\u2014\u2014\u2014- Forwarded message \u2014\u2014\u2014-<\/p>\n
From: Seth Johnson <seth.p.johnson@gmail.com>
\nDate: Wed, Feb 25, 2015 at 4:43 PM
\nSubject: Important Followup on the Broadcasters Treaty \u2014 Fwd:\u00a0Question for today\u2019s debrief on the SCCR
\nTo: \u201cJohns, Richard B (Geneva)\u201d <JohnsRB@state.gov>, \u201cPerlmutter,\u00a0Shira\u201d <shira.perlmutter@uspto.gov>, \u201cSchlegelmilch, Kristine\u00a0(Geneva)\u201d <SchlegK@state.gov>, \u201cZoller, Julie N\u201d <zollerjn@state.gov>
\nCc: Manon Anne Ress <manon.ress@keionline.org>, Jamie Love\u00a0<james.love@keionline.org>, \u201cReves, Todd\u201d <Todd.Reves@uspto.gov>,\u00a0\u201cShapiro, Michael\u201d <Michael.Shapiro@uspto.gov>, \u201cGordon, Marian R\u201d\u00a0<gordonmr@state.gov>, \u201cHoliday, Cecily C\u201d <holidaycc@state.gov>,\u00a0Doreen McGirr <mcgirrdf@state.gov>, Justin Hughes <hughes@yu.edu><\/p>\n
<\/p>\n
Hello Richard,<\/p>\n
I am forwarding your note to me with the following reply to Shira\u00a0Perlmutter and others who were originally included in this query, now\u00a0adding Julie Zoller and other contacts at the State Department. \u00a0I am\u00a0also cc\u2019ing Justin Hughes, who coordinated an informal Round Table\u00a0discussion on the broadcasters treaty at the US PTO some time back.<\/p>\n
I apologize for the duration of time you will need to read this. \u00a0As I\u00a0state below, I have tried to be succinct. \u00a0I am drawing some very\u00a0important connections among several elements that are presently moving\u00a0into place at the same time.<\/p>\n
Your comments are stated in general terms regarding the CSTD\/ECOSOC\u00a0WSIS+10 and Internet Governance Forum (IGF) proceedings, and they are\u00a0not responsive to the concerns I raised with Shira, which have to do\u00a0specifically with the broadcasters treaty, and international\u00a0copyright-related policymaking as it affects the Internet in general,\u00a0particularly in relation to the WSIS+10 Review and the\u00a0intergovernmental framework for the Information Society being\u00a0deliberated at the United Nations this year.<\/p>\n
Will we have the opportunity to engage on the topic of the\u00a0broadcasters treaty and retransmission consent, by an open and\u00a0participatory process, before the UN General Assembly\u2019s\u00a0intergovernmental negotiations addressing the status and future of the\u00a0Information Society project in the latter half of this year?<\/p>\n
To my recollection, Shira\u2019s note to me of December 10 is the first\u00a0mention I have seen of the US using retransmission consent as a\u00a0regulatory \u201cnational implementing legislation\u201d basis for the\u00a0broadcaster\u2019s treaty. \u00a0Has this specific notion, of applying\u00a0retransmission consent under the Communications Act to the Internet\u00a0and using that as the implementing legislation for the broadcaster\u2019s\u00a0treaty, been subject to any kind of appropriate public disclosure and\u00a0discussion? \u00a0I believe there would have been far more concern\u00a0expressed if this had been the case, and the connection had been\u00a0explicitly understood.<\/p>\n
When we see the connection between retransmission consent, applied to\u00a0the Internet domestically, and the broadcaster\u2019s treaty, to be\u00a0established internationally, we see that this arrangement reflects a\u00a0separation between content creation and telecommunications that is\u00a0built into the Information Society project\u2019s foundations. This\u00a0separates copyright established by international processes from\u00a0aspects of domestic telecommunications policy that have assured that\u00a0online innovation would not be impaired by liability for copyright.<\/p>\n
This is a very different relationship to copyright than we have long\u00a0had on the Internet, hooked to an international framework that may\u00a0more readily support the types of processes we have already long seen\u00a0pursuing the enactment of excessive modes of copyright policy in\u00a0numerous international fora.<\/p>\n
As you know, under the DMCA in the United States, anybody can become a\u00a0peer on the network of networks, without liability for transmitting\u00a0packets that happen to make up copyrighted works, so long as they\u00a0comply with the DMCA\u2019s notice and takedown provisions.<\/p>\n
The broadcasters treaty proposes to establish a limited right related\u00a0only to signals retransmission (Shira calls this a \u201csingle-right\u00a0approach\u201d in her email below), and retransmission consent establishes\u00a0liability only for retransmitting broadcasts. \u00a0Each of these is hard\u00a0to address on its own, and indeed they are hard to fully understand\u00a0when they are taken in isolation.<\/p>\n
However, we see the overall schema clearly when we examine the\u00a0framework being set up by the Information Society project, and the\u00a0approach the US is presently promoting in relation to the network.<\/p>\n
Among the rationales we have regularly heard voiced in the policy\u00a0discussions surrounding the Information Society project is a stance\u00a0opposing regulation of content \u2014 typically phrased to identify this\u00a0stance with an opposition to regulating the Internet. \u00a0However, the\u00a0Internet is already separated from content creation in the\u00a0foundational elements of the Information Society project. \u00a0The\u00a0Internet is a subcategory of telecom and explicitly separated from\u00a0content creation in the performance measures the project uses to\u00a0measure its progress, and in the industry categories that underly the\u00a0Technical Barriers to Trade Agreement, the international instrument\u00a0that is to serve as the basis for the conformance and interoperability\u00a0assessment regime being set up as a key function within the\u00a0Information Society. \u00a0These definitions are foundational, underlying\u00a0all aspects of the project.<\/p>\n
This separation means that within the framework for the Information\u00a0Society, international processes for copyright policy are freed up to\u00a0be pursued independently of telecom and the Internet.<\/p>\n
This framework is also consistent with the approach the US is taking\u00a0to domestic policy, set to be revealed by the FCC tomorrow morning \u2014\u00a0which is to all accounts focused on interconnection policy,\u00a0particularly with edge providers such as Netflix, and not on\u00a0reestablishing under Title II the permissionless and flexible platform\u00a0for innovation that originally arose within a context enabling anybody\u00a0to become a peer in the network of networks and interoperate freely\u00a0among themselves based on an open physical layer \u2014 and protection\u00a0from liability for copyright under the DMCA.<\/p>\n
What this separation means in practical terms is that despite the\u00a0Information Society\u2019s frequent appeals to convergence as the dynamic\u00a0that drives our need to engage in international policy processes for\u00a0the Internet, it is not a dynamic that will apply to copyright. \u00a0At a\u00a0time when many have been struggling for years to get policymakers to\u00a0adapt copyright to the Internet, the broadcaster\u2019s treaty, when\u00a0considered in light of the Information Society project and the present\u00a0approach to the network being promoted by the United States, is\u00a0apparently about adapting the Internet to international copyright in\u00a0all of the outlandish forms it has taken on.<\/p>\n