We've posted about the US Trade Representative's Special 301 process before. For a quick refresher, here's Harold's video explaining the process generally, and Rashmi's post with some more detail.
The International Intellectual Property Alliance (IIPA) is heavily involved in the Special 301 process, filing submissions every year on behalf of its member organizations, the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA). It's only natural that these trade associations would be concerned with intellectual property laws and their enforcement around the globe, since copyright is where their members make their livings. It's less understandable, though, when they seem to argue that their exclusive economic rights should have priority over others' basic human rights.
As Rashmi pointed out, the IIPA reports tend to make a lot of assertions and allusions without identifying their sources. As a result, it can take some legwork to track down support for their statements, or figure out what they're really saying. Their 2010 report is no different in this regard. Sometimes this makes it impossible to know how credible a particular factual assertion is, which is bad enough. But even more pernicious is the tendency to gloss over what they're really getting at.
The entire IIPA report for 2010 (available here as a single PDF) runs 498 pages. The 'country survey' for India, where the IIPA sets forth its case for keeping India on the 'priority watch list', takes up 13 of those pages. Some of it is rather straightforward and unobjectionable. But here's a short excerpt that's deeply troubling, when you read between the lines:
Pretrial detention of up to a one year maximum under the Goondas Act in Tamil Nadu continues to result in some deterrence. This remedy should be expanded to other states.
. . .
BSA is also working with specific state governments to encourage the inclusion of piracy of software in the prevention of criminal activities legislations (Goondas Act) which are state specific legislations. Most recently BSA submitted a request urging the state governments of Punjab, Delhi and Maharashtra to include software piracy under the purview of such Acts.
The IIPA and BSA evidently want more people subject to pretrial detention under 'Goondas Acts'. Depending on the context and the procedural safeguards in place, pretrial detention can be an unremarkable part of the criminal justice system, or an ongoing, worldwide human rights concern. The more arbitrary and unpredictable the detentions, and the fewer opportunities for meaningful review, the more suspect they become. Before we can evaluate the copyright industry's stated wish that the “remedy” of pretrial detention be expanded, we must take a look at these Goondas Acts to see how they operate.
Here's some background information: India has a federalist system, one consequence of which is that the different states that make up the union each get to make their own laws governing such topics as landlord-tenant relations and public order, while the federal government regulates topics of nationwide importance like treaties and intellectual property. Some states have used their authority to institute so-called 'Goondas Acts', providing for preventive detention of people causing “insecurity and alarm among the public.” Here are some example statutes from Karnataka and Maharashtra.
The Maharashtra act provides that “The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to maintenance of public order, it is necessary to do so, make an order directing that such person be detained.” Other states use similar language. Worryingly, some courts have refused to review these detention orders, on the grounds that “[s]uch satisfaction is subjective, which is not open to be judicially reviewed on the basis of any objective assessment by the court of law.”
Each state's Goonda Act enumerates activities considered prejudicial to the maintenance of public order. Originally, these statutes were applied to drug-smugglers, human traffickers, bootleggers, and the like. Beginning with Tamil Nadu and Maharashtra, the homes of India's huge 'Kollywood' and 'Bollywood' film industries, states have begun adding copyright violations to the list of precrimes punishable by a year's detention. Tamil Nadu, the IIPA's poster child, recently added mere possession of infringing CDs and DVDs to its Goondas Act at Kollywood's request. It would seem that in Tamil Nadu, you can now be imprisoned for up to a year to prevent you from coming into possession of a bootleg movie. “This remedy should be expanded to other states,” says the IIPA; and the BSA wants this expanded to include bootleg copies of Microsoft Word as well.
Given this state of affairs, it's hardly surprising that pretrial detention would “continue[] to result in some deterrence,” as the IIPA claims. But while initial reports showed that the imminent addition of 'video piracy' to Tamil Nadu's Goondas Act had a huge deterrent effect, by the time the rule had been in effect for a year piracy had largely bounced back and the local film industry was already clamoring for even more laws. Even the formation of a special video anti-piracy police force (something, incidentally, that the IIPA often calls for in its reports) did not stem the tide of piracy in Tamil Nadu. So it's unclear how much deterrence these statutes even produce. (As usual, there's no source cited for the IIPA assertion.)
Remember, the point of these Special 301 reports is to identify countries that don't provide “adequate and effective” protection for IP rights. The IIPA seems to think that India would be doing a better job of providing such “adequate and effective” protection if it imprisoned more people for acts of copyright infringement they hadn't even committed yet, despite the dubious human-rights ramifications of arbitrary preventive detention and the lack of evidence indicating that this 'remedy' actually lowers the piracy rate.