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What the State of the Union “Piracy” Reference Means

January 25, 2012 , , , ,

It doesn’t take much to excite the Twitterverse. President Obama
in his State of the Union speech made a passing reference to intellectual
property enforcement, perhaps to try to appease the Motion Picture Association
of America (MPAA).  It was
relatively benign, as he said only that foreign piracy hurts trade, but my
reader exploded with “Obama’s flipping on PIPA/SOPA! Betrayal!” While I have no
reason to believe that the Administration is backing away from its current
hard-line position against PIPA/SOPA, it doesn’t have to in order to show MPAA
some love.

One
of the key proposals was a beefed up task force for intercepting counterfeit goods. 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.
(On the other hand, if they try to make ICE-style seizures of domain names on dubious
pretexts
, then we’ve got a problem.)

But there is a larger, and more dangerous context to what the
President discussed when he talked about international trade deals.  They are not simply about improving the
economy and creating economic opportunity.  They are also a backdoor enforcement mechanism for those
familiar special interests in Big Content.

While PK has labored in this particular vineyard for years, few
Americans know that Big Content, the people who brought you the Stop Online
Piracy Act (SOPA), has long been in the driver’s seat on negotiating
international trade agreements. They 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 heart desires.

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 Big Content
Seal of Approval” back when it was negotiated in 2007.

Of course, the problem with Big Content is that it is never
satisfied. What they called “very strong” and said they “fully supported” in
KOROUS at first, they now characterize as so weak that it practically promotes
piracy. As a result, Big Content keeps upping
the level of crazy stuff they insist must go in our free trade agreements
, like they did in the Anti-Counterfeiting Trade
Agreement (ACTA) that is due to be signed by the European Commission member
countries on Jan. 26 in Japan. 

The U.S. has already signed, but the ruckus over PIPA/SOPA has
prompted those countries in the world considering signing on to take a hard look and reconsider.

Even as those second looks are going on,  Big Content is now busily at work making
sure that SOPA-like provisions are included in the current big regional trade
agreement under negotiation — the Trans-Pacific Partnership Agreement (“TPP”). Their
strategy includes making sure no one who isn’t 100% behind the SOPA Agenda
shows up at the negotiations.

For example, the International Intellectual Property Association
(IIPA), the division of Big Content that takes the lead on international
agreements like this, continues to insist that 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, Big Content gets its annual chance to pressure all
countries to adopt their dream list through something called the annual Special 301 process. By law, the U.S. Trade Representative (USTR) must compile a list
of countries that don’t do enough to protect our intellectual property. This
report long ago became a way for Big Content 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 Spanish version of SOPA by threatening to put them on the Special 301 naughty list.

SOPA would have been bad enough in the U.S.  There’s no reason why we should try to
export it to the rest of the world. 


About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”