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Intellectual Property Rights and Free Trade: First Question to Rebecca MacKinnon

September 13, 2012

Interview with Rebecca MacKinnon, Author of the book “Consent of the Networked: The worldwide Struggle for Internet Freedom” and Senior Fellow at the New America Foundation during Global Voices Summit 2012 in Kenya.

– First Question: Some of the main arguments to justify IPR are that IPR would increase innovation and creativity since Research and Development (R e D) industry sector would be willing to invest money on research and that creators are entitled to receive the rewards of their creation. Do you agree? How would you analyse that enforcement of IPR brings about ‘restriction’, or instead, ‘access’ of knowledge worldwide?

Rebecca MacKinnon: … (Beginning of interview part of data lost). If you get too restrictive on Copyright, again, you know, so, like, you crack down on Megaupload in an way, so there are all those collateral damages against innocent people, the way you handle penalties, like criminalizing… Do you criminalize uploading or commercial… Are you criminalizing everybody who download a pirate movie or you’re just criminalizing the people who are uploading it, and obviously making money out of fired movies. How are you devising penalties and it is a real trench towards criminalizing people and activities in a way it is completely not proportion to the harm it is done by a lot of people who are not motivated commercially anyway. So one issue is who are you going after and how you develop these incentives or disincentives, you know. There is this whole kind of issue on the industry, has the industry completed failed to adopt its business model to adapt to the realities of the Internet and so on. So, yes, the penalties and the enforcement, the rules and the constrains need to be consistent with people’s right to free expression. To the fact they are kids and they’re doing stuff and they don’t even realize it is illegal, or it is not that big deal. Are they going to put them in jail or kind of bankrupting them or disconnected them to the Internet just because someone in their family download (something).

So, there are a lot of issues related to proportionality, actual justice of the situation, collateral damage inflected on some parties. The way in which copyright law, regulations and treaties create opportunities for abuse by people who just want to stop certain other people from speaking in certain ways. They can use copyright as an excuse. In the US there are a couple of examples. One has to do faily recently with a blogger who reverse engineered and application that runs quite a lot of mobile phones in the united states, that was logging people’s personal information in a way that people were not aware. I have to remind myself of the name of the application. It was collecting people’s personal information and tracking and sending it back to the carriers in a way that was not transparent. The people didn’t realize it. He reverse engineered this, he wrote about it, and he linked to…There is a company that developed this application that were signed to mobile phone carriers and so on. He also included… I think he uploaded the PDF of the manual, linked to the companies website. It was all publically available information. This created a lot of negative publicity for the company. They sent him a DMCA down request, based on copyright infringement, because he had used their user manuals, as an exmple of what it does. You can I think very clearly argue that this is a serious case, that this is a case of public speech public debate about people’s privacy and how thier information is being logged. This is not about…he is not trying to re-sell this manual for commercil gain, but they went after him for copyright violation. Fortunately the EFF, I forget whether it was ESF or ACLU in this case….EFF sent a letter to the company saying you guys are just a bunch of bullies. They just completely dropped the whole thing. This kind of thing happens a lot with these takedown requests with people who don’t know that they can get the EFF to send a letter pro bono on their behalf to these bullies saying that you have no case. Screw off!

Another case a few years ago related to voting machines in the United States. Diebold is a company that makes voting machines. There were some internal company e-mails and memos discussing defecs in the voting machines, that leaked, that several people put on their websites. Diebold went to the ISPs with takedown requests, again based on copyright, and the ISPs took it down. You can argue they have as much right to publish this as wikileaks does. Wikileaks have had problems in the United States but nobody has ever brought a case against them in the United States. Nobody has been able to make a viable case that makes a credible argument that they don’t have first ammendment rights to exist. There have been other extra legal pressures but in this case it was blatant use of copyright law to takes down features in the public interest for people to know about what is happening about their votes, and how their votes might get…twisted. These are two cases where you have parties that want to cover up or stop sertain criticism. This is not what the copyright law is intended to protect, using copyright law in this way. I don’t have specific cases, but if you talk to Way Wan from Hong Kong she can talk to you a bit about cases in Hong kong and elsewhere in Asia where copyright law gets abused politically. There are also issues in some juristictions about the ability to make backup copies, cache-ing and so on, and whether that even ends up violating the copyright laws that are put in place. There are a lot of issues.
TB: How can we make sure what is public remains public and what is private………..?
RM: First of all I think copyright law needs to be subjected to rigorous free speech risk analysis before being enacted. You really need to do a human rights risk analysis, a free speech a civil liberties risk analysis. You need to really veto it, before it is enacted, to ensure you don’t have unintended consequences. This is why it is really important that copyright law, treaties and so on be formulated with the participation of all stakeholders.

RM: In the United States what happens, and what happened with Sopa and Pipa? It was that the copyright lobby wrote it, drafted the law and handed it to congressional staff, who then had their bossed sign off on it and this is what ended up circulating. The precursor to Pipa was the Senate before Sopa came out, something called Quaka which is the precursor to Pipa. Quaka came before Sopa and the protection to IP came after that. I actually had a conversation with some congressional staff, and some other groups that went in to talk to these staff about Quaka. We said this is very bad for internet freedom. We were actually talking to a staff member of a senator who is very big on Internet freedom. Very supportive of the idea of Internet freedom. We asked did you guys start working on copyright consult with the other staff that work on Internet freedom. And they said no it did not occur to us. Because we see this as a jobs bill, it didn’t occur to us what the Internet freedom implications were. The way these laws get made, certain interest groups are driving them, there is just not enough consultation with consumer groups, with public interest groups that work on civil liberties and technology issues, that work on media freedom issues. It is like they are trying to sneak it by. With treaties it is even worse because with ACTA, it was the copyright lobby teling the administration what they wanted in this treaty. It got modified over time, basically because enough of it got leaked. The Europeans and I think the Australians leaked various versions. There was enough public outcry that it ended up getting modified. Still of course people don’t like it anyway. Again it is one set of stakeholders who have a lot of influence, with legislators, with trade negotiations, beurocracy, that they get these things forward. Up until recently I think the public for the most part hasn’t been paying too much attention. What is interesting now is that it is coming more forward on the public radar screens so hopefully there will be more pressure, both the beurocracies and the law makers will realise that if they dont do broader consultation they will have wasted a lot of time, and come out looking really bad.

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