Cable Reveals Extent Of Lapdoggery From Swedish Govt On Copyright Monopoly
Copyright Monopoly – Rick Falkvinge
Among the treasure troves of recently released WikiLeaks cables, we find one whose significance has bypassed Swedish media. In short: every law proposal, every ordinance, and every governmental report hostile to the net, youth, and civil liberties here in Sweden in recent years have been commissioned by the US government and industry interests.
I can understand that the significance has been missed, because it takes a whole lot of knowledge in this domain to recognize the topics discussed. When you do, however, you realize that the cable lists orders for the Swedish Government to implement a series of measures that significantly weakens Sweden’s competitive advantage in the IT field against the US. We had concluded this was the case, but had believed things had come from a large number of different sources. That was wrong. It was all coordinated, and the Swedish Government had received a checklist to tick off. The Government is described in the cables as “fully on board”.
Since 2006, the Pirate Party has claimed that traffic data retention (trafikdatalagring), the expansion of police powers (polismetodutredningen), the law proposal that attempted to introduce Three Strikes (Renforsutredningen), the political trial against and persecution of The Pirate Bay, the new rights for the copyright industry to get subscriber data from ISPs (Ipred) — a power that even the Police don’t have — and the general wiretapping law (FRA-lagen) all have been part of a greater whole, a whole controlled by American interests. It has sounded quite a bit like Conspiracies ’R’ Us. Nutjobby. We have said that the American government is pushing for a systematic dismantlement of civil liberties in Europe and elsewhere to not risk the dominance of American industry interests, in particular in the area of copyright and patent monopolies.
But all of a sudden, there it was, in black on white. It takes the description so far that the civil servants in the Justice Department, people I have named and criticized, have been on the American Embassy and received instructions.
This will become sort of a longish article, as I intend to outline all the hard evidence in detail, but for those who want the executive summary, it is this: The Pirate Party was right on every detail. The hunt for ordinary Joes who share music and movies with one another has been behind the largest dismantlement of civil liberties in modern history, and American interests have been behind every part of it.
At the middle of this, we find the US cable Stockholm 09-141, recommending Sweden to not be blacklisted by the US on the so-called Special 301 list, and outlines why. The Special 301 is a list that the United States compiles every year that names and shames countries that haven’t been friendly enough to American industries. A majority of the world’s population is on the list, Canada and Spain among them. It’s quite nice company to be in, actually.
Since the 1980s, the US has aggressively threatened trade sanctions against countries who don’t give American companies sufficiently large competitive advantages — this is described in detail in the book Information Feudalism about the origins of the TRIPs agreement and WTO, for those interested in gory details. In practice, it works like this: industry associations in the US go to the Trade Representatives, who go to the myriad offices dealing with Foreign Policy, who go to the embassies, who talk to national governments (including the Swedish one) and demand changes to national law to benefit American corporations.
This sounds like fiction, right? But here are the documents. This document comes from the copyright industry’s trade association IIPA, mainly consisting of record and movie companies. They have listed six demands on the Swedish Government, which stand to find in the linked document:
- Adopt the copyright law amendments on injunctive relief against ISPs and a “right of information” to permit rights holders to obtain the identity of suspected infringers from ISPs in civil cases
- Prosecute to the fullest extent the owners of ThePirateBay [sic]
- Increase the prosecutorial and police manpower devoted to criminal Internet piracy enforcement
- Commence a national criminal enforcement campaign to target source piracy and large scale Internet pirates
- Ensure that rights holders may pursue the new civil remedies easily and quickly
- Take an active role fostering ISP-rights holder discussions to effectively prevent protected content from being distributed without authorization over the Internet
Now, these steps are written in copyright industry legalese. Some key words that sound harmless are cause for alarm once you recognize their meaning. Translated into ordinary language, this says:
- Adopt “Three Strikes” making it possible to disconnect prople from the internet without a trial (“injunctive relief“), and implement the IPRED directive in a way that the copyright industry can get internet subscriber identities behind IP addresses (which was not mandatory, my note).
- Prosecute to the fullest extent the owners of The Pirate Bay. (This doesn’t really need translation, except that it’s very noteworthy that the executive branch is ordered to interfere with the work of the judicial one, which is illegal in Sweden too.)
- Transfer scarce police resources from investigating real crimes and devote them to safeguarding American monopolistic interests against ordinary citizens.
- Take large-scale initiatives against people sharing music, movies and porn.
- Make it possible for the copyright industry to sue people (“pursue new civil remedies“) with a minimum of hassle.
- Abolish the messenger immunity, making Internet Service Providers liable for copyright monopoly infractions happening in their wires, and force them to interfere with the traffic.
All this seems eerily familiar. With one exception, it looks like a checklist followed to the letter by the Swedish Government. The American Embassy confirms that it is, and even explains that exception.
The cable Stockholm 09-141 reads, along with my comments:
1. (SBU) Summary. Embassy Stockholm recommends that Sweden continues to be placed in the Special 301 Initiative, and not be on the Watch List for 2009. We are aware of the differing recommendations of the International Intellectual Property Alliance (IIPA) and PhRMA. Post recommendation is based on: -- The progress made by the Government of Sweden (GOS) in five out of the six items identified in the Special 301 Initiative Action plan we communicated to the GOS last year; and
Here, the Embassy (“Post“) writes straight out that the Swedish government has been given a checklist.
-- The sensitive domestic politics that the GOS needs to manage in order to step up internet piracy enforcement in Sweden. The GOS struggles, with good intentions, against a very negative media climate and against a vocal youth movement. For example, we want to highlight the risk that negative media attention on the file sharing issue gives the Pirate Party a boost in the EU Parliamentary elections in June 2009.
Apparently, it is a “vocal youth movement” that fights for basic civil liberties. Also, it is interesting that the Embassy expresses preferences on which parties should be elected by the Swedish people.
2. (SBU) This cable reviews the progress Sweden has made on the Special 301 Initiative Action plan which we presented to the GOS at the conclusion of the Special 301 review 2008 (Ref B). Post continues to engage very constructively with the GOS, and has good access and a good working relationship with key senior and working level GOS officials. The actions taken since last year's review strengthen the legislative framework and provide better enforcement tools for combating piracy. The Pirate Bay trial is currently being heard in the district court in Stockholm. The last day of the trial is March 4, and the verdict can be expected on or about March 25.
The Embassy notes specifically that they have good access to civil servants. In other cables, these are named; among others, the Embassy has contact with Stefan Johansson, the civil servant in the Justice Department who drafted the IPRED legislation giving the copyright industry access to internet subscriber identities.
3. [...] The Justice Ministry, with primary responsibility for this issue, is fully on board and well aware of what is at stake. It is currently battling with the Ministry of Enterprise, Energy, and Communication about the next appropriate steps to curb internet piracy. Now that the Enforcement Directive implementation will finally enter into force on April 1, and there will soon be a first District court decision in the Pirate Bay case -- the Justice Ministry will turn its attention to other key issues, primarily the ISP liability issue and extra resources to investigative capabilities. [...]
Here, we see in cleartext that the Justice Department is working to abolish the messenger immunity and make ISPs liable for the traffic in their networks, so that we will have a serious amount of unaccountable extrajudicial censorship. This is one of the most serious threats to the basic civil liberties and to the foundatory principles of the net today. Also, note the expression that the Justice Department are essentially American lapdogs in this area.
4. [...] Post conveyed a Special 301 Action plan to the GOS, covering six items where the [US Govt] hoped to see progress during 2008. 5. (U) The Special 301 Initiative Action plan 2008 contained recommendations in six specific areas. The GOS has acted, in various degrees, in five of those areas. A review of progress in the six areas follows in paras 6-11:
The Embassy says that it will go through these steps one by one and explain how the Swedish Government has done as asked.
Step-by-step walkthrough of lapdoggery
(At this point, I shuffle the cable paragraphs a bit to match the checklist from the American copyright industry’s organization IIPA, and bring its points in for reference. The numbers before the paragraphs are thus intact from the cable, and show the referenced paragraph. The IIPA checklist is quoted from the top down.)
IIPA checklist says:
1. Adopt “Three Strikes” making it possible to disconnect prople from the internet without a trial (“injunctive relief“), and…
7. (U) Injunctive relief: The one item without any progress is Action plan item 2, Injunctive relief. The GOS maintains that there are adequate provisions currently on the books in Sweden, and does not intend to introduce new legislation. (Note that industry claims to the contrary were supported by the recommendations of the Renfors Commission, a government study commissioned to look into the file sharing issue. The GOS has declared that it will not further implement Renfors' recommendations. End note.)
Comments: The Embassy says in cleartext that Three Strikes (“injunctive relief” in legalese) is the only point Sweden hasn’t fulfilled. The referenced Renfors Commission produced the law proposal that explicitly wanted to disconnect people from the net without trial — the infamous Three Strikes. Its secretary, Johan Axhamn, is now lobbying hard within the copyright industry’s lobby organization Netopia to introduce extrajudicial censorship through another one of IIPA’s six points. The Renfors Commission acted very lopsidedly in its directives and execution from the get-go, and now we know why.
IIPA checklist says:
…and implement the IPRED directive in a way that the copyright industry can get internet subscriber identities behind IP addresses.
8. (U) Implementation of the Enforcement Directive: The bill was approved by Parliament on February 25, and the new provisions will enter into force on April 1, 2009. The political sensitivities made the final handling of the Bill very delicate for the Alliance government. Much of the debate and negotiations have been done in public, and there has been tremendous pressure put on individual MPs. The passage of the implementing legislation is therefore a much greater victory for the GOS than it might appear. Major changes, compared to the original proposal, are: -- the law will not be retroactive. [...] -- The court will make a proportionality assessment, i. e. weigh the need of the rights-holder to get access to the personal identity against integrity aspects of the person behind the IP number. The law now stipulates that a certain scale of infringement will be needed for the court to decide that the information should be handed out. Normally, that would be the case when the infringement consists of up-loading a single film or musical piece [...] -- The law includes provisions that the GOS intends to observe and assess how the law is used [...]
Comments: This was fulfilled to the letter. But we note three things in this cable: First, it is clear that the United States were behind the controversial parts of the IPRED implementation that have become synonymous with the entire law in Swedish language — the parts giving the copyright industry access to subscriber identities behind IP addresses. This part is entirely voluntary in the directive.
Second, we should be careful whenever the government discusses “large-scale file sharing”, because it says here in cleartext what that means: uploading one single movie or music track, something that 250 million Europeans do pretty much on a daily basis.
Third, note the tone of significant disappointment over the law not being made retroactive.
IIPA Checklist says:
2. Prosecute to the fullest extent the owners of The Pirate Bay.
12. (U) After the raid on Pirate Bay on May 31, 2006, the issue of internet piracy was fiercely debated in Sweden. Press coverage was largely, and still is, unfavorable to the positions taken by rights-holders and the USG [US Govt]. The Pirate Bay raid was portrayed as the GOS [Govt of SE] caving to USG pressure. The delicate situation made it difficult, if not counter-productive, for the Embassy to play a public role on IPR issues. Behind the scenes, the Embassy has worked well with all stakeholders. After 18 months of investigation, the prosecutor filed indictments against four individuals for contribution to copyright infringement because of their activities administrating the Pirate Bay bit torrent webpage. The case is currently being heard in the district court in Stockholm, and the trial is scheduled to be completed on March 4. The sentence is expected on or about March 25, i.e. before the conclusion of the Special 301 review process. However, we fully expect that any outcome will be appealed to a higher court, which means that the final verdict will not be known for several years.
Comments: At the time of the raid against The Pirate Bay, May 31, 2006, there were clear indications of the Swedish authorities cowing to US pressure. It could only be indicated, not proven in a court of law. Here, it’s in black and white on a checklist handed to the Swedish Government, along with the notes that the Justice Department is “fully on board”.
The Embassy also notes that they have worked behind the scenes with “all stakeholders”, meaning the stakeholders in a negative outcome for The Pirate Bay and Sweden’s competitive IT industry. Some of these are named in other cables, specifically the plaintiffs’ lawyers in the Pirate Bay trial.
IIPA checklist says:
3. Transfer scarce police resources from investigating real crimes and devote them to safeguarding American monopolistic interests against ordinary citizens.
10. (SBU) Police and prosecutors: There are now two full-time prosecutors dedicated to IPR/copyright issues. Police officers have been trained, but we understand that they are not allowed to devote attention to IPR/copyright issues. They are back in their regular line of duty in their districts, where there are conflicting priorities. We have understood that the prosecutors have alerted that this is a problem for their work - they are "stuck" with a backlog of old errands and without the support of investigative officers. The prosecutors ask for investigative officers that are exclusively devoted to IPR issues, today there are no such investigative capacities. The Justice Ministry has repeatedly asked the Head of the Swedish Police for information about how he plans to come to terms with the investigation deficiencies. Although the [Govt] recognizes the needs, the budget bill for next year will likely not contain significant increases for law enforcement, given the harsh economic conditions. This is an area where post can work with the [Govt of SE] and [the copyright] industry to highlight the significant impact additional resources in this area might have.
Comments: Chalk another one up. News just today (September 5, 2011) announced a new national super-unit in the Swedish Police aimed only at people sharing movies, music and porn. News in Swedish here, translated here.
IIPA checklist says:
4. Take large-scale initiatives against people sharing and downloading music, movies and porn.
11. (SBU) Public education: In the fall of 2008, the GOS released a new information material, primarily aimed for youth, which will be broadly distributed in Swedish schools. Justice Minister Ask's staffers are currently considering the pros and cons of engaging Cabinet members in the public debate. Given all the negative attention around the Enforcement directive and the Pirate Bay trial, the determination thus far has been to keep a low profile. The [Govt] recognizes that there is a real risk that the window of opportunity was lost already several years ago -- when leading [politicians] didn't take the debate. How to engage at this point is a delicate matter.
Comments: The Justice department embarked on “public education” against sharing, aimed at youth. We criticized this material heavily as it was published (rough translation). The Justice Department sent “educational material” with lopsided copyright monopoly propaganda to high schools and junior highs as education material! This had never happened before, and I criticized the material on point after point for being politically biased, only tell half the story, or be directly and factually wrong. Now, we know that this action was commissioned by the United States.
IIPA checklist says:
5. Make it possible for the copyright industry to sue people (“pursue new civil remedies“) with a minimum of hassle.
9. (U) Granting police and prosecutors the right to identities behind IP numbers of individuals potentially implicated in copyright crimes of lower dignity, i.e. fines rather than prison sentences: The Justice Ministry has also worked towards the goal of changing legislation so that police and prosecutors can get access to information about identities behind IP numbers in cases where the crime could lead to a fine (rather than a prison sentence). The usual Swedish term for this type of crime (punishable by fine, not prison) is "crime of lower dignity." At present, law enforcement officials are only allowed to get such information if the infringement could lead to a prison sentence. The [Govt] has agreed to change the legislation, and it was made part of a study commissioned to propose the steps needed to implement such a change. The proposed changes were recently separated out from the rest of the study, and were reported in advance to Justice Minister Ask late January 2009. Although the slow legislative process is disappointing, the GOS has already agreed on the necessary changes that will strengthen the investigative tools of enforcement officials.
Comments: The Embassy’s text describes a lengthy process on how this mechanism for the copyright industry was moved from bill to bill. It surfaced again this winter, when Minister of Justice Beatrice Ask announced “step 2″ of traffic data retention, when its usage would expand from just combating organized heavy crime to also include combating petty-fine crimes like (specifically) file sharing. Thus, this cable is not stale by far; the government is still ticking off its checklist.
It is interesting that the Embassy notes that “the Government has agreed to change the legislation”: changing laws is Parliament’s job, not the cabinet’s. At least Parliament has the puzzle piece now that this is American-made mail-order legislation.
IIPA checklist says:
6. Abolish the messenger immunity, making Internet Service Providers liable for copyright monopoly infractions happening in their wires, and force them to interfere with the traffic.
6. (SBU) Industry consultations/ISP liability: The GOS [SE Govt] held a series of industry consultations in the summer/fall of 2008, with the explicit aim to discuss a voluntary industry agreement involving ISPs and right-holders organizations. Industry contacts reported that the ISP's were not willing (they claim they are not able) to take on any action on a voluntary basis. The first round of consultations was concluded without results during the fall of 2008. The Justice Ministry is currently working internally in the GOS to get acceptance for a second round with a clear incentive for progress, i.e. threatening with legislation in the absence of a voluntary agreement. There is some resistance in the Center party led Ministry of Enterprise, Energy, and Communications, and negotiations are on-going at senior GOS-levels.
Comments: Maybe not a full mission accomplished on the checklist, except a George Bush carrier-style one, but ordering participants to talks under a threat of legislation is at least a very good effort. This is one of the ugliest imaginable way of destroying the Net as we know it. It’s as if the Postal Service would be made responsible for the contents in a letter — for the words on the paper! — or if telecom companies would be held responsible for aiding and abetting crimes planned over the phone. If this were to come, they would only be able to allow certain predetermined, approved and harmless things to be communicated. “Press 1 to say bye.” Otherwise, they would be liable for everything said.
Needless to say, this is the American copyright industry’s dream.
The concept is completely foreign. The only thing helping somewhat against file sharing would be to kill the entire net, and this would be such an action.
The copyright industry’s lobby association Netopia is working intensely to push for exactly this, trying to spin it as “intermediary responsibility”.
So there it is. All in black and white, in excruciating and incriminating detail.
All the attacks on civil liberties and dismantlements of rights in Sweden, rights that have been and should be taken for granted, have been a demand from American trade interests. And these attacks continue to this date.
This takes some time to digest, as MEP Christian Engström writes (translated: “Tinfoil Hats Off for Sweden’s Puppet Government“). But now, we know that the politicians lied, all the time. Everything was mail-order legislation, violating Swedish citizens to benefit American industry. Just as we have claimed since 2006, but haven’t had the clear proof to show for it until now.