Act On ACTA!

[from THE SYDNEY MORNING HERALD, June 10, 2008]

A draft treaty proposes draconian measures to protect copyright.

THE forces of reaction are fighting back. As they often do, they are carrying out their planning in secret, in the knowledge that if more people knew of their activities they would not be allowed to get away with it.

The US (surprise, surprise) has circulated a draft “Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement” (ACTA) for the next G8 meeting, in Tokyo in July. The full text of the document has been published on Wikileaks (wikileaks.org).

The ACTA draft is a scary document. If a treaty based on its provisions were adopted, it would enable any border guard, in any treaty country, to check any electronic device for any content that they suspect infringes copyright laws. They need no proof, only suspicion.

They would be able to seize any device - laptop, iPod, DVD recorder, mobile phone, etc - and confiscate it or destroy anything on it, merely on suspicion. On the spot, no lawyers, no right of appeal, no nothing.

The draft contains other draconian measures. It proposes a governing body for copyright protection that would operate outside organisations such as the World Trade Organisation (WTO) and the UN. In short, it proposes a global police force, answerable to no one, with intrusive powers that vastly exceed those currently available to adherents of the concept of intellectual property.

The proposed treaty is being sponsored by a small group of US Congress members, all of whom Wikileaks says have received significant contributions from major record companies and film studios. As they say, “follow the money”.

The first newspaper to break the story was Canada’s The Ottawa Citizen, which in a story by Vito Pilieci on May 24 picked up on the Wikileaks posting. Since then the blogosphere has been rife with stories about the move. Most commentators are outraged that such a proposal is even being considered.

For 10 years in this column and elsewhere I have been arguing that the concept of copyright, and by extension most forms of so-called “intellectual property”, are irrelevant in the digital era. I was once, with just a few others, a voice in the wilderness. Now most people I talk with agree.

The copyright mafia have tried all sorts of things, including the absurdity of Digital Rights Management (DRM), which attempts to use technology to hobble technology. They have maliciously prosecuted individuals for the “crime” of copying music from one medium to another.

DRM is struggling, but we still see stupidity everywhere. Apple doesn’t let you copy stuff off your iPod - you have to use third-party software to perform what should be a simple task. Foxtel’s iQ and Austar’s MyStar don’t let you copy stuff off those boxes to other media.

Downloaded movies self-destruct after a limited time. It is still illegal in Australia to copy a CD to another CD (only “format shifting” is allowed), or to record a TV show for any other purpose than watching it once.

Whether this absurd treaty becomes reality or not, it indicates the lengths to which some are prepared to go. They will use any means to fight a technology that threatens their anachronistic monopoly of the distribution of digital content.

Clever people are taking advantage of the technology to develop new business models and reach new audiences. Bands are bypassing record companies and going direct to consumers. Authors are publishing online. Small moviemakers are finding new outlets through the wonders of the internet.

The big record companies and film studios have a clever answer - turn everybody into criminals. Use treaties and laws to try to prevent people doing what comes naturally and, in the digital age, easily.

The most that can be hoped of the proposed ACTA treaty is that, if it comes into being, it will further expose the futility of legislating against the key advantage of digital technology - the ease with which content can be stored, copied and transmitted. Where the technology is liberating people and content, the powers of reaction are attempting to stifle it.

Fortunately they are on the wrong side of history. When the full details and consequences of this treaty become widely known, I believe the effect will be the opposite of what its authors intend. It contains so little understanding of the way the digital world works that the backlash against it will be massive, accelerating the inevitable death of the out-of-date business models it is vainly trying to protect.

[by William Paltry at the Paltry Copyright Blog via Thiru Balasubramaniam @ A2K.]

Last week I posted about the proposed Ant-Counterfeiting Trade Agreement (ACTA). The issue is getting coverage in the blogosphere, but none in the mainstream press at least in the U.S., which is
regrettable, since the issues raised are of great public interest. Since my last blog, I have received information from Geneva and national capitals that requires updating the blog, and a call to arms
to stop this monster dead in its tracks, to just say no to secret government. It will take a determined, global effort to do so. ACTA is the most extreme example yet of the devastating effect of making
intellectual property a trade issue. GATT/TRIPS is the most visible example, but it is far from being the only one. A larger point about TRIPS, regardless of the specific provisions contained within it, is
that it demonstrates the power shift away from those who traditionally made copyright policy and to those who make trade policy. In the United States, that is the United States Trade Representative, who
reports to the President.

The attitude of USTR toward copyright is a blinkered, one-sided view that copyright is good and therefore as much of it as possible is even better. But a view is just that unless there is political muscle to implement it, and here lies the systemic danger, the fact that USTR is in the driver’s seat in initiating and negotiating agreements that are cast as trade agreements, but which are in fact agreements
fundamentally reshaping substantive IP law. No trade official in any country, no matter how well intentioned, should have that authority.

In the U.S., the power to make copyright policy vests exclusively in the Congress. We do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d’accompli.

Use of the fait d’accompli is not limited to trade representatives, and is a disease encountered in other executive branch agencies. TheDMCA is an example of an attempted fait d’accompli. Much to the
chagrin of its proponents, the DMCA ended up being only passed after considerable hearings and congressional involvement, in large part due to the fact that the Administration, in that instance through the PTO, did not get everything it wanted from other countries in the 1996 WIPO treaties, and hence couldn’t completely rely on the fait d’accompli argument. Had it been able to do so the story would have been different, and that is what the ACTA process is intended to achieve. (I will add that it is a farce to accept comments from the public on drafts you can’t see, and on provisions that are dramatically expanded after those comments are submitted).

ACTA is the most extreme example of this to date, and say what one will about the DMCA – (and there is a lot that could be said), the DMCA process was pretty open if ugly. This openness is attributable in
part to the persistence of Congressman Rick Boucher who was forceful in articulating a different approach to the substantive issues, and to the opposition of powerful communications companies. It was also open because there were lengthy pubic meetings at WIPO, with daily reports
in a pre-blogger era that helped keep people who weren’t in Geneva informed of what was going on. While one may decry the results of those treaties, as I do, the treaties were not written in secret.

With ACTA, none of this will take place: the agreement is being negotiated in secret, and if the reports are accurate, it will then presented to the public in December after the elections where it will
bind the next U.S. Administration. Not that things are better in Europe. USTR is hardly the only one pushing for agreement and for acting in secret: the EU was an early and enthusiastic advocate.

Here are the two comments I have received from reliable sources after my last posting, neither of which knew of the other’s comments, and both of which are separated by thousands of miles. Here is the first:“The rumors of what is in the draft are pretty much all bad and the scope is growing, not shrinking; it is even said that the latest version has filtering language in it.” Here is the second: “I have
been told that this secret treaty is going way beyond enforcement and is basically attempting to re-open a lot of the issues in WCT/WPPT, which is consistent with the leaked info re filtering.” The overriding
problem is not with any particular proposal (although there is lots wrong with the proposals) but with a secret process, run by trade representatives, trying to rewrite the laws on incredibly contentious
substantive issues that were thrashed out in public previously, but are now being rewritten in secret and through the blinkered perspective of trade, not copyright policy. People usually work in the
shadows because they are ashamed to work in the sunlight. It is up to us to open the windows, otherwise they will stay shut and we will be shut out from decisions that will seriously impact us, well beyond the search of our laptops and iPods at borders and airports often-cited as an example of how ACTA might work.

There is no reason why ACTA should not be opened up now. If it is opened up, any false descriptions of its intent or provisions could easily and effectively be dispelled. The failure to open it up now
speaks loudly about its proponents’ purposes and our worst fears of its substance.

James Love, in The Huffington Post

Today in Geneva Switzerland, at an undisclosed location, the US government, the European Commission, Japan and a handful of other countries will meet in a secret negotiation on a new treaty.
The working name is the Anti-Counterfeiting Trade Agreement (ACTA), a name that masks the much broader subject matter, and one that was deliberately chosen to intimate and discourage politicians from
expressing opposition to provisions that undermine civil rights and privacy, and which many say will change the substantive rights the public has to use copyrighted works or inventions. What member of
Congress or Parliament wants to be accused of protecting counterfeiters?

The US, EU and other governments involved in this project have not released details of the substantive provisions under discussion. Press reports in Canada in Europe have focused on provisions that would
involve searches of computers, cell phones or iPods for infringing software or music files. Others have discussed changes in international law regarding injunctions for alleged infringements of intellectual
property rights, expanded ex officio powers for governments, tougher sanctions, special programs to train judges or law enforcement officials, and other measures, most of which is speculation based upon
some of the “asks” by lobbyists from the computer game, software, music, film, pharmaceutical and fashion industries.

There is a huge rush to conclude this agreement before Bush leaves office. So far, no Democratic member of Congress has expressed much interest in the details of the agreement, or asked probing questions about why such a potentially far reaching treaty is being rushed through under a cloud of secrecy, described by some as cloak and dagger.

This “patriot act” for intellectual property “crimes” may be one of the late legacies of the Bush Administration. It would be nice to have more transparency about such a far reaching and important global trade agreement. Particularly since the current negotiation strategy seems to be to present the Congress with a fully negotiated text for an up or down vote, before there has been any debate of the actual provisions of the agreement, or consideration of alternative approaches, including those that have fewer negative impacts on privacy, due process or consumer rights.

There are undoubtedly reasons for such tight secrecy and the use of thought-stopping terms like “anti-counterfeiting” to name this agreement. But they are undoubtedly the wrong reasons for the public.
They are signals that the treaty would face opposition if more was known and understood about its substantive provisions.

By Nate Anderson, in Ars Technica

ACTA is a new global trade agreement being drafted — mostly in secret, under NDAs — by the US, European Union, Switzerland, Australia, and a select handful of other wealthy nations.

The US Trade Representative (USTR) and the European Commission announced their intent to open ACTA negotiations at the end of 2007 calling it ‘a new and dynamic effort to combat the challenges of counterfeiting and piracy today.’ They invited a short list of transnational intellectual property owners and corporate lobby groups to participate in consultations and negotiations. They did not invite civil society groups or other ’stakeholders’ like libraries, educators and so on.

ACTA’s stated purpose is to protect industries based on intellectual property, and to achieve this, the agreement creates new international legal rules for the regulation of intellectual property rights. From the information gleaned so far from releases, these include:

• Further criminalising non-commercial copyright and trademark infringements (this is the so-called “Pirate Bay Killer” clause);
• Reinforcing so-called “Digital Rights Management” (DRM) technologies that currently prevent the personal, legal reproduction of optical discs like DVDs and trample on “fair use” rights;
• Facilitatating privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process;
• Expanding to an unprecedented extent customs and law enforcement officials’ abilities to police goods and information, including border measure in which customs and border agencies would become “copyright cops” authorized by to search, for example, personal music collections to look for evidence of P2P file-sharing or burned CDs and DVDs;
• Agreeing a privacy-destroying information exchange between governments between their citizens in order to protect  IPR industries (although the data exchange won’t be limited to that goal).  According to the USTR, this includes “sharing of information and cooperation between law enforcement authorities, including customs and other relevant agencies”;
• Restricting Peer-2-Peer (P2P) file-sharing, creating liability for search engines and other online service providers (effectively illegalising search);
• Requiring that ISPs police and control Internet content (as with the apparently discarded “3 strikes” legislation)
• Obligating states, law enforcement officials, and private firms to intrude on the privacy of “alleged” infringers without sufficient legal due process — and without the necessary permission of relevant copyright owners.

As Aaron Shaw points out in Knowledge Ecology Studies,

All of these provisions threaten to reach far beyond existing U.S. and E.U. legal norms without any mandate from the appropriate, elected legislative bodies that govern them.[7] As such, the trade officials involved in ACTA negotiations demonstrate a surprising disregard for their own countries’ democratic political processes and public welfare. They also threaten to overturn the existing balance of rights and regulations established through global governance institutions.

All of this has necessarily been gleaned from a very few leaks and articles, because despite its massive importance, ACTA discussions have been conducted in the dark corners of international policy making. With the exception of a handful of press releases, information about the proposal itself remains scarce. Mainstream media outlets have merely printed USTR officials’ talking points about the importance of winning “the  fight against fakes,” but have failed to analyze either the origins or  the nature of the ACTA in any detail.

This is utterly unacceptable. In the form that it currently appears to exist, ACTA would ratchet-up further the rights of Hollywood and Recording Industry Association of America (RIAA) at the expense of all of our civil liberties. It provisions to criminalize information use practices currently allowed under U.S., European, and international law are completely disproportionate to the ‘problems’ it claims to adress. ’If signed,’ Shaw continues succinctly,

the agreement would constitute a diplomatic putsch by a handful of wealthy states and corporations against the rest of the world. Already, it signals an overt and troubling rejection of multilateralism. The so-called “plurilateral” approach represents an outdated model of international treaty-making whereby the unelected representatives of Northern states and a few corporate lobbyists dictate the rules of global markets. Such arrangements were commonplace during the 1990s under the neo-liberal “Washington Consensus” and prior to the Doha Round of negotiations in the WTO. Today, however, this kind of blatant disregard for global consensus and the needs of developing regions poses a threat to the world’s prosperity, security and health. ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties.

There is no doubt that ACTA cannot succeed at its purpose. Already we see projects like Cubit appearing, which, because it performs the searches without relying on any centralized components, is immune to legal and technical attacks targeting torrent aggregators. But merely makes ACTA the more disproportionate. ACTA criminalises the vast majority of people in one fell swoop, providing a case for unwarranted surveillance, search and seizure and unfair imprisonment. It invites a breeding ground for further abuse and erosion of citizens’ privacy and an unprecedented expansion of the State’s abilities to police goods and information.  In short, ACTA must be stopped.

Further Reading:

The Problem with the Anti-Counterfeiting Trade Agreement (and what to do about it)
ACTA’s Misguided Effort to Increase Govt Spying and Ratchet-Up IPR Enforcement at Public Expense
Act Against Acta (IP Justice)