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.

We're getting more efficient at the negotiating process. In the past few years, our trade policy has expanded to dealing with large groups of countries at a time. The Anti-Counterfeiting Trade Agreement (ACTA), recently signed by the EU, was negotiated with more than thirty-five countries at once. ACTA significantly expands international law on criminal copyright enforcement, from one paragraph to more than ten. It also mandates digital enforcement procedures, now thankfully vague after public pushback against the idea of cutting off user Internet access through "graduated response." ACTA exports U.S. penalties for circumventing technological protection measures. It requires governments to encourage private arrangements between Internet Service Providers (ISPs) and right holders to enforce copyright law. It strengthens the power of border officials. And it requires the establishment of enforcement infrastructure, and enforcement coordination between countries. It fails to include basic balancing measures, such as the usual mention of fair use or limitations and exceptions.

There are substantial problems with how ACTA was negotiated: in secret, without public input, outside of institutions such as the United Nations (UN) or World Trade Organization (WTO). And there are places where ACTA potentially departs significantly from U.S. law, such as in suggesting criminal liability for Internet intermediaries. As long as ACTA is not ratified, however, it doesn't officially change U.S. law. It just binds us to a high standard internationally, so we can't reform our own laws later without trade problems. But as long as ACTA has not been considered by the Senate, the executive branch may continue negotiating these kinds of agreements with impunity, because our trade representatives assume that nobody from the public needs to approve or review them. This is why a number of activists are now calling for consideration of ACTA by the Senate, even though the U.S. signed it months ago.

In the EU, the reaction has been much stronger, with the European Parliament's special rapporteur for ACTA quitting in protest, Poland suspending ratification of the agreement, and a Slovenian diplomat publicly disowning it.

ACTA is not the whole story, and may not even be the most pertinent at this point. American negotiators are hard at work on the smaller but potentially more draconian Trans-Pacific Partnership Agreement (TPP), negotiated between ten countries, again with no transparency and no public input. A leaked draft of the U.S. proposal from earlier this fall shows that that our trade representatives are again aiming at Internet intermediaries, without a number of user-protecting provisions from U.S. law.

The Office of the U.S. Trade Representative is refusing to let the public participate in the conversation. There are no public drafts of TPP being circulated for comment by the public interest groups that stopped SOPA, or the innovative companies whose interests the agreement might harm. When a group of public interest representatives from universities and civil liberties organizations tried to hold a briefing at the TPP negotiation venue last week, they were told by the hotel that they had been asked to cancel the reservation. But not all those who wanted input were rejected. All negotiators were later invited by the host-the Office of the U.S. Trade Representative-to a private tour of 20th Century Fox studios, led by a member of Fox's government relations staff.

I'd like to think that in the wake of SOPA, the practice of negotiating trade policy behind closed doors will change. I'd like to think that our trade representatives will become responsive to public opinion, and as protective of our new industries as they are of the old. But in the meantime, our trade representatives are creating an international standard that is in many ways more draconian than U.S. law. New legislation targeting foreign websites is not necessary, as long as copyright policy is part of our policy on "free trade."

The only argument for legislation like SOPA is that China, Russia, India, and Brazil-countries where a lot of copyright infringement occurs-have not yet signed free trade agreements such as ACTA. Our trade representatives deliberately chose not to include these countries in negotiations, for fear that they might push back against our policies. It does not mean that we will be incapable of negotiating more reasonable trade agreements with these countries in the future. In fact, Russia seems to be in the process of significantly bolstering its copyright enforcement infrastructure, using government pursuit of file sharing as justification for state control of the Internet.

If we want to go after foreign websites, the answer is international law, but not the way we're currently using it. We should listen to the standards presented by other countries, and take public input-rather than secretly break the Internet in an effort to rush to results desired by one sector of the economy. We certainly don't need more domestic legislation.

If the United States continues its dalliance with censorship as copyright enforcement, it will be the laughingstock of other countries, which see how disproportionate our enforcement of copyright has been, relative to our protection of other freedoms. As one Chinese man commented, "I've come up with a perfect solution: You can come to China to download all your pirated media, and we'll go to America to discuss politically sensitive subjects."

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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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