Snippet Taxes Not Only Violate The Berne Convention, But Also Betray The Deepest Roots Of Newspaper Culture

from the won't-someone-think-of-the-poor-Rupert-Murdochs? dept

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

1) The protection for press publications provided by [the EU's] DSM Article 15 does not apply to linking or the use of "very short extracts." The Code explicitly applies to linking and the use of extracts of any length. Accordingly, the Code applies to search engines and social media feeds, not just news aggregation services.

2) The Code forces Internet platforms to bargain collectively with news publishers or to be forced into rate setting through binding arbitration. DSM Article 15 does not require any similar rate-setting mechanism.

3) The Code imposes burdensome obligations on the platforms, some of which directly implicate free expression. For example, platforms would need to provide news businesses with ability to "turn off" comments on individual stories they post to digital platforms. DSM Article 15 imposes none of these obligations.

4) The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

The same blog post points out that these elements are so bad they probably violate the Berne Convention -- the foundational text for modern copyright law. Article 10(1) of the Berne Convention provides that:

it shall be permissible to make quotations from a work which already has been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Although the Berne Convention doesn't have any mechanism for dealing with violations, Berne obligations are incorporated in the World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) and in the Australia-US Free Trade Agreement. Both of those offer dispute resolution that the US could use to challenge the Australian Code if and when it comes into effect. The proposed schemes to force Internet companies to pay even for quoting snippets of news not only violate the Berne Convention: they are also a betrayal of the deepest roots of newspaper culture. That emerges from a fascinating post by Jeff Jarvis, a professor at CUNY's Newmark J-school. He writes:

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed "scissors editors" to compile columns of news from other papers.

In other words, these new snippet taxes are wrong at every level: practical, legal and cultural. And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

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Filed Under: australia, berne convention, copyright, google news, history, journalism, link tax, news, rupert murdoch, snippet tax
Companies: facebook, google

This Week In Techdirt History: January 10th - 16th

from the new-years dept

Five Years Ago

This week in 2016, the world was responding to the death of David Bowie, and we looked back on his innovation in music business models, and then noted how copyright limited the ability to pay tribute to Bowie on the radio. Obama used his final state of the union address to both praise and complain about the open internet, while New York's District Attorney was calling for a ban on the sale of encrypted smartphones. The movie industry was once again reporting record box office numbers despite their complaints about piracy, with even leaked films raking in record-breaking cash, and Netflix was still in its don't-try-to-stop-password-sharing phase while NBC was still in its Netflix is not a threat phase. Plus, lest we forget battles over content moderation have been going on for a long time and can touch all kinds of industries, Lego backed down after blocking people from buying blocks for political projects.

Ten Years Ago

Five years before that in 2011, other content moderation and liability debates were raging — especially in the lawsuit against Backpage. We also saw the beginning of a major fight between Sony and George Hotz, who jailbroke PS3s to restore their ability to run different operating systems. Meanwhile, we were learning more about the government's attempts to get info from Twitter for the Wikileaks investigation (and were pleased to see the social network fighting back, while wondering who else the government might have targeted). Customs officers were trying to intimidate Wikileaks volunteers, Rep. Peter King tried to have Wikileaks put on the Treasury Department's terrorist list (the Treasury thankfully refused), and the EFF debunked the myth that the leaked cables weren't important. Meanwhile, Congress was continuing its annual traditions of promising patent reform that would never come and promising a Patriot Act renewal that very much would.

Fifteen Years Ago

This week in 2006 we saw the appearance of the first Apple computers with Intel chips, and the launch of the much-hyped Google Video offering that turned out to be completely underwhelming (and not just because of its embrace of copy protection). Sony was still trying to downplay its rootkit scandal while we talked about whether DRM will always introduce security problems, and while the use of copy protection continued to screw over actual creators.

Filed Under: history, look back

Funniest/Most Insightful Comments Of The Week At Techdirt

from the threaded-thoughts dept

We've got a double winner this week, with a comment from Bloof taking the first place spot for insightful and the second place spot for funny. It's a pretty comprehensive response to the allegations of fraud in the 2020 election:

Voter fraud that only happened in the parts of the ballots and the states that went against Trump, not the house and senate races where an unassailable democratic majority would be incredibly useful, only the top ticket featuring a massively unpopular republican candidate. Voter fraud so cunning that it only happened in cities filled with minorities among whom Trump is about as beloved as porcupine skin toilet paper. Voter fraud so cunning it somehow managed to happen in places where republicans controlled the elections. Voter fraud so cunning the Trump team have been unable to present any evidence of it whatsoever and had their legal teams back down the moment any judged asked them for actual proof because they don't fancy parroting the same lies they vomit on TV in a place where there'll be consequences for lying. Voter fraud so cunning that republican donors are suing the groups they funded that claimed they're able to prove it happened, for not being, in fact, able to prove anything. Voter fraud so cunning even the most hyper partisan right wing 'news' outlets like Fox and Newsmax issued on multiple on air retractions the moment the election machine companies got the lawyers involved because their stories were based on 4chan posts and the say so of the son of the guy who runs notorious pedophile and Qanon hangout, 8kun.

They have no evidence, there is no evidence, it did not happen and screaming and committing acts of terrorism will not make your far right fever dreams of fraud and persecution into a reality. They had ample opportunity to present evidence in front of friendly TV hosts like Tucker Carlson, as well as judge after judge after judge, some of which were appointed by Trump himself and they showed nothing and their cases were rejected every single time.

It is clear to everyone with even a lick of common sense that the people parroting these lies are so full of sh*t even the Trump gutted EPA would consider them for a potential superfund site.

In second place on the insightful side, it's Stephen T. Stone with a response to Josh Hawley freaking out about his publisher dropping his book:

A reminder for those who need it

Ah, I get to break this out for the first time in 2021:

Moderation is a platform/service owner or operator saying “we don’t do that here”. Personal discretion is an individual telling themselves “I won’t do that here”. Editorial discretion is an editor saying “we won’t print that here”, either to themselves or to a writer. Censorship is someone saying “you won’t do that anywhere” alongside threats or actions meant to suppress speech.

For editor's choice on the insightful side, we've got a pair of comments from That One Guy. First, it's a response to tiresome attempts to equate this week's events with the summer's protests:

GIve me a minute, I'm sure it'll come to me

Let's see, protests against police brutality and a legal system that treats certain people as second class citizens, versus a 'protest' against the fact that the 'wrong' person won an election that involved an attempted insurrection to overthrow the democratic process, there's something different between these two but I just can't place my finger on it...

Next, it's a comment expanding on the point that Section 230 protects both big and small sites:

'Their pocket-change is your entire site's budget'

Not just protects big and small, it protects small businesses way more than it protects big ones. Gut 230 and Facebook will have some extra expenses to deal with but they've got the resources to do so, whereas smaller companies that might compete with them, either now or in the future are going to be screwed as they lack the needed resources and are forced into the position of either crippling themselves if not shutting down entirely.

It's the ultimate irony that when dealing with the people attacking 230 the companies they like to hold up as boogiemen and justifications to gut the law are the very ones that stand to gain the most by it's removal.

Over on the funny side, our first place winner is Thad with a comment on our post about how easy it will be to identify insurrectionists thanks to them posting all their activities on social media. The comment comes in the form of a link to a frame from The Simpsons, so I'll replace it with the image itself:

We've already had our second place winner above, so it's on to the editor's choice and a comment from Crafty Coyote about a circuit diagram being spread with claims that it's a 5G chip inserted in the COVID vaccine, but which turned out to be schematics for a guitar pedal:

So if the implanting chip really is just the schematics for a guitar pedal, does that mean we'll be getting The Cure when we get the cure?

Next, it's an anonymous comment about CERN's new open data policy:

This is a disaster! How will scientists be motivated to collect data if their great-grandchildren can't cash in on the copyrights? How will they pay for their supercolliders, supercomputers, and vacation homes? How can they keep individuals from inferior races from doing science also?

And just imagine, some of the data might be chanted by a rapper without attribution. Or used to remote-control a John Deere tractor.

Stand up and stop the madness! Send your anti-proton to CERN now!

That's all for this week, folks!

Filed Under: history, look back

This Week In Techdirt History: December 27th - January 2nd

from the old-year's-eve dept

Five Years Ago

This week in 2015, China was doing exactly what many warned they would do and pointing to the US to defend its own anti-encryption stance, while Mark Zuckerberg was desperately defending Facebook's "Free Basics" power grab. It was revealed that the NSA never stopped spying on foreign leaders and even swept up the US congress in the process, leading to some amusing backlash from former congressional defenders of the agency. Meanwhile, Harvard Law Review was freaking out about a public domain citation guide, 50 Cent was hypocritically suing over a mixtape, and CBS filed a lawsuit over the Star Trek fan film it had previously seemed to be supporting.

Ten Years Ago

This week in 2010, a Dutch court threw out criminal charges against a P2P index site for relying too much on information from a private anti-piracy group, while leaked cables revealed that Swedish officials had complained to the US about the impact of a Hollywood-pushed copryight law, and a Canadian music collection society was demanding payment for 30-second song previews and France was trying to extend its private copying levy to tablets... unless they run Windows. We talked about permission culture and the automated diminishing of fair use, while NBC Universal and the MPAA were getting New York City to run anti-piracy propaganda and Gibson got an injunction over PaperJamz.

Fifteen Years Ago

This week in 2005, there was a dust-up online over the question of blog piracy, while one Chinese blogging firm with big dreams was collapsing before it got started. The movie industry was pointing fingers over its poor box office returns, the RIAA was accused of coaching a 15-year-old witness in a file sharing lawsuit, and Australia was considering expanding fair use. We talked about how the Sony rootkit scandal had woken more people up to copy protection and the war on modifying your devices, while Sony was giving away a whole lot of free downloads in a settlement over the infected CDs.

Filed Under: history, look back

This Week In Techdirt History: December 20th - 26th

from the ghost-of-christmas-past dept

Five Years Ago

This week in 2015, while newly-leaked documents were exposing the US government's surveillance options, Hillary Clinton was nonsensically calling for an encryption "Manhattan Project" but not to produce a back door. Tom Cotton was also attacking Tim Cook and demonstrating profound ignorance, and was joined by Manhattan's Disctrict Attorney. Blackberry, apparently hoping to hasten its own demise, started arguing for greater cooperation with law enforcement. And yet, amidst all this, the government apparently didn't notice the irony in freaking out about an unauthorized backdoor discovered in Juniper firewall software.

Ten Years Ago

This week in 2010, we wondered if journalists would face the same treatment as Julian Assange and why US publications were downplaying the significance of major leaks, while, in apparent anticipation of a leak, Bank of America started trying to block payments to Wikileaks, soon followed by Apple blocking the Wikileaks app. Meanwhile, we got a closer look and Homeland Security's terrible evidence for its recent domain seizures, and its affidavit that was riddled with errors that just got worse and worse.

Fifteen Years Ago

This week in 2005, Senators were apparently undeterred by multiple court rulings on the unconstitutionality of video game bans, the FTC was cautiously optimistic about spam trends although the clock was ticking on Bill Gates's prediction that the problem of spam would be solved by early 2006, and Eliot Spitzer began an investigation into digital music price fixing. Sony's woes continued as Texas expanded its lawsuit to include MediaMax CDs and some of the parent company's own stores were failing to pull the rootkit CDs from shelves. And, as three men were facing charges for selling modified Xboxes, we wanted to know why modifying your own hardware is a federal crime.

Filed Under: history, look back

This Week In Techdirt History: December 13th - 19th

from the then-and-now dept

Five Years Ago

This week in 2015, the clueless press was still letting itself get played and suggesting that encryption played a role in the San Bernardino attacks, while congress was dropping all pretense and turning CISA into a full-on surveillance bill, which they then crammed into the must-pass government funding bill (which also included some other nonsense). It got support of confused congressmen and a promise-breaking White House then — despite being terrible for privacy — it predictably passed.

Ten Years Ago

This week in 2010, the clueless press was playing the mark for a different scam and continuing to rely on bogus research about file sharing, but the main source of panic and confusion on the scene was still Wikileaks, and we argued America's reaction was doing far more harm than the leaks themselves and was probably just about overhyping online threats to pass new laws. The Congressional Research Service was pointing out the obstacles to criminally charging Assange and complaining about being blocked from accessing Wikileaks itself by the panicked government (and the Air Force went further the same week, blocking access to news sites reporting on Wikileaks as well), and the staff of Columbia Jounralism School was warning the president that prosecuting Wikileaks would set a dangerous precedent. But the government decided to look into the possibility of CFAA charges anyway. There was a slight bit of uplifting and surprising news though, when congressional hearings on Wikileaks turned out to be not entirely stupid.

Fifteen Years Ago

This week in 2005, an emerging conversation about traffic shaping was paving the way for a net neutrality fight, with the most worrying aspect being that FCC chairman Kevin Martin was apparently prepared to give the telcos everything they wanted. Congress was doing its own kowtowing, this time to Hollywood, and serving up exactly the legislation the entertainment industry wanted, while the music business was getting mad at Apple for the DRM it had a huge hand in pushing for — and we talked about how copy protection stalls innovation. HarperCollins was spending a lot of money to scan its own books for no obvious reason beyond spiting Google, the MPAA was suing someone for sharing movies it couldn't actually find on his computer, and one band was dealing with Sony's DRM failure by sending their fans burned replacement CDs with no copy protection.

Filed Under: history, look back

This Week In Techdirt History: December 6th - 12th

from the times-past dept

Five Years Ago

This week in 2015, the confluence of the Paris attack, the San Bernardino attack, and the rise of ISIS created a perfect storm for the anti-encryption, pro-surveillance crowd. President Obama was hinting at asking Silicon Valley to magically block terrorists from using tech products, while Hillary Clinton was doubling down on her attacks on the tech industry and mocking free speech online in the exact same way Donald Trump was — while Mitch McConnell was promising to offer up whatever bill the president wanted to ban encryption, Dianne Feinstein was bringing back a bill that would force internet providers to report on "suspicious" behavior by customers and teaming up with James Comey to mislead people about encryption, and Michael McCaul was proposing a commission to "force" encryption backdoors. Even a former FCC commissioner was getting in the game, idiotically claiming that net neutrality helps ISIS. In France, law enforcement released a "wish list" of draconian measures including banning open WiFi, which got at least a tiny bit of pushback from the Prime Minister — while Spain brought in a new law allowing widespread surveillance, and Kazakhstan was breaking the internet with an all-out war on encryption.

Ten Years Ago

Today there's a lot of controversy around Visa and MasterCard blocking Pornhub, but this same week in 2010 the exact same conversation was going on around Wikileaks. The week kicked off with PayPal cutting off payments, a Swiss bank found a technicality that allowed it to freeze the site's bank account, then Mastercard blocked any payment systems that work with Wikileaks, and were soon joined by Visa (I wonder if that had anything to do with its most recent leak). But attempts to kill Wikileaks were just contributing to its spread, and the government was contradicting itself in its panicked attempts to internally block the site, or just doing really dumb things like blocking any site with Wikileaks in the title, and making extremely silly requests like the State Department asking Wikileaks to "return" the leaked cables (ironically around the same time it was hosting World Press Freedom Day).

Fifteen Years Ago

This week in 2005, big telcos were doing their usual thing and freaking out about competition, even going so far as to punish New Orleans for offering free wifi in the wake of Hurricane Katrina, or just completely contradicting themselves on fiber optic broadband, which they hate when municipalities try to offer it but which they are happy to sell themselves. Sony's DRM woes were far from over, with yet another security vulnerability found in one of their products, as well as a vulnerability in the patch the company issued to fix it. The recording industry was showing it would never be happy no matter what Kazaa did, and really going hard on its new obsession — unauthorized song lyrics — by attacking an app that displays them and even calling for people who host them to be thrown in jail.

Filed Under: history, look back

This Week In Techdirt History: November 29th - December 5th

from the take-and-give dept

Five Years Ago

This week in 2015, details were continuing to emerge that showed the Paris attackers made very little effort to hide themselves while the French government was using the state of emergency as an excuse to round up climate change activists, and some in the US were using the San Bernadino shooting to push for more domestic surveillance. New problems were being discovered with the UK's snooper's charter, while documents were showing that the country's intelligence agencies were hacking computers with minimal oversight. And there was a fresh attack on encryption from a different direction, as a patent troll started suing all kinds of encrypted websites.

Also this week in 2015, Homeland Security finally returned two domains they had seized for bogus reasons five years earlier, but we'll talk more about that in our next section...

Ten Years Ago

Yes, it was the very same week in 2010 that we first reported on ICE seizing a bunch of domain names supposedly for intellectual property violations. It immediately looked like a censorship campaign that was stretching the law to its breaking point, and inspection of the targeted websites revealed that many appeared legitimate and some were even embraced by big-name music artists — until Homeland Security eventually admitted that it was taking cues straight from the entertainment industry, further undermining any ability of the US to take a stance against internet censorship worldwide.

Fifteen Years Ago

This week in 2005, we learned more about how the Sony rootkit came to be, and weren't that surprised to discover that other Sony copy protection tech also had big issues — plus, the rootkit had caught the attention of Eliot Spitzer, and new information revealed that Sony knew about it before it went public. The FCC suddenly changed its tune on a la carte cable programming, with plenty of people weighing in from televangelists (opposed) and Cablevision and AT&T in favor. Meanwhile, ratings giant Nielsen was finally acknowledging the existence of DVRs and introducing its now ubiquitous live-plus-x-days ratings for TV shows.

Filed Under: history, look back

This Week In Techdirt History: November 22nd - 28th

from the timelines dept

Five Years Ago

This week in 2015, the attacks on encryption continued, with David Cameron's former speechwriter publishing an incredibly dumb article in the Telegraph and Dianne Feinstein contradicting her month-old fearmongering about cybersecurity with demands for encryption backdoors — while a supposed ISIS encryption manual that people had been freaking out about turned out to be a guide for journalists. Meanwhile, we learned about widespread illegal wiretaps by police in California, and that reports of the end of NSA domestic email collection were incorrect — and, long before he was the Supreme Court's most prominent alleged rapist, Judge Brett Kavanaugh was offering up a strident defense of the NSA's bulk metadata collection.

Ten Years Ago

This week in 2010, the TSA was on everyone's minds thanks to its still-new naked scanners, which suddenly had the support of the president after he traveled with the CEO of a company that makes them. Some were trying to find out if the TSA had ever actually caught a terrorist, and being told it's a state secret, while the stories of incredibly invasive and demeaning searches for people who don't get scanned continued to flood in. One airport tried to claim that recording the TSA's gropings was an arrestable offense, and the agency's attempt to demonstrate to congress that the searches are fine completely backfired — and Homeland Security investigators were discovering that TSA agents weren't even good at spotting prohibited items in the scans.

Fifteen Years Ago

This week in 2005, we continued to watch the fallout from the Sony rootkit fiasco, with anti-virus firms trying to explain why their products couldn't catch it and the state of Texas filing a lawsuit against Sony, all while the label's sales plummeted and got it in hot water with many of its artists. TiVo was trying to thread the needle with a new offering that included copy protection but it unsurprisingly wasn't enough to stop TV executives from threatening to sue. And finally, for anyone who is currently trying to get their hands on a next-gen console, enjoy this fifteen-year-old post about people paying thousands for Xbox 360 consoles on eBay.

Filed Under: history, look back

This Week In Techdirt History: November 15th - 21st

from the on-the-record dept

Five Years Ago

This week in 2015, the world was reeling from the Paris attacks that killed 130 people. Unfortunately, many were also treating it as an opportunity: haters of encryption quickly started somehow blaming Edward Snowden, and defenders of the surveillance state began using the attacks to justify mass surveillance and push to expand it (which France had already done twice in the past year. Senators were moving to legislate backdoors to encryption and extend NSA programs, and Manhattan's DA got in on the act with a white paper seeking an encryption ban... and then it turned out that the Paris attackers had coordinated via unencrypted text messages. The whole thing was a failure of the intelligence community that had long been fighting for surveillance despite little evidence that it works. But this didn't stop anyone from treating encryption as a bogeyman, and by the end of the week France had rushed through an internet censorship law and Hillary Clinton had vocally joined the anti-encryption brigade.

Ten Years Ago

This week in 2010, in keeping with its strategy of pretending the government can save it, the entertainment industry was ramping up its astroturf campaigns and generally lying about stuff in order to supportthe COICA online censorship bill that was back up for another vote later in the week. As was expected, the lame duck Senate Judiciary Committee unanimously voted to move forward with COICA, and Ron Wyden was one of the few senators speaking out vocally against the bill and saying he planned to block it. Meanwhile, Bernie Sanders and Sherrod Brown were seeking more information on the legality of certain provisions in ACTA (the latest text of which still had plenty of issues) only to be stonewalled by the USPTO, while many defenders continued to insist that ACTA didn't need Senate approval anyway because it was somehow not a treaty.

Fifteen Years Ago

This week in 2005, things just kept getting worse for Sony in the wake of the rootkit fiasco. First, it turned out that the copy protection rootkit included copyright-infringing code. Then, security researchers discovered that the web-based uninstaller Sony was offering opened up a new and serious security hole on users' machines that would let any other website easily hijack them. The rootkit was looking like it might be the most widespread malware of the month and finally, after dragging its feet for over a week, the company announced that it would pull all CDs with the rootkit from stores, and offer swaps to people who bought them, but it really felt like too little, too late. By the end of the week, Sony started offering unprotected MP3 downloads in exchange for the CDs in a final attempt to make good, which seemed like a fittingly ironic end for a misadventure that began with music DRM.

Filed Under: history, look back