The content industry has come out barreling after the failure of their pet bills, SOPA and Protect IP. Carey Sherman writes with real feeling in his NYT Op-Ed Column last week, and the movie industry, with its representative Alfred P. Perry, has reached out in a softer mode to legal scholars, many of whom have criticized either, or both, these industries and current U.S. Copyright law.
Of particular interest to me was the immediate adverse reaction that Sherman, and I suspect leaders of other content companies, have expressed against OPEN, the legislation proposed in the stead of SOPA and Protect IP. Designed to address the main target: websites outside of the United States that promote intellectual property infringement, this legislation differs mainly in two respects. First, its language is not "over broad," perhaps the principal feature that incited the Internet companies to fear enclosure in its sweep. Second, and this may be the one that really stings, enforcement relies on an international body, not on U.S. courts and law.
There is so much to say about this issue I hardly know where to begin. Often when I get that sense I fall back what I learned most deeply in formal education: history. As the dominant global power of the twentieth-century (and, as Kagan would have it, on-going with no foreseeable end in the twenty-first), and truly with much to be proud of in the development of law, the United States would understandably be hard-pressed to give up its sovereignty. But I am afraid I am falling on the side of the fence that legal scholars and jurists such as Antonin Scalia have erected to mark this point sharply and that is to suggest that the United States would be wiser to consider international approaches to law.
I have profound respect for U.S. law as a matter of both substance and history, but I tire of the tireless and boastful arguments from "exception;" that is that the United States is "unique." What these arguments in law and history never quite explain is exactly how and in what ways. Of course, it is exceptional, and unique. But made by people, the trajectory of the history of the United States -- past, present or future -- does not transcend human nature. And neither does its law. Not from a sense of failure but from wisdom with a dash of instrumentalism grounded in a U.S. centric view do I support moving toward international law, not least that which involves a technology that, notwithstanding controls that governments can exercise over it, is nonetheless without borders.
I understand Mr. Sherman (RIAA) and Mr. Perry's (MPAA) concerns. What they call "stealing" is not right or fair. I confess that I have even less tolerance for it when it happens against the United States than within it, although I know that feeling makes no logical sense and may reveal my own imperialistic inclinations. But going forward the United States must be thoughtful about how it is perceived and what precisely its goals are in foreign policy … and make no mistake, this issue may appear to be a domestic one, but it is a foreign policy by any other name. As once the greatest infringer of copyright material in the world in the nineteenth century, when it was a developing country, the United States i.e. Congress, must decide whether its goal is to be a tool of the content industry, that by fiduciary duty must maximize profit, or be an autonomous and efficacious voice in establishing global equity. We are such a generous nation. Certainly since the Marshall Plan we have demonstrated tremendous qualities of mercy. And we used to be revered for it. We can be revered again, but we show ourselves worthy of that respect. International enforcement of intellectual property is an opportunity.
This quote from a NYT article on the security of devices and the theft of information from them when U.S. personnel, both corporate and governmental, go to foreign countries hungry for intellectual property of all types, patents not least.
"Federal lawmakers are considering bills aimed at thwarting cybertheft of trade secrets, although it is unclear whether this legislation would directly address problems that arise from business trips overseas."
You know why it is unclear? Because substantive international law is NOT on the table. It should be. It would help to address this matter too.