January 18, 2017

Criminal Copyright Sanctions as a U.S. Export

The copyright industries’ mantra that “digital is different” has driven an aggressive, global expansion in criminal sanctions for copyright infringement over the last two decades. Historically speaking, criminal penalties for copyright infringement under U.S. law date from the turn of the 20th century, which means that for over a hundred years (from 1790 to 1897), copyright infringement was exclusively a civil cause of action. From 1897 to 1976, there were criminal penalties, but only misdemeanor ones. In 1976, felony penalties were introduced, but only for repeat offenders. Following enactment of the 1976 Copyright Act, the pace of amendments expanding criminal liability greatly accelerated—a trend that more or less coincided with the PC revolution. In 1982, felony penalties were extended to some first-time offenses, but not for all types of copyrighted works. In 1992, felony penalties were extended to all types of works. In 1997, as the commercial Internet was beginning its exponential growth, the No Electronic Theft (NET) Act eliminated a longstanding requirement of commercial motive for criminal liability, making some infringements criminally actionable even if they are undertaken without any expectation of financial gain. Under the NET Act, a willful infringer acting without any commercial motive faces up to three years in prison for reproducing or distributing as few as 10 unauthorized copies of a copyrighted work.

As criminal penalties have ballooned domestically, they have also been expanding internationally.  The international expansion in criminal copyright liability has occurred in part (and increasingly) through the vehicle of plurilateral and bilateral trade agreements. The United States uses its negotiating leverage in the trade policy arena to pressure trading partners, particularly less powerful ones, to incorporate strict IP norms into their domestic law.   [Read more…]

Google Threatens to Leave China

The big news today is Google’s carefully worded statement changing its policy toward China. Up to now, Google has run a China-specific site, google.cn, which censors results consistent with the demands of the Chinese government. Google now says it plans to offer only unfiltered service to Chinese customers. Presumably the Chinese government will not allow this and will respond by setting the Great Firewall to block Google. Google says it is willing to close its China offices (three offices, with several hundred employees, according to a Google spokesman) if necessary.

This looks like a significant turning point in relations between U.S. companies and the Chinese government.

Before announcing the policy change, the statement discusses a series of cyberattacks against Google which sought access to Google-hosted accounts of Chinese dissidents. Indeed, most of the statement is about the attacks, with the policy change tacked on the end.

Though the statement adopts a measured tone, it’s hard to escape the conclusion that Google is angry, presumably because it knows or strongly suspects that the Chinese government is responsible for the attacks. Perhaps there are other details, which aren’t public at this time, that further explain Google’s reaction.

Or maybe the attacks are just the straw that broke the camel’s back — that Google had already concluded that the costs of engagement in China were higher than expected, and the revenue lower.

Either way, the Chinese are unlikely to back down from this kind of challenge. Expect the Chinese government, backed by domestic public opinion, to react with defiance. Already the Chinese search engine Baidu has issued a statement fanning the flames.

We’ll see over the coming days and weeks how the other U.S. Internet companies react. It will be interesting, too, to see how the U.S. government reacts — it can’t be happy with the attacks, but how far will the White House be willing to go?

Please, chime in with your own opinions.

[UPDATE (Jan. 13): I struck the sentence about Baidu’s statement, because I now have reason to believe the translated statement I saw may not be genuine.]

Watching Google's Gatekeepers

Google’s legal team has extraordinary power to decide which videos can be seen by audiences around the world, according to Jeffrey Rosen’s piece, Google’s Gatekeepers in yesterday’s New York Times magazine. Google, of course, owns YouTube, which gives it the technical ability to block particular videos — though of course so many videos are submitted that it’s impractical to review them all in advance.

Some takedown requests are easy — content that is offensive and illegal (almost) everywhere will come own immediately once a complaint is received and processed. But Rosen focuses on more difficult cases, where a government asks YouTube to take down a video that expresses dissent or is otherwise inconvenient for that government. Sometimes these videos violate local laws, but more often their legal status is murky and in any case the laws in question may be contrary to widely accepted free speech principles.

Rosen worries that too much power to decide what can be seen is being concentrated in the hands of one company. He acknowledges that Google has behaved reasonably so far, but he worries about what might happen in the future.

I understand his point, but it’s hard to see an alternative that would be better in practice. If Google, as the owner of YouTube, is not going to have this power, then the power will have to be given to somebody else. Any nominations? I don’t have any.

What we’re left with, then, is Google making the decisions. But this doesn’t mean all of us are out in the cold, without influence. As consumers of Google’s services, we have a certain amount of leverage. And this is not just hypothetical — Google’s “don’t be evil” reputation contributes greatly to the value of its brand. The moment people think Google is misbehaving is the moment they’ll consider taking their business elsewhere.

As concerned members of the public — concerned customers, from Google’s viewpoint — there are things we can do to help keep Google honest. First, we can insist on transparency, that Google reveal what it is blocking and why. Rosen describes some transparency mechanisms that are in place, such as Google’s use of the Chilling Effects website.

Second, when we use Google’s services, we can try to minimize our switching costs, so that moving to an alternative service is a realistic possibility. The less we’re locked in to Google’s service, the less we’ll feel forced to keep using those services even if the company’s behavior changes. And of course we should think carefully about switching costs in all our technology decisions, even when larger policy issues aren’t at stake.

Finally, we can make sure that Google knows we care about free speech, and about its corporate behavior generally. This means criticizing them when they slip up, and praising them when they do well. Most of all, it means debating their decisions — which Rosen’s article helpfully invites us to do.