This month, the former U.S. Assistant Secretary of Commerce Bruce Lehman, sometimes referred to as the architect of the Digital Millennium Copyright Act (“DMCA”), spoke at a Silicon Valley conference that brought copyright experts together to discuss the impact of that law 15 years later.

At the conference, Lehman admitted the law was the product of a deliberate end-run around the democratic process. Lehman was an advocate for several hardline proposals to criminalize digitial rights management (DRM) circumvention.  Unable to sell the proposals domestically, Lehman pressed the Office of the U.S. Trade Representative (USTR) to propose them at the UN World Intellectual Property Organization (WIPO) instead. Many have accused Lehman of using the treaty process to avoid Congress. What was Lehman’s response to those accusations at the event? “I would say that they're right.”

In other words, Lehman took his copyright enforcement plan, which had been rejected at home, and lobbied for it to be included in a global treaty at WIPO. Then, he took the treaty back to Congress and told it that it now was required to codify them into U.S. law. And thus the DMCA was born.

In the last fifteen years, many have woken up to the risks of extreme copyright enforcement. Nonetheless, the USTR, which influences the United States' positions at WIPO and negotiates for the country in international trade agreements, still pushes for unbalanced enforcement provisions that in practice violate users’ rights to access, share, and create digital content. These policies are often created in secret proceedings that uphold the interests of a few aging, powerful industries at the costly expense of economic, cultural, and technological progress.

Unless the USTR changes its tune, new trade agreements like the Trans-Pacific Partnership (TPP) and the upcoming Transatlantic Free Trade Agreement (TAFTA) will not only replicate Lehman's end-run, but also expand upon it. That's why we're asking the new USTR to open up the process, and listen to new voices, including yours.

Policy Laundering

Time and time again, abusive copyright provisions that echo the U.S. DMCA, have been copied and pasted successfully from trade agreement to trade agreement. The TPP almost exactly mirrors provisions in the Korea-US trade agreement; the Canadian-EU Trade Agreement (CETA) mirrors the Anti-Counterfeiting Trade Agreement (ACTA); the list goes on and on.

This copying and pasting of provisions into trade agreements is part of a practice called policy laundering. That's when unpopular policies that would fail in a public forum are cycled through international negotiations that don't have the same standard of democratic oversight. If one trade agreement fails, say for example the failed agreement between United States and Thailand, supporters of ever-stronger copyright simply shift their focus to another trade forum. Since there is no single governing body that regulates these policies, these venues have become a moving target, circumventing accountability while raising the global standards of copyright enforcement in the dark.

This is how Lehman brought the controversial anti-circumvention provisions of the DMCA into law in the U.S. and elsewhere. Despite prior resistance to enacting his recommended copyright enforcement provisions, and even though it was highly questionable that the DMCA was necessary to enforce copyright in the digital age, once they were inserted into a new WIPO treaty, there was much stronger political pressure to enact these provisions in U.S. law to comply with “treaty obligations.” Lehman took advantage of the lower standard of transparency and public participation at an international venue in order to lay the groundwork for expansive and overreaching copyright enforcement law in the U.S.

Tying the Hands of Congress

The effects of policy laundering go well beyond initial lawmaking, to impeding efforts to reform those laws.

Case in point: Cell phone unlocking.

U.S. wireless carriers claim that unlocking your phone to change carriers is illegal under Section 1201 of the DMCA, which prohibits the removal of digital rights management (DRM) technology. Section 1201 of the DMCA also set up a triennial rulemaking procedure, whereby the public can ask for exceptions to the rule that you cannot remove DRM from your devices. Phone unlocking was not approved in the last round of DMCA rulemaking, raising the specter of lawsuits against phone owners.

In light of public outrage over this, several members of Congress have introduced legislation to legalize phone unlocking. Already, opponents are saying that an effective narrow fix—a permanent phone-unlocking exemption from Section 1201—may violate the Korea-US trade agreement. Regardless of whether such a claim is true, such chatter can be enough to slow down the pace of change, and make any political reformers of the DMCA more cautious than they might otherwise be.

Don’t Trade Away Our Digital Rights

Big Content interest groups like the Motion Picture Association of America, Recording Industry Association of America, and International Federation of the Phonographic Industry—just to name a few—continue to have a strong influence on US trade negotiators. They are lobbying hard for our government to promote international policies to strengthen their control over how and when the public can interact and experience their creative products.

If the legacy content industry gets its way, copyright enforcement around the world will continue to ratchet upwards. That will inevitably mean collateral damage for the Internet and user rights. To help prevent that, the business of trade policy must be dragged into the light, demystified, and disentangled from the special interests that currently determine the agenda.

If you're in the US, please call on your representatives to oppose Fast Track for TPP and other undemocratic trade deals with harmful digital policies.