Strange Similarities between ACLU and EFF letter and Center for Democracy and Technology Memo on COICA

Artist Rights Are Human Rights

As we noted in “No Money For Old Pirates: Working People Unite In Support for Sens. Hatch and Leahy S.3804”, the headline for 2010 is the unification of working people and their unions in fighting piracy. The Songwriters Guild of America, the American Association of Independent Music, and the AFL-CIO, AFTRA, DGA, SAG, IATSE and the AFM all have stepped forward and brought their advocacy to bear on legislation that protects workers rights.

This should not come as a surprise—artist rights are widely recognized as human rights. In Artist Rights are Human Rights we said:“These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.

The human rights of authors are recognized in a multitude of international agreements, including article 27, paragraph 2, of the Universal Declaration of Human Rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948; article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952.

These precedents clearly enunciate the goals of the international community. The Covenant is closely linked with the right to own property (recognized in article 17 of the Universal Declaration of Human Rights) and workers’ rights to adequate remuneration. The “material interests” protected by the Covenant are protected under the right to an adequate standard of living.These moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works that would be “prejudicial to their honor and reputation.” The protected interests of artists include the right to just remuneration for their labor as well as the moral right to the “intrinsically personal and durable link” between creators and their creations that survives even after the passing of the work into the public domain.“

The ACLU/EFF Letter

Given the inextricable combination of human rights and artist rights, it is surprising to see a letter to Senators Leahy and Sessions opposing the “Combating Online Infringement and Counterfeits Act” from self-described “human rights organizations.” The letter passes off as mere “frustration” the massive violations of artists’ human rights occurring routinely online every second of every day. Many if not most of this infringement is either initiated or facilitated by websites based in the US—some of which are public companies. (Signers are American Civil Liberties Union, Center for Democracy & Technology, Electronic Frontier Foundation, Freedom House, Human Rights First, Human Rights Watch, Rebecca MacKinnon, Reporters Sans Frontières, World Press Freedom Committee.)

Let’s remember a provision that is at the heart of the Combating Online Infringement and Counterfeits Act”—seizing advertising accounts from adservers that pay money to pirates. Now who might be concerned about this common sense prohibition? Someone who sells the advertising? Someone who uses their dominance in search to drive traffic to pirate websites on which they sell advertising at higher prices based on the traffic to the pirate website? Maybe…Google?

What Would Google Do?

When you look at the list of signers on the “human rights” letter opposing the Combating Online Infringement and Counterfeits Act, one name that jumps out is the Center for Democracy and Technology. What do we know about them?

[UPDATE:  We know that the ACLU got $700,000 from Google in the controversial Google Buzz settlement, and that Chris Calabrese, formerly with ACLU joined the CDT in October 2014.]

We know that Alan Davidson formerly headed the Center’s “digital copyright project” (which is more likely “no copyright for digital project”) and we know that Alan Davidson’s name was mentioned in the rather bizarre communications between Google’s former worldwide head of lobbying (now White House tech advisor) and Google executives that surfaced under a FOIA request. (See Grande Prosecutor Macchiato) Why were those communications of interest to Congressman Issa? Because Alan Davidson, formerly of the Center, now is Director of U.S. Public Policy, Americas for Google, Inc., among other reasons. And the Google connection is present with other signers of the letter.

And who runs the Center? Jerry Berman, formerly a director of the Electronic Frontier Foundation (a signer) and former legislative director of the ACLU (a signer).

There are certainly some bona fide human rights organizations on the list whose credentials cannot be questioned, but you have to wonder how much time these groups spend on artist rights issues compared to humanitarian good works—and who did they trust to draft the letter to which they signed their good names.

These humanitarians likely never thought—as is my hunch—that they are being manipulated by Google for crass financial reasons and are not being given the entire story.

The argument is very contingent and therefore—weak. “In its essence, the bill would enshrine in US law a legal process that would force Internet service providers (ISPs) to block certain communications based on content, oblige registry operators to lock domains for the entire world, and create an extrajudicial blacklist of suspected content—setting a precedent that we believe would reverberate around the globe.”

In short—don’t pass a law in the US that could end up “reverberating” in countries without the due process safeguards enjoyed in the US. Now where have we seen that lately—ah yes, in the YouTube case. Google obtained a flawed ruling in their favor in the US and they are busily trying to make it the law in other countries—Russia for example, before it is overturned on appeal. (Even now, the sloppy coverage in the Financial Times of the IPO of on the London exchange ignores the fact that the YouTube case is on appeal and misleads investors into believing that the issues are resolved–shades of the financial press in the Dot Bomb bubble. “[A] familiar battle which was solved in many western markets….” Simply false.)

One thing you can be pretty confident in is that Google is not going to be using its massive lobbying dominance to “reverberate” the Combating Online Infringement and Counterfeits Act in other countries.

We have been hearing much the same from a number of sources ever since Senators Leahy and Hatch introduced the legislation—The Usual Suspects, including Michael Geist, EFF, and others who are consistently on the opposite side from creators. So where do these ideas come from?

The Voice of the Prime Mover

Hard to say exactly where these ideas originate, but there is a very interesting memo dated September 28, 2010 from the Center that spells out all of these ideas in handy talking points. If you compare the Center’s memo to the ACLU letter, there are some interesting language similarities that belie its sanctimony. Compare these excerpts from the Center for Democracy and Technology’s memo (September 28) and the ACLU letter (dated October 26):

The Center’s Memo: “If many other countries adopt S. 3804ʼs approach—and there is little doubt that many would—it will worsen the balkanization of the Internet, undermining the right to freedom of expression and association and threatening the potential of the Internet as a powerful tool for promoting human rights.”

ACLU Letter: “If many other countries adopt COICA’s approach—and there is little doubt that they will—it will worsen the balkanization of the Internet, where the information any individual can access will depend entirely on where that individual sits.”

That’s pretty close. How about this one:

The Center: “S. 3804 also would drive many states, including liberal democracies, to adopt similar policies directed at U.S. content, taking it down worldwide. The scope of protection provided by the First Amendment remains the most expansive in the world, and speech protected in the United States remains proscribable in many other democratic countries (for example, hate speech in France). Local access to such speech remains a frustration for governments in those countries, and they would welcome a U.S.-based precedent to justify blocking it.”

ACLU Letter: “COICA could also lead many states, including liberal democracies, to adopt similar policies directed at US content, taking it down worldwide. Content that is fully protected under the First Amendment Remains proscribable in other countries, such as hate speech in France and Germany, and local access to such speech remains a frustration for governments in those countries.”

Proscribable, I think. (Of course that idea is bunk at least as applied to US intellectual property (the point of the bill) because everyone wants to rip us off all the live long day, and if they mean newspapers, Google does a pretty good job of ripping them off already.) Here’s another:

The Center: “In countries where rule of law is weak or entirely absent, meanwhile, S. 3804ʼs approach opens the door to serious misuse. As Microsoftʼs recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech. Further, once the United States sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—will surely spread, impacting bloggers, citizen journalists, human rights advocates and ordinary users everywhere.“

ACLU Letter: “COICA’s approach could be misused in countries where the rule of law is weak or entirely absent. As Microsoft’s recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech in other parts of the world. Further, once the US sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—could metastasize, impacting bloggers, citizen journalists, democracy movements, human rights advocates, and ordinary users all over the world.”

That one is practically word for word. So I think the argument that the Center (or its benefactors?) are making is that the US can’t protect its artists and innovators from massive online theft, can’t protect the public from mislabled drugs, and has to permit public companies to sell advertising on pirate websites because the bill might potentially repress some unknown person in some other country. This takes victimology to a whole new level.

I invite you to compare the two remixed documents and find other examples of simultaneous creation, or, to paraphrase Lessig, “hybrid thought”.

Artists Must Bend

What is astonishing to me is that the ACLU—an organization that always has their hand out to the entertainment industry—is yet again siding against us on a matter of existential importance to us. I’m sure they have an excuse, and that there’s some aspect of their position that is so subtle and so vitally important to Life As We Know It that I’m just not clever enough to spot it.

Now I know that the ACLU has a bunch of smart people with Ivy League diplomas, and I’m just a boy from the country and I’m not as smart as these city fellers. But if there’s one thing I know when I see it, it’s a duck. And this duck is quacking.

I feel sorry for the humanitarian groups that got themselves involved with these people—they probably didn’t know better. I can’t say the same about the ACLU. I think they know exactly what they are doing.

It should come as no surprise that every time you deal with the consumer electronics industry and their fellows, the answer always is that artists must bend to them. That’s got to change.

Show Some Respect for the Congress

So aside from the fact that these great humanitarians apparently don’t read the UN human rights documents that protect artists and can’t be bothered to contribute some original thought, here is the most insulting part of this letter: “we sympathize with the underlying goals of S. 3804” and “we sympathize with frustration over copyright enforcement in a global environment.”

We don’t need your “sympathy” and Vice President Biden, Senators Leahy and Hatch, Attorney General Holder, Assistant Secretary Morton and IPEC Espinel are all way beyond “frustration”.

And next time—show some respect for the Congress and write your own damn letter. Don’t just sign your name to some K Street claptrap.

At least do artists the courtesy of spending enough time on the issue to put some words together on your own. God knows we do.

See Also: Artist Rights are Human Rights