Guilty Until Proven Innocent Is Bad Law; We Need A Little Sunshine

Over in Europe, thousands of citizens are protesting, and government leaders are backpedaling (the EU signed the treaty), the Anti-Counterfeiting Trade Agreement (ACTA).

Negotiations over ACTA began in the Bush White House and were ratified by Obama. Last October, the U.S. joined Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore in signing the agreement [1]. In 2010, Margot Kaminski (Yale Law School) wrote:

The Anti-Counterfeiting Trade Agreement, a plurilateral agreement negotiated outside of the WTO’s processes and protections, is the biggest set of new laws to hit international Intellectual Property…

The biggest three issues may be the scope of criminal copyright infringement, the expansion of the US Digital Millenium Copyright Act (DMCA) internationally, and the creation of a new international institution (an ACTA “Committee”) to deal with enforcement of ACTA.

It is, she wrote, “an IP-maximalist’s dream” … a copyright treaty that is “masquerading as a treaty that addresses dangerous medicines and defective imports.”

Let’s look at a recent example of why guilty-until-proven-innocent law (the U.S. Digital Millennium Copyright Act) is problematic.

Last week’s SuperBowl featured a long commercial from Chrysler/Detroit with Clint Eastwood playing moderator. YouTube — as well as Hulu and a host of other sites — showcased SuperBowl commercials for people who either didn’t watch the game or who wanted to rewatch or share a favorite commercial. Chrysler had the ad on its YouTube channel.

But on Monday, the day after the SuperBowl, Google pulled the Chryster/Eastwood ad, ostensibly for infringing on (wait for it) NFL copyright!

This video is no longer available due to a copyright claim by NFL Properties LLC.

The ad was down at 9 a.m. Here’s Google’s statement, at 5.11 pm:

YouTube expeditiously removes content when it receives a copyright notification from copyright owners, or from third party agencies operating on their behalf. We reinstate content when we receive a retraction from the party who originally submitted the notification. The video has been reinstated.

Who owned the copyright in this case?

Uh, Chrysler. The injured party.

We can argue whether or not the commercial was “political.” We could share our favorite parody responses. (Note, Chrysler hasn’t tried to stop those fair use examples.)

But that’s not the point.

The point is that Google — like most of the ISPs out there — is going to take down content based on a complaint. Not their job to ascertain if the complaint was, in fact, a valid one. They just want to make sure that they can’t be sued, so they act “expeditiously.”

Guilty until proven innocent puts all the power in the hands of copyright (IP) owners (or those who claim to be). It’s wrong.

And analysts say that the U.S. is trying to export our laws (the ones fashioned by Hollywood) to the rest of the world. Our already quite extensive copyright protection (far more generous than the founders could ever have imagined when they put “limited” copyright protection into the Constitution):

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse). These standards were established through an alphabet soup of legislation: the No Electronic Theft (NET) Act of 1997, the Digital Millennium Copyright Act (DMCA) of 1998, and the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008. And every few years, there’s a call for more.

Many features of existing U.S. copyright law are harsh by international standards. The U.S. penalizes the attempt to access digital material against a rights-holder’s wishes, even when the material itself is not protected by copyright. We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it’s infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

We didn’t stand up to be counted back when the DCMA or PRO-IP or Sony Bono Act were passed and signed into law. We have, at least temporarily, derailed SOPA/PIPA but it is imperative to recognize that neither law was not needed for the U.S. government to join forces with New Zealand to shut down MegaUpload (which the U.S. claims is racketeering and thus subject to extradition) … where innocent account holders data are slated for for the bit-bucket … and which has had little impact on piracy.

Guilty until proven innocent.

The new American way.

Join with the thousands in Europe and just say no. Call your Senators and demand that ACTA be treated like the treaty that it is, which requires Senate approval. Bring the discussion of copyright protection out of the backroom and into the sunlight.

[1] The White House claims that ACTA is an executive agreement that does not require ratification by the Senate. But the U.S. Trade Representative summary of ACTA notes that (emphasis added): “In 2006, Japan and the United States launched the idea of a new plurilateral treaty to help in the fight against counterfeiting and piracy, the so-called Anti-Counterfeiting Trade Agreement (ACTA).”

Chrysler ad

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Chrysler ad : anti-Obama

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Chrysler ad : anti-Romney

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SNL : 1

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SNL : 2

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SNL : 3

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