Hollywood Has Some Wild Ideas For Copyright In NAFTA
from the everyone-creates dept
Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.
In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.
It won’t surprise anyone that we don’t always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it’s too late:
1) Safe harbors enable child pornography and human trafficking.
Outside specialized circles, common wisdom is that “safe harbors” are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.
This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.
The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.
CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.
The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.
2) Exceptions and limitations to copyright are unnecessary in trade agreements.
According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist “[i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation.” Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.
Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.
This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don’t adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn’t work without them, especially in the digital age.
Conclusion: We need to set the record straight.
For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government’s stated policy and where the world is moving.
Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they’ve been doing so for well over a century.
It’s not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.
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.
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Filed Under: cda 230, dmca, dmca 512, everyone creates, fair use, nafta, safe harbors, trade
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This is like saying Porsche enables speeding. Should they be held liable for any speeding tickets I get since the car lets me exceed the speed limit?
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And there were court battles over exactly that, a century or so ago. The upshot was that the phone companies weren't liable.
Online services had battles over this before the Communications Decency Act:
In 1991 Cubby v. CompuServe ruled that CompuServe was merely a distributor, rather than a publisher. It was only liable for defamation if it knew, or had reason to know, of the defamatory nature of content in its forums. Since it wasn't moderating them, it didn't know.
In 1995 Stratton Oakmont v. Prodigy went the other way. Prodigy moderated its forums, wanting a family-friendly environment. And so the court ruled that it was liable for what was posted.
All of which could only mean one thing: Online services that chose to remain ignorant of their content were immune from liability. Those that moderated content, even in good faith, assumed full publisher liability.
1996's CDA 230 changed this. It's now safe to make good faith efforts to prevent criminal activity. Remove 230's protections, and we may go back to "ignorance is safety."
Which would be a gift to the criminals, though those who want to kill CDA 230 will deny it.
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No surprises here
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If I yell "kill the president" in a wal-mart, then the wal-mart shareholders should be FULLY liable for failing to prevent me doing it and should be fined MILLIONS!
Public executions by flamethrower for having copyrighted music in the background of your Youtube birthday video
Pay-per-view torture of anyone even SUSPECTED of installing a bittorrent client, whether or not it was legal.
Civil Forfeiture, in which the NYPD can just take everything you own (including your children) because "you look like a pirate / you're black and therefore we consider you to be a criminal"
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I'd say that was insane hyperbole, but given they are using child porn to try to undermine safe harbors... still hyperbolic, but not that much.
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Intelectual property is a lie
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Re: Intelectual property is a lie
Lets hold the speech-protections above copyright and keep the exemptions sacred by countering the conspiratorial claims. While you can't unpay people, threatening to create a shitstorm is usually more scary than losing a bit of money.
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The real endgame of copyright maximalism...
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Re: The real endgame of copyright maximalism...
A ratified treaty becomes a federal statute, which is subordinate to the Constitution. Like any statute that violates a right the Constitution protects, the treaty won't survive a constitutional challenge.
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If this renegotiation of NAFTA is scuttled because of compounding issues, will there be yet another massive about-face where people claim that the new NAFTA was going to give everyone a pony?
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It doesn't matter what is said, it doesn't matter how good or bad an idea something is, it doesn't matter if it's even possible or not. All that matters is who said it.
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Politicians are evil but easily used...
Yes most people are democrats and the comment above is pathetic but it could work to get them to change the laws to benefit the people for a while anyway.
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Re: Politicians are evil but easily used...
What they are is amoral, in an environment where substance doesn't exist and all that matters is appearances. Where there is no right and wrong, only maneuvering and negotiation.
An old saying about politicians is still true today: An honest politician is one who stays bought.
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Get ready for the unilateral trade negotiations to come.
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So unless you expect Trump to pull out of the trade talks he himself caused to be initiated, and unilaterally withdraw from the existing NAFTA without anything to replace it - in which case I don't see how there'd be any "unilateral trade negotiations" to follow - I'm not sure what you're talking about.
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