Letter to Congress on the Nexus of the Copyright Directive, USMCA and Brexit

Artist Rights Watch readers might be interested in this letter I sent to Congress last month regarding the European Copyright Directive/Brexit/USMCA intersection.  This is real now, Brexit is happening tomorrow and the UK Government announced it will not be transposing the European Copyright Directive.  The UK government will no doubt be seeking–quickly–a bilateral trade agreement with the US.  Having just concluded and signed into law the United States-Mexico-Canada trade agreement (USMCA), the Trump Administration may be tempted to use certain aspects of the USMCA as the basis for a UK bilateral agreement.

While creators were able to hold the line on some important copyright issues, Google was able to get the USMCA to incorporate DMCA loopholes that are a big problem and go in the opposite direction of the progress on safe harbor loopholes gained in the European Copyright Directive.  Google has built up a massive lobbying effort in the UK and you can expect it to kick into high gear on this issue.  Google will try to gain in the UK what they lost in the European Parliament, and then bootstrap any gains into opposition against other EU countries adopting the Copyright Directive.

You may wish to draw on these points to send a letter of your own.

Limiting Safe Harbors in Trade Agreements

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  However, creators in will be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 (Legal Remedies and Safe Harbors).

These concerns arise because the Article incorporates the highly controversial “DMCA safe harbor ” (17 USC Sec. 512 et seq).  The Article perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades.  Our fellow citizens simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States.

I encourage you to call on your colleagues to include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of  Article 20.89, disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors.  This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the opposite direction of the Article.

Piracy and the near-piracy by companies like Google and its YouTube subsidiary is most pronounced in the blatant encroachment on creator rights by the DMCA’s “whack a mole” extortion model of both online pirates and those who support them in the piracy supply chain–hosting services, search engines and advertising sellers and resellers.   This illicit enterprise is clearly not in the public interest.

Internet piracy does not distinguish among “hit” records or genres, geographic areas, or creative categories.  It needs to be repeated that the follow-on effects are massive for all of those in the creator’s supply chain as well as the creative economy.  Two generations of clients ask us of the DMCA loophole, “How can this be legal?”

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.”  The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.

For independent artists, international copyright enforcement essentially does not exist.  Consequently, counter-notifications are frequently supported by the flimsiest of theories, often laughably misreading the safe harbor laws based on “Internet myths”.

Artists, however, are not in on the joke because the punchline is that the theft continues absent the court order that is financially beyond reach.  Profits from the piracy supply chain continue unabated and the law—including the Article–is mocked once again.

This tragic call-and-response is particularly mismatched when challenging the Internet companies that are the biggest publicly-traded multinationals in commercial history.  Challenging the safe harbor requires all creators to constantly police these platforms and sue to enforce their rights.   That’s just not realistic.  By adopting the DMCA in the Article, the safe harbor becomes a brutal fortification.  Process becomes punishment for creators.

As you may be aware, the European Parliament recently adopted the new European Copyright Directive that sharply cut back on safe harbors like the DMCA that allow profit from piracy.   The message from our trading partners is clear—no more whack-a-mole.  It would send entirely the wrong signal for the United States to try to force what is essentially an economic sanction on our trading partners through the back door of a trade agreement with loopholes like Article 20.89

Dual Class Stock

I also call your attention to the dual class voting stock mechanism popularized in Silicon Valley by Google that gives Google’s founders 10 to 1 voting power over holders of the company’s publicly traded shares.  This dual class system has been criticized by many, included SEC Commissioner Robert J. Jackson, Jr. out of concern that it effectively establishes “corporate royalty.”  Commissioner Jackson’s concerns are prominently confirmed in the recent departure from Google’s management of Larry Page and Sergei Bryn who still control Google due to their 10:1 voting stock.

If the USMCA can require our trading partners to pay certain minimum wages, it seems that trade agreements could also address this fundamental unfairness that has most recently led to the economic debacle at WeWork.

Thank you for the opportunity to comment on USMCA.

Stopping Google’s End Run: No Safe Harbor Privilege in Trade Agreements

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  Less discussed is the part of USMCA  that incorporates concepts of the failed DMCA from US law.  The chances of doing something to lessen the blow are dwindling now that the USMCA has passed the House of Representatives and moved on to the Senate.  We still have a chance to have an impact in the Senate, but time is going by.

Google’s USMCA Back Door

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

What is to be Done?

There’s a few ways to do this.  First, the simplest thing is to ask your Senators to make a statement for the record opposing the safe harbors being included in any trade deal, including USMCA.

Then, realize that significant legislation comes with something called “legislative history” which is a stand alone document that is a narrative explanation of what the Congress intended with the bill.  The legislative history for USMCA has not been finalized yet, but the clock is ticking.  (You can read the legislative history from the House of Representatives on the Music Modernization Act if you want to get an idea of what this will look like.  Both House and Senate issue these “reports”.)

Courts often review the legislative history when trying to “say what the law is” as a way of defining the intentions of Congress, sometimes years or decades after a particular bill was enacted into law.  It’s important that the USMCA legislative history reflect that Congress was not throwing the door open to Google to incorporate special privileges.

One other way is to require the U.S. Trade Representative to consult with relevant committees of Congress before ever doing this again.  This takes the back room dealing out of it, or at least limits it.

Creators should be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 “(Legal Remedies and Safe Harbors)”–and that’s the problem floating beneath the surface of USMCA.  Just at a time when not only has the copyright small claims court bill (CASE Act) passed overwhelmingly in the House, but we are also expecting the Copyright Office report on the DMCA safe harbor and we are starting to win victories over the value gap in Europe, we don’t need US trade agreements to perpetuate and expand the bad DMCA safe harbors (17 USC Sec. 512 et seq for those reading along at home).  Particularly when the world is moving past those privileges and US law is frozen in amber.

These concerns arise because the USMCA incorporates the highly controversial “DMCA safe harbor ”. This perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades just at a time when the CASE Act is about to give some relief, especially to photographers, film makers and music artists. Creators simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States especially if the US ends up negotiating a bilateral trade agreement with the UK after Brexit.

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.” The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.  The House of Representatives has recently passed the CASE Act to deal with this very problem and I expect the Senate will take up the CASE Act in the coming weeks.  It would be a bizarre twist for the Congress to plug one loophole only to allow another through the back door of trade agreements. (Not to mention the showdown over Google’s fair use loophole brewing in the Supreme Court in the Google v. Oracle case.)

Even if the US rolls back the DMCA safe harbor, it’s possible that we may be stuck with whatever safe harbor privilege that Google snuck into the USMCA as a stand alone regime.  That would be unacceptable.

Take Action

I encourage readers to call on your representatives and ask that they include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of Article 20.89 that perpetuates the unworkable DMCA regime.  The legislative history should also disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors. This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the exact opposite direction of the Article.

If you agree with these concerns, I recommend that you call the Senate switchboard at 202-224-3121 and tell your Senators that you want (1) the USMCA legislative history to place a limitation on incorporating DMCA in future trade deals and (2) Congress to require the US Trade Representative to consult with Congress.  And you want them to make a statement for the record opposing inserting safe harbors in any trade deals, including USMCA.

The Artist Rights Watch motto is “Never Take It for Granted that Justice Will Be Done.”  We have a chance to fix this–if not us, then who, if not now, then when?

 

@HughPrincipal: The USMCA/CUSMA and Intellectual Property: Canada Wins

Hugh Stephens describes himself as an “informed layman” on IP issues based in Canada who makes the case for the US Congress ratifying the USMCA, an important trade agreement that will essentially replace NAFTA.

But–as Hugh notes, the legislation also includes important intellectual property (and copyright) agreements.  While Hugh’s post is subtitled “Canada Wins”, I’d suggest that if Canadian artists win, we all win.

In particular, Hugh makes the case that under USMCA, Canada is not required to adopt a version of the obscene US loophole for Big Tech in our Section 230 and also brings its copyright term into the international norm of life plus 70 across the board.   Given the recent drubbing that Big Tech lobbyists took in the Canadian Parliament, or in the Heritage Committee’s recent report, one does not get the impression that Canada will roll over on these points in the post-Cambridge Analytica world.

Hugh’s post is an excellent insight into the USMCA benefits, which I fear is about to get lost in the Washington schoolyard as we enter the election abattoir.  Here’s a teaser:

[L]et’s assume that ratification will now proceed. This is good news for Canada, since CUSMA/USMCA represents the best chance for relative trade peace with its largest trading partner. Canada fought a rear-guard action to preserve as much of the original NAFTA as possible in the face of Donald Trump’s declaration that the Agreement was “the worst trade deal ever made”. By and large, Canada succeeded and CUSMA/USMCA largely mirrors NAFTA with a couple of tweaks. However, victory is in the eye of the beholder and the new agreement, in Trump’s words, is now, “the most important trade deal we’ve ever made by far”. Among the areas where changes were made were in auto trade, where North American content requirements were raised, and intellectual property.

As I wrote at the time that CUSMA/USMCA was signed, the IP commitments that Canada made in the area of copyright were characterized by some as “concessions” but in fact they will bring significant benefit to Canada’s creative industries. Now a new paper has been published by the Macdonald-Laurier Institute on the IP provisions of the USMCA, incorporated in Chapter 20 of the Agreement. Written by lawyer Richard Owens, it is called “Who’s Afraid of the USMCA: Why the Intellectual Property provisions in the US Mexico Canada Agreement are good for Canada and its trading partners”.

 

Read the post on Hugh Stephens blog

Corrigendum:  I previously referred to Hugh Stevens as being a lawyer and he corrected me.  Sorry for the assumption.