Author: Margot Kaminski

The Leaked TPP: Some notes, and Criminal Copyright

The Leaked TPP: Some notes, and Criminal Copyright

Today Wikileaks released the latest leaked draft of the IP chapter of the Transpacific Partnership Agreement (TPP). The TPP is a plurilateral trade agreement being negotiated between select countries across the Pacific, and is the latest in a longish line of free trade agreements that address IP law in great detail. Free trade agreement negotiations are subject to a surprising amount of secrecy, but select industry advisers have access to detailed US negotiating objectives. Today’s leaked text, dated May of 2014, allows public interest groups and the general public a chance to play catch-up to US industry advisers. I suspect that the drafts are often leaked, or “pleaked“,  by negotiating partners seeking to activate US public interest groups more sympathetic to their negotiating positions than to the positions proffered by the US. The leaked text shows evidence that such pleaking can work: more controversial provisions from older leaked drafts, including one in direct conflict with the Supreme Court’s decision on first sale doctrine in Kirtsaeng, have been removed. And the repeated leaking raises the question of why the US doesn’t voluntarily open the process up earlier- if leaking is now so prevalent that we’re going to see what’s in the agreements anyway, why insist on the dirty haze of secrecy and keep the public one step behind? A number of people at public interest organizations (KEI, Public Citizen) have criticized the leaked text’s patent provisions for blocking access to medicines. The text also contains extensive provisions on geographical indications, and public performance rights, each of which raise significant issues (especially performance rights in light of the controversial Ninth Circuit decision in Garcia– for more on this issue in the international context, see Jacob Victor’s just-released essay). The leaked draft also contains language on trade secrets that could be read to require a private cause of action, and may end up being used to launder federal law in the current debates over whether the U.S. should create a federal trade secrets private cause of action. But the portion of the draft I would like to highlight is its provisions on criminal copyright law. Criminal copyright is a large part of what got ACTA rejected in the EU. As many have noted, the United States does not have the greatest interface between its copyright law and free speech rights, thanks to Supreme Court decisions in Eldred and Golan. As a consequence, Congress has been able to legislate into existence criminal copyright law that impinges on free speech values both by defining a low level of infringement as criminal, and by employing enforcement tools (such as the seizure of websites) that restrict freedom of expression. The leaked draft shows a fight between the US and Canada over the scope of criminal copyright infringement and enforcement. Canada wishes to clarify that countries may restrict the criminalization of infringement to truly commercial scale infringement (see fn 183), while the US, per our domestic statute (the NET Act), wishes to reach noncommercial acts. The US fought...

Drones and Newsgathering at the NTSB

Drones and Newsgathering at the NTSB

Who would have predicted that a First Amendment amicus brief on behalf of national news organizations would be filed at the National Transportation Safety Board (NTSB)? News Media filed the brief a few days ago in support of drone filmmaker Raphael Pirker. Pirker flew a drone, made a video, distributed it, and was fined by the FAA. In response, Pirker challenged whether the FAA’s notice banning the commercial use of even small drones meets the criteria for valid rulemaking. An ALJ invalidated Pirker’s fine, and the NSTB is currently reviewing the decision. This is an administrative law case about rulemaking and FAA definitions. But the News Media brief shows that as the FAA, Congress, and states decide how to regulate drone use, First Amendment concerns will inevitably be raised. Drone regulation implicates the First Amendment because drones carry recording devices. A number of courts have recognized a limited First Amendment right to record, although it’s important to also note that some courts have not. As drone regulations are enacted, courts will need to figure out how broadly the right to record extends, and which government regulations do and don’t implicate it. The News Media amicus brief takes a slightly different approach.  It urges the NTSB to “safeguard the public’s First Amendment interest in the free flow of information.” A number of cases, most notably Branzburg v. Hayes, speak to the importance of protecting newsgathering. Newsgathering protection is really protection of free speech infrastructure. Protecting speech without protecting free speech infrastructure could result in government use of other regulatory tools like taxes or roadblocks to shut down speech as effectively as censorship. Unfortunately, the News Media brief overstates its case. The NTSB should certainly consider the First Amendment implications of FAA rules. But the FAA’s general ban on commercial drone use is just that: a general ban. The brief recognizes that the FAA’s “de facto policy” is the “almost complete prohibition on the civilian use of UAS for any purpose, including First Amendment purposes.” By this argument, the government isn’t targeting the press; it’s including them with everybody else. Generally applicable regulations, such as labor laws, can be applied to the press. “The publisher of a newspaper has no special immunity from the application of general laws.” (AP v. NLRB) But if the government uses such laws to specifically target free speech infrastructure, ie with press-specific taxes, that targeting violates the First Amendment (Grosjean v. AP). The News Media brief suggests that the press deserve an exception from a generally applicable rule, not that the FAA has impermissibly targeted the press. The centrality of “the press” in this argument also should give pause. The brief teems with press exceptionalism. It asks the NTSB to consider the First Amendment newsgathering rights of “professional news organizations” (at 9) and “accredited news media” (at 10). We all know this is not the way news is gathered now. It’s not even how drone journalism has worked. Many newsworthy drone videos have been crafted by hobbyists...

Fixing International IP Capture? Some Problems with the Public Interest Trade Advisory Committee (PITAC)

Fixing International IP Capture? Some Problems with the Public Interest Trade Advisory Committee (PITAC)

U.S. Free Trade Agreements contain skewed intellectual property law because the Office of the U.S. Trade Representative (USTR) has been captured through asymmetric information flow.  I’ve written about this information flow problem at the USTR and its substantive consequences. The USTR’s lack of voluntary transparency, combined with its use of FOIA exemptions, exclusion from the APA, and exception from Federal Advisory Committee Act (FACA) requirements, has led to an advisory system that privileges access by and input from a subset of domestic IP policy actors.  This affects the IP law we export. Since my paper was released, the Washington Post covered the USTR’s capture and published a helpful infographic showing the membership makeup of all trade advisory committees.  The New York Times published an oped criticizing the USTR advisory system. USTR Michael Froman responded by announcing the formation of a new Public Interest Trade Advisory Committee (PITAC).  The PITAC, Froman announced, will include NGOs, academics, and other public interest groups.  It will “provide a cross-cutting platform for input in the negotiations.”  The call for nominations suggests that the membership will be more limited than Froman’s remarks indicated, requiring that applicants represent a U.S. organization with “a demonstrated interest in international trade.”  This will likely exclude most academics, and may exclude some NGOs. Nonetheless, the PITAC is a step in the right direction.  The USTR has finally formally recognized that there’s a problem—the trade negotiating process suffers from both information capture and a legitimacy crisis.  The USTR has taken a public step towards addressing these problems.  Unlike previous efforts by the USTR, which amounted not to transparency but to transparency theater, the PITAC will give more public interest representatives access to negotiating texts, and that is unquestionably a good thing. But you don’t solve information capture just by increasing access to the text.  Information capture occurs because of a combination of what information comes out, what information goes in, the kinds of access granted to negotiators, and the ability to make negotiators listen.  The structure of the USTR advisory committee system means that the PITAC is a weak fix, not a strong one.  As Sean Flynn points out, the USTR made the decision to isolate public interest groups on the PITAC rather than integrate them into chapter-level industry trade advisory committees.  This decision limits the PITAC’s efficacy, and means the PITAC is more an aesthetic than a substantive fix. First, there’s the issue of overall numbers.  The Washington Post infographic shows that industry voices currently make up 85% of the membership of trade advisory committees.  Adding one public interest committee, which will likely have no more than 35 members, is only a small step towards achieving balanced input overall. Second, the PITAC won’t meet as frequently with USTR negotiators as industry advisory committees do.  This is because it is a different category of committee—a mid-level, or “tier two,” advisory committee.  Industry Trade Advisory Committees meet with USTR negotiators an estimated six times a year (see How Frequent and Relevant are the...

The TPP and Copyright

The TPP and Copyright

This is my second post about the leaked draft of the Trans-Pacific Partnership Agreement.  Here, I address some of the copyright provisions. This is not an exhaustive analysis, and I’ve tried to make it complimentary to what’s already out there. For analysis of additional provisions, see KEI, Public Citizen, Ars Technica, Kimberlee Weatherall for an Australian perspective, and EFF. [Note: I have updated this post .] First, there are major splits between countries. The United States consistently takes the position of pushing for stronger IP, while others—especially Canada and New Zealand— advocate a more balanced approach.  The divisions are particularly prominent when it comes to preliminary statements about the public domain and public health, none of which the U.S. supports.  These analyses are on one subset of proposed language, not finalized language, and a lot of the agreement could change. I focus my analysis primarily on the U.S. proposed language. Second, the U.S. proposals look very similar to our past Free Trade Agreements, including the earlier texts of ACTA.  Whatever message was sent when the EU refused to ratify ACTA, the U.S. Trade Representative did not receive it.  Many of the provisions that appeared in ACTA are also areas of proposed reform in the United States—the U.S. proposed text for the TPP would internationally bind this country and prevent many proposed reforms to our copyright law. Third, and this is an important point: U.S. proposals are less balanced than U.S. domestic law. As I noted in my previous post, this is because a subset of IP industries provide the USTR advice, leaving out important balancing viewpoints and sometimes misrepresenting U.S. law. Similarities to ACTA: Intermediary liability (Article QQ.I.1): As in ACTA, the central copyright argument in TPP is over what kind of intermediary liability regime will be internationally required.  Currently, online intermediary liability is not governed at an international level.  Michael Geist has done a great job of outlining the basic differences in the TPP proposals for intermediary liability. The United States is pushing for notice-and-takedown, with a coalition of countries, including Canada and New Zealand, pushing instead for a notice-only provision.  These regimes offer different levels of due process for Internet users. Statutory damages (ARTICLE QQ.H.4.Y(15)): As in ACTA, countries are fighting over statutory (or “pre-established”) damages: damages awarded to copyright owners without a showing of actual harm.  Australia opposes this provision because it does not have statutory damages. Statutory damages are an often-criticized part of the U.S. regime, enabling disproportionately large awards in copyright cases. Criminal liability (Article QQ.H.7(2)): As in ACTA, countries have split over the definition of criminal copyright infringement.  The U.S. proposal, like U.S. law, pushes to criminalize very low level infringement, to go after even low level filesharing.  Other countries want to keep it at the international requirement, which requires a motive of financial gain or commercial advantage.  The United States lost a recent WTO case on criminal copyright, and has since been trying to ratchet up international criminal copyright law through free trade...

Capture, sunlight, and the TPP leak

Capture, sunlight, and the TPP leak

Yesterday, Wikileaks leaked the draft IP chapter of the Trans-Pacific Partnership Agreement (TPP).  This is the first of two posts I’ll make on the significance of the leak.  In this post, I discuss why the leak matters from the process perspective.  In the next, I’ll point out detailed substantive issues in the draft’s copyright provisions.  Unsurprisingly, the process and the substance are closely intertwined. Up until this leak, only a subset of domestic IP stakeholders has had access to the TPP text.  The U.S. Trade Representative has shown the draft text to its closed advisory committees, but not to anybody else.  Content industries and pharmaceutical industries sit on the IP advisory committee.  Internet industries, smaller innovators, generics companies, and public interest groups do not. This is no accident.  When Congress established the trade negotiating system, it exempted the Trade Representative from requirements of an open government law that was enacted to prevent agency capture, the Federal Advisory Committee Act (FACA).  FACA requires transparency, a limited term length for industry advisory committees, and balanced membership on those committees.  The trade advisory committee on IP does not have balanced membership.  It is not subject to public oversight.   And it has an extended term limit, at the discretion of the USTR.  Other open government laws also don’t apply—the USTR exempts itself from the Freedom of Information Act (FOIA) by claiming a national security exemption, and the Administrative Procedure Act (APA) doesn’t apply to international lawmaking. As a consequence, the U.S. role in international IP lawmaking is captured through one-sided industry advice. The USTR is supposed to be exporting US IP law.  But what the USTR exports is not US law.  The USTR paraphrases US law; it doesn’t export our statutes.  This process allows information capture to have substantive consequences. The paraphrasing USTR sends out is worse than our law. It’s less balanced, and it’s missing things. In places, the USTR misrepresents that one side of a current circuit split is the authoritative word on issues that deeply divide domestic constituents. These skewings and omissions are not an accident. Some are directly requested by the IP advisory committee—you can see the requests in past advisory committee reports on other free trade agreements.  Others are the result of the USTR’s failing to consult public interest, academics, or opposing industries, who would point out what must be included, what’s wrong, and which omissions matter. Balanced advice is necessary at the level of the text.  The USTR recently conducted a series of “stakeholder phone calls,” where it takes questions on broad policy issues.  These calls are transparency theater, not transparency.   They lump together stakeholders on an impossibly wide range of issues—from dairy to textiles to IP.  Discussions are high-level, where many of the problems with USTR’s policies are textual problems.  The devil, in law, is very much in the details. The USTR is captured in other ways, too.  There is a significant revolving door problem. USTR negotiators come from and leave for employment in the same IP...

First Sale and the Specter of “International Exhaustion”: Kirtsaeng comes down

First Sale and the Specter of “International Exhaustion”: Kirtsaeng comes down

The Supreme Court issued its decision today in Kirtsaeng v. Wiley, addressing whether the first sale doctrine, which prevents copyright owners from further controlling works after sale, applies to works legally manufactured abroad. First sale doctrine allows libraries and second hand bookstores to operate without fear of copyright consequences. Kirtsaeng was a student in the U.S. who made money off of reselling Wiley textbooks that had been published in Thailand. Wiley argued that the first sale doctrine as codified by Congress in 17 USC 109(a) does not apply to works manufactured and sold abroad. The Court disagreed. This post summarizes the opinion, talks briefly about the conflict that exists between US law and language in our Free Trade Agreements, and then makes a few guesses of what will happen next. The opinion: Justice Breyer wrote the majority opinion (6-3), which to those following SCOTUS copyright cases says it all. The majority held that authorized works manufactured abroad are subject to the first sale doctrine, so Kirtsaeng did not infringe copyright by reselling the legally purchased works in the United States. In other words, when coupled with Quality King, Kirtsaeng determines that 17 USC s. 602(a)(1) creates an importation right as part of the distribution right of s. 106, which in turn is limited by first sale in s. 109(a); thus 602(a)(1) is limited by 109(a). (As I’ll discuss below, it is important that this is all statutory interpretation.) Breyer trumpeted the importance of first sale, emphasizing the “practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.” In the absence of first sale doctrine, libraries, used book stores, museums, and retailers would all struggle to trace title for used books and other works originating abroad. As my colleague Christina Mulligan has noted, investigating the licensing history of a work can be costly. Breyer also got a chance to reorient copyright doctrine from the rights holder to the consumer, remarking that “American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer” (at 18). The opinion evinced little sympathy for publishers, explaining that there is  “no basic principle of copyright law that suggests that publishers are especially entitled to… charge different prices for the same book in different geographic markets” (at 31). In the broadest language of the opinion, Breyer explained that a “copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and if widely unenforced, would bred disrespect for copyright law itself” (at 24). This language can be applied to a whole host of current copyright policy, including the little-enforced criminal copyright standard created by the NET Act. Conflict with Free Trade Agreements (FTAs): The US Trade Representative (USTR) has bound us to a standard that is now in conflict with Supreme Court caselaw. My co-author Sean Flynn correctly pointed out this morning that...

Lie to me: the First Amendment in US v. Alvarez

Lie to me: the First Amendment in US v. Alvarez

The Supreme Court had a busy day yesterday, and in the wake of healthcare, there’s a risk of overlooking an important addition to this Court’s First Amendment jurisprudence: U.S. v. Alvarez. In short, the Court found that Congress can’t send you to jail just for lying. Alvarez confirms that this Court is extremely reluctant to create new FirstAmendment exceptions, and has a speech-protective understanding of the marketplace of ideas. Alvarez also leaves open some interesting questions, both doctrinal and practical. Alvarez was prosecuted under the Stolen Valor Act (18 USC  s. 704) for lying about having received the Congressional Medal of Honor. What made this case particularly interesting, and probably what split the Court, is that Alvarez did not lie to gain money, or to get a job. He didn’t lie for any apparent reason. He just lied. The Court split 4-2-3, with six affirming the Ninth Circuit and finding the Act unconstitutional. Justice Kennedy wrote the plurality, Justice Breyer wrote the concurrence (joined by Justice Kagan), and Justice Alito rather unsurprisingly wrote the dissent. The plurality forcefully reiterated what the Court articulated two years ago in U.S. v. Stevens (2010): content-based restrictions on speech are subject to strict scrutiny, with limited exceptions that have been clearly established in prior caselaw. What was (again!) at stake in this decision was whether the First Amendment protects all speech except for the familiar carveouts, or presents an “ad hoc balancing of relative social costs and benefits” with each new proposed exception (at 4, quoting U.S. v. Stevens (2010)). The plurality went the First-Amendment-protective route. Its “historic and traditional categories” of First Amendment exceptions present a familiar roster:  obscenity, fighting words, incitement, and the rest. False speech as false speech is not one of the historical exceptions, and the plurality made it perfectly clear that it does not plan to add to the list. In Stevens, then, the Court said what it meant about not intending to add to historical First Amendment exceptions. Future brief-writers would do well to keep this in mind. Eugene Volokh in his Amicus brief feared that if the Court went the route of protecting false speech, the First Amendment would become a patchwork of under-theorized exceptions to that rule. The plurality proved him wrong. It both articulated theoretical underpinnings for existing exceptions that do involve false speech, and took the Government to task for advocating an overly restrictive understanding of the marketplace of ideas. The plurality walked through two general categories of exceptions to First Amendment protection for false speech. These categories are effectively distinguished from most false speech as “false speech-plus.” Each is not just false speech, but has an additional element. The first kind of false speech not subject to First Amendment protection is false speech where there is a legally cognizable harm to an individual, such as an invasion of privacy or legal costs. This category includes defamation and fraud (at 7). Robert Post might further add that these kinds of crimes and torts generally take place outside of the...

Three thoughts on U.S. v. Jones

Three thoughts on U.S. v. Jones

Many thanks to Danielle Citron for offering to host this writeup, an earlier draft of which is available here. The Supreme Court came down yesterday in the GPS tracking case, U.S. v. Jones, in which prominent privacy scholars and members of Yale Law School’s Information Society Project filed an amicus brief this fall. Scalia’s majority held that the physical attachment of a GPS tracker to a car was a warrantless search in violation of the Fourth Amendment, and thus the Court did not need to reach the question of whether GPS tracking invaded a reasonable expectation of privacy. Sotomayor joined, but described in her concurrence how if they had reached the Katz question, she would have found that a reasonable expectation of privacy had been invaded. Alito’s concurrence, joined by Ginsburg, Breyer, and Kagan, criticized the majority’s physical trespass focus and to conclude that under Katz a reasonable expectation of privacy had been invaded. There has already been a lot written about this opinion, in the short time it has been out. This post is not intended to be comprehensive, by any means, or to evaluate the potential impact of the majority’s trespass/search analysis, which will take time to sort out. I wanted just to add three thoughts to the fray. (1) Sotomayor’s opinion is the one that will have the biggest practical impact, and thus to me is the most important; (2) The most troubling indication for future cases is Alito’s observation that the Katz test is grounded in social norms that increasingly deprioritize privacy, which may lead Alito and possibly others away from the Fourth Amendment in the future, towards deferring to legislation; and (3) The majority’s treatment of the beeper case, Knotts, suggests a possible theme to explore: maybe down the line the question can become whether third party behavior looks more like that of a traditional police informant, rather than following the blanket Miller rule that third parties can do what they like with information. More on this below. First: Sotomayor’s concurrence is the one that will have the greatest practical impact. The majority holding adds a line of defense against slipping trackers into overcoat pockets– a scenario Kennedy and Sotomayor both referenced at oral argument– but it has a narrow practical impact, because police don’t need to physically attach a tracker to your car to use GPS tracking. They can just turn on GPS trackers already in your car (OnStar) or on your person (cell phones). Sotomayor joins the majority on the trespass issue and refuses to reach the Katz question of whether GPS tracking violates a reasonable expectation of privacy, but then she spends the concurrence explaining how she would treat Katz. In a GPS tracking case where no physical attachment occurred, Sotomayor would “ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” This concurrence signals...