Tell Congress to Save Net NeutralityLearn More About Net Neutrality
The following is a guest post from recent Duke Law School Graduate Steve McIntyre.
The Combating Online Infringement and Counterfeits Act (COICA), recently introduced by Senator Patrick Leahy, provides yet another reminder of the increasing tension between copyright law and free speech. As originally written, the bill would have authorized the Department of Justice to (among other things) create a blacklist of websites that it deemed, “upon information and reasonable belief,” to promote infringement. While the blacklisting provision has been omitted from a newly amended version of COICA, the bill would still require ISPs to block access to certain websites, as determined by court order. The amendments to COICA are welcome, but some fear the bill still threatens Internet freedom and security.
As a matter of law, the bill is not strictly necessary; the Electronic Frontier Foundation (EFF) points out that “[t]here are already laws and procedures in place for taking down sites that violate the law.” COICA would simply endow the federal government with new powers and discretion to target specific websites and service providers. While online copyright infringement is a serious issue, as EFF’s Richard Esguerra writes, “giving government agents a reason to censor, search, seize, and indict must be taken very seriously. . . . [L]aws and policies targeting so-called ‘pirates’ can be used to pry away human rights and undermine fundamental elements of democracy and freedom.” Russia’s recently exposed practice of raiding outspoken newspapers and advocacy organizations under the pretext of enforcing copyright law underscores this danger.
COICA also reveals Congress’ continuing naiveté about the international impact of U.S. copyright policy. In their letter to Senators Leahy and Sessions, Public Knowledge and other organizations warned that “Congress must consider the precedent this bill would set for countries less protective of citizens’ right of free expression.” The United States has often been on the vanguard in developing new legal mechanisms for protecting—and overprotecting—copyright. The U.S. became the first country to implement the 1996 WIPO treaties when it passed the draconian Digital Millennium Copyright Act (DMCA), and although Congress arguably went “far beyond treaty requirements,” other countries subsequently followed its lead. If COICA passes without serious revision, it will provide another dangerous model for America’s peers.
Unfortunately, American policymakers are typically oblivious (or simply ambivalent) to the manner in which U.S. copyright policy affects free speech in other societies. This has proven especially true with respect to the most populous, and one of the least democratic, nations on earth: the People’s Republic of China.
The United States has been a major force in Chinese copyright law for over a century; China first recognized copyright in 1903 by means of a Sino-American treaty. Modernly, the PRC originally agreed to promulgate IP laws, and eventually passed its first copyright statute, in response to U.S. pressure. For the past two decades, American politicians have repeatedly demanded that China accord stronger protection to rights holders and engage in more consistent enforcement. Just a few weeks ago, Timothy Geithner testified to Congress that he would “continue to press China to strengthen its IPR enforcement and its prosecution of violations so that U.S. firms are not being undercut by pirated technology and counterfeit goods.”
According to a recent law review article, U.S. foreign policy has been “at best agnostic toward—and probably detrimental to—the Chinese position on intellectual property doctrines that implicate free expression.” While American politicians frequently decry Chinese censorship and speech suppression, they fail to appreciate copyright law’s capacity to restrict freedom of expression. In its efforts to secure stronger protections for American rights holders, the U.S. has inadvertently contributed to a Chinese copyright regime that is subservient to the PRC’s speech control and censorship practices.
In 1983, not long after the PRC committed to the U.S. that it would promulgate IP laws, Chinese legal scholar Huang Qinnan wrote that copyright law was necessary to stem the spread of “illegal publications” and to “overcome unhealthy tendencies in publishing and printing work.” Chinese lawmakers tended to see copyright as a means for controlling speech and media, and few copyright advocates seriously questioned that copyright law might legitimately discriminate on the basis of works’ moral and ideological content. In fact, as one academic explained, the purveyors of ideologically unacceptable literature should not only be excluded from the law’s protection, but should be held responsible for their actions—and copyright law was essential to fight such “cultural crimes.” So envisioned, copyright law was a tool for promoting “healthy” media and discouraging speech that threatened the state’s political legitimacy and ideological imperatives.
When China finally passed its Copyright Law in 1990, propaganda authorities believed that it would support and “deepen” the crackdown on political dissent that they had launched in the wake of Tiananmen Square. Indeed, the Copyright Law contained content-based restrictions, and copyright-limiting doctrines (such as fair use) largely benefited state-run media outlets rather than individuals or society at large. In recent years, China has further circumscribed fair use (especially in the digital context), and has implemented DMCA-type regulations that exceed even the DMCA’s austerity. “Ironically,” copyright expert Hong Xue writes, “an ordinary user may be better off under the DMCA [than under China’s regime], despite all of its chilling effects on fair use.” Clearly, foreign pressure on China to implement a comprehensive copyright regime has had some unintended consequences.
China’s blurring of censorship and copyright—and the United States’ complicity in it—is most evident at the enforcement stage. Chinese copyright law is primarily enforced by the state itself rather than through private lawsuits. While China has yet to achieve constant, sustained enforcement, it does engage in sporadic anti-piracy campaigns. U.S. politicians and businesses have cheered these campaigns and called for their expansion. In fact, Warner Bros.’ Chinese subsidiary aided Chinese authorities in carrying out a nationwide “100 Day Anti-Piracy Campaign” in 2006—an initiative that a Warner Home Video executive praised as an “important step in developing the potential of the legitimate video business in China.”
The troubling thing about these so-called “anti-piracy” campaigns is that they involve far more than mere copyright enforcement. They are typically conducted under the auspices of the national “Clean Up Pornography and Destroy Illegal Publications” (????) office, which was spawned shortly after the Tiananmen Square incident and has conducted regular censorship campaigns ever since. Although the “100 Day” campaign’s ostensible focus was copyright infringement, its broader purpose was to “clean up” China’s “cultural market” and “ensure the safety of the country’s culture.” The extensive raids conducted throughout China resulted in the confiscation of not only pirated DVDs, but also millions of media items containing disapproved content—including “pornographic” media, “illegal newspapers and periodicals,” and “illegal publications of a political nature.” Liu Binjie, head of the General Administration of Press and Publications, praised these results, but emphasized the continuing need to improve the “atmosphere of public opinion” in China.
So long as American politicians and policymakers are beholden to copyright industries, they will likely remain complicit in the expansion of China’s copyright-censorship system. Domestic legislation such as the DMCA and COICA, combined with U.S. efforts to achieve perfect enforcement abroad (whatever the cost), carries a definite social cost—much of which will be borne by citizens in China and other authoritarian countries.
Fortunately, the Senate Judiciary Committee has postponed consideration of COICA until after the midterm elections. There is still time to improve it. But if Congress enacts the bill without substantial amendment, it may not be long before China enacts its own version—and takes it a step further.
 Pamela Samuelson, Intellectual Property in the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L.J. 1, 3 (1999).
 Robert S. Rogoyski & Kenneth Basin, The Bloody Case that Started from a Parody: American Intellectual Property Policy and the Pursuit of Democratic Ideals in China, 16 UCLA Ent. L. Rev. 237, 251 (2009).
 Huang Qinnan, Lun bao hu zhu zuo quan [Protecting Copyright], 1983 Fa xue yan jiu [Chinese L.J.], No. 2, at 47, 49.
 Guo Haiqing, Shi lun wo guo de zhu zuo quan bao hu [Discussing Copyright Protection in China], 1987 Xuchang da xue xue yuan [J. Xucheng Univ.], No. 3, at 93, 96.
 Yan Sheng, Zhong tan wei jin zuo pin yu zhu zuo quan [Focus on Prohibited Works and Copyright], 2009 Fa zhi yu she hui [Legal Sys. & Soc’y], No. 7, at 388, 388.
 Hong Xue, Les Fleurs du Mal: A Critique of the Legal Transplant in Chinese Internet Copyright Protection, 34 Rutgers Computer & Tech. L.J. 168, 183 (2007).
 Wo guo “fan dao ban bai ri xing dong” 14 ri zai Beijing tu shu da xia qi dong [China’s “100 Day Anti-Piracy Movement” Kicks Off at the Beijing Book Building on the 14th], Xinhua, July 14, 2006.
 “Fan dao ban bai ri xing dong” quan mian jing hua wo guo chu ban wu shi chang [The “100 Day Anti-Piracy Campaign” Comprehensively Cleansed China’s Publications Market], Guang ming ri bao [Guangming Daily], Oct. 25, 2006; Fan dao ban bai ri xing dong bu shou ruan [100 Day Anti-Piracy Campaign Not Soft], Ren min ri bao [People’s Daily], Sept. 17, 2006.
 Liu Binjie: yao gong gu ti gao “fan dao ban bai ri xing dong” cheng guo [Liu Binjie: Consolidate and Improve the Results of the “100 Day Anti-Piracy Campaign”], Xinhua, Nov. 1, 2006.