Defending Users in NAFTA 2.0: Who Are We Up Against?

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After three rounds of negotiations, with a fourth coming up fast, we are still in the early days of NAFTA 2.0. In particular, the fight over copyright in NAFTA is just beginning, with the United States submitting its opening bid for the Intellectual Property chapter just last week.

What does that bid look like? It's hard to say, because the negotiation process is opaque and exclusionary. But even with what little information we have, we can already identify some of the key protagonists in this unfolding battle, and some of the positions that they have been lobbying their governments to adopt.

A War of Letters Between Tech and the Music Industry

An August 31 letter by tech groups encouraged the USTR to include ISP safe harbor rules in NAFTA's IP chapter, as well as protections for fair use. In a September 19 letter [PDF] music industry groups such as the Recording Industry Association of America (RIAA) responded, warning against the insertion of "vast loopholes in the American copyright system, such as broad copyright exceptions and sweeping immunities for those committing content theft."

The letter describes these safe harbor rules as "an antiquated system of copyright safe harbors under the Digital Millennium Copyright Act (DMCA), established at the dawn of the Internet and subsequently interpreted well beyond the law’s original intent," and claims that the law "has increasingly been used to cloak non-passive businesses in the mantle of safe harbor immunity, putting other digital partners at a massive competitive disadvantage and undermining the stability of the online marketplace."

While EFF has always said that the DMCA safe harbor system has its faults, the safe harbor that it offers to online platforms, protecting them from copyright liability for content of their users, is essential to a user-centric Internet. For all its flaws, the DMCA safe harbor system, which balances the interests of copyright holders with those of users, is better than the alternatives Hollywood often proposed, such as either filtering everything or switching to a read-only, cable-TV model of online content distribution.

Aside from its attack on safe harbors, the music industry letter also pulls no punches in its opposition to fair use, claiming:
 

The request for “balance,” including an open-ended exception for “fair use” that does not recognize the necessary parameters and guidance of 150 years of U.S. case law, reflects an agenda to undermine copyright protections internationally to the benefit of a few tech companies.

This is nonsense. Creators themselves—from musicians to visual artists to documentary filmmakers—are often dependent upon fair use. It's also perplexing to suggest that the fair use doctrine is good enough for the United States, but not good enough for its trading partners Canada and Mexico, simply by virtue that the U.S. has accrued 150 years of case law.

Unfortunately, it does seem that the USTR has taken the music industry letter to heart. The initial draft IP chapter did not include a provision on balanced copyright limitations and exceptions such as fair use, despite the inclusion of such a provision in the previous trade agreement that it negotiated, the Trans-Pacific Partnership (TPP). And although the ISP safe harbor provision was not omitted altogether, its inclusion was in the form of placeholder text only, suggesting that the USTR does intend to make changes to the TPP's rules on that topic.

Who is "ACTION for Trade"?

If you came across a campaign website or social media post titled ACTION for Trade, promoting a trade policy agenda that "protects creativity, advances innovation, and prevents foreign countries from stealing intangible assets developed by American workers," you might be inclined to support it—and even to share it with your friends. But it's worth digging underneath ACTION's apple-pie slogans like "creativity" and "innovation" to find the real agenda that lies beneath all those buzzwords.

The ACTION in ACTION for Trade stands for "American Creative, Technology & Innovative Organizations Network," which makes it sound like the network is a broad coalition that includes tech companies. In fact, only two tech companies are part of the coalition: Qualcomm and Oracle. In both cases, there are good reasons why they would choose to join forces with the network's other IP maximalist members, which include the usual suspects such as the RIAA, the MPAA, and PhRMA.

Qualcomm's main profit line is from licensing the technology patents that it holds. To protect the value of these patents, it has long been a strong opponent of patent litigation reform. While Qualcomm isn't your classic patent troll—it does also design and manufacture real technology—its opposition to various patent reform proposals has empowered patent trolls to continue executing their parasitic business model. The Canadian government has been advised to push certain reforms to the U.S. patent system in the negotiations, and Qualcomm will likely want to weigh in on these.

As for Oracle, it has split with most other tech companies by supporting SESTA, and has recently made a submission advising the government against open source software solutions. It also brought a case against Google claiming copyright in the Java APIs that Google reimplemented in the programming language for its Android operating system. A jury ruled against Oracle, and found that Google's use of the Java APIs was a lawful fair use. Oracle appealed that decision to the Federal Court, where it remains pending. Given this history, it's easy to imagine why Oracle might oppose the inclusion of fair use in NAFTA's intellectual property chapter.

But the most audacious sections of ACTION for Trade's position paper [PDF] are those relating to the music industry. Repeating many of the claims from the music industry letter described earlier, it includes an attack on section 512 of the DMCA, insisting its protections are "overbroad," slams fair use as also "overbroad" and encourages its exclusion from NAFTA, argues for strong protection against circumvention of TPMs (i.e. DRM), and stresses the "particular importance on the availability of statutory damages."

Never Send to Know For Whom the Bell Tolls

Another company fighting against balanced copyright rules in NAFTA will be Canada's largest telecommunications provider, Bell. In a hearing last month before the Canadian Standing Committee on International Trade, a spokesperson for Bell's parent company BCE, Inc. (which also operates Canada's largest private TV network, CTV), stated:

Our view on how we solve the piracy problem is it is not sort of coming up with new technological measures, it’s blocking access to piracy. How do you do that? We would like to see measures put in place whereby all Internet service providers are required to block consumer access to pirated websites. In our view, that is the only way to stop it. So you would mandate all ISPs across the country to essentially block access to a black list of egregious piracy sites. That would be job number one.

In Bell's view then, job number one is to introduce an unprecedented centralized copyright censorship database—rather than, say, reducing the gap in legally available content between Canada and the United States, which evidence suggests would be much more effective than harsh enforcement measures in reducing the incidence of copyright infringement.

And the measures suggested by Bell are indeed harsh. Unlike similar copyright blocking regimes that exist in other countries (Spain, to give one example), Bell's proposal would not require a court order before sites were added to the blocking list. The potential for overblocking and misuse is obvious, as is the likelihood that this infrastructure for censorship, once in place, will be expanded to include other types of undesirable or controversial content.

Bell didn't stop there. It also suggested that "Canada should also create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it is undertaken for commercial purpose" (emphasis added). Unless the comma is misplaced here and "undertaken for commercial purpose" qualifies the entire statement, Bell seems to be advocating a position on the criminalization of copyright infringement that is even more extreme than either the U.S. Trade Representative, the MPAA, or the RIAA have ever publicly taken.

Between the music industry, other members of the ACTION for Trade coalition, and Bell, it's clear that we will have our work cut out for us in defending users' rights in the NAFTA negotiations. It certainly doesn't help that we have to do this with two hands tied behind our back, since all of the negotiating partners' text proposals, as well as consolidated draft texts, will be hidden from the public until the conclusion of the talks. But if being forewarned is forearmed, knowing what big content is lobbying for has steeled our resolve to make sure users and small creators are not left behind.