USTR 301 Comments: Crashing the IP Mafia's Party

Time for another little instructional video, aka “5 Minutes With Harold Feld.” Here, I talk about the US Trade Representative’s “Special 301” Process. This is where the US Trade Representative (USTR) makes a “naughty list” for countries which, in the words of the statute: “deny adequate and effective protection of intellectual property rights” or “deny fair and equitable market access to United States persons that rely upon intellectual property protection.” (You can find last year’s list here.)

But while Congress intended this to be about protecting U.S. interests from wholesale piracy — you know, the warehouses with the industrial copying machines that crank out 10,000 counterfeit DVDs and hour and such what — the usual suspects have hijacked this to ratchet up intellectual property law in other countries. That includes trying to outlaw in other countries things that are not only legal here, but critical to our electronics industry and online services (not to mention free speech and civic expression). For example, because “space shifting” is a perfectly legal fair use, SlingMedia can sell a product that lets me watch shows I pay for through my broadband connection. Because we don’t hold “providers of interactive services” liable for copyright infringement if they follow the Digital Millennium Copyright Act notice and takedown provisions, Youtube can have an open video service that’s easy to use and easy for people to upload content.

Eliminate these provisions and we don’t just lose access to foreign markets for these goods and services. We potentially expose U.S.-based providers to foreign liability. Needless to say, Hollywood and the music industry are deeply concerned about how mucking around with other countries and pressuring them to change copyright law hurts other businesses — let alone the impact on civil liberties. But while it is not the job of these industries, and their associated trade organizations, to care about others, it is the job of the USTR to care about all U.S. goods and services, not just the entertainment industry.

You can read more about this issue from my Public Knowledge colleague Rashmi Rangnath here, including her exciting day testifying before USTR staff here. Rashmi is too polite to say as bluntly as I will that USTR staff give every sign of having been so thoroughly indoctrinated by the entertainment industry that they don’t even remember what their actual job is anymore. So we will need to whack them up the side of the head with a pretty big Clue Hammer a few times to get this process heading back in the right direction.

Stay tuned . . . .