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<div class="moz-cite-prefix">I also want to understand the
background of "Intermediary Liabilities " language and the
associated discourse if those involved can shed some light on it.
Thanks!<br>
<br>
<br>
<br>
<br>
On 04/30/2014 03:25 AM, Achal Prabhala wrote:<br>
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cite="mid:CA+9gj3Lz3Tr7g50STc=YW0W38Vpx23ENp+enE4SyhV8esQD0EQ@mail.gmail.com"
type="cite">
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<div>From my understanding (through Anriette,
Jeremy, Mishi and others) this is what seems to
have happened within civil society re:
copyright/IP these last few weeks:<br>
<br>
</div>
1) Civil society went into this hoping to keep
copyright and IP "out" of the language, both civil
society language + NETmundial outcome doc
language, as a strategy to avoid the inclusion of
"protection" clauses.<br>
<br>
</div>
2) However well-intentioned, I think this was an
unwise strategy, since there had already been so
much discussion on the copyright-IP-connected text
in the draft NETmundial outcome doc, overwhelmingly
dominated by rights-holders or their advocates, all
in favour of explicitly protectionist language -
which is to say it seemed inevitable that this would
be lobbied strongly. A wiser strategy, given the
run-up to NETmundial, would have been for civil
society to have had a clear pro-sharing, anti-
unilateral imposition of arbitrarily restrictive
copyright position to stick to.<br>
<br>
</div>
3) Some text to this effect was suggested by me and
others at the April 22 meeting but was later discarded
or lost. The text that was eventually used to
articulate the civil society position discounted the
importance of a stand against restrictive copyright/IP
application, and seemed to have been written with a
view to pre-empting what some saw as the eventual
negotiated outcome of NETmundial.<br>
<br>
</div>
4) Somehow (I say this because I don't understand it,
and the few who participated in the process can't
either; I won't assume bad faith, but I will assume an
inadequate understanding of the issues at stake by some
of the civil society people involved in drafting) the
civil society *position* - uninfluenced by negotiation,
in effect a statement of principles, released on April
23, 2014 (one full day before the NETmundial official
outcome doc was negotiated and released) - contained
inexcusable language around copyright, essentially
endorsing a protectionist position on IP, in effect
giving *in* to a negotiation with rights-holders and/or
NETmundial *before a negotiation was even had*. (<a
moz-do-not-send="true"
href="http://bestbits.net/netmundial-proposals/"
target="_blank">http://bestbits.net/netmundial-proposals/</a>)<br>
<br>
</div>
5) Since there are several of us in civil society who have
worked within FOSS, on copyright, IP and access to
knowledge, since there are more of us who lived through
the SOPA/PIPA discussions and participated in actions
against them and have a strong understanding of the
catastrophic effects of restrictively wielded IP rules,
*and* since the IP-connected sections of the draft
NETmundial outcome document were by far the most-commented
sections in that text, *and* given that many of us in
civil society feel that the IP issue in Internet
governance ranks up there with surveillance and net
neutrality as an overarching, immediate threat to online
freedom across the world, the civil society position on
this issue was shockingly inadequate, harmful and just
plain bad. <br>
<br>
</div>
6) You *must* therefore find a better process to represent
constituent positions in any joint submission or statement
in the future. I came to NETmundial fully expecting to be
disappointed by the official NETmundial outcome document (as
I was), because that's the way things are. But I did not
expect to be even more disappointed by the pre-negotiation,
pre-outcome, civil society position statement - and I was.
Deeply. <br>
<br>
</div>
7) I am unmoved by congratulatory statements that this meeting
was "not so bad" and a "good start" or whatever: there were
far too few of us who participated in protest actions at the
meeting, and civil society was more anodyne than called for.
(On a related note: the surveillance protests with Snowden
masks were on the cover of every single Brazilian newspaper
the next day). I'm relatively new to Internet governance, but
not to activism around issues connected to the Internet. As an
activist, I understand my role as having to be better
prepared, more informed, more forceful, more sharp, more
clever and more ingenious than anything governments and
business can come up with, given that I command none of the
vast resources of money and power they have. I'd urge this
group to seriously consider complementing its more thoughtful
interventions with dramatic, unreasonable action if it wants
to not only get a seat at the table but actually be *heard*. <br>
<br>
All those distinguished master's degrees we've painstakingly
accumulated won't be diminished by being a little cheeky :)<br>
<br>
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Good wishes,<br>
Achal<br>
<br>
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<div class="gmail_extra"><br>
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<div class="gmail_quote">
On 30 April 2014 00:50, Mishi Choudhary <span dir="ltr"><<a
moz-do-not-send="true"
href="mailto:mishi@softwarefreedom.org" target="_blank">mishi@softwarefreedom.org</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div bgcolor="#FFFFFF" text="#000000">
<div>Thanks Jeremy,<br>
<br>
I had missed out on this traffic to understand how this
all worked but I would still like thorough discussions
on this issue for future if others agree.<br>
<br>
<br>
On 04/29/2014 07:20 AM, Jeremy Malcolm wrote:<br>
</div>
<blockquote type="cite"> On 29 Apr 2014, at 5:35 pm,
Anriette Esterhuysen <<a moz-do-not-send="true"
href="mailto:anriette@apc.org" target="_blank">anriette@apc.org</a>>
wrote:<br>
<div><br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000"><font
face="Arial">The deadlock was broken by us using
text that was suggested, or proposed by Jeremy
Malcolm on the second day. I can't remember
exactly what Jeremy had said, but is input
implied that some protection for authors would
be acceptable.<br>
</font></div>
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<div>I lost my verbatim note of what I said due to a
crash, but from Pranesh's log of the transcript (at
<a moz-do-not-send="true"
href="https://prakash.im/text-netmundial-day1.html"
target="_blank">https://prakash.im/text-netmundial-day1.html</a>)
here it is as delivered:</div>
<div><br>
</div>
<div>THANK YOU, MADAM CHAIR. MY NAME IS JEREMY---- ON
AN ENABLING ENVIRONMENT FOR INNOVATION AND
CREATIVITY, WHICH AS YOUR CO-CHAIR NOTED GENERATED
THE MOST COMMENTS OF ANY PARAGRAPH. DUE TO THE
MISCONCEPTION THAT REFERENCE TO PERMISSIONLESS
INNOVATION WAS ABOUT THE USE OF CREATIVE CONTENT
WITHOUT PERMISSION. <br>
NOW VORRING'S WHEN WE THINK OF INNOVATION, APART
FROM SCIENTISTS, WE THINK OF ARTISTS AND
PERMISSIONLESS INNOVATION IS SOMETHING THAT
SHOULD BE A FAMILIAR CONCEPT TO ARTISTS BECAUSE
THERE IS NO PERMISSION REQUIRED TO WRITE A SONG OR A
PLAY OR A NOVEL. YOU JUST DO IT. AND INNOVATION ON
THE INTERNET SHOULD WORK THE SAME
WAY. NOW INNOVATION IS ALWAYS SUBJECT TO THE RULE OF
LAW. THAT GOES WITHOUT SAYING. I DON'T, THEREFORE,
THINK IT'S NECESSARY TO SPELL OUT ALL THE LEGAL
LIMITS TO INNOVATION THAT MAY EXIST, OF WHICH
INTELLECTUAL PROPERTY RIGHTS ARE JUST ONE. THOUGH IF
WE WERE TO ADD THE WORDS "CONSISTENT WITH THE
OTHER PRINCIPLES IN THIS DOCUMENT," I DON'T SEE
WHAT HARM THAT COULD DO. <br>
THAT DOES, HOWEVER, RAISE THE SECONDARY POINT OF
WHETHER IP RIGHTS SHOULD BE ADDED TO THE LIST OF
HUMAN RIGHTS, AS SOME HAVE CONTENDED. <br>
AGAIN, I DON'T SEE HOW THAT IS NECESSARY BECAUSE THE
LIST OF RIGHTS IS ALREADY EXPLICITLY NONEXCLUSIVE,
AND NOTHING THAT WE AGREE AT NETmundial CAN DETRACT
FROM WHAT'S ALREADY IN THE UDHR. <br>
SO I WOULD OPPOSE ADDING A POINT ON IP, BUT IF ONE
WAS ADDED NEVERTHELESS IT WOULD, AT THE VERY LEAST,
BE NECESSARY TO QUALIFY IT TO REFLECT THE NEED TO
BALANCE PRIVATE IP RIGHTS WITH THE BROADER
PUBLIC INTEREST. <br>
INDEED, PARAGRAPH 27 OF THE UDHR ITSELF BALANCES IP
RIGHTS WITH THE RIGHT TO PARTICIPATE IN THE CULTURAL
LIFE OF THE COMMUNITY, SO WE SHOULD MENTION THAT,
ALONG WITH THE RIGHTS TO EDUCATION, FREEDOM OF
EXPRESSION AND INFORMATION, AND THE RIGHT TO
PRIVACY. <br>
I CAN SEND SOME PARTICULAR TEXT SUGGESTIONS, BUT WE
-- WE DO -- AS A -- AS A STARTING POINT, WE OPPOSE
THE ADDITION OF A RIGHT TO IP. <br>
SO IN CONCLUSION, WE DO SUPPORT THE RETENTION OF
PERMISSIONLESS INNOVATION, AND WE BELIEVE THAT
MINIMAL, IF ANY, CHANGES ARE NECESSARY TO CLARIFY
THAT THIS IS NOT INTENDED TO OVERRIDE INTELLECTUAL
PROPERTY RIGHTS -- <br>
[TIMER SOUNDS ] <br>
-- THANK YOU.</div>
<br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000"><font
face="Arial">So, in the end, this text was not
too bad. And we managed to keep 'permissionless
innovation' in another part of the document.
The BAD news is that the text on internet
intermediary liability which was only finalised
after the high level committee meeting is the
same OECD text which civil society opposed in
2011. France and the US were insisted it be
included. It is text that links intermediary
liability to economic growth and that opens the
doors to intermediaries being made responsible
for enforcing copyright. For me that was a
huge, huge blow.<br>
<br>
I am not in a position to respond to your other
questions as I was not involved in finalising
the civil society inputs. <br>
</font></div>
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<div>There was no plan to produce a text, consensus or
otherwise, out of the pre-meeting. This was something
that happened spontaneously because some of the
organisers decided to do it. They did a good job, but
one of the things that was lost was context - such as
degrees of consensus around particular text (there was
not a consensus on everything) and whether some text
is a "last resort" position, etc. Part of the context
that was lost for the IP text was that it was a "last
resort" for how we could balance out the IP language
if it was included by industry. So it is correct of
you (Achal) to say that this proposing protection of
IP rights is not a civil society position. I
considered the text from the pre-meeting as more of a
rough roadmap or guide for our interventions, rather
than as an agreed text. Similarly the closing
statement, which also happened spontaneously, cannot
be considered as representing a civil society
consensus.</div>
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<div>-- </div>
<div>Jeremy Malcolm PhD LLB (Hons)
B Com</div>
<div>Internet lawyer, ICT policy
advocate, geek</div>
<div>host -t NAPTR
5.9.8.5.2.8.2.2.1.0.6.<a
moz-do-not-send="true"
href="http://e164.org"
target="_blank">e164.org</a>|awk
-F! '{print $3}'</div>
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</span><br>
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WARNING: This email has not been
encrypted. You are strongly recommended
to enable encryption at your end. For
instructions, see <a
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<pre cols="72">--
Warm Regards
Mishi Choudhary, Esq.
Legal Director
Software Freedom Law Center
1995 Broadway Floor 17
New York, NY-10023
(tel) 212-461-1912
(fax) 212-580-0898
<a moz-do-not-send="true" href="http://www.softwarefreedom.org" target="_blank">www.softwarefreedom.org</a>
Executive Director
<a moz-do-not-send="true" href="http://SFLC.IN" target="_blank">SFLC.IN</a>
K-9, Second Floor
Jangpura Extn.
New Delhi-110014
(tel) +91-11-43587126
(fax) +91-11-24323530
<a moz-do-not-send="true" href="http://www.sflc.in" target="_blank">www.sflc.in</a>
</pre>
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<pre class="moz-signature" cols="72">--
Warm Regards
Mishi Choudhary, Esq.
Legal Director
Software Freedom Law Center
1995 Broadway Floor 17
New York, NY-10023
(tel) 212-461-1912
(fax) 212-580-0898
<a class="moz-txt-link-abbreviated" href="http://www.softwarefreedom.org">www.softwarefreedom.org</a>
Executive Director
SFLC.IN
K-9, Second Floor
Jangpura Extn.
New Delhi-110014
(tel) +91-11-43587126
(fax) +91-11-24323530
<a class="moz-txt-link-abbreviated" href="http://www.sflc.in">www.sflc.in</a>
</pre>
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