Now That USMCA Is In Effect... Can Congress Even Reform Section 230 Without Violating The Agreement?

from the oh,-look-at-that dept

It seems like every other day we see yet another proposal to dismantle, revoke, or otherwise undermine Section 230 of the Communications Decency Act. But doing so might actually create massive international problems. That's because, as you may recall, despite some last minute attempts to remove it, the final USMCA retained language that suggests that any signatory to USMCA must have Section 230-like laws in place to protect intermediary liability. And, while it got surprisingly little attention, the USMCA went into effect last week. And thus, any change to Section 230 may raise at least some questions about whether or not they violate the agreement.

Now, there are limitations to this provision, but it's interesting to see some people pulling their hair out that "big tech" has already blocked any possible changes to 230 via the USMCA:

But it’s hard to invest much energy in what the optimal Section 230 framework would be, since Big Tech has already solved this potential problem—in a way only they can love. Years ago, they succeeded in getting a Section 230-style provision into the reworked NAFTA, the U.S.-Mexico-Canada Agreement (USMCA). And practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement. That makes it much, much more difficult to change it in any way.

I find this framing fairly hilarious if you know anything about the history here. As detailed in the excellent book, Information Feudalism, it was actually the big legacy "intellectual property" industries, starting with the big pharmaceutical companies and followed quickly by Hollywood, that pushed to include things like copyright and patent rights in international trade agreements. As we've described, those industries have long focused on this form of policy laundering to get what they want.

Indeed, the DMCA itself wouldn't exist without this process. As one of the architects of that law, Bruce Lehman, publicly admitted years ago in the 1990s, when Congress refused to create a DMCA-like law, he helped architect a plan to "run to Geneva" and get the 1996 WIPO Copyright Treaty signed, which "obligated" the US Congress to then create a DMCA-like law.

I have long found this whole process to be rather disgusting: leveraging backroom deals in trade agreements, that are negotiated out of sight of the public (or public interest organizations), with heavy input from industry, and then turning around and insisting that Congress must then abide by the restrictions in those agreements or face concerns that we're not living up to our "international obligations" (the favorite phrase of those laundering policy in this manner).

It is all a big scam, of course, but since everyone else played that game in order to attack the internet, is it really any surprise that internet companies eventually sought the same sort of protections via trade agreements as well?

So, while the whole process of laundering policy this way is slimy and disgusting, there's some level of ironic enjoyment in watching those now pushing for the undermining of Section 230 (which is often being driven by behind the scenes support from Hollywood), suddenly realizing that they now are facing the exact same game plan that they spent decades pulling against the internet.

Filed Under: intermediary liability, international obligations, section 230, trade agreements, usmca

Hollywood Using Trump To Undermine The Internet In NAFTA Talks

from the this-is-bad dept

As you may be aware, the US, Canada and Mexico are "renegotiating NAFTA" for reasons that don't entirely make sense, but we'll leave that aside. Either way, opening up that process has created an opportunity for Hollywood to attack the internet, and they've rushed right in. And, despite promises to the contrary, it appears that Hollywood may have succeeded in getting the Trump administration's US Trade Representative to back its dangerous plans.

To fully explain this requires a bit of a history lesson. A few decades back, Hollywood realized that what it couldn't get Congress to pass, it could force upon the US through "international trade agreements." Much of the history of what happened is detailed in the excellent 2002 book, Information Feudalism by Peter Drahos and John Braithwaite. The very short version is this: international trade agreements have mostly been negotiated without much fanfare or attention, often in secret, with handshake deals in backrooms. And since "trade agreements" are about industry and commerce, trade negotiators often spend most of their time listening to industry representatives to figure out what they want, rather than looking at what's best for everyone as a whole.

The legacy entertainment middlemen (very cleverly!) realized this long before many others did, and realized that if they could make copyright a "trade" issue, they could continually ratchet up the protectionist parts of copyright law. The plan involves a few clever components. First, find a few countries where they can convince local legislatures to pass ever more draconian copyright laws. Second, put pressure on trade negotiators to put similar provisions into trade agreements. Third, whine about countries (including the US) "failing to live up to the obligations of our international trade agreements" and forcing everyone to ratchet up their copyright laws to "comply." Wash, rinse, repeat.

This is actually how the DMCA itself became law in the US (which is ironic as you'll see in a moment). Hollywood tried to pass a DMCA-like law in the US in the mid-1990s and it failed. So, as the main architect of this plan publicly admitted a few years ago, they did "an end-run around Congress," ran to Geneva, and got a new trade agreement -- the WIPO Copyright Treaty -- passed. And then they scurried right back to Congress, and said to meet the obligations of the WIPO Copyright Treaty, we needed the DMCA.

Since then, Hollywood has pushed for draconian copyright requirements in basically every trade agreement, and the USTR was only too happy to oblige. Ridiculously, the USTR, while pushing ever more draconian copyright law around the globe through trade agreements, has flatly refused to also include fair use or equivalent "safety valves" to keep the law from being abused. Of course, as we've discussed for years, these "safety valves" -- generally called "limitations and exceptions" -- are actually fundamental user rights. In short: the USTR has pushed for rights for big corporations, while refusing to include the necessary rights for the public. That's a dangerous combination.

That brings us to the ongoing NAFTA renegotiation. Hollywood has been whining about the DMCA's safe harbors quite a bit in the past few years (yes, the same safe harbors that are from the DMCA that it forced the US to pass via international trade agreements). So far, however, heavy lobbying by the RIAA and MPAA to do away with the DMCA's safe harbors has failed to convince Congress (in part because Congress has seen through this game and, in part, because Congress still remembers what happened with its attempt to undermine the internet through copyright law with SOPA).

But, hey, with the reopening of NAFTA, Hollywood saw an opportunity, and has pushed for language that will undermine the DMCA's safe harbors and fair use -- things they can't get through Congress alone. Unfortunately, the latest reports are that the USTR has agreed to support this move and, even though it's been shown that more balanced copyright promotes trade, the US is now officially putting more draconian copyright on the agenda -- a move that risks undermining the entire internet, not to mention a major backlash from internet users as well.

Needless to say, this is bad. Some in Congress are speaking up on this, but it's falling along the traditional lines. Senator Ron Wyden has made it clear that he's "deeply concerned" that the Trump administration is willing "to undermine the internet as a platform for speech, innovation and US jobs" with the NAFTA renegotiation. On the flip side, you have Orrin Hatch -- a Senator so closely associated with giving the legacy entertainment industry everything it's ever wanted, that he's given the nickname "Senator Fido" (as in "lapdog") in Rob Reid's comic novel about the music industry. Hatch has spoken up in support of Hollywood, saying that while it's fine to reopen the DMCA's safe harbors, there should be no mention of fair use or any other user rights in these negotiations.

At this point, it appears that Canada is left pushing back on the US's crazy Hollywood-inspired demands. Of course, Canada's suggestions aren't all wonderful either, but at least it's pushing for a more balanced approach -- one that actually recognizes the rights of the public and the importance of protecting free speech, while the USTR (pushed by Hollywood) seems to have decided to throw that right out the window.

Obviously, there are so many other things going on these days, that it's easy to miss the background of "NAFTA 2.0" negotiations. But at this point, it appears that Trump's USTR -- at the urging of Hollywood -- is trying to use these negotiations to do real damage to free speech and innovation online. Taking away the DMCA's safe harbors and refusing to include important protections like fair use in any copyright language should be seen as a non-starter. As we've argued for years, copyright is best left out of trade agreements altogether, but if it does need to be in there, giving Hollywood it's wishlist plan to destroy the internet shouldn't be the USTR's top priority.

Filed Under: copyright, dmca, fair use, international obligations, nafta, safe harbors, user rights, ustr

Even Before TPP And TTIP, US Already Being Forced To Change Laws By Trade Agreements

from the not-so-cool dept

Recently, we looked at how corporate sovereignty provisions undermine democracy by irrevocably binding future governments. The analysis was framed in terms of the UK's situation, but applied more generally to any country that signs up to investor-state dispute (ISDS) mechanisms in trade agreements. In particular, it applies to the US. And yet in President Obama's (in)famous TPP speech at Nike a few weeks ago -- the one where he claimed some of his "dearest friends" were wrong -- he said the following:

[TPP] critics warn that parts of this deal would undermine American regulation -- food safety, worker safety, even financial regulations. They're making this stuff up. (Applause.) This is just not true. No trade agreement is going to force us to change our laws.

But as a post on the Institute for Agriculture and Trade Policy site points out, just 12 days after Obama made that speech, this happened:

The House Agriculture Committee voted 38-6 to repeal in its entirety country-of-origin-labeling (COOL) for beef, pork and poultry. The House vote came in response to a May 18 ruling by the World Trade Organization (WTO) that the U.S. had violated global trade rules by requiring supermarket labels on beef and pork to indicate where livestock was born, raised and slaughtered.

…

Congress has not repealed it because of overwhelming public support for COOL -- 90% of Americans support such a measure, according to Consumer Reports. Needless to say, civil society including farm, ranch, consumer, labor and other groups, won't sit quietly. But the fact is that the U.S. has to change COOL or face trade sanctions (though how significant is unclear). The USTR has already indicated it will encourage Congress to revise COOL.

As that makes clear, alongside the fact that it is quite possible that the US will indeed modify its laws here because of a trade agreement, this would be happening even though the laws in question enjoy huge support among the US public. Which shows that trade agreements can not only force laws to be changed, but can do so with absolutely no regard to what the people in whose name they are supposedly negotiated, actually want.

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Filed Under: binding, international obligations, laws, regulations, tpp, trade agreements, ttip, wto

Even As Copyright Office Has Called For Shorter Copyright, USTR Tries Locking US Into Longer Terms

from the because-ustr-doesn't-give-a-fuck dept

This is hardly surprising, but even as the head of the US Copyright Office, Maria Pallante, has called for the US to roll back the Sonny Bono Copyright Term Extension Act, so that copyright would last the life of an author plus an additional 50 years -- rather than the 70 years it is today -- the USTR is working to make sure that can't happen. The latest report from the latest round of negotiations for the Trans Pacific Partnership (TPP) agreement says that the US has effectively bullied all the other participants into agreeing that the floor for copyright terms must be life + 70.

Officials settled on the arrangement after agreeing with the US's position on the length of term for copyrights. US representatives want copyrights to last 70 years from the release date of films and music and the deaths of authors of books.

As we've noted repeatedly, this is an old trick for copyright maximalists. Go into secret, backroom international trade agreement negotiations, and get them to agree to something like this -- and then when the issue comes up for reform in Congress, scream loudly how we can't possibly reduce the term of copyrights, because it would "violate our international obligations" and create havoc. We've been reporting on this kind of trick for about a decade and it's been going on for much longer than that. The plan is really nefarious. You get very friendly USTR officials (whose next job will likely be working for the industry to push things through in this secret negotiation, for which there is no public debate or ability to let the public have real input on. Then, when an issue actually comes up for debate in Congress, insist that it's impossible to change due to the "international obligations" that these same industries were responsible for slipping into the agreement in the first place.

It's really a disgusting practice -- and despite being called out on it over and over again, the USTR seems to be more than willing to simply do it again. This is yet another reason why Congress should not give the USTR "fast track" authority, as it will back them into a corner, and block their ability to reform copyright law as they would like and the way that even the Copyright Office itself has said copyright law should be reformed.

Filed Under: copyright, copyright reform, copyright term, international obligations, life plus 70, maria pallante, tpp, ustr

Colombian Student Facing A Minimum Of Four Years In Prison For Uploading An Academic Article To Scribd

from the yeah,-nothing-excessive-about-this-sort-of-enforcement dept

Upload a document to Scribd, go to prison for at least four years. Ridiculous and more than a bit frightening, but in a case that has some obvious parallels with Aaron Swartz's prosecution, that's the reality Colombian student Diego Gomez is facing. In the course of his research, he came across a paper integral to his research. In order to ensure others could follow his line of thinking, Gomez uploaded this document for others to view.

According to Gomez, this was a common citation practice among Colombian students.

The important thing is to make a correct citation, attributing researchers’ work by indicating their name and year of publication and, of course, not claiming the work of another researcher, but to recognize it and value it. Therefore, what we usually do is to reference the findings and make them available to those who need them.

The paper's author obviously disagreed and sued Gomez. But unlike civil lawsuits in the US, copyright-related lawsuits in Columbia carry with them the threat of imprisonment.

Under the allegations of this lawsuit, Gomez could be sent to prison for up to eight years and face crippling monetary fines.

To be clear, Gomez did not try to profit from the paper. He also wasn't acting as some sort of indiscriminate distributor of infringing works. But under Colombian law, none of that matters. But to really see who's to blame here for this ridiculous level of rights enforcement, you have to look past the local laws, past the paper's author and directly at the US government.

[Gomez] is being sued under a criminal law that was reformed in 2006, following the conclusion of a free trade agreement between Colombia and the United States. The new law was meant to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.

More details on the awfulness of Colombia's law (spurred on by US special interests) are available in the EFF's earlier coverage. Colombia gave the US copyright industry everything it wanted in order to secure this free trade agreement… and then it just kept going.

Colombia passed a criminal reform bill in 2006 that enacted many of these provisions, but Bill 201 goes even further. Under it, copyright infringers could face harsh criminal penalties, whether or not the individual is aware of committing infringement. It sets up severe penalty provisions including a minimum prison sentence of four years and significant monetary fines.

This 2012 bill compounded problems existent in the 2006 free-trade agreement.

Like previous US FTAs, it misleadingly defines “commercial scale” to include non-commercially motivated infringement, forcing US trading partners to adopt the US legal standard.

This bill was hastily passed as a welcoming gift for President Obama, shoved through the legislative process in order to get out ahead of the administration's appearance at a Colombia-hosted conference. This deference to the US government could cost Gomez at least four years of his life.

While Colombia seemed very eager to take the worst parts of US copyright law (and make them even more terrible), it was less inclined to take any of the good.

Colombia does not have flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and are narrowly tailored to some specific situations that are not at all applicable to the digital age. Therefore none of these will apply directly to his case even if it was done for educational purposes.

The only silver lining here is that the court still needs to consider two aspects before making its decision: mens rea and whether there was any actual economic harm to the author. On the first factor, it seems pretty clear Gomez didn't upload the document to purposefully "rob" the author of his earnings. On the latter, Gomez never made a cent from his infringing upload and actually took it down when he discovered Scribd was planning to charge unregistered users to download papers.

Beneath all of this lies the ugly reality of the academic research market. Just as in the US, plenty of useful information is locked up and inaccessible to anyone unable to afford the frequently exorbitant fees charged by various gatekeepers. Copyright's original intent -- "to promote the progress of science and the useful arts" -- isn't served by this behavior. Instead, it's deployed to further separate a large percentage of the population from knowledge. And in Colombia, it's being used to imprison someone actively "promoting the progress of science."

Filed Under: academic publishing, academics, colombia, copyright, criminal, diego gomez, fair use, free trade, free trade agreement, international obligations, knowledge, sharing