I’ve been remiss, as the VC’s (sort-of) copyright/Internet law guy, in not commenting previously about a truly outrageous bit of executive branch over-reaching on Hollywood’s behalf. I am referring to the ongoing negotiations about ACTA, the multilateral “Anti-Counterfeiting Trade Agreement.” [See Jonathan Adler's posting earlier today about ACTA here] The US Trade Representative’s office has been conducting these negotiations entirely in secret (on some ridiculous trumped-up ‘national security’ rationale) for several years now on this Agreement; a current draft was recently leaked to the press, and it confirms many peoples’ worst fears. Here’s my attempt at a summary of what’s going on — if you’re interested in more details (and I hope you are), I’ve listed at the end of this posting some excellent sources of further information.
ACTA’s goal is to tighten up global intellectual property enforcement. Though it’s labeled an “anti-counterfeiting” agreement, which might make you think that it’s about international trade in counterfeit goods (fake Louis Vuitton handbags, unauthorized Viagra tablets, and the like), it covers much, much more than this; what it is really about is the tighter enforcement of copyright law on the Net. It is outrageous in substance, and in process.
Process first. There are many divergent views, of course, about what should be done about international copyright law and copyright enforcement in the Internet age. Some reasonable people believe that copyright needs strengthening; other reasonable people (like me) disagree. But that’s just the normal give-and-take of debate over a contentious issue, and it can only (and should only) be resolved the way such debates are always resolved in a democratic society — i.e., openly and with full public comment and discussion. It’s hard to know, then, which is more appalling: the fact that the Obama Administration has conducted the ACTA negotiations in secret, or that it has indicated that it plans to adopt the final Agreement as an “Executive Order,” one that does not require submission to or ratification by the Senate (or any Congressional action whatsoever) to become effective.
I cannot imagine what justifications the Administration might proffer for this affront to our constitutional law-making schemes. [Larry Lessig and Jack Goldsmith have an op-ed in today's Washington Post about this, which was the subject of Jonathan's earlier posting]. Those of us who follow copyright law have been here before, and we know what’s coming: the President signs the Agreement, and then changes to US Copyright law are introduced into the Congress and supporters will say something to the effect that the changes are required in order to bring our law into harmony with international norms and with our international obligations. It happened during the run-up to the 1998 Digital Millennium Copyright Act, and it will, I promise you, happen again here. It amounts, in effect, to presidential law-making, and if it isn’t (as Lessig and Goldsmith argue) unconstitutional, it damn well should be.
None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — full of substantively bad ideas and lousy law. Margot Kaminsky, over on Balkinization, has a good summary of the major points of the Agreement. Among them:
1) Paragraphs 2 and 3 mandate a statutory damages provision in civil copyright law, as under US law — so that copyright holders, even without the need to demonstrate any measurable harm whatsoever, can recover awards thousands of times greater than any possible damage they may have suffered.
2) ACTA Art. 2.5 mandates an especially swift response from courts in copyright infringement cases — nice for Hollywood, not so nice for everyone else.
3) IP Enforcement at the Border. The current draft contains a number of provisions that will allow – and in some cases mandate — more vigorous searching (of laptops, iPods, etc.) and seizing of devices containing copyright infringing material. The de minimis threshold for the quantity of goods that can be seized at the border, as set forthin the the TRIPS Agreement (the “Trade-Related Intellectual Property” treaty that became part of the GATT Trade Agreement) will be lowered; a potentially injured party may apply for the suspension of the release of potentially infringing goods for one year from the date of application; the Agreement also permits Ex Officio action at border crossing (i.e., seizure of goods by customs officials without any complaint being filed); mandating the release of “personally identifying information” of suspected infringers to copyright holders, even without any finding of actual infringement.
4) Expanding the definition of Criminal Copyright Infringement. ACTA expands the international definition of criminal copyright infringement to explicitly include Internet “piracy” done for personal benefit alone. Under TRIPS, countries must hold a person to have committed an act of criminal copyright infringement if he or she has willfully infringed on a “commercial scale”, which was understood to mean involving sale to others. ACTA expands the international definition of “commercial scale” to include “private financial gain,” and explicitly includes “significant willful infringements that have no direct or indirect motivation of financial gain.” Insofar as it is VIRTUALLY IMPOSSIBLE TO DO ANYTHING ON THE INTERNET WITHOUT INFRINGING SOMEONE’S COPYRIGHT, this will play serious havoc with the international legal system. Oh yes — and it mandates that “penalties that include actual sentences of imprisonment as well as monetary fines.”
5) ACTA member countries will be required to provide for third-party (Internet Intermediary) liability. This is not required by any of the major international IP treaties – not by TRIPS, nor the WIPO Copyright and WIPO Performances and Phonograms Treaty. However, US copyright owners have long sought this. (For instance, see page 19 of the Industry Functional Advisory Committee report on the 2003 US- Singapore Free Trade Agreement noting the need for introducing a system of ISP liability). (Previously available at http://www.ustr.gov/new/fta/Singapore/advisor_reports.htm.)
Second and more importantly, ACTA will include some limitations on Internet Intermediary liability. Many ACTA negotiating countries already have these regimes in place: the US, EU, Australia, Japan, South Korea. To get the benefit of the ACTA safe harbors, Internet intermediaries will need to follow notice and takedown regimes, and put in place policies to deter unauthorized storage and transmission of allegedly copyright infringing content. However, contrary to current US law and practice, the US text apparently conditions the safe harbors on Internet intermediaries adopting a Graduated Response or Three Strikes policy — disabling Internet access for anyone found to have been infringing three times (whether or not that was a judicial finding or merely in an administrative proceeding)
There’s more (see below). But even this summary makes it clear that, once again (see Clinton Administration) the Democratic Party has caved in to Hollywood’s demands regarding intellectual property enforcement. As David Fewer of the Canadian Internet Policy and Public Interest Clinic and the University of Ottawa noted, “if Hollywood could order intellectual property laws for Christmas what would they look like? This is pretty close.”
It’s time to fight back. There are some wonderful resources out there coordinating what one hopes will become a global effort to beat this monster back. Here are some of the better sites I’ve found:
AU’s Program on Information Justice and Intellectual Property has a major collection of papers, reports, and other ACTA-related items here
Michael Geist, up in Canada, has been following the ACTA debates for some time and has a number of useful contributions on his blog, e.g. here and here
Chris Travers says:
Thanks for this insightful post. As an opponent of the ACTA, I am glad to see this view represented here on the VC. It’s one of the reasons I keep coming back.
March 26, 2010, 5:23 pmKristen says:
I think perhaps you meant to say, “None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — [NOT] full of substantively bad ideas and lousy law.” ?
March 26, 2010, 5:24 pmKristen says:
I think perhaps you meant to say, “None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — [NOT] full of substantively bad ideas and lousy law.” ?
March 26, 2010, 5:24 pmMichael P says:
As a perhaps pedantic note, Post’s post places the blame on the Obama administration and Democrats, but the negotiations started under George Bush’s administration. Both administrations should have known better, and either demanded above-board negotiations or walked away from the table.
March 26, 2010, 5:31 pmSlow says:
This bs is pretty bipartisan. Its not just the hollywood IP monopolies that want these stupid laws, its all of them.
When in order to play a video game I have to agree to a licensing agreement longer than the U.S. constitution I start to think things have gone to far.
March 26, 2010, 5:52 pmFredC says:
So, the Canadians don’t like protections for Hollywood. Imagine that? But as it is a US domestic industry, I think the US executive power should be used to get international advantage. Good for Bush and Obama. Sorry, Canucks, et. al., if we cleaned your clock.
March 26, 2010, 6:02 pmCopyright Lawyer says:
I share concerns about ACTA, but I think that in the interest of fair debate a few points bear mentioning.
First, ACTA was initiated under the Bush Administration. It was the Bush Administration that first envisaged ACTA as a sole executive agreement that would not require the consent or approval of Congress. I thought that should be pointed out, particularly on this site, where commenters are prone to hyperbole when it comes to the Obama Administration.
Second, while I understand that the use of sole executive agreements may rub some the wrong way, I am not convinced that ACTA is an unprecedented use of the procedure. That is, ACTA doesn’t include provisions that will require changes to US law. There are many elements of ACTA that I personally disagree with, but these are also provisions that I disagree with within current US law (Copyright Act / caselaw). Even the provisions on graduated response are taken straight out of the DMCA (see 17 USC 512(i)). Similarly, the US already provides criminal liability for infringements of a commercial scale, even in the absence of an intent to profit.
March 26, 2010, 6:04 pmFredC says:
Yes CL, as I mentioned on the other post
. . . fruitless, in the sense that it goes, nowhere. Especially, where, as here, it’s so blatantly unprincipled.
March 26, 2010, 6:09 pmSteve2 says:
Fred, it’s also bad for American consumers/Americans who aren’t part of the industry. That makes it bad for the majority of Americans.
And there’s nothing unprincipled about saying the President has no inherent power beyond being Congress’s henchman-in-chief (which is, after all, what being “the executive” means)… so long as you’re consistent about it.
March 26, 2010, 6:16 pmSteve says:
If Congress passes a law, it is not anything like “Presidential law-making,” no matter how much overheated rhetoric may be deployed.
This treaty may be the worst idea ever for all I know. But there’s nothing wrong with the concept of the President negotiating an international compact on a matter where international cooperation is important. If Congress doesn’t want to ratify it, they don’t have to.
March 26, 2010, 6:16 pmChris Travers says:
Unfortunately both administrations have been insisting on secrecy except in sharing details with Hollywood and other interested industry partners…..
That politics in Washington is broken is not a partisan matter. Voting another politician into office isn’t going to fix it.
Note that the much-maligned EU has asked for transparency, and that the EC has voted fairly strongly against many of the controversial portions already.
March 26, 2010, 6:19 pmFredC says:
Yah, Yah, I know, the world would be so much better if the US, just gave away its intellectual property. Open Source! No tragedy of the commons! Peace and Love!
Hmm, the EU doesn’t like it? Quel Suprise!
March 26, 2010, 6:22 pmChris Travers says:
Ummm… We are supposed to after the limited times expire….
Pesky Constitution interfering with property rights…..
March 26, 2010, 6:30 pmMike McDougal says:
You can get a copy of the text here.
March 26, 2010, 7:04 pmtde says:
If the “changes …introduced into Congress”, are passed by Congress, how is it either unconstitutional or “Presidential law-making”?
March 26, 2010, 7:40 pmEMB says:
How do the details of (5) above not require significant changes to US law? (It’s also potentially the first step down a disastrous path toward Chinese-style censorship once lawmakers decide to make ISPs turn the censorware they’ve been forced to install toward indecency, etc.)
I feel like (4) and possibly (3) would probably require changes in the law as well.
In any case, even if what Obama’s doing is constitutional, and even if ACTA didn’t require changes to US law, it would still make it much harder to repeal things like the ridiculous statutory damages already there in US law.
March 26, 2010, 7:46 pmAnonymous Coward says:
“ACTA doesn’t include provisions that will require changes to US law.”
This is consistently bandied about by ACTA proponents as though it has any substantive good. US copyright law is defective in a number of ways and enshrining those defects in an international obligation will provide cover for anyone who wants to thwart any efforts to fix it.
March 26, 2010, 8:05 pmOh well.... says:
This is consistently bandied about by ACTA proponents as though it has any substantive good. US copyright law is defective in a number of ways and enshrining those defects in an international obligation will provide cover for anyone who wants to thwart any efforts to fix it.
Yes…because America has a great record of respecting its international obligations. Lol.
March 26, 2010, 8:14 pmTweets that mention The Volokh Conspiracy » Blog Archive » Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog -- Topsy.com says:
[...] This post was mentioned on Twitter by John McHale. John McHale said: General summary by David Post at the Volokh Conspiracy of ACTA – the process and content: http://tinyurl.com/yc3xvxc [...]
March 26, 2010, 8:37 pmMalvolio says:
The LOL at the end suggests you don’t believe it. Does the US have in fact a bad record of respecting its international obligations?
I noticed that we took a huge amount of flak for not agreeing to the Kyoto Treaty — while countries that agreed to it and then broke their word got a pass.
March 26, 2010, 8:53 pmPeteP says:
“adopt the final Agreement as an “Executive Order,” ”
Wow. To actually state my reaction to that would …. ummmm…. not be appropriate. Let’s just say that our political system is founded on the three box model. Some of the boxes don’t seem to be working very well.
This administration, and this Congress, are out of control. Let us all hope for a correction in November, and hope that some of the damage can be undone.
“It happened during the run-up to the 1998 Digital Millennium Copyright Act, and it will, I promise you, happen again here.”
Yep. Orrin Hatch, for instance, will be right on board, he’s been in the recording
industry’s pocket ever since they told him he could sing, and gave him a record contract.
Can Obama really do this by Executive Order ????
March 26, 2010, 9:14 pmGuy says:
International law is not my area of expertise at all, but there were the International Court of Justice judgments regarding the Vienna conventions we agreed to enforce then didn’t, and then scotus declared the treaty calling for compliance to the judgment non-self-executing, punting the issue back to the Congress (against the wishes of the Bush administration, who asked the court to enforce the judgment). Also it’s my understanding that our rule that later passed domestic law can override treaty obligations is not shared by most other nations. More generally, separation of powers, federalism, and good old-fashioned American exceptionalism can make it politically difficult to stick to our promises (whether formal or informal) when it comes to international relations.
March 26, 2010, 9:19 pmGuy says:
I’m not saying the United States can necessarily be blamed for this noncompliance, the Medellin case raised exceptionally bewildering Constitutional questions, I’m just pointing out how our system of government can make it difficult to stick to international obligations.
March 26, 2010, 9:27 pmMLS says:
…and even the above maligned “private financial gain” is incorporated into subsisting US law.
As I read some of the comments here I had pause to wonder if perhaps I had mistakenly stumbled onto a warez forum.
March 26, 2010, 9:33 pmOh well.... says:
With all due respect Professor Post, your insinuation that Democrats are some how in bed with Hollywood IP interests couldn’t be more misleading. Yes, the DMCA and Copyright Term Extension Act passed while Clinton was in the White House – but to attribute their passage to Democrats alone completely belies history. As you will recall both the DMCA and the CTEA were passed by the 105th Congress…A Congress in which Republicans controlled both houses. As you will recall, both the CTEA and the DMCA were introduced by, you guessed it, Republicans. Both bills passed with the overwhelming majority of both parties.
Would you care to explain why you feel the Democrats are mostly to blame for IP expansionism?
IP is not a partisan issue, and it seems odd that you would attempt to frame it that way. Frankly speaking, people in the IP (rights holders) community are extremely nervous about the Obama administration.
March 26, 2010, 10:26 pmChris Travers says:
It is true that IP is not a partisan issue. Unfortunately the problem is it is an issue controlled almost entirely by lobbyists who hate our Constitution and particular its insistence on limited times.
March 27, 2010, 12:10 amChris Travers says:
If we could fantasize about Constitutional Amendments, how about this one:
Amendment to Clarify “Limited Times” and ensure that it cannot be “forever minus a day.”
The term of a patent shall be no more than 17 years, nor the term of a copyright equal to more than twelve years, provided that copyrights, but not patents, may be renewed once.
March 27, 2010, 12:13 amGeof says:
@FredC:
This deal will regulate the private behaviors of individuals in their own homes, outlawing ordinary, socially acceptable and legitimate activities and speech. It is being deliberately negotiated so that the publics affected are excluded from the process.
We are not corporations striking a business deal. We are human beings: moral agents. This is wrong regardless of whether the citizens being dictated to are American, Canadian, European or Chinese. Laundering the process through foreign governments does not make it ethical. It smacks of imperialism.
Your argument boils down to “might makes right.” Your government may have the power to impose this. My government may go along. What is legal is not the same as what is right. I believe a significant portion of the public will see this as undemocratic and illegitimate.
If you think that lacking moral authority you can enact effective controls on what we all have the private capability to do, you are dreaming. The only moral imperative supporting this law will be “don’t get caught” – an outcome devastating for creators who will suffer the law’s limitations without realizing its benefits: and copyright’s illegitimacy will impact them most of all. The effect of copyright extremism is to undermine respect for the law by attacking its legitimacy. It will do the same for your country’s reputation.
March 27, 2010, 3:27 amFredC says:
Imperialism? Geof? It really is too bad that you think you can take other people’s work and property. Not only does that make you immoral, it makes you the worst kind of imperialist.
March 27, 2010, 5:47 amPQuincy says:
The clever term ‘intellectual property’ is invoked by Fred, who needs to be reminded of the Constitution’s copyright clause. In legal terminology, a limited government-created monopoly may rightly be called ‘property’, but it’s misleading usage in general conversation, and ought to be stopped. The correct term, if one has any knowledge of pre-modern legal systems, is “privilege.”
Meanwhile, many posters correctly call out Mr. Post for the partisan slant to his posting on an issue where views are markedly mixed across the partisan landscape. Indeed, I’d argue that the blatant abuse of the copyright privilege, in part through legislative and regulatory capture, is an issue where strong liberals (like me) and strong libertarians, like Mr. Post, could cooperate fruitfully. That doesn’t mean there won’t be issues where we don’t agree, but infusing substantive debates with the tribalism that currently dogs American politics is probably not a strategy that is going to do libertarian philosophy much good, nor advance libertarian goals.
Here’s an issue where both Republican and Democratic administrations and legislators have repeatedly and shamelessly opposed the interest of their own voters. Rather than spinning the blame on one party, why not build some solidarities separate from the broken partisan machinery?
March 27, 2010, 10:16 amMartinned says:
The outstanding issues, as of last month, as well as the US and EU positions on those issues (and the EU’s notes on their own wiggle room) are in this leaked Council three-column document.
March 27, 2010, 10:30 amObama Doing Congress' Job & Working In Secret to Expand Copyright Law | KEYTLaw says:
[...] current version of ACTA, see Temple Law School Professor David Post’s article on ACTA called “Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog.” See also Public Knowledge on ACTA and the Electronic Frontier Foundation on [...]
March 27, 2010, 11:16 amMidlantan says:
Steve (and tde, as it’s unclear whether your post refers to ACTA, or just the scenario of laws passed in response to it): Quite apart from whether ACTA “the worst idea” or not, a major part of the complaint against it is the process. You seem to be suggesting that “Congress” will have the choice of “ratifying” it or not. But the whole point of choosing (as the Bush administration did, and the Obama administration continues to do) to negotiate it as an executive agreement means that it requires not “ratification” by either house of Congress.
The “good” news is that the leaked text doesn’t appear to require changes to US law. However, it would appear to require other signatories to adopt aspects of US law that may not be the wisest choices. And for the US, it hinders the ability of future lawmakers to make changes to US IP law to address future problems (or to improve the way it addresses existing problems). Even if future governments aren’t absolutely prevented from passing and enforcing laws contrary to ACTA because it is not an actual treaty, the agreement binds them to some degree (practically, and possibly legally as well — see the Goldsmith/Lessig piece).
And PeteP, just to reiterate what others have said, the problem of ACTA is not one of “this” administration or “this” Congress being out of control. The idea and the procedures for ACTA were cooked up several years ago, and for better or worse, its strongest backers hail from both major parties. Judging from publicly available info, it is only in recent months that a few in Congress have started to exert much pressure against ACTA at all (to at least try to open up the process, if not to change it substantively). And I’m sure it will warm your heart to know those members are mostly Dems (although I think there’s a GOPer or two in the bunch as well).
March 27, 2010, 11:55 amJIMV says:
The enactment of treaties by executive order is spooky for another reason. Hillary was clear when she announced the USA is in support of the UN’s traffic in small arms treaty. If we have treaty by executive order, then we could lose the 2nd Amendment by the process.
March 27, 2010, 2:42 pmgs says:
I have trouble being civil when this issue comes up.
It’s outrageous that an American cannot legally download the works of Steinbeck and Faulkner (or Bellow, for that matter). Far from being an incentive to progress, copyright and other IP law has become robbery from the public (domain) by a corrupt government on behalf of corrupt corporations.
If you look around the intertubes, you will find that calls for ever-more-draconian copyright enforcement are contemporaneous with calls for greater Internet security like Microsoft’s “Internet driver’s license”. It is heartbreaking to say this in the United States of America, but as a citizen I have to trade off the likelihood of cyberstrikes against the nation’s infrastructure versus the certainty that the corrupt government is helping its Big Media paymasters to rip me off.
As previous commenters have noted, Republicans were instrumental in much of the corrupt legislation. Apparently the Stupid Party cannot resist sucking up to corporate interests, even when those Hollywood corporations are the GOP’s mortal political enemies.
The intellectual property concept has become perverted into another legalized scam for the benefit of special interests. Like our metastasized national debt, it is another way of ripping off the future for the benefit of a corrupt few in the present.
End of rant. I hope the tone wasn’t out of bounds for this forum. Terms like ‘corrupt’, ‘theft’, etc were used in a moral and rhetorical, not a legal, sense.
March 27, 2010, 2:49 pm***********
Per the Constitution, there is a plausible case to be made for the intellectual-property social contract, but IMO we are approaching–no, are probably beyond–the point at which it does more harm than good. An economics monograph to the effect that the whole IP construct should be scrapped is available for free here, or from Cambridge University Press; a related blog is here.
Geof says:
@FredC:
“Imperialism? Geof? It really is too bad that you think you can take other people’s work and property. Not only does that make you immoral, it makes you the worst kind of imperialist.”
So you think that your definition of property should apply in my country – in fact it should overrule the democratic right of the citizens to make their own laws? The history of imperialism is one of moving into foreign territories and establishing property relations over things that were not property before, then defending the new state of affairs on the basis of the newly-created property rights. The first opium war was justified on the basis that it was a defence of British property, the right of the Chinese to keep drugs out of their country be damned. The same happened in America: the natives did not see the land as being divided up into owned pieces. The colonizers asserted the land was property, and then claimed ownership.
You are asserting your definition of property as some objective truth that should be extended over the whole world: your law should be our law. Oh, and – heh heh – this just happens to be in your interest. “I think the US executive power should be used to get international advantage,” you write, then turn around and utter moral outrage when someone calls that self interested rather than ethical.
Copyright is a foreign concept in most of the world’s cultures. It was invented in England as a privilege, not a property right: “intellectual property rights are . . . continually referred to by the aggregated term of rights. Through that process of reference they have become deeply entrenched in the discourse of private property rights. Their relation in the language of private property has obscured their origins in public privilege” (Peter Drahos, A Philosophy of Intellectual Property, 1996, p. 213). He concludes that “intellectual property rights are liberty-inhibiting privileges.”
As for me taking anything, I made no such claim. You may like to say that the only effect of ACTA would be to stop people from infringing copyright, but if that were the case there would be no need to expand the law to prohibit other activities. My country does not have a DMCA. Imposing one, as ACTA currently proposes, would amount to taking away from me control over my property (my computer, my DVD player, my cell phone) and outlawing legitimate speech and expression because of how it is made, not because of what it says. By your own flawed definitions this treaty is imperialist.
March 27, 2010, 2:51 pmS says:
Geof: Your government can agree to it or not. You, however, are still an imperialist.
March 27, 2010, 3:20 pmtom swift says:
Is a “trade agreement” legally distinct from a “treaty”? A treaty requires the “advice and consent” of the Senate. Is a “trade agreement” different? Is an Executive Order just an attempt to make an end-run around the Senate?
In theory, no single man can commit the US to a foreign or domestic obligation – otherwise, O. would have been able to commit the country to a raft of slavish and expensive obligations at Copenhagen, as would Gore at Kyoto.
March 27, 2010, 6:09 pmIP Outrages: Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog | Science Report | Biology News, Economics News, Computer Science News, Mathematics News, Physics News, Psychology News says:
[...] http://volokh.com/2010/03/26/outrageous-treaty-nonsense-or-the-copyright-tail-wagging-the-internet-d... [...]
March 27, 2010, 8:00 pmbobby b says:
Why do you write, with an implied sneer, that Hollywood is getting its Christmas wishlist fulfilled without telling us why it’s bad that Hollywood would get its wishlist fulfilled?
If I were a songwriter or bandmember or author or . . . any kind of a holder of legal property rights in those forms of intellectual property which can be completely transferred digitally, I might have that same Christmas wishlist in the mail to Santa right now. As the model under which we all labored for eons promised to me, I expected (and still expect) to be paid whenever someone wants to add my song or book or picture of a hairy armpit to their own collection of music or books or armpit porn. I named the price I wanted for the product of my own efforts, and if someone wants to make that exchange with me, and I want to make it with them, then we do so, and we presumably both “win.”
Now, of course, the internet (and computing in general) has made the security of my ownership rights problematic. A stroke of the keyboard will produce unlimited, perfectly accurate copies of my book or song or picture. Do I lose any of my own copies of my work when this happens? Of course not, but that’s not the point – I’m forced to allow my product to enrich the lives of anyone who is willing to commit minor theft, without any chance of being paid by them for my product.
People tell me, via their web writings, that the internet has now “changed our paradigm of property rights”. I usually find such philosophy written by self-serving non-producers who enjoy getting other people’s stuff for free. But they’re wrong.
If I find a way to easily duplicate house and car keys as I walk past houses and cars, allowing me to plunder the houses and joydrive the cars at my whim, I’ve not changed any concept of property ownership.
I’ve simply used tech to make theft easier.
If you’re going to sneer at Hollywood for their actions in this saga, you’d better start in on blaming rape victims for “asking for it.”
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March 28, 2010, 7:41 amRicardo says:
The current draft contains a number of provisions that will allow — and in some cases mandate — more vigorous searching (of laptops, iPods, etc.) and seizing of devices containing copyright infringing material. The de minimis threshold for the quantity of goods that can be seized at the border, as set forthin the the TRIPS Agreement (the “Trade-Related Intellectual Property” treaty that became part of the GATT Trade Agreement) will be lowered; a potentially injured party may apply for the suspension of the release of potentially infringing goods for one year from the date of application; the Agreement also permits Ex Officio action at border crossing (i.e., seizure of goods by customs officials without any complaint being filed); mandating the release of “personally identifying information” of suspected infringers to copyright holders, even without any finding of actual infringement.
Amidst all the talk of property rights, I would think more attention would be devoted to this part. The U.S. is the only country I know of that seems to regularly (and seemingly randomly) seize people’s laptops at the border for “inspection.” This rule change seems to enhance the government’s power in this area and even allows the government to hold onto your laptop for over one year.
Don’t people who claim to be in favor of property rights have something to say about this? Is there anyone who is 100% sure their computer does not have a single program, digital image, MP3, video, text or other kind of material that runs afoul of copyright law?
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this? Is there anyone who is 100% sure their computer does not have a single program, digital image, MP3, video, text or other kind of material that runs afoul of copyright law?
March 28, 2010, 9:02 amRobin says:
@David, if I may add a Point 6 to your excellent review:
Chapter 2, Section 4, Article 2.17, Paragraph 3, Option 3ter:
“Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identify of the relevant subscriber.”
Which strikes this non-lawyer as a direct end-run around American due process and any number of privacy and information-protection laws.
@commenter bobby b, please read this blog to understand how to adapt yourself to a new world: http://www.techdirt.com.
March 28, 2010, 9:29 amStan says:
I think both sides: there should be no copyright; and copyright, forever, are insane. It is true, in the old days, copyright protection stopped at the border. And so did prosecution and apprehension for all crimes. Since the world is smaller, international agreements are the only way to live together peacefully and respectfully. We can now despoil each other of countless types of assets, from a world away. We better figure out how to stop that from happening.
March 28, 2010, 12:01 pmJIMV says:
Is the issue copyright law or the constitutional issue of passing treaties by executive order and its evil twin, using executive order treaties to remove constitutional rights?
March 28, 2010, 1:19 pmkids stories rapidshare | KIDDooS.com says:
[...] The Volokh Conspiracy » Blog Archive » Outrageous Treaty Nonsense, or The Copyright Tail… [...]
March 28, 2010, 1:36 pmbobby b says:
@commenter Robin, techdirtDOTcom and I are old friends. All I can say is, self-satisfaction with a new toy can blind you to the morality of its uses. When your New World’s credo is “They’d better get used to the idea that we can steal from them easily”, and your blogs write with disdain about peoples’ pathetic attempts to lock their doors and protect themselves, don’t be surprised when your expectations of due process are met with blank stares and barely-suppressed laughter.
March 28, 2010, 3:41 pmMLS says:
Recognizing that all the “fuss” is about a draft that will likely undergo many changes as the parties try to achieve an acceptable compromise, I would be grateful is anyone can point out any provisions in the current incarnation of the draft that runs afoul of US law. Thus far I have been singularly unsuccessful in finding any such provision.
As for “secrecy”, while it is nice in theory, is it really practical to have every Tom, Dick, Harry and Jane weigh in during negotiations? Moreover, is it realistic to assume that once face-to-face negotiations are complete it will be an unalterable “done deal” with no opportunity provided for discussion before its adoption?
March 28, 2010, 5:29 pmLinks 28/3/2010: Sabayon 5.2 and GIMP Fun | Boycott Novell says:
[...] Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog I’ve been remiss, as the VC’s (sort-of) copyright/Internet law guy, in not commenting previously about a truly outrageous bit of executive branch over-reaching on Hollywood’s behalf. I am referring to the ongoing negotiations about ACTA, the multilateral “Anti-Counterfeiting Trade Agreement.” [See Jonathan Adler’s posting earlier today about ACTA here] The US Trade Representative’s office has been conducting these negotiations entirely in secret (on some ridiculous trumped-up ‘national security’ rationale) for several years now on this Agreement; a current draft was recently leaked to the press, and it confirms many peoples’ worst fears. Here’s my attempt at a summary of what’s going on — if you’re interested in more details (and I hope you are), I’ve listed at the end of this posting some excellent sources of further information. [...]
March 28, 2010, 7:36 pmMichael Geist on ACTA — Surprisingly Free says:
[...] Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog by David Post at Volokh Conspiracy [...]
March 29, 2010, 10:40 amfwb says:
1. ALL treaties are to be made under the authority of the United States. What is the “under authority of the United States”? Well, the authority is that and only that which is granted in the CONSTITUTION. Any and all treaties MUST conform to the Constitution or the treaty is not lawful.
2. Those who can read should be able to discover that the federal government has NO PUNISHMENT power concerning copyright infringement. NOT GRANTED.
No de facto power.
March 29, 2010, 1:29 pmRainy Day Links « Incessant Dissent says:
[...] Via Reason Magazine, thanks to a leak, you can download a draft of the secret Anti-Counterfeiting Trade Agreement. [...]
March 29, 2010, 2:31 pmTerry Hart says:
I’m interested in hearing how you’ve come to this conclusion. It seems to me that it is clear that the exact opposite is true. The Supreme Court itself said in Dowling v. United States
March 29, 2010, 4:15 pmohwilleke says:
The administration may have caved. The Democratic party has done no such thing.
March 29, 2010, 10:30 pmBob Smith says:
This is indeed bad, but not worse than the capital control provisions of the HIRE act.
March 30, 2010, 4:25 amNot An Attorney, But... says:
As the PotUS is someone who gives directives to the JD, it seems decided NOT likely to go nowhere. Even the threat of investigation by the JD, regardless of likelihood of success, has substantial weight in obtaining compliance, even more so from large corporations than from the little guys.
This, of course, is the fun part. With the Copyright Extension Act, Congress has basically guaranteed infinite copyrights while managing to not quite contravene the Constitution, merely its clear intention.
The net result is the exact opposite of the Constitution’s intention, which is that it will NOT promote either the sciences or the arts. Copyright-as-is is already defective and seriously damaging to the economy’s capability to generate wealth by adding massive friction to the flow of and usage of information to create additional wealth. And the sole beneficiary of this friction is a load of useless middlemen who extract their money long before it ever gets to the actual creators. The create nothing, they enhance nothing, they just stand there with their hands out demanding their cut. The internet and digitized IP threatens their handouts, so they are using political clout to get draconian laws instituted to give them the capacity to go after “suspected” infringers, and pretty much anyone ELSE who they don’t like.
Copyright needs to be radically revised, to implement rewards without any effort to institute control. Control is no longer desirable, practical, or enforceable. The only way to enforce Copyright-as-is is to institute a massive police state big-brotherish culture that watches everything we say and do.
Copyright-as-is is anathema to liberty and freedom.
Welcome to The Machine.
.
March 30, 2010, 9:43 amNot An Attorney, But... says:
Because, bobby, it is sufficiently complex an issue that you can’t answer that question within a reasonable article. Most people won’t read 10-page essays on why it’s wrong. I’ll give you some ideas though, which you can use as a starting point.
IP concepts no longer work as it is. IP is not, as is attempted to be treated, the same as “Real” property. It has a large number of significant underlying facets of its nature which render the comparison seriously defective for a whole host of reasons. It needs truly different laws which reflect those expectations, and, sorry, no, most IP law isn’t about IP at all, it’s about trying to control the containers which fit it — books, discs, and so forth. Now, though, with digitized IP, much of that transfer occurs without any containers, so what will be done to interdict the flow of bits? I think that it’s hardly debatable that the so-called “War on Drugs” has shown limited capacity to stop the national and international flow of various drugs. It HAS managed, however, to institute a whole host of questionable, freedom-and-liberty infringing law onto the books, of which the RICO Stats are but a single instance.
How, then, with that kind of history, do you think the government will fare attempting to prevent the flow of something so ephemeral is “electronic bits” around the world? I predict, with fair certainty, that it will be a total bust.
…but you can bet your sweet ass that there will be one HELL of a LOT of freedom and liberty destroying laws put into place in an effort to stop it.
One of the best articles I’ve ever read on this notion come from John Perry Barlow, and, while it’s 15+ years old, it’s still spectacularly accurate in its content:
The Economy of Ideas
Now, in addition — consider:
It is generally regarded a truism that the internet “treats censorship as noise and routes around it”.
Now, what is censorship?
Censorship is someone in the government saying “This we deem dangerous, therefore you may not have access to it”
What is copyright-as-is?
Copyright is someone in the goverment saying “This you have not paid for, therefore you may not have access to it”
Got that? They’re the same activity — both are about denying access. So what, then, does that truism say about copyright?
Right — The internet treats copyright-as-control as noise, and routes around it.
And this is borne out in the internet’s history. Playboy shuts down “Scanmaster” for scanning and freely distributing Playboy images, and literally hundreds of other people start scanning them. The RIAA shuts down Napster, and a dozen p2p applications pop up to take its place. The MPAA shuts down the “RealWorld” website, and a dozen alternative sites spring to life. Controlling access is noise, and it acts to find a reliable pathway around it.
Now: This is not saying that copyright has the same moral issues as censorship, only that copyright is the same underlying activity directed to a different purpose, and therefore, as-currently-defined, cannot be made to function. And worse still, if you could make it function, then those same techniques would enable censorship as well.
Nor is this the foolishly immature “information should be free” whine. Perhaps “data should be free” — one could argue that. But information is someone’s hard work and talent and time used to re-order or otherwise manipulate “data” to demonstrate a specific point of view unique to that creator. This is true whether that data is musical notes, words on a page, scientific concepts, or images and sound on film. If we don’t reward people for turning data into information, there won’t be a lot of impetus to do so. Society will suffer as a result.
As the Constitution suggests, there is a higher purpose behind Copyright. The purpose is to promote the Sciences and the Arts. The best way to do this is to reward those who create in some manner. Some manner. “Control” is the historically provided mechanism — by controlling the distribution of containers in which IP is kept, the reward has been made possible.
It’s time to de-couple the reward from the control.
Since copyright-as-control cannot work any longer, we need to create a new system, in which copyright-as-reward doesn’t depend on control. I could speculate a whole host of ways in which this might be done, but beyond a single example, I’ll leave it as an exercise to the reader:
Create a slush fund from various sources — government inputs in general, media distribution taxes (i.e., internet volume in bits transferred and blank media purchases) and similar things. Now, using some metric of search engine hits, dole out that slush fund’s income to various individuals who have created things being searched for.
That is incredibly simplistic I agree, and leaves a whole host of gaming options which need to be addressed prior to implementation — but it’s certainly possible to see how such a system might work. It also places the reward back where it belongs, in the pockets of the creators, who are likely to subcontract with people who enhance their work without being the major force of creating — editors, promoters, and so forth. The vast array of middle men who don’t contribute will be cut out.
This gets to another element of your query, about rewarding creators and such as the goal behind these laws. Nope. Not the way it really works. This comment is about 15 years old, but still holds utterly true:
“…the stated purpose of the [new digital recording equipment tax] law is to
‘compensate’ musicians for home copying. But the law diverts FIFTY-SEVEN
percent of the funds to record companies and music publishers, leaving less
than half for the people who participate in the creative process. Most of the
remaining funds will go to musical superstars, and thus do little to
encourage or assist musical creativity.”
– Richard Stallman -
There are makers, takers, and fakers, and right now, the latter two outnumber (and outvote and outlobby) the makers by a large margin.
Q.E.D. The system needs to be scrapped and re-written from the start. It does virtually nothing that it is supposed to do effectively. In the long run, the only real alternative is a police state that would do O’Brien proud.
March 30, 2010, 10:25 amElliot says:
I suppose our best defense here are those clever kids who keep breaking the digital copyright schemes.
March 30, 2010, 11:02 amAppalling ACTA: a treaty worth stopping says:
[...] Post at Volokh Conspiracy sounds the alarm over the many bad provisions in a new intellectual property pact, the “Anti-Counterfeiting Trade [...]
March 30, 2010, 11:47 amShortWoman» Blog Archive » CrimeChurch says:
[...] enough money to do the job right and some places don’t even seem to want it done right; the treaty that has to go; Wallstrington; because clearly a 15 year old girl is “confused” about [...]
March 30, 2010, 10:39 pmM. Simon says:
And for the US, it hinders the ability of future lawmakers to make changes to US IP law to address future problems (or to improve the way it addresses existing problems).
The Single Convention Treaty on Drug Law serves the same purpose.
March 31, 2010, 10:36 amMarkus G. says:
Please stop using the term “intellectual property”; there’s no such thing.
If I have a CNC machine and I have a block of aluminium there are certain shapes that I am not allowed to make. Copyright and patents are a state granted infringement on everyone elses property rights; they are not themselves a kind of property right.
Even if you happen to think that infringing people’s property rights is necessary in order to spur innovation; which is an empirical claim that needs to be tested; it is simply erroneous to call infringement a kind of property rights. The attempt to reframe copyright and patents as a property right is a manipulative attempt to speak towards the moral repugnance people have against theft.
April 2, 2010, 6:26 amDerangierte Einsichten - Big Brother in London says:
[...] dann lauert natürlich noch ACTA - das lauert aber nicht nur für England. Ein ebenso Lobby-geprägtes, aber noch weitreichenderes [...]
April 6, 2010, 5:15 amKasie Muchler says:
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April 9, 2010, 9:32 pm