Stopping Google’s End Run: No Safe Harbor Privilege in Trade Agreements

The United States-Mexico-Canada Agreement recently passed the house and is headed for the senate. Many in the music industry are concerned, however, that the new deal contains concepts which looks very similar to the failed DMCA law, and which would greatly benefit tech giant Google should it pass through the senate.

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Op-ed by Chris Castle of Music Technology Policy

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  Less discussed is the part of USMCA that incorporates concepts of the failed DMCA from US law.  The chances of doing something to lessen the blow are dwindling now that the USMCA has passed the House of Representatives and moved on to the Senate.  We still have a chance to have an impact in the Senate, but time is going by.

Google’s USMCA Back Door

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

What is to be Done?

There’s a few ways to do this.  First, the simplest thing is to ask your Senators to make a statement for the record opposing the safe harbors being included in any trade deal, including USMCA.

Then, realize that significant legislation comes with something called “legislative history” which is a stand alone document that is a narrative explanation of what the Congress intended with the bill.  The legislative history for USMCA has not been finalized yet, but the clock is ticking.  (You can read the legislative history from the House of Representatives on the Music Modernization Act if you want to get an idea of what this will look like.  Both House and Senate issue these “reports”.)

Courts often review the legislative history when trying to “say what the law is” as a way of defining the intentions of Congress, sometimes years or decades after a particular bill was enacted into law.  It’s important that the USMCA legislative history reflect that Congress was not throwing the door open to Google to incorporate special privileges.

One other way is to require the U.S. Trade Representative to consult with relevant committees of Congress before ever doing this again.  This takes the back room dealing out of it, or at least limits it.

Creators should be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 “(Legal Remedies and Safe Harbors)”–and that’s the problem floating beneath the surface of USMCA.  Just at a time when not only has the copyright small claims court bill (CASE Act) passed overwhelmingly in the House, but we are also expecting the Copyright Office report on the DMCA safe harbor and we are starting to win victories over the value gap in Europe, we don’t need US trade agreements to perpetuate and expand the bad DMCA safe harbors (17 USC Sec. 512 et seq for those reading along at home).  Particularly when the world is moving past those privileges and US law is frozen in amber.

These concerns arise because the USMCA incorporates the highly controversial “DMCA safe harbor ”. This perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades just at a time when the CASE Act is about to give some relief, especially to photographers, film makers and music artists. Creators simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States especially if the US ends up negotiating a bilateral trade agreement with the UK after Brexit.

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.” The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.  The House of Representatives has recently passed the CASE Act to deal with this very problem and I expect the Senate will take up the CASE Act in the coming weeks.  It would be a bizarre twist for the Congress to plug one loophole only to allow another through the back door of trade agreements. (Not to mention the showdown over Google’s fair use loophole brewing in the Supreme Court in the Google v. Oracle case.)

Even if the US rolls back the DMCA safe harbor, it’s possible that we may be stuck with whatever safe harbor privilege that Google snuck into the USMCA as a stand alone regime.  That would be unacceptable.

Take Action

I encourage readers to call on your representatives and ask that they include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of Article 20.89 that perpetuates the unworkable DMCA regime.  The legislative history should also disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors. This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the exact opposite direction of the Article.

If you agree with these concerns, I recommend that you call the Senate switchboard at 202-224-3121 and tell your Senators that you want (1) the USMCA legislative history to place a limitation on incorporating DMCA in future trade deals and (2) Congress to require the US Trade Representative to consult with Congress.  And you want them to make a statement for the record opposing inserting safe harbors in any trade deals, including USMCA.

The Artist Rights Watch motto is “Never Take It for Granted that Justice Will Be Done.”  We have a chance to fix this–if not us, then who, if not now, then when?