Social and Political Consequences

Aram

August 7, 2012

¶ 1 Leave a comment on paragraph 1 0 There is nothing secret about the antipiracy agenda. While there is no shortage of speculation on the internet and elsewhere alleging that policies like ACTA, SOPA and PIPA are evidence of a “government-approved international conspiracy”[1], in actuality the piracy crusaders have been very consistent and forthright in their ambitions to prevent copyrighted content from being copied and retransmitted without permission, at any cost. It’s true that treaties like ACTA and TPP and agreements like the “six strikes” deal have been negotiated in secret, but as best we can tell, the policies they promote have been openly advocated by the RIAA, MPAA and their allies for at least a decade. Thus, the secrecy surrounding some of these negotiations can be better understood as a tactical measure to minimize the risk of mainstream media coverage and public backlash. And this in turn suggests that the negotiating parties are aware that potential backlash is warranted by their policies’ antagonism to open discourse, competitive markets, and civil liberties – which is in its own way just as damning, if not quite as sensational, as an actual conspiracy.

¶ 2 Leave a comment on paragraph 2 0 While public interest groups have largely led the charge against the excesses of the antipiracy agenda, there has also been some staunch opposition within the government itself. Senator Ron Wyden, who has been among the most active opponents to such legislation, justified his opposition to COICA by explaining that “the collateral damage of this statute could be American innovation, American jobs, and a secure Internet.”[2] Even the White House has acknowledged the potential threats of these policies if taken too far. In a public response to two petitions against SOPA, three federal officials coauthored a letter pledging that the president would “not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”[3] Similarly, in Britain, a recent government report argued that “copyright currently over-regulates to the detriment of the UK” and emphasized the importance of recognizing IP law’s “wider impacts on society, in terms of culture, education and basic human rights such as freedom of expression.”[4]

¶ 3 Leave a comment on paragraph 3 0 Yet despite these pledges, and the abundance of rhetoric suggesting that the needs of content cartels must be balanced against maintaining a robust civil society and a vital, innovative marketplace, antipiracy policy continues to advance the former at the cost of the latter, and there is little reason to believe that new powers will not be abused and exploited to their fullest extent. Warner Bros. has openly admitted to using DMCA takedown procedures to remove content from the internet that it didn’t own, and hadn’t even looked at.[5] Similarly, BayTSP, an antipiracy firm that polices infringement on behalf of major content companies, recently ordered Google to remove a link to the San Francisco Chronicle website, apparently under the mistaken impression that this news article actually infringed on copyrights associated with 20^th Century Fox’s film “Chronicle.”[6] The Department of Homeland Security seized the independent popular music site Dajaz1.com in a 2010 sweep of “rogue” sites (pursuant to the PRO-IP Act), only to return it quietly to its owners a year later, without pressing charges.[7]

¶ 4 Leave a comment on paragraph 4 0 There can be little argument that these are instances of a consistent pattern of collateral damage incurred in the pursuit of actual copyright infringement, akin to dolphins caught in tuna nets. The only questions that remain are whether the benefit is worth the cost, and who should determine where that line falls. Metaphorically speaking, should we continue to build stronger, more deadly nets, when the fishing industry seems so completely unconcerned with the fate of the dolphins? What are the odds that a law such as PIPA wouldn’t result in rights holders abusing their power to blacklist less powerful rivals and gain the upper hand in the marketplace, to the detriment of innovation? What are the odds that a law like CISPA wouldn’t be used by government intelligence agencies to build virtual dossiers on American citizens, even those who haven’t been accused, let alone convicted, of crimes? What are the odds that a law like the Berman bill or the Consumer Broadband and Digital Television Promotion Act (CBDTPA, 2002), a bill mandating the use of DRM in all digital devices and a broadcast flag in all public media, wouldn’t end up preventing millions of people from accessing and sharing information according to their fair use rights? Given the frequent abuses of existing policies and their resulting “chilling effects” on both the marketplace and the public sphere, the odds seem fairly low. Thus, it is not an exaggeration to say that America’s foundational principles are at stake if we pursue the antipiracy agenda to its logical conclusion.

¶ 5 Leave a comment on paragraph 5 0 Further complicating these issues is the fact that the piracy crusade’s effects don’t stop at America’s borders. I have already discussed the role that international trade agreements like ACTA, TPP and CETA play in setting, and raising, the bar for domestic copyright law. But there is another side to “harmonization.” Such pacts also serve the equally important role of exporting American IP policies – and therefore the interests of American content cartels and their regulatory allies – to the rest of the world, industrialized and “developing” nations alike.

¶ 6 Leave a comment on paragraph 6 0 These agreements are usually heralded as “partnerships” (e.g. the second “P” in TPP), or as a chance for the US to “work cooperatively with other governments to advance the fight against counterfeiting and piracy.”[8] Strong antipiracy laws that surpass those in the US, such as Spain’s Sinde Law[9] and Sweden’s Intellectual Property Rights Enforcement Directive (IPRED)[10] have been called out for praise in IFPI publications, as evidence of this global spirit of collaborative enforcement. Yet leaked intergovernmental communications tell a very different story: both Sinde’s Law and IPRED were enacted at diplomatic gunpoint, under pressure from the US government and the content cartels. Diplomatic cables published in 2010 by Wikileaks showed that the US had “threatened Spain to force them to pass stronger copyright enforcement laws” in the past.[11] Then, in 2012, Spanish newspaper El País published a letter from the US Ambassador Alan D. Solomont to the Spanish Prime Minister’s office, threatening that if Sinde’s Law (which was then stalled in legislative limbo) were not passed, the country would be placed on the USTR’s “priority watch list” (essentially the “most wanted” list for countries in breach of trade agreements) and subject to “retaliatory actions” with severe economic consequences. As a result, the incoming Spanish government fully implemented the legislation within 10 days.[12] Similarly, the Wikileaks cables reveal that, in Sweden, IPRED was one of several laws enacted there over a series of years, under similar threats that the country would be placed on the USTR’s watch list if it didn’t comply.[13]

¶ 7 Leave a comment on paragraph 7 0 Again, these specific examples point to a larger trend: The US government, at the behest of the piracy crusaders, routinely bullies other countries into adopting antipiracy legislation that outstrips domestic law in its threats to free speech, privacy and other liberties, then aims to use these examples to push for higher levels of protection and enforcement at home and around the world. But, in many of these nations, the costs of adopting such policies are even greater than those faced within the US. For one thing, there is the matter of simple economics: if the majority of revenue-bearing copyrighted content is owned by US corporations, then a higher degree of adherence to those copyrights and a lower tolerance for creative appropriation and technological innovation will simultaneously hurt local businesses and divert market revenues out of the local economy.

¶ 8 Leave a comment on paragraph 8 0 Another threat is cultural; as anthropologist Michael F. Brown argues in a prescient 1998 article, the internationalization of intellectual property laws disproportionately benefits commercial industries over local cultural producers, and threatens to drown “indigenous cultures” in the “commodifying logic of advanced capitalism.” The only solution, Brown argues, is to protect the “imperiled intellectual and artistic commons called the public domain” from becoming erased altogether by the relentless expansion of copyright.[14] Similarly, legal policy scholars Peter Drahos and John Braithwaite argue that the “hierarchy of cultural production” established by international copyright laws “creates disincentives to participate in systems of cultural production” outside of “global stardom” – in other words, encouraging people to eschew their local and traditional cultural forms for the higher economic and reputational rewards promised by the content cartels.[15]

¶ 9 Leave a comment on paragraph 9 0 There are also concrete consequences related to the quality of life for people in countries that adopt the antipiracy agenda. One of the most important examples is in the world of medicine. Several legal scholars, such as Joe Karaganis and Sean Flynn,[16] Jagdish Bhagwati,[17] and Michael Heller,[18] have amply documented the ways in which strengthening pharmaceutical patents, banning “parallel importation” of lifesaving drugs, and other agenda items tied to the piracy crusade have cost millions of lives and damaged untold more around the world. As Guardian columnist Madeleine Bunting summarized in a 2001 article about TRIPS and global IP enforcement: “Put baldly, patents are killing people. But that’s not all. Intellectual property protection has become a tool to make permanent the growing inequality of the global economy: the rich get richer and the poor get poorer.”[19]

¶ 10 Leave a comment on paragraph 10 0 Finally, it is important to remember that laws and policies have social consequences that extend beyond their sponsors’ intentions, or even their spheres of influence – and these must be tallied as costs, as well. In the case of IP law, there are several examples of malicious private and institutional actors taking advantage of legal powers and devices to the detriment of both liberty and security. A recently discovered variety of computer malware called “ransomware” crashes the computers it infects, then sends their owners messages claiming that the action was taken due to online copyright infringement. Infected computers can only be recovered if the owners pay up to the purported IP police: “To unlock your computer and to avoid other legal consequences, you are obligated to pay a release fee of £50.”[20] Yet to the malware’s hapless victims, this form of extortion may seem benign compared to the thousands of dollars demanded by actual rights holders alleging infringement.

¶ 11 Leave a comment on paragraph 11 0 I myself was targeted by a similar scam in 2011, in which phishers (a term for email-based con artists) sent me a message claiming to be “the proprietors of all copyrighted material that is being fringed upon on your companies webste [sic],” and demanded that they “recover damages from you for the loss we have suffered as a result of your infringing conduct,” to the tune of $160,000. I posted the message on my blog (both as an example of the point I am trying to illustrate here, and as a warning to other potential recipients of the email). Judging by the responses to my post,[21] this was a widely distributed message, and there’s no telling how many of its recipients clicked the link it provided, exposing themselves to financial losses or further malware attacks.

¶ 12 Leave a comment on paragraph 12 0 A marginally more legitimate, but far more deadly, variety of IP law exploitation comes in the form of “copyright trolls,” who use the letter of the law to achieve ends at odds with its statutory purpose – namely, as the US Constitution puts it, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Instead of promoting innovation and developing new ideas, trolls typically acquire legal control over an existing one, and use it to extort money from people who have violated their exclusive rights. This is hardly a rare problem; for instance, in mid-2011, tech news site TorrentFreak broke the story that over 200,000 BitTorrent users had been sued in mass infringement suits by copyright trolls within the past year and a half. None of these suits had actually made it to court; instead, the trolls used their legal leverage to identify the alleged infringers, then offered settlements of a few thousand dollars to each (typically cheaper than the cost of a defense lawyer). This tactic likely yielded hundreds of millions of dollars for the trolls, while overloading the federal judicial system and preventing real justice from being done.[22] Similarly, patent trolls[23] and trademark trolls[24] pursue similar tactics using those respective forms of intellectual property law, empowered by the stricter laws, higher penalties and amplified rhetoric of the piracy crusade.

¶ 13 Leave a comment on paragraph 13 0 A final concern about the misuse of the antipiracy agenda is its potential as a form of political censorship. Above, I described some instances in which newspapers and independent music websites were silenced by apparently overzealous piracy crusaders; while these instances were regrettable, it’s unlikely that the sites were targeted for political purposes. Yet such examples do exist. We routinely hear about the censorship and punishment of dissident bloggers and other online media sources in countries such as China, Egypt and Ethiopia, which offer fewer protections for free speech than we enjoy in the US and the EU. Yet there is good reason to believe that antipiracy laws have already been used for political censorship in Western democracies, and therefore reason to be concerned that increased surveillance and censorship powers will be used for these purposes as well.

¶ 14 Leave a comment on paragraph 14 0 A recent report coauthored by UK cyberpolicy advocate the Open Rights Group and the London School of Economics documents over “60 reports of incorrectly blocked sites” on the wireless internet in the first three months of 2012 alone, including several “political blogs [and] political advocacy sites.”[25] Recently in the US, there was a high-profile case of the DMCA being used as a tool for political censorship, when a Mitt Romney presidential campaign video was removed from YouTube under the pretext that it contained a short clip of President Obama singing a song by Al Green and therefore infringed the composer’s copyright. As Stanford Law scholar Daniel Nazer summarized the incident, “The upshot is that copyright holders can act as private censors, using DMCA to silence speech at the height of a political campaign.”[26] While these instances may not seem quite as dire as the harassment and imprisonment faced by dissidents like Guo Quan or Eskinder Nega, that is only because some protections for free speech remain; with every advancement of the antipiracy agenda, those protections recede.