What The SOTU “Piracy” Reference Means: Back In The USTR With Special 301 and The Trans-Pacific Partnership Agreement.

It don’t take much to excite the Twitterverse. Obama makes a passing reference to intellectual property enforcement as a sop to the MPAA by saying foreign piracy hurts trade, and my reader explodes with “Obama’s flipping on PIPA/SOPA! Betrayal!” While I have no reason to believe that the Administration is backing away from its current hardline position against PIPA/SOPA, it doesn’t have to in order to show MPAA some love (and remind them this is a long-term game with many fronts and that they depend on the federal government for enforcement — something to think about when considering whether to go through with the threats to cut off campaign contributions).

On the other hand, the fact that it does not require new policy, merely continuation of existing policy, should be just as disturbing for anyone who cares about Internet freedom and burdens on innovation. (I exclude from this concern the proposed beefed up task force for intercepting counterfeit goods until we hear more. If it focuses on stopping delivery of counterfeit goods at the border, then excellent! That is exactly the kind of enforcement we need to keep things like fake heart medicine out of the country. OTOH, if they try to make ICE-style seizures of domain names on dubious pretexts, then we got problems.)

What the President was talking about, and how to stop the People Who Brought You SOPA from getting what they want through the back door of trade agreements, below . . . .

While my employer, Public Knowledge, has labored in this particular vineyard for years, few Americans know that for many years the People Who Brought You SOPA have been in the drivers seat on negotiating international trade agreements. The PIPA-peeps have their own Federal Advisory Committee so they can “advise” the U.S. Trade Representative, see advance copies of treaty drafts, and generally make sure that they get whatever their little hearts desire. For example, the US-Korea Free Trade Agreement (“KOROUS”), which the President referenced when he made his remarks about foreign piracy being bad, contains a chapter forcing Korea to adopt all kinds of new laws to address “Internet piracy” that won KORUS the “Copyright Mafia Seal of Approval” back when it was negotiated in 2007.

Of course, the problem with the Copyright Mafia is that  it is never satisfied. What they called “very strong” and said they “fully supported” in KOROUS they now characterize as so weak that it practically promotes Pirate Bay. As a result, the PIPA-peeps keep upping the level of crazy stuff they insist must go in our free trade agreements. While this is actually worse for our overall free trade goals (we could have concluded the Anti-Counterfeiting Trade Agreement (ACTA) two years earlier if the Copyright Mafia hadn’t kept trying to get in crazy stuff behind closed doors), the U.S. government continues to make getting these goodies a priority in negotiations. And while we were ultimately able to mitigate the damage ACTA did to some degree, it still sucks rocks. On the good side, even though it is too late for us in the US to stop ACTA (we already signed it), the ruckus over PIPA/SOPA has prompted those countries in the world considering signing on to take a hard look and reconsider.

Needless to say, the Copyright Mafia are now busily at work making sure they include SOPA-like provisions in the current big regional trade agreement under negotiation — the Trans-Pacific Partnership Agreement (“TPPA”). You can read more about it here.  That includes making sure no one not 100% behind the SOPA Agenda shows up at the negotiations. For example, the International Intellectual Property Association (IIPA), the division of the Copyright Mafia that takes lead on international agreements like this, continues to insist Canada is unworthy to join the negotiations on TPPA until it adopts something SOPA-like. (Unfortunately for Canada, it looks like the current Canadian government is looking to do exactly that.)

In addition, PIPA-peeps get an annual chance to pressure all countries to adopt their  dream list through something called the annual Special 301 process. By law, the USTR must compile a list of countries that don’t do enough to protect our intellectual property. While this used to mean (and in some cases still does mean) getting governments to actually pay for U.S. developed products, software, and so forth, or pushing governments to stop turning a blind eye to wholesale infringement, it long ago became a way for the People Who Brought You SOPA to pressure other countries to adopt their own SOPAs. The USTR agrees with the IIPA recommendations for who goes on the Special 301 naughty list a stunning 91% of the time. As a result, we see the recent spectacle of our own State Department pressuring Spain to adopt the aq Spanish version of SOPA by threatening to put them on the Special 301 list.

As it happens, the USTR has opened up the comment period for the 2012 Special 301 report. If you follow this link, you will see a button on the right that allows you to file a comment. Why not tell USTR what you think of SOPA, and how trying to get it into the US by exporting it is a really bad idea?

Stay tuned . . .



One Comment

  1. While I have no reason to believe that the Administration is backing away from its current hardline position against PIPA/SOPA

    Two comments:

    1) The Administration statement on PIPA/SOPA was of a piece with about half of the Congressional opposition; not a hardline position against, but a “we cannot support this flawed bill at this time.” A good comparison is the Administration statements on NDAA (where a seemingly strict veto threat was really more about not wanting Congress to take away Executive branch privileges). It still bears watching.

    2) Regardless of whether you parse the Administration statement strictly or not, the NDAA experience is useful. Administration threats and complaints about the contents of bills have not, in general, led to vetos, not from this Administration.

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