Repression: Documents have leaked from the European Commission that gives a glimpse of the planned crackdown on online freedoms of speech post-ACTA. We’re seeing entirely new mechanisms and means of squelching dissent, mechanisms and means against pretty much anything online.

A European Commissioner responsible for the governing of 500 million people who refers to his constituents as “consumers” and describes complying at legal gunpoint as “cooperation” is just a small taste of the newspeak in the documents we find here, documents that are intended for the post-ACTA timeframe. Oh, and he doesn’t rule out shutting down your income streams either. It is not hard to see where this particular mindset comes from – and no, it is certainly not Locke’s ideas of a constitutional government or anything similarly responsible. It’s filled to the brim with terms we would otherwise only see in reports from the copyright industry lobby.

The first document is named “Proposal for a Revision of the Directive of Intellectual Property [sic] Rights”, and the second document is named “Notice and Takedown procedures”, refering to eroding the common carrier status of the ISPs (the European mere conduit).

Repression is good, so more repression is better, says the European Commissar... eh, Commissioner.

Let’s take a look at what these documents say in more detail, and translate it from the dangerously newspeak legalese. Here’s what the first document outlines as policy roadmap in the post-ACTA timeframe:

The policy options being considered include: (a) rendering the rules on obtaining evidence from intermediaries more detailed thus making possible the identification of those infringing intellectual property rights on a commercial scale and of the financial circuits involved.

Yeah, this is a lock-in of what was voluntary in IPRED1: giving the copyright monopoly cartels the subscriber identities of IP addresses accused of infringing the monopolies, something the police can’t even legally get in most European countries (including Sweden).

Yes, this specifically means that the copyright industries get more far-reaching powers than the Police.

But do note the ACTA/TRIPS keyword “commercial scale” being used. Also, note that “financial circuits” are being mixed into the things that must be identified by an ISP. This can refer to any income stream.

This would be particularly important to fight IPR infringement in the on-line environment.

Yeah, the Net is a problem. Again. Everything was better the way it used to be.

This would also require a clearer definition of “commercial scale”, so as to make sure that professional counterfeiters rather than individual consumers are targeted;

Here, we note three things:

First, this is fundamentally good in substance. Today, uploading of a single music track by a random teenager is deliberately seen as targetable and targeted (refer to the US Cables on the matter of IPRED1, for instance).

Second, the ACTA keyword “commercial scale” is used. However, this might just as well refer to the old TRIPS definition of “commercial scale”. It is impossible to know if ACTA redefines “commercial scale” in any meaningful way, as the negotiation protocols are still secret.

Third, having said that, the overall thought pattern here is thoroughly alarming. The European Commissioner refers to his constitutents using the word consumers. That is not a mindset I want to see in any policymaking.

(b) fast-track lowcost civil procedures (including as regards the granting of injunctions, the award of damages, the use of corrective measures etc) for straightforward infringements of intellectual property rights

Whoah, whoah. A whole lot of bad things here.

Fast-track, low-cost civil procedures: Civil procedures means “lawsuits against ordinary people”. Fast-track means “without delays caused by due process of law and exercising of rights”. Low-cost means “preferably in bulk”.

Including…: Granting of injunctions means “cutting of net access before a trial takes place, one way or the other”. Award of damages, well, we know about that one all too well. Use of corrective measures can be many things, but specifically includes destroying goods used for infringement.

and (c) the possibility to act against webpages holding content that violates intellectual property rights (see in this regard the Roadmap regarding the initiative on procedures for notifying and acting on illegal online content).

Ah, so we’re talking about censoring entire websites as well. The roadmap referred is appropriately named “Notice and Takedown”.

These policy options would require the amendment of the existing directive.

Ah, so this is indeed a resurrection of the horrible but previously killed IPRED2 – only much worse than the original IPRED2.

Complementary measures in softlaw instruments designed at disrupting the business/value chain of counterfeiters and at increasing the cooperation between intellectual property rights holders and intermediaries (e.g. internet service providers, shippers and couriers, payment-service providers etc) could not be excluded

Whoah! Whoah! Hold your horses!

First, the newspeak here causes my bullshit bingo cards to spontaneously explode. To begin with, let’s highlight the word cooperation. In normal speak, cooperation is an action of mutual consent and mutual gain. Here, there is no such thing as mutual consent or reciprocity; the Commissar^H^Hioner tries to force “cooperation” where one part gains and the other loses massively at legal gunpoint – specifically, internet service providers are ordered to bend over for the copyright industry. All in the spirit of, eh, “cooperation”.

In other words, ISPs are going to be forced to police the net in some fashion, going against its users and customers – all spun in the language of the positive resulting worldview of the copyright monopoly cartel.

But there’s more. Did you notice “payment service providers”? This is the first time I’ve seen credit card companies and similar being threatened with “cooperation” with the copyright industry in a European context. If you’re thinking of SOPA, you’re drawing the right parallels here.

Other measures aiming at promoting the legal offer could also be envisaged.

“Other measures” have previously included sending political propaganda to schools promoting the copyright monopoly. It could be pretty much anything, it leaves the door open.

All in all, this is a completely horrible document that shows how the European Commission prepares to legislate post-ACTA. The proposals above have already entered the legislative process and will result in a real legislative proposal. We need to stay more vigilant than ever.

The second document, the one about Notice and Takedown procedures, doesn’t contain much of real substance (yet). However, it should be noted that it specifically mentions caching. Just like TPP, it may therefore try to regulate technical caching in the infrastructure with regards to the copyright monopoly, which would be… quite insane, frankly. But we don’t know yet; it just mentions caching in passing, which is cause enough for alarm.

See also La Quadrature du Net‘s press release on who’s who in this game.

Infopolicy: I live in Stockholm, Sweden. A hundred years ago, one of the largest employers in the city was a company named Stockholm Ice. Their business was as straightforward as it was necessary: help keep perishable food edible for longer by distributing cold in a portable format.

They would cut up large blocks of ice from the frozen lakes in the winter, store them on sawdust in huge barns, then cut the blocks into smaller chunks and sell them in the streets. People would buy the ice and keep it with food in special cupboards, so the food would be in cold storage.

(This is why some senior citizens still refer to refrigerators as “ice boxes“.)

When households in Stockholm were electrified in the first half of the last century, these distributors of cold were made obsolete. After all, what they distributed was the ability to keep food cold, and everybody could suddenly do that themselves.

This was a fairly rapid process in the cities. With the availability of the refrigerator from circa 1920, most households had their own refrigerator by the end of the 1930s. One of the city’s largest employers – distributors of cold – had been made totally obsolete by technical development.

There were many personal tragedies in this era as the icemen lost their breadwinning capacity and needed to retrain to get new jobs in a completely new field. The iceman profession had often been tough to begin with, and seeing your industry disintegrate in real-time didn’t make it any easier.

But here are a few things that didn’t happen as the ice distribution industry became obsolete:

• No refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains.
• No laws were proposed that would make electricity companies liable in court if the electricity they provided was used in a way that destroyed icemen’s jobs.
• Nobody demanded a monthly refrigerator fee from refrigerator owners that would go to the Icemen’s Union.
• No lavishly expensive expert panels were held in total consensus about how necessary icemen were for the entire economy.

Rather, the distribution monopoly became obsolete, was ignored, and the economy as a whole benefited by the resulting decentralization.

We’re now seeing a repeat of this scenario, but where the distribution industry – the copyright industry – has the audacity to stand up and demand special laws and say that the economy will collapse without their unnecessary services. But we learn from history, every time, that it is good when an industry becomes obsolete. That means we have learned something important – to do things in a more efficient way. New skills and trades always appear in its wake.

The copyright industry tells us, again and again and again, that if they can’t have their obsolete distribution monopoly enshrined into law with ever-increasing penalties for ignoring it, that no culture will be produced at all. As we have seen, equally time and again, this is hogwash.

What might be true is that the copyright industry can’t produce music to the tune of one million US dollars per track. But you can’t motivate monopoly legislation based on your costs, when others are doing the same thing for much less – practically zero. There has never been as much music available as now, just because all of us love to create. It’s not something we do because of money, it’s because of who we are. We have always created, ever since we learned to put red paint on the inside of cave walls.

What about movies, then? Hundred-million productions? There are examples of garage-produced movies (and one even has beat Casablanca to become the most-seen movie of all time in its native country). But it may appear true that the argument is somewhat stronger with the blockbuster-type cinema productions.

A recent article of mine dispels this, too; blockbusters can make double  their investment back before a digital copy can even exist in the wild, so it will not be an issue. Investments will  happen.

But I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.

I spend quite a bit of time with teenagers through my work with the Pirate Party. One thing that strikes me is that they don’t watch movies, at least nowhere near the quantity I did when I was a teenager. Just like I threw out my TV set 15 years ago, maybe this is just the natural progression of culture. Nobody would be surprised if we moved from monologue-style culture to dialogue- and conversation-type culture at this point in history. Immersive gaming stands out as an excellent candidate to replace movies.

After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.

Everywhere I look, I see that the copyright monopolies need to be cut down to allow society to move on from today’s stranglehold on culture and knowledge. Teenagers today typically don’t even see the problem – they take sharing in the connected world so totally for granted, that they discard any signals to the contrary as “old-world nonsense”.

And they certainly don’t ask for a refrigerator fee.

Activism: Just look at this map. I’ve never seen anything like it in terms of people all across Europe demanding their freedom of speech and being angry against backroom corporativist deals that steals their most basic civil liberties.

Today, Sweden rallies for freedom of speech, a free net, and firmly against ACTA. Late yesterday, it was announced that Poland is suspending its ratification of ACTA indefinitely. The Slovenian ambassador signing the document (which has no legal effect whatsoever) has publicly apologized and called people to rally in Ljubljana, Slovenia for their rights.

This is not Hollywood versus Silicon Valley, as oldmedia likes to frame it. This is Hollywood versus The People. For decades, they have trained us to think in black and white, in good versus evil fighting for domination of the free world. And now, they’ve gone and put themselves in the role of evil villain.

The copyright cartel thought they were battling Google.

They’re not.

They’re waging war against the people, with the help of the politicians.

And we’re not standing for it. We can’t change the copyright cartel, but we can send a clear message to the politicians that 250 million Europeans sharing and preserving contemporary culture is not a problem. It is a power base of 250 million voters  that will kick you out of office  if you dare so much as touch the net.

And there are visible cracks in the façade, especially seeing Poland falter and the copyright cartels visibly shaken from the SOPA defeat in the US, with the politicians having started to pay attention to what the Internet wants. We can win this.

Today, Sweden rallies. List of rallies below (via Christian Engström, Member of European Parliament):

• Stockholm: Sergels Torg, 12 noon. [Facebook]
• Göteborg: Götaplatsen, 12 noon. [Facebook]
• Malmö: Stortorget, at the Karl X Gustav statue, 12 noon. [Facebook]
• Helsingborg: at the Magnus Stenbock statue, 13:00. [Facebook]
• Umeå : Apberget, 12 noon. [Facebook]
• Kalmar: Giraffens Köpcentrum, 12 noon. [Facebook]
• Sundsvall: Torget, 12 noon. [Facebook]
• Karlstad: Stora Torget, 12 noon. [Facebook]
• Borlänge: Jussi Björlings torg, 12 noon. [Facebook]

(The observant will note that less than half of these rallies are marked on the already-impressive map of European rallies. Makes me wonder what the map would look like if all rallies were included.)

Most of Europe will rally next Saturday, on February 11. That’s going to be something, too. Let’s give Europe the best of precursor to those rallies from Sweden that they could possibly get!

As of early morning on February 4, 11,000 people have committed to coming to the Stockholm rally, with another 3,500 maybes. Those are numbers that would overfill the Plattan plaza by a wide margin. I’ll be at the rally in Stockholm, Sweden, and will be taking plenty of imagery and will follow up here.

The Outcome

UPDATE AT 1500: Seeing that this story is #3 on Reddit Front Page at the moment (server is holding… holding…), I want to follow up with the outcome right here:

Rally at the Sergels Torg plaza in Stockholm, Sweden. Anna Troberg, leader of the Swedish Pirate Party, speaking (at left) and maybe 1/3 of the crowd.

The turnout was like nothing I’ve seen for a February rally in Sweden. In -20°C, there were well over a thousand people protesting corporate rights over their freedom of speech; normally, you’re lucky getting 50.

Also, there was a very clear recurring theme among the Members of European Parliament speaking, MEPs from three different parties. They all told the story of how software patents had been defeated in Europe, followed by the crucial “amendment 138″ in the Telecoms Package, which aimed to shut people off en masse from the Net. Well, thanks to diligent activists and people on the inside, we managed to get as strong safeguards in place as possible against shutting people off. But the monopoly lobbyists never quit. Now they’re at it again, this time saying that if authorities can’t shut people off en masse due to that “amendment 138″, maybe they can get private corporations – the ISPs – to do it instead through third-party liability forcing certain terms of service and wiretapping. Hence, ACTA.

Fortunately, and this was a consistent message from all Members of European Parliament, we have the blueprint for defeating ACTA. We need to repeat what we did with the software patents and with the Telecoms Package. It takes hard work, it takes tons of activism, but we know exactly what to do and how to do it, and most importantly: we know that we can win.

As the rally concluded, everybody was determined to win this fight, having heard the clear message that it takes work but is perfectly doable.

UPDATE 2: There are more photos from Christian Engström, Member of European Parliament here. Free for any use (CC0 / Public Domain). Here’s one of his photos, showing the protester crowd:

Freedom of Speech – Andrew Norton: The US as an ‘idea’ is dying. The country that used to pride itself on free speech, democracy, and being ‘the last remaining superpower’, is now apparently drunk on its own power. With unchecked powers expanding at every turn, and terror laden missives booming out from government departments, the country seems to be taking a counterbalancing position from those who embraced freedom in the Arab Spring of last year, and is actively cracking down on freedoms previously embraced as a national advert.

The US likes to be known as the land of freedom and integrity; indeed the first verse of the US National Anthem – the Star Spangled Banner – ends:

O! say does that star-spangled banner yet wave,
O’er the land of the free and the home of the brave?

Over the last ten years, the answer has turned into a resounding NO!

Over the last ten years there have been many laws passed ostensibly about ‘fighting terrorism’, but which boil down to naked fear. A fear from the populace that some nebulous ‘terrorist attack’ will kill them all (despite the fact you’re more than 70x more likely to be just plain ‘murdered’ and 150x more likely to die on America’s increasingly poor quality roads than be present at a terrorist attack) which has supported a government that is increasingly spineless and cowardly. Nowhere is that more apparent than in the many instances over the last few months involving the uses of the police, when it comes to the First Amendment.

There have been many well documented clashes between police and the various ‘Occupy’ camps around the country in the last few months. Police officers have on occasion responded with excessive violence and weapons that did not fit the situation. In those instances, video recordings have made it clear what has happened, and often contradicted police reports and claims. Yet, as was pointed out a few months ago, there’s usually very little in the way of repercussions when police officers break the law.

Take for instance Joe Arpaio. The self-described ‘toughest sheriff in America’ is no stranger to controversy. There have been a number of wrongful death cases which his department has lost, his central jail lost a lawsuit about unconstitutional conditions in 2008, and the verdict was reaffirmed in 2010 when he still hadn’t improved them. He was feeding inmates bad food (commonly known as ‘poisoning’) and was broadcasting video footage of in-processing after arrests to the web, prejudicing trials (otherwise known as perverting the course of justice) and because of general misconduct, his whole department had their ability to enforce Federal Immigration law stripped by the Department of Homeland Security (and I remind you, that’s the same department that has no problems with sexually abusing 6yo’s in the name of ‘security’, so you KNOW it’s bad) which was why Arizona passed SB 1070 – the ‘papers please’ law. He’s also under investigation for witness, voter and candidate intimidation, harassment of newspapers, and for ignoring serious sexual assault cases. So has he been punished in any way? No, of course not. As Sheriff, he is almost untouchable.

It seems that both police officers and politicians have an allergic reaction to video cameras being pointed at them by the public. A search on YouTube will return LOTS of videos of police officers reacting ‘badly’ to being videotaped. Often the argument put forward by the police is that people are interfering in their work by videoing them. In other states, with two-party consent for audio-recording where there’s an expectation of privacy, police officers going about their duty have arrested people for wiretapping, a felony which often carries 5-10 year prison terms just so you’re aware, recording video is ok, recording audio is the no-no. Generally when these cases are made public, some prosecutors back down, but some stick at it. Almost inevitably the courts decide that no law was broken, because there was no expectation of privacy at the time of filming.

Compounding this is that most police cars in the US have dash-cams recording both audio and video, even in those states. So while the police officer is free to record audio and video at all times, a person involved in an encounter with that same police officer can’t record their own copy, because the police officer has some expectation of privacy? It’s an amazing double-standard. (The pinnacle of such double-standards goes to the Claremore Police Department in Oklahoma, who do not consider the dash-cam recordings to be public records under the state’s Open Records Act, and amazingly, a court agreed. The Department of Public Safety, aka the State Police force, also lobbied successfully in 2005 that the state legislature exempt state patrol dash cams from that legislation.)

Thankfully MOST courts are standing behind citizens and saying clearly that recording police officers in the course of their duties is NOT wiretapping, or a felony, but is in fact a protected 1st Amendment Activity. Yet that doesn’t always stop the police. In Pennsylvania, despite rulings that it’s legal going back to 1989, police there will sometimes arrest for ‘wiretapping’, with documented cases as recently as 2007, and still no adequate recourse for the victims of officers acting outside the law.

The occupy movement has also brought another spotlight onto the First Amendment. The ability to petition the government and protest is the less well known side of it, but it’s there. However, the ability to do so has been severely curtailed in recent years, from the ‘free speech zones’ created during the Bush era (and later copied by the likes of China) to the storm-trooper raids on the Occupy camps. The arrests and intimidations of the police against media attempting to cover the camps, and the police actions against them are further attacks on the first amendment.

In fact, the US has dropped a significant number of places down the current Reporters Without Borders Press Freedom Index, from 20^th to 47^th, because of this. NYPD’s Deputy Inspector Bologna, and UC Davis Police’s Lt. John Pike are now symbols on the net of excessive violence. And their punishment? Bologna has been reassigned to Staten Island, and Pike has been on ‘Administrative leave’ (with pay, which was $110,000/year in 2010).

Oakland, which also made a splash with video of a young ex-Marine getting shot in the head and then pelted with flash-bangs is already in trouble. They’ve been under court orders to improve their behavior for almost ten years now (after a gang of police officers called the Rough Riders were planting evidence, using excessive violence and falsifying police reports) and have been given a March ultimatum, or else the city will have control of its police force taken from it. It’s a step that should have been taken 5 years ago, when Oakland PD failed the original order, yet unlike any normal person that had failed a court order, they were not disciplined, but let slide for another 5 years.

Politicians are also getting in on the act. One of the more unusual stories this week was the arrest of a documentarian from a US Congress committee hearing. The hearing, on fracking, was going to be recorded by Josh Fox, (who has already produced one documentary on the topic, the Oscar Nominated Gasland) as well as credentialed ABC news reporters. The Republican chair of the House Subcommittee on Energy and Environment, Andy Harris (R-Md.), directed Capitol Police to arrest him for ‘unlawful entry’. The issue there was not so much one of ‘not wanting to be filmed’, as the cable-funded C-SPAN network was filming the hearing, but an attempt to deny Fox the ability to have his own high-quality shots for a follow-up documentary.

As far as violating the First Amendment, there can’t be a clearer example. Worse, the oath of office Rep Harris took on assuming office is as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

In undertaking his actions on February 1^st, Rep. Harris violated his oath of office, by actively acting against the First Amendment. So what’s the consequence of that? The same consequences as when Joe Arparo violated the 4^th, 5^th, 6^th, and 8^th amendments, as when Pike and Bologna attacked protesters, using chemical weapons on people exercising their 1^st Amendment rights. Nothing.

The serious issue is, there’s no accountability – no respect for the law – by those whose job is to write the law or enforce it. This goes for former members of Congress who have turned into lobbyists as well, demonstrated by Chris Dodd’s blatant admission of bribery when SOPA lost its support.

One North Carolina State Rep, Larry G. Pittman, made news last week for suggesting public hanging should be brought back to increase the deterrence of murder (and he included abortionists there, making him part of the ironically named ‘pro-life movement, better characterised as anti-choice), and that appeals should be filed all at once. Given the often questionable nature of US Capital convictions, it’s rather disturbing. Especially as violations of what is deemed the country’s HIGHEST law, the Constitution, are rarely punished at all. Funnily enough, there are laws specifically to deal with it.

18 USC § 241
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or…
… They shall be fined under this title or imprisoned not more than ten years, or both

and

18 USC § 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;

Perhaps hanging, with only one appeal, would deter people from violating the country’s highest tenets, not that it will happen. Those that wield the power rarely feel the need to submit to the rules they lay on everyone else. And that’s the REAL problem. Until that problem is fixed, the Constitution is just a piece of paper.

Repression: In an inadvertent slip, the European Commission reveals that ACTA will indeed bring censorship to the Internet. As usual, they say this in the calmest soothing tone of voice.

The European Commission, which is sort of the Administration in the EU, published a rebuttal to “rumors on the net about ACTA” and tries to set the record straight. Note the two first points: “ACTA ensures people everywhere can continue to share non-pirated material and information on the web. ACTA does not restrict freedom of the internet. ACTA will not censor or shut down websites.”

There is one word on their web page that stands out and reveals so much more about the nature of ACTA:

“Non-pirated”. Everybody will be free to share “non-pirated” material. All of a sudden, there is a qualifier  to what information we are able to share on the net; this qualifier has never been there before. We have always been able to send whatever we like, and possibly answer for it afterwards.

This is very, very serious. For what it says here is that the net will only be usable for government-approved communications; the government takes itself the right to determine what the net is usable for and what it isn’t usable for. To 250 million Europeans who share culture and don’t see anything wrong with defying an immoral monopoly, this is an arrogant slap in the face, but it’s more  than that and worse  than that. Any qualifier  to what can be communicated — “non-pirated” in this case — always means “government-approved”, that only governmentally approved communications may take place.

And this is serious for the deepest of democratic reasons: Any communications technology must be compatible with dissent.

At the same time as the government takes itself the right to determine what can be communicated and what cannot, a communications technology stops being compatible with dissent.

Now, the prudent question here would be if it isn’t true that some information has never been free to share, and that you can get prosecuted for doing so? This would be a very relevant observation.

There are many things you’re not allowed to share in terms of information. Military secrets, medical journals, libel/slander, ongoing criminal investigations, just to name a few. All of these have always been possible to share on the net, but if caught doing so, you can be hauled off to court for it. After the fact.  The postal service has always still been usable  to share this information.

And yet, the one single thing listed as impossible to share over the net is violations of the copyright monopoly. If the Commission really was referring to things that you were legally  unable to share, you’d expect military secrets to come first, followed by governmental hush-hushy documents. But no.

This is an obvious slip trying to calm people into saying that everything will be as before, but the forced factual correctness of it reveals that we are indeed talking about censorship.

Another objection here would be that the language requiring ISPs to police the net was taken out of ACTA. That is… not quite so. The specific phrase requiring that was taken out in one revision, yes. But in the same revision, the same thing was re-inserted in another place. Specifically, this text was inserted:

Desiring to promote cooperation between service providers and rights holders to address relevant infringements in the digital environment;

It looks fairly innocent, like most legal text where you don’t have the full context. To fully appreciate the impact of this text, one needs to know the background leading up to it and the negotiations. Hax writes a bit about it here (in Swedish). The gist of it is that it’s enforcement of extrajudicial censorship, plain and simple, through threats of third-party liability.

UPDATE – seeing that this story is climbing on Reddit, and now hitting frontpage, I’m inserting the fuller explanation from the summary of today’s anti-ACTA rallies:

…there was a very clear recurring theme among the Members of European Parliament speaking, MEPs from three different parties. They all told the story of how software patents had been defeated in Europe, followed by the crucial “amendment 138″ in the Telecoms Package, which aimed to shut people off en masse from the Net. Well, thanks to diligent activists and people on the inside, we managed to get as strong safeguards in place as possible against shutting people off. But the monopoly lobbyists never quit. Now they’re at it again, this time saying that if authorities can’t shut people off en masse due to that “amendment 138″, maybe they can get private corporations – the ISPs – to do it instead through third-party liability forcing certain terms of service and wiretapping, shutting people off outside due process of law at the copyright industry’s fingerpointing as well as trying for live, realtime censorship. Hence, ACTA.

(original article continues)

ACTA will bring censorship. Extrajudicial censorship. At the request of a bloody entertainment  industry. That is shameful. 

Tomorrow, Saturday February 4, large-scale rallies against ACTA take place. I will be at the rally in Stockholm, Sweden at Plattan at noon.

Corruption: In what can only be described as an all-out declaration of war with the Internet, the Swedish Supreme Court has denied the final hearing in the trial of the original The Pirate Bay operators. This means that the Appeals Court verdict stands, unless appealed to the European Court of Justice.

This case and trial was political from day one. The astounding arrogance displayed by the establishment showed that it was nothing but theater; there was never a shred of justice involved, only a hellbent desire from the entire establishment to show who’s boss once and for all.

Let’s recap:

In a country where police is constantly in short supply and cases with the derogatory label everyday violence are routinely dropped, fifty (!) police raided a server hall and took all (!) servers — over 150 of them. Many entrepreneurs went out of business. The copyright monopoly lobby gleefully commented in media with “you have to be aware who your neighbor in the server hall is, or face the consequences” in the best and worst of mafia style.

In the raid, over a dozen violations of the constitution were committed; among others, the legal counsel of The Pirate Bay gets his DNA permanently registered with the State, and a constitutionally protected publisher is shut down (though restored a few days later).

The investigation was led by an openly bribed policeman, Jim Keyzer, who was bribed with a job with Warner Brothers, one of the plaintiffs (!) for six months and then went back to the police force.

In the District Court, the corrupt judge Tomas Norström was in the same interest group as the plaintiffs – the Swedish Association For Copyright – which argues politically against the defendants. That means he was meeting the copyright monopoly lobby regularly and on a personal basis, and sharing a personal interest in a guilty verdict. He was completely nonplussed as to the later accusations of bias and corruption, and was later cleared of such charges of bias, by a person in the Appeals Court who was also a member of the same interest group. Therefore, the District Court verdict was not declared a mistrial.

In the middle of everything, the unrelated Carl Lundström is dragged in as a defendant, a person who has had absolutely nothing to do with The Pirate Bay but who happens to know the people involved and also own a lot of money. The verdict determines damages to pretty much all of Lundström’s fortune, to be paid “in solidarity” – a legal term meaning that the person with the money pays, and the defendants get to sort it out between themselves later. This was a design just to rob one person of their fortune and scare everybody away from even talking to The Pirate Bay. (Of course, it didn’t work, but it shows the arrogance.)

The negotiations in the Appeals Court are placed just days after the 2010 General Elections, instead of before as expected, because that’s “the only days that the plaintiffs were able to attend the hearings”. If placed before the elections, The Pirate Bay trial had been an election issue and received tons of attention. The Appeals Court defends this decision as “standard procedure”. Nobody is surprised.

On the negotiations in the Appeals Court, a sign in the doorway showing today’s trials showed just how misplaced the entire theater was. The screen listed trials for aggravated assault, murder, rape, armed robbery… and in the middle of it all, there was an “aiding and abetting copyright violations”.

The judge in the Appeals Court had also been a member of the Swedish Association for Copyright, but “wasn’t any longer”. The damages were raised substantially in the Appeals Court and the prison sentences lowered somewhat, but nobody really cared about the Appeals Court negotiations, as the coming Supreme Court negotiations would be where the final and interesting battle would stand.

And so today, we are notified that the final battle has been cancelled, as the case isn’t interesting enough, which is such an outright display of arrogance from the establishment that it’s mind-boggling. They didn’t even care to consult the European Court of Justice on the immunity of a middleman. So while everybody was looking the other way, this is essentially a “haha, did you really think we’d allow this?”.

This complete arrogance from the establishment, essentially saying “we don’t give a fuck about justice or freedom of speech, we can do whatever we want and get away with it, and we like to show off that ability”, is nothing less than a declaration of war with the entire internet.

Today, the monopolist lobby is showing off in Swedish oldmedia, while also threatening Internet Service Providers that don’t bend to their will. This is not just unacceptable; this is an all-out declaration of war.

At this point, we need to bring everything decentralized. DNS, networking (wi-fi meshes), file storage, everything.

See also the TPB blog and TorrentFreak on the matter.

Yes, I’m pissed.

(As a side note, the Swedish Supreme Court is leaking like a sieve. I was fairly certain this would be coming, days in advance. Yet another sign of arrogance: they didn’t even care to guard the normal secrets of process of law.)

UPDATE: Also read BrokeP’s take on this: Maintain. Hardline. Kopimi.

Repression – Thijs Markus: A recent article by Rick Falkvinge posed the question: If ACTA doesn’t change anything, why are they pushing for its passage as if their life depended on it? Well, the answer is rather hilarious: it does, actually.

While this question is obviously a rhetorical device, its answer is none the less relevant to the discussion. And here, I would like to propose an answer to said question. You see, to understand the Anti-Counterfeiting Trade Agreement, we need to go a little further back in time than the 00′s. We need to go back somewhere to the late 80′s, early 90′s.

During this time, a new fashion came over the industries of the day: as pioneered by Nike, large corporations decided to put all their factories overseas, the company would be only its brand. Anything that could be done cheaper at the gunpoint of this or that dictatorship would henceforth be done there. This means pretty much all the dumb labor is done overseas. Thus the trademark, as intended, as a means of identifying who produced what, pretty much ended there.

Why? Well, to take Nike for example, they figured that if they could produce and bring a shoe to a store for $5, and sell it for $150, they get a whooping $145 profit margin. This profit margin could then be spent on marketing, which is why you know the Nike logo with your eyes closed. The whole idea of the operation was exactly that: by making the shoe as cheaply as possible, the largest possible margin could be spent on marketing, thus ensuring the largest possible market share.

So here you have a company that takes in $5 shoes from third world countries, brands them, and sells them for $150. That’s pretty damn clever and profitable. However, there is one very minor loophole they overlooked in this manoeuvre. I could train a chimpanzee to take a logo and apply it on a product, and slightly more industrious primates all over the planet are doing as much. And now, some 20 years later, they begin to realize that in fact they have nothing to sell, their sole asset is the legal right to the logo they spent billions, even trillions to idolize.

Realizing that their scam is running thin, hanging only by the thread that people in fact respect their right to brand something, they swung into action the lobby apparatus to tell the rest of the world how very naughty they are when they don’t respect said right. And the result, amongst a long list of treaties-and-such, is ACTA.

Civil Liberties: Every time changes to the copyright monopoly are considered, the profits of major entertainment industry companies are at the center of the discussion. Even the people who fiercely defend the right to share information freely are going to extreme lengths to argue that this will not hurt the revenues of the copyright industry. But why are these profits even relevant? Why should we care about the profits of these companies?

It is almost apologetic. Apologetic for defending the civil rights that our ancestors fought, bled and died to give us, their children and grandchildren.

Thinking about what hurts and doesn’t hurt sales misses the point entirely. A corporation’s profits must never be at the center of policymaking, much less the center of determining what fundamental civil liberties we have as free citizens.

You remember Blackwater Security? The wet-jobs security firm that the US military hires for jobs abroad, jobs that violate the military’s own regulations to the moon and back?

When Blackwater Security was playing Grand Theft Auto among civilians in Iraq in retaliation for the 9/11 attacks, with which Iraq had nothing to do, how would you react if they had issued the following statement?

“Our profits are being hampered by the civilians’ rights. It is not fair. In all fairness, we demand that torture should be allowed preemptively to find suspects or people that we find interesting, or because it can boost our profit. Also, we demand the right to detain civilians at will and indefinitely, because we could charge Uncle Sam for that too, boosting our profits even further.”

How would you react to that?

Let’s take another scenario from Blackwater in Iraq:

“Our profits are being hampered by the rights of the people. It is not fair. Our profits are falling. In all fairness, we demand the introduction of wanton censorship, allowing us to discover and prevent people from talking about subjects we don’t like. Also, we demand to hold messengers responsible to some amount of punishment we determine if they carry sealed letters containing something we don’t like. That way, our profits could perhaps be restored to their former glory. After all, it’s only fair.”

Would this demand from Blackwater Security in Iraq perhaps seem reasonable? They’re asking for the dismantlement of rights on the same level as the right to not be tortured, not to be detained without due cause, and similar rights.

Well, this is exactly what the copyright industry is demanding. Exactly this.

The rational emotional reaction to this is an immediate desire to personally kick the living shit out of these pretentious bastards. After proper impulse control has been applied to this desire, the proper official poker-faced response – if any – is that the world owes them nothing, preferably coupled with sharp reductions in existing monopoly privileges.

If somebody had written a dystopic novel in the 1980s illustrating how some subjects had been forbidden, and if you would speak about them on the phone, a voice would pop in and say, “You have mentioned a forbidden subject. This has been noted. Please refrain from discussing forbidden subjects.” – if somebody had written this, people would have dismissed it out of hand as being too dystopic, too unrealistic. This could never possibly happen, people would have said, shaking their heads.

Try posting a link to a torrent on The Pirate Bay on your wall on Facebook and see what happens. People in the 1980s would have been horrified, people on both sides of the Iron Curtain. All in the name of protecting profits for a cartelized industry with monopoly benefits.

The job of any entrepreneur is to construct a use case and a business case that allow them to make money, given the current constraints of society and technology. They do not get to dismantle civil liberties, even if they can’t make money otherwise. That goes for Blackwater Security as well as the copyright industry as well as every other entrepreneur on the planet.

When our parents sent a letter in the mail, nobody was allowed to open it to check if it contained a copied poem, which would infringe on the copyright monopoly. When our parents sent a letter in the mail, they and they alone determined if they identified themselves as sender on the outside of the envelope, inside the envelope, or not at all. When our parents sent a letter in the mail, the mailman was never held responsible for the contents of that letter, regardless of if the contents infringed a particular copyright monopoly or were even downright illegal.

It is entirely reasonable to demand sternly that our children have the same rights as our parents and grandparents had. A particular corporation’s profitability does not factor into it.

Corruption: The ACTA awareness and debate has finally heated up. But in such a huge, convoluted and deliberately complex document, how can you determine for yourself whether it’s good or bad? It turns out that there’s a very straightforward way to tell.

The easiest way to determine the nature of ACTA comes not from the document itself, but from the behavior of the people advocating it.

Everybody involved in pushing and rushing through this agreement have insisted that it will mean no changes at all, won’t require any changes to law (or possibly minimal ones to trademark law, as in Sweden), and overall, insist that it’s no big deal.

At the same time, these players are throwing all their weight behind its passage. The key question that results stands out like a sore thumb:

If ACTA doesn’t change anything, why are they pushing for its passage as if their life depended on it?

And that contradiction, in itself, is enough to de-mask the entire ACTA and what it stands for. It was negotiated in secret by the copyright industry and other monopolists. Even now, as lawmakers come to a vote, they are not allowed to understand what the document says – for it defines many new terms, that are only understandable in terms of the negotiation protocols. But those are secret.

If the copyright industry is pushing for its life for something to pass, while pretending it’s not a change at all, and preventing lawmakers from understanding the concepts defined, what do you think it contains?

This is the industry that thinks it’s reasonable for legislators to give them the power to kill a legal competitor in a foreign country by killing their income, website, and advertising at the pointing of a finger.

This is the industry that thinks it’s reasonable that they should be legislated to the top of search results, and their free competitors downranked by law.

This is the industry that demands under threat of law – a private industry – to wiretap an entire population, just to see if they do something that industry doesn’t like, and if so, censor that population’s communications at will.

This is the industry that argues that citizens should be actively prevented from exercising their fundamental rights, such as freedom of speech and expression, if that may possibly interfere with that industry’s business.

This is the industry that thinks it’s reasonable to sue a small Karaoke manufacturer for 1.2 billion dollars. Oh, and a student for over 4 million. Oh, and a dead grandmother.

This is the industry that uses child pornography as a legal ram to pave the way for their own censorship, in ways that actually hurt children and promote child abuse.

This is the industry that planted rootkits on people’s music CDs and took complete control of their computers, millions of them – including web cameras, microphones, files on the hard drive, everything. They forced their way into people’s homes and got eyes and ears there.

This is the industry that, once you think they’ve sunk as low as morally and humanly possible, keeps coming up with new creative ways to surprise you.

If this industry wants this legislative package so incredibly badly that they’re fighting for their life to get it, while pretending it’s no big deal, all while not even telling lawmakers what it is, that should be enough for anybody to realize it’s a bag of the darkest bloody horrors. Expect it to codify the examples above. And more. Expect it to be much, much worse than SOPA.

Columns: It is said that those who don’t study history are doomed to repeat it. In the case of the copyright industry, they have learned that they can get new monopoly benefits and rent-seeker’s benefits every time there is a new technology, if they just complain loudly enough to the legislators.

The past 100 years have seen a vast array of technical advances in broadcasting, multiplication and transmissions of culture, but equally much misguided legislators who sought to preserve the old at expense of the new, just because the old was complaining. First, let’s take a look at what the copyright industry tried to ban and outlaw, or at least receive taxpayer money in compensation for its existence:

It started around 1905, when the self-playing piano was becoming popular. Sellers of note sheet music proclaimed that this would be the end of artistry if they couldn’t make a living off of middlemen between composers and the public, so they called for a ban on the player piano. A famous letter in 1906 claims that both the gramophone and the self-playing piano will be the end of artistry, and indeed, the end of a vivid, songful humanity. People called for its ban, too.

In the 1920s, as broadcast radio started appearing, another copyright industry was demanding its ban because it cut into profits. Record sales fell from $75 million in 1929 to $5 million four years later – a recession many times greater than the record industry’s current troubles. (Speaking of recession, the drop in profits happened to coincide with the Great Depression.) The copyright industry sued radio stations, and collecting societies started collecting part of the station profits under a blanket “licensing” scheme. Laws were proposed that would immunize the new radio medium from the copyright industry, but they did not pass.

In the 1930s, silent movies were phased out by movies with audio tracks. Every theater had previously employed an orchestra that played music to accompany the silent movies, and now, these were out of a job. It is quite conceivable that this is the single worst technology development for professional performers. Their unions demanded guaranteed income for these performers in varying propositions.

In the 1940s, the movie industry complained that the television would be the death of movies, as movie industry profits dropped from $120 million to $31 million in five years. Famous quote: “Why pay to go see a movie when you can see it at home for free?”

In the 1950s, the movie industry complained loudly about cable television, and this time complained how unfair it was that their free content was unable to compete with paid!

In 1972, the copyright industry tried to ban the photocopier. This push was from book publishers and magazine publishers alike. “The day may not be far off when no one need purchase books.”

The 1970s saw the advent of the cassette tape, which is when the copyright industry really went all-out in proclaiming their entitlement. Ads saying “Home taping is killing music!” were everywhere. The band Dead Kennedys famously responded by subtly changing the message in adding “…industry profits”, and “We left this side [of their tape] blank, so you can help.”

The 1970s also saw another significant shift, where DJs and loudspeakers started taking the place of live dance music. Unions and the copyright industry went ballistic over this, and suggested a “disco fee” that would be charged at locations playing disco (recorded) music, to be collected by private organizations under governmental mandate and redistributed to live bands. This produces hearty laughter today, but that laughter stops sharp with the realization that the disco fee was actually introduced, and still exists.

The 1980s is a special chapter with the advent of video cassette recorders. The copyright industry’s famous quote when testifying before the US Congress – where the film lobby’s highest representative Jack Valenti said that “The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone” – is the stuff of legend today. Still, it bears reminding that the so-called Betamax case went all the way to the Supreme Court, and that the VCR was as near as could be from being killed by the copyright industry: The Betamax team won the case by 5-4 in votes.

Also in the late 1980s, we saw the complete flop of the Digital Audio Tape (DAT). A lot of this can be ascribed to the fact that the copyright industry had been allowed to put its politics into the design: the cassette, although technically superior to the analog Compact Cassette, was so deliberately unusable for copying music that people rejected it flat outright. This is an example of a technology that the copyright industry succeeded in killing, even though I doubt it was intentional: they just got their wishes as to how it should work to not disrupt the status quo.

In 1994, Fraunhofer Institute published a prototype implementation of its digital coding technique that would revolutionize digital audio. It allowed CD-quality audio to take one-tenth of the disk space, which was very valuable in this time, when a typical hard drive would be just a couple of gigabytes. Technically known as MPEG-1 Audio Layer III, it was quickly shortened to “MP3” in everyday speak. The copyright industry screamed again, calling it a technology that only can be used for criminal activity. The first successful MP3 player, the Diamond Rio, saw the light in 1998. It had 32 megabytes of memory. Despite good sales, the copyright industry sued its maker, Diamond Multimedia, into oblivion: while the lawsuit was struck down, the company did not recover from the burden of defending. The monopoly middlemen tried aggressively to have MP3 players banned, but lost.

The century ended with the copyright middlemen pushing through a new law in the United States called the Digital Millennium Copyright Act, which would have killed the Internet and social media by introducing intermediary liability – essentially killing social technologies in their cradle. Only with much effort did the technology industry manage to stave off disaster by introducing so-called “safe harbors” that immunizes the technical companies from liability on the condition that they throw the free speech of the end-users to the wolves on request. The internet and social media survived the copyright industry’s onslaught by a very narrow escape that still left it significantly harmed and slowed.

Right after the turn of the century, the use of Digital Video Recorders was called “stealing” as it allowed for skipping of commercials (as if nobody did that before).

In 2003, the copyright industry tried to have its say in the design of HDTV with a so-called “broadcast flag” that would make it illegal to manufacture devices that could copy movies so flagged. In the USA, the FCC miraculously granted this request, but was struck down in bolts of lightning by courts who said they had way overstepped their mandate.

Finally, in 2006, the broadcasting industry sued (and lost against) the cloud-based DVR, trying to ban it, as with everything else.

What we have here is a century of deceit, and a century revealing the internal culture inherent in the copyright industry. Every time something new appears, the copyright industry has learned to cry and throw tantrums like a spoiled brat, and succeeds practically every time to get legislators to channel taxpayer money their way or restrict competing industries. And every time the copyright industry succeeds in doing so, this behavior is further reinforced.

It is far past due that the copyright industry is stripped of its nobility benefits, every part of its governmental weekly allowance, and gets kicked out of its comfy chair to get a damn job and learn to compete on a free and honest market.

See also A History of the Copyright Monopoly.

Updated: Added Cable TV, cloud DVRs, photocopier; inserted links and references.