Shoring Up Our Safe Harbors

Today, our friends at Public Knowledge launched the Internet Blueprint, where they will be hosting new ideas for positive policymaking where people can vote up or down ideas and help them draft legislation. We encourage you to take a look at all the bills, they’re proposing. We’ve found one in particular we’d like to support, right out of the gate.

A much needed amendment to the Digital Millenium Copyright Act of 1998 has been proposed by our friends over at Public Knowledge to modernize and improve the legislation. The Strengthening and Protecting DMCA Safe Harbors Act would amend section 512 to penalize bogus takedowns — like the takedown of an anti-SOPA Techdirt post we wrote about previously.

The amendments include penalties for anyone who knowingly or recklessly misrepresents that material or activity is infringing, including liability for damages incurred by the alleged infringer and reasonable legal fees if the takedown is proven to be without merit.

The proposed legislation would require proof that the alleged infringer was served with a notice, or an explanation of why this did not occur, as a safeguard against surprise takedowns. The legislation also calls for a free, publicly accessible, and searchable database of all takedown notices and counter notices to increase transparency and guard against bogus takedowns.

Finally, the proposed amendment seeks to protect subscribers to infringing sites with due warning of takedown and prompt return of files owned, in order to protect users who subscribe to services which turn out to be infringing.

Click here to read more from PK’s blueprint for DMCA Safe Harbors.

Now that the dust has settled after the fight against SOPA and PIPA, it’s time to take positive action in becoming involved in shaping future policies that protect an open and vibrant internet, one which is safe for commerce and property, and one that fosters innovation. Legislation like the Safe Harbors amendment, and others already listed on the Blueprint are the kinds we at Engine would like to see more of, and the sooner more work can be done on these important issues, the better.

Techdirt Hit by Phony DMCA Takedown

Another SOPA-in-practice moment: Our friends at TechDirt have had an anti-SOPA/PIPA post taken down in the name of the Digital Millenium Copyright Act (DMCA).

Only problem is, there’s no infringing content to be found anywhere near the post. Not in the post itself, not in any of the comments. Nowhere. Which, since the post has now been surreptitiously disappeared from search engine results, is more than a little worrying, as it gives substance to the fear that anti-copyright measures can be and are used to suppress free speech. The Techdirt team was given no notification of the takedown or opportunity to remove the so-called infringing content, either. They stumbled on it a month later doing a regular Google search.

And given that the post that was taken down was a primer on how to fight SOPA/PIPA copyright legislation, it all leaves a pretty bad taste in the mouth.

Read the Techdirt post here. We’ll be watching what happens.

#censorship? Not So Much.
The well-publicized January 18th blackout was so effective for SOPA and PIPA opposition that legions of Twitter users refused to Tweet last Saturday, January 28th, organizing their go dark movement via #TwitterBlackout. The protest was over a change in Twitter’s censorship policy, and, perhaps still rabid over the (very real) threat to open internet, Twitter users flew their freedom of speech flags defiantly.  Given a few days to meditate on the issues at hand, though, it seems clear that the righteous indignation of these protesters may have been a little hasty.

Twitter will indeed be censoring tweets - on a country by country basis according to the laws of the country being tweeted in. So, if a country’s government outlaws certain content, offending tweets will be taken down - but only in that country. Olivier Basille, from Reporters Without Borders, drafted a letter urging Twitter to reconsider a policy that from his point of view, kowtows to localized censorship and could therefore potentially contravene international free speech standards.  Basille posits that the change will stifle online dissidents who have previously used Twitter to great effect to stay informed and organize protests, such as last year’s social media fuelled revolution in Egypt.

But there are plenty of arguments to suggest that this won’t be the case.  For starters, the new policy differs from their previous one in only one respect: until now, these tweets would have had to be blocked worldwide. This means that instead of completely censoring any content deemed illegal by any government, all content will be available everywhere, with limitations only in effect for the country with the legality issue. And for those worried that localized censorship will hinder activism, John Castone over at Mashable makes a good point when he says that activists are smart enough to tweet in code if need be.  Twitter explicitly says they can’t block a user unless there is “valid and applicable legal order”.

Furthermore, Twitter will be posting all its take downs on watchdog site ChillingEffects.org. It’s also worth noting that all sites have to censor content to stay within the bounds of the law (in order to avoid being shut down) — including eBay, Google, and Facebook. Most of them just don’t tweet about it.

On balance, it appears there will actually be less censorship than before - and more transparency when censorship does occur. As effective an activism tool as it has proven to be, even Twitter can’t operate outside of the bounds of the law. By complying with government regulations, despite any questions as to the morality of these laws, the platform can remain in countries where activism might be needed most.  
Censorship Around the World
While we’ve been fighting SOPA and PIPA, other countries around the world are also waging battles against the dire consequences of internet censorship.
 
The oppressive regime in Belarus set a new law into effect today which tightens the already strict regulation of internet use by making it illegal for Belarussians to visit foreign websites.  The Eastern European country established an extreme level of control over internet use last year when it issued Presidential Decree No. 60, under which ISPs are required to block access to certain types of content and specific URLs – which are so far not disclosed to the public.  A similar, US version of this legislation – the Communications Decency Act of 1996 -  sparked controversy in the mid-90’s and was eventually overturned for violating First Amendment rights.
 
The new law is ostensibly to regulate online commerce – that is, making sure only domestic domains are used to provide online services – and violating it will result in a misdemeanor with a fine not to exceed the equivalent of about $125.  However, the implications could be much more serious than a slap on the wrist and a small fine.  The law requires that internet cafes and individuals providing internet access to other parties be responsible for any illegal browsing or e-commerce, and failure to report illegal usage of foreign sites could result in the business being shut down.   This kind of excessive punishment essentially discourages public internet use.  The government also has authorization to change and add to the list of banned sites – a level of governmental control that civil rights groups are distressed by (Freedom House rates Belarus’ press freedom “not free” with “substantial political censorship”).

Meanwhile, Spain has passed anti-piracy legislation remarkably similar to the SOPA bill. Under the new Sinde law, a special commission will be formed to react to copyright infringement complaints made by rightsholders.  Slightly less draconian than SOPA, the websites will have ten days to remove the infringing material before being shut down. However, the bill has generated major opposition in Spain to what people see as a misleading law enacted for the benefit of Hollywood.

These battles mark crucial junctions for the future of open internet.  Just as the rejection of the Communications Decency Act was a pivotal moment in the creation of an unrestricted and dynamic internet landscape back in 1996, laws like Decree No. 60, Sinde, and SOPA/PIPA could set the tone for a more closed, stifled, and creatively impoverished world wide web.  
Internet Censorship in Malaysia
We’ve heard through third parties that there have been a number of inquiries from both the Malaysian government and in-country press expressing disapproval for our having included their nation in our ad on Wednesday. They object to being listed along with China and Iran as example governments who have been known to censor Internet traffic within their borders.
 
We included Malaysia in this list because it recently ordered various sites to be blocked for copyright reasons without meaningful due process for the affected sites — just as the current versions of SOPA and PIPA in the United States would propose to do.
 
The Malaysian government’s desire to stop large-scale, commercial piracy is an admirable goal, and one that we agree with, but site blocking is not the right way to do it — it censors legal content unnecessarily (like the legitimate artists who use sites Megaupload to distribute their works); it is ineffective; and it threatens the security and integrity of the Internet.
 
By putting Malaysia in between China and Iran in that sentence, we did not mean to imply that its level of censorship and repression of free expression is akin to theirs. That would be a false comparison. To our knowledge, Malaysia’s action in this particular instance of copyright is a break from their history of fostering ICT development.
 
It is our hope that Malaysia will take steps to ensure it has no place on this list.