Pro-IP Act authors criticize ACTA

US Senators Patrick Leahy (Dem.-VT), Chairman of the Senate Judiciary Committee, and Arlen Specter (Rep.-PA), the senior Republican member of the same panel, have released a joint letter to the US Trade Representative critical of the ACTA negotiations.  Senators Leahy and Specter were authors of the recently-passed, but as-yet unsigned, PRO-IP Act (see my previous comments about this act here and here), and are generally considered to be strong proponents of IP enforcement regimes.  Nonetheless they worry that the treaty may be too broad and too specific, and that the negotiations are insufficiently transparent and proceeding too quickly.

The letter, dated October 2, 2008, notes the senators "are concerned, however, that the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress's ability to make constructive policy changes in the future."  Their concern "is compounded in this situation by the lack of transparency inherent in trade negotiations and the speed with which the process is moving."  The letter goes on to urge the USTR "not to permit the agreement to address issues of liability for service providers or technological protection measures."  It concludes:

"We urge you not to rush into a new, broad Anti-Counterfeiting Trade Agreement that may have a significant impact on intellectual property protection at home and abroad and which can take effect without formal Congressional involvement. We encourage you to limit the agreement to improved coordination among nations and robust, but flexible standards for civil, criminal, and border enforcement."

The letter comes in the wake of a public forum held by the Bush administration that was designed to assuage fears over the ACTA, which have been widespread.  Recently Public Knowledge and the EFF launched a joint Freedom of Information Act lawsuit against the USTR, seeking the release of documents about the treaty.

See additional coverage here, here, and here.

Copyright expansion pressure at work in the US

Declan McCullagh had an interesting piece on The Iconoclast yesterday morning, talking about some copyright bills that are working their way through the US Congress, at the moment. One, the Enforcement of Intellectual Property Rights Act of 2008 (S.3325), which was approved by the Senate Judiciary Committee yesterday, would empower the Justice Department to pursue civil lawsuits against "any person who engages in conduct constituting an offense under section 506". Section 506 is the "Criminal Offenses" section, so it's not quite every copyright infringement; McCullagh is wrong on that point, as I read the bill. (But I admit I haven't read it thoroughly, so I may well have missed something.) But it does reduce the standard of proof required to the more relaxed "preponderance of evidence". This is important, since a lot of copyright infringements are difficult to prove beyond a reasonable doubt.

One might ask (and indeed some are asking) why it would be a good idea to spend public funds on civil litigation when the rights holders are demonstrably capable of pursuing their own suits. RIAA alone has launched over 30,000 file-sharing lawsuits in the US, over the past 5 years.

There is more in this bill: provisions about importation and transshipment; provisions about forfeiture and seizure; creation of a new "Intellectual Property Enforcement Coordinator" position within the Executive branch. Much of it seems rather similar to what the RIAA has allegedly proposed be enshrined in the ACTA. This is presumably not coincidental. And yes, it is the kind of thing that gets people talking about whether their iPods will be seized at the border:

Importation into the United States, transshipment through the United States, or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.

A second bill, the International Intellectual Property Protection and Enforcement Act (S.3464) may also be of interest to Canadians. It proposes what amount to unilateral trade sanctions against countries that remain on the USTR's Special 301 Report priority watch list for more than one year, and who don't meet the benchmarks of an "Action Plan" designed to "achieve—(I) adequate and effective protection of intellectual property rights; and (II) fair and equitable market access for United States persons that rely upon intellectual property protection."

In 2008, that could be all of the countries on the priority watch list except Pakistan: China, Russia, Argentina, Chile, India, Israel, Thailand, and Venezuela. At least they have all been on the list for more than a year. Canada has been on the (lower priority) watch list for years, and both the MPAA and RIAA have lobbied to have Canada added to the priority list. The sanctions, which could include a ban on US Federal Government procurement of goods or services, cancellation of any preferential trade treatment, as well as restriction of various import/export and development funding programs, would not be automatic. They would be at the discretion of the President.

This bill is being sponsored by Max Baucus (Democrat, Montana) and Orrin Hatch (Republican, Utah). Baucus doesn't seem to have much of a history in IP-related issues. Hatch does. He was behind the controversial INDUCE Act, which critics claimed could outlaw the VCR, the iPod, and even the PC. Also, in a slightly surreal moment from 2003, he suggested remotely destroying people's computers for copyright infringement, while using unlicensed software on his web site.

A number of Canadian critics of the now-defunct Bill C-61 commented on the role that US pressure played in its creation. Clearly the Baucus-Hatch bill demonstrates that the US may be increasing the amount of pressure it applies to its trading partners to conform to its desires in the IP realm. And the Enforcement of IP Rights Act suggests the direction where those desires may be heading. All of which suggests that, whatever the make-up of the next Canadian Parliament, the copyright reform issue will not go away.