<html><head><meta http-equiv="Content-Type" content="text/html charset=us-ascii"></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div>Sorry for the very delayed reply, I've been away and my access has been intermittent. Thanks for your perspective. It is interesting how divergently people have assessed our participation in the NETmundial process. You are proposing that we play more of an "outside game", critiquing the process and being more oppositional (whereas Stephanie, amongst others, have said the opposite). That is one possible approach, though most of the long-time civil society groups involved in Internet governance have played more of an inside game, working with governments and other stakeholders to try to reach consensus and nominating representatives to multi-stakeholder committees such as the MAG and CSTD working groups.</div><div><br></div><div>It is not impossible for civil society to play both an inside and an outside game simultaneously, because certainly there are things that you cannot accomplish with only only one approach, and if managed carefully, they can reinforce rather than undermining each other. A good example is how success was eventually achieve against ACTA - there were those who took an oppositional approach by protesting in the streets, and there were those who privately lobbied MEPs, and success would not have resulted without both tactics. On the other hand protesting at the IGF will get you ejected from the venue by the UN police - quite literally - and they won't let you back in.</div><div><br></div><div>So whereas you have compared the approach taken on IP issues within Internet governance processes to those that were used to defeat SOPA and PIPA, I don't agree that we would want to use the same approach. You would probably agree that the SOPA and PIPA tactics would not have been appropriate to achieve what we did at WIPO on the Marrakesh treaty, either. Similarly, in my past position when advocating for access to knowledge in the UN Guidelines for Consumer Protection, we played very much an inside game. In each case, the danger of being too oppositional is that you exclude yourself from the process altogether, and thereby limit your capacity to effect even incremental change.</div><div><br></div><div>I believe that there is a lot of space for us to use both tactics, I just don't think that NETmundial, being such an innovative and potentially valuable door into multi-stakeholder policy development that could redound to our advantage in numerous different fora in the future, was the right place to be more oppositional than we were, either on IP or on any other issue. That said, there are other times and places to be radical on IP, and I am completely in accord with that. (Even then, some people will always criticise you for not being radical enough - because I'm not an abolitionist, I've been accused of this. And although I wasn't representing EFF at NETmundial, someone came up to me during the meeting complaining about how "soft" EFF had supposedly become on IP in recent years!)</div><div><br></div><div>So I don't think that the approach that we took on the floor at NETmundial or that our representatives took in the drafting sessions was the wrong approach in this context, and to our credit we had been better prepared for this meeting (partly as a result of the pre-meeting) than we had been for previous engagements. As the WSIS civil society coordinating structures disintegrated, there was a time when we were not coordinating at all. WCIT last year was possibly a turning point, and the formation of Best Bits also helped. But due to limitations of time, internal disagreements, and different people taking leadership and not consulting with each other, it remains a bit chaotic, and some mistakes were made. We are definitely still learning how to coordinate well and effectively and there is a lot that we can do better next time.</div><br><div><div>On 30 Apr 2014, at 3:25 pm, Achal Prabhala <<a href="mailto:aprabhala@gmail.com">aprabhala@gmail.com</a>> wrote:</div><br class="Apple-interchange-newline"><blockquote type="cite"><div dir="ltr"><div><div><div><div><div><div><div><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 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></div>Good wishes,<br>Achal<br><br></div><div class="gmail_extra"><br><br><div class="gmail_quote">
On 30 April 2014 00:50, Mishi Choudhary <span dir="ltr"><<a 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 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>
</blockquote>
<div><br>
</div>
<div>I lost my verbatim note of what I said due to a crash, but
from Pranesh's log of the transcript (at <a 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>
</blockquote>
<br>
</div>
<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>
<br>
<div>
<div style="text-indent:0px;letter-spacing:normal;text-align:start;text-transform:none;white-space:normal;word-wrap:break-word;word-spacing:0px">
<div style="text-indent:0px;letter-spacing:normal;text-align:start;text-transform:none;white-space:normal;word-wrap:break-word;word-spacing:0px">
<div style="text-indent:0px;letter-spacing:normal;text-align:start;text-transform:none;white-space:normal;word-wrap:break-word;word-spacing:0px">
<div style="text-indent:0px;letter-spacing:normal;text-align:start;text-transform:none;white-space:normal;word-wrap:break-word;word-spacing:0px">
<div style="text-indent:0px;letter-spacing:normal;font-variant:normal;text-align:-webkit-auto;font-style:normal;font-weight:normal;line-height:normal;text-transform:none;white-space:normal;font-family:Helvetica;word-wrap:break-word;word-spacing:0px">
<div style="text-indent:0px;letter-spacing:normal;font-variant:normal;text-align:-webkit-auto;font-style:normal;font-weight:normal;line-height:normal;text-transform:none;white-space:normal;font-family:Helvetica;word-wrap:break-word;word-spacing:0px">
<span style="border-collapse:separate;border-spacing:0px">
<div style="font-size:12px;text-align:-webkit-auto;word-wrap:break-word"><span style="border-collapse:separate;border-spacing:0px">
<div style="word-wrap:break-word">
<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 href="http://e164.org/" target="_blank">e164.org</a>|awk
-F! '{print $3}'</div>
</div>
</span><br>
</div>
WARNING: This email has not been encrypted. You
are strongly recommended to enable encryption at
your end. For instructions, see <a href="http://jere.my/l/pgp" target="_blank">http://jere.my/l/pgp</a>.</span></div>
</div>
</div>
</div>
</div>
</div>
</div>
<br>
</blockquote>
<br>
<br>
<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 href="http://www.softwarefreedom.org/" target="_blank">www.softwarefreedom.org</a>
Executive Director
<a 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 href="http://www.sflc.in/" target="_blank">www.sflc.in</a>
</pre>
</div>
</blockquote></div><br></div>
____________________________________________________________<br>You received this message as a subscriber on the list:<br> <a href="mailto:bestbits@lists.bestbits.net">bestbits@lists.bestbits.net</a>.<br>To unsubscribe or change your settings, visit:<br> <a href="http://lists.bestbits.net/wws/info/bestbits">http://lists.bestbits.net/wws/info/bestbits</a></blockquote></div><br><div apple-content-edited="true">
<div style="color: rgb(0, 0, 0); letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div style="color: rgb(0, 0, 0); letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div style="color: rgb(0, 0, 0); letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div style="color: rgb(0, 0, 0); letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div style="color: rgb(0, 0, 0); font-family: Helvetica; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-align: -webkit-auto; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><div style="color: rgb(0, 0, 0); font-family: Helvetica; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-align: -webkit-auto; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-stroke-width: 0px; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><span class="Apple-style-span" style="border-collapse: separate; border-spacing: 0px;"><div style="font-size: 12px; text-align: -webkit-auto; word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><span class="Apple-style-span" style="border-collapse: separate; border-spacing: 0px;"><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space;"><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 href="http://e164.org">e164.org</a>|awk -F! '{print $3}'</div></div></span><br class="Apple-interchange-newline"></div>WARNING: This email has not been encrypted. You are strongly recommended to enable encryption at your end. For instructions, see <a href="http://jere.my/l/pgp">http://jere.my/l/pgp</a>.</span></div></div></div></div></div></div>
</div>
<br></body></html>