The U.S. portrays itself as a bastion of free speech. Yet when it comes to copyright policy, both domestic and international, the government too often puts on blinders and refuses to see how copyright policies adversely impact free speech. It views stronger, longer copyrights as goals to aspire for and harsher enforcement measures as means to accomplish these goals. Domestically, this has resulted in copyright being used as a pretext to stifle political speech by taking down political campaign videos. Internationally, it has resulted in copyright being used as a pretext to crack down on dissidents. For instance, Russian authorities seized computers belonging to an environmental group critical of the government under the pretext that they housed unauthorized Microsoft software.
We hope that that will change. The Department of Commerce has set up an Internet Policy Task Force charged with studying how various policy areas interact in the Internet environment. The task force has issued a series of notices asking for public comment on these issues. One of these notices concerns the global free flow of information. Yesterday, we filed comments in response to this notice, highlighting how copyright policy adversely impacts free speech and how US foreign policy in this area is inconsistent with its policies in others.
In our filing, we give specific examples of how domestic copyright law, policy and practice can adversely impact free speech. One such example is abuse of the notice and takedown regime. While this regime has fostered the growth of the Internet by limiting ISP exposure to liability, it provides insufficient safeguards for free speech. The regime exempts ISPs from liability for faulty takedowns. So, ISPs who want to investigate whether takedown notices are valid have to devote time and personnel to this effort, and also expose themselves to liability. This makes automatic takedowns easier and cheaper. This system has resulted in unjustified takedowns of campaign ads and videos of toddlers dancing to barely audible songs.
Despite the existence of the notice and takedown regime and other mechanisms to protect copyright, US copyright policy continues its upward ratchet of enforcement mechanisms. We caution the Department that one such proposal, Copyright Online Infringement and Counterfeiting Act (COICA), attempts to contain copyright infringement by interfering with Internet architecture and would result in unjustifiable harms to free speech and security. COICA would direct ISPs to not resolve domain names of “infringing sites.” In addition to interfering with the way the global DNS system works, COICA would encourage users to use alternate DNS servers which could create additional cybersecurity risks.
We also point out some of the problems that can arise when industry developed mechanisms or best practices are adopted to deal with infringement. Such mechanisms are likely to be developed without the participation of a full set of stakeholders, including the public. Thus, they are unlikely to take the public’s free speech interests into account. For example, filtering the Internet for unauthorized copyrighted content, which has been discussed as a possible solution to copyright infringement, would be unable to distinguish between lawful and unlawful uses and thereby filter both types of uses. In view of these dangers, the government should exercise caution before blessing or encouraging industry best practices.
In the international arena, US policy on the free flow of information has been marked by stark inconsistencies. On the one hand, the State Department is considering devoting resources to facilitating access to information by citizens in repressive regimes. On the other, the United States Trade Representative pursues agreements such as ACTA that are solely focused on the interest of one set of stakeholders and are palpably hostile to free expression.
We hope that, as the Task Force evaluates policies internationally that act as barriers to the free flow of information, it also does some introspection, and recommends that US copyright policies be more conducive to that freedom.