Using treaties to lock in DMCA enforcement

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "Robert J. Berger" <rberger () ibd com>
Date: Tue, 20 May 2003 12:18:08 -0700
To: Dewayne Hendricks <dewayne () warpspeed com>, Dave Farber <dave () farber net>
Subject: Using treaties to lock in DMCA enforcement

Enforcing the Digital Millennium Copyright Act Internationally:
Why Congress Shouldn't Lock in the Current DMCA By Approving the Current
Version of the U.S.-Singapore Free Trade Agreement
http://writ.news.findlaw.com/student/20030519_karl.html
By BRANDY A. KARL
----
Monday, May. 19, 2003

On May 6, President Bush and Prime Minister Goh of Singapore signed the
U.S.-Singapore Free Trade Agreement (the "FTA"). President Bush has termed
the FTA "the first of its kind" - apparently meaning that it is the first
free trade agreement between the United States and an Asian nation.

But the FTA is also the first of its kind in another sense, as well. It is
the first international trade agreement to demand that the signatories
implement anti-circumvention provisions similar to those of the hotly
controversial Digital Millennium Copyright Act ("DMCA").

By pursuing anti-circumvention measures in a bilateral trade agreement, the
Bush Administration had taken a new step in the progression by which the
ownership and use of intellectual property have been increasingly
politicized in recent years.

This step will have international, as well as domestic consequences: If
Congress approves the FTA, it will not able to alter the DMCA without
violating its obligations to Singapore.

The Digital Millennium Copyright Act

On October 28, 1998, the DMCA was signed into law, as an amendment to the
Copyright Act. As a signatory to the World Intellectual Property Copyright
Treaty ("WCT"), the U.S. was obligated to provide legal protection for
authors "against the circumvention of effective technological measures . . .
that restrict acts . . . which are not authorized by the authors concerned
or permitted by law." However, the DMCA went much further than what the WCT
required. In part for this reason, the DMCA became intensely controversial,
as columns for this site by Anupam Chander and Laura Hodes have chronicled.

The DMCA prohibits the circumvention of technological measures that
effectively control access to a copyrighted work. For instance, it prohibits
the use of software whose only purpose is to thwart "lockware" or encryption
meant to protect copyrighted material - such as DVDs, eBooks, or music.

The DMCA additionally prohibits the manufacture of, and trafficking in, such
software - and other types of technology that are "primarily designed or
produced for the purpose of circumventing a technological measure"
controlling access to a copyrighted work.

The DMCA does contain some provisions exempting libraries and law
enforcement from liability. It also offers limited protection to certain
reverse engineering and encryption research activities. In addition, it
explicitly states that its anti-circumvention provisions shall not affect
substantive copyright rights and defenses to infringement, including fair
use. Nevertheless, it sweeps far more broadly than did the prior copyright
law that preceded it.

For one thing, despite its statement that fair use is preserved, it appears
to prohibit circumventing access control measures even on public domain
works. At least one decision construing the DMCA prohibits access control
circumvention with the intent of "fair use," as opposed to copyright
infringement.

Thus, while an English professor might photocopy a few pages of a book for
her class without risking liability, a music professor will risk liability
under the DMCA if she cracks the protections of an MP3 in order to sample a
few seconds of it for discussion in her music class. Both are fair uses, but
under the DMCA, the latter is apparently illegal.

Two bills pending in the House would resolve any ambiguity, making clear
that circumvention of digital locks is legal for fair use or other
noninfringing uses.

The Mistake of Fast-Tracking the FTA

The FTA's language regarding copyright circumvention technology goes no
further than the DMCA's. However, its status as an international treaty adds
a new facet to the debate, especially as the FTA does not contain any of the
DMCA's exceptions to the scope of digital protections for copyrighted works.

Unfortunately, in Congress, at least, the debate on the FTA is likely to be
limited. The FTA was negotiated by the President under the Trade Promotion
Authority (TPA) - formerly called "Fast Track" authority - delegated to him
by Congress. Accordingly, Congress may only consider the FTA as an entire
package - voting up or down on it as is, rather than considering amendments.

In addition, expedited TPA procedures expressly limit floor debate, and
require Congress to make its "up or down" vote on a rapid timetable -
normally 90 days.

Fast-tracking this important intellectual property issue was a serious
error. Trade Promotion Authority is already a politically questionable
delegation of Congressional powers to the President. That delegation becomes
even more questionable when the issues are as weighty and political as these
are - political footballs like this should be subjected to Congressional
back-and-forth, and not simply dropkicked by the President.

Arguably, it might be appropriate to fast-track some trade agreements, but
not this one - which would set in stone a highly controversial domestic law
that affects both the First Amendment and fair use. The progress of
technology and information, as well as free speech, is at stake, making the
inability to amend the FTA particularly troublesome.

The FTA's DMCA-like provisions deserve to be subjected to democratic debate.
Instead, closed-door trade negotiations have resulted in a package - one
bereft of the Congressional balance struck in the DMCA between private
rights and the public domain - submitted to Congress for a mere "thumbs up"
or "thumbs down." That's railroading by the copyright industries, not
democracy.

A Second Separation of Powers Problem Dogs the FTA

If the separation of powers problem with fast-tracking the FTA - allowing
the Executive to usurp Congress's prerogative of amendment - wasn't
sufficient, there's another separation of powers issue. This time, the
problem stems from separation of powers between the Executive and the
Judiciary.

Unless and until the FTA is enacted, courts will be able to narrow the
DMCA's scope to respect free speech and the public domain. After the FTA,
however, that will be impossible: it is not the judiciary's role to decide
whether the United States should honor its treaties.

If Congress promises, in the FTA, to stick to a harsh version of the DMCA,
the judiciary cannot renege on that promise. Again, this dynamic would be
less troubling if we were dealing with straightforward legislation relating
to ordinary products and goods - not legislation that implicates serious
constitutional issues because it relates to intellectual property.

If the FTA is ratified, the judiciary will be out of options when it comes
to ameliorating the effect of the fair-use-stifling DMCA. Congress will then
have only one option: vote to override the treaty, a complex and
wide-ranging trade agreement that regulates commerce between two nations.

The U.S.'s need for Singapore's cooperation in going after Al Qaeda only
makes the issue that much more sensitive, and makes an overriding vote all
the more unlikely. But absent such a vote, changes to the DMCA - for
instance, to allow certain fair use exemptions - would likely violate the
FTA, and thus will not be made by a conscientious Congress or judiciary.

In sum, the passage of the FTA would tie both the judiciary's and Congress's
hands to protect consumers' long-established right to fair use. Unless
Congress forces the President to go back to the drawing board and
renegotiate the FTA to recognize fair use rights, both the FTA and the DMCA
are likely to be set in stone for a long time to come - to the advantage of
the copyright industries, and the detriment of free speech and fair use.

Brandy Karl is a second-year student at Boston University School of Law.
--
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com


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