The Ninth Circuit Court of Appeals this week sensibly, if belatedly, reversed its mistaken order requiring Google to take down a controversial video based on a specious copyright claim. But there’s more to this story than the free speech win. Unfortunately, Judge Alex Kozinski's dissent points to an alarming policy laundering trend in its reliance on the Beijing Treaty for Audiovisual Performances, a deeply problematic international agreement that the United States has signed but not yet ratified.
Two major factors make Judge Kozinski's dependence on the Beijing Treaty a stretch. For one, the Treaty doesn't even go into effect until 24 more countries ratify it. For another, he cites specifically to the Patent and Trademark Office Fact Sheet—and as the majority notes, that agency "lacks legal authority to interpret and administer the Copyright Act."
All of that said, the really troubling part about Judge Kozinski's Beijing Treaty citation is that it may herald a new and particularly pernicious form of policy laundering.
The scholar Margot Kaminski explained how that might be the case earlier this year, after Judge Kozinski mentioned the Beijing Treaty during Garcia oral arguments. The concerns she outlined then are even more resonant now:
Policy laundering—the idea that policy makers can use international law to make legal changes domestically—is familiar to IP attorneys. But such laundering has occurred in the past when Congress used new international obligations as justification for altering domestic law. Judge Kozinski’s thinking … would create a new, sleeker, opportunity for policy laundering, one in which Congress is almost entirely uninvolved.
Supporters of secretive agreements like the Trans-Pacific Partnership (TPP) argue that they don't require a change to U.S. law. Because new policies won't end up getting laundered in, they claim, transparency is less important.
Judge Kozinski's argument demonstrates the problem with that reasoning. Even if you take negotiators' word that they're hewing close to U.S. law, they're still engaging in what Kaminski has elsewhere dubbed “regulatory paraphrasing”: because they're not transcribing U.S. law verbatim, they're necessarily making interpretations. Those interpretations can make non-obvious but important changes, like transforming a standard into a rule, or vice-versa.
Ambiguities in the law, which should properly be interpreted by judges, end up getting settled by negotiators and the corporate lobbyists that influence them. When judges cite these interpretations, it can close the policy laundering loop, crystallizing policy made through an inappropriate (and often secretive) legal process. We saw hints of it from the Solicitor General in the Aereo Supreme Court argument, and we see it too with legislators who bring up possible conflicts with international agreements as an argument against domestic reform.
Judge Kozinski has written compelling and impressive dissents before—the 1993 White v. Samsung is a classic in the genre. Unfortunately, in Garcia he missed the mark. We’re glad the majority rejected arguments and chose instead to support traditional copyright principles.