The Internet Distinction

———- Forwarded message ———-

From: Seth Johnson <seth.p.johnson@gmail.com>
Date: Wed, Feb 25, 2015 at 4:43 PM
Subject: Important Followup on the Broadcasters Treaty — Fwd: Question for today’s debrief on the SCCR
To: “Johns, Richard B (Geneva)” <JohnsRB@state.gov>, “Perlmutter, Shira” <shira.perlmutter@uspto.gov>, “Schlegelmilch, Kristine (Geneva)” <SchlegK@state.gov>, “Zoller, Julie N” <zollerjn@state.gov>
Cc: Manon Anne Ress <manon.ress@keionline.org>, Jamie Love <james.love@keionline.org>, “Reves, Todd” <Todd.Reves@uspto.gov>, “Shapiro, Michael” <Michael.Shapiro@uspto.gov>, “Gordon, Marian R” <gordonmr@state.gov>, “Holiday, Cecily C” <holidaycc@state.gov>, Doreen McGirr <mcgirrdf@state.gov>, Justin Hughes <hughes@yu.edu>

Hello Richard,

I am forwarding your note to me with the following reply to Shira Perlmutter and others who were originally included in this query, now adding Julie Zoller and other contacts at the State Department.  I am also cc’ing Justin Hughes, who coordinated an informal Round Table discussion on the broadcasters treaty at the US PTO some time back.

I apologize for the duration of time you will need to read this.  As I state below, I have tried to be succinct.  I am drawing some very important connections among several elements that are presently moving into place at the same time.

Your comments are stated in general terms regarding the CSTD/ECOSOC WSIS+10 and Internet Governance Forum (IGF) proceedings, and they are not responsive to the concerns I raised with Shira, which have to do specifically with the broadcasters treaty, and international copyright-related policymaking as it affects the Internet in general, particularly in relation to the WSIS+10 Review and the intergovernmental framework for the Information Society being deliberated at the United Nations this year.

Will we have the opportunity to engage on the topic of the broadcasters treaty and retransmission consent, by an open and participatory process, before the UN General Assembly’s intergovernmental negotiations addressing the status and future of the Information Society project in the latter half of this year?

To my recollection, Shira’s note to me of December 10 is the first mention I have seen of the US using retransmission consent as a regulatory “national implementing legislation” basis for the broadcaster’s treaty.  Has this specific notion, of applying retransmission consent under the Communications Act to the Internet and using that as the implementing legislation for the broadcaster’s treaty, been subject to any kind of appropriate public disclosure and discussion?  I believe there would have been far more concern expressed if this had been the case, and the connection had been explicitly understood.

When we see the connection between retransmission consent, applied to the Internet domestically, and the broadcaster’s treaty, to be established internationally, we see that this arrangement reflects a separation between content creation and telecommunications that is built into the Information Society project’s foundations. This separates copyright established by international processes from aspects of domestic telecommunications policy that have assured that online innovation would not be impaired by liability for copyright.

This is a very different relationship to copyright than we have long had on the Internet, hooked to an international framework that may more readily support the types of processes we have already long seen pursuing the enactment of excessive modes of copyright policy in numerous international fora.

As you know, under the DMCA in the United States, anybody can become a peer on the network of networks, without liability for transmitting packets that happen to make up copyrighted works, so long as they comply with the DMCA’s notice and takedown provisions.

The broadcasters treaty proposes to establish a limited right related only to signals retransmission (Shira calls this a “single-right approach” in her email below), and retransmission consent establishes liability only for retransmitting broadcasts.  Each of these is hard to address on its own, and indeed they are hard to fully understand when they are taken in isolation.

However, we see the overall schema clearly when we examine the framework being set up by the Information Society project, and the approach the US is presently promoting in relation to the network.

Among the rationales we have regularly heard voiced in the policy discussions surrounding the Information Society project is a stance opposing regulation of content — typically phrased to identify this stance with an opposition to regulating the Internet.  However, the Internet is already separated from content creation in the foundational elements of the Information Society project.  The Internet is a subcategory of telecom and explicitly separated from content creation in the performance measures the project uses to measure its progress, and in the industry categories that underly the Technical Barriers to Trade Agreement, the international instrument that is to serve as the basis for the conformance and interoperability assessment regime being set up as a key function within the Information Society.  These definitions are foundational, underlying all aspects of the project.

This separation means that within the framework for the Information Society, international processes for copyright policy are freed up to be pursued independently of telecom and the Internet.

This framework is also consistent with the approach the US is taking to domestic policy, set to be revealed by the FCC tomorrow morning — which is to all accounts focused on interconnection policy, particularly with edge providers such as Netflix, and not on reestablishing under Title II the permissionless and flexible platform for innovation that originally arose within a context enabling anybody to become a peer in the network of networks and interoperate freely among themselves based on an open physical layer — and protection from liability for copyright under the DMCA.

What this separation means in practical terms is that despite the Information Society’s frequent appeals to convergence as the dynamic that drives our need to engage in international policy processes for the Internet, it is not a dynamic that will apply to copyright.  At a time when many have been struggling for years to get policymakers to adapt copyright to the Internet, the broadcaster’s treaty, when considered in light of the Information Society project and the present approach to the network being promoted by the United States, is apparently about adapting the Internet to international copyright in all of the outlandish forms it has taken on.

The United States’ legal tradition has long been founded on a basic understanding that post-Enlightenment, democratic society is an expression of the power of published information.   Thomas Jefferson described this perfectly in his famous letter to Isaac McPherson on August 13, 1813, which applies just as much to copyright as it does to the patent policy he discusses: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

The US telecommunications tradition understands that the airwaves are free.  The US tradition understands that factual elements of published, copyrighted works are free for the taking. There’s a reason why the US understood the need to empower independent providers and end users to take part in the new online medium of the Internet with the protections of the DMCA, and it has to do with how the US tradition understands how shared information promotes the advancement of humankind, by its very nature.

This is why Aereo thought its model made sense.  This is why Grokster (and many others) thought that the long-honored Betamax ruling would empower us to innovate online and create new decentralized, collaborative and interconnected modes of using and sharing information, that we would adapt copyright to the Internet and not the
other way around.  Instead of adapting copyright to the new capacities brought by the Internet, instead of working to making Aereo possible, and instead of correcting the corrosive force of new conceptions, including new theories of secondary liability or of the supposed necessity for ridiculous copyright terms, or the instituting of anti-circumvention policies that allow others to assert a kind of private right of prior restraint on our own devices, and many others that have arisen in response to the profoundly dynamic platform the Internet has brought to all of us — and which actively dishonor the greatest traditions of enlightened copyright policy — we appear to be recalibrating our tradition to render it subject to a new international framework that empowers the very types of processes we have already seen repeatedly attempting to exploit the unique nature of the international policymaking arena to empower the enactment of misguided conceptions of copyright.

Aside from that last bit on the US tradition, I have tried to draw these concerns somewhat briefly to focus the commentary properly, and have provided no clarifying citations.  I trust that I will be able to clarify and support these points in follow-up.

I ask that you please address my concerns so that we can take up the implications of the broadcaster’s treaty prior to the fulfillment of the WSIS+10 Review, in light of the Information Society framework, and in light of the redefinition of the network and of how copyright applies there as well as in the approach to the network that the US is promoting both domestically and abroad.  The broadcaster’s treaty should be taken up fully and frankly, with all the pieces before us, especially at this stage of international processes related to the Internet.

These matters should be taken up preferably before ECOSOC’s mid-year meeting, at which it will hand off their final WSIS+10 Review outputs for the UN General Assembly’s intergovernmental negotiations in the latter half of the year.

If you are willing to take up these concerns at the Internet Governance Forum in September, that would imply that the implementation of the broadcaster’s treaty on the basis of retransmission consent will not be a conclusion already built into the framework for the Information Society prior to that point, and so that would certainly be deeply appreciated.  However, if we address it “in form,” based on what the WSIS+10 Review supposedly represents in a process of which the US is apparently in support, then the appropriate period for the question in relation to the Information Society would be prior to ECOSOC’s final contributions from the WSIS+10 Review in July.

Regards,

Seth Johnson

———- Forwarded message ———-
From: “Johns, Richard B (Geneva)” <JohnsRB@state.gov>
Date: Thu, Dec 11, 2014 at 7:00 AM
Subject: RE: Question for today’s debrief on the SCCR
To: “seth.p.johnson@gmail.com” <seth.p.johnson@gmail.com>
Cc: “Schlegelmilch, Kristine (Geneva)” <SchlegK@state.gov>

Hi Mr. Johnson,

Kristine Schlegelmilch forwarded your email to me, as I am responsible
for the U.S. Mission’s participation at IGF and CSTD, and general
Internet governance engagement.  I wanted to provide a response to
your question about whether the U.S. Government will “be taking part
in these forums to provide the opportunity for broader
multistakeholder discussion of and engagement on the US’s
activities…prior to the conclusion of the Information Society
project’s 10-year review.”   The U.S. Government has been extremely
active in engaging in all of the meetings that you mentioned.  In
fact, at the most recent IGF meeting in Istanbul, we had approximately
40 U.S. Government participants engaged in the discussions, including
the State Department Undersecretary of Economic Affairs and two U.S.
Ambassadors.  We plan on being similarly engaged at the 2015 IGF in
Brazil.

We have also been active participants in the CSTD WSIS 10-year review.
The U.S. held the CSTD Chairmanship last year and holds a
Vice-Chairmanship this year.  The Intercessional was held in Geneva
two weeks ago, where the 200 page WSIS Review document was presented
and discussed.  Yesterday, we held a broad, multistakeholder meeting
to discuss our collective input into the WSIS Review report.  We
highly value and strongly encourage contributions to these processes
from the private sector, academia, individuals, and NGSOs and look
forward to continuing these discussions in the lead up to the
High-level WSIS meeting which will be held in New York next year.
While Kristine is our specialist in IPR issues, don’t hesitate to
contact me if you have any specific concerns that you would like to
raise or questions about our engagement related to the World Summit on
the Information Society, CSTD or IGF.

Best regards,

Richard

Richard Johns
Economic and Science Affairs
U.S. Mission to the United Nations
+41 (0)22 749 4647 Office
+41 (0)22 749 4883 Fax

—–Original Message—–
From: Seth Johnson [mailto:seth.p.johnson@gmail.com]
Sent: Thursday, December 11, 2014 2:56 AM
To: Perlmutter, Shira
Cc: Jamie Love; Manon Anne Ress; Schlegelmilch, Kristine (Geneva);
Reves, Todd; Shapiro, Michael
Subject: Re: Question for today’s debrief on the SCCR

Thank you Shira, I will await further word.

Seth

On Wed, Dec 10, 2014 at 6:55 AM, Perlmutter, Shira
<Shira.Perlmutter@uspto.gov> wrote:
> Thanks Seth.  Within the USG, the State Dept has the lead on this.  I’m copying Kristine, who can give you more information on this.  But please be assured that the positions we are taking at WIPO, including on the proposed broadcast treaty, are the product of extensive interagency discussion, including the State Dept.  And our single-right approach is intended to be consistent with existing US law, primarily through the retransmission consent provisions of the Communications Act.   In our view, it would not require any new form of government regulation.
>
> Best,
> Shira
>
> ________________________________________
> From: Seth Johnson <seth.p.johnson@gmail.com>
> Sent: Wednesday, December 10, 2014 12:33:47 PM
> To: Perlmutter, Shira
> Cc: James Love; Manon Ress
> Subject: Question for today’s debrief on the SCCR
>
> Dear Ms. Perlmutter:
>
> You are doubtless aware of the activities presently underway taking up
> numerous policy areas related to the Internet and developing of some
> form of “Internet Governance” in relation to the Information Society
> project, represented most prominently by the outcomes of the 2003 and
> 2005 Geneva and Tunis World Summits for the Information Society
> (WSIS).
>
> The US has generally promoted a multistakeholder approach and avoided
> a predominantly intergovernmental approach to Internet-related policy
> areas in these processes.
>
> The US has also generally asserted an opposition to expanding the
> ITU’s scope to the Internet through proposals that would amount to
> regulating of content, rather than telecommunications as such.  We
> might see this distinction reflected in the Information Society
> project’s performance measures, which are based on ISIC (International
> Standard Industrial Classification) categories which distinguish
> content-related industries from telecommunications.
>
> However, while the project’s performance measures do not include
> content creation, policies that the US is pursuing related to
> copyright, including the broadcasters right, are intergovernmental
> policies related to content that can easily affect the nature of the
> Internet platform.
>
> The Information Society project will be completing a 10-year
> assessment of its progress in 2015, beginning with a review by the
> Commission on Science and Technology in Development in the first half
> of the year, followed by an intergovernmental process conducted by the
> President of the General Assembly to determine the project’s status
> and how it will proceed after 2015.  This period of review of
> implementation and followup represents the last opportunity before the
> UN GA’s intergovernmental negotiations to address how well the project
> is addressing the relationship between the project and the Internet.
> The Internet Governance Forum will also provide a forum for
> multistakeholder engagement in Internet-related policy.
>
> Will the US be taking part in these forums to provide the opportunity
> for broader multistakeholder discussion of and engagement on the US’s
> activities on copyright and other related exclusive rights policies,
> prior to the conclusion of the Information Society project’s 10-year
> review?
>
>
> Sincerely,
>
> Seth Johnson