Seth Johnson | 8 Feb 00:02 2006
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IMPORTANT! No Broadcast Policy Without Representation!


Okay, it would be very, very beneficial if the US Delegation to
WIPO got some comments TONIGHT or TOMORROW morning on the
Broadcaster's Treaty.  We are meeting with them in the morning
and any outside motion that you can show will significantly help
get the message across.

Please see the following alert and act on it.

Seth

> http://www.nyfairuse.org/action/wipo.xcast/

Tell Congress and WIPO:

No Broadcast Policy Without Representation!

Stop the WIPO Netcasters Treaty

Please forward this notice to any other concerned parties you
might know.
	

Please tell Congress and the US Delegation to WIPO not to
unilaterally impose communications and copyright policies by
international treaty, but through representative legislative
channels, in consultation with the constituents whose fundamental
rights these policies affect.

* Click here to send a comment to Congress:
> http://www.nyfairuse.org/cgi-bin/nyfu/tell.congress.wipo

* Click here to send a comment to the U.S. Delegation to
> WIPO: http://www.nyfairuse.org/cgi-bin/nyfu/tell.wipo

* Click here to see a letter to Congressional leaders calling
  for public consultation:
> http://www.ipjustice.org/WIPO/101305letter2congress.shtml

* Click here to see Andy Oram's comment to the U.S.
  Delegation to WIPO:
> http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-webcasting.html?page=2

The Broadcast Flag is back, and it's bigger and it's crazier and
it's stronger and, almost incredibly, it's even more
un-Constitutional than before!

There is more to the Netcaster's Treaty than the Broadcast Flag.
The Netcasters's Treaty would take away copyright from authors
and hand a new "exclusive right to fixate" to all "netcasters" --
a sole right to record, a power that extends far beyond
traditional copyright.

And there is even more to the treaty than the Broadcast Flag and
the attack on copyright. The treaty would grant "netcasters"
power to prevent distribution of works in the public domain, just
because the "netcaster" puts the work into a "netcast".

The much-derided Digital Millennium Copyright Act (DMCA) became
United States law in 1998 as a fulfillment of treaty obligations
enacted in the same way the Netcasters Treaty is being pursued --
and the Netcasters Treaty is far worse.

We can't let that happen again.

* Click here for a series of Questions and Answers describing
  the nature and implications of the Netcasters Treaty:
> http://www.nyfairuse.org/action/wipo.xcast/wipo.xcast.qna.htm

What's Going On:

Circumstances force us to call for a stop to the US Delegation to
WIPO's push for the Netcaster's Treaty, and for Congress to take
up their responsibility to address the questions of what
communications and copyright policies suit the conditions of the
digital age, and to do so with public and expert consultation and
input. We must also tell Congress to be very clear and specific
about the nature of these policies in the context of an age of
ubiquitous computing and connectivity -- or else these policies
will be interpreted freely and established unilaterally by
treatymakers usurping Congress's assigned power to make copyright
and communications policy.

The broadcasters right, a right not recognized under our own law,
but adhered to by some other countries who have signed the Rome
Treaty, is being used by those who purport to speak on our behalf
at the World Intellectual Property Organization, to establish a
drastic change in the nature of our newly-established modes of
communication. The broadcaster's right, supposedly restricted to
protecting the misappropriation of broadcast signals, is being
extended to apply to a medium to which it is not well suited (the
Internet), to create a new "exclusive right to fixate" to
broadcasters that extends well beyond copyright, to cover others'
original works being broadcast, and to apply to "webcasting."

The Netcasters Treaty is an attempt to establish the broadcast
flag by treaty rather than through representative channels,
because we in the information freedom community have successfully
repelled attempts to establish it through policy at the national
level (http://www.publicknowledge.org/issues/bfcase).  The treaty
would establish an unprecedented right to fixate broadcasts, to
provide the legal basis for imposing the broadcast flag.

Here are some articles about the Netcasting Treaty. More analysis
can be found in the links at the bottom of this action alert:

* Ernest Miller: The Broadcast Flag Treaty:
> http://www.corante.com/importance/archives/002925.html
* James Love: The UN/WIPO Plan to Regulate Distribution of
  Info on the Net
> http://www.huffingtonpost.com/james-love/a-unwipo-plan-to-regulat_b_11480.html
* James Boyle: More Rights are Wrong for Webcasters
> http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html
* Andy Oram: The Problem with Webcasting
> http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-webcasting.html

IP Justice summarizes the faults of the treaty here:
> http://www.ipjustice.org/WIPO/top10reasons.shtml

The Netcasting Treaty is a direct infringement on our
Constitutionally-protected fundamental rights of free speech,
press, assembly, and our right to own and use fully functional
computers. Congress holds the power to establish policies related
to exclusive rights for original works, and must be called to
take up this task in good faith, as otherwise our liberties will
be trampled.

Please tell Congress and the US Delegation to WIPO not to
unilaterally impose communications and copyright policies by
international treaty, but through representative legislative
channels, in consultation with the constituents whose fundamental
rights these policies affect, so that our interests will be
served!

* Click here to send a comment to Congress:
> http://www.nyfairuse.org/cgi-bin/nyfu/tell.congress.wipo
* Click here to send a comment to the U.S. Delegation to
  WIPO: http://www.nyfairuse.org/cgi-bin/nyfu/tell.wipo

* Click here for the current draft of the WIPO "Treaty on the
  Protection of Broadcasting Organizations":
> http://www.nyfairuse.org/files/wipo/sccr12.2rev2.pdf

* Click here for some links on the Broadcast Flag:
> http://www.nyfairuse.org/action/wipo.xcast/bcast.flag.htm

Policy without Representation

James Love and Manon Ress of the Consumer Project for Technology
have for years fought a valiant struggle to protect us from the
encroachments of a nightmare process of enacting communications
and copyright policies through international treaties. They
describe a process wherein "intellectual property" policies are
made conditions of free trade agreements, and where narrow
interests have overtaken the proceedings of the UN-established
World Intellectual Property Organization. They continue this
struggle to this day, and they need our help to reverse the tide
(Listen to:
http://www.nyfairuse.org/icc/audio/byspeaker/icc-04-3-24-pm-18-jamie-love.ogg
and
http://www.nyfairuse.org/icc/audio/byspeaker/icc-04-3-25-am-17-manon-ress.ogg).

The Digital Millennium Copyright Act was enacted as a result of
much the same pattern of arrogant, non-representative
policy-making practice. The Netcasters Treaty is much, much
worse.

To get a sense of the flavor of these proceedings, click here to
see the comments of Ben Ivins, representative of the National
Association of Broadcasters, regarding the Netcasting Treaty:
http://www.nyfairuse.org/action/wipo.xcast/xcast.ivins.htm

On October 13, 2005, a band of citizens and organizations
petitioned Congress to stop the US Delegation to WIPO's push for
the Netcasting Treaty and for the government to hold public
hearings
(http://www.ipjustice.org/WIPO/101305letter2congress.shtml).

As of this date, the Congress of the United States of America has
not responded. We must demonstrate to Congress that we know what
our stakes are in this manner.

Many people and organizations have expressed opposition to the
Netcasting Treaty, but the US delegation continues to press for
it. Numerous statements by concerned parties strongly opposed to
the treaty may be found among the links at the bottom of this
action alert.

The US Delegation is the prime mover behind the Netcaster's
Treaty at WIPO. They continue to press WIPO to proceed to a
"Diplomatic Conference," a special meeting which signals that a
treaty is substantially complete, essentially ready for signing
by country diplomatic representatives -- and WIPO is dutifully
heeding their directions. Click here for the current status of
the treaty, as reported by WIPO at their most recent meeting on
the subject:
http://www.nyfairuse.org/action/wipo.xcast/xcast.status.htm

That the diplomatic conference has been stalled this far is due
to the considerable efforts of CPTech and other public interest
organizations that have joined the fight in the international
arena. Finally, we who defend our liberties and understand the
real implications of the new technologies in our lives are having
our presence felt -- if not suitably recognized.

A Matter of Constitutional Powers

Under current government administrative procedures, agency
activities are overseen by the Office of Information and
Regulatory Affairs (OIRA), an office established in the early
80's whose function is essentially to provide means for oversight
by the executive branch (http://www.whitehouse.gov/OMB/inforeg/).
The OIRA reviews prospective policies by government agencies
prior to their being posted in the Federal Register for public
review, and regularly requires Regulatory Impact Assessments and
analyses of costs and benefits for significant government
policies. Apparently, the activities of the US Delegation to WIPO
in pursuing the Netcasters Treaty are not regarded as warranting
this form of oversight.

Perhaps it is believed that this area of policy may be pursued
unilaterally as an expression of the executive power to make
treaties with the Senate's concurrence
(http://www.law.cornell.edu/constitution/constitution.articleii.html).
Perhaps Congress has forgotten or simply does not sufficiently
understand its assigned power and responsibilities in this area
(http://www.law.cornell.edu/constitution/constitution.articlei.html#section8).

In any case, communications and copyright policies must be
pursued with recourse to the interest of the public, through
representative legislative proceedings, and their impact reaches
far beyond even the purview of the OIRA, as such policies have a
profound relationship to the most fundamental precepts that
underlie the American experiment -- including the liberties we
hold most sacred.

What It Means:

The Netcasting Treaty is simply the means to eliminate the
advances that have been attained for all of humankind by the
establishment of the Internet.

The Internet provides us all with extraordinary new modes of
shared experience, the capacity to express ourselves publicly,
freely, interactively and collaboratively, making flexible use of
published information, and developing new means of benefiting
from universal connectivity.

This world will be taken from us if we allow the Netcasting
Treaty to come to pass.

We are witnessing the arrogant pursuit of this treaty in a
context of:

- the reintroduction of the broadcast flag in a new form that
  supplants "fair use" with a provision for "customary historic
  use:"
> http://arstechnica.com/news.ars/post/20060121-6025.html)

- increasing attempts to establish pervasive and invasive means
  for restricting our rights under "Digital Rights Management:"
> http://www.msnbc.msn.com/ID/10441443/
> http://news.ft.com/cms/s/2594a9f8-603a-11da-a3a6-0000779e2340.html

- imposing legal and technical constraints on the entire
  processing stream of digital technology up to and including
  analog input/output jacks:
> http://htdaw.blogsource.com/post.mhtml?post_id=198659

- and ending the mutually observed principle of the
  content-neutral end-to-end transport of bits that governs
  the basic architecture of the Internet, the key principle
  that assures the Internet's amenability to flexible use and
  innovation for all.
> http://www.washingtonpost.com/wp-dyn/content/article/2006/01/21/AR2006012100094_pf.html
> http://www.thenation.com/doc/20060213/chester
> http://www.freepress.net/action/neutrality

The Netcasting Treaty is the international device for
accomplishing all of the above at once.

The Netcasters Treaty delivers the same implications as the
broadcast flag: you may not own a fully functional computer, and
you may not analyze and process digital information if it is
video or audio.

The Digital Millennium Copyright Act was enacted in the United
States Legislature as a fulfillment of treaty obligations that
were established at WIPO in exactly this same way. If we do not
stop the Netcasters Treaty, all of the above will become a matter
of our national law in exactly the same manner.

This is why it is critical to call Congress to take up their
assigned role in developing copyright and communications policy,
now and no later.

The Netcasting Treaty:

    * Unilaterally imposes the broadcast flag by international
      treaty
    * Will impose unprecedented trammels on virtually all
      Internet transmissions
    * Benefits entrenched broadcasters at the expense of the web
      and future innovation
    * Chills freedom of expression by extending the DMCA to cover
      public domain works
    * Grants copyright protection over unoriginal “signals” in
      direct violation of fundamental rights
    * Blocks fair use and other copyright provisions that enable
      the public to make use of and benefit from published
      information
    * Gives broadcasters greater rights than producers of
      original works
    * Eliminates the public domain for audio and video
      programming

Digital representation of information is the very basis of
innovation in the information age. This is not merely because
that's the basic nature of a computer; and it is not merely
because the fundamental design of the Internet transport works
that way. It is rather that those designs give all of us the
means to make effective use of the information that we receive as
a result of copyright and communications policies. The effect of
the Netcasters Treaty is to eliminate your right to make
productive, flexible use of published information -- that is,
your right to own and use a fully functional computer, connected
to a Net which functions as ours does today.

The Netcasters Treaty is an attempt to establish the broadcast
flag by treaty rather than through representative channels,
because we in the information freedom community have successfully
repelled attempts to establish it through policy at the national
level. Congress is the representative organ in our republic, and
Congress holds the responsibility to develop policy that is right
for all of us in the information age -- but now the pursuit of
the Netcasters Treaty represents an attempt to circumvent the
representative channels by independent treatymaking activity.

We have therefore arrived at a circumstance wherein we must call
Congress to assert their specifically enumerated powers and
defend our fundamental right of representation in the development
of communications and copyright policy.

Please tell Congress and the US Delegation to WIPO to uphold the
Constitution, to not allow communications and copyright policies
to be unilaterally imposed by international treaty, but to be
undertaken through representative legislative channels, in
consultation with the constituents whose fundamental rights these
policies affect:

* Click here to send a comment to Congress:
> http://www.nyfairuse.org/action/wipo.xcast/xcast.congress.xhtml
* Click here to send a comment to the U.S. Delegation to
  WIPO: http://www.nyfairuse.org/cgi-bin/nyfu/tell.wipo

What to Tell Congress and the US Delegation:

    * Tell the US Delegation and Congress that policymaking in
the areas the Netcaster's Treaty addresses must be taken up in
representative legislative channels, in both Houses, with full
public disclosure and input.

    * Tell the US Delegation and Congress that the new "right to
authorize fixations" in the Netcaster's Treaty is
un-Constitutional and goes well beyond copyright.

    * Tell the US Delegation and Congress that we do not want a
broadcast flag mandate.

    * Tell Congress the time has come to take up the questions of
what proper form exclusive rights policies such as copyright
should take in the digital age. They must address what premises
should underly communications and exclusive rights policies in a
time when everyone owns and uses computers and has the power of
end-to-end connectivity.

    * Stress that the Constitution uniquely empowers them to
craft exclusive rights policy -- with specific provision that
they do so with attention to the goal of promoting the progress
of science and the useful arts.

    * Tell Congress that copyright and communications policies
are their explicit purview, that these policies address areas
that impact fundamental liberties and should therefore not be
infringed by unilateral treatymaking activity.

    * Tell them that the principle of content-neutral, end-to-end
connectivity must be guarded as a fundamental precept in both
copyright and communcications policy.

    * Tell them that we no more desire to plug the "analog hole"
than we wish to have our right to own a fully-functional computer
taken from us.

Background Links:

        * James Love: The UN/WIPO Plan to Regulate Distribution
          of Info on the Net:
> http://www.huffingtonpost.com/james-love/a-unwipo-plan-to-regulat_b_11480.html
        * Ernest Miller: The Broadcast Flag Treaty:
> http://www.corante.com/importance/archives/002925.html
        * James Boyle: More Rights are Wrong for Webcasters:
> http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html
        * Andy Oram: The Problem with Webcasting:
> http://www.oreillynet.com/pub/a/etel/2006/01/13/the-problem-with-webcasting.html

Next Readings:

        * Letter to Congress Seeking Public Consultation:
> http://www.ipjustice.org/WIPO/101305letter2congress.shtml
        * National Association of Broadcasters Spokesperson on
          Public Interest Considerations
> http://lists.essential.org/pipermail/ecommerce/2005q4/002205.html
        * Letter to Yahoo, the Foremost Sponsor of Webcasting
          Rights
> http://www.cptech.org/ip/wipo/bt/yahooletter.html
        * Letter from Technology Businesses on Webcasting
> http://www.eff.org/IP/WIPO/?f=20041117_open_letter.html
        * IP Justice's Top Ten Reasons to Reject the Broadcasting
          Treaty
> http://www.ipjustice.org/WIPO/top10reasons.shtml
        * Questions Posed by Civil Society Coalition to WIPO on
          Broadcasting Treaty
> http://lists.essential.org/pipermail/random-bits/2004-November/001228.html
        * EFF's Broadcasting Treaty Page
> http://www.eff.org/IP/WIPO/broadcasting_treaty/
        * Statement by NGOs on Signal Protection
> http://www.cptech.org/ip/wipo/bt/ngos11212005.doc
        * 2003 CPTech Analysis
> http://www.cptech.org/ip/wipo/casting-note-29Oct03.html
        * James Love and Manon Ress Audio Overviews (Ogg Vorbis
          format)
> http://www.nyfairuse.org/icc/audio/byspeaker/icc-04-3-24-pm-18-jamie-love.ogg
> http://www.nyfairuse.org/icc/audio/byspeaker/icc-04-3-25-am-17-manon-ress.ogg

Statements from Most Recent WIPO Meeting on Broadcasting Treaty:

        * Chile Proposal
> http://www.cptech.org/ip/wipo/bt/chile-sccr13.pdf
        * Brazil Proposal
> http://lists.essential.org/pipermail/a2k/2005-November/000743.html
        * Civil Society Coalition
> http://lists.essential.org/pipermail/a2k/2005-November/000758.html
        * Consumers International
> http://lists.essential.org/pipermail/a2k/2005-November/000760.html
        * Third World Network
> http://lists.essential.org/pipermail/a2k/2005-November/000762.html
        * IP Justice
> http://lists.essential.org/pipermail/a2k/2005-November/000756.html
        * Union for the Public Domain
> http://lists.essential.org/pipermail/a2k/2005-November/000759.html
        * Open Knowledge Foundation
> http://lists.essential.org/pipermail/a2k/2005-November/000762.html
        * Libraries
> http://www.cptech.org/ip/wipo/bt/libraries11232005.html
        * European Digital Rights
> http://www.cptech.org/ip/wipo/bt/edri112005.html

Other Analyses:

    IP Justice:
> http://www.ipjustice.org/WIPO/13_SCCR_112305.shtml
> http://www.ipjustice.org/WIPO/broadcastingtreatyreport2004.shtml

    Electronic Frontier Foundation:
> http://www.eff.org/IP/WIPO/broadcasting_treaty/webcasting_issues.pdf
> http://www.eff.org/IP/WIPO/20041113_TPM_SCCR.pdf
> http://www.eff.org/IP/WIPO/20040607_wipo_tpms.pdf

    Union for the Public Domain:
> http://www.public-domain.org/?q=node/38

    News Articles:
> http://www.ip-watch.org/weblog/index.php?p=9
> http://www.out-law.com/page-4609
> http://www.out-law.com/page-5087

    Link Pages:

        * Consumer Project for Technology:
> http://www.cptech.org/ip/wipo/bt/
        * IP Justice:
> http://www.ipjustice.org/WIPO/broadcasters.shtml
        * Electronic Frontier Foundation:
> http://www.eff.org/IP/WIPO/broadcasting_treaty/
        * Union for the Public Domain:
> http://www.public-domain.org/?q=node/33

--

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New Yorkers for Fair Use
http://www.nyfairuse.org

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Gmane