With the latest round of anti-piracy bills now soundly defeated, many activists and lawmakers have begun thinking about ways that the Digital Millennium Copyright Act (DMCA) may be changed to remediate portions that have been abused by copyright holders.
Only, they've discovered that it may be too late.
The Obama administration signed off on an international agreement late last year called the Anti-Counterfeiting Trade Act (ACTA) that effectively exports much of the DMCA to Europe, Japan, Australia and other developed nations, and most likely cements those laws in place as-is here at home. Though negotiated in out of public view, as all U.S. Trade Representative (USTR) agreements are, portions of ACTA's early form became public after anti-secrecy website WikiLeaks released a trove of U.S. diplomatic cables referring to the talks.
Those cables showed a vastly different -- and much more objectionable -- agreement than what President Barack Obama eventually signed in 2011. Nonetheless, anti-ACTA activists have tried to generate mass opposition to the treaty by comparing it to the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), in an apparent effort to energize the same Internet users that were so successful in defeating those bills last month. But their arguments, largely based on conjecture and hyperbole, may ultimately hurt opponents of ACTA more than they help, allowing the Obama administration to reject lawmakers who call for reforms, like Sen. Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA).
As ACTA exists today, the administration insists that it does not make any alterations to U.S. law and does not introduce any new concepts for countries that have signed on, which is why the USTR and the Obama administration treated it as an "executive agreement" and did not send it to the U.S. Senate for ratification. Such executive agreements, though controversial, are not unheard of. The president does have the authority to enter into international agreements if it does not alter U.S. law, because such an agreement does not meet the technical definition of a treaty.
Instead of mirroring SOPA/PIPA, ACTA appears to primarilly formalize language from a number of existing bilateral free trade agreements, all of which have included intellectual property enforcement requirements.
The current copyright enforcement regime, codified under the DMCA, has been greatly abused in the U.S. because of the number of pitfalls that were not foreseen by lawmakers who crafted the legislation in the mid-90s. The Electronic Frontier Foundation (EFF), a technology policy group, has a list of DMCA abuses where copyright holders have been empowered by the law to prevent the publication of damaging information, bully competition out of the market, limit consumer choices, hinder scientific research, censor media outlets, modify or delete user-submitted multimedia on the Internet and discourage technological innovation.
"Years of experience with the 'anti-circumvention' provisions of the DMCA demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend," the EFF explained. "As an increasing number of copyright works are wrapped in technological protection measures, it is likely that the DMCA's anti-circumvention provisions will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large."
Although it's not technically a treaty in the strictest sense because it doesn't require changes to current law, any future legislative changes to the DCMA that counter provisions in ACTA could run into roadblocks. Once ACTA enters into force, any changes to U.S. copyright enforcement law could well run afoul of ACTA, forcing a future Administration to either withdraw from ACTA, renegotiate parts of the treaty to remain in compliance or risk sanctions from the other parties to the agreement. For its part, the Obama administration has insisted that ACTA does not tie the hands of Congress, but a future administration may read the text differently.
"The theory is that 'foreign affairs' is, in Article II the Constitution, a power specifically allocated to the President -- and, therefore, since ACTA is an issue under 'foreign affairs' it should be viewed as a Sole Executive Agreement that does not need Congressional approval," Michael Burke, a Washington, D.C. attorney who specializes in international law, explained to Raw Story. "Both the Constitution and relevant Supreme Court cases are clear that the President, sometimes, has 'sole' and 'plenary' authority on foreign relations/foreign affairs."
"However," Burke added, "others feel that Article I, Section 8 of the Constitution -- that allocates to Congress the power to regulate trade among nations-means that ACTA should not be considered a Sole Executive Agreement but a treaty subject to review and vote by the Senate." That's led the president's critics to latch on to claims that he's superseded his constitutional authority.
In its earliest forms, anti-ACTA activists wouldn't have been wrong in their assertions: ACTA previously contained SOPA-like provisions that would disconnect repeat copyright offenders from the Internet, DNS blockades for rogue websites and liability provisions that would make network administrators and website owners responsible for the actions of their users. Sources say, and cables show, those provisions were fought tooth-and-nail behind the scenes and ultimately dropped from the final version, though they've already reappeared in the Trans-Pacific Partnership, a potential treaty which enters its 11th round of negotiations in March.
While ACTA is not a backdoor to imposing SOPA/PIPA on an unwilling populace, as some have claimed, it is broadly representative of the American entertainment industry's long-term investment in using the American government to help it impost new copyright regimes abroad. Further evidence of that long-term goal can be found in U.S. diplomatic cables leaked last year.
ACTA is not likely to have immediate effects in the States, as part of the U.S.'s overall international copyright enforcement strategy, but it does give the Administration yet another tool in its arsenal to pursue sanctions against nations it deems insufficiently committed to protecting the U.S. entertainment industry's profits.
For example, the U.S. keeps a list of countries that skirt these requirements, targeting them with economic pressure to force compliance. Already, Spain was the most recent to face such pressure, which was revealed in December after a U.S. diplomat's letter was leaked to the media. Because of U.S. pressure, Spain's new administration adopted intellectual property laws similar to SOPA, even after the previous administration refused.
Under ACTA, U.S. power to force compliance onto countries with more liberal fair use and less onerous enforcement policies will simply grow.