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Free-trade pacts export U.S. copyright controls

Agreements with Colombia, Panama, and South Korea also specify that citizens can choose computer applications of their choice, but "subject to the needs of law enforcement."

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
President Barack Obama and President Lee Myung-bak of the Republic of Korea at the White House this week.
President Barack Obama and President Lee Myung-bak of the Republic of Korea at the White House this week. White House

President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week "a major win for American workers."

What he didn't add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but "subject to the needs of law enforcement."

You won't find this highlighted on the administration's Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.

One chapter of the complex agreements echoes the Digital Millennium Copyright Act (DMCA), which the U.S. enacted in 1998 over the objections of librarians and computer scientists. It's been used to threaten college professors, stymie research into HP security vulnerabilities, and jail a Russian programmer who created an e-book conversion utility.

Now Colombia, Panama, and South Korea will be required to prohibit circumventing any "technological measure that controls access to a protected work"--meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.

The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.

In the U.S., it's not against the law "for a person to engage in an act of security testing." That authorization is missing in the free-trade agreements. Also absent are most of the exemptions created by the Copyright Office, including ones relating to bypassing e-book and video game security in some cases, circumventing dongle-based restrictions, and copying clips from DVDs for documentary filmmaking.

Which is probably one reason why copyright holders were so enthusiastic about the free-trade agreements' passage yesterday. The Recording Industry Association of America said it was "extremely pleased."

To the Motion Picture Association of America, which said it "thanks Congress for approving these trade agreements," the deals will curtail "the content theft that hinders our industry's growth abroad." Even the Entertainment Software Association, representing video game publishers, predicted Congress' action "boosts exports, opens prospects for new markets and grows high-paying jobs."

In other words, the central "anti-circumvention" sections of the DMCA are exported, but not some of the protections designed to protect researchers and other people who make legitimate use of copyrighted material.

This kind of paracopyright-law export doesn't sit well with Sherwin Siy, deputy legal director at the advocacy group Public Knowledge, which has been critical of the DMCA in the past.

"It's definitely worth noting, and we've long been leery of quasi-legislation through international agreements," Siy said.

The U.S. Chamber of Commerce, which applauded the passage of the trade deals through Congress, downplayed the significance of the DMCA-esque language. Steve Tepp, chief counsel for the Chamber's Global IP Center, said it was "virtually verbatim from provisions of U.S. law enacted in the DMCA in 1998."

To be sure, there are plenty of sections of the trade deals that are likely to be applauded by even the most ardent skeptic of copyright law. Chapter 15, on electronic commerce, limits customs duties on any "digital product transmitted electronically." Electronic authentication and digital signatures are also explicitly permitted.

Bush administration trade negotiators routinely inserted DMCA-like language into bilateral agreements. It appeared in a 2003 pact with Singapore, and another a year later with Australia. These deals, the first negotiated by the Obama administration, show it's following suit.

A law enforcement veto?
Another section (PDF) of the trade deal seems to recognize only a limited right by Americans to create and use computer programs of their choice.

It says: "Each party recognizes that consumers in its territory should be able to...run applications and services of their choice, subject to the needs of law enforcement."

A U.S. trade official, who did not want to be named, told CNET that the language is "hortatory" and therefore not binding--in other words, it's a recognition, not a commitment to actually do anything.

"The intent is to make sure device makers and telcos do not introduce technology that could thwart a CALEA--an existing U.S. law--requirement to build into networks lawful interception capability," the trade official said. "Who decides? In the first instance, the law enforcement community."

The language--"subject to the needs of law enforcement"--dates back to a Federal Communications Commission "policy document" from the Net neutrality wars of 2005. It also echoes the late 1990s, when the FBI was lobbying for a law banning encryption without backdoors for the Feds. (A House of Representatives committee approved such a bill but it did not clear the Congress.)

"As followers of the Net neutrality debate will recognize, this text is partly a dog whistle for placating Hollywood about piracy," says Matt Schruers, vice president for law and policy at the Computer and Communications Industry Association.