Why Did Congress Abdicate Its Power To Make Copyright Policy?

from the this-is-broken dept

Earlier today, we wrote about today's Congressional hearings about legalizing the unlocking of mobile phones. That post fretted about the unwillingness of Congress to take on the actual issue. The only reason that mobile phone unlocking is illegal today is because of a broken copyright law, specifically section 1201 of the DMCA, which isn't about copyright per se, but rather a bizarre, indirect way that entertainment industry lawyers think protects copyright by making technology illegal, and effectively gives those legacy industries veto power over technologies they don't like. So when Congress realizes how this is abused for reasons that have nothing to do with protecting copyrights, they should respond by fixing section 1201. But that's not what they're doing.

What I hadn't seen when I wrote the earlier post is the way in which the IP subcommittee of the House Judiciary Committee framed the hearing today. However, the official memo from the committee outlining the hearing is actually an incredible statement, in which the committee basically claims (falsely!) that Congress does not have the power to fix section 1201! How could that be? They claim that our "international obligations" forbid this. Specifically, they point to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty as binding their hands in fixing 1201.
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”1 Enacted in 1998 as part of the Digital Millennium Copyright Act, Section 1201 (a)(1) of Title 17 implements these treaty obligations in the U.S. by prohibiting circumvention of a technological protection measure (TPM) that effectively controls access to a copyrighted work subject to one key exception. Every three years, the Register of Copyrights is directed by statute to conduct a rulemaking in which advocates for specific exemptions may petition for exemptions to the anticircumvention provisions for noninfringing uses subject to five factors.

Since the enactment of this provision into U.S. law, the U.S. has entered into several Free Trade Agreements that require signatories (the U.S. and the particular country or region) to enact anti-circumvention provisions and set requirements on how exceptions to them can be created. Most such FTAs limit the duration of such exemptions to a three or four year period and require that they be administratively or legislatively created based upon a record of evidence.
If you're even remotely aware of the history of the DMCA and the WIPO Copyright Treaty, you would know that this is first, an incredible rewriting of history, and second, a ridiculous and false direct claim from Congress that it has abdicated its sole authority in establishing copyright policy to the administration.

First, a bit of history: In the early/mid 90s, the entertainment industry, fearing new internet technology, sought to pass the DMCA, with a specific focus on anti-circumvention rules, in the mistaken belief that strong DRM would protect their increasingly obsolete business models. However, Congress wouldn't pass such a law. So what did they do? They went to Geneva, and used the "international trade" venue to create a treaty that would then require the US to pass the DMCA if it wanted to sign onto the treaty. The key architect of the DMCA and this entire plan, Bruce Lehman, has admitted outright that he went to Geneva as a direct "end run around Congress" because they wouldn't pass the law the entertainment industry interests wanted. Just a few months ago, at a 15-year anniversary conference for the DMCA, Lehman had no problem directly admitting that he absolutely went to Geneva to deal with Congress' failure to pass the law.

Now, we've pointed out that really fixing phone unlocking would likely violate international agreements. But, the point should really be that Congress should re-assess its sole authority over copyright policy. The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties. So it's not even clear if the USTR (a part of the administration) has the power to negotiate international copyright policy. But it's crazy to then think that this stops Congress from fixing a broken system.

To have Congress itself say that it can't fix a clearly broken system, because of trade agreements that it did not negotiate or set is an incredible admission. It's fundamentally incorrect. Congress alone has the power to set copyright policy, and if that "violates" international agreements, that's a problem for the administration, not Congress.

However, the fact that Congress is now claiming that it has given up its power, and clearly admits that it feels its hands are tied in actually fixing a very real problem that so many people are concerned about, because a few representatives of the Clinton administration, who have admitted directly that they were creating policy by routing around Congress to support their friends in the entertainment industry, should give everyone -- especially in Congress -- serious pause about supporting things like "intellectual property chapters" in new international agreements like the TPP and TAFTA.

Both of those agreements will be setting significant aspects of copyright (and patent and trademark) policy -- without any input from the public, because they're being negotiated entirely in secret. However, the entertainment industry has full access to the documents. And here we have Congress saying -- incorrectly -- that whatever comes out of that process will bind their hands.

That's crazy.

Whether or not you think Congress should be taking on mobile phone unlocking or copyright reform or anything along those lines, I would hope that most people can agree that there's something wrong about a process in which corporate interests get to drive US policy in international agreements without any transparency or feedback from the public, and then Congress claims it can't fix the problems that those agreements create.
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Filed Under: congress, copyright, dmca, judiciary committee, mobile phones, tpp, unlocking, ustr, wipo

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  1. icon
    special-interesting (profile), 6 Jun 2013 @ 10:34pm

    Why did Congress abdicate from its duty/powers about eternal copyright policy? The obvious problem is who we vote for. We vote for the wrong people! How does one pick a quality candidate/judge from the poor choices offered on typical ballots? Best answer; Write in. There is still hope for the election process though...

    How can anyone recognize an honest candidate much less likely to violate your Constitutional Rights? What kind of test or list of questions can we ask to sort out the Constitutional malcontents from the honest hard working candidate? Of course its not the questions or test that are important but the answers and results.

    Its likely that these questions and analysis wont be asked on the normal walled garden chosen question presidential TV/Radio candidate debate.

    Keep in mind that it is not just the popular presidential candidate elections that are important but especially the smaller elections which are often used to sneak through unwanted tax bills or drug enforcement and or copyright activits.

    Question #1; Are you aware of the various foreign treaties being pushed by trade-associations?

    Answer A; “Why yes isn't it a great thing that our trade-associations and the USTR are looking out for us?”

    Yikes This person wont even read them let alone pay attention to details like privacy or right of resale and the million other ways clever wording can steal personal (and corporate) freedoms. Its likely this person has been visited by the MPAA/RIAA/patent-trolls/other who donated largely. This person might even ignore a 12,000 voter signed petition just for his valuable corporate contributors. Or... The person is a real idiot. (its possible)

    Answer B; “There are several trade treaties like TAFTA and TPP being contemplated in secret right now but its hard to call them trade agreements since they seem more to do with controlling the culture and spread of culture in the signatory nations than trade or business. A trade agreement has nothing to do with Intellectual Property. Ideas cant be owned. If the term limits of copyright were sane like 14-28 years there wold be no problem at all anyway.” Having a candidate say things like that wold be very helathy.

    Question #2; Accessibility any way we want. What is your stance on how one obtains media/entertainment/news? More technically stated; How do you feel about Digital Rights Management (DRM) and untoward bad licensing agreements forced on the public at large?

    Answer A; “Whats the problem? Intellectual Property must be protected its a priority.”

    Do NOT vote for this totally technically illiterate candidate unless you want badly written law written by special interest groups? Intellectual Property is a buzzword that really means this candidate will enact law that further restricts your access to culture in many ways.

    Answer B; Makes technical sense. Spout technically correct answers about technological based topics. Keeping in mind the exceptions in question #4. This is kind of a “fill in the blank” answer.

    Question #3; Privacy. How do you feel about individual privacy in terms of phone records/tapping and outright spying on citizens? What about an individual purchasing spending habits on content sensitive entertainment in various formats books/films/mkv/avi/pdf/other?

    Answer A; “I fully want to protect the average citizen right to privacy and will enact law to protect the rights of Intellectual Property and protect Americans from Terrorists.”

    Expect nothing but more NSA/FBI/DoD/CIA/other unconstitutional spying on the public at large. Intellectual Property is that buzzword meaning corporate monopolies will get more power and you get the bill to pay for it.

    Answer B; “Its clear that government has been panicking about terrorists and some sense of reason and calm must be inserted into Washington quickly. The threat of terrorism may be real but democracy and the American Culture of Privacy must be able to survive. Anonymous use of the internet is an important issue and must be protected by removing the PATRIOT and various other anti privacy acts.”

    Question #4; Qualifications. What do you feel your qualifications are for the political/judgeship/sheriffs/other office?

    Here we have a trick question derived from the REAL reasons we elect an officer in government.

    That is... we elect them for honesty and integrity in the way we want them to enforce and interpret the law. Not how slick they act nor how tough a stance on crime they spout off about. We elect people to NOT enforce bad law and NOT to convict anyone for victim-less crimes. (no way a Hollywood studio is a victim of violent crime)

    Answer A; “I'm gonna be tough on crime of any kind and lock up anyone suspected of any kind of crime.”

    Its likely that this sheriff or candidate will bust down your door with a SWAT team and shackle your kids just for practice. Unless you want to pay for a lot of broken down doors. Don't vote for this power mad psycho.

    Answer B; “I will lock up only violent offenders period. Congress writes many bad laws and copyright/drug laws are some of them. If you are a violent person you will be arrested and prosecuted with all due process followed. You may get a ticket for jaywalking but never arrested.” These are good things to say.

    There will be obvious accusations of lawlessness and such drivel. Since bad laws ARE the REAL problem... its not a problem.

    There are many more issues that great probing questions might be asked also. Like what about Intellectual Property itself and the Cultural black hole of out of control copyright industry? What about all the horrible treaties that have been trying to lock the US down and let foreign parties control US lawmaking process?

    At the moment its basically easy to recognize a candidate that will not act in the publics behalf... they are Democrats and Republicans. Who else can we blame the current Constitutional crisis on? They are really weirdos being supported by two weird political organizations.

    The Democratic and Republican parties protect their candidates in much the same way a union will force a company to keep a bad worker in spite of being worthless. They have such good PR staff that their candidates always look good and the opposition always looks bad. The dirt throwing is famously used.

    Another way to recognize a looser is the size of anonymous corporate contributions. If there are not a lot of legitimate small grass roots donations its time to question the candidates viability. It would be a good sign if a candidate would submit to an interview with WIRED magazine or even from TechDirt itself. Some group that actually did discuss the real issues an definitely not any TV network more worried about their White House press pass than tacky things such as privacy/Bill of Rights/etc issues.

    If any of the local dummy politicians complain about it vote them out also. Keep voting out monkeys and replacing them with reasonable people that support the constitution( especially the first paragraph), due process, privacy, the Bill of Rights and thinks Intellectual Property is a bad phrase.

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