InsideSources

According to the Free State Foundation (FSF) — a Maryland-based free market think tank — the U.S. needs tighter copyright laws that crack down on tech platforms like Google and Facebook.

The FSF recently published a study arguing that the copyright provisions in the new United States Mexico Canada Agreement (USMCA), or NAFTA 2.0, don’t adequately protect U.S. artists, musicians, filmmakers and other content creators — and it’s costing the U.S. and other countries billions of dollars every year.

“The proposed USMCA has room for improvement,” FSF states in the report.

Instead, the FSF reasons U.S., Mexico and Canada should implement laws that force tech platforms to “notice and take down” content that infringes copyright — like redistributed films, TV shows or music.

Under Section 230 of the Communications Decency Act, tech platforms that provide access to creative content — like Google and Facebook, for example, or Twitter and Tumblr — are fully immune from all liability if users upload copyrighted material to their sites.

This principle was incorporated into the new USMCA under Section 512. But the FSF says this principle is “outdated and ineffective in protecting digital music and video content from massive online infringement on today’s popular user-upload websites like YouTube.”

“A provider receives immunity if it ‘responds expeditiously to remove, or disable access to, the material that is claimed to be infringing,'” the FSF states in its report. “…Judicial interpretations of Section 512 have widened the circumstances in which online providers can claim lack of knowledge of infringing activity and thereby receive immunity. Also, court precedents make it burdensome to pursue takedowns when infringing uses of the same content take place across multiple web pages on the same website.”

Ironically, the European Union (EU) addressed these concerns in its updated Copyright Directive, which requires tech platforms to use “upload filters” and regularly scan for and take down copyrighted content, which some tech experts and industry players say sets a precedent for censorship.

Stricter copyright laws holding tech platforms liable for the content they provide access to are very unpopular in Silicon Valley. Besides lobbying heavily to get Section 230-like language incorporated into the USMCA so as to protect tech companies from copyright liabilities, Big Tech also decried the EU’s updated Copyright Directive.

But the FSF contends that U.S. intellectual property is too valuable to treat lightly.

“According to a widely cited U.S. Department of Commerce study, intellectual property-intensive industries comprised over 38 percent of the entire U.S. economy in 2014, amounting to a $6.6 trillion contribution,” the FSF report states. “The same study found that IP-intensive industries directly accounted for 27.9 million jobs and indirectly accounted for an additional 17.6 million jobs, or about 30 percent of all U.S. employment.”

The report also cited data showing that the digital piracy of films, music and software cost $213 billion globally in 2015, and by 2022, that number may nearly double.

Because most copyright infringement occurs in other countries, tightening up copyright laws in the USMCA is especially paramount.

Seth Cooper, a research fellow at the FSF and one of the study’s co-authors, told InsideSources that he doesn’t think the U.S. should completely do away with immunity for tech platforms from copyright liability.

On the contrary, he believes the tech industry needs to be reformed and incentivized to protect content creators, not exploit them.

“The principle is sound, what needs to happen is the application of the principle needs to be updated and strengthened,” he said. “We think that the notice and takedown system in the United States needs to be recalibrated for the digital age. The whole system was adopted when the commercial internet was in its nascent stage, and tech has advanced and the capabilities have advanced for spotting and identifying and taking down infringing content. There’s a lot more user upload technologies that simply didn’t exist when the [Communications Decency Act and NAFTA] was enacted.”

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One of Silicon Valley’s concerns in the re-negotiation of NAFTA was in the area of free speech and content regulation, and the final draft turned out to be good news for Big Tech — mostly.

According to the new United States-Mexico-Canada-Agreement (USMCA), tech companies like Facebook and Google will not be liable or prosecutable for any content they host on their sites, even if that content is false or illegal.  There is, however, one exception: the new agreement says the U.S., Mexico and Canada can enact “measures necessary to protect public morals” and hold tech companies liable for content that facilitates sex trafficking, child trafficking and prostitution.

The agreement mimics Section 230 of the Communications Decency Act of 1996, which several libertarian experts have praised for protecting tech companies from liabilities and lawsuits related to the content curated on their sites. The Electronic Frontier Foundation calls the CDA’s Section 230 the “most important law protecting internet speech.”

That protection ends when it comes to sex trafficking. The new USMCA specifically references the U.S.’ amendment to the Communications Act of 1934, passed earlier this year, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (commonly referred to as FOSTA), which Silicon Valley lobbied against.

FOSTA was the result of an 18-month Senate investigation into Backpage.com, a website notorious for facilitating online sex trafficking and sexual exploitation of children. Thanks to FOSTA, tech companies can be held liable for knowingly running ads for sex trafficking and child sex.

Lisa Thompson, vice president of research and education at the National Center on Sexual Exploitation, said neglecting to hold tech companies liable for this in the new NAFTA agreement would encourage cross-border sex trafficking, which has increased rapidly over the past 10 years, especially at the U.S.-Mexico border.

Simply copy-and-pasting Section 230 language into the new NAFTA agreement, she wrote in an op-ed for The Hill, would “be nothing short of a sex-trafficking apocalypse.”

Silicon Valley — including many tech publications and libertarian voices — decried FOSTA for restricting internet freedom, and Google lobbied earnestly against its passage. The tech industry also lobbied for the new NAFTA agreement to include Section 230 language without caveats. According to a Quartz report, internet and tech companies and associations spent $38 million on lobbying through August this year.

According to two lawyers in an analysis published by Bloomberg, “The safe harbor [of Section 230] has always been a double-edged sword. For platforms, the task of monitoring user content and responding to demands to remove defamatory or otherwise unlawful third-party content could easily become so onerous as to be infeasible. On the other hand, for parties aggrieved by unlawful postings, it can be immensely difficult to cause an unresponsive platform to remove even obviously wrongful — even demonstrably illegal — content or speech.”

In an August 2017 letter to congressional staffers, Google lobbyist Stewart Jeffries wrote that FOSTA “has the potential to seriously jeopardize the internet ecosystem” and “undercut[s] one of the foundational statutes for the Internet: Section 230 of the Communications Decency Act.”

During Google’s Q2 2018, Jeffries lobbied the United States Trade Representative (USTR) on behalf of Google on a number of issues related to the NAFTA (now USMCA) renegotiation, like “freedom of expression and free flow of information,” as well as lobbying Congress over “anti-human trafficking” and FOSTA.

Aware of the tech industry’s push, rescued victims of sex trafficking sent a letter to Congress in September asking for the “Section 230-like language” in the new NAFTA agreement to be modified to hold internet and tech companies liable for “knowingly facilitating” sex trafficking.

Beyond Borders ECPAT Canada, a national advocacy organization seeking to end exploitation of children, said Canadian representatives in the NAFTA renegotiation responded to concerns “that the agreement might include a blanket prohibition which would prevent Canada from imposing liability on internet providers for content. We are pleased to see that the agreement would allow Canada to hold internet providers liable for online sexual exploitation of children.”

Beyond Borders ECPAT Canada also applauded FOSTA earlier this year.

While the USMCA is still a huge win for Silicon Valley, the tech industry’s resistance to anti-sex trafficking efforts may only strengthen anti-Big Tech sentiments in Washington as scrutiny of some of the major players — like Google, Facebook and Twitter — intensifies.

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