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How IP Enforcement Can Be Used To Suppress Dissent

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Tuesday September 14, 2010

The NY Times ran a bombshell article over the weekend in which it reported that Russia has been using the pre-text of intellectual property enforcement to seize computers from NGO groups involved in advocacy and dissent.  The article notes that the authorities have been receiving active assistance from Microsoft, which had been delivering statements describing the company as a victim and asking for criminal charges against the NGO groups.  While human rights groups had been pressing Microsoft to address the issue for months, it only responded yesterday after the article's publication.  The company now says it will offer free blanket licences for its products to NGOs to prevent actions under the guise of IP enforcement.  It will also establish a new legal assistance program to assist NGOs who need to respond to enforcement actions.

While the Microsoft response is a good one, it must be noted the abuse of IP enforcement is surely connected to efforts by the U.S. government and copyright lobby groups to actively encourage Russia to increase its IP enforcement.  The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list.  The IIPA, the industry lobby group that includes software associations, pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases.  In fact, the IIPA complained that Russian authorities do not seize enough computers when conducting raids.  On top of all this is the Anti-Counterfeiting Trade Agreement, which will provide Russia with a template to follow on IP enforcement, including new seizure powers with less court oversight. 

It has often been pointed out that the ACTA/Special 301 report approach seeks to export tougher enforcement measures - often to countries where free speech is not a given - without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.

Update: EFF and ZDNet cover the same issue. Rebecca MacKinnon offers her analysis here.

Update II: Public Knowledge adds its perspective.

Comments (31)add comment

pat donovan said:

3 web 3.0 rules for rabid loons)
cheerleaders unite! filter and coverup, distraction girls!

YOU ARE:
for or against us
it's forbidden or manitory
guilty guilty guilty (pre-offense convictions)

PLUS
info restrictions; ie: fed science publications
dumping (non- PC) 30 year vets from elections councils

seen the new seizeure laws for borders? orphaned copyright?
internet re-use?

the old age boom's true colors emerge... it's all about
economic security.
packrat

September 14, 2010

Shawn said:

...
It took them this long to figure this out? Isn't this why they want to cut people off from the internet in the first place; so they can criticize them?
September 14, 2010

Blaze said:

...
Its terrible to see it in action, but the silver lining is that it provides a nice preview of what might happen elsewhere.
September 14, 2010

Crockett said:

How to win friends and influence people ..
Wow, ACTA is earning a lot of friends this week 0_o

While I have always been deeply concerned about this horrible legislation (and the blatant avarice driving it), I have had a certain amount faith in the power of the people to oppose it.

This is a fight on so many levels with corporate greed and control at it's center. We can't lay all the blame there though as there are some on the other side of the fence who are just as greedy and irresponsible.

The real battle though is between the influence of moneyed lobbyists and the influence of the electorate. In the realm of IP policy and enforcement I think the consumer has the greater hand, even if they don't fully realize it.

The Content industry though has been no help to itself, they have shot themselves in the feet so many times it's amazing they can even hobble around anymore. If I was an artist I would be looking for a representative a tad more nimble and much less clumsy.

The whole IP industry is in a whirlwind of change, I think when the storm has passed there will be better structures built to serve everyone. In the meantime it's gonna continue to be messy.
September 14, 2010

Degen said:

...
Michael,

I find it disturbing and sad that you would make a direct link between the indefensible actions of an authoritarian government with an established, terrible record on freedom of expression and calls for strict IP enforcement from democratic countries.

I don't think anyone reading your blog regularly is at all surprised that you would criticize the watch list, the IIPA and ACTA, but to draw a direct line between these hobby horses of yours and a truly reprehensible act of anti-democratic thuggery is really beyond the pale.

I agree this is an embarrassment for Microsoft, and I'm glad they have responded the way they have. One small correction -- The NYTimes published a statement from Microsoft in relation to their Sept. 11 article on the very same day. The company was clearly working on this before the article was published, and did not react only after being publicly embarrassed, as you suggest.

In any case, the action we all despise in this story is the authoritarian power play to crush dissent. The suggestion that IP enforcement is somehow to blame for a government's misuse of power is inaccurate at best, and in this case I think it's intentionally misleading and really quite shameful.
September 14, 2010

Crockett said:

Once upon a time ...
Hmm, I have to agree somewhat with Degen on this one. ACTA is a tool that could theoretically be used for different purposes both 'good' and 'evil'. I do not think the crafters of this agreement where planning for such an outcome.

At the same time a firearm, for example, is also a tool than can be used for good (law enforcement) but it often is used for reasons that do not end well. I think one should be careful what caliber (pun intended) of legislation they are crafting, in trying to promote control for their own gain the same could be used by others for nefarious and often unintended reasons.

In that regard this story I think is a fable that should be considered for it's morals.
September 14, 2010

Michael Geist said:

Responses - @Degen & @Crockett
Obviously the intent of IP enforcement is not to support governments' suppressing dissent. I didn't say it was. However, you can't demand that a government seize more computers and then express surprise when a government like Russia's does exactly that for its own purposes. You can't demand that countries implement new seizure powers at the border without any court oversight (as ACTA does) and then express surprise when countries do exactly that in ways that do not comport with due process.

The money quote in my post is that when you export enforcement provisions to countries like Russia without the balancing and due process provisions that are found in democratic countries, you are running the risk of misuse as took place here. Calling attention to that isn't shameful. The only thing shameful would be attempts to ignore that reality and failure to admit that there are serious negative implications to the enforcement-above-all-else strategy.

MG

PS - ZDNet picked up the same point here.

http://zd.net/9UIgnH
September 14, 2010

Un-Trusted Computing said:

@Degen
"The suggestion that IP enforcement is somehow to blame for a government's misuse of power is inaccurate at best, and in this case I think it's intentionally misleading and really quite shameful."

To draw a simple analogy:

Corporations in Democratic countries will be able use IP laws to silence criticism.

So in a nutshell, no the government of a democratic country won't be oppressing you, but corporations using laws your democratic government brought into existence will be able to stifle free speech they don't like easily enough.

You should know this already but you can find some primers here:

http://www.chillingeffects.org/

and here

http://www.eff.org/



September 14, 2010

Crockett said:

@ Michael
I was giving the benefit of the doubt to the ACTA scribes that they did not intend for the agreement to be used to quash legitimate dissent. In my second paragraph though I pointed out through allegory that one should be cautious with what tools you put in the hands of people without necessarily the same intentions or oversight.
September 14, 2010

bad cop said:

You've got to be kidding
Michael, I have to say I agree with some other posters here. This is one of only a few times where I have to shake my head as I read your post. Do you really think Russian border officials need any IP law as a reason to seize/look at your computer? Do you believe the Chinese government is waiting for new IP legislation before they take similar actions?
I won't go too far with my criticism, but post like this is why some in the IP world make light of your ideas....Sometimes they go just a little far and show you are more concerned with trying to prove your point.
September 14, 2010

Michael Geist said:

@badcop
No, I don't think Chinese or Russian officials need IP laws in order to suppress dissent. The fact that they have used them to do so suggests that they believe they can launder or legitimize their actions by using the excuse of IP enforcement. Note that several countries, including Canada, have called for a provision in ACTA that deals with IP misuse. That provision is opposed by the United States.

I frankly see nothing controversial in saying that where countries or businesses encourage IP enforcement laws they must also encourage balance and due process provisions. Failure to do so clearly raises the prospect of the misuse reported by the NY Times.

MG
September 14, 2010

Alexey said:

...
It might come as a shock to some people, but government corruption is not at all exclusive to Russia. Cases are regularily uncovered in both Canada and the US.
September 15, 2010

Darryl Moore said:

In other news.

Dowe Chemical sold pesticides to Iraq, then expressed dismay when they were used for making weapons.

The president of Dowe denies any responsibility saying "The suggestion that chemical exports is somehow to blame for a government's misuse of power is inaccurate at best, and in this case I think it's intentionally misleading and really quite shameful."
September 15, 2010

Laurel L. Russwurm said:

Not shocked but disappointed
Democratic law has evolved checks and balances to protect citizens from unwarranted abuse from the powers of the state. But in the last decade serious erosions of these protections have not only been contemplated but enacted in laws in democratic nations.

Without balance and due process provisions, laws like Bill C-32 will leave citizens open to abuse as the American DMCA does now. Secret treaties made in an attempt to bully the world into adopting laws that will unfairly burden citizens by removal of due process will surely lead to abuses.

Abuses will happen.

Abuses are already happening south of the border... law abiding citizens are already suffering abuses due to insufficient checks & balances that have been slipped into American law. Canadian writer Dr Peter Watts could tell you about the danger inherent on crossing the Canada/USA border:
http://www.boingboing.net/2009/12/11/dr-peter-watts-canad.html#previouspost

U.S.Senate candidate Sharron Angle was recently sued for reprinting news articles on her website. Along with very high damages Righthaven also tried to seize her website's domain name, which could seriously damage her ability to campaign.

This is a clear abuse of democracy made possible by bad copyright law. http://www.politico.com/news/s...41809.html

This is the very thing @Un-Trusted Computing warns of and it is happening NOW.

@Crockett Giving the benefit of the doubt to "ACTA scribes" (who continue to try to keep the secret treaty secret) is ill advised.

This is why transparency is necessary and the very ACTA process suspect.
September 15, 2010

Russell McOrmond said:

Mixed feelings - activists need to make better choices!
I'm of mixed feelings about this.

Obviously there is a link between western censorship and eastern censorship, each being a type of speech that is alleged to harm the government (or their corporate allies). That some westerners think that excessive copyright enforcement is justified while excessive enforcement against those wishing to destabilised eastern governments is justified shows the level of tunnel-vision of those westerners.


Infringement of proprietary software like that from Microsoft harms competing software such as Free/Libre and Open Source more than it does Microsoft. Microsoft has said as much many times in the past, and prefers people infringe their software than switch to legal alternatives. I really wish that activists globally would get this message, and switch. This removes not only the excessive political influence of companies like Microsoft and the Gates Foundation (Inverter in Monsanto, patent promoter, etc), but would also deal a blow to those trying to abuse patents, copyright and related laws against those engaged in political dissent.

For activists still using Microsoft, Apple or other BSA member software, legally or otherwise, can they really cry fowl about the abuse of laws that they are actively supporting with their software choices?
September 15, 2010

Russell McOrmond said:

Response to @degen & @Crockett
I have to laugh.

John is a big promoter of "stronger" copyright law. When you sit down with him to discuss real-world examples, his concerns tend to be more about what amount to an imbalance of power between contracting parties. (IE: Contracts, not copyright!) Stronger enforcement of copyright law is itself a tool used to make that imbalance greater, which works against the "smaller guy" which is often the original author of copyrighted works. Every time contracts get worse he is surprised -- poor acting, or just unable to foresee the inevitable results of the policies he promotes?

It is the same thing here. The purpose of ACTA appears to be to move the global rule making process for Patent, Copyright, Trademark and related laws (PCT) away from WIPO. Those countries will then push ACTA onto other countries. It is not incorrect to suggest that the purpose of ACTA is to remove transparency from PCT rule making away from WIPO, which includes increased participation from majority-world countries (BRIC = Brazil, Russia, India, China).

So, as some people defend ACTA and the alleged purpose of its drafters, others will be watching far more closely and won't be surprised at the inevitable global abuses *CAUSED BY* self-called democratic western countries.
September 15, 2010

Degen said:

...
Russell - We've talked about this before... strong and stronger are two different words with different meanings. Start your understanding of my views with that important distinction and then maybe we can talk (again).

Darryl - your comparison, while atrocious and unbelievably insensitive, is actually perfectly appropriate to the tone set by the original posting. Which, you know, sort of supports my original point. Thanks for that.
September 15, 2010

Crockett said:

Put away the tar and feathers ;-)
Wow, OK. Wait a minute here. I have no love for the antics of ACTA and the content industry as you probably can tell by my other few hundred posts. It is certainly a (secretive, opaque) document meant to export the will of the US on the world without self exigence.

In retrospect, my somewhat limited defense on the intentions of ACTA on the dissident issue may have been a momentary lapse into naiveness. It has 'shockingly' come to my attention that on other issues the USA has been known to operate in a clandestine and self seeking manner. They even have a whole agency dedicated to it!

Irregardless, I am happy to think if things keep going as they have this week for ACTA that it will die on the table. I hope my naivety does not extend into my belief that it is the consumer (voter) and market the will ultimately shape the digital future.
September 15, 2010

Darryl Moore said:

...
John, I'm sorry. Did I hurt your feelings?

Your original point is in fact quite dull, which may explain why it fits under your hat so well. The comparison is valid, even if admittedly overstated.

The point is that if you give governments the power through unbalanced treaties, to harass their own populations, they inevitably will. This sort of behaviour is an entirely predictable outcome of unbalanced treaties such as ACTA, so you can expect more of this if ACTA passes.

It differs only by degree from giving those same governments the power to physically harm there own population though weapons trading. The basic principle is still the same.

September 15, 2010

Degen said:

...
Darryl,

I'm still not following you.

Can you explain in greater detail how IP enforcement is like willful complicity in murder?
September 15, 2010

Crockett said:

...
@Degen "Can you explain in greater detail how IP enforcement is like willful complicity in murder?"

John, that is just hyperbole. No one said that.
September 15, 2010

Degen said:

...
Maybe you haven't read back far enough, Crockett. What exactly was Darryl refering to when he mentioned chemical weapons and Iraq?

You may wish to excuse Darryl for his offensive comparison, but I believe this kind of extreme sensationalism debases the whole conversation. I've said so on my own blog when commenters go overboard in defense of my views.

Over here, it's just business as usual.
September 15, 2010

Darryl Moore said:

...
I'm not sure there'd be much point John. BFWIW it's called an analogy.
September 15, 2010

oldguy said:

Responsible wording in law
This very situation is why we need to be very careful in how we create and word our laws concerning copyright and IP. This article puts it in a nutshell:
http://www.publicknowledge.org...-microsoft

The wording within C-32 and the US DMCA allows for these kinds of abuses (and others), locally and abroad. This is why I am against the proposed wording within C-32 surrounding TPM/DRM. Throw in what we know about ACTA and it's wording, and things get potentially worse for abusive or nefarious use of these laws to accomplish other agendas.
I realize the goals of these laws isn't to enable abusive enforcement of other agendas, but we need to be very careful about the scope and wording of these laws to restrict such abuse, while using these laws as a legal cover for other agendas.

Strong copyright laws, and it's enforcement, might sound like a good idea to a rights holder. But as the article above points out, copyright and IP extends it's tendrils everywhere in this digital world. Rights holders should be very careful about what they are asking for, and exactly how it is worded. They could end up on the receiving end of an abuse of those same laws. For sure someone will eventually be, witness the cases of abuse using the DMCA in the US. Canada can avoid these issues, but not with the current wording and consequences in C-32.

September 15, 2010

Degen said:

...
oldguy,

So, basically, you're asking for clear legislative guidance in the Bill?

Who could be against that?

Oh, wait, Dr. Geist is against that.
September 16, 2010

oldguy said:

@Degen

I'm looking for clear and *thoughtful* legislation. Start with an outline of what the bill is intended to accomplish, and then build/phrase it to accomplish those purposes, and limit it to those purposes alone.

Discussion should be focused around what the purposes should be, not overreaching wording or loopholes or internal inconsistencies. This much we agree on.

There will always be areas that have specific situations, and in those cases the legislation should supply a generalized guidance and flexibility for the courts to rule on.
Too often when I read these bills, I am left with a "what is this for?" feeling. If each section of the bill was prepended or linked with a "this is what this section is intended to address" preamble, we would have better consistency, understandability, and guidance for the court. We could also cross check to make sure the bill actually accomplishes what is intended.

The legislation shouldn't have built in loopholes or inconsistencies.

I don't see Mr Geist as against clarity, I think he is for flexibility, in those areas that require it. Since he has legal training, he possibly doesn't need a "purpose" preamble for these sections, but I suspect he wouldn't be against such if it was included.
September 16, 2010

Degen said:

...
"With respect to legislative guidance, I don’t see the need for it." - Michael Geist, August 24th, 2010

Just saying.
September 16, 2010

oldguy said:

@Degen
Nicely quoted out of context. Here, let me supply a larger quote that shows the context better. It was a specific response to you.

.."I encourage everyone to read the letter – the claims of serious economic damage and years of costly litigation are there for all to see. With respect to legislative guidance, I don’t see the need for it. What do you think needs further guidance? The reform involves adding a new category to fair dealing. I think it is very clear – education in the broadest sense."

Note that he even asked your opinion on what needed clarification, or why.

AS I stated above, Mr Geist has legal training and some things might seem obvious to him. Things are that aren't so obvious to you and I.

In a sense, you are as being as opaque as C-32 appears to be. In your example, at least I can go back to the source to find the proper context, and understanding. In the case of C-32, I can't.


September 16, 2010

Degen said:

...
What is out of context about a quote on the idea of legislative guidance in a discussion about the same. Honestly, there is no end to the "see no evil" posture over here.

Clearly, based on his own words, both what I quoted and your longer passage, Geist does not want clear legislative guidance for passages he's happy with. In this case, he assumes any greater clarity with involve definition away from the all encompassing vagueness he prefers. And you want that same guidance for passages you are not happy with, because you feel their vagueness would work against your ideology.

Me, I just want it all to be clear. So, who is being more honest and forthright?
September 16, 2010

oldguy said:

@Degen
.."Honestly, there is no end to the "see no evil" posture over here."

That is knee jerk response on your part. Just as quoting a single line out of context to justify "your" position that there is some nefarious agenda going on here.

I am not mesmerized by the postings here, no matter what your feelings on the matter. But I don't (usually) have the level of antipathy that would cause me to quote out of context to make a seeming point either.

I do note that for the most part, you seems to agree with me about C-32 opaqueness. But we seem to disagree about Mr Geist's attitude. That's a perception difference that would be best to "agree to disagree" on and leave it at that.
September 16, 2010

Napalm said:

ACTA news
Now they want to use ACTA to suppress dissent:

http://www.techdirt.com/articl...eaks.shtml

Nap.
September 21, 2010

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