Do Safe Harbor Provisions Effectively Provide a License to Steal?

January 6, 2020

Jay Blumenthal  -  AFM International Secretary-Treasurer

There are many reasons why working men and women join a Union. The ability to act and bargain collectively is one of the most important. Time and again we have seen that our strength and power is directly related to our ability to act collectively rather than individually. 

The same holds true when we act together with other unions with whom we have common objectives. There are 24 unions belonging to the AFL-CIO Department for Professional Employees (DPE). Often, DPE coordinates our efforts in Washington enabling many unions to speak with one voice. 

In a letter to Ambassador Robert E. Lighthizer, Office of the U.S. Trade Representative, Jennifer Dorning, President, Department for Professional Employees, AFL-CIO, wrote about “Safe Harbor” provisions in U.S. Trade Agreements. A safe harbor is a provision in a law or regulation that affords protection from liability or penalty under specific situations, or if certain conditions are met. 

If you think that safe harbor provisions in U.S. Trade Agreements do not affect musicians negatively, please take a moment to read the letter below:

Dear Ambassador Lighthizer,

On behalf of the Department for Professional Employees, AFL-CIO (DPE), I write to share concerns about the export of copyright safe harbor provisions in U.S. trade agreements. DPE is a coalition of 24 national unions representing more than four million professional, technical, and other highly skilled workers. Twelve DPE unions consist of professionals working in the arts, entertainment, and media industries. These unions’ members depend on the sale of legitimate content for fair compensation. Outdated and overbroad copyright safe harbor provisions allow stolen or otherwise illegitimate content to proliferate, cutting into the revenues that provide for creative professionals’ wages, health care, and retirement security. 

U.S. trade agreements should open markets for music, film, television, and other content that the members of DPE unions help create. The agreements should set high standards to promote the types of good, sustainable careers that our unions and their members have cultivated in their industries, and that we should expect to see in all other industries in the United States. The inclusion of copyright safe harbor provisions (e.g. Article 20.89 in the new NAFTA, also known as the United States-Mexico-Canada Agreement or USMCA) does just the opposite—it enshrines in international law an imbalance that threatens the economic security of everyday people working in copyright-dependent industries, including the members of DPE unions.

DPE urges the United States not to incorporate the outdated, overbroad copyright safe harbor language into any future trade agreements, including the bilateral trade agreements that you are negotiating with Japan and the United Kingdom. Moreover, DPE believes it is especially critical that America’s trade negotiators not include the USMCA’s copyright safe harbor language in trade agreements like the U.S.-Japan Trade Agreement that are not subject to congressional review.

In today’s digital era, creative professionals rely more than ever on adequate and effective copyright protection to secure their livelihoods. More than four million people work in jobs across the arts, entertainment, and media landscape—from motion picture and television production to live and recorded music to live theater and other performing arts. The copyrighted content these professionals imagine, design, develop, and give life to contribute more than $500 billion to the U.S. economy and produce a positive trade balance.

U.S. copyright law includes a critical flaw known as Section 512, which, in specified circumstances, frees online platforms from liability for infringing content posted by others. Due to a series of harmful court decisions, Section 512, which was originally intended to create a narrow protection to an infant industry, now provides broad protection against copyright infringement liability to some of the largest, most dominant companies in the world. In essence, Section 512 acts as a nearly free pass for platforms to profit from stolen or otherwise illegitimate content posted by third parties. As a result, DPE has witnessed the emergence of a widespread business model which benefits and profits from the downloading or streaming of unlicensed content created by DPE unions’ members. All the while DPE unions’ members lose out on the wages and contributions to their health care and retirement security that comes from royalties and residual payments.

Put simply, Section 512’s failure to effectively protect copyrighted works is denying creative professionals the ability to earn a fair return on their work. Infringing content generates profits for internet media companies at the expense of the pay and benefits of the members of DPE unions. . . .

If Section 512 ever made sense in domestic law, it certainly does not today. This provision became law in the dial-up era, at a time when few could imagine the speeds and quantities in which today’s creative content is transmitted across borders. Back then, there were a relatively paltry three million webpages, and it took several minutes to download a single song.

Today, there are more than 6.12 billion webpages, and web users can download a full movie in as little as six seconds. A June 2019 study conservatively estimates the domestic losses to digital theft to be somewhere between $29.2 billion and $71.0 billion annually. Far from being a victimless crime, every online theft deprives creative professionals of the pay and benefits they have earned. . . . In short, there are widespread concerns that Section 512 strikes an inappropriate balance between the rights of content creators and the obligations of internet service providers. DPE therefore questions the wisdom of preempting congressional action by incorporating this provision into new trade agreements.

Creative professionals and their unions hope to eventually improve Section 512 so that it strikes an appropriate and effective balance, but their efforts will be made more difficult each time the United States commits in a trade agreement to maintain Section 512 in our domestic copyright regime. It is a mistake to incorporate into future trade agreements provisions that facilitate digital theft and leave tech companies unaccountable for copyright infringement occurring daily on their sites. The trade policy of the United States should ensure these companies are accountable actors in both the domestic and international sphere. We believe that copyright safe harbor provisions are diametrically opposed to that goal.

Finally, DPE is also concerned about the United States incorporating in trade agreements with Japan, United Kingdom, and any other country, a provision modeled on Section 230 of the Communications Decency Act. This provision (which can be found in Article 19.17 of the USMCA) allows online platforms to avoid responsibility for unlawful user content they themselves facilitated or profit from. Public figures, including prominent SAG-AFTRA members for example, are at heightened risk of image-based sexual abuse (deepfake or revenge porn), privacy violations, defamation, and commercial misappropriation. The U.S. courts have misinterpreted Section 230 so broadly that platforms can disregard state law protections and even ignore court orders.

Inclusion of Section 230-type language in the digital section of the U.S.-Japan Trade Agreement and future agreements is a mistake that locks in a free pass for giant tech companies to pad their revenues from unlawful user content that puts ordinary people, including DPE unions’ members, at risk. DPE urges you to remove this language before finalizing the U.S.-Japan Agreement.

Similar to the debate over the effectiveness of Section 512, DPE notes that Congress continues to scrutinize the potential misuse of Internet platform technologies, including facial recognition technologies, algorithms, and artificial intelligence. As such, DPE believes USTR should avoid using digital trade rules to limit the ability of Congress to develop stronger cross-border privacy protections and to shield source codes from regulators engaged in ‘general’ rulemaking as opposed to ‘specific’ investigations or actions. . . . 

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