Inside the Lobbyists NAFTA Copyright Demands: The RIAA Drew Wilson | June 24, 2017 We are examining what copyright lobbying groups are demanding in the NAFTA renegotiation’s. Today, we are looking at the RIAA’s demands. Earlier, we examined what the Copyright Alliance had to say about the North American Free Trade Agreement (NAFTA). It seems that copyright lobbyists have decided to turn this renegotiation process into an opportunity. In their effort to hold no punches back, they have decided to demand pretty much everything. Today, we take a look at long time name very familiar to those in the copyright debates, the Recording Industry Association of America (RIAA). Over the years, the RIAA has been a much reviled organization for many. Their notoriety stems largely from the hugely controversial lawsuits against alleged filesharers. The campaign to stop filesharing by litigating one file-sharer at a time has been met with anger and ridicule all throughout the United States. Of course, their notoriety doesn’t end there. The organization is also known for going after Napster, Grokster, and Sharman Networks. As their campaign to stamp out file-sharing grew, the net opposite happened as file-sharing became much more famous. In addition to this, going after big names became harder and harder as some of the big names found themselves building infrastructure to make it harder to go detected. Even the organization itself has admitted that mistakes were made, even as they blasted the iPod as piracy devices. Fast forward to today, it seems little has changed. Anything that is even remotely innovative is seen as a threat. As a result, their goal, as far as a number of people are concerned, to crush that innovation because it could be a threat to the industry. So, for many critics of the RIAA, the demands set forth may be of little surprise. Still, it is worth noting because their demands do have a habit of becoming tomorrows proposed laws. So, let us examine what the organization has to say. (Hat Tip Michael Geist for the link to the submission) The RIAA’s NAFTA Demands The RIAA (Recording Industry Association) offered their thoughts on the agreement (PDF). One point they demand: Copyright Protection. NAFTA should provide for strong exclusive rights for all copyright owners, including for communication to the public, making available, and full national treatment for terrestrial public performance; re-enforce the three-step test and not promote over-broad exceptions and limitations; and include effective protections against the circumvention of TPMs that control access to copyrighted content, as well as prohibitions on manufacturing, importing, offering to the public, providing or otherwise trafficking in such circumvention products or services. This first point is largely a shot against innovation and innovative services. An example of this would be the free open source project Audacity. Audacity allows users to create, edit, and record audio. A number of creators out there do need to use some form of audio in their projects. If you aren’t a music producer, Audacity allows creators to create a number of works such as small video projects or even video games without spending a large amount of money on more expensive software. Some will use large free databases such as Freesound to get base sound effects. From there, they can edit things down and create the small bits of sound they need for whatever project they need. Unfortunately, this is the kind of software that this demand more or less targets. This is because this software could, in theory, record the audio off of a stream otherwise “protected” by copy protection. So, because it is possible to circumvent a DRM, Audacity would technically be considered illegal in the eyes of the lobby organization. The same can be said for other pieces of software. An example would be software that records video in real time. A number of people on YouTube and Twitch like to record things like video games or even Poker hands. The idea is to provide commentary as well as show some of the gameplay involved in a certain video game. This is often described as “let’s play” videos. Others like to record things like speed runs which are recordings of people completing video game objectives in the fastest manner possible. One piece of software some people might use is Fraps. Such technology has become a boon for the video game industry as less popular titles can be shown to more and more people. Some manufactures have been known to disagree and demand money for simple recordings of video games, but I digress. The bottom line is that this has allowed an entire market to flourish. People innovated and, ultimately, it has had reciprocal effects on the video game industry. The problem here is that this same kind of software could theoretically be used to record video’s that are otherwise “protected” with DRM. So, because it is theoretically possible to circumvent a DRM with this software, the industry feels that we must do away with that kind of innovation as well. We could go on and on with examples, but you can easily get the general gist of this. This is an all out assault on innovation. The lobby group continues on this destructive thinking with the following: Copyright Enforcement. NAFTA should contain effective tools for combatting piracy updated to reflect the digital age, such as stream ripping. This includes: clear primary and secondary liability for copyright infringement; injunctive relief, including preliminary injunctions, available against all intermediaries, such as online service providers, search engines, advertisers and payment providers; and deterrent damages, including statutory damages. So, we go beyond destroying the innovative potential of software developers and move up the chain to basic critical infrastructure of the Internet. Not only are the targets going to be ISP’s themselves, but also search engines, the online payment industry, and even online advertising. This, of course, is ultimately very destructive thinking as it goes as far as saying “let’s just take the entire Internet offline”. With no ISPs, search engines, and online payment processing, what’s left of the Internet to begin with? A great example of why going after basic infrastructure of the Internet has to do with Google news. A lot of people find themselves using the Google news service. This is because people can find news on various topics that reflect their interests. Being able to find news from a host of sources has empowered users because they can now organize articles and compare sources. The net result is a much more informed public. In Spain, back in 2015, some news publishers pushed for a so-called “link tax”. If you link to someone’s website, especially if it’s a news source, then you must pay royalties to that publisher. The thinking is that, by curating news and pushing traffic towards the news sites, Google is somehow stealing revenue from the industry. While that logic never really followed, lawmakers were forced to push through the link tax (or “Google tax” anyway. In response, Google was forced to shut down their news services in the country. The result of this proposal was disastrous. Website traffic on Spanish news sites crashed. Paywall revenues tumbled. Advertising revenue dried up. The news industry took a massive hit in their pocket books as some services were even forced to shut down. What this lobby organization is proposing is taking this concept and applying it to the entire Internet. So, how disastrous would that be? According to Cisco back in 2014, the Internet generally is worth $19 trillion. It is a big number to be sure and the thought of that disappearing from the global economy is a very scary thought. It’s even scarier when you consider that the global financial crises in 2008 saw $12.8 trillion. Knowing that, it isn’t hard to imagine this sort of policy plunging the world into another recession. Further to secondary liability demands, the lobbying organization further demands: Primary and Secondary Liability. A strong copyright enforcement framework is predicated upon clear legal basis for liability, including both primary and secondary civil liability, such as contributory and vicarious infringement as well as inducing infringement, and for aiding and abetting criminal infringement. Such liability should include user upload content services and linking sites. This can really easily boil down to the idea that they want to shut down and site that allows user uploads or allows users to link to content. An example website would be Dropbox. They also want to hold websites liable if a user links to something they don’t like. So, any website that has a web forum, Wiki, or any kind of blogging technology would basically be forced offline as well. Damages. Damages are also particularly critical in promoting a legitimate and sustainable digital music trade. The music industry places particular importance on the availability of statutory damages given the difficulties in proving numbers of infringements or obtaining financial records from infringers. In the alternative, damages should be based on the harm caused to right holders and/or profits obtained by the infringer. Damage calculations should take into account deterrence for future infringers and should adequately compensate right holders. This can be summarized as the lobbying organization demanding unlimited damages to anyone who infringes copyright. Whether they sold a bootleg copy of something or downloaded a file online, it makes no difference. If you download an MP3 somewhere, they want to be able to sue you for millions. Canada, currently, has damages provisions that are more consistent with the actual harm caused. This means that if you download an infringing file, you could be on the hook for a few hundred dollars. This is very reasonable and it is something the lobbying organization is hoping to torpedo because they can’t turn a copyright infringing claim into a winning lottery ticket. efforts to export the American fair use exception are particularly troubling. In the United States, the fair use doctrine stems from the First Amendment of the U.S. Constitution and codified 150 years of American common law precedent. The American fair use doctrine is therefore unique to the United States. Fundamentally, fair use creates uncertainty out of the U.S. context. The fair use doctrine provides for open-ended exceptions, setting out principles which should be considered by the courts when determining whether a use of copyright material is “fair” under our system and, therefore, permitted. The inherent uncertainty of the scope of fair use creates an uneasy and complicated relationship to the first requirement of the three-step-test, which is limited to “certain special cases”. That is particularly true when fair use is implemented outside U.S. context and history and without the benefit of the 150 years of case law on which U.S. fair use is based. The dependence of fair use on judicial interpretation also highlights that introducing fair use in civil jurisdictions may be particularly problematic, especially when the result is the free use of American products and services outside the United States. In short, this organization says fair use is bad and should not be implemented anywhere outside the US. This is in spite of the fact that Fair Use has contributed trillions to the US economy. At one point, the RIAA made these remarks: In an increasingly digital, online and mobile marketplace, the scale of and damage caused by piracy is massive, although the full costs of copyright piracy are difficult to quantify. For example, according to RIAA analysis, in 2016 there were over 137.3 billion visits globally to websites dedicated to copyright infringement. Some were visits to torrent sites like thepiratebay, KickAssTorrents and rapidgator that provide access to infringing downloads of a wide array of copyright-protected content – music, movies, games and software – and others are sites like youtube-mp3 and mp3juices that specialize in infringing downloads of music files. Likewise, according to the IFPI, in 2015, an estimated 24 billion individual tracks were illegally downloaded via BitTorrent; 5.5 billion tracks via cyberlockers and 2.5 billion via stream ripping services. The footnote merely points to the home page of the IFPI. In other words, the claims here are completely unsubstantiated. It’s just random numbers thrown out there instead of any cold hard facts. The RIAA then took specific aim at Canada. One remark is as follows: Notice and Notice. Canada does not require hosting or search providers to remove or disable access to infringing content even when they have such knowledge as long as Canada maintains its “notice and notice” system. Canada is a unique outlier among its trading partners in this respect. This system will inevitably result in cases where rights holders are significantly prejudiced by being unable to have infringing content taken down from Canadian hosted sites and where a Canadian based entity provides hosting serviced for infringing content that is made available to U.S. residents. This is in reference to the “made in Canada” approach when Stephen Harper’s Conservative government was in power. For years, the RIAA, through the then-called CRIA (Canadian Recording Industry Association), that Canada adopt the notice-and-takedown approach. Successive governments bent to their will and added these provisions to various copyright reform bills. The one sides copyright bills were met with fierce resistance from the Canadian public because Canadians were either not consulted or flat out ignored. The logical course of action is to simply not implement the notice-and-takedown because such provisions have proven to be, at best, problematic in the US. At worst, the regime is disastrous for security research and innovation. Notice-and-takedown permits rights holders to simply accuse random individuals of copyright infringement. With no real form of recourse of consumer protection, material can simply be taken down with no evidence of wrong-doing. It ultimately became a direct threat to digital rights like fair us in the US. So, instead of simply avoiding harmful regulations, the Conservative government decided to implement what they deemed as a sort of compromise between Canada and the RIAA. Thus, there is now a notice-and-notice system in Canada. Foreign multinational corporations can extract millions out of Canadians based on simple accusations, and Canadians can be warned when rights holders are not happy with their online activities. This move was ultimately a political one because so many attempts to reform copyright have ended in utter failure. This was probably seen internally as the easy way out of the situation. Unfortunately, even this little concession has proven to be problematic. while so-called “rightsholders” are not legally able to threaten litigation through these notices per-se, some have chosen to turn it into a method of bilking Canadians out of their hard earned cash with fraudulent claims. This widely documented practice saw rightsholders send legal demands for payment even though there is no real legal avenue to do so under current copyright regimes. The widespread fraud has been blasted by many, but the Conservative and Liberal governments have since chosen not to rectify the situation of preventing fraud under this system. So, even this little capitulation has caused major problems in Canada. Still, the surprising thing is that it isn’t all bad news. Since the implementation of the system, file-sharing rates plummeted across Canada. Many lawmakers see this as a success story in spite of some obvious problems. Unfortunately, the lobbying group seems bent on dismantling the Canadian success story and implementing an American style system that has caused a lot of hardship for many. Saying the notice-and-takedown system is a success story is an extremely hard sell at best, yet the organization seems content on replacing a somewhat broken system with an extremely broken system. The lobbying organization then took explicit aim at Mexico, re-stating many of the wild claims and theories found earlier in the submission. This includes ratcheting up ISP liabilities, enforcement of copyright online, and innovation killing anti-circumvention laws. The organization then went back to making more general demands such as this: Data Flow Restrictions. Many limitations on the cross-border flows of data can significantly impede trade in digital music. For this reason, we urge the United States government to protect the free flow of data across borders, in a manner consistent with intellectual property rights protection and enforcement, including with respect to localization requirements imposed by our trading partners on cloud- and Internet-based digital products and services. Judging by the wording, specifically in the last half of that paragraph, suggests that the organization wants US laws to apply to other countries. The wording is vague, but the intention is clear. Unfortunately for the organization, this is a very far-fetched concept. The dream is seemingly to send DMCA notices to Canadians and Mexicans and expecting the laws to apply. The objective here is clear, demand everything under the moon and hope something sticks. There are demands range from wiping out the entire digital economy to dismantling innovation and cracking down on consumer protections. It seems the organization is quite shameless in these demands as well. Such demands, if followed through on, would cost the world economy trillions and cause significant and possibly fatal damage to innovation and creativity. The only good news in all of this is that we don’t know what will ultimately wind up in the agreement for now. Some of these demands may even be ignored for all we know. What we do know is that multinational corporations are stepping into this process with guns blazing. We’ll continue to poor over more documents to see what else we find in these submissions. Drew Wilson on Twitter: @icecube85 and Google+.