Enough, Already: The SOPA Debate Ignores How Much Copyright Protection We Already Have

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When it comes to copyright enforcement, American content companies are already armed to the teeth, yet they persist in using secretly negotiated trade agreements to further their agenda.

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In the past weeks, Americans have been realizing that the Stop Online Piracy Act (SOPA) might not have been the Great War, but a short battle in hostilities of grander proportions. This is not the first time copyright policy-making has lacked balance, lost its sense of proportion, or threatened civil liberties. It's just the first time the Internet has won.

Two things are missing from the current conversation. First, the recent debate all but ignores the broad arsenal of responses to copyright infringement already available to rights-holders, without SOPA. Second, the public has not been informed on how America's free trade negotiations have been used to circumvent the democratic process, accomplishing much of what SOPA was meant to do.

This administration, like its predecessors, negotiates free trade agreements without public input or transparency. These agreements quietly ratchet up the international scope of copyright protection and the harshness of penalties for infringement, without public discussion of how these changes impact companies or users at home. One of these agreements was just signed in the EU, where it is belatedly raising political havoc, and another was negotiated last week- in Hollywood.

The most frustrating part of the discussion around SOPA has been watching politicians and commentators fail to acknowledge the vast resources we already devote to protecting copyright in the United States. Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse). These standards were established through an alphabet soup of legislation: the No Electronic Theft (NET) Act of 1997, the Digital Millennium Copyright Act (DMCA) of 1998, and the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. And every few years, there's a call for more.

Many features of existing U.S. copyright law are harsh by international standards. The U.S. penalizes the attempt to access digital material against a rights-holder's wishes, even when the material itself is not protected by copyright. We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it's infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

Unlike past administrations that chose not to use government resources to protect private companies, this administration has built up the copyright enforcement infrastructure, and publishes a newsletter about its efforts with language that compares copyright infringement to terrorism. Last year, the current Copyright Czar secretly encouraged Internet Service Providers (ISPs) and rights-holders to establish a private agreement to enforce copyrights against Internet users, out of courts. And this administration has deputized the Bureau of Immigration and Customs Enforcement (ICE) to seize websites as if the Internet were a physical border, where protections for civil liberties are few.

Yes, it's bothersome to rights-holders that they can't just shut down foreign websites or block them. But think of what they already have: no such website can be created in the United States; U.S.-based users of the website can be sued for huge damages; Internet Service Providers (ISPs) will send Internet users warning letters and potentially cut them offline with no due process or government oversight; owners of infringing foreign websites can't come to the United States or hold assets here, for risk of seizure or arrest; and as evidenced by what's just happened to Megaupload, American prosecutors will even extradite people from other countries for copyright offenses.

There is another underexplored and compelling reason we don't need new legislation like SOPA, which would harm U.S. Internet users in the name of pursuing infringing foreign websites. We're already using free trade agreements to make other countries adopt the laws our content producers want.

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Trade routes. Credit: CC/David Rumsey Map Collection.

In recent years, the United States has pursued free trade agreements with developed and developing countries that bundle copyright policy with promises of beneficial trade. We publish yearly reports on which countries meet America's strict copyright standards, and which don't, and instigate trade sanctions against those that don't. We don't need SOPA with respect to these countries, because we've transferred the enforcement requirements and costs directly to them, often without the balancing, user-protecting protections contained in U.S. law.

It's not intuitive that free trade discussions should include copyright policy. Copyright is not historically part of encouraging a flow of goods between countries, because it protects those countries exporting copyrighted goods at the expense of those countries that are net importers. Most media coverage has missed this part of our recent push for "free trade." But copyright is now a standard part of every free trade agreement we negotiate.

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Margot Kaminski is the executive director of the Information Society Project at Yale Law School. More

She is a graduate of Harvard University and Yale Law School and a former fellow of the Information Society Project. While at Yale Law School, she was a Knight Law and Media Scholar and co-founder of the Media Freedom and Information Access Practicum. Following graduation from Yale Law School, she clerked for The Honorable Andrew J. Kleinfeld of the Ninth Circuit Court of Appeals. She has been a Radcliffe Research Fellow at Harvard and a Google Policy Fellow at the Electronic Frontier Foundation. Her research and advocacy work focuses on media freedom, online civil liberties, data mining, and surveillance issues. She has written widely on law and technology issues for law journals and the popular press and has drawn public attention to the civil liberties issues surrounding the Anti-Counterfeiting Trade Agreement.
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