U.S. Pushed Spain to Adopt French-Style Three Strikes Law

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Among the thousands of documents revealed to the press through WikiLeaks are apparently a number that deal with copyright issues. The Spanish newspaper El País has published a number of cables from the U.S. embassy in Madrid regarding U.S. efforts on IP enforcement in Spain.

One of the most interesting is this one from February 2008, which recommended that the U.S. threatened to put Spain on the Special 301 "naughty list” unless the Spanish government announced it would adopt a three-strikes style copyright enforcement law that would cut users off from the Internet after allegations of copyright infringement.

This shows how the Special 301 list and trade pressure generally are used to implement very specific goals in international policy and foreign law. The cable proposed putting pressure on the government soon after the 2008 parliamentary elections, saying that Spain would be put on the watch list if it did not do three things: 1. State that piracy is illegal and that copyright levies did not compensate for downloaded files; 2. Amend a “circular” that had been interpreted widely as declaring file sharing was legal in Spain; and 3. Announce an anti-piracy law “along the lines of the French and/or UK proposals.”

The French proposal, of course, would be the three-strikes law often called HADOPI, after the agency it creates. The UK proposal was the three-strikes discussion that led into the current Digital Economy Act, which still leaves the door open for three-strikes regulations.

This is not to say that the United States is the prime or originating proponent of these ideas—though it is odd to pressure another nation to adopt a legal regime that is neither active in nor currently being contemplated in one's own country. The cable notes a great deal of support from Spanish movie, music, and publishing industries to have their own country scolded by the United States. This push is not merely coming from those parties, though—the cable notes that Spanish movie and videogame rightsholders at the Federacion Antipirateria (FAP) are supported by MPAA; Spanish music rightsholder group Promusicae is affiliated with IFPI (which in turn is affiliated with the RIAA); and the collection society Sociedad General de Autores y Editores (SGAE) also has a relationship with MPAA.

The cable's concluding comment, after noting several efforts of the Spanish government to crack down on street-level pirate sales, conduct publicity campaigns, and arrange meetings with stakeholders, however, is that "we cannot point to a single major success of interest to our music and movie industries." In the end, the cable recommends that Spain be judged against France and the UK—not in terms of numbers, but in terms of "moves on internet piracy that industry organizations praise." The cable ends, "Our bottom line: consider giving the new government six months, and if it does not perform, put Spain on the Watch List." (Incidentally, Spain appeared on the watch list in 2008, and remained there through 2009 and 2010).

That point about judging Spain according to whether or not it adopts a proposal like France or the UK is an interesting one. It suggests that, as many have argued, various three strikes proposals were being pushed concurrently in different jurisdictions as though they were not just one solution, but the solution to online infringement. And that's a real problem, certainly if the flaws predicted in the French proposal are seen to emerge there. Three strikes laws are an experiment—one that we've criticized as risky, but one that bears watching nonetheless. And testing a drug as harsh as HADOPI isn't something that should be done without controls.

Beyond these more remote concerns of comparative law, though, are the questions of what actually happens to users, consumers, and citizens at ground level. One would hope that where these laws are put into place, it's a result of a legislature analyzing the facts on the ground in their country, and trying to work out the balance of their citizens' rights, not merely because industry pressure points to other jurisdictions in a sort of peer pressure by proxy. Too many times, we see policy trends (like copyright term extension) take root through a sort of one-way ratchet where one nation makes an extension, then another extends up to and beyond the first to "harmonize" the regimes, leading the first to "harmonize" again, ever upward, without much more justification than harmonization itself as well as a vaguely articulated benefit for creators.

While the benefit for creators here is more easily articulated, the attendant harms to others make the case far from certain. Yet we still see policy by peer pressure being applied transnationally. It's interesting to note, for instance, that one of the more recent cables marks a shift in the Spanish government's focus from targeting users to targeting "information society services," such as particular websites. This focus makes sense, since there are certainly websites that are infringing on the Internet and deserve targeting. However, it's the implementation is always the question, and as we see the website-targeting efforts of COICA taking a turn for the dangerous, we should hope that those mechanisms are debates on their merits, not through volume-discount policymaking where one idea is pressed across multiple fronts just because it's the new meme.

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