US Falsely Claiming It 'Won' IP Fight With China

from the it-lost-badly dept

You may recall a few years ago that in the (still ongoing!) fight between Antigua and the US at the World Trade Organization (WTO), that the WTO came out with a ruling where the US declared immediate victory, though the details showed that actually the WTO had sided with Antigua. The US merely declared victory, and got its (wrong) story out to the press first.

It appears that's happening again.

Earlier this week, plenty of attention was paid to a WTO ruling concerning US disputes with China over a variety of intellectual property issues. The US Trade Representative quickly declared victory (pdf) and that's the story most of the folks in the press went with, claiming that this was a US victory where the WTO largely supported the US. Some even called it a major victory, while others were surprised that China seemingly was fine with the ruling.

Perhaps that's because if you actually read through the details, you realize, as Michael Geist points out, that the US actually lost very badly. There were three issues at stake -- and the only one the US "won" was the most minor of the three. On the two big issues, concerning China's border measures concerning counterfeit goods and its IP enforcement system within the country, the WTO sided strongly with China, and chastised the US for providing rather bogus "evidence" (often consisting of newspaper articles, rather than actual evidence) in support of its position. It seems like the only mainstream publication that actually bothered to read the report, rather than the USTR's "day is night" version of the events was Forbes, who notes that the USTR was being misleading in claiming victory. Of course, given how the US acted after it lost the Antigua case in the WTO, we can expect the US to appeal the ruling or... just ignore it and continue pretending the WTO actually ruled in its favor.

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Why Obama Should Change US Trade Policy On Intellectual Property

from the doing-more-harm-than-good dept

For years, we've had serious problems with the way the US government has viewed intellectual property when it comes to trade agreements. In many ways, it's been the exact opposite of its stated plan. We see, time and time, again where a supposed "free trade agreement" is actually about forcing other countries to add protectionist policies more draconian than the US. That's not free trade at all, and just as tariffs and other trade barriers harm the very industries they're supposed to protect, the US's trade policy concerning intellectual property has done great harm to US intellectual property industries. Unfortunately, you rarely see that discussed anywhere.

That's why it's good to see Ed Black, president and CEO of the Computer & Communications Industry Association, writing up an opinion piece for the San Jose Mercury News explaining to President-elect Obama why US trade policy concerning IP needs to change. First, he worries about the widespread reports that Obama has chosen Xavier Becerra to be the new US Trade Representative. In the past, the US Trade Rep has basically acted as a representative of Hollywood at times, and Becerra may be no different... as he's literally the Congressional rep for California's 31st district... which (you guessed it) covers Hollywood. Uh oh. That would be like making a Congressional rep from Detroit in charge of automotive policy in the US. They're less likely to have the nation's overall best interests in mind.

Black then outlines three reasons why the US's insistence on pushing draconian IP laws through trade agreements is a bad idea:

• It's alienating many of our allies who feel they're being forced to put in place excessively draconian IP laws they don't need or want.
• It takes away from America's ability to spread our culture internationally. Black notes how bootleg products in Eastern Europe helped contribute to the fall of communism there. By greatly restricting how American content can be used, we actually aid repressive regimes.
• Finally, and most importantly, these restrictions actually harm the US economy. Black specifically notes how excessive IP legislation that does not allow for fair use (which is what the US is pushing in most countries) actually harms American internet companies, allowing them to get sued for copyright infringement on things that should be fair use. He could actually go much further in how it harms our economy, but at least it's a start.

Unfortunately, given the current expected choice for USTR, the initial reaction is that this is going to be more of the same.

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Israel Hits Back On Charges From US Lobbyists That It Doesn't Respect Copyright

from the don't-believe-the-hype dept

Every February, a US lobbying group called the International Intellectual Property Alliance comes out with a "report" to the US Trade Representative, supposedly highlighting which countries aren't living up to their obligations with regards to "piracy" and copyright law. The hope is to get the USTR to put that country on a special watch list. In recent years, much of the focus has been on blaming countries that don't implement draconian copyright laws (even more draconian than those in place in the US), claiming incorrectly that failing to create DMCA-like laws is a failure to live up to international treaties. That's simply not true. Michael Geist is now pointing out that Israel, who was highlighted in this year's report, has responded to the "inaccuracies and hyperbole" in the report. The Israeli response includes a rather lengthy discussion of all the things the country has already done to put in place more American-style copyright and patent laws, but does push back on a couple of important points. Specifically, in discussing the fact that it hasn't put in place DMCA-style anti-circumvention laws for DRM (which is referred to as "Technology Protection Measures" or TPM):

Internal discussions on whether to implement TPM continue and in this respect the GOI [Government of Israel] notes that the experience with TPM around the world has not been uniform, nor has it achieved the results that many of its early promoters thought it would. Additionally, comments received by the Ministry of Justice following a "request" for comments on the subject of TPM, indicate that many several large authors' groups vehemently oppose TPM, while other right holders categories favor TPM. The critiques and criticism of TPM both from business model perspectives and from copyright perspectives are almost endless. Indeed, some content providers are already experimenting with non-encrypted access to content. Hence, the question of whether and in what manner to implement TPM is not straightforward and politically volatile.

Given that so many in the entertainment industry are (belatedly) realizing the pointlessness of DRM, the above paragraph is rather restrained. The response then pushes back on complaints that the safe harbors for ISPs and notice-and-takedown provisions it has for infringing content online are too lenient. In the US system, an ISP is supposed to just take the content down when informed of infringement. Israel decided on a much more balanced system that gives the other side at least a chance to respond. This seems reasonable, but it doesn't make the content industry happy. The explanation from the Israeli government is worth reading:

The notice and takedown provisions are balanced and reasonable as between the rights of persons claiming injury (copyright or libel for example) and the rights of free expression. Where allegedly infringing material is notified to the ISP or host and the uploader fails to refute the charges within three days, the offending material will be removed. The IIPA, it appears, prefers a system wherein ISPs and hosts would have to take down material as soon as there is an allegation of infringement, without need for due process or rebuttal. A "takedown" system which operates on the basis of a mere allegation of infringement would be an invitation to censorship and abuse of process. To require "take down" on the basis of "constructive notice" alone, as desired by the IIPA, would require the ISP or Host to make rulings of law as to whether certain content infringes copyright or is libelous or otherwise actionable, something that only courts have competency to do. Again to require takedown on the basis of "constructive notice" (i.e. the allegation of an interested party) alone would be an invitation to censorship, abuse and restraints on free speech. It is not the role of the ISP or Host to become a policeman of content. Requiring such would effectively bring the internet to a halt. Similarly, protecting the anonymity, to a reasonable extent, of uploaders of content is essential to the promotion of free speech and discourse on the internet, provided that a court has not ruled differently.

There's also a nice bit in the response to the claim that Israel's latest copyright law does not implement a "fair use" policy exactly the way the IIPA would like it. The Israeli government's basic response notes that even the US's own definition of fair use doesn't match what the IIPA is asking Israel to implement, pointing out that its own fair use rules are almost identical to the US's. It's nice to see at least some people pointing out the ridiculous claims made by lobbyists trying to push for even more draconian and limiting copyright laws outside the US.

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