Isn't It Time To Drop The Laughable 'Special 301' Report?

from the dump-it dept

Wed, Feb 16th 2011 6:57pm — Mike Masnick

We've written about the USTR's "Special 301" report many times. It's a report that the USTR puts out each year which names which countries have been "naughty" when it comes to intellectual property laws -- and then tries to shame/coerce them into putting in place much stricter copyright and patent laws. In the recent State Department cable leaks about copyright laws in other countries, what quickly became clear is that diplomats frequently use this list to put pressure on countries that have perfectly reasonable copyright laws to create copyright laws that will almost certainly harm citizens and local culture. The "process" for putting together the report involves nothing objective at all. Instead, the USTR basically asks a bunch of lobbyists to name the countries they hate the most, and voila, there's the basis for the list. Last year, I filed my own comments, pointing to various research and evidence that suggested the entire 301 process was flawed. It didn't make a difference, of course. The report still came out and it was more of the same: a lobbyist's wishlist.

This year, I didn't even bother, because it's pretty clear that the USTR has no interest in actually doing its job in improving overall trade, but is clearly going to continue to carry out its role as a lobbyist mouthpiece. Still, some groups, including Public Knowledge and Knowledge Ecology International made filings this year, pointing out how screwed up the whole Special 301 process is, and suggesting it's about time the USTR changed the overall process.

What I want to know is why we bother at all any more? Isn't it time to just drop the whole thing? It's widely considered to be a joke among those who understand how the list works. Each year Canada is named, and Canadian officials laugh and repeat the same claim about how they don't recognize a list like the Special 301 that is clearly nothing more than an attempt by US companies to influence Canadian policy in their own favor. Even people at the Copyright Office -- who normally are closely aligned with the USTR -- have spoken out in public about how the Special 301 is a joke, not to be taken seriously.

When so many people consider the list to be a total joke, isn't it reasonable to question why we still have it at all? The list has nothing to do with improving trade or improving economic conditions. It's a simple protectionism process that allows a small group of big companies to get the US government to act as their mouthpiece. It's an embarrassment, and it's time to dump it.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: diplomacy, intellectual property, lobbying, special 301, ustr

55 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 16 Feb 2011 @ 7:09pm

Unless something really bad happens they will not bother.
They go through the motions, and unless there is many many people filling those same reports every year to contest those lobbies things won't change.

Everybody should have a standard filling to file each year automatically.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 7:23pm

This is ridiculous
Of course we can trust the USTR Special 301 report! What possible vested interest could compel them to lie to us?

You can't spell "Trust" without "USTR" (and you have to re-order the letters, I guess).
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 7:33pm

Who from the Copyright Office has spoken out in public about 301?
You've made the claim at least a half a dozen times that members of the Copyright Office secretly think 301 is a joke. As I know nearly all of the copyright attorneys at the Copyright Office, I've always found this claim suspect. However, I've never bothered to call you out for it because I assumed you would claim that it was something told to you in confidence. However, in this post, you claim that these comments have been made in public. As such, you shouldn't have any difficulty revealing who it is that has made such statements.

That is, of course, unless this is another example of something you have completely exaggerated and/or fabricated.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 7:40pm

Why do you hate comedy so much? why?
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 7:48pm

Re: Who from the Copyright Office has spoken out in public about 301?
Canada is a pirate-haven, for pirates.
[ link to this | view in thread ]
zzz, 16 Feb 2011 @ 8:15pm

Re: Who from the Copyright Office has spoken out in public about 301?
You know all of the Attorney's in the Copyright Office? that seems like an exaggerated claim to me.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 8:18pm

Re: Re: Who from the Copyright Office has spoken out in public about 301?
That is because you probably know next to nothing about the Copyright Office. There are only a handful of attorneys that work there.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 8:36pm

Repeat after me: If the government did it, in any manner, in any way, if the government is attached to it, or it pertains to any law or report pertaining to anything about IP coming from the government, it's bad, a joke, and a waste of money - because Mike Masnick says so!
[ link to this | view in thread ]
Hephaestus (profile), 16 Feb 2011 @ 8:45pm

Re: This is ridiculous
" "USTR" (and you have to re-order the letters, I guess)."

re-ordered that spells RUST doesn't it? as in oxidized and falling apart.
[ link to this | view in thread ]
Kingster (profile), 16 Feb 2011 @ 8:50pm

I love TechDirt, but the trolls just keep on getting worse. That dropdown for "Show All Comments" needs to have a choice for anti-troll... [sigh]
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 8:52pm

Anybody interested to see how copyright got changed along the years since 1912?

http://law.copyrightdata.com/

Copyrights once where weak things, oh the good ol' days.

1853: Stowe v. Thomas

Harriet Beecher Stowe sued F.W. Thomas, publisher of a German-language periodical, Die Freie Presse, in 1853. Thomas translated Uncle Tom's Cabin into German and sold it in the United States without the author's permission. Judge Robert Grier of the Third Circuit Court of Appeals explained in the decision that once an author published her or his work, "and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them." With regard to translations, he continued, "the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or 'copy' of the same 'book.'" According to Siva Vaidhyanathan, the "antiproperty" rhetoric in the decision encouraged many American authors to take a stand in favor of copyright as property until the copyright law was revised in 1870 (Vaidhyanathan, 48-50).

Source: Copyright Timeline: A History of Copyright in the United States
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 8:57pm

Re:
A much more comprehensive treatment of US Copyright Law can be found at:

http://jessefeder.com/copyright/copyright_laws.aspx
[ link to this | view in thread ]
Hephaestus (profile), 16 Feb 2011 @ 9:03pm

Re:
AC - Dude - About a month ago, a blogger was talking about corruption in govenment and slamming the regime in egypt made anti government remarks. What you said is almost a direct quote of one of the commenters.

Are you two related?
[ link to this | view in thread ]
zzz, 16 Feb 2011 @ 9:09pm

Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
I'll talk to someone who probably knows better than both of us (The head attorney for NPR) and find out.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:11pm

"Instead, the USTR basically asks a bunch of lobbyists to name the countries they hate the most, and voila, there's the basis for the list."

Wrong. In early 2010 a notice was published in the Federal Register soliciting public input. A search of the USTR website reveals that over 700 comments from the public were received, including comments from foreign governments (Italy and Spain are two that come to mind).

Is the system perfect? No. Is it as "corrupt" as your above commentary suggests? No, it is not.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:13pm

BTW, if you take the time to read the report you will quickly notice that Canada is treated with kid gloves, the primary issue being associated with goods imported into the country.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:23pm

Re:
If the system weren't so corrupt copy'right' wouldn't last 95+ years and it wouldn't keep getting extended. It lasts so long, and keeps getting extended, exactly because it is every bit as corrupt as MM says it is and even moreso.
[ link to this | view in thread ]
Nick Coghlan (profile), 16 Feb 2011 @ 9:30pm

Re: Who from the Copyright Office has spoken out in public about 301?
According to the interwebs, the comments were made at a copyright conference. Thus something that could be both public (stated to journalists and others at the conference during hallway conversations) and private (stated off the record).

Those relaying the message appear to have chosen to keep names out of it to avoid exposing those making the comments to retaliation from their superiors.

Sounds perfectly reasonable to me - it's pretty common for people "in the trenches" to think the official policies of their organisations are nonsensical given the realities of a situation. Certainly far more likely than Mike make things up (since there's so much other evidence for the Special 301 reports being a silly waste of time, why would he bother?)
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:30pm

Re: Re:
Blame the Europeans who were the ones behind long, long terms for copyright. When the US finally ratified the Berne Convention, after 90+ years of refusing to do so, it was left with little choice but to extend copyright terms and for the most part eliminate statutory formalities that had been a hallmark of US copyright law.
[ link to this | view in thread ]
Nick Coghlan (profile), 16 Feb 2011 @ 9:33pm

Re:
When the result year after year reflects a lobbyist wish list rather than anything sensible, it's reasonable to assume that either most of that input is being ignored, or it is being heavily skewed by lobbyist funded "public" submissions.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:37pm

Re:
Uhh...what exactly do you think the quantity of comments received proves?
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:41pm

Re: Re: Re:
"it was left with little choice"

It could have simply refused. It chose not to, because the lobbyists said not to. Both the European and the U.S. lobbyists, either way, the system is every bit as corrupt as MM says and even moreso.
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 9:43pm

Re: Re: Who from the Copyright Office has spoken out in public about 301?
Care to share the link you're referring to?

To be honest, it sounds like you're going pretty far out of your way to make an excuse for Mike. Saying something was said in public carries a specific connotation. If something was said "off the record" it was inherently not a public statement. Mike's use of the phrase "spoken out in public" is clearly a lot stronger than saying something was merely said in a public place.
[ link to this | view in thread ]
Nick Coghlan (profile), 16 Feb 2011 @ 10:38pm

Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
I thought I had filtered Techdirt out of my results, but it turns out it was actually *Mike* that explained where he heard those comments (middle of the second paragraph):
http://www.techdirt.com/articles/20101227/17552212428/once-again-more-state-dept-cables -show-swedish-copyright-enforcement-behest-us.shtml
[ link to this | view in thread ]
Anonymous Coward, 16 Feb 2011 @ 11:52pm

Re: Re: Re:
When the Berne convention was ratified it was already 75 years, then they expand it again for f. sakes.
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 12:06am

Re: This is ridiculous
Note that we can also spell "distrust" with "USTR" (you have to re-order the letters too)
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 12:31am

Re: Re: Re: Re:
Also, if anything, it's the other way around, it's the U.S. trying to pressure others to extend copy'right' lengths and the U.S. has long been trying to pressure other countries to implement more restrictive IP laws. U.S. corporations, that contribute heavily to campaigns, push for these extensions.

"Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[8]

Proponents of the Bono Act argue that it is necessary given that the life expectancy of humans has risen dramatically since Congress passed the original Copyright Act of 1790,[9] that a difference in copyright terms between the United States and Europe would negatively affect the international operations of the entertainment industry,[9][10] and that some works would be created under a longer copyright that would never be created under the existing copyright. They also claim that copyrighted works are an important source of income to the US[10][11] and that media such as VHS, DVD, Cable and Satellite have increased the value and commercial life of movies and television series.[10]"

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

Again, U.S. corporations are the reason why copy'right' lasts so long, and it lasts so long exactly because the system is at least every bit as corrupt as MM claims it to be.
[ link to this | view in thread ]
G Thompson (profile), 17 Feb 2011 @ 12:45am

Re:
I agree

It seems that we have a Button for Insightful, and Funny.. can we also have a button for "Troll Alert"

Also a button for "The stupid it burns" could be handy too ;)
[ link to this | view in thread ]
G Thompson (profile), 17 Feb 2011 @ 12:47am

Re:
I agree

It seems that we have a Button for Insightful, and Funny.. can we also have a button for "Troll Alert"

Also a button for "The stupid it burns" could be handy too ;)
[ link to this | view in thread ]
G Thompson (profile), 17 Feb 2011 @ 12:49am

Re: Re:
Also a delete key for signed in members that only works if no replies to comment. Would save stupid double posted comments.. BLAH
[ link to this | view in thread ]
The eejit (profile), 17 Feb 2011 @ 12:52am

Re: Re: Re:
[citation needed]
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 3:21am

Re: Re:
If you are so narrow minded as to not be interested in the thoughts of others, you may as well read the website without looking a the comments. But I would say that you would be much poorer for the experience.
[ link to this | view in thread ]
Mike Masnick (profile), 17 Feb 2011 @ 3:37am

Re: Who from the Copyright Office has spoken out in public about 301?
You've made the claim at least a half a dozen times that members of the Copyright Office secretly think 301 is a joke. As I know nearly all of the copyright attorneys at the Copyright Office, I've always found this claim suspect. However, I've never bothered to call you out for it because I assumed you would claim that it was something told to you in confidence. However, in this post, you claim that these comments have been made in public. As such, you shouldn't have any difficulty revealing who it is that has made such statements.

It was two separate comments made publicly at a conference on the 100th anniversary of the 1909 Copyright Act held at Santa Clara University. One comment was, in fact, made by MaryBeth Peters, at the time the director of the Copyright Office. I don't remember the *exact* phrasing, but the general gist of it was she was talking about efforts to deal with infringement in foreign countries, and someone called out "yeah, but what about the Special 301 report" or "not according to the Special 301 report!" or something like that, causing Peters to very clearly roll her eyes, and then make a dismissive comment about how no one took the 301 report seriously.

The second comment came later in the day, when the Special 301 report was brought up again, and someone else in attendance from the Copyright Office (and I don't know who) pointed out, sarcastically, that the USTR had a history of going a bit "off the ranch" with it.

That is, of course, unless this is another example of something you have completely exaggerated and/or fabricated.

I would appreciate you not making such assertions towards me in the future. It's unbecoming, though, I guess it explains your anonymity.
[ link to this | view in thread ]
Migzy, 17 Feb 2011 @ 4:00am

Has skynet taken over Techdirt? Or have the ads made like bunnies and replicated exponentially?
Umm, I could swear there weren't as many ads yesterday when I visited techdirt, now it seems like there are all sorts of flashy, intrusive ads everywhere.
[ link to this | view in thread ]
Richard (profile), 17 Feb 2011 @ 4:49am

Re:
If the UK had compiled such a list in the 19th century then the US would have been on the top of it every single year.
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 5:09am

Re: Re: Who from the Copyright Office has spoken out in public about 301?
So these are the examples that support your claim that the members of the Copyright Office have "spoken out in public about how the Special 301 is a joke, not to be taken seriously"? Seriously? That is pretty laughable, Mike. That someone might be acknowledge weaknesses within the process does not amount to a claim that the entire thing is a "joke not to be taken seriously." Not even close.

I would appreciate you not making such assertions towards me in the future. It's unbecoming, though, I guess it explains your anonymity.

My assertion that your claim was either a major exaggeration or a complete lie is entirely accurate. You have just demonstrated that to be the case. In typical Masnick fashion, you have spun your own reality based on (less than) half-truths and ignorance. Your claim is all the more absurd given the fact that the Copyright Office is integrally involved in the 301 process -- last year a member of the Copyright Office led interagency taskforce that developed the report.
[ link to this | view in thread ]
Any Mouse (profile), 17 Feb 2011 @ 5:28am

Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
Well, let's see. The director of the Copyright Office made the offhanded comment that 'no one takes it seriously.' Then another employee from there comments that they have a history of going a 'bit off the ranch' with it.

Sounds to me like /they/ don't take it seriously. Don't see how you don't. Except that it's an obvious means of taking a stab at Mike. A weak one, though.
[ link to this | view in thread ]
Any Mouse (profile), 17 Feb 2011 @ 5:29am

Re: Re: Re:
'Repeat after me: If the government did it, in any manner, in any way, if the government is attached to it, or it pertains to any law or report pertaining to anything about IP coming from the government, it's bad, a joke, and a waste of money - because Mike Masnick says so!'

Pot? Is that you?
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 5:44am

Re: Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
The Copyright Office is one of the lead agencies involved in drafting the report. If they didn't take it seriously, why would the participate in the interagency taskforce that drafts the report? Why wouldn't they utilize their leadership role to make the report more respectable?

Mike's suggestion simply makes no sense. I have no doubt that MB probably did roll her eyes about 301. If you've ever met her in person or seen her speak on panels you would know she does this all the time. I do not for a minute believe Mike's suggestion that she called the entire process a joke. Such a comment would make no sense given her substantive role in the process.
[ link to this | view in thread ]
btrussell (profile), 17 Feb 2011 @ 5:46am

Re: Re: Who from the Copyright Office has spoken out in public about 301?
Yes, all the Somalis' come here for R&R.
[ link to this | view in thread ]
btrussell (profile), 17 Feb 2011 @ 5:55am

Re:
I'd prefer an ignore button.
Mike doesn't believe in censorship, but I generally leave a room when I hear a fart(toothless one speaking).
[ link to this | view in thread ]
Shon Gale (profile), 17 Feb 2011 @ 6:15am

Who or what the hell is a USTR? I had to google it to find out and missed reading your article. Doing research on your research sucks. Name the acronyms for us dumb shits.
[ link to this | view in thread ]
abc gum, 17 Feb 2011 @ 6:17am

Re: Re: Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
I guess that in Anonymous Coward - I Don't Believe it World - one must get all quotations signed and notarized.
[ link to this | view in thread ]
abc gum, 17 Feb 2011 @ 6:21am

Re:
Some have difficulty discerning different shades of grey
[ link to this | view in thread ]
Bruce Ediger (profile), 17 Feb 2011 @ 6:59am

Re: Re: Re: Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
No, in Anonymous Coward - I don't Believe It World, you have to HAVE A LAWYER SAY IT.

Because LAWYERS CAN DETERMINE THE LEGALITY OR TRUTH OF SOMETHING. Everyone else is a miserable, untrustworthy prole.
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 7:40am

Re: Re: Re: Re:
And I would of got away with it if it wasn't for those pesky Masnicks!
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 7:50am

Re:
Missed reading the article? It's still around somewhere. If only I could remember where I put it.
[ link to this | view in thread ]
Anonymous Coward, 17 Feb 2011 @ 8:07am

Re: Re:
Under the Administrative Procedure Act outlined in Title 5 of the US Code, each public comment is required to be considered. I see this all the time in other matters such as notices of proposed rulemaking.
[ link to this | view in thread ]
btrussell (profile), 17 Feb 2011 @ 8:18am

Re: Re: Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
"...the criticism of countries like Vietnam and the Philippines for encouraging the use of open source software (the Vietnamese program was established to help reduce software piracy)..."
http://www.michaelgeist.ca/content/view/5643/125/

What have they got against OSS that it warrants including a Country on the list for using/encouraging it? Sounds like a joke list to me.

Spoiled child who wants it all their way. Not even happy when piracy is reduced. You must purchase our product! Hence, MS comes pre-installed.
[ link to this | view in thread ]
harbingerofdoom (profile), 17 Feb 2011 @ 8:53am

Re: This is ridiculous
just a side note: you cant spell "clusterfuck" without U S T R either.
[ link to this | view in thread ]
harbingerofdoom (profile), 17 Feb 2011 @ 9:05am

Re: Re: Re:
if the opposing commenter has something to actually bring to the table i agree with you 100%
but when its a drive by commentary that consists entirely of "YOURE A BUNCH OF SHEEPLE KOOLAID DRINKERS" and nothing more? how the hell does that even remotely contribute? all i know about the thoughts of that person is that they have no qualms about proving how juvenile they are, there is no humor in it and usually it smacks of a 12 year old /b/ troll.

i welcome reading opposing viewpoints. i dont welcome shouts of "youre a poopyhead"
[ link to this | view in thread ]
Mike Masnick (profile), 17 Feb 2011 @ 10:49am

Re: Re: Re: Who from the Copyright Office has spoken out in public about 301?
So these are the examples that support your claim that the members of the Copyright Office have "spoken out in public about how the Special 301 is a joke, not to be taken seriously"? Seriously? That is pretty laughable, Mike.

I agree that the 301 process is laughable, and it was good to see the Copyright Office agree. If you are saying my assertions are laughable, obviously that is your opinion, though I assure you that your opinion is based on incorrect assumptions. It was made clear that many in the Copyright Office do not think much of the Special 301 report.

That someone might be acknowledge weaknesses within the process does not amount to a claim that the entire thing is a "joke not to be taken seriously." Not even close.

No, it was pretty clear from the statements that they were not fans of the entire thing.

My assertion that your claim was either a major exaggeration or a complete lie is entirely accurate. You have just demonstrated that to be the case. In typical Masnick fashion, you have spun your own reality based on (less than) half-truths and ignorance.

This is simply not true, and once again, I would ask that you refrain from making false claims about me. Or, if you must, be a man and sign your name.

our claim is all the more absurd given the fact that the Copyright Office is integrally involved in the 301 process -- last year a member of the Copyright Office led interagency taskforce that developed the report.

You mean your buddy who then went to work for the industry immediately afterwards? Yeah, now *that's* convincing...
[ link to this | view in thread ]
btrussell (profile), 18 Feb 2011 @ 6:05am

Re:
Open a new tab?
Back button?
Another browser (window)?
Google Techdirt?

United States Terrorist Regime
[ link to this | view in thread ]
wvhillbilly, 18 Feb 2011 @ 1:47pm

Re: Re: Re: Re:
Whaddya mean the "system" is corrupt? The whole US government is corrupt and getting more so by the minute.
[ link to this | view in thread ]
Nick Coghlan (profile), 21 Feb 2011 @ 10:50pm

Re: Re: Re: Re:
Indeed. It would be nice if there was an "immature" or "time-waster" button next to the "report" button (allowing the latter to be reserved for more genuinely objectionable content).
[ link to this | view in thread ]