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[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Creative artists who speak out to defend their work from online poachers have long been the target of the Electronic Frontier Foundation (EFF), a Google-funded tech-centric organization that ostensibly “champions user privacy, free expression, and innovation.” Many creators first become familiar with the EFF when sending takedown notices to Google for copyright infringement on its various products (YouTube, Blogger, search, etc.) and receive warnings that the DMCA notice (listing the infringing link) will be sent to the EFF’s public Chilling Effects database. The purported goal of the database is to provide a clearinghouse to study “the prevalence of legal threats and allow Internet users to see the source of content removals.” Unfortunately, its real mission seems to be to further intimidate rights holders who try to protect their work from online infringement. The database has, in fact, become a handy source of links to pirated content. Given its history as a tech cheerleader, it’s no surprise that the EFF is at it again, this time drafting a letter to officials who are negotiating the “intermediary liability” language for Trans-Pacific Partnership (TPP) free trade agreement. According to the U.S. Trade Representative’s website:
TPP will provide new market access for Made-in-America goods and services, strong and enforceable labor standards and environmental commitments, groundbreaking new rules on state-owned enterprises, a robust and balanced intellectual property rights framework, and a thriving digital economy.
While there are legitimate concerns about transparency with the negotiating process, transparency is a double-edge sword. Perhaps the EFF should take a dose of its own medicine. The language contained in EFF’s letter once again establishes criterion where the rights of content creators should be considered secondary to those of “innovators” (a.k.a. tech interests). It paints a predictable–but false–scenario where rights holders are running amok by flooding poor service providers with unsubstantiated takedown notices.
We are worried about language that would force service providers throughout the region to monitor and police their users actions on the internet pass on automated takedown notices, block websites and disconnect Internet users.
It’s the old canard whereby web users’ right to steal copyrighted content trumps the creator’s right to remove it. The reason we have “automated takedown” processes in the first place is the amount of theft is so massive, that for many rights holders, it’s the only way to make a dent in the un-checked online copyright infringement that’s been unleashed in the name of “innovation.” Google has to deal with millions of takedowns because it enables (and profits from) millions of infringements. Even Google admits that the number of erroneous takedowns is minute (3%) compared to the number of valid ones (97%). The EFF asks for “flexibility” for nations to “establish takedown systems.” It’s a malleable term one could drive a truck through that would unquestionably undermine the entire point of writing IP protections into the agreement in the first place. Of course that’s precisely why the EFF and its shadow kingpins are pushing it. The fact is that there’s no such thing as borders in today’s digital world and treaties such as the TPP may be the only way to forge a path forward where IP can be protected in a meaningful, global way and nurture creative business in developing countries. Indeed, to gut IP protections by allowing nations “flexibility” would lead us back full circle to our current morass–a patchwork of enforcement that undermines any meaningful protection for creators rights around the globe. As Peter S. Mennell, noted law professor and co-director of U.C. Berkeley’s Center for Law & Technology wrote in a paper published this past April, This American Copyright Life: Reflections on Re-equilibrating Copyright for the Internet Age:
U.S. treaty and trade negotiators should celebrate and nurture Bollywood, Nollywood, and other creative communities as a primary focus for achieving global copyright protection. The U.S. should not be seen as an IP bully on the international stage but rather as a genuine partner willing to lend a hand up to nations willing to support their creative industries. Such a policy has the added bonus of promoting free expression and democratic ideals.
The EFF, and those drafting this trade agreement, should be mindful of what defines “democratic ideals” and acknowledge that creators worldwide “are worried,” and rightfully so, about an unbalanced online eco-system whereby the rights of certain users and business interests routinely trump the rights of artists. The letter raises EFF questions whether the TPP is “pushing proposals that that would truly enable new businesses to flourish in our countries in the decades to come.” For accuracy’s sake, perhaps the EFF should just be clear about their goals (and those of the tech companies that send millions their way) and clearly ask the TPP to bow to pressure and push proposals that would “truly enable” copyright infringement to “flourish” un-checked in the decades to come. After all, companies like Google traffic in content and the fewer obstacles to using and disseminating said content, the more profits for them. If you look at the list of signatories on the letter is a predictable (tech) bunch and attached to the document is the EFF’s own screed on “Abuse of the Copyright Takedown System.” As part of its advocacy efforts, the EFF routinely muddies the waters and conflates valid concerns over online privacy and free speech rights with copyright holders’ efforts to protect their work from infringement. Protecting rights within all three realms is important and doing so effectively, despite EFF rhetoric to the contrary, need not be a mutually exclusive process. The EFF approach to protecting “rights” in the digital age has always has been disingenuous. Gin up hysteria in order to push an anti-copyright agenda–an agenda, covertly built on the interests of the tech industry and NOT the community at large. For the record, protecting copyright is defending free speech. The EFF’s letter to TPP negotiators is just one more link in its (tech-funded) chain of lies.[/vc_column_text][/vc_column][/vc_row]