The Anti-Piracy Scam: Canada Insulted Again

The Patry Copyright Blog: The Congressional International Anti-Piracy Caucus (IPAC) was established in October 2003. Its website states: “ The Congressional International Anti-Piracy Caucus is a bipartisan and bicameral group committed to protecting American intellectual property and reducing the scourge of piracy abroad.” It is hard to argue with such Motherhood and Apple Pie concerns.

The caucus made the news yesterday with a purported news release. I say purported not because I question the existence of the release, but because the news release hasn’t been released on the caucus’ website, but rather is reported on at the RIAA’s website, here. The RIAA reports:

The co-chairs of the Congressional International Anti-Piracy Caucus (IAPC) today released their “Priority Country List” today highlighting some of the most pressing problems confronting the American creative community in global commerce.

Joining China and Russia in “the ignominious three” is Canada which, notwithstanding numerous public announcements, has failed to join the rest of its partners in the developed world in modernizing its copyright laws to address the challenges — and to seize the opportunities — of the digital age.

No quotes from the caucus are provided, however, so it is not possible to know what the caucus itself said, rather than what RIAA says. But this much seems clear: the addition of Canada well illustrates a cancer in discussions over copyright: RIAA is referring to its desire to have Canada adopt of the anti-circumvention and digital rights management provisions of chapter 12 of title 17. (It should be noted that despite chapter 12 being in title 17, chapter 12 is not a copyright provision, but is rather sui generis, like semiconductor chips, bootlegs, and vessel boat hulls. So even in the U.S., we have not implemented the 1996 WIPO treaties under our copyright laws.).

I have pointed out repeatedly that chapter 12 of title 17 has nothing to do with piracy. (See here and here). Instead, as Professor Tarleton Gillespie fully explained in “Wired Shut: Copyright and the Shape of Digital Culture” (reviewed in this blog post), chapter 12 is concerned with creating and controlling access, to creating a command and control business model in which U.S. corporations will be able to change, fundamentally the way we interact with culture; specifically toward a pay per view, pay per listen, or pay per read world in which we will never own a copy of a work, in which a combination of technological protection measures and the power to override limitations on copyright through contract — made possible by the Seventh Circuit’s ProCD opinion — means we will all be licensees, subjects to whatever terms and conditions are unilaterally imposed, and which cannot be circumvented on pain of criminal prosecution brought on behalf of a government that is “Pro-IP.”

What governments need to understand is how enacting what U.S. corporations are demanding of them will work in practice. In ordinary legislation, a bill is drafted, its provisions are laid bare, and can be debated. The effect the provision can have may be debated, but ultimately the legislature makes a policy decision, and a law is passed. Those who are affected by the provision can read it (or have their lawyers read it) and determine how to shape their conduct to comply with the provisions’ mandates. Those mandates cannot be expanded or changed except by another act of the legislature. DRMs and TMPs work very differently. Chapter 12 of title 17 delegates law-making power to the private sector.

It is the private sector - to be specific, U.S. corporate interests — that will determine, on a rolling, ever changing basis what conduct will be permitted; this includes what playback devices (e.g., DVD players, CD players, music and video enabled phones) can come to market and what functionalities they will have or not have; it also includes what uses we can make of lawfully acquired works: you buy a lawfully made DVD in England, sorry you can’t play it in Canada; you purchased a download of a song, sorry you can listen to it only three times, or only on this device; you buy an eBook; sorry, you “bought” it only for two weeks, and only for play on a specific device (e.g., Kindle). None of this requires legislative approval: all of it — and much much worse — can be controlled through the rights granted in chapter 12 because those rights are rights to control access, broadly speaking and without being tied to acts that would otherwise violate the exclusive rights granted by copyright. Once chapter 12 is implemented into domestic law, it is U.S. corporate copyright interests that will shape what consumer goods can be used in your country and how citizens of your country will be able to access and use lawfully acquired copies of works. No legislature that is amending its copyright law should do so without understanding the momentous delegation of power they are handing to U.S. corporate interests.

This is not a piracy issue, it is nothing remotely resembling piracy. It is Orwellian to claim otherwise. The designation of Canada as a scofflaw because it hasn’t implemented chapter 12 of title 17 is not only an abuse of language, but also a direct attack on the sovereignty of another country to determine what is in the public interest of its own citizens. Canada has more than adequate laws against real piracy, and as Howard Knopf had pointed out, its laws are more generous toward authors than is U.S. law. No legislature in the world should abdicate its responsibility to protect the public interest by vesting the private sector with the powers granted in chapter 12 of title 17. But Canadian abdication is exactly what is being proposed by U.S. interests, the false justification being that Canada is a pirate haven because it hasn’t implemented the U.S. DMCA.

There is a very real danger that the false use of piracy as a stalking horse for the DMCA will succeed, and that of course is precisely why it is being employed. Members of Congress and parliaments (including the well-meaning members of the Congressional International Anti-Piracy Caucus) are of necessity generalists. They rely, of necessity, on specialists, both inside the government and in the private sector, to provide them with an honest presentation of the facts, the law, and the policies involved. This is why the misuse of language, the mischaracterization of international obligations, and the false association of DRMs and TPMs with piracy is so deadly, and why I complain about it so loudly and frequently. I support fully efforts to combat piracy in the usual sense of that word, in the sense the members of the Congressional International Anti-Piracy Caucus understand that word: the massive, commercial, unauthorized reproduction of copyrighted works. But this is not the sense in which U.S. corporate interests are now using the word; instead piracy has become a synonym for our DMCA, and on that score, I object. Let U.S. corporate interests make their case for our DMCA honestly, on the merits, without falsely impugning the state of the law in other countries with the scare tactic of piracy. If they have a good case, they can make it, but let’s at least be honest about what is on the table.