An American served >1 year in prison for conduct that is 100% legal in Europe. But it’s not drugs. It’s copyright. Here’s why it matters.

The Administration is receiving some unusual advice from the content industries as it undertakes to renegotiate the North American Free Trade Agreement (NAFTA). It’s not surprising that content providers would weigh in, given the multiple obligations Article 17 of NAFTA imposes on Canada, Mexico, and the United States concerning intellectual property protections. If it’s your ox being gored, you’re going to have some strong opinions; it would be weird if you didn’t.

What makes the content industries’ position unusual is that they are apparently attempting to take some issues off the table entirely as subjects for negotiation. According to this recent TechDirt article (emphasis mine):

the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.

That is, the content industries want the final agreement to mandate strong copyright protections without mandating (or, depending on how you read the word “any” in the preceding quotation, permitting) signatory countries to recognize exceptions or limitations on those rights. Copyright rights, on this view, are a one-way ratchet: they can only be strengthened everywhere, never reduced.

There are a lot of reasons to quarrel with this view, assuming it has been accurately reported. It’s profoundly ahistorical; every international agreement that defines copyright rights also fixes outer boundaries of protection. Article 10(1) of the Berne Convention requires every country to allow quotations from published works, and other parts of Berne allow copyright exceptions for teaching, news reporting, and other socially valuable purposes. The WTO TRIPS Agreement, another landmark multilateral treaty, incorporates long-recognized copyright limitations (for example, Article 9(2)’s idea/expression dichotomy) into international law. An argument that copyright limitations and exceptions have no place in trade agreements isn’t an argument against NAFTA; it’s an argument against every copyright treaty ever concluded.

An argument for international copyright law to ignore copyright limitations and exceptions is also bad policy, which is why civil society and public-interest groups have been loudly insisting that NAFTA renegotiations protect fair use and maintain balance between the rights of content creators and users. It’s why the American Library Association, the Center for Democracy and Technology, and over 80 other individuals and organizations from several nations issued the Washington Principles on Copyright Balance in Trade Agreements last fall as NAFTA renegotiation got underway in earnest.

But most of all, it’s just shortsighted even from the perspective of people who want to maximize the scope of copyright rights to take limitations and exceptions off the table as a subject of trade negotiations. To understand why, let’s look at two recent cases involving an American citizen and a European company who did the same thing: they distributed a tool that allowed owners of Nintendo Wii entertainment systems to play games that had not been authorized by Nintendo. These systems, colloquially known as “mod chips,” bypassed the internal authentication system that the Wii used to verify that the games users were seeking to play on their consoles had been approved by Nintendo. Nintendo complained to the authorities in each jurisdiction that helping Wii owners play unauthorized games was against the law because it circumvented a technological protection that Nintendo had put in place to ensure that only authorized games were playable.

Both the United States and Europe have laws against that sort of thing. They have laws of that type because they are required, under Article 11 of the WIPO Copyright Treaty, to

provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures … that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The EU Court of Justice, however, refused to condemn the making of a device to circumvent the Wii’s technological protections, because those protections appeared to the court to be broader than necessary to protect Nintendo’s copyright rights. It required, in assessing the legality of the circumvention tool, a consideration of “how often [the] devices are in fact used in order to allow unauthorised copies … and how often that equipment is used for purposes which do not infringe copyright[.]”

In contrast, the American who circumvented the Wii’s technological protection went to prison for twelve months and one day; the opinion of the Court of Appeals did not even address the question whether the “mod chips” he sold could have been put to noninfringing uses.

These two cases involved the same underlying offense and essentially identical substantive laws, written to implement a single treaty obligation, yet they reached opposite outcomes for reasons neither opinion said a word about.

If you believe in meaningful limitations to copyright holders’ exclusive rights (or, for that matter, in the rule of lenity which usually governs complex criminal issues of first impression), you probably prefer the European outcome to the American one: perhaps tools should be evaluated based on whether they are mostly put to infringing or noninfringing use. Maybe the limitation on copyright holders’ exclusive rights that the European court recognized would be a good rule for the United States, too.

On the other hand, if you believe that copyright holders should have the power to control how their works (such as Nintendo’s game console) are used, then the European approach probably infuriates you and the American one probably seems correct. Maybe you wish that European law didn’t recognize a limitation on copyright holder’s exclusive rights in this instance, and that the American view prevailed instead.

The point is, whichever outcome you favor, the only way to get to that outcome is for international treaty negotiators to discuss limitations and exceptions. Taking limitations and exceptions off the table makes it impossible to move the ball in any direction, not just the one the content industries claim to oppose. That’s a foolish way to conduct negotiations, and one all the players in the NAFTA debate should reject.