[Reposted with permission from the Yale Journal on Regulation Notice and Comment blog. Link] On December 15th, the Ninth Circuit heard en banc oral arguments in a contentious copyright case: Garcia v. Google. The core questions in the case are interesting enough: whether performer Cindy Lee Garcia can claim copyright protection for her five-second performance in the film Innocence of Muslims, and whether Google should consequently be enjoined from showing the movie. The case raises important questions about online speech, about creativity, and about the recourse available for people who allege harm stemming from online content. A number of professors, myself included, wrote and joined amicus briefs on Google’s behalf. For a great write-up of the en banc hearing, check out Cathy Gellis’s summary over on techdirt.
Abstract: For years, the United States has included intellectual property (“IP”) law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.
[Cross posted from Concurring Opinions] This is my second post about the leaked draft of the Trans-Pacific Partnership Agreement. Here, I address some of the copyright provisions. This is not an exhaustive analysis, and I’ve tried to make it complimentary to what’s already out there. For analysis of additional provisions, see KEI, Public Citizen, Ars Technica, and EFF.
First, there are major splits between countries. The United States consistently takes the position of pushing for stronger IP, while others—especially Canada and New Zealand— advocate a more balanced approach. The divisions are particularly prominent when it comes to preliminary statements about the public domain and public health, none of which the U.S. supports. These analyses are on one subset of proposed language, not finalized language, and a lot of the agreement could change. I focus my analysis primarily on the U.S. proposed language.
Abstract: This paper explores why the Office of the U.S. Trade Representative (USTR) seems so shocked by current demands for what seem like basic democratic elements of transparency and public involvement. I summarize the current state of the Anti-Counterfeiting Trade Agreement (ACTA) and what it contains. ACTA is part of a larger trend of international lawmaking in the United States, a shift from Article II treaties to executive agreements. ACTA is also part of a longstanding trend of coziness between industry groups and government representatives within IP policy-making. Trade negotiations made through the executive branch are particularly subject to industry capture, and that industry capture is particularly problematic when it is located in an agency of the government that does not envision itself as publicly accountable.
In the past weeks, Americans have been realizing that the Stop Online Piracy Act (SOPA) might not have been the Great War, but a short battle in hostilities of grander proportions. This is not the first time copyright policy-making has lacked balance, lost its sense of proportion, or threatened civil liberties. It’s just the first time the Internet has won.
Two things are missing from the current conversation. First, the recent debate all but ignores the broad arsenal of responses to copyright infringement already available to rights-holders, without SOPA. Second, the public has not been informed on how America’s free trade negotiations have been used to circumvent the democratic process, accomplishing much of what SOPA was meant to do.