on online streaming services, payable to the collecting societies that administer copyright on behalf of authors and performers (though the tax itself is separate from the copyright holder’s economic rights). The tax cannot be waived by the authors or performers themselves, which means that even if they want to make their works available for streaming online for free, the law would tie their hands and prohibit this. The streaming site would still be required to set aside money for “fair remuneration” of the authors and performers, whether they want this or not.

The proposal seems to be modeled on a similar amendment that was introduced in Chile last year, and which unfortunately passed soon after we wrote about it, without any substantive debate. It’s not unusual for measures such as this to pop up in Europe or America after a smaller country adopts them. The recording industry’s IP maximalist agenda is a global one, and it often makes sense for them to establish a precedent somewhere else in the world where resistance to their proposals may be weaker, before pushing it out to larger economies.

This amendment would eliminate one of the few advantages that small and independent artists enjoy in promoting their work online—the ability to make it available for free. For some such artists, the free online availability of their work builds up a fan base to support future licensing deals, concert tours, and merchandise sales. Others may release some or all of their work for free for non-economic reasons, such as to communicate a message, or simply for the love of their art. Certainly, not all artists do this. But the law as it exists at present at least offers them a choice. Either they can license their work to streaming platforms for money, or they can make it available to such platforms for free. But if this amendment passes, that choice will be taken away from them.

The losers from this proposal are fourfold. Perhaps the biggest losers are the creators themselves, who will face new barriers between their art and their fans and collaborators. The streaming services will also lose out, as they will face higher expenses and will no longer be able to operate non-commercially even if they only carry freely licensed content. Fans, of course, will suffer because of the reduced legal availability of free music and video online. And even the copyright industry will suffer, as the increased costs of legal streaming services may cause creators and fans to shift back to peer to peer file sharing, where copyright infringing works are also exchanged.

Since this proposal enjoys the support of a majority of the European political groups in the CULT, if nothing changes then it is very likely to pass that committee at least. The next meeting of the Shadow Rapporteurs is on Tuesday May 16, we have no time to waste in sounding the alarm about how misguided and destructive this amendment is. A list of the CULT members who are considering the proposal can be found here, complete with email and social media contact details.

EFF’s European supporters are urged to contact their representatives with a simple message: to oppose any amendment to the Digital Single Market Directive that would create a new unwaiveable right to fair remuneration on online streaming platforms. The future of free culture in Europe depends upon it.

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European Publishing Lobby Forces Compromise on Marrakesh Treaty

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was one of the most fiercely contested treaty negotiations at the World Intellectual Property Organization (WIPO). Representatives of publishers and other copyright holder groups spent years unashamedly lobbying against an instrument that would provide access to the written word to blind and other print disabled users. Despite their efforts to derail the negotiations, the treaty was finally agreed in 2013, and came into force last year.

But that wasn’t the end of it. An important step towards the realization of the treaty’s benefits is the implementation of the treaty by the countries where the books for adaptation into accessible formats are published. It happens that a large proportion of those books, especially those in French (which is spoken in many parts of Africa) and in Spanish (spoken throughout Latin America), originate from Europe. Therefore many blind and print disabled users have eagerly awaited Europe’s implementation of the Marrakesh Treaty to unlock its many promised benefits.

Publishers as well have been keenly aware of the importance of Europe’s implementation of the treaty. They have been lobbying European lawmakers to implement it in the narrowest way that the treaty allows. This week, a breakthrough was reached when lawmakers from the three European institutions (the European Parliament, the Council of the European Union, and the European Commission) reached a compromise on the text of the Directive that will implement the treaty.

The main sticking points were whether the Directive would require those who adapt works into accessible formats to pay compensation to the publishers of the original works, whether there should be a ban on creating accessible copies of works when copies are also commercially available, and whether only “authorized entities” would be permitted to create accessible-format works. On most of these issues the interests of blind and print disabled users have prevailed, with one exception: Individual European countries may require that publishers be paid compensation when adaptations of works are made by authorized entities such as charities and libraries in that country. Recital 11 of the text of the compromise Directive summarizes the effect of this:

Member States should only be allowed to provide for compensation schemes regarding the permitted uses of works and other protected subject-matter by authorised entities. In order to avoid burdens for beneficiary persons, prevent barriers to the cross-border dissemination of accessible format copies and excessive requirements on authorised entities, it is important that the possibility for Member States to provide for such compensation schemes is limited. 

Compensation schemes should therefore not require payments by beneficiary persons. They should only apply to uses by authorised entities established in the territory of the Member State providing for such a scheme and they should not require payments by authorised entities established in other Member States or third countries that are parties to the Marrakesh Treaty. … Account should also be taken of the particular circumstances of each case, resulting from the making of a particular accessible format copy. Where the harm to a rightholder would be minimal, no obligation for payment of compensation may arise.

It would have been better if the Directive had simply ruled out the need for payment of compensation for the adaptation of works for blind and print disabled users. In almost all cases, adapting copyright works for the blind is undertaken from a motive of compassion, not profit. Indeed, if there were profit in it, blind users would not be suffering the “book famine” that results in them having access to only 1% of published books in accessible formats in poor countries, and only 7% in rich countries.

Nevertheless, the implementing Directive will not impose payment conditions on foreign entities or those from other EU member states, which will likely mean that most of the adaptation of works for blind and print disabled users will be conducted in countries that do not impose a requirement of compensation. Even works that are meant for users within such a country will likely be imported from overseas. The right to import adapted works from other countries is a key feature of the Marrakesh Treaty, and a feature that the European Directive will preserve.

Overall then, despite being somewhat tarnished by the self-interested demands of publishers, the overdue implementation of the Marrakesh Treaty in Europe is to be welcomed. Its success affirms the consensus of WIPO member states that international law on copyright shouldn’t be in the service of copyright holders alone, but needs to reflect a balance of interests of creators and users, including disadvantaged users such as those who are blind, vision impaired, and print disabled.

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Oakland City Council Committee Advances Measure to Require Transparency and Public Process for Surveillance Tech

On May 10, the Public Safety Committee of the Oakland City Council voted unanimously to approve a proposed “Surveillance and Community Safety Ordinance.” The measure, passed on to the Council by the city’s Privacy Advisory Commission, is modeled on a law enacted in spring 2016 by Santa Clara County and could set a new standard for municipal reforms seeking transparency, oversight, and accountability to restrain otherwise unrestrained surveillance.

Once approved by the full Council, the ordinance will require the Oakland Police Department to seek City Council approval before adopting or deploying new surveillance technologies. The measure will also provide community members with an opportunity to comment on such proposals, and the use policies for these technologies, before the City Council makes its decisions.

Importantly, these requirements will apply to any surveillance platform, even ones that have yet to be developed and might not emerge for several years. The measure’s device-neutral requirements for transparency and public process will ensure local democratic control over the adoption and use of powerful spying technologies into the future.

Supporters of the measure packed the council room on Monday, and spanned a number of organizations across the community representing a variety of constituencies and perspectives.

Brian Hofer, chair of the city’s privacy advisory commission and a member of Oakland Privacy (which participates in the Electronic Frontier Alliance) said:

Unfettered surveillance doesn’t just waste public money and abuse our civil liberties. It endangers lives. Trump has access to tools that would make the Stasi and KGB envious. We must institutionalize limits to surveillance, prohibit secret uses, require maximum oversight and transparency, and impose penalties for misconduct.

Catherine Crump, co-director of UC Berkeley’s Center for Law and Technology has similarly emphasized that the problem inheres in secrecy, and that public process can help prevent potential violations of rights and liberties.

Several advocates addressed the discriminatory impact of surveillance. For instance, Tracy Rosenberg of the Media Alliance noted, “Without lifting the veil of secrecy surrounding use of surveillance technologies upon vulnerable groups, we cannot have truly safe communities. This ordinance is all about genuine public safety – for all of us who live, work in, and visit Oakland.”  Christina Sinha, who co-leads the National Security and Civil Rights Program of Asian Americans Advancing Justice, also suggested that the ordinance could help support the rights of marginalized communities.

EFF Grassroots Advocacy Coordinator Camille Ochoa reminded Council members, “Effective policing can only be built upon trust. Trust is fostered when we build processes that are transparent and responsive to the will of the people. This ordinance is a step in the right direction.”

Having gained the committee’s approval, the ordinance will next go to the full Council to consider before a vote later this year on a date to be determined. 

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