• But how?

 
The US delegation to WIPO, without public hearings, is pushing for passage of a new treaty, whose full formal name is "Treaty on the Protection of Broadcasting Organizations".

One of the clauses of the treaty is that all signatory nations must impose the Broadcast Flag. So if the treaty is adopted by WIPO and agreed to by the USA, then the Broadcast Flag would be mandated in the USA.

• What is a "netcaster's right"?

 
The treaty defines a new government granted private monopoly power called a "netcaster's right".

Suppose Yahoo assembles a web page composed mainly of material which is under copyright, but which is not licensed to Yahoo.  Yahoo might legally do so today under fair use rules.  Or suppose Yahoo were to assemble a page just about entirely of public domain material, or maybe of some combination of material under copyright, but not licensed to Yahoo, and public domain material, or maybe, even of material under a liberal copyright license, such as the GPL.

Under the treaty, Yahoo would now have a "netcaster's right" in the whole webpage.  Yahoo would have the legal power to prevent you from redistributing any part of the material if you got it via Yahoo's web page.

This new power cannot be a copyright under United States law, because the power does not proceed from any right granted to an author or an inventor.

And the power is held against holders of copyright in the material; they could not deny to Yahoo a netcaster's right.

Because of the Broadcast Flag mandate, and, in the United States, the DMCA, the "netcaster's right" would grant to Yahoo the power to run the computer in your house the way Yahoo wants -- which is not likely to be the way you want.  For example, you might want to store the web page, and then send a part of the web page, a part in which Yahoo holds no copyright, to friends, and even perhaps paying customers.  Today this would be legal.

But under the WIPO Netcasting Broadcast Treaty, Yahoo would have a legal power to stop you.  And because of the Broadcast Flag, Yahoo could stop you by direct manipulation of the computer in your house.  In other words, as with all serious DRM, The Englobulators get to run a rootkit on the computer in your house, and you would have no legal recourse.  Because of the DMCA, it would be a felony even to openly discuss Yahoo's rootkit.

• Why do you say the "netcaster's right" is an attack on copyright?

 
Because the power of copyright is to restrict distribution, and under the Constitution of the United States of America, only authors are entitled to copyright, in the sense that originally every copyright must be held by the author of the work, and by no one else.

The WIPO Broadcast Treaty would give this, up till now unique, power to restrict distribution, to anyone who publishes on the Net.  Under the treaty, any Net publisher would automatically be granted an exorbitant power over any material they publish, even if the publication is fair use, even if the the copyright holder does not want to restrict redistribution.

Public domain works would also fall under the power of the publisher to deny re-distribution.

So the netcaster's power would be a new power held by the netcaster even in opposition to the copyright holder's rights.

It would also be something completely new, beyond what authors have been granted by Congress: the power to suppress use of public domain works. And this is why "netcasters' rights" are an attack on copyright and an attack on the public domain.

• Nowadays, even the New York Times and Sony BMG agree that rootkits are bad. So how would Yahoo get to run the computer in my house?

 
The Broadcast Flag machinery has the capability to stop you from making a copy of the Yahoo web page on the machine before you.  The Broadcast Flag machinery also has the capability to prevent you from mailing a copy out to another host on the Net.  So under the Netcasting Treaty Yahoo runs the machine in your house, not you.

• Why have I not heard of this?

Because the US delegation to WIPO has pushed for this treaty in secret, knowing that the stakeholders, that is every citizen of the USA, and all human beings on Earth, would never agree to give over their computers to the Englobulators just because Yahoo has a business plan that requires the treaty.

• But you exaggerate. You and others know about the Netcasting Treaty, so again, I ask why haven't I heard about it?:

The treaty is not completely secret, but it is being pursued at international treatymaking fora, and newspapers and trade journals run very few stories about it.

The treaty was proposed several years ago, and some citizens and organizations have traveled across the ocean to attend the relevant meetings and argue against the creation of the new netcaster's right.

On October 13 2005, a number of citizens and organizations petitioned Congress to stop the US delegation's push for the Netcasting Treaty and for the government to hold public hearings on the treaty.

As of 18 January 2006, The Congress of the United States of America has not responded.

Many people and organizations have expressed opposition to the Netcasting Treaty in the privileged venues of the World Intellectual Property Organization, but the US delegation continues to press for it.

• But Congress, or the Copyright Office, or perhaps the USPTO, must have held public hearings on the treaty?

No.  Neither Congress, nor the Copyright Office, nor the USPTO, have held any hearings on the Netcasting Treaty.  The US delegation is apparently proceeding on its own in its push for the Netcasting Treaty.

Some have suggested that the US Delegation has been persuaded by a few lobbyists for a few large companies, in particular Yahoo.

We believe that we may be able to persuade the US Delegation to change sides and oppose the treaty.

In any case, Congress should hold hearings, solicit public comment, and hold workshops on the the proposed "netcaster's right" and the proposed Broadcast Flag mandate.

• What is New Yorkers for Fair Use doing?

We intend to persuade Congress to hold hearings and to take seriously, at this juncture, the rights of authors, the rights of owners of home computers, and the rights of citizens to speak freely using our Net.

We cannot do this alone.  We need the help of thousands more.  In particular, we need your help.

• What can I do today?

We must get Congress to recognize that they, and not the US Delegation to WIPO, are the responsible authorities.  Thus our side must first convince Congress to take seriously their responsibilities at this juncture and abide by the law, in particular the Constitution of the United States.
 
1. Write to your Senators and your Representative. Inform them about the Treaty.  Congress is the proper body to consider, and make or reject, laws of such great effect on our Net.  Certainly the US delegation to WIPO has no power to make such laws.  Therefore ask that Congress take up the issues of whether we should impose this new general regulation of the Net, and whether we should impose the Broadcast Flag in order to support the proposed radical restrictions on free speech using the Net.
2. Write directly to the US delegation expressing your opposition. Call for formal public examination by the Copyright Office of the proposed treaty.
3. Learn about the Netcasting Treaty.  Consider how it would affect you, and how it would affect your brothers and sisters and colleagues and fellow workers and users of the Net.
4. Join New Yorkers for Fair Use and other organizations and individuals when we argue against the treaty.