Go To Prison For File Sharing? That's What Hollywood Wants

Go to Prison for File Sharing? That's What Hollywood Wants

The Trans-Pacific Partnership agreement (TPP) poses massive threats to users in a dizzying number of ways. It will force other TPP signatories to accept the United States' excessive copyright terms of a minimum of life of the author plus 70 years, while locking the US to the same lengths so it will be harder to shorten them in the future. It contains DRM anti-circumvention provisions that will make it a crime to tinker with, hack, re-sell, preserve and otherwise control any number of digital files and devices that you own.

The TPP will encourage ISPs to monitor and police their users, likely leading to more censorship measures such as the blockage and filtering of content online in the name of copyright enforcement. And in the most recent leak of the TPP's Intellectual Property chapter, we found an even more alarming provision on trade secrets that could be used to crackdown on journalists and whistleblowers who report on corporate wrongdoing.

Here, we'd like to explore yet another set of rules in TPP that will chill users' rights. Those are the criminal enforcement provisions, which based upon the latest leak from May 2014 is still a contested and unresolved issue. It's about whether users could be jailed or hit with debilitating fines over allegations of copyright infringement.

Dangerously Low Threshold of Criminality

The US is pushing for a broad definition of a criminal violation of copyright, where even non-commercial activities could get people convicted of a crime. The leak also shows that Canada has opposed this definition. Canada supports language in which criminal remedies would only apply to cases where someone infringed explicitly for commercial purposes.

This distinction is crucial. Commercial infringement, where an infringer sells unauthorised copies of content for financial gain, is and should be a crime. But that's not what the US is pushing for — it's trying to get language passed in TPP that would make a criminal out of anyone who simply shares or otherwise makes available copyrighted works on a "commercial scale."

As anyone who has ever had a meme go viral knows, it is very easy to distribute content on a commercial scale online, even without it being a money-making operation. That means fans who distribute subtitles to foreign movies or anime, or archivists and librarians who preserve and upload old books, videos, games, or music, could go to jail or face huge fines for their work. Someone who makes a remix film and puts it online could be under threat. Such a broad definition is ripe for abuse, and we've seen such abuse happen many times before.

Fair use, and other copyright exceptions and limitations frameworks like fair dealing, have been under constant attack by rightsholder groups who try to undermine and chip away at our rights as users to do things with copyrighted content. Given this reality, these criminal enforcement rules could go further to intimidate and discourage users from exercising their rights to use and share content for purposes such as parody, education, and access for the disabled.

Penalties That Must be "Sufficiently High"

The penalties themselves could be enough to intimidate and punish users in a way that is grossly disproportionate to the crime. Based upon the leak, which showed no opposition in key sections, it seems TPP negotiators have already agreed to more vague provisions that would oblige countries to enact prison sentences and monetary fines that are "sufficiently high" to deter people from infringing again. Here is the text:

penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity;

Already in many countries, criminal punishments for copyright grossly outweigh penalties for acts that are comparatively more harmful to others. So the question as to what crimes copyright infringement corresponds to in "gravity" is obscure. What's more alarming is that countries without existing criminal penalties or whose penalties are not "sufficiently high" to satisfy the US government, may be forced to enact harsher rules. The US Trade Representative (USTR) could use the certification process, at the behest of rightsholder groups, to arm-twist nations into passing more severe penalties, even after the TPP is signed and ratified. The USTR has had a long history of pressuring other nations into enacting extreme IP policies, so it would not be out of the realm of possibility.

Property Seizure and Asset Forfeiture

The TPP's copyright provisions even require countries to enable judges to unilaterally order the seizure, destruction, or forfeiture of anything that can be "traceable to infringing activity", has been used in the "creation of pirated copyright goods", or is "documentary evidence relevant to the alleged offence". Under such obligations, law enforcement could become ever more empowered to seize laptops, servers, or even domain names.

Domain name seizure in the name of copyright enforcement is not new to us in the US, nor to people running websites from abroad. But these provisions open the door to the passage of ever more oppressive measures to enable governments to get an order from a judge to seize websites and devices. The provision also says that the government can act even without a formal complaint from the copyright holder. So in places where the government chooses to use the force of copyright to censor its critics, this could be even more disastrous.

Criminalisation of Getting Around DRM

We've continued to raise this issue, but it's always worth mentioning — the TPP exports the United States' criminal laws on digital rights management, or DRM. The TPP could lead to policies where users will be charged with crimes for circumventing, or sharing knowledge or tools on how to circumvent DRM for financial gain as long as they have "reasonable ground to know" that it's illegal to do so. Chile, however, opposes this vague language because it could lead to criminal penalties for innocent users.

The most recent leak of the Intellectual Property chapter revealed new exceptions that would let public interest organisations — such as libraries and educational institutions — get around DRM to access copyrighted content for uses protected by fair use or fair dealing, or content that may simply be in the public domain. But even if it's legal, it would be difficult for them to get around DRM since they may not be equipped with the knowledge to do it on their own. If someone else tries to do a public service for them by creating these tools for legally-protected purposes, they could still be put in jail or face huge fines.

Conclusion

Like the various other digital copyright enforcement provisions in TPP, the criminal enforcement language loosely reflects the United States' DMCA but is abstracted enough that the US can pressure other nations to enact rules that are much worse for users. It's therefore far from comforting when the White House claims that the TPP's copyright rules would not "change US law" — we're still exporting bad rules to other nations, while binding ourselves to obligations that may prevent US lawmakers from reforming it for the better. These rules were passed in the US through cycles of corrupt policy laundering. Now, the TPP is the latest step in this trend of increasingly draconian copyright rules passing through opaque, corporate-captured processes.

These excessive criminal copyright rules are what we get when Big Content has access to powerful, secretive rule-making institutions. We get rules that would send users to prison, force them to pay debilitating fines, or have their property seized or destroyed in the name of copyright enforcement. This is yet another reason why the US needs to stop the TPP — to put an end to this seemingly endless progression towards ever more chilling copyright restrictions and enforcement.


Comments

    Why and how are commercial parties allowed to influence international negotiations?

      Allowed? Not really. But money speaks louder than words. Corporations pay off US politicians, and the US uses its might to force other countries to take it up the arse.

    Crazy. If this worked to the extent the overlords evisioned, and we were all cowtowed by extreme laws and agressive enforcement, this would lead to LESS revenues for content creators and providers. They just don't get this. No more GoT talks around the water cooler - because LESS PEOPLE would still be watching it so not really a community conversation piece any longer. Less word of mouth. I know of 2 people who signed up for GoT because every Tues. the entire office was practically talking about it. If push come to shove and downloading a copy was not possible - it would be dropped. Move onto the next thing. NO GAIN for content providers/creators. The entertainment options for users would change and people would move AWAY from digesting expensive media they curently can obtain copies of to other things. Not because they are protesting tough laws with excessive penalties, but because they cannot afford to - or are unwilling to pay (and pay BIG) for this stuff. I cannot see how this would be good for content providers. There would simply be the have's and the have nots. If I never got to see GoT but 1 or 2 people at work were talking about it all the time - I would not really care. Fucked if I would be signing up to Foxtel to "see what the fuss is about". I can find entertainment in lots of alternative places.

    Not to mention how this highlights the vileness of the industry and its lobby groups. The pursuit of money with such an overtly disgusting ethos. These people really are terrifying in their Orwellian ideas to get more profits, more profits. just scum.

    And not to mention people who tinker and create ways to share for the love of what they do will ALWAYS trump those who build walls because they are PAID to.

    Last edited 15/02/15 11:45 am

    I fully expect the Australian government to roll over and play dead with all of these requirements. When it comes to Copyright law, for the Liberals (and Labor to a lesser extent) it basically comes down to "How high does the USA want us to jump?" I mean, from the sound of things, the Liberals have agreed to the Investor State Dispute Settlement clauses. Now what possible f*cking benefit could that have for us? How is giving offshore corporations the right to sue our governments for lost profits in the public interest??

    I tell you, if things like this keep happening there's going to be a breaking point. How draconian and absurd does Copyright law have to get before people start fighting back? Is it going to be Life of the Author plus 100 Years? Will it be when a single mother is sent to jail for 1 year for downloading a single Taylor Swift track? Or what about someone receiving a $100,000 fine for removing the DRM from a film or video game that they've legally purchased? Make no mistake, all these things are possible once the TPP is signed.

    Someone please blow up the US. They have gone insane.

      Well, if you weren't on a terrorist watchlist before, you are now.

    This whole thing scares the hell out of me, even though I don't torrent movies and TV.what scares me is as already mentioned, private groups - rich private groups - are defining international policy. And when they talk about punishment in line with "other crimes of a corresponding gravity", they don't literally mean that. If that were the case, then the punishment would be the same as for stealing an ice-cream cone. But these muppets want the punishments to be outrageous fines - such as to completely ruin a person - or long jail terms.

    But the one thing that really shits me in this is DRM. In the good ol' US of A, it is a crime to circumvent DRM, even if it is for personal use. So if I buy a Kindle book and then decide I want to buy a non-Kindle reader, I've lost that book. Or a real example I've had is purchasing heps of videos on iTunes years ago, then getting rid of my Apple devices and not being able to view the videos I purchased (I run Linux, so not even a chance of running iTunes). I 'lost' all of that stuff until recently when I bought a MacBook (I still run Linux but I left the OSX install intact too mainly for this purpose).

    The simple fact is that if I purchase something, then I should decide how I want to use it (within the realms of reasonableness) and not be dictacted to. Why shouldn't I be able to view videos I purchase on any device I own? Or read a book I purchase on any device I own?

    Well if our politicians are willing to accept American law so easily when is the american constitution going to be adapted?

    " These rules were passed in the US through cycles of corrupt policy laundering." Amen!

    Disgraceful.

    When you also do some reading into "Hollywood Accounting" it makes you even more angry that these money hungry parasites are lobbying to do this.

    They are happy to rip off all and sundry involved in the creation of movies, but the minute the shoe is on the other foot they are on the outright offensive.

    Fuck them.

    The TPP is a very devious and dangerous piece of manipulation. It is the thin edge of a long wedge designed to enable the USA to override and challenge domestic law in the signatory countries. Instead of using military force to invade and conquer the USA is using a complex legal package of measures that will give them unprecedented control over the sovereign affairs of other nations.

    This will weaken the signatory countries' ability to stop the USA and its corporations dominating economic policy, law and legislation that supposedly threatens the status or profits of the US corporation.

    It is being negotiated in near-total secrecy because the governments involved know full well that their citizens would rebel and not allow them to sign it!

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