We've pointed out that the spectacular public uprising that led to the death of SOPA has made it such that Congress is now quite worried about pushing copyright legislation. But... we fully expected there to be attempts to sneak things through
in other ways, including through international treaties and agreements. Over at the Disruptive Competition Project site, Matt Schruers has noted that the US Trade Rep (USTR) -- who is responsible for things like ACTA, TPP and other trade agreements -- has been using some of the most controversial language from SOPA in discussions about trade policies with China
. Specifically, the USTR press release
notes that part of the effort for the US-China Joint Commission on Commerce and Trade (JCCT) will include this whopper:
Building on an existing JCCT commitment to develop a Judicial Interpretation making clear that those who facilitate online infringement will be jointly liable for such infringement, China announced that its Supreme People’s Court will publish a Judicial Interpretation on Internet Intermediary Liability before the end of 2012.
As we had discussed
while SOPA was still around, the use of liability for mere facilitation
is hugely problematic, and goes way, way, way beyond anything in the law today. Tons of useful technology can facilitate infringement. In fact, historically, nearly every important technological innovation that has helped grow
the entertainment industry has first been accused of "facilitating" infringement: the record player, the player piano, the radio, cable tv, the photocopier, the VCR, the DVR, the MP3 player and YouTube... every single one of them was accused of facilitating infringement. That's part of the reason why SOPA was so troubling. But rather than move away from such language, the US is now pushing that same language in its trade agreements with China. As Schruers explains, expanding secondary liability to include "facilitation" has massive problems:
For good cause, existing secondary liability law... does not extend to facilitation – it requires more knowing, culpable conduct, or direct financial benefit. A pirate's utility company arguably facilitates piracy by providing electric power to the pirate – and indeed, benefits from the added electricity consumed. We don't penalize utilities for piracy committed by their customers, however: since its inception, secondary liability has been wisely limited exclude such sweeping application.
The term seems particularly inappropriate in relation to commitments extracted from China regarding Internet policy. Construed broadly, "facilitate" could encapsulate any website or web service that allows users to communicate information freely. Given the ambiguity of the term, China could potentially interpret the word broadly to engage in censorship of its own, not only for IP infringement offenses, but for other activities "illegal" in China as well. If censorship concerns were sufficiently problematic in the U.S., they should be at least as problematic in China.
What Schruer's doesn't even mention, but which seems fairly important, is that China has tons of experience with broad secondary liability clauses and their ability to stifle speech and censor critics. The entire Great Firewall of China is mostly built on this principle of secondary liability, whereby ISPs can get into trouble for "facilitating" negative speech. Chinese officials argue in support of the Great Firewall by saying that it protects the public
and they've even argued that it's needed to stop piracy
So, among other things, by spreading this ridiculous "facilitation" language to a US-China agreement, the USTR is handing that much more ammo to the Chinese government not just to support political oppression, but also
to argue that it's doing so because
of what the US demanded in its trade agreements. Once again, it looks like, as the USTR carries the water of the legacy entertainment industry, it's undermining the State Department and playing right into China's hands in terms of enabling it to continue to censor the internet and repress political speech. And... of course, once that language shows up within US/China agreements, it won't be long before the USTR starts pushing it elsewhere as well, all in the name of "harmonization." In other words, watch out, the USTR is looking to push parts of SOPA through the backdoor yet again.
Along those lines, USTR boss, Ron Kirk, has announced that he's leaving the position
. His leadership has been an absolute, unmitigated disaster. He's responsible for the mess that was ACTA and has kept the TPP negotiations extremely secret. If the Obama administration wants to look forward, not backwards, it needs to nominate a replacement who isn't in the legacy industry players' pockets, but who is dedicated to real transparency and who recognizes that innovation comes from new sources, not from overprotecting obsolete players.