HR 4077 (was Re: [WSIS CS-Plenary] FBI Seizes Indymedia Servers in the UK)

[Taran Rampersad]

Apologies for the crossposting, but relevant in a few areas

The seizure of Indymedia servers is just a tip of the iceberg. Consider
HR 4077 - relevant in the US, and wherever TRIPs will enforce it:

http://www.publicknowledge.org/content/legislation/hr4077  - an
analysis; the actual act is here
(http://www.publicknowledge.org/content/legislation/hr4077/attachment )
- PDF.
(Courtesy Lawrence Lessig;
http://www.lessig.org/blog/archives/002205.shtml )

A few excerpts relevant to Internet Governance, and WGIG:

*"Section 3*: The section calls for the FBI <http://www.fbi.gov/> to
“/facilitate the sharing among law enforcement agencies, Internet
service providers, and copyright owners of information concerning acts
of copyright infringement./” Based on Chairman Smith
<http://lamarsmith.house.gov/>'s statement made during the recent markup
hearing—this section was written as an end-run on the /Verizon v. RIAA/
<http://www.publicknowledge.org/content/cases/riaa-vs-verizon> DMCA
<http://www.publicknowledge.org/content/legislation/legislation-dmca> /
Sect. 512
<http://www.publicknowledge.org/content/legislation/legislation-dmca>
case. It is not clear by the language of the bill exactly what
information an ISP is to share with law enforcement agencies, nor does
it indicate what, if any, court orders are needed to extract this
information from an ISP. There are serious due process and privacy
implications to this section."

*"Section 4*: Gives the CHIPs Unit
<http://www.usdoj.gov:80/criminal/cybercrime/ccpolicy.html>of the
Department of Justice <http://www.usdoj.gov/>the responsibility of
investigating crimes related to the theft of intellectual property."

"*Section 6*: Under this section, the Justice Department
<http://www.usdoj.gov/>could pursue a copyright infringement claim,
regardless of whether the work was registered. It is unclear whether
such a criminal infringement claim could have been made before this
provision, but in combination with other legislation (the PIRATE Act
<http://www.publicknowledge.org/content/legislation/s2237> recently
introduced in the Senate), this bill would allow the Justice Department
<http://www.usdoj.gov/> to file civil suits for unregistered copyrighted
works."

"

    *

      *Section 9*: The “Sense of Congress” language associating
      Peer-to-peer technology with copyright infringement, the loss of
      revenues for content companies, the spread of viruses and
      pornography, etc.

    *

      *Section 10*:

          o

            The Criminal P2P Provision: Modifies criminal infringement
            of copyright law by creating a new way to infringe
            copyright, through “/the knowing distribution, including by
            the offering for distribution to the public by electronic
            means…/” It lowers the standard the government is required
            to show infringement against an alleged infringer from
            “willfully” to “knowing with reckless disregard.” A strict
            reading of the bill's language seems to indicate that the
            government must still show infringement before the “knowing
            distribution” language comes into view, however, this may
            not be the intent of the drafters and may not be interpreted
            that way by a court. Additionally, this provision seeks to
            only go after those individuals who offer over 1000
            copyrighted works, those works with a value of over $10,000,
            or those who offer a pre-released work for distribution.

          o

            The Civil P2P Pre-Released Work Provision: Gives a copyright
            owner a civil claim against those make a pre-released work
            available on the Internet. This provision sets actual
            damages at $10,000 per infringement."

WSIS apparently won't be handling TRIPs, and yet it's apparent that
patents, copyrights, trademarks... and whatever else society can come up
with... I am forced to wonder how this Act will be enforced, if it
passes. When we speak of Internet Governance without taking these things
into account... who profits? Will we have people in developing countries
extradited to the United States for prosecution?

It seems that the UN's 'South' (how I detest that term, 'Developing' has
a certain dignity to it) will continue to be at serious disadvantage
unless we take into account other intellectually infrastructural aspects
of the internet.

Are we cavitating, or do we wish to move ahead?

-- 
Taran Rampersad

cnd at knowprose.com

http://www.linuxgazette.com
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" It requires greater courage to preserve inner freedom, to move on in one's inward journey into new realms, than to stand defiantly for outer freedom."— Rollo May