The Antipiracy Agenda

Aram

August 6, 2012

¶ 1 Leave a comment on paragraph 1 0 Most IP policy (like policy of any kind) never appears on the public radar. If a proposed bill gets any mainstream news coverage beyond the outlets devoted to media, technology or law and policy, it is typically reported on using the framework promoted by the bill’s sponsors, as a novel solution to an entrenched problem such as digital piracy, which, unchecked, would destroy American businesses and American jobs – or worse. Occasionally, as in the case of SOPA and PIPA in the United States and ACTA in Europe, an activist subset of the general public becomes sufficiently engaged to fight the bill or treaty in question, making it too politically toxic for public officials to continue to support. But even in these cases, the initiatives are typically seen as discrete threats, Goliaths overcome by the collective slings of a thousand Davids.

¶ 2 Leave a comment on paragraph 2 0 In actuality, these initiatives are part of a continuum – an ever-evolving set of agenda items that reappear from bill to bill and treaty to treaty until they are legally enshrined on a global scale. Typically, the process begins with a trade agreement, establishing “minimum standards” for copyright protection across the many signatories. This is often justified in the name of “harmonizing” policy across regions[1] – a necessary precaution in an era of global digital information and capital flows. Once the agreement is in place, each signatory develops laws adhering to the requirement of the trade pact. To the greatest extent possible, the piracy crusaders will push legislators in the US to outstrip the agreement’s minimum requirements. Once enacted, these laws up the ante for the piracy crusade, establishing a new set of powers and negotiating parameters, and possibly leading to new judicial rulings applying the laws to emerging technologies and cultural practices. The content cartels also use the threat of further legislation as form of tactical leverage to exercise supra-legal powers and privileges in their dealings with third parties (as in the “six-strikes” agreement with American ISPs I described above). Once these new laws and business accords have been established, the piracy crusaders return to the international table to establish updated trade agreements with an aim to “harmonize” copyright protection and enforcement at these higher standards, and the cycle repeats itself.

¶ 3 Leave a comment on paragraph 3 0 As this process unfolds, technological innovators, public advocates and political activists work to develop alternative policy and communications platforms, typically with an aim to promote a more “open” public sphere in which free speech, privacy and transparency are privileged over protecting vested business interests. In many ways, this dialectic resembles a game of football, with each party working to advance the ball incrementally, play by play, over the long haul. Though, to be fair, the process can’t be reduced to a simple binary with two teams, or even two goals; no two organizations, artists, policymakers, technologists or public advocates share exactly the same set of interests, or the same vision of an ideal compromise. Moreover, there’s no discernable “end zone” in sight: While people may work toward a more open or more secure society, most of us would consider total transparency and total informatic lockdown to be equally dystopian prospects.[2]

¶ 4 Leave a comment on paragraph 4 0 With this larger framework in mind, we can examine some of the concrete details.[3] What, exactly, is the antipiracy agenda? How have the music industry and its allies envisioned a more secure legal and technological environment, and how have they worked to bring it about? Scholars and organizations like Michael Geist,[4] William Patry,[5] Cory Doctorow,[6] Karl Fogel,[7] the EFF[8] and Public Knowledge[9] have examined these processes in granular detail, exhaustively comparing each leaked draft of a particular bill or treaty, and analyzing the minute variations for their potential policy implications. It is not my aim here to reproduce their excellent work, but rather to summarize some of the key themes that have emerged from it.

¶ 5 Leave a comment on paragraph 5 0 Three of the piracy crusade’s foundational agenda items can be traced back to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which established for the first time the “legal prominence of IP in international economic relations”[10] when it was signed in 1996, and the World Intellectual Property Organization (WIPO) Copyright Treaty, signed later that year. Together, they establish longer copyright terms (“harmonizing” what was then the US term of an author’s life plus 50 years – though the US immediately re-raised the bar, extending it by another 20 years in 1998), require that all creative expression be automatically copyrighted (this “opt-out” approach had been law in the US since 1978), and institute “anti-circumvention” standards making it illegal to disable DRM and other forms of content access control (or to help others to do so), even if it’s only to enable legally-established fair use. These standards became law in the US with the enactment of the DMCA in 1998 and in the EU with the creation of the Copyright Directive in 2001.

¶ 6 Leave a comment on paragraph 6 0 Another consistent vector of antipiracy policy is the emphasis on extending the penalties and scope of actions associated with copyright infringement, essentially levying steeper punishments against a broader range of people for doing a wider variety of things. In the US, for instance, the 1997 No Electronic Theft (NET) Act made non-commercial infringement a crime for the first time, punishable by years of prison time and hundreds of thousands of dollars in statutory fines. Penalties for both civil and criminal infringement were also increased a decade later with the passage of the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. An early provision of this bill would have further raised the effective penalties for infringement by eliminating copyright law’s “compilation clause,” which essentially says that someone downloading an album can only be charged for a single case of infringement, rather than once for each song. Although this provision was dropped before the act passed into law, the question of how to treat compilations in a digital context is an ongoing “conundrum” that remains on the antipiracy agenda.[11] Most recently at the time of writing, the National Defense Authorization Act of 2012 (NDAA), signed into law by President Obama, increases penalties for selling or giving infringing goods to the military, law enforcement, national security, or “critical infrastructure.” One potential target of these higher penalties is Hyman Strachman, a 92-year-old World War II veteran profiled by the New York Times for sending hundreds of thousands of bootleg DVDs, free of charge, to soldiers in Iraq and Afghanistan.[12]

¶ 7 Leave a comment on paragraph 7 0 In addition to punishing businesses and individuals that have directly infringed on intellectual property, recent efforts have focused on expanding the scope of what is known as “secondary liability”[13]­ – in lay terms, helping third parties to copy or redistribute content illegally. In the US, the DMCA staked out an initial compromise: While the anti-circumvention measures stipulated by WIPO made it illegal to publish a web page linking to a site hosting a piece of software that might be used by someone to bypass DRM on a copyrighted file, thereby expanding potential liability far beyond direct infringement, it also stipulated some “safe harbors” limiting the secondary liability of “online service providers” such as ISPs.[14] All it asked of these service providers in return was that they adhere to a “notice-and-takedown” protocol, whereby if a rights holder claims its work has been infringed, the service provider must respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

¶ 8 Leave a comment on paragraph 8 0 This uneasy peace didn’t last long. When the US Supreme Court decided the MGM v. Grokster P2P suit in 2005, the existing concepts of secondary liability didn’t apply to the facts of the case, so the justices created a new standard in its decision against the defendant, suggesting that by “inducing” people to infringe copyrights, it had broken the law and was liable for damages (an attempt to legislate this standard, in the form of a bill called the Inducing Infringement of Copyrights Act, had failed to pass the Senate in the previous year). Since then, there have been numerous attempts to further extend secondary liability by ratcheting down or eliminating ISP immunity. For instance, such provisions have been included in drafts of both ACTA and TPP, and a clause originally appended to the Senate’s 2010 Combating Online Infringement and Counterfeits Act (COICA) would have granted ISPs immunity in exchange for censoring websites suspected of infringement by the DOJ – suggesting that they risked secondary liability had they not taken such “voluntary” measures.[15]

¶ 9 Leave a comment on paragraph 9 0 Several laws have sought to broaden the roles that government bodies play in policing and punishing IP infringers, essentially diverting tax dollars toward providing the major labels and other content industries with a free, international enforcement agency. The PRO-IP act first established a US copyright czar (technically, an Intellectual Property Enforcement Coordinator, or IPEC), a position appointed by the president and confirmed by the Senate. Since then, government seizures of pirated and counterfeited goods, and cases brought against IP infringers, have climbed sharply. The department of Immigration and Customs Enforcement more than doubled its arrests for IP violations between 2009 and 2011, and, in conjunction with the DOJ, seized 270 domain names from “infringing websites” in 2011 alone.[16] The PRO-IP act also included a provision that would have empowered the Justice Department to litigate civil infringement suits on behalf of the content industries. This provision, which was eliminated at the last minute due to veto threats by President Bush, has been on the antipiracy agenda for years, first appearing in the Protecting Intellectual Rights Against Theft and Expropriation [PIRATE] Act of 2004, which passed the Senate but died in the House. Nor is governmental participation in policing infringement confined solely to US law; for instance, the French Creation and Internet Law (HADOPI), adopted in 2009, created a new government agency tasked with policing internet service providers and users for online copyright infringement,[17] and treaties such as ACTA and CETA expand the power of customs control in signatory nations to search and detain goods and travelers suspected of IP infringement.

¶ 10 Leave a comment on paragraph 10 0 Some bills and treaties have also sought to give both government bodies and private industry greater powers to search and surveil people suspected of violating copyright. The Cyber Intelligence Sharing and Protection Act (CISPA), a bill passed by the House in 2012, encourages government agencies and private companies to share “cyber threat information” about internet users’ activities. Given that the scope of allowable information is vague at best, and that intellectual property infringement is defined as a cyber threat, this law opens the door for millions of internet users to be surveilled if they are suspected of violating copyright. It also empowers private companies to prevent users from sharing information with each other, as long as these measures are undertaken in the name of identifying cybersecurity threats. A Senate bill called The Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology (SECURE-IT) Act of 2012, envisioned as a companion to CISPA, contains similar provisions, but allows any federal agency to use the information collected about online users in the prosecution of any crime for which wiretaps and other forms of surveillance may legally be authorized.[18] In other words, if a bill like this is made law, private emails collected by the NSA in the process of surveilling a P2P user could potentially be used as evidence in an FBI case against a political dissident. Surveillance of suspected IP infringers is also increasingly an agenda item in foreign legislation and international treaties, as well. For instance, in many European nations, copyright holders have a “right of information” to discover the identities of, as well as personal information about, suspected infringers – even those who haven’t done so in a commercial capacity.[19] And treaties like ACTA and CETA contain provisions requiring similar policies to be enacted by all signatories.

¶ 11 Leave a comment on paragraph 11 0 In addition to enabling the surveillance of online users suspected of infringing copyright, the antipiracy agenda has also sought to give both government and commercial institutions the ability to censor online speech and restrict participation in the digital public sphere. While US ISPs have voluntarily adopted a “six strikes” graduated response policy restricting internet access for suspected infringers (with some help from the IPEC), laws such as France’s HADOPI and the UK’s Digital Economy Act 2010 actually mandate that suspected infringers be deprived of internet access after only three (unproven) accusations of digital piracy. While these policies censor individual users, others aim to censor specific internet domains from the entire internet user population. COICA would have given the Justice Department the power to impose a “black list” on ISPs, forcing them to prevent their users from accessing a given domain if it contained a site that contained a file that was suspected of infringing intellectual property. SOPA and PIPA would have granted similar censorship powers to the government, but with the fig leaf of judicial oversight (all three bills were defeated, due in part to concerns about implications for civil liberties). PIPA would also have granted some of that power to private claimants – essentially giving entrenched interests a mechanism to cut off traffic or funding for rival upstarts under the guise of protecting intellectual property rights. Given the United Nations’ recent assertions that internet access and online expression are fundamental human rights,[20] these provisions are especially troubling.

¶ 12 Leave a comment on paragraph 12 0 While each of the agenda items I have mentioned has been adopted as policy in some form, there are many other items on the piracy crusaders’ wish list that have yet to pass into law. For instance, a “joint strategic plan” submitted by the RIAA, MPAA and others to the IPEC in 2010[21] included several additional policy requests, including: encouraging ISPs and network administrators to filter out copyrighted material before it could reach their users (presumably leaving only public domain information behind); empowering customs authorities to “educate” travelers about the economic costs of piracy and requiring travelers to claim pirated goods at the border; restricting trade with countries that refuse to adopt and administer stricter antipiracy laws; and deputizing the DOJ and Department of Homeland Security to develop “preventative and responsive strategy” around blockbuster releases by the entertainment industry. Public Knowledge co-founder Gigi Sohn has also compiled a list of “bad ideas” perennially supported by the piracy crusaders.[22] This list includes: exempting copyright enforcement from “net neutrality” policies mandating that ISPs provide equal passage for all content regardless of its source; making it legal for content companies to disable users’ computers (e.g. the Berman bill); mandating the use of DRM by all content providers and device manufacturers (essentially outlawing the traditionally “open” personal computer); inserting a “broadcast flag” into all publicly available content, restricting the uses to which viewers or listeners can put that content, and effectively forestalling fair use; and remotely disabling the output ports on people’s televisions and other media devices via “selectable output control.”

¶ 13 Leave a comment on paragraph 13 0 Finally, there is the piracy crusaders’ coup de grâce, an “internet kill switch” enabling a government agency or official to shut down all online communications with one fell swoop. This was first proposed in a 2010 Senate bill called the Protecting Cyberspace as a National Asset Act. More recently, it reappeared in the Cybersecurity Act of 2012, another potential Senate companion to CISPA that specifically identified IP infringement as cybersecurity concern and cause of action. Fortunately, this agenda item has not yet become law in the US; considering the uses to which similar powers have been put in China, Iran, Egypt, Uganda, Thailand and Tunisia, let us hope it never does.

¶ 14 Leave a comment on paragraph 14 0 To summarize, the piracy crusade supports a broad and ever-expanding agenda, the contours of which can be seen in the dozens of individual laws and policies I alluded to above. Though the implications of an internet kill switch for free speech and civil liberties may be abundantly clear to nearly any observer, the social and political implications of these other policies may still be somewhat obscure after my cursory review. In the next section, I will discuss some of the ways in which these existing and proposed policies pose a threat to human rights and democratic values, and may complicate international relations for the United States and its allies.