Here is the content of the letter I am sending to my congressman about the proposed Treaty thanks to EFF for it's template.
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As a constituent who cares about our country's changing telecommunications and media landscape, I'm writing to express my concern about the impact of the proposed "Treaty on the Protection of Broadcasting Organizations" that the US delegation is pursuing at the World Intellectual Property Organization (WIPO).
This treaty would create a brand-new layer of exclusive rights for video and audio broadcasters and cablecasters. It gives them 50 years of control over content that they merely broadcast and do not create, on top of any existing rights. That means the treaty could allow broadcasters and cablecasters to stop people from accessing public domain and freely licensed material. The treaty also includes provisions to allow broadcasters to control how the broadcast is played or played back. What's worse, the US delegation wants to extend these rights to webcasters -- meaning that any webcaster that feeds any combination of images and sounds through a web server will suddenly accrue copyright-like rights to the material, with no creative input whatsoever.
Webcasts are already being displayed in Internet advertising. I recall you are one who has campaigned on family values. Imagine discovering your child watching objectionable content that you could not disable simply because they had browsed an approved site where an advertisement linked to the webcast was displayed. With this new treaty the incentive is strong for all advertisers to use webcasts, therefore it will happen.
Likewise new technologies like Ajax will allow webcasts to be displayed on computers without installing an application. The only defense against automatic javascript, java, and other content right now are browsers and their extensions. These extensions/features allow users to select which websites are allowed to display or execute content of a certain type. Browsers capable of such control are Mozilla Firefox, Opera and Internet Explorer. Under the treaty those technologies would be forbidden1.
Now here is where the law of unintended consequences2 rears its ugly head -- the spyware purveyors will be the first to use this. Recall that this treaty allow broadcasters to control how their broadcasts are played back. One such control is prevention of skipping content (e.g. inability to skip commercials). Also recall that this treaty seeks to extend these broadcast protections to the Internet. Now recall if you will that spyware is rampant on the Internet. I define spyware as any program invoked or site displayed on my computer that I did not physically start or explicitly and plainly approve. Can you see how spyware purveyors would start creating webcasts (e.g. a spycast) after this treaty is approved? From there it is not to difficult to imagine seeing one of your constituents dragged into court because they attempted to remove or stop the spycast on their PRIVATE HOME COMPUTER. This scenario is technologically possible and will be legally plausible once the treaty is approved.
Here's how a spycaster would go after one of your constituents: A constituent would visit a website in which the spycaster's advertisement is displayed. The advertisement would be composed of a webcast or a link to automatically open the webcast3. The Internet Address (IP) would be logged in the spycaster's server. The spycaster's server would also have a special log that reports IPs where the spycast was somehow terminated or removed. Here's where the treaty would give the spycaster a new weapon. The spycaster could issue a subpoena to the citizens Internet Service Provider (ISP) and demand to know the name and address of the subscriber which was assigned to that IP at that time. Once the spycaster discovered the subscriber's name and address, they would send a demand letter to the subscriber. That letter would demand restitution in the amount slightly less than the cost of defense and threaten the subscriber with further legal action in accordance with the WIPO treaty if they choose not to pay the demand amount. Since this is a treaty the case could be brought in Federal court as a felony. Most people would end up paying the spycaster rather than spend the $5000 - $10000 minimum required4 to defend themselves. Think this is an unrealistic scenario? Something similar happens now with the RIAA. The RIAA is using the DMCA to sue registered Internet subscribers5 -- not the person who actually may have done something that is objectionable to the RIAA (whether true or not). In the RIAA's case I believe they file suit in state courts.
Another ugly consequence of this treaty is that if the material is already under copyright, those who want to use it would be forced to clear rights with multiple sets of rights holders. Not only would this hurt innovation and threaten citizens' access to information, it would change the nature of the Internet as a communication medium. Would you accept citizens being denied access to public information simply because the broadcaster/webcaster denied the right to replay? Similarly, a politically motivated broadcaster could easily refuse to clear the rights for any material (they were the first to broadcast) that would be damaging to their political party. Certainly you don't expect the Republican party to always be in power do you? In the Clinton days, had the treaty been in force then, it could have been used to squelch broadcast of the tapes, and other material that is public domain.
The treaty is moving fast. Next week, representatives at WIPO will decide whether to hold a diplomatic conference to adopt the treaty in early 2006. If it's adopted, it would require profound changes to US law. Yet there has been no discussion or analysis of its impact within the United States. There have been no hearings in Congress, and the United States' Copyright Office and the Patent and Trademark Office have declined to initiate a public consultation.
Important questions are going unanswered while the American public remains in the dark. Before creating a brand new set of exclusive rights for broadcasters, cablecasters, and webcasters, there should be a demonstrated need for such rights, and a clear understanding of how they will impact the public, educators, existing copyright holders, online communications, and new Internet technologies.
We are a sovereign nation. This treaty would remove some of our basic fundamental rights granted by the Constitution. If we're spending billions of dollars to fight terrorists who seek to dismantle our democracy (e.g. our Constitution), why on earth would anyone in Congress support such a backdoor attempt to achieve terrorist aims? It is our Freedom of Speech and Freedom of Association that terrorists are trying to stop. This treaty will in effect prevent Free Speech and Free Association simply by allowing broadcasters/webcasters to claim a copyright on the content spoken or created by citizens. Can you imagine a site like Al Jazeera using this treaty against US citizens6?
As Congress turns its attention to reform in the telecommunications and broadcasting sector, I strongly urge you to undertake a full and public investigation of the impact of this treaty. Our Constitutional and fair-use rights depend on it.
Signed, me...
Footnotes:
1I currently use these extensions to fight spyware and prevent objectionable content from being displayed.
2A law with anti-circumvention provisions similar to the proposed treaty is the Digital Millennium Copyright Act (DMCA). The DMCA has created several unintended consequences as a result of its enactment. See website: http://www.eff.org/IP/DMCA/?f=unintended_consequences.html
3An alternate method would be to entice an unwary or young user into opening the spycast by deliberately mislabeling it or otherwise hiding the spycast's true nature. Try searching for “Pokemon” on Google and see how many adult sites are displayed. I have to search for my son to ensure he doesn't end up on one of those sites.
4Website: http://www.expertlaw.com/library/criminal/criminal_lawyer.html
5Website: http://dc.internet.com/news/article.php/3085051
6I can think of one such way. They could post a webcast of the reading of the Bible on their site and sue anyone who attempted to distribute it in any form. The treaty would allow any broadcaster or webcaster to copyright any replay or dissemination of public domain or “Creative Commons” works.
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Chilling isn't it?
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