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Post-Megaupload, Unrest Over ACTA, and a Call for Something Better

BY Nick Judd | Thursday, January 26 2012

The Megaupload case lends further urgency to what many agree is a much-needed, global overhaul of how we understand intellectual property in the Internet age.

The chief disagreement here is over who should get the most preferential treatment — old-guard companies seeking control of distribution methods on the Internet as a means of protecting their property, consumers, or new-age content creators who need the ability to remix, reuse and share in order to build the information economy. But there's another issue at stake that Megaupload has brought to the fore: the United States' position as a champion of Hollywood's intellectual property rights around the globe, and the asymmetry of that relationship with respect to other countries' own expectations around content. A treaty signed today by European officials, if ratified, would change both of these in a way that newer content creators might not like.

Megaupload CEO Kim Dotcom, also known as Kim Schmitz, is described in a U.S. grand jury indictment as a resident of Hong Kong and New Zealand and a dual citizen of Finland and Germany. He is facing extradition to the U.S. in connection with charges of conspiracy to commit racketeering, conspiracy to commit copyright infringement, conspiracy to commit money laundering and criminal copyright infringement, as is at least one of his former colleagues, stemming from charges that he violated the copyrights of American companies. More alleged "co-conspirators" are scattered across the globe.

Broadly speaking, European governments don't support unauthorized distribution of copyrighted material, either. But European governments are also watching their citizens deal with the consequences of American copyright laws in other ways. For example, people in European member states who put Megaupload to legal use are now deprived of whatever files they had stored with the service, Marietje Schaake, a member of European Parliament and a Dutch politician in the Democrats 66 party, pointed out to me in an email.

"Most of the internet and companies providing online services are incorporated in the United States," Schaake wrote to me in an email. "And while many Europeans use these services, we do not elect the representatives who are supposed to ensure democratic oversight and make laws protecting civil rights. I believe Europe must discuss these increasingly impactful topics on the highest level in the United States, to ensure that our long time alliance is not hurt."

Schaake also pointed out that the European Union has no unified copyright — each of the 27 states has its own laws and regulations. The EU should "urgently develop a harmonized European copyright," she wrote.

"Europeans must also know more about the consequences of accepting the terms of use for US based services to make well informed choices before signing away their rights to Virginia or California," she added later in her email.

As Dotcom and his alleged co-conspirators wend their way towards U.S. courts through the international justice system, intellectual property protections are becoming a global priority. During his State of the Union speech Tuesday night, addressing a joint session of Congress and millions of Americans, President Barack Obama called for the creation of a new trade enforcement entity to protect U.S. companies from counterfeit goods. European officials were in Tokyo Thursday to sign the Anti-Counterfeiting Trade Agreement, a global agreement governing piracy and copyright regulations that has already been years in the making, although the signatories, including the European Parliament, must then ratify it for it to become law in each place.

Schaake took to Reddit recently to voice her own concerns about ACTA, and to urge redditors to speak out against it. Thursday, Member of European Parliament Kadir Arif, rapporteur to Parliament on ACTA and a member of the S & D Group (Socialists and Democrats) within Parliament, resigned his position as rapporteur in protest of how the agreement had progressed through Europe's legislative body.

"I will no longer participate in this charade," Arif said in a statement.

And in Germany, as my colleague Miranda Neubauer reported, the dominant party in the Bundestag, for the moment, appears divided on its own ideas about how to handle copyright infringement going forward.

Among the issues here is the difference between American ability to enforce copyright internationally and other countries' ability to enforce other content restrictions on U.S. firms.

In a landmark 2001 case, Yahoo was protected by a U.S. District Court Judge from a French court decision that would have required the company to block Nazi-related material from French consumers. (Downfall videos, anyone?) More recently, Google elected to largely back out of Chinese Internet namespace in 2010 rather than heed that government's demands for censorship. After some back and forth, Google now continues to serve Chinese users through a search portal operating in Hong Kong, which is nominally less restricted.

American companies, said Jason Schultz, an assistant clinical professor of law at U.C. Berkeley, can retreat to U.S. law and be protected from other countries, while the arm of American law stretches pretty far. In the Netherlands, according to reports, an Estonian citizen has been detained related to the Dotcom case pending an American extradition request.

With Raphael Majma

This post has been corrected. Whether Congress can intervene in the U.S.'s ratification of ACTA is in dispute. The U.S. Trade Representative asserts the authority to enter ACTA as a "sole executive agreement," according to an October 2011 letter from U.S. Sen. Ron Wyden (D-Ore.) to the representative, Mark Kirk. If it is consistent with existing law and does not require new legislation, the trade representative asserts, then it does not require congressional approval. Wyden argues that the executive branch is instead "seeking the ability to enter binding international agreements on matters under Congress's plenary powers," since the agreement deals with foreign commerce and intellectual property.