[A2k] James Boyle - Obama’s mixed record on tech po licy

[Manon Ress]

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Obama’s mixed record on tech policy

By James Boyle

Published: January 25 2010 21:21 | Last updated: January 25 2010 21:21

Let us start 2010 with some good news. In June of last year, I wrote
about the Obama Administration’s record on technology policy. There
was much to praise in the reinvigoration of the FCC’s commitment to
“net neutrality,” (the commitment to a non-discriminatory internet)
and a lot to hope for in terms of patent policy.

Unfortunately, in the copyright realm, the Obama administration had
devoted itself, like its predecessors, largely to a content industry
agenda which has given us mind-numbingly long copyright terms,
intrusive legally backed digital rights management, and even a new
proposal to cut individuals off from the internet simply for being
accused, three times, of illicit downloading.

But the low point, as I noted, was that – even though 95 per cent of
all the books in the world are unavailable to the visually impaired –
the United States (and the EU) were opposing a treaty which would
create a very limited exception to copyright to help visually impaired
citizens. (For example, allowing people to generate a machine-readable
audio book, or a Braille version, from a legally purchased digital
text.)

The opposition to this proposal was not really on the ground of its
effects. Most of those opposing it agreed that it would have almost no
detrimental market effect whatsoever. It was that it represented an
unacceptable principle – namely that a civilized copyright system
demanded both rights and limitations on rights – such as fair use,
fair dealing and the rights of the visually impaired.

That principle, the radical notion of “balance,” was anathema to the
copyright ideologues. If it was necessary to sacrifice one’s visually
impaired citizens to the idea of absolute copyright, then that was the
price we must pay. That was the position as of June.

The good news? In December of 2009 the United States changed its
position. Speaking at the World Intellectual Property Organization,
Justin Hughes, a very distinguished and impressive senior advisor in
the Department of Commerce, broke new ground. “We recognize that some
in the international copyright community believe that any
international consensus on substantive limitations and exceptions to
copyright law would weaken international copyright law... The United
States does not share that point of view.” The US, it seems, could
actually stand up for the principle of a balanced copyright policy –
at least in the context of the visually impaired.

It is a mark of how reduced our expectations have been in copyright
law that this seemed like a great victory. When the decision not to
throw the blind under the copyright juggernaut counts as enlightened
policy, it tells one a lot. But I am a great believer in praising
policy makers for doing the right thing, so kudos to Mr. Hughes and
the Obama administration for having the spine to take a stand on
principle. (EU policy makers might study the process to their
advantage. The process of evolution from invertebrate to vertebrate is
an exciting one.) Let us hope these words turn into real achievements
for the visually impaired.

But sadly the rejoicing must have limits. Those of you who use that
useful communications network known as “the Internet” might be
interested to know that a treaty that could profoundly affect your
rights is now being negotiated by a group of developed states
including the United States and the EU. What is in the treaty? Well,
that is something of a mystery. The treaty in question is called ACTA,
the Anti-Counterfeiting Trade Agreement. When Knowledge Ecology
International filed a Freedom of Information Act request for the draft
of the treaty, the Obama Administration refused, claiming that this
was “information that is properly classified in the interest of
national security.”

Both the US and the EU have defended the secrecy and argued that by
disclosing details to a few hand-picked ”stakeholders” – mainly
industry representatives and a few NGO’s – they were actually being
sufficiently transparent. Their commitment to transparency and
democratic debate is so great that, in order to see the document, all
participants were required to sign stringent non disclosure agreements.

 From the leaks that have emerged it is clear that this treaty would
reshape copyright law in both the US and the EU, largely at the behest
of that same industry agenda that opposed the treaty for the visually
impaired. Proposals include fines and imprisonment for non commercial
file-sharing, increasing the liability of internet service providers
for copyright infringements by their customers and much more.

Of course, if this were to be debated in public in London or Paris or
Washington, those proposals would meet with furious objections by
everyone from civil libertarians to the communications and consumer
electronics industry. But that is exactly the point. The lesson of the
Visually Impaired Treaty is that public pressure can have a benign
effect on copyright policy, strengthening the hands of good, worthy
public servants who actually want to do the right thing, but otherwise
must dance to the content industry’s tune. That’s good news. The
lesson of ACTA is that the content industry knows this very well.
Which is why ACTA is being negotiated in secret. And that is very bad
news for everyone who cares about not just copyright, but democracy.

James Boyle is William Neal Reynolds Professor of Law at Duke Law
School, and author of The Public Domain: Enclosing the Commons of the
Mind which can be freely downloaded at http://thepublicdomain.org
***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673

Il vaut mieux remuer une question, sans la décider, que la décider,
sans la remuer. (Pensées, essais, maximes et correspondance de J.
Joubert  p.249)
Translation: It is better to debate a question without settling it
than to settle a question without debating it