'The Alphabet Soup of Transborder Intellectual Property Enforcement' by Peter Yu in
Drake Law Review Discourse (2012) 16-33
comments that
In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN.
Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and mid-sized firms. It then explores the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP) and explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. The essay concludes by highlighting the challenges recently raised by two new pieces of legislation, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).
Yu argues that -
In its current form, SOPA has at least five shortcomings. First, some of the proposed correction measures are highly disproportional to the wrong. As noted constitutional law scholar Laurence Tribe observes:
[Under SOPA, c]onceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.
Indeed, it is hard to explain why legitimate industries and Internet users should pay the price—economically or technologically—when the online community has some inevitable bad apples.
Second, U.S. Customs has already actively seized piratical and counterfeiting websites, including those providing live streams of sporting events. The U.S. government has also initiated extradition proceedings against massive infringers from abroad, including most recently Kim Dotcom, the owner of Megaupload. Successful, past extradition efforts have even sent the Australian leader of the warez group DrinkOrDie, Hew Raymond Griffiths, to jail in Virginia for fifteen months.
Third, SOPA fails to take into consideration the many new technological and business models that have become popular among Internet users. Consider YouTube, for example. Displaying billions of videos a day in more than fifty languages, his service is exciting not because it facilitates copyright infringement, but because it provides an attractive platform for Internet users to locate legitimate content unavailable on the market.
Unfortunately, SOPA does not appreciate the social benefits brought about by these new websites and services. As the Center for Democracy and Technology acknowledges, “The new de facto duty to track and control user behavior [as required by the proposed legislation] would significantly chill innovation in social media and undermine social websites’ central role in fostering free expression.”
Fourth, while SOPA would not “break the Internet” — as some have claimed in exaggeration — it does inflict some serious collateral damage. From erosion of free speech91 to creation of cybersecurity concerns, the statute’s benefits do not always compensate for its unintended harms. As the U.S. Public Policy Council of the Association for Computing Machinery points out in its analysis of SOPA:
[W]e do not believe that attempts to block or alter DNS [domain name system] or DNSSEC [DNS Security Extensions] look-ups will be particularly effective in stopping individuals who wish to connect to criminal sites outside the U.S., and will be less effective over time for all users. However, the costs and overhead associated with maintaining blocks and responding to orders will remain.
Finally, like ACTA, SOPA could provide repressive governments with an internationally acceptable blueprint for developing Internet censorship regulations. The legislation “would... set the dangerous international precedent that governments seeking to block online content that violates domestic law should look to online communications platforms as points of control.” Should SOPA be adopted, it would indeed be hypocritical for the U.S. government to complain about similar laws enacted abroad.
Given the bill’s many shortcomings, and the political complications massive Internet protests will create in an election year, it is no surprise that the Obama Administration was willing to distance itself from the controversial legislation. The weekend before the massive Internet service blackout in January 2012, the Administration released a carefully drafted statement declaring that “it will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”
Immediately following the blackout, several congressional members also quickly withdrew their support for SOPA and PIPA. More importantly, Representative Lamar Smith and Senator Harry Reid announced the postponement of consideration of these bills, bowing to pressure from Internet companies and the user community. In retrospect, the developments concerning SOPA and PIPA may have shown us how to mobilize individuals and communities to protest against international agreements such as ACTA and TPP.
Yu concludes that -
For the past few years, policymakers, with strong support from the entertainment and pharmaceutical lobbies, have been cooking alphabet soup in the legislative cauldron. Large and small, homemade or otherwise, time-tested or experimental, a wide variety of alphabet pasta has been added to this soup. While the pasta may look fun and attractive, and it could even fill up one’s stomach, strong evidence suggests that the fully cooked soup will unlikely nourish society.
Although it is undeniably important to address intellectual property piracy and counterfeiting, most of the proposed initiatives are badly designed. The development of ACTA, TPP, SOPA, and PIPA is unlikely to provide private rights holders with much-needed protection. Even worse, such development may harm the public interest by violating due process while at the same time stifling free speech, free press, and other civil liberties.
It is high time policymakers start inquiring about what they are really cooking in that legislative cauldron. It is also important that they explore whether alternative ingredients can be used to prepare better enforcement soup. After all, legislators have made election promises to carefully deliberate over what gets served at our table. It is only fair that we hold them accountable for what they cook
