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Policing Access to Knowledge: an Analysis of The POLICING ACCESS TO KNOWLEDGE: AN ANALYSIS OF THE INTELLECTUAL PROPERTY PROHIBITION REGIME A Dissertation by PAUL LUCAS VACCARO LOGAN Submitted to the Office of Graduate and Professional Studies of Texas A&M University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Chair of Committee, Patrick C. Burkart Committee Members, Randolph Kluver Gabriela Thornton Cara Wallis Head of Department, James Kevin Barge December 2014 Major Subject: Communication Copyright 2014 Paul Lucas Vaccaro Logan ABSTRACT This dissertation is an analysis of criminal enforcement of digital copyrights. I argue that an international prohibition regime to govern intellectual property rights (IPR) has emerged through systems of international trade and law enforcement. The regime, or international system of norms and decision­making procedures, is supported primarily by the United States, the European Union, and multinational intellectual property industries, and these stakeholders are consistently creating measures to strengthen intellectual property (IP) enforcement to include criminal sanctions. The question guiding the research is how the governance of IP enforcement through the international prohibition regime affects the legitimacy of intellectual property law enforcement. I engage the research question through case study analysis that adopts a critical legal methodology and relevant stakeholder analysis. The case studies occur in the European Union, where the standardization of copyright among member states takes place to strengthen the European Union’s common market. I conduct the case research through a critical legal analysis of policy documents, court cases, diplomatic cables, secondary sources and previous research on the cases. The two cases include the international police raid of the file sharing website OiNK’s Pink Palace and the formation of and protest against Spain’s Ley Sinde, a law created under U.S. pressures to strengthen Spanish copyrights. Two major findings are revealed: First, despite the difficulty of establishing digital copyright laws that legitimize criminal enforcement, police agencies are increasingly involved in the ii governance of intellectual property; second, the legitimacy of IP policy is contested by political actors when governance occurs through the mechanisms of a global prohibition regime. As a result of these conclusions, I recommend that Access to Knowledge (A2K) advocates and policy proposals confront the expansion of police enforcement of digital copyrights, and recommend further study into the phenomenon of criminal enforcement of copyright. iii For Erin iv AKNOWLEDGEMENTS I would like to thank my committee chair, Patrick Burkart, for all of his guidance and vocal support, and my committee members, Dr. Gabriela Thornton, Dr. Randy Kluver and Dr. Cara Wallis, for their assistance. The completion of this project could never have happened without the patience and encouragement of Erin. Thanks also to great folks at The Village Café for all of the WiFi, coffee and St. Arnold’s. A special acknowledgement is due to Dr. Jim Aune, for all of the thick books, wonderful conversations and terrible advice. v NOMENCLATURE ACTA Anti­Counterfeiting Trade Agreement A2K Access to Knowledge BPI British Recorded Music Industry BSA Business Software Alliance DEA Digital Economy Act EC European Commission ECJ European Court of Justice EFF Electronic Frontier Foundation EP European Parliament FBI Federal Bureau of Investigation DDoS Distributed Denial of Service DMCA Digital Millennium Copyright Act DRM Digital Rights Management FIOD ECD Fiscal Information and Investigation Service GATT General Agreement on Trades and Tariffs GPR Global Prohibition Regime HADOPI Haute Autorité pour la Diffusion des œuvres et la Protection des droits d'auteur sur Internet, or “Law Promoting the Distribution and Protection of Creative Works on the Internet” ICT Information and Communication Technology vi IFPI International Federation of the Phonographic Industry IGO Inter­governmental Organization IIPA International Intellectual Property Association InfoSoc Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society Interpol International Criminal Police Organization IP Intellectual Property IPR Intellectual Property Rights IPR Center National Intellectual Property Rights Center IPRED Intellectual Property Enforcement Directive ISP Internet Service Provider LDC Less Developed Country MNC Multinational Corporation MPAA Motion Picture Association of America NGO Non­governmental Organization p2p Peer­to­peer RIAA Recording Industry Association of America SOPA Stop Online Piracy Act TPB The Pirate Bay TRIPS Agreement on Trade­Related Aspects of Intellectual Property Rights vii U.S. DOJ United States Department of Justice USTR United States Trade Representative WCO World Customs Organization WIPO World Intellectual Property Organization WTO World Trade Organization viii TABLE OF CONTENTS Page ABSTRACT .......................................................................................................................ii DEDICATION .................................................................................................................. iv AKNOWLEDGEMENTS .................................................................................................. v NOMENCLATURE .......................................................................................................... vi CHAPTER I INTRODUCTION AND LITERATURE REVIEW .................................... 1 Introduction .................................................................................................................... 1 Research Question .......................................................................................................... 9 Literature Review ......................................................................................................... 14 Overview of Theories ............................................................................................... 16 International regimes and the IP prohibitions. ..................................................... 16 A critical history of the IPR GPR. ........................................................................ 30 The information policy regime and IP prohibitions ............................................. 42 Cybercrime theory, international policing, and the IPR GPR .............................. 46 Critiquing an IP Regime: Political Economy and A2K ........................................... 52 Comparing liberal legal and critical legal theory. ................................................ 53 Commodification and spatialization in the IP prohibition regime. ...................... 55 A2K as a framework for IP policy. ...................................................................... 64 Concluding the Literature Review ........................................................................... 75 Research Design ........................................................................................................... 77 Overview of the Case Research.................................................................................... 79 Summary of the Case Analysis ................................................................................ 80 Collecting and Analyzing the Data .............................................................................. 82 Significance of the Study ............................................................................................. 84 Overview of the Chapters ............................................................................................. 87 CHAPTER II THE EUROPEANIZATION OF INFORMATION POLICY .................. 92 Defining and Conceptualizing Europeanization........................................................... 92 The European Union and Copyright .......................................................................... 101 The Berne Convention and the Formation of International IP Norms ................... 102 Beyond Berne: Building Information Policy in the European Union .................... 104 IPRED, IPRED2, and ACTA: Criminalizing IP Infringement .............................. 111 European Copyright Law and the Limits of the IPR GPR ..................................... 122 Conclusion .................................................................................................................. 126 ix CHAPTER III CASE STUDIES .................................................................................... 128 Overview .................................................................................................................... 128 Multi­Stakeholderism, Policy Laundering and Policy Transfer as Policy Features Undermining IPR Legitimacy .................................................................................... 130 Situating the Case Research: Concurrent Cases ......................................................... 133 The Pirate Bay ........................................................................................................ 133 The DEA and HADOPI .......................................................................................... 135 Critical Legal Methodology ....................................................................................... 137 Overview of the Stakeholders ...................................................................................
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