Trading away the internet

[The following is by my FIU colleague Hannibal Travis (links now have been corrected)]:

Last week, the office of U.S. Trade Representative Ron Kirk denied a request by Darrell Issa, chairman of the House Oversight and Government Reform Committee, that he and his staff be allowed participate in the next round of negotiations of a new treaty that Issa believes will have an "immense impact" on the U.S. economy.  According to the American Civil Liberties Union, the treaty, known as the Trans-Pacific Partnership (TPP) pact, would set the stage for "worldwide crackdowns on Internet activity by a coordinated authority that could work at cross-purposes with the laws and policies of the participating countries."  In this, it resembles the Anti-counterfeiting Trade Agreement (ACTA) and Stop Online Piracy Act.  Expected as early as next year, the TPP would, according to a U.S. proposal, impose civil liability for the removal of copyright terms or other “rights management information” from a copy of a copyrighted work as part of the commission or facilitation of copyright infringement.  A draft of another such treaty, being negotiated under the auspices of the World Intellectual Property Organization, provides for civil liability for negligently removing rights management information from an audiovisual performance in order to communicate the performance or make it available to others without permission.

Both the TPP and the WIPO Audiovisual Treaty threaten the Internet by potentially outlawing remix culture and fair use of existing content.  Many YouTube videos are mashups of news, entertainment, or public affairs videos with additional commentary or montage.  There are already precedents for using the removal of “rights management information” from a remix in an attempt to censor artists and other creators of fair use works.  For example, the video search engine Veoh was sued out of existence for storing users’ videos that allegedly contained infringing clips of copyrighted music, even though the Ninth Circuit upheld a lower court ruling that the site complied with the “safe harbor” for Web sites set forth in the Digital Millennium Copyright Act of 1998.  The Associated Press sued the artist Shepard Fairey, who made the Obama “Hope” poster, for removing from his stylized version of President Obama’s visage the copyright management information attached to the image of Obama after the Associated Press fixed it in a photograph.  It also sued a news aggregator site for providing excerpts of news articles available to subscribers without the original rights management data.

The TPP and the WIPO Audiovisual Treaty go beyond existing law in prohibiting not only the intentional removal of rights management information for purposes of infringement as opposed to fair use, but in potentially reaching the negligent removal of such information to commit infringement or to encourage or facilitate infringement by another person, or perhaps even the negligent removal of such information to make a fair use.  Article 10 of the TPP requires parties to criminalize the intentional removal of copyright management information from copyrighted work en route to infringement, and to impose civil liability even for the negligent removal of the information.  Article 16 of the WIPO Audiovisual Treaty requires parties to provide civil remedies against those who negligently facilitate the distribution, importation for distribution, communication or making available to the public, “performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority.”  This would appear to prohibit, for example, the use of clips of news, films, or television shows with the copyright notices, credits, or contractual use terms intentionally omitted, even when the clips are used in transformative works such as documentary films, news reports, parodies, lip-synching videos, etc.  Existing U.S. law has a copyright management information provision (17 U.S.C. s. 1202(a)), but it requires intentional removal or alteration of the information for purposes of infringement, not mere negligence.

Article 5 of the WIPO Audiovisual Treaty states that independently of any economic rights, and even after the transfer of them, a performer has a right as to fixations of live performances “to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.”  This of course could lead to endless litigation concerning mashups and the like, redolent of the attempts to restrict the fair use of songs, music videos, and video games in Lenz. v. Universal, Lewis Galoob v. Nintendo, and Campbell v. Acuff-Rose Music.  Article 6 seems to grant a broad new right to restrict the "communication" of unfixed performances not already broadcast, exceptions to which “may” but do not need to be granted.  Goodbye to YouTube access to rare concert footage?

Even worse, Article 17 of the WIPO Audiovisual Treaty forbids any formalities in the audiovisual performance ownership right, which threatens the many important roles that formalities play in U.S. copyright law from playing their usual part.  As Jason Mazzone has argued: “The U.S. Copyright Office registers copyrighted works, but there is no official registry for works belonging to the public. As a result, publishers and the owners of physical copies of works plaster copyright notices on everything. These publishers and owners also restrict copying and extract payment from individuals who do not know better or find it preferable not to risk a lawsuit. These circumstances have produced fraud on an untold scale....”  Imagine the scale of the ownership-related misrepresentations that will occur as audiovisual performances are protected but formalities such as registration are done away with.  John Bergmayer of Public Knowledge has argued that: “Creating new kinds of ‘middleman rights’ could increase the complexity of dealing with content exponentially. It could give broadcasters the right to prevent recording shows for later viewing, or even effectively remove works from the public domain.”

Although Article 13 of the WIPO Audiovisual Treaty provides that parties may provide similar exceptions and limitations to the audiovisual protection right as they do for copyright, paragraph 2 of that article states that such exceptions and limitations must not injure the normal licensing expectations of the owner of any right in the audiovisual performance.  Thus, the USA could be brought up on World Trade Organization claims (or threatened claims) for allowing fair use of audiovisual clips on YouTube, and be pressured to reform its copyright law in response; there are precedents for this from the 1989 copyright reform and the 2011 patent reform.

The threat to the Internet is compounded by the process by which the TPP or the WIPO Audiovisual Treaty may be adopted.  The TPP is apparently being characterized as a “sole executive agreement,” which will not be ratified by the Senate or passed by the Congress in the form of legislation.  This removes many of the checks and balances that prevented the Clinton administration’s proposals to impose crippling copyright liability on Internet pioneers from becoming law as a result of section 512 of the Digital Millennium Copyright Act of 1998.  Unlike most international criminal laws, as well as the North American Free Trade Agreement and the WIPO Copyright Treaty, the TPP and the WIPO Audiovisual Treaty may not be submitted for the advice and consent of the Senate.  This prompts the ACLU to complain that treaty “negotiations are being conducted behind closed doors with details shared only with ... top executives from [such corporations as] AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco.”  Most sole executive agreements have not been criminal law reforms, intellectual property expansions, or vast new trade pacts, but rather governed the discretion of the executive in military, nuclear, aviation, scientific, postal, and international financial affairs.   A defender of the TPP or WIPO Audiovisual Treaty might respond that Congress would have to act before Americans could face civil liability or criminal charges for their YouTube videos or other remixes, but the federal government has been seizing Web sites that do not themselves infringe copyrights.  The fear is that the many vague clauses in treaties such as the TPP, ACTA, or WIPO Audiovisual Treaty will lead to the end of the Internet as we know it, as Internet companies are forced to edit out the quotation of copyrighted material, and all Internet traffic is inspected by the state.