Time To Change (Or Ditch) The USTR Special 301 Process That Pressures Other Countries To Adapt US IP Laws

from the get-rid-of-it dept

Fri, Feb 19th 2010 4:34pm — Mike Masnick

A few days ago, you may remember, I posted the comments I submitted to the USTR on the Special 301 report, where I pointed out the value of allowing countries to set their own intellectual property policy, rather than forcing everyone to follow US faith-based intellectual property policy. Traditionally, the Special 301 process was a way for industry lobbyists to get the US gov't to put countries they didn't like on a special "watch list," that would lead US diplomats, who didn't even understand the lack of factual basis for the report, to start putting pressure on other countries to change their intellectual property policies to make them more draconian (funny, isn't it, that they only went in one direction?). Basically, lobbyists would submit the details of countries whose IP policies they didn't like, and the USTR would basically turn around and put out a list based on what was submitted, with little effort to actually look at the situation. This year, at least, the public was able to submit comments (such as mine, linked above), but it's unclear how much of an impact that will have.

In the meantime, EFF and Public Knowledge have teamed up to ask the USTR to change the process and, at the very least, stop taking the word of industry lobbyists as if it were gospel. They also suggested that the USTR be more flexible in allowing countries to set their own IP policy -- noting, amusingly, that the US itself famously didn't implement its "international obligations" in the Berne Treaty for decades, because the country felt differently about certain aspects of copyright law. Hell, even today we're not in full compliance with Berne. But for some reason the USTR acts as if other countries need to fall in line with US IP policy, even as we've chosen to go in a different direction when we felt it was warranted.

Of course, the best thing to do isn't to change the Special 301 process, but to ditch it entirely. It serves no reasonable purpose and has been abused by industry representatives for years. It puts a strain on US relations with other countries, and harms the ability for other countries to craft IP policy in the way that they feel will best serve culture and innovation.

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Filed Under: copyright, eff, public knowledge, special 301, ustr
Companies: eff, public knowledge

48 Comments

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Anonymous Coward, 19 Feb 2010 @ 5:09pm

Blame Canada!
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Logan2057 (profile), 19 Feb 2010 @ 5:26pm

RE: BLAME CANADA!?
Blame Canada, for what? Having the stones not to bow to pressure from the U.S.? For your information, bub, our copy right policies are in line with the rest of the world, it's the American policy that's off in space somewhere along with the USTR and the music and movie Kartels, who are behind this whole ACTA piece of shit and are trying to force it down people's throats or be sanctioned. Try cleaning up your own backyard, A C, and once you've gotten your head out of your ass and can see again you'll realize that not everyone is gonna bow and scrape to a bunch of bullies who are nothing more than greedy ass hats.
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Anonymous Coward, 19 Feb 2010 @ 5:27pm

Re: RE: BLAME CANADA!?
Look, up there, over your head.
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Anonymous Coward, 19 Feb 2010 @ 5:39pm

Re: RE: BLAME CANADA!?
I don't think he meant it as a serious statement.
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inc, 19 Feb 2010 @ 6:06pm

Re: RE: BLAME CANADA!?
sarcasm
A form of humor that is marked by mocking with irony, sometimes conveyed in speech with vocal over-emphasis. Insincerely saying something which is the opposite of one's intended meaning, often to emphasize how unbelievable or unlikely it sounds if taken literally, thereby illustrating the obvious nature of one's intended meaning.
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ChurchHatesTucker (profile), 19 Feb 2010 @ 6:08pm

Re: Re: RE: BLAME CANADA!?
It's a bird!
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Nick Mc, 19 Feb 2010 @ 6:18pm

Blame Canada
AC in post #1 forgot to pay for his sarc marc.
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Dark Helmet (profile), 19 Feb 2010 @ 6:19pm

Best of luck....
"They also suggested that the USTR be more flexible in allowing countries to set their own IP policy"

Look, to REALLY understand why this will be impossible until certain international bankers/industrialists no longer see America as the most fertile ground to expand a globalist environment, you need to understand the history of international banking in the world and its effects on the foreign policy of many nations, none more so than the USA.

This isn't about exerting American influence, its about asserting industry influence. Once you have an American style industrial presence in every strategically important country in the world, then govt. becomes a backseat player to business. And once that happens, it's global fascism realized.

Have you ever wondered why you keep hearing about the "global economy" lately? They're infusing language into the common vocabulary that wasn't previously there. Fostering a global identity (rather than a national or historical one), mixed with building a culture of fear gets you globalism at its finest...

http://conspiracyfiction.blogspot.com/2010/02/creating-culture-of-fear.html#links
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Anonymous Coward, 19 Feb 2010 @ 6:22pm

Re: Blame Canada
I also forgot to use the free one.
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Anonymous Coward, 19 Feb 2010 @ 7:12pm

Re: Re: Re: RE: BLAME CANADA!?
It's a plane!
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Anonymous Coward, 19 Feb 2010 @ 7:12pm

Re: Best of luck....
"This isn't about exerting American influence, its about asserting industry influence. Once you have an American style industrial presence in every strategically important country in the world, then govt. becomes a backseat player to business. And once that happens, it's global fascism realized."

It's difficult for special interest groups to scam the public in the long run, such scams only work in the short run. Heck, a more recent example than even the do not call registry that I've mentioned before is the example that people have given about Germany. Recently people were required to pay a tax to some agency in Germany to give away free CC music. But that requirement was eventually abolished as the public would not tolerate it. By pushing for all these insane laws they are only accelerating public outrage against IP which will likely eventually lead to the complete destruction of IP as a historical memory reflecting how bad IP laws are and how they caused so many social problems once upon a time. The thought of reinstating IP laws will seem preposterous one day, much like the thought of reinstating many of the past social and governmental/legal norms of the past seem today.

Just like technological advancement, social advancement is inevitable. But it does require the public to be active in the process, broken laws don't just destroy themselves.
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Anonymous Coward, 19 Feb 2010 @ 7:15pm

Re: Re: Best of luck....
Heck, mentioning the mere length of IP (ie: copyright) is enough to convince many people that the true purpose of IP is not to serve the public interest which will make many people hate IP more generally and question its true function in society.
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Anonymous Coward, 19 Feb 2010 @ 7:22pm

Re: Re: Best of luck....
and I think that the IP laws in Germany (that industry pushed for) preventing people from freely releasing CC licenses is testimony to the true purpose and function of IP in our society and it seems like people are waking up. and while the industry may have its way right now and the people are largely ignore, when public outrage against IP reaches a critical mass governments WILL pay attention to the will of the people, and no amount of industry lobbying will make a difference, and IP will be lucky to ever see the light of day again.

Social progress is inevitable, you can't stop it.
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Anonymous Coward, 19 Feb 2010 @ 7:34pm

USTR - Special 301 report
World's Leading Tech and Internet Companies: Don't Blame Canada on Copyright
http://www.michaelgeist.ca/content/view/4802/125/
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Anonymous Coward, 19 Feb 2010 @ 10:29pm

Re: Re: Re: Re: RE: BLAME CANADA!?
It's the GOVERNMENT!
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John Doe, 19 Feb 2010 @ 10:37pm

Obama Administration Should Step Up
Good article Mike and I wish the Obama Administration would step on this given how it seems like their whole copyright arm is full of lobbyists. What a shame ...

John Doe
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Anonymous Coward, 20 Feb 2010 @ 7:10am

Re:
Blame Canada¡

There, I fixed it for you.
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Terry Hart (profile), 20 Feb 2010 @ 9:20am

Ironic
Not only did it take decades for the US to officially join Berne, but the US was the first country to have a complaint launched against it for violating TRIPS - specifically the portion that required implementation of Berne. http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm

Ironic.
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someone who actually knows what he's talking about, 20 Feb 2010 @ 9:21am

Re: USTR - Special 301 report
the ccia's comment is much better written than mike's rhetoric filled crapfest.
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Anonymous Coward, 20 Feb 2010 @ 9:29am

Re: Obama Administration Should Step Up
sheffner debunked this last year.
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Anonymous Coward, 20 Feb 2010 @ 9:53am

Re: Ironic
1. Useful to distinguish between a treaty that is self-executing and one that is not. Berne is the latter.

2. Useful to note that US did not accede to Berne for about 100 years for a number of reasons, including, inter alia, copyright based upon fixation and not publication, wholesale elimination of formalities for establishing claims to copyright in a work, the extension of copyright terms to coincide with European norms (author keels over plus 50 years). This was no small matter given the fundamental shift in copyright law specified in Berne from traditional US copyright law dating back to the Copyright Act of 1790.

3. The cited WTO document refers to an action initiated after the US had eliminated all formalities associated with copyright other than with respect to federal court jurisdiction and certain benefits from formal registration. The WTO document does reflect that some other countries did not think the US was being tough enough on businesses in the case of secondary transmissions. They did not warmly embrace US exceptions pertaining to liability for the playing of radios, TVs, etc. They wanted the exceptions to be reduced significantly so that royalties would be payable in even more circumstances.

For all the constant whining and mischaracterization about the US adamantly insisting that all other countries conform their copyright regimes to those of the US, a review of history and the various international documents would be most helpful to place matters in their proper perspective.
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Anonymous Coward, 20 Feb 2010 @ 10:07am

It would be interesting to see a Canadian equivalent of the 301 report, to wit CTR 301 (english version only, of course):

1. OMG, no US equivalent to "Crown Copyright"!
2. Where are "moral rights"? It is immoral to not have any.
3. Fair Use in the US is much too broad. The US needs to craft new legislation more in line with Fair Dealing, and if this upsets the US balance between copyright and the First Amendment, well then perhaps it should reconsider the latter as well.
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Anonymous Coward, 20 Feb 2010 @ 10:21am

Re: Re: Obama Administration Should Step Up
Lol, that article is a joke.

"Journalism -- whether the traditional kind or on the Web -- requires a commitment to getting the facts right: checking them, and double-checking them, and where necessary triple-checking them, before presenting them to the public."

Please, IP maximists are notorious for consistently getting EVERYTHING COMPLETELY wrong. Heck, they can hardly ever get anything right, for them to complain about someone else who may have gotten something wrong is hypocritical of them.

Oh, and the article you linked to even got everything wrong.

"I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts."

(from your link and the link it links to)

However, Tom Perrelli's agreement precluded him for one year. Read the link on Techdirt with his specific agreement.

"Again, implicit in these statements is the accusation that the "former RIAA lawyers" have violated the Obama Administration's executive order on ethics, the Code of Federal Regulations, and bar ethics rules."

No, the link got it WRONG AGAIN, this time apparently intentionally. This is not what's being implied, what's being implied are that the ethical standards themselves are too low, and as proof I present to you the length of copyright law.
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Anonymous Coward, 20 Feb 2010 @ 10:26am

Re: Re: Re: Obama Administration Should Step Up
Indeed, it is important for journalists to get things right, but I don't expect intellectual property maximists to get anything right being that they have had a very bad track record when it comes to getting anything right.

They are hypocrites that completely disregard morality, if they think that anyone has ever gotten anything wrong they will rub it in their face inasmuch as they possibly can, despite the fact that the are the ones who got it wrong and those they are condemning got it right, and yet when they get everything wrong they ignore it completely. The hypocrisy.
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Anonymous Coward, 20 Feb 2010 @ 10:45am

Re: Re: USTR - Special 301 report
How is Michael Geist's write-up a crapfest? Do you actually know what you're talking about?
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Anonymous Coward, 20 Feb 2010 @ 10:46am

Re: Re: Re: Obama Administration Should Step Up
Actually, I partly take back what I said above.

"Justice Department spokesman Matt Miller told Main Justice that the Loftus letter was boilerplate language that hadn’t been updated for the new policy. Miller assured us that the White House ethics policy supercedes traditional ethics guidelines in place at agencies. In short: The two-year ban applies to Perrelli"

http://www.mainjustice.com/2009/05/09/copyright-foes-neednt-worry-perrelli-subject-to-s ame-ethic-rules/
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Anonymous Coward, 20 Feb 2010 @ 11:16am

Re: Re: Re: Re: Obama Administration Should Step Up
The above mainjustice link seems to intermittently want someone to register before seeing the article. I find it an act of corruption that a government spokesman would contribute information to a blog regarding government related/public policty that will put the information behind a subscription wall (or a paywall) of a blog that might even claim copyright on it without explicitly requiring that the blog EXPLICITLY release any articles discussing or quoting what the government official said under a creative commons license and not put such articles behind a subscription wall or paywall.

Here is another article about the subject.

http://copyrightsandcampaigns.blogspot.com/2009/05/main-justice-confirms-doj-recusal.htm l

A comment from the above link.

"From what I've seen, the claims of unprofessionalism and bias and unethical behavior that originate in places like "RIAA vs the People" seem completely unfounded both under the facts and the relevant rules."

This is a lie, the current IP laws in place alone are an act of corruption (ie: copyright length).

and just because some blog claims that the spokesperson of the DOJ claimed something, does it really make it true? How do we know that the two year rule, and not merely one year (or any years) rule, will be followed? The DOJ spokesperson claimed something that contradicts an agreement made with the DOJ and some individual, how do I know that what the DOJ spokesperson says will be enforced and not the agreement/letter between the two parties? and what punishments will be in place if the rules are violated?

Also found this interesting.
http://news.cnet.com/8301-13578_3-10133425-38.html
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Anonymous Coward, 20 Feb 2010 @ 11:37am

Re: Re: Re: Re: Re: Obama Administration Should Step Up
ANY TIME a government official/representative discusses governmental/public policy with an entity, like a blog or a news program (ie: CNN or FOX), such information and broadcasts should be in the public domain and there should be no registration wall or paywall.

For instance, if CNN or Fox news were to go up to Obama or the DOJ spokesperson and ask him questions regarding public policy and he were to answer and they were to broadcast it over cableco/telco infrastructure, such broadcasts should immediately be in the public domain (anything over public airwaves should be in the public domain). It's not for government officials/representatives to require the public to pay some entity some subscription fee or to register with some entity to better understand the law or how to better interpret it and what it's intended to do.

If some non government lawyer wanted to write a law book and charge for it it's one thing, but when a government official/representative writes or discusses a law and how it should be interpreted, there should be no requirement for us to pay for that. For instance, Obama may say something like, "this law only applies to such and such, whereas the law itself may not say such a thing, and without hearing Obama's comment one might not be able to deduce how to interpret the law. In essence, Obama might indirectly be creating or altering law with his comments merely by changing the interpretation from what appears to be written down (or adding specificity which can be viewed as indirectly adding to the law). The government should should be open about the laws in place, such information should be FREE of cost and unnecessary registration from some third party, and that requires comments from government officials regarding public/private policy to be open and free just as well.

Anything less is an unacceptable act of corruption, something the public should consider an intended attempt by government officials to require the public to pay or benefit some entity in order to properly understand the law.
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Anonymous Coward, 20 Feb 2010 @ 1:04pm

Re: Re: Re: USTR - Special 301 report
i wasn't talking about michael geist's write-up (no one refers to him as "mike"). i was talking about mike masnick's exercise in rhetoric from the other day.
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someone who actually knows what he's talking about, 20 Feb 2010 @ 1:09pm

Re: Re: Re: Re: Re: Obama Administration Should Step Up
it'll be followed because if it isn't, he'll get disbarred.
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Anonymous Coward, 20 Feb 2010 @ 1:22pm

Re: Re: Re: Re: USTR - Special 301 report
Someone who knows what they're talking about should clarify more.
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Anonymous Coward, 20 Feb 2010 @ 1:24pm

Re: Re: Re: Re: Re: Re: Obama Administration Should Step Up
Proof? Or are you just asserting this.
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Anonymous Coward, 20 Feb 2010 @ 1:33pm

Re: Re: Re: Re: Re: Re: Re: Obama Administration Should Step Up
The fact is that there is absolutely no accountability in this country.

"(NaturalNews) The U.S. Government Accountability Office (GAO) recently released a report indicting the U.S. Food and Drug Administration (FDA) for allowing health professionals convicted of crimes to perform research for the agency and to supervise patients' safety during clinical trials.

The FDA is required by law to disqualify from positions within its organization doctors that have been convicted of fraud or other crimes. Yet the GAO is publicizing that it takes an average of four years for criminals to be disbarred from their positions."

http://www.naturalnews.com/027536_criminals_doctors.html

Yet no one ever gets punished for breaking these laws.

Besides, you haven't even really provided me with much evidence that Perrelli is subject to these new standards being that his agreement seemed to be made before the new policy. Just some blog, behind a registration wall, claiming that the DOJ spokesperson said something.
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Anonymous Coward, 20 Feb 2010 @ 1:41pm

Re: Re: Re: Re: Re: Re: Re: Obama Administration Should Step Up
(to continue where I left off) In other words, why doesn't the DOJ spokesperson PUBLICLY say what he has to say? Why just say it on some unofficial blog, even if he did say it? Because then he can just later deny what he said. What he says on some blog that doesn't even provide evidence that he said it isn't really official, why isn't it on some official U.S. .gov website or something? Seriously, is the American public expected to be this stupid? I find your response an insult to our intelligence.
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herodotus (profile), 20 Feb 2010 @ 5:55pm

"This isn't about exerting American influence, its about asserting industry influence. Once you have an American style industrial presence in every strategically important country in the world, then govt. becomes a backseat player to business. And once that happens, it's global fascism realized."

Do you really believe this?

Seriously, do you?
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ChurchHatesTucker (profile), 20 Feb 2010 @ 5:59pm

Re: Re: Re: Re: Re: USTR - Special 301 report
Someone knows what they're talking about. Not necessarily him, though.
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Anonymous Coward, 20 Feb 2010 @ 6:09pm

Re:
With IP laws (ie: copyright length) the way they are, how can I reasonably believe anything else?
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Anonymous Coward, 20 Feb 2010 @ 7:50pm

Re: RE: BLAME CANADA!?
It's a South Park joke!
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Richard (profile), 21 Feb 2010 @ 4:51am

Re: Re: USTR - Special 301 report
"the ccia's comment is much better written than mike's rhetoric filled crapfest."

Comparing your linked pdf and Mike's comment I observe that they in fact make many similar arguments. They are written in slightly different styles but much of the content is quite compatible. Parts of Mike's comment read like an executive summary of some parts of the ccia document. Other than wishing to bash Mike (just for the sake of it) I don't see what your motivation is here.

My suspicion is that many of the contributors to the ccia document would (perhaps only secretly) welcome Mike's contribution.
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someone who actually knows what he's talking about, 21 Feb 2010 @ 5:06am

Re: Re: Re: USTR - Special 301 report
the difference is that mike's article barely has any facts in it. it's almost all opinion (and mostly of the OMG PANIC type... which is just rhetoric0. there's a difference between having a supported argument and merely an argument. the CCAs is supported. mike's is not.
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Richard (profile), 21 Feb 2010 @ 6:43am

Re: Re: Ironic
Certainly the US used to be a relatively "good guy" in respect of copyrights.

Some of this heritage still persists - notably fair use (which seems to be stronger in the US than the equivalent "fair dealing" in other English speaking jurisdictions) and the copyright exemption for the US government.

At present some of the differences between the US and the EU allow for a useful comparison of the effects of different regimes (eg database right).

Unfortunately the US has been moving in the wrong direction for the last thirty years or so and is finally starting to overtake Europe. At the same time it is beginning to pressure other countries into stronger IP laws.

It is a pity that the US didn't lobby for it's own copyright laws to be imposed world wide back in the days when they were better than what the rest of us had.
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Richard (profile), 21 Feb 2010 @ 8:44am

Re: Re: Re: Re: USTR - Special 301 report
From Mike's comment
"Thomas Macaulay famously argued in 1841 that we ought to be careful to only extend and expand copyright upon evidence that such an extension or expansion would, in fact, lead to greater incentives to create."
and
"A recent paper by economists Felix Oberholzer-Gee and Koleman Strumpf demonstrated this in rather great detail, highlighting that even as new technologies have undermined classical copyright law, there remains little evidence that this change has undermined the incentives to create."

and

"An even more recent study out of the UK, done by two industry economists working for PRS, the UK's performance rights collection society, also found that the overall music industry was making increasingly more money, despite the challenges of a changing market. "

This looks like a supported argument to me.

Also, most of the "support" in your document is simply the quoting of other peoples' opinions, whereas two of the three quotations from Mike's argument are referring to actual research data.

Plus your document contains it's fair share of rhetoric - eg

"The use of Special 301 by various interests to pursue specific policy goals unrelated to
the adequate and effective protection of relevant rights delegitimizes the Special 301 process."

(Incidentally I strongly agree with this statement - and I suspect Mike does too...)

The main difference I can see between Mike's response and the ccia one is that his is less pompous in style.
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Richard (profile), 21 Feb 2010 @ 9:16am

Re:
@Herodotus

I think he is going a bit far in suggesting an organised global conspiracy but the cumulative effect of all the lobbying will ultimately have a similar effect.

PS I really like the latest post on your site btw.
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Anonymous Coward, 21 Feb 2010 @ 9:23am

Re: Re: Re: Re: USTR - Special 301 report
"the difference is that mike's article barely has any facts in it."

You must be talking about another Mike, perhaps an IP maximist, because Mike Masnick's article is certainly based on fact. The fact is that there is little to no evidence that IP actually helps innovation and most of the evidence suggests it does not and IP maximists to this day have been completely unable to refute this fact.
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Anonymous Coward, 21 Feb 2010 @ 9:24am

Re: Re: Re: Re: Re: USTR - Special 301 report
Err... and most of the evidence suggests it HINDERS innovation, sorry.
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Anonymous Coward, 21 Feb 2010 @ 9:31am

Re: Re: Re: USTR - Special 301 report
The thing is Mike's blog is a blog intended to act as a hobby, it's not like an official group or site lobbying for something, so as such we shouldn't expect it to act the same as a professional group trying to lobby for something because it's not.

But Mike is certainly not doing anything wrong and his blog certainly does play an important role in our society and the fact that he does not constitute an official PAC or lobbying group or party that pursues a specific endeavor on a professional level in no way diminishes the importance of his blog either. I don't expect Mike's blog to represent itself like the ACLU or some other professional organization, because it's not.
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Mike Masnick (profile), 21 Feb 2010 @ 9:02pm

Re: Re: Re: Re: Re: USTR - Special 301 report
Richard,

Thanks for making these points. And, yes, you're right, I agree with most of the CCIA's document, and I actually ran my document by someone at CCIA as well, and they thought it was good as well. We're mostly in agreement. The styles are different -- certainly -- but I have no constituency to represent, and am not arguing from a legal standpoint but an economic one which (despite the claims of the anonymous guy above) are supported by facts and research.

I'm not quite sure what the guy complaining here is on about, other than he really doesn't like me, and he's really really upset that I've caught him being 100% factually incorrect in a few separate occasions in the last couple of weeks. Most amusing of all, was the one where he insisted I got the numbers wrong, and I came back with the numbers directly. And what happened? He disappeared completely.

He's too afraid to name himself because it would prove what we know: he's paid by certain companies to push an agenda, and he'd rather that not be exposed.
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Dark Helmet (profile), 22 Feb 2010 @ 6:27am

Re:
"Do you really believe this?

Seriously, do you?"

That there are a group of ultra-rich bankers and industrialists that operate without national allegience, and have purposefully pitted nations against one another for profit, thereby strengthening corporate interests over national ones? Absolutely.

In fact, for anyone that takes an honest look at history, I can't imagine how you could believe otherwise.

Now, whether that translates into a hostile conspiracy to control a one-world government through corporate or banking interests is a matter for debate. I'm not sure I believe that, but I'm also not closed to the possibility....
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