Foreign Affairs As The New Copyright Law, Pt. 3: “Piracy Legislation”

[Editor’s Note: This is final part of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published in Copycense on May 27; Part 2 was published on June 2.]

In this article, I focus on proposed legislation in Congress that would make copyright (and other intellectual property issues) a consistent part of U.S. foreign and trade policy via the State Department.

“Hollywood” Howard Berman Goes International

On May 14, Howard Berman (D-CA), chairman of the House Committee on Foreign Affairs, introduced bill H.R. 2410 (Foreign Relations Authorization Act, Fiscal Years 2010 and 2011). The bill authorizes funding for the Department of State and the Peace Corps. As a funding bill, H.R. 2410 is relatively innocuous: the State Department is one of this country’s most important federal agencies, particularly at this moment, and few can reasonably argue with the Peace Corps and its mission. (Read Secretary Clinton’s statement to Congress about the State Department’s FY 2010 budget.)

Anyone who is familiar with the federal legislative process, however, knows you always — always — must monitor appropriations bills because they attract more pork than a southern Sunday brunch. Treats — not necessarily financial earmarks, but pieces of legislation that serve as a kind of “tribute” to a legislator or powerful constituent — also get passed around like it’s Halloween whenever appropriations bills make the rounds.

The entertainment industry lobby (RIAA and MPAA in particular) have lobbied for, and won, a number of appropriations-based treats over the decades. They have used this tactic quite effectively, taking advantage of a cardinal law of Congressional self-survival: the legislative branch understandably is loathe to keep itself or governmental units running on continuing resolutions, so it is rare that a budget bill will not eventually pass.

Even more accurately, it is rare that a budget bill passes without including special treats for particularly powerful members of Congress.

Congressman Berman has been a particularly powerful member of Congress for quite some time. We (and others) noted Berman’s departure from the House of Representatives’ Committee on the Judiciary (HJC) in January 2008, where he was as consistent a pro-entertainment industry lobbyist as there ever has been. HJC’s jurisdiction includes intellectual property matters; judicial, legislative and administrative law matters; federal prisons; and antitrust.

The Center for Responsive Politics’ Open Secrets Web site reports that during the last full Congress, ending in 2008, Berman received more than $200,000 in contributions from the entertainment industry, and another $67,000 from the technology industry. In comparison, Senator Diane Feinstein received more than $265,000 from the entertainment industry over the same period. (Both totals pale in comparison to the $968,958 the entertainment industry lavished on Sen. Barbara Boxer last Congress.)

But it is a rare opportunity to get a Congressional committee chairmanship, and Berman ceded party seniority on HJC to John Conyers (D-MI), among others. (With the Democratic surge in Congress during the 2008 presidential election, Conyers became HJC’s current chairman.) So it was not particularly surprising that Berman left HJC to chair Foreign Affairs. Berman, however, was not away long enough for his seat to get cool: the same Democratic surge during the last presidential election cycle helped Berman to return to HJC, where he occupies the role of vice chairman.

Regardless of his committee assignments, we figured Berman would be hard pressed to leave behind his blind support for all things Hollywood. And it turns out we were right. Only this time, Berman’s newest nod has a chance to greatly affect the way this country manages its international affairs.

The Leaked X-Men Film & HR 2410

The first sign that Berman would find a way to blend the RIAA and MPAA lobbying agenda into foreign relations came last month, when Berman chaired a hearing in Van Nuys, CA that ostensibly was about “pirated” intellectual property. The context was classically scripted: an unfinished copy of X-Men Origins: Wolverines had been released onto P2P networks just a week earlier, and the U.S. Trade Representative’s Special 301 report (the one that put Canada on the Priority Watch List) was due in the following two weeks.

During the hearing, Berman mentioned he would “begin to elevate the attention” the U.S. gave to perceived and real international acts of copyright infringement, according to The Carpetbagger, a New York Times blog. HR 2410 does just that.

Buried in this appropriations bill, Berman (the bill’s sponsor) throws yet another bone to his old pals in Hollywood. For example, Section 329, entitled “Protection of Intellectual Property Rights,” requires the Secretary of State to “ensure that the protection in foreign countries of the intellectual property rights of United States persons in other countries is a significant component of United States foreign policy in general and in relations with individual countries,” and requires the Secretary of State to “appoint 10 intellectual property attaches to serve in United States embassies or other diplomatic missions.”

According to Section 329(c), the Secretary of State should deploy these attaches “in those countries where [his] activities … may be carried out with the greatest potential benefit to reducing counterfeit and pirated products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries.”

According to Section 329(d), these intellectual property attaches would engage in variety of duties, including:

  • “[promoting] cooperation with foreign governments in the enforcement of intellectual property laws generally, and in the enforcement of laws against counterfeiting and piracy in particular”;
  • “[assisting] United States persons holding intellectual property rights, and the licensees of such United States persons, in their efforts to combat counterfeiting and piracy of their products or works within the host country …”; and
  • “[identifying] and [promoting] other means to more effectively combat counterfeiting and piracy activities under the jurisdiction of the host country.”

The kicker? Section 329(f) requires the attaches’ duties to be carried out “in coordination with the United States Intellectual Property Enforcement Coordinator.” This is the IP czar position that Vice President Biden promised would be filled with a person sympathetic to Hollywood executive concerns.

Next Steps

In short, Berman’s bill, if it passes, would deputize State Department officials to serve as the entertainment industry’s foreign affairs wing. As of this writing, the Foreign Affairs committee has recommended that the entire House consider HR 2410, and the bill was placed on the House’s Union Calendar on June 4.

The next few months will be critical. As a practical matter, HR 2410 must pass before the end of the year, since Congress’ attention will turn to midterm elections beginning in January 2010. Congress recesses in August, and upon its return, will consider to annual spending, tax, and appropriations measures. If HR 2410 is to pass with its current pro-entertainment measures, it is likely to be signed by President Obama in the fall, before Congress takes its holiday recess in December.

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Written by Dr. K Matthew Dames

06/09/2009 at 08:00

Posted in Uncategorized

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