Copyright Policymaking as Procedural Democratic Process : A Discourse-Theoretic Perspective on ACTA, SOPA, and PIPA

In Bring in the Nerds: Secrecy, National Security, and the Creation of Intellectual Property Law, David Levine juxtaposes two starkly different copyright policymaking processes: the closed international process that produced the Anti-Counterfeiting Trade Agreement (ACTA) and the relatively open domestic process that led quite dramatically to the scuttling of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). He reads the two processes against each other as a prelude to recommending Freedom of Information Act (FOIA) reform. The amendment to FOIA that Professor Levine proposes would open the international IP policymaking process to greater public scrutiny by creating a qualified public right to “foreign relations” national security information, which was systematically withheld from the public during the ACTA negotiations. This article, prepared for the Cardozo Arts and Entertainment Law Journal’s 2012 Symposium, “Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law,” is a response to Professor Levine that draws on Jürgen Habermas’ discourse theory of procedural democracy to examine the policymaking dynamics of ACTA and SOPA/PIPA and to assess the democracy-enhancing potential of the FOIA reform Professor Levine proposes