WIPO Now Gets Into The Extrajudicial, Zero Due Process, Censorship Act Over Sites It Declares 'Infringing'
Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks "oh, hey, the easy way to 'solve' piracy is just to create a giant blacklist." This sounds like a simple solution... if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of "pirate sites" for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music's own stars was suddenly deemed an "infringing site."
These kinds of mistakes highlight just how fraught such a process is -- especially when it's done behind the scenes by organizations that face no penalty for overblocking. In such cases you always get widespread overblocking based on innuendo, speculation, and rumor, rather than any legitimate due process or court adjudication concerning infringement. Even worse, if there was actual infringement going on, one possible legal remedy would involve getting a site to take down that content. Under a "list" approach, it's just basically a death penalty for the entire site.
That's why it's especially ridiculous that WIPO, the World Intellectual Property Organization, a part of the UN, has decided to leap gleefully into the space with one of these "blacklists" of evil piratey sites.
WIPO, which is part of the United Nations, was founded more than 50 years ago with the aim of protecting intellectual property. This includes combating online piracy, something it hopes to facilitate with its 'BRIP' Database, short for "Building Respect for Intellectual Property."
So, uh, what's the process to get on the list? Surely it must involve a court of law determining that a site is engaged in copyright infringement, right? Oh, of course not.
The goal of the project is simple: allow stakeholders from member states to report problematic sites and share this list with advertisers, so they can block bad apples. This will result in less money going to pirate sites, making it harder for them to generate profit.
"Stakeholders"?
"The BRIP Database is now open for the acceptance of Authorized Contributors from WIPO Member States and Authorized Users from the advertising sector," WIPO writes.
"It comprises a secure, access-controlled online platform, to which authorized agencies in WIPO Member States may upload lists of websites which deliberately facilitate the infringement of copyright."
Ah. So, it's "Authorized Contributors" and "Authorized Users from the advertising sector" and the entire list is secret. It's "secure, access controlled." I'm sure that won't be abused at all.
Not answered:
- What is the process to make sure sites on the list are actually engaged in ongoing infringement?
- Are sites notified?
- Do sites have any due process by which they get to plead their own case?
- Is there any appeals process?
- How are "authorized contributors" vetted and approved?
- Will an authorized contributor lose their authorization if it is found that they have nominated sites incorrectly?
- Is there any way for the public or NGOs to review the list for accuracy?
What's fairly stunning about all of this is that anyone who knows anything about these issues and how they've been treated over the last few decades would recognize the pitfalls of WIPO's approach with BRIP. And yet... no one at WIPO even seemed to bother to care about some fairly fundamental issues regarding due process and proper adjudication of accusations of infringement. Honestly, it raises significant questions about WIPO's own understanding of copyright law.
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