IIPA Wants Canada And Spain On The 'Naughty' Special 301 List Even Though They Brought In Tough New Copyright Laws

Glyn Moody — Fri, 15 Feb 2013 12:40:28 PST

Here on Techdirt, one of the things we look forward to each year is the comedy production known as the 301 Report, where the US makes the world line up in a row, and then names and shames all the naughty countries whose intellectual monopoly laws aren't outrageous enough. In advance of the official naughty list, there are helpful suggestions from the fans of monopoly maximalism, including the International Intellectual Property Alliance (IIPA), which has just released its 2013 demands. Mostly it's the usual suspects -- China, India, Russia etc. But there's an interesting change from the previous year's list: Canada has moved from the really naughty "Priority Watch List" to the only slightly naughty "Watch List".

As Michael Geist points out, far from being good news, that's outrageous:

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

Nor is Canada the only country that might be surprised to find itself on the naughty step again. As Mike explained last year, Spain was removed from the official Special 301 list for being an obedient little vassal state and bringing in the punitive Ley Sinde, as instructed, despite huge public and business opposition. And now, guess what? The IIPA already wants Spain back on the list for not doing enough in this area (pdf): Contrary to the expectations surrounding the implementation of ley Sinde that led to Spain's removal from the Special 301 Watch List last year, Spain saw no positive developments in 2012.
Let's hope Canada and Spain -- and everyone else -- draw the obvious conclusion from the IIPA's latest calls: that no matter what countries do, no matter what legislation they bring in, and no matter what disproportionately harsh punishments they inflict on their own people, it will never, ever be enough, and there will always be further demands, and further threats to put them back on the naughty lists. The only solution is to stand up to this blackmail once and for all, and to treat the Special 301 list with the contempt it deserves.

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When You Realize That Copyright Law Violates Free Speech Rights, You Begin To Recognize The Problems...

Mike Masnick — Wed, 15 Sep 2010 08:04:00 PDT

We've pointed out repeatedly in the past the problems you run into with copyright law once you realize that, fundamentally, it violates the First Amendment. While courts have tried to get around this simple fact with convoluted reasoning, and claims that fair use and the (often ignored) idea/expression dichotomy, if you are being intellectually honest, at some point, you need to admit that copyright law and free speech are in conflict. Now, that said, it's perfectly reasonable to then claim that this is an area where it's reasonable to make exceptions to free speech, but I would think that would require a pretty strong burden of proof -- one we have yet to see. I've recommended it before, but an excellent book on this subject is the book No Law, by David Lange and Jefferson Powell, where they spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment, and that courts who have claimed otherwise have been wrong as a matter of law (the second half of the book then explains how copyright law can still exist with massive changes -- effectively a compulsory licensing solution, that I don't think makes much sense). Neil Netanel's Copyright's Paradox is also an excellent examination of the topic.

But, of course, these scholarly books often don't convince people who dismiss "academics" as not understanding the real world. Yet, the more you look, the more you see how it's out there in the real world that copyright law is regularly used to suppress speech and create serious chilling effects on speech. The recent example of Russia using copyright law to suppress dissent among civil society groups critical of the government is only one example. We've suggested, repeatedly, that the US's policy of pushing our copyright and patent laws on foreign countries is a huge mistake, which they don't comprehend. That's because they don't realize that these laws are, fundamentally, about restrictions on speech and on actions -- and handing such tools to oppressive governments, and believing that they'll actually be used to protect content creators or inventors is fundamentally naive and dangerous. We're starting to see it in China as well, where patent laws have been used to attack foreign companies in the aid of domestic firms. Copyright law has also been abused this way in China with "crackdowns" on "piracy" often being used to make Americans look bad.

And, really, this is just the beginning. As these oppressive governments realize the power of using these laws (pushed on them by American diplomats) for their own corrupt political purposes, these sorts of activities will only increase in both number and severity. Not just handing oppressive regimes these tools, but demanding they use them, is so incredibly short-sighted, it's amazing that US diplomats haven't already realized the problems involved.

Hopefully, the situation in Russia serves as at least some kind of wake-up call. Some are pointing out the seriousness of the situation, and noting that it's no one-off misuse case, either. Michael Geist has highlighted how things like ACTA and the USTR's Special 301 report are all about exporting these tools, without the careful balances that try to keep them from suppressing free speech. He notes that this isn't just Russia being Russia, but a direct end result of US pressure:

The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list. The IIPA, the industry lobby group that includes software associations, pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases. In fact, the IIPA complained that Russian authorities do not seize enough computers when conducting raids. On top of all this is the Anti-Counterfeiting Trade Agreement, which will provide Russia with a template to follow on IP enforcement, including new seizure powers with less court oversight.

It has often been pointed out that the ACTA/Special 301 report approach seeks to export tougher enforcement measures - often to countries where free speech is not a given - without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.

Richard Esguerra is making a similar point for the EFF, noting that these sorts of actions in Russia are the direct end result of US diplomatic pressure, often coming from a few key industries, where those involved are naive about how such laws can and will be misused to suppress speech:

But this issue isn't limited to Microsoft or to software. A sprawling, powerful group-of-groups in the content industry, including movie and music industry lobbyists, software companies, and others, is constantly demanding that governments worldwide be given new powers to search for and seize allegedly pirated materials, and that those governments should act on those powers forcefully. In the name of copyright enforcement, the lobby shortsightedly demands provisions that put human rights at risk throughout the world: the power for governments to censor parts of the Internet with so-called copyright filtering, power for governments' border agents to search travelers' goods for "infringing" items, power for governments to detain alleged infringers pre-trial.
If the copyright lobby gets their way with the Anti-Counterfeiting Trade Agreement (ACTA) or if governments continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline -- "Russia Uses Microsoft to Suppress Dissent" -- into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."

This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy -- it's necessary to protect human rights and fundamental freedoms worldwide.

Lawyer Denise Howell has a similar warning, especially as we head into ACTA's home stretch:

This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner.

Finally, Glyn Moody points us to Jim Killock's analysis that highlights many more cases of copyright being used to stifle free speech:

Over in Mexico, environmental protesters are apparently also being attacked through copyright to censor their materials. A Youtube video was apparently temporarily taken down as the result of a regional government complaining their copyright had been violated by reproducing their animation of a planned highway....

Copyright law and free speech are fundamentally in conflict. It bears repeating, because most of those pushing for things like ACTA simply do not recognize this simple fact -- and when they then try to export the expression suppressing parts of copyright law without the all important exceptions and guarantees of free speech, it should come as no surprise, at all, that governments use the law the US pushed on them to suppress speech and dissent. What is not acceptable is for US policy makers to continue to ignore this key point.

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IIPA Wants Canada And Spain On The 'Naughty' Special 301 List Even Though They Brought In Tough New Copyright Laws

When You Realize That Copyright Law Violates Free Speech Rights, You Begin To Recognize The Problems...