No, ACTA Secrecy Is Not 'Normal' -- Nor Is It A 'Distraction'

from the don't-make-us-laugh dept

Fri, Nov 20th 2009 9:49am — Mike Masnick

Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we've seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it's been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what's going on).

One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don't support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.

A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It's as if they think that we're all idiots who haven't seen how lobbyists have historically relied on the line "but we must live up to our international obligations" to push through all sorts of laws the public does not support.

A third point raised is that this isn't a "treaty" but a "sole executive agreement," so we shouldn't worry since it can't change the law. Except, by categorizing it as such, it's actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that's in the agreement, and then just wait for the "but we must live up to our international obligations" to start pouring out of lobbyists and industry lawyers' mouths.

A fourth point of attack is that some of the descriptions of what's being discussed are inaccurate. Well that's funny since a big part of the problem is that we're not even being shown what's being discussed. So, yes, as we've been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don't want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say "oh, that's no different than what we have already." Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what's happening in South Korea now, since that's what the new agreement is supposedly "modeled" on. And, it's not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they're barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That's not the sort of world most of us want to live in.

Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are "a part of the process." That doesn't take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on "very short notice" in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy -- but the process included NDAs that prevent much discussion about what was seen. That's not serious involvement.

Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it's having its best year ever). But the most ridiculous is this:

"Outcries on the lack of transparency in the ACTA negotiations are distraction."

Yes, that's right, making sure that the public knows what the hell its government is signing up for is a "distraction." Could the MPAA's lawyers be any more obvious in brushing off the concerns of the public than by calling it "a distraction." To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn't matter. As Jamie Love notes, "transparency isn't a 'distraction.' it is an obligation of governments, to those it wants to govern."

So, yes, perhaps some of the discussion has suggested things that will go beyond what's actually in the document, but it's hilarious to see industry lawyers suggest that those concerned about our rights are "creating a moral panic" when the only reason there's concern at all is because the public is not even allowed to see what's being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA's letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.

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Filed Under: acta, copyright, counterfeiting, lobbyists, secrecy
Companies: mpaa

31 Comments

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Anonymous Coward, 20 Nov 2009 @ 9:55am

"One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way."

Which is exactly what's wrong with our governments. It's NORMAL for them to serve private interests a public expense and to hide important information that the public ought to know from the public.
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Anon, 20 Nov 2009 @ 10:19am

I thought it was always normal to negotiate treaties in secret so that the opposing parties can't leverage domestic pressures to use against our own negotiators. I could be wrong though.
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Hephaestus (profile), 20 Nov 2009 @ 10:23am

Well
Actually we do know some of what is going into ACTA .... what scares me is how similar to what is currently being proposed in the UK's Digital Economy Bill .... that is being proposed by Mandelson
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Anonymous Coward, 20 Nov 2009 @ 10:28am

Re:
It's not a treaty though. It's an Executive Decision.
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Anonymous Coward, 20 Nov 2009 @ 10:31am

Re:
It's also not even about counterfeiting, for which there are laws already on the books, but it seems to me all about copyright.

They should have called it PCEDA, or Pro-Copyright Executive Decision Act.
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James Love (profile), 20 Nov 2009 @ 10:57am

Secrecy of trade negotiations
There are some "trade" liberalization negotiations where keeping proposals secret have been justified on the grounds that this is the only way to deal with interest groups that benefit from protectionism. You can argue whether or not antidemocratic measures are justified in such cases. But the ACTA has nothing to do with trade liberalization. It is an IPR enforcement agreement, involving global norms for 38 or so countries. I don't think the antidemocratic model works well in this context.
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Anonymous Coward, 20 Nov 2009 @ 11:13am

To me this just screams anti-trust and no one cares. God forbid M$ bundles IE in their OS though.
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Copycense, 20 Nov 2009 @ 11:20am

Foreign Affairs as the New Copyright Law
Concededly, this is a shameless plug, but we think it's important for people to have some background and context for ACTA, and how we've gotten here.

Typically, it is easy for many to blame Congress for the skew contemporary U.S. copyright law takes. As we see it, the main problem with ACTA (and other trade agreements) is that Congress is not even in the picture: instead, this sort of thing is intellectual property policy-making exclusively by fiat, as determined by the executive branch. (The U.S. Trade Representative is a Cabinet-level position.)

We covered several aspects of this issue earlier this year in a three-part series:

Part 1 [ http://bit.ly/fOjpq ] talks about "harmonization" of copyright law, the role of the U.S. Trade Representative, and the end-run around Congress.

Part 2 [ http://bit.ly/BCxCq ] discusses the annual Special 301 process that occurs each spring, including "piracy" calculations. The Special 301 report conclusions are part of the evidence USTR uses to justify ACTA as a response to "piracy."

Part 3 [ http://bit.ly/6hdXeJ ] probes the connection between copyright lobbyists and members of Congress from California, and the connection between Hollywood and Congress on IP legislation.
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william (profile), 20 Nov 2009 @ 12:20pm

to be honest, the whole ACTA thing just leaves me with feelings of defeat.

Limited number of people KNOWS something the general public doesn't know. However, we are SO POWERLESS to stop them. The general public is either apathetic or ignorant. They don't give a damn! Most of them won't realize that the army is coming until someone busted their doors and pointed a gun on their head.

It's nice to see we are fighting back and those involved in ACTA is fighting back, but they are all JUST TALKS.

That hideous thing is still going on as we fight a stupid flame war on paper/blog/Internet. No matter what we said, no matter what we do, they are still full steam ahead.

Does people have to start pouring gasoline on themselves and burn in front of the white house before anyone gives a damn on what we say?
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Anonymous Coward, 20 Nov 2009 @ 12:22pm

Re:
Yeah I never understood why this was a problem. If you already have IE on the computer doesn't that make it easier for the average home user to access the internet and then decide for themselves if they want to change to another browser? Good luck finding different browsers on the internet without a browser to start with.
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Chargone (profile), 20 Nov 2009 @ 12:45pm

Re:
I'm pretty sure it'd be more useful to pour the gasoline on the whitehouse. setting Yourself on fire just makes you look like an idiot and/or attention whore, and if you screw up, you're dead.

still probably not terribly productive though.

this, like many of life's problems, could be solved by the proper application of explosives.

[wonder if this sort of comment gets me on watchlists anywhere interesting? *laughs*]
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Chargone (profile), 20 Nov 2009 @ 12:47pm

Re:
I'm pretty sure it'd be more useful to pour the gasoline on the whitehouse. setting Yourself on fire just makes you look like an idiot and/or attention whore, and if you screw up, you're dead.

still probably not terribly productive though.

this, like many of life's problems, could be solved by the proper application of explosives.

[wonder if this sort of comment gets me on watchlists anywhere interesting? *laughs*]
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zcat (profile), 20 Nov 2009 @ 12:50pm

Re: Re:
I never understood the problem either. They spend years arguing about something completely pointless, then eventaully do nothing about it. But they hardy mentioned MSFT's licence agreements that made sure no OEM would pre-install any OS but Windows, not even as a 'dual-boot' option.
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Nick Burns (profile), 20 Nov 2009 @ 1:09pm

Whatever happened to "a government of the people, by the people, for the people"?
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william (profile), 20 Nov 2009 @ 1:30pm

Re:
you believe that propaganda?

It was never like that, ever. Not capitalist government, not communist government, not conservatives nor liberals. Not jewish, not muslim, not christian, not buddist nor atheist. Not black, brown, yellow nor white.

The world has never run that way, ever.
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zellamayzao, 20 Nov 2009 @ 1:30pm

Re:
That quote was so people could have something to rally behind and feel like they could make a difference. That wishful thinking of a government went out the window when people started handing over their ability to think for themselves and just accepted that the government has their best interest at heart and we dont really need to hold them accountable.
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Anonymous Coward, 20 Nov 2009 @ 1:33pm

Re:
The people are too busy looking for work.
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Jason, 20 Nov 2009 @ 1:56pm

Re:
It perished.....
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Anonymous Coward, 20 Nov 2009 @ 2:45pm

Re:
I thought it was always normal to negotiate treaties in secret so that the opposing parties can't leverage domestic pressures to use against our own negotiators. I could be wrong though.

"Domestic pressures", otherwise know as "the people", are *supposed* to influence, even control, the government in a democracy. The entertainment industry is trying to utterly destroy democracy. It's time for patriots that believe in democracy to personally take swift and effective action against the responsible individuals.
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Anonymous Coward, 20 Nov 2009 @ 2:49pm

Re: Re:
p.s.
In legal ways only, of course.
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Phil, 20 Nov 2009 @ 6:45pm

Re:
The authors of this blog and those who leave comments have many complaints about both corporations and governments. In particular, people here are unhappy about the modification of laws in order to restrict rights and freedoms for the benefit of a few special interests.
The rationale for these laws is mostly based on a blind faith in the good intentions of corporations, but no evidence based data that shows that the economy as a whole will benefit.
What I've been wondering is why there only seems to be hand-wringing at Techdirt, but not much discussion of action to influence government.
The IP lobby is well represented on the appointment calendars and the in-boxes of our elected representatives of every political stripe.
How can those who oppose the IP lobby expect better outcomes from government if they are not prepared to do the same?
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Anonymous Coward, 20 Nov 2009 @ 9:16pm

Re: Re:
Our Constitution vests approval of treaties with the Senate. I have no doubt it will be thoroughly vetted in committees before it is ever referred to the entire Senate. It is fair to say that during the vetting process persons from both sides of the aisle will be given an opportunity to state their views in detail. As much horsepower as the content industries are able to muster via their lobbying efforts, clearly the other side of the story will be presented and argued effectively.
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Anonymous Coward, 20 Nov 2009 @ 10:22pm

Re: Re: Re:
I have no doubt it will be thoroughly vetted in committees before it is ever referred to the entire Senate. It is fair to say that during the vetting process persons from both sides of the aisle will be given an opportunity to state their views in detail.

Um, no. That's not the way committees work; the public isn't invited to participate in the committee deliberation process. It's more likely this thing will be rubber-stamped in committee and then slipped in for a midnight vote when few are watching.
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Kevin Carson, 20 Nov 2009 @ 11:26pm

If by "normal" they mean...
...that it's normal for the cockroaches to prefer keeping the kitchen light turned off, then I agree.
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Fred McTaker (profile), 21 Nov 2009 @ 1:31pm

Re:
"I thought it was always normal to negotiate treaties in secret so that the opposing parties can't leverage domestic pressures to use against our own negotiators."

If that is the case, why are they allowing "domestic pressures" from the *IAAs and content Unions??? Allowing pressure only from those with a money interest isn't Democracy, it's Oligarchy.
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Fred McTaker (profile), 21 Nov 2009 @ 1:42pm

Re:
In the U.S. originating documents, words like "people", "man", and "mankind" were short-hand for rich land owning white men. They were usually also slave-holders, though that was not required. They were expansive enough to allow rich white male owners of smaller lands without slaves too, though they were in the minority. Widows only counted in that they were married to a rich land owning white man once. Nobody else counted at all. So if you do the proper substitution, to translate to modern terms, it would look more like this:

A government of the rich white dudes, by rich white dudes, for rich white dudes. Everyone else can make me a sammich!

That last bit is obviously not part of the original text, but it's added to clarify "founders intentions."
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Ed, 23 Nov 2009 @ 6:47am

It is hard to convince people of the threat.
In trying to convince people that copyright is out of hand, I have managed to merely convince them that I am an alarmist. I have heard things like:

They couldn't pass such a treaty. They wouldn't do that.

They can't block me from the internet, I'll use the library.
(This past weekend)

There is nothing to that, the news (read BIG CONTENT) isn't even mentioning it.

Well, that is the Europe, not America, they couldn't do that here.

And the really big one.

I don't pirate, so why should I care.

The last one to say that, has two teen sons with computers...... Think about it.

All I can say is, the Max Headroom writers where really prophetic. Just wait until TV off switches are illegal.
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Reader in MN, 23 Nov 2009 @ 12:38pm

Re: Re:
Rhil,
You are right on the money! "...only seems to be hand-wringing at Techdirt, but not much discussion of action to influence government." I guess the Obama Nation is where we all want to live, where "hope" is considered a strategy.
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Reader in SC, 25 Nov 2009 @ 4:41am

I threw up in my mouth
when I read the MPAA's letter linked above and saw it was written by Dan Glickman.

These industry losers make me sick.
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Justin H, 4 Jan 2010 @ 7:44pm

Honesly, I don't care about ACTA nor the internet anymore. With the exception of a very few people, nobody cares about how they will lose their internet connection because of the anti-counterfeit agreement, so why should I? I spend too much time on the internet, so to have my internet cut off will be a good thing for me.
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vidoco, 6 Feb 2012 @ 4:04am

ACTA and stop the democracy
the U.S whant to control the people of the planet, the political class whant to put under control all the people , but they are the stuppid people on the Earth
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