Why Did Congress Abdicate Its Power To Make Copyright Policy?

from the this-is-broken dept

Thu, Jun 6th 2013 2:00pm — Mike Masnick

Earlier today, we wrote about today's Congressional hearings about legalizing the unlocking of mobile phones. That post fretted about the unwillingness of Congress to take on the actual issue. The only reason that mobile phone unlocking is illegal today is because of a broken copyright law, specifically section 1201 of the DMCA, which isn't about copyright per se, but rather a bizarre, indirect way that entertainment industry lawyers think protects copyright by making technology illegal, and effectively gives those legacy industries veto power over technologies they don't like. So when Congress realizes how this is abused for reasons that have nothing to do with protecting copyrights, they should respond by fixing section 1201. But that's not what they're doing.

What I hadn't seen when I wrote the earlier post is the way in which the IP subcommittee of the House Judiciary Committee framed the hearing today. However, the official memo from the committee outlining the hearing is actually an incredible statement, in which the committee basically claims (falsely!) that Congress does not have the power to fix section 1201! How could that be? They claim that our "international obligations" forbid this. Specifically, they point to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty as binding their hands in fixing 1201.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”1 Enacted in 1998 as part of the Digital Millennium Copyright Act, Section 1201 (a)(1) of Title 17 implements these treaty obligations in the U.S. by prohibiting circumvention of a technological protection measure (TPM) that effectively controls access to a copyrighted work subject to one key exception. Every three years, the Register of Copyrights is directed by statute to conduct a rulemaking in which advocates for specific exemptions may petition for exemptions to the anticircumvention provisions for noninfringing uses subject to five factors.

Since the enactment of this provision into U.S. law, the U.S. has entered into several Free Trade Agreements that require signatories (the U.S. and the particular country or region) to enact anti-circumvention provisions and set requirements on how exceptions to them can be created. Most such FTAs limit the duration of such exemptions to a three or four year period and require that they be administratively or legislatively created based upon a record of evidence.

If you're even remotely aware of the history of the DMCA and the WIPO Copyright Treaty, you would know that this is first, an incredible rewriting of history, and second, a ridiculous and false direct claim from Congress that it has abdicated its sole authority in establishing copyright policy to the administration.

First, a bit of history: In the early/mid 90s, the entertainment industry, fearing new internet technology, sought to pass the DMCA, with a specific focus on anti-circumvention rules, in the mistaken belief that strong DRM would protect their increasingly obsolete business models. However, Congress wouldn't pass such a law. So what did they do? They went to Geneva, and used the "international trade" venue to create a treaty that would then require the US to pass the DMCA if it wanted to sign onto the treaty. The key architect of the DMCA and this entire plan, Bruce Lehman, has admitted outright that he went to Geneva as a direct "end run around Congress" because they wouldn't pass the law the entertainment industry interests wanted. Just a few months ago, at a 15-year anniversary conference for the DMCA, Lehman had no problem directly admitting that he absolutely went to Geneva to deal with Congress' failure to pass the law.

Now, we've pointed out that really fixing phone unlocking would likely violate international agreements. But, the point should really be that Congress should re-assess its sole authority over copyright policy. The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties. So it's not even clear if the USTR (a part of the administration) has the power to negotiate international copyright policy. But it's crazy to then think that this stops Congress from fixing a broken system.

To have Congress itself say that it can't fix a clearly broken system, because of trade agreements that it did not negotiate or set is an incredible admission. It's fundamentally incorrect. Congress alone has the power to set copyright policy, and if that "violates" international agreements, that's a problem for the administration, not Congress.

However, the fact that Congress is now claiming that it has given up its power, and clearly admits that it feels its hands are tied in actually fixing a very real problem that so many people are concerned about, because a few representatives of the Clinton administration, who have admitted directly that they were creating policy by routing around Congress to support their friends in the entertainment industry, should give everyone -- especially in Congress -- serious pause about supporting things like "intellectual property chapters" in new international agreements like the TPP and TAFTA.

Both of those agreements will be setting significant aspects of copyright (and patent and trademark) policy -- without any input from the public, because they're being negotiated entirely in secret. However, the entertainment industry has full access to the documents. And here we have Congress saying -- incorrectly -- that whatever comes out of that process will bind their hands.

That's crazy.

Whether or not you think Congress should be taking on mobile phone unlocking or copyright reform or anything along those lines, I would hope that most people can agree that there's something wrong about a process in which corporate interests get to drive US policy in international agreements without any transparency or feedback from the public, and then Congress claims it can't fix the problems that those agreements create.

H R 1123 Cell Phone Unlocking Hearing Memo (PDF)H R 1123 Cell Phone Unlocking Hearing Memo (Text)

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Filed Under: congress, copyright, dmca, judiciary committee, mobile phones, tpp, unlocking, ustr, wipo

45 Comments

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silverscarcat (profile), 6 Jun 2013 @ 1:15pm

And this is part of the reason why...
I don't hold the Clinton administration in very high regard.

Between the DMCA, the repeal of Glass-Steagle, allowing gas companies to become a unified conglomerate that cut down on competition...

Yeah, I don't like Clinton that much.
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Greevar (profile), 6 Jun 2013 @ 2:23pm

If they've given up their power over copyright policy...
...then I guess that means copyright is effectively null and void.
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dwind (profile), 6 Jun 2013 @ 2:25pm

Congress has become a spineless, toothless organization
And is being run over by the current administration and everyone else.
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Anonymous Coward, 6 Jun 2013 @ 2:26pm

congress is null and void
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Anonymous Coward, 6 Jun 2013 @ 2:27pm

it seems to me that there are two things here.

a) Congress has purposefully dodged the issue so certain members can continue to get payments from Hollywood and the other entertainment industries. they have just passed the buck through fear of having their bank balances reduced!!

2)that Congress might just as well give up all their seats now and let the entertainment industries and whatever other corporations as well, take over the running of the country OFFICIALLY instead of doing so UNOFFICIALLY, hidden in the back room!! in truth, it shows that the country is being run by a bunch of gutless arse holes that are no more than a front for those big corporations that are really in charge
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jupiterkansas (profile), 6 Jun 2013 @ 2:27pm

There is no reason to have any respect for the law anymore.

At least having the Copyright Office allowing unlocking and then banning it opened up the can of worms so we could see how rotten the whole system is.
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Anonymous Coward, 6 Jun 2013 @ 2:34pm

Ridiculous
Doesn't the U.S. already break treaties that it has signed onto every day? Why not this one as well?
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Pitabred (profile), 6 Jun 2013 @ 2:36pm

"Because money" is the answer to most of what Congress does.
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Anonymous Coward, 6 Jun 2013 @ 2:36pm

Treaties and US law
Am I wrong in thinking that Congress has ultimate authority over which parts of a treaty to make into law? Some people like to claim that treaties override even the US Constitution, but I don't think there's any legal basis for such a claim.
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Baldaur Regis (profile), 6 Jun 2013 @ 2:39pm

They're not reading closely enough...
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to �provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.�
Since there is no effective DRM, this clause would be null and void.
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Anonymous Coward, 6 Jun 2013 @ 2:42pm

Re: Treaties and US law
For instance, According to Wikipedia: "American law is that international accords become part of the body of U.S. federal law. As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. This was held, for instance, in the Head Money Cases. The most recent changes will be enforced by U.S. courts entirely independent of whether the international community still considers the old treaty obligations binding upon the U.S."
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Anonymous Coward, 6 Jun 2013 @ 2:55pm

This is exactly why the world needs pirates, lots of them.
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Anonymous Coward, 6 Jun 2013 @ 2:57pm

Why Did Congress Abdicate Its Power To Make Copyright Policy?
Because to do so paid quite well?
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Anonymous Coward, 6 Jun 2013 @ 2:58pm

Re: Ridiculous
No they honor ALL their treaties...just ask the Native Americans...
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John Fenderson (profile), 6 Jun 2013 @ 3:09pm

Re: Treaties and US law
Treaties are considered US law, and as with any other US law, they cannot overrule the Constitution.
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Anonymous Coward, 6 Jun 2013 @ 3:25pm

Re: They're not reading closely enough...
In legalese, the lawyers language, effective is a way of saying "acting like". Thus, the provision covers anything you want to call DRM and a lot more than if it just said technological measures. This provision can cover some non-technological measures if the measure can be said to act like a technological measure.

If you read international treaties you would be appaled at how often they use language to extend something to cover far more than what normal people would interpret it as.
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ahow628 (profile), 6 Jun 2013 @ 3:37pm

FTA
I like how "free trade agreement" has the word "free" in it. Couldn't be further from the truth.
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Richard (profile), 6 Jun 2013 @ 3:38pm

Re: Re: Treaties and US law
The US has withdrawn umilaterally from other treaties in the past - for example the ABM treaty.

"The Anti-Ballistic Missile Treaty (ABM Treaty or ABMT) was a treaty between the United States and the Soviet Union on the limitation of the anti-ballistic missile (ABM) systems used in defending areas against missile-delivered nuclear weapons.

Signed in 1972, it was in force for the next 30 years until the US unilaterally withdrew from it in June 2002."

Any sovereign state has the right to withdraw from any treaty. That is what "Sovereign State" means.
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Mason Wheeler (profile), 6 Jun 2013 @ 3:39pm

Re: And this is part of the reason why...
...not to mention making such a huge mess of the Presidency that we ended up electing George W. Bush as a backlash against Clinton's stupid antics. (Remember Bush's campaign promise to restore dignity to the White House?)

And then he managed to screw things up so badly that we elected Barack Obama in the backlash against Bush's stupid antics. How's that working out for us?

I shudder to think what we're going to end up with when the backlash against 8 years of the Obama administration's blundering comes to a head...
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saulgoode (profile), 6 Jun 2013 @ 3:41pm

Why should this be a problem?
The U.S. has never been in compliance with the WIPO Copyright Treaty as the U.S. does not recognize "moral rights" as laid out in Article 5.
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Shmerl, 6 Jun 2013 @ 3:41pm

At least they mention H.R. 1892 (the Unlocking Technology Act of 2013) in that text. That's the only sensible bill which was proposed about this.
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Anonymous Coward, 6 Jun 2013 @ 3:42pm

Re: Re: Treaties and US law
That is technically true, but why would you ever cause USA to act outside international agreements. It is disgraceful enough to see the abuse USA puts out in WTO and UN. Politicians see it as political suicide to take on international condemnation and the party in powers combined wrath. And for good reason...

Welcome to the real world Mike. "International obligations" is the number 1 cause of horrible laws worldwide.
Technically you can ignore them, but the backlash will likely kill your carreer and that is the main fear of almost all politicians.

In reality "international obligations" cover far more than just trade agreements (and also more than what politicians are actually obliged to to gain some air towards pesky FOIAs) but since trade agreements are by far the easiest target to take over for lobbyists they are what is mainly being hijacked.

Why waste money on lobbying a bit of national law, when you for the same money can buy international laws? That is reality. WIPO is owned by the dinosaurs and as long as it exists, your dreams of fair copyright terms are fever fantasies...
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Richard (profile), 6 Jun 2013 @ 3:43pm

Re: Re: They're not reading closely enough...
I agree on that point - but surely so long as there are some anti-circumvention laws the treaty is complied with. I can see nothing in the language of the treaty that requires circumvention to be outlawed when there is no copyright infringement at stake.
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jupiterkansas (profile), 6 Jun 2013 @ 3:48pm

Re: Re: And this is part of the reason why...
But isn't it all just a backlash against Nixon?
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Anonymous Coward, 6 Jun 2013 @ 3:54pm

Re: Re: Re: They're not reading closely enough...
That is true.
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Get off my cyber-lawn! (profile), 6 Jun 2013 @ 4:01pm

Who elected them King so they could abdicate?
they can't handle something as basic and integral to their existence as a BUDGET! They have NO business trying to make copyright policy!
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Gwiz (profile), 6 Jun 2013 @ 4:50pm

Re: Re: Treaties and US law
Treaties are considered US law...

They are? What do you mean by this?
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tracker1 (profile), 6 Jun 2013 @ 4:55pm

Slavery
So if we signed a treaty basically stating that we would allow the use of slaves on U.S. soil that the Congress could do nothing about it?
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Anonymous Coward, 6 Jun 2013 @ 5:17pm

Re:
2) that's what I said - congress is null and void
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tanj, 6 Jun 2013 @ 5:28pm

Re: Re: Re: Treaties and US law
http://en.wikipedia.org/wiki/Supremacy_Clause

http://law.onecle.com/constitution/article-2/18-tre aties-as-law-of-the-land.html
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Anonymous Coward, 6 Jun 2013 @ 6:18pm

Re: Re: Re: Treaties and US law
He means that treaties signed by the US and ratified by Congress have the same legal status as US federal laws.
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Anonymous Coward, 6 Jun 2013 @ 7:58pm

"The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties."

You don't understand what treaties are do you !!

What you are saying is "US law, should be international law, and "the US should go back on any agreements, or trade and commerce treaties because that's what you would want.

You make a treaty with a country, then come home and change the law to nullify that treaty, what do you think will happen the next time you want to have a treaty or trade agreement you will find NO ONE WILL WANT TO DEAL WITH YOU, or make any treaties with you, because you cant keep your work.

"The last time you were here, we had an agreement, we signed a treaty, you want home and changed the law, now you want another treaty ??? .... fuck off"..
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special-interesting (profile), 6 Jun 2013 @ 10:34pm

Why did Congress abdicate from its duty/powers about eternal copyright policy? The obvious problem is who we vote for. We vote for the wrong people! How does one pick a quality candidate/judge from the poor choices offered on typical ballots? Best answer; Write in. There is still hope for the election process though...

How can anyone recognize an honest candidate much less likely to violate your Constitutional Rights? What kind of test or list of questions can we ask to sort out the Constitutional malcontents from the honest hard working candidate? Of course its not the questions or test that are important but the answers and results.

Its likely that these questions and analysis wont be asked on the normal walled garden chosen question presidential TV/Radio candidate debate.

Keep in mind that it is not just the popular presidential candidate elections that are important but especially the smaller elections which are often used to sneak through unwanted tax bills or drug enforcement and or copyright activits.

Question #1; Are you aware of the various foreign treaties being pushed by trade-associations?

Answer A; �Why yes isn't it a great thing that our trade-associations and the USTR are looking out for us?�

Yikes This person wont even read them let alone pay attention to details like privacy or right of resale and the million other ways clever wording can steal personal (and corporate) freedoms. Its likely this person has been visited by the MPAA/RIAA/patent-trolls/other who donated largely. This person might even ignore a 12,000 voter signed petition just for his valuable corporate contributors. Or... The person is a real idiot. (its possible)

Answer B; �There are several trade treaties like TAFTA and TPP being contemplated in secret right now but its hard to call them trade agreements since they seem more to do with controlling the culture and spread of culture in the signatory nations than trade or business. A trade agreement has nothing to do with Intellectual Property. Ideas cant be owned. If the term limits of copyright were sane like 14-28 years there wold be no problem at all anyway.� Having a candidate say things like that wold be very helathy.

Question #2; Accessibility any way we want. What is your stance on how one obtains media/entertainment/news? More technically stated; How do you feel about Digital Rights Management (DRM) and untoward bad licensing agreements forced on the public at large?

Answer A; �Whats the problem? Intellectual Property must be protected its a priority.�

Do NOT vote for this totally technically illiterate candidate unless you want badly written law written by special interest groups? Intellectual Property is a buzzword that really means this candidate will enact law that further restricts your access to culture in many ways.

Answer B; Makes technical sense. Spout technically correct answers about technological based topics. Keeping in mind the exceptions in question #4. This is kind of a �fill in the blank� answer.

Question #3; Privacy. How do you feel about individual privacy in terms of phone records/tapping and outright spying on citizens? What about an individual purchasing spending habits on content sensitive entertainment in various formats books/films/mkv/avi/pdf/other?

Answer A; �I fully want to protect the average citizen right to privacy and will enact law to protect the rights of Intellectual Property and protect Americans from Terrorists.�

Expect nothing but more NSA/FBI/DoD/CIA/other unconstitutional spying on the public at large. Intellectual Property is that buzzword meaning corporate monopolies will get more power and you get the bill to pay for it.

Answer B; �Its clear that government has been panicking about terrorists and some sense of reason and calm must be inserted into Washington quickly. The threat of terrorism may be real but democracy and the American Culture of Privacy must be able to survive. Anonymous use of the internet is an important issue and must be protected by removing the PATRIOT and various other anti privacy acts.�

Question #4; Qualifications. What do you feel your qualifications are for the political/judgeship/sheriffs/other office?

Here we have a trick question derived from the REAL reasons we elect an officer in government.

That is... we elect them for honesty and integrity in the way we want them to enforce and interpret the law. Not how slick they act nor how tough a stance on crime they spout off about. We elect people to NOT enforce bad law and NOT to convict anyone for victim-less crimes. (no way a Hollywood studio is a victim of violent crime)

Answer A; �I'm gonna be tough on crime of any kind and lock up anyone suspected of any kind of crime.�

Its likely that this sheriff or candidate will bust down your door with a SWAT team and shackle your kids just for practice. Unless you want to pay for a lot of broken down doors. Don't vote for this power mad psycho.

Answer B; �I will lock up only violent offenders period. Congress writes many bad laws and copyright/drug laws are some of them. If you are a violent person you will be arrested and prosecuted with all due process followed. You may get a ticket for jaywalking but never arrested.� These are good things to say.

There will be obvious accusations of lawlessness and such drivel. Since bad laws ARE the REAL problem... its not a problem.

There are many more issues that great probing questions might be asked also. Like what about Intellectual Property itself and the Cultural black hole of out of control copyright industry? What about all the horrible treaties that have been trying to lock the US down and let foreign parties control US lawmaking process?

At the moment its basically easy to recognize a candidate that will not act in the publics behalf... they are Democrats and Republicans. Who else can we blame the current Constitutional crisis on? They are really weirdos being supported by two weird political organizations.

The Democratic and Republican parties protect their candidates in much the same way a union will force a company to keep a bad worker in spite of being worthless. They have such good PR staff that their candidates always look good and the opposition always looks bad. The dirt throwing is famously used.

Another way to recognize a looser is the size of anonymous corporate contributions. If there are not a lot of legitimate small grass roots donations its time to question the candidates viability. It would be a good sign if a candidate would submit to an interview with WIRED magazine or even from TechDirt itself. Some group that actually did discuss the real issues an definitely not any TV network more worried about their White House press pass than tacky things such as privacy/Bill of Rights/etc issues.

If any of the local dummy politicians complain about it vote them out also. Keep voting out monkeys and replacing them with reasonable people that support the constitution( especially the first paragraph), due process, privacy, the Bill of Rights and thinks Intellectual Property is a bad phrase.
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Anonymous Coward, 6 Jun 2013 @ 11:17pm

Re: Re: Re: Treaties and US law
...sigh...
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Paul Keating (profile), 7 Jun 2013 @ 3:55am

the power of a treaty
Mike, you need to focus on the difference between a treaty and a trade agreement. If the TA is not a treaty then it is merely a contract - nothing more. If it is a treaty, however, that is substantially different. Treaties become the supreme law and when Congress ratifies them they are abdicating their power. That is why it takes a super majority to do so. So, TA's are not an abdication. Treaties are. Thus, a TA does not preclude Congress from acting any way it desires -subject only to Constitutional limitations.
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Hephaestus (profile), 7 Jun 2013 @ 4:13am

Re: Re: And this is part of the reason why...
I shudder to think what we're going to end up with when the backlash against 8 years of the Obama administration's blundering comes to a head...

A half melted pudding pop ???
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Niall (profile), 7 Jun 2013 @ 4:29am

Re: Congress has become a spineless, toothless organization
A Congress that has a majority opposed to the current administration and that won't agree with anything BO wants? How is it being steam-rollered?
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Anonymous Coward, 7 Jun 2013 @ 6:30am

Re:
And this would be bad why? We shouldn't depend on paper and treaties to "force" people to do our will, or anyone elses. We should offer products and services, and if others want them, we can set the price and conditions. Anything else is a form of slavery.
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Not an Electronic Rodent (profile), 7 Jun 2013 @ 8:48am

Re: Re: Ridiculous
No they honor ALL their treaties...just ask the Native Americans...
You don't even need to reach that far back into history... Try asking Antigua.

This kind of "But our hands are tied! (...but we'll happily slip the cuffs whenever it suits us)" hypocrisy is one of the more disgusting things about the playground bully that is the US government.
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TaCktiX, 7 Jun 2013 @ 11:46am

Re: Re: Congress has become a spineless, toothless organization
Because the administration is executing every end-run around Congress they possibly can and Congress doesn't do anything other than grandstand and stall legislation. They should be ordering for impeachment for half of the things Obama has done that have directly flaunted the Constitution's provisions for branches of government, but they've never done anything close.
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Gwiz (profile), 7 Jun 2013 @ 11:47am

Re: Re: Re: Re: Treaties and US law
He means that treaties signed by the US and ratified by Congress have the same legal status as US federal laws.

Yeah. I see my mistake here. I was thinking in terms of Executive Agreements not ratified by Congress (like ACTA).
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TaCktiX, 7 Jun 2013 @ 11:49am

Re: Re: Re: Re: Treaties and US law
Actually in the order of precedence it's Constitution > treaties > federal law.
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Sheogorath (profile), 7 Jun 2013 @ 12:47pm

Re: Slavery
Go ahead, do it. Congress might be 100% more useful as slaves...
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Anonymous Coward, 7 Jun 2013 @ 12:48pm

Re: Re: Re: Re: Re: Treaties and US law
Citation please.
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silverscarcat (profile), 15 Jun 2013 @ 8:21am

Re: Re: Re: And this is part of the reason why...
Nah, that was Carter, we then elected Reagan because of it, but Reagan at least tried to fix most of the problems he caused (other than Iran-Contra) when he realized they weren't working or screwed up. We got Bush Sr. and then we elected Clinton as backlash against that... So...
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