Trade Agreements Should Not Export Ineffective Copyright Laws

On August 6, 2019, Representatives Frank Pallone, Jr. and Greg Walden, the Chairman and Ranking Member of the House Committee on Energy and Commerce, sent a letterto U.S. Trade Representative Robert Lighthizer expressing their concern that the proposed United States-Mexico-Canada Agreement (USMCA) contains a provision (Article 19.17) that mirrors Section 230 of the Communications Decency Act. Section 230 shields online services from some of the liability associated with third-party content posted on the services. As Chairman Pallone and Ranking Member Walden observe, "the effects of Section 230 and the appropriate role of such liability shield have become the subject of much debate in recent years."

In light of the ongoing debate in the U.S. regarding Section 230, Congressmen Pallone and Walden state:

"While we take no view on that debate in this letter, we find it inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing. For that reason, we do not believe any provision regarding intermediary liability protections of the type created by Article 19.17 are ripe for inclusion in any trade deal going forward."

Like Chairman Pallone and Ranking Member Walden, I don't take any position here on the current debate surrounding Section 230.

But their letter does readily call to mind a similar point made by my Free State Foundation colleague Seth Cooper in his April 2019 Perspectives from FSF Scholars titled, "Trade Agreements Should Include Stronger Online Copyright Protections." In his paper, Seth points out that the USMCA's Article 20.J.11 incorporates provisions that are based on Section 512 of the 1998 Digital Millennium Copyright Act. Section 512 is the provision that contains a "notice and takedown" process addressing when online service providers can receive limited liability protections for infringing content and activity on their websites. In other words, like Section 230, Section 512 is a statutory provision limiting the liability of online provider intermediaries.

In his Perspectives, Seth explains why Section 512, geared to 1990s dial-up Internet technologies, "takes a decidedly un-modern approach to online copyright infringement that takes place on user-upload websites." And he explains there, as Seth and I have previously in "Modernizing International Agreements to Combat Copyright Infringement" and elsewhere, why Congress needs to modernize Section 512 in order to protect copyright holders from rampant infringement. Inclusion of Article 20.J.11 in the USMCA agreement, mirroring as it does Section 512, risks perpetuating the deficiencies in the current under-protective notice-and-takedown system that prevails in U.S. copyright law.

Therefore, Seth's April 2019 Perspectives concluded, in language that bears repeating:

"Absent clarification, inclusion of Section 512-like terms in the USMCA also risks limiting Congress' ability to modernize U.S. copyright law to better combat online infringement….[T]he Administration and Congress should make clear that the USMCA's online infringement provisions are not precedent for future trade agreements. Statements of administrative action by the U.S. Trade Representative expressly should affirm that Article 20.J.11's provisions are limited to the USMCA itself.

Going forward, Section 512-like terms – as least as long as Section 512 remains un-modernized – should not be included in U.S. trade agreements. In the face of this century's technological advances, the U.S. should not let international agreements bind Congress by chaining copyright enforcement to last century's technological assumptions."

Indeed, this is the same point made by Representatives Pallone and Walden in their letter with regard to Section 230. The same logic applies to the USMCA's provision mirroring Section 512.

In sum, Congress needs to reexamine Section 512 as a matter of modernizing U.S. domestic law to reduce illegal copyright infringement. And in face of such reexamination, going forward, U. S. trade agreements should not export provisions containing Section 512-like terms.