In a recent presentation before the Personal Democracy Forum, Yochai Benkler, the Berkman Professor of Entrepreneurial Legal Studies at Harvard and co-director of the Berkman Center for Internet and Society, discussed the media surrounding the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) as a case study for the evolution of networked discourse and activism.
Author: Jonathan Band
Abstract: The controversy in the United States over the Stop Online Piracy Act (SOPA) has profound implications for the Trans-Pacific Partnership (TPP) agreement. The SOPA debate underscores the importance of striking the proper balance in intellectual property laws to promote creativity and innovation. It demonstrates that over-protection can stifle free expression and the effective operation of the Internet as a medium of communication and commerce not only within a jurisdiction, but also extraterritorially. Additionally, the debate reveals the ability of the Internet community to mobilize quickly to defeat policies that it believes threaten its existence. TPP negotiators should understand the SOPA experience to avoid repeating its mistakes.
Paramount’s Vice President for Worldwide Content Protection & Outreach has sent letters to university professors regarding the SOPA/PIPA backlash, asking if the company can give presentations and hold the discussions at their schools. Says the letter: “our goal would be to exchange ideas about content theft, its challenges and possible ways to address it. We obviously think about these issues deeply on a daily basis. But, as these last few weeks made painfully clear, we still have much to learn.”
The controversy in the United States over the Stop Online Piracy Act (SOPA) has profound implications for the Trans Pacific Partnership (TPP) agreement. The SOPA debate underscores the importance of striking the proper balance in intellectual property laws to promote creativity and innovation. It demonstrates that over-protection can stifle free expression and the effective operation of the Internet as a medium of communication and commerce not only within a jurisdiction, but also extraterritorially. Additionally, the debate reveals the ability of the Internet community to mobilize quickly to defeat policies that it believes threaten its existence. TPP negotiators should understand the SOPA experience to avoid repeating its mistakes.
In the wake of the Stop Online Piracy Act/PROTECT IP Act (collectively, SOPA) Web protest, some commentators have pointed out that Anti Counterfeiting Trade Agreement (ACTA) is even worse in both substance and procedure. The secretive process through which ACTA was negotiated is now well known, at least amongst those paying attention. Indeed, the very secrecy of the process has made paying attention both difficult to do and critically important, as ACTA seeks to create a new international framework for combating piracy. SOPA, in a profound way, has shown the value of transparency, albeit imperfect, when lawmakers are faced with pervasive and poorly understood technology like the Internet, and a new problem of scale like the distribution of intellectual property (IP) on the borderless Internet. The public’s access to actual texts of SOPA, combined with a relatively simple process for offering actual input about the bills, will hopefully create better law by allowing knowledgeable parties to explain technologies that are not well understood. No such opportunity existed with ACTA.
The European Union signed the Anticounterfeiting Trade Agreement on January 26, but the treaty will require ratification from the EU Parliament before it enters into force, and ratification is not guaranteed. Parliament will debate ratification in June.
The EU Rapportuer for ACTA, Kader Arif resigned in protest over the signing, saying “I condemn the whole process which led to the signature of this agreement: no consultation of the civil society, lack of transparency since the beginning of negotiations, repeated delays of the signature of the text without any explanation given, reject of Parliament’s recommendations as given in several resolutions of our assembly.”
Alarm about ACTA is growing in the United States as well. People who opposed the Stop Online Piracy Act and the Protect IP Act are turning their attention to ACTA and other vehicles of trade policy (like the TPP and Special 301) that promote TRIPS-Plus intellectual property . Examples include:
Now that we’re post SOPA/PIPA (for now), it’s important to develop a larger framework for how intellectual property law can best serve the public ends of maximizing innovation and enriching our common culture. Last August, we helped organize a Global Congress to do just that. The result was the “Washington Declaration on Intellectual Property and the Public Interest.”
What’s in it? A lot of it is pretty obvious stuff, such as: policymaking shouldn’t be secret! And, take evidentiary standards seriously! Some of it is fairly technical, such as defending the first sale principle across borders to facilitate parallel importation. Not all of it is completely settled or specified–150 people contributed to this and we tried to do justice to their disagreements as well as agreements. The point is, it’s a very good place to start a larger conversation about how to make intellectual property law serve public ends–in both national and international law. If that matters to you, please give it a read and consider signing!
The European Union Signed ACTA today – months after withholding its signature at the official signing ceremony in Japan. But the political atmosphere in the EU remains very much in flux. The key to the future is that, unlike the US, the EU has admitted that ACTA is a binding international agreement and therefore requires parliamentary approval. But Parliamentary approval in the EU is in doubt.
Support for the Stop Online Piracy Act and the PROTECT-IP Act collapsed last week in the face of massive public outcry and a January 18 internet blackout. Google reported that millions people signed its petition against the legislation.
In the House, Rep. Smith postponed action on SOPA “until there is wider agreement on a solution” to online piracy.
The right of every citizen to seek, receive and share information is protected both in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights (ICCPR). As regards Latin American countries specifically, the American Convention on Human Rights lays down rules on censorship in Article 13. Similarly, the Tunis Agenda also recognizes these rights within the Information Society.
However, despite the fact that freedom of expression depends on the free flow of information, there is a tendency for national and regional laws to intervene in the end-to-end architecture of the Internet, prevent the free flow of information and thus undermine the rights of every citizen to freedom of expression and privacy. This context shows how utterly important it is to watch abusive Internet legislation worldwide. This is the intent of the book “Towards an Internet Free of Censorship”, published by CELE (Center for Research on Free Speech and Access to Knowledge), in which researchers Joana Varon Ferraz, Carlos Affonso Pereira de Souza, Bruno Magrani and Walter Britto participate with the chapter entitled “Content Filtering in Latin America: Reasons and Impacts on Freedom of Expression”.
The White House has responded to online petitions against the Stop Online Piracy Act and the PROTECT-IP Act, which together have received over 100,000 signatures, indicating it will not support the bills as currently drafted:
“While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”
His statement: “After consultation with industry groups across the country, I feel we should remove Domain Name System blocking from the Stop Online Piracy Act so that the Committee can further examine the issues surrounding this provision. We will continue to look for ways to ensure that foreign websites cannot sell and distribute illegal content to U.S. consumers.”