Despite widespread demands from politicians around the globe, combined with promises from the USTR to be more open and transparent (despite unsubstantiated and totally ridiculous claims that countries would leave the negotiations if details were made public) and even entertainment industry lobbyists admitting that the process could be more transparent, ACTA negotiations are continuing in a veil of total secrecy to the public (unless you're a big industry lobbyist -- then it's open). The latest meetings in Mexico were again held in total secrecy, where public concerns were mocked, but appear to have continued to move the negotiations forward with claims coming out that the document is in "final drafting stages."
Yes, without any transparency or participation allowed from those who it would impact most: the public.
How is it that any government is willing to participate in such a process? It's a massive travesty. The details that have been revealed suggest that this is a sneaky way to significantly impact copyright laws around the world, greatly in favor of a few industries that have been unwilling to adapt to a changing marketplace. This is protectionism at its worst. At the same time that US politicians are slamming China for its internet restrictions, ACTA seeks to place the same type of limitations on ISPs around the world that the Chinese government places on its ISPs, all done through a secret process with no public input -- even from many elected officials who are greatly concerned about both the content of the agreement as well as the way in which it has been drafted.
That the US government is orchestrating the whole thing at the behest of the MPAA and the RIAA, among others, is a disgusting display of industry influence in government policy. The administration should be massively ashamed of itself for not just participating in such a travesty, but in many ways leading the way and providing cover for the bogus claims of industry representatives and lobbyists that this is a minor trade harmonization issue, rather than a significant change in policy and an attempt to route around existing venues (that are willing to listen to the public and consumer concerns) in order to push through these changes on a widespread level.
We were just discussing the vast similarities between China's internet censorship and what is being proposed in ACTA -- but, of course, not everyone seems to realize those similarities.
Nick Dynice points us to the news that Rep. Howard Berman (who represents Hollywood and is sometimes referred to as "the Representative from Disney" given his longstanding support for any law that increases the scope of copyright law) is apparently speaking out against "repressive internet regimes" such as those in China, while at the very same time being a strong supporter of ACTA which could push for very similar "secondary liability" rules for ISPs in the US that are the foundation of Chinese internet censorship.
So, apparently, using secondary liability to stop stuff Berman wants stopped is good, but using it to stop stuff Berman doesn't want stopped is bad. But why is it that Howard Berman gets to decide when it's appropriate to force ISPs to block content and when it's not?
Geraldine Juarez writes in to let us know of her experience attending what was billed as a "public hearing" about the ACTA treaty in Mexico (link in Spanish, Google translation here), which sounded really messed up. First, despite it being a public hearing, originally those putting on the event wanted attendees to sign nondisclosure agreements. After pushing back on this, they finally agreed to remove that requirement, but there was a lot of confusion about it and it may have kept people with serious questions about ACTA from attending. The room, then, was mostly industry people, who were apparently concerned as to why everyday citizens were in attendance, and they even booed a lawyer who questioned the human rights angle. As for Geraldine, she tried twittering the event, and the industry folks demanded she leave (and had a guard escort her out). It's almost like they're trying to make themselves into a caricature of businesses plotting to harm the public. When others asked where the actual ACTA discussions in Mexico would be held, they were told that was "confidential." It appears that the public is certainly not welcome.
While there have been more and more calls for transparency on ACTA negotiations, it seems that even government officials are being stymied. Some UK Parliament Members have asked for the details and are being told they cannot see the document because mysterious, nameless "others" require it to be kept secret. Of course, if you're an industry lobbyist, it's not hard to see the document. But, if your job is to represent the people? Get in line. You'll see it once it's been signed, sealed and delivered.
Let's take a step back to explain this. We've discussed, in the past, that the way China operates its "Great Firewall" is not by explicitly banning anything. Instead, it simply puts liability on third parties such as ISPs and says they'll take the blame and face the consequences for any "bad stuff" that is allowed through to Chinese users. As MacKinnon notes, this is really "intermediary liability," or (obviously enough) putting the liability for actions on an intermediary to force them to try to curb the behavior of end users. In this way, the Chinese government can claim that it doesn't censor the internet and there's no such thing as a "Great Firewall," because it doesn't exist as a single thing. It's just that the government will punish ISPs who don't block "bad stuff."
But this "intermediary liability" is a big deal, because under any common sense approach to things, you should never blame an third party/intermediary for the actions of end users. And yet, that's exactly what the entertainment industry has been pushing. One of the key components being pushed for the internet section of ACTA is the idea of expanding "secondary liability" or "contributory copyright infringement" or whatever they want to call it. In reality, it's the same intermediary liability that China uses to have ISPs censor content. The idea is that if you put the liability for file sharing on ISPs, then they will be forced to figure out ways to stop it -- just like ISPs in China are forced to create their own censorship campaigns.
And, of course, this isn't even hypothetical. We've got some real world examples. That's because much of the early language in ACTA was modeled on the "free trade" agreement that the US pressured South Korea into signing. That included such intermediary liability for ISPs when it came to copyright infringement, and guess what happened? First, the country felt it needed to start kicking people off the internet based on a "three strikes" plan, just to satisfy the treaty. Then service providers quickly started banning all sorts of activities, including any music uploads and many video uploads. After all, it's not worth it for the service providers to be liable, so they block the ability to upload all sorts of content. And, of course, with such liability there, others went even further, with some service providers even banning advertisements for any kind of website that could allow copyright infringement, because of the fear that, via such intermediary liability, they may get blamed just for allowing an advertisement that pointed to a site that could be used for copyright infringement.
When you look at the details, it's incredibly similar to the way in which China crafted its Great Firewall. Impose such secondary liability that puts the responsibility on a third party, and and watch those third parties basically lock down all sorts of additional things, just to be safe. Of course, the old school entertainment industry doesn't mind, because preventing you from communicating isn't their problem. They don't see the internet as a communications platform anyway. They're hoping it's the next broadcast medium, and clearing the decks via a Great Firewall an intermediary liability system works right into those plans. The more you look at the details, the more it looks like the entertainment industry is doing everything possible to encircle the internet to make it appear more like a broadcast entertainment medium, rather than a communications medium.
There's been a lot of back and forth talk about ACTA and all the secrecy behind the negotiations on it. But what's really happening behind the scenes? Some experts are pointing out that it's a very profound shift in US policy -- but done in a way that most people wouldn't notice unless they've spent a lot of time understanding how DC politics works. Basically, the entertainment industry is driving through massive changes behind the scenes, and doing so in a way that lets them (falsely) say to the public "this really doesn't change anything."
Yesterday I attended a fascinating panel discussion about ACTA, hosted by Google at its Washington DC offices, as a lead-in to today's World Fair Use Day event. The four participants each brought a different perspective to the panel, though only one, Steve Metalitz, a lawyer who represents a coalition of entertainment industry interests, was there to defend ACTA. Jamie Love of KEI was his main sparring partner, though Jonathan Band (a lawyer representing various tech and library organizations) made plenty of insightful points as well. The final participant was a legislative staffer from Rep. Zoe Lofgren's office, Ryan Clough, who tiptoed the line of expressing some concern about ACTA, without fully coming out against it.
The National Journal's Tech Daily Dose has a short summary of the event, but there were a lot more interesting things going on in the discussions -- which got pretty heated at times. Metalitz began with the usual talking points from the entertainment industry on ACTA: (1) "copyright industries" represent a huge part of the economy and (2) piracy is a huge problem -- thus, ACTA is important. Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics), and it was nice to see Clough counter Metalitz' numbers by pointing out that using the same counting methodology as the entertainment industry used to claim how "big" the copyright industry was, the size of industries that rely on exceptions to copyright law -- like fair use -- are even bigger. Love also countered Metalitz' one-sided claim of "economic harm" from infringing by pointing out that almost every "infringement" could be seen as an economic benefit in some area as well -- and discussed how research into medical cures -- that was almost certainly infringing -- was saving lives and how infringing on content for the purpose of teaching was making a smarter society.
But where the debate got really interesting, and dug in well beneath the talking points, was when Love and Band (with an occasional hand from Clough) read between the lines to explain how these things tend to work, and what's really going on, including the careful language choices by supporters of ACTA, such as Metalitz. They basically pulled back the curtains on the talking points and what happens in the backrooms during these types of negotiations. Amusingly, many on the panel had seen parts of some of the ACTA documents (briefly), but couldn't talk about them since they had signed an NDA. Band, in particular, kept noting that his comments were not based on the document he signed an NDA over, since he couldn't comment on that, but on a "leaked" copy that hit the internet. As Love and Band pointed out, the fact that they could only discuss the leaked content rather than what had actually been seen only served to highlight the ridiculousness of the process.
The key point, raised by both Love and Band, is that there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties (including consumer rights people). As an example, Love pointed out that at the most recent WIPO meetings about IP issues, folks from EFF and Public Knowledge participated along with the big copyright interests -- and he noted that as the discussion has become a more open and real conversation (rather than backroom dealing), the folks involved in WIPO and TRIPS are finally paying attention to the real impact of expansive copyright policy. Not only that, but the public has been able to speak up, and what's being said online and elsewhere by people concerned about these issues is being heard within these organizations. But, of course, the copyright folks don't like that.
On top of that, Band pointed out, within TRIPS and WIPO there are numerous developing countries who are recognizing -- correctly -- that strict IP enforcement is designed solely to benefit a small group of companies in developed nations at the expense of the people in developing nations. Thus, they're starting to push back on IP expansion. Combine all that, and you get ACTA -- an entirely new forum to take on these issues, which (conveniently) only includes developed nations and leaves out the developing nations who had become so pesky. Metalitz pulled out the "but this won't really change US law" gambit, to which Band pointed out that the real goal here was never to make huge changes to US law, but to eventually force all those developing nations to go along. Basically, you get the developed nations to agree to ACTA, written by the big copyright players, and then you start putting pressure on developing nations about how they need to conform to ACTA as well to join the club.
Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret. Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts. Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements. And then, on top of that, the copyright industry put in dispute resolution concepts that greatly help it, not consumers. Effectively, it's a way to claim that nothing changes -- since it took the parts that favor the industry folks, but leaves out the protections and potentially aspects of the safe harbors.
Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. In fact, one of the "talking points" from the entertainment industry is that this is just an "executive agreement" rather than a "trade agreement" (which would require congressional approval). But why shove copyright into what's officially a "counterfeiting" agreement? Because "counterfeiting" is one of those words that no one wants to be in favor of. No politicians will speak out against a treaty supposedly designed to stop "counterfeiting" since people intuitively believe that counterfeiting is bad. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are. He notes, tragically, that the only politicians who have spoken out against ACTA have spoken out about the transparency issue -- but not about the substance of what's being negotiated.
Furthermore, Band pointed out another neat trick used by the entertainment industry with ACTA. Because they can pretend it's not really an intellectual property agreement, but a "trade agreement," they can compare it to other trade agreements that were also negotiated in secrecy. But, as Band notes, this isn't really a trade agreement. There may be good reasons for certain aspects of trade agreements to be negotiated in secrecy, as it actually could involve national secrets. But a multilateral negotiation on IP policy is not a trade negotiation and involves no state secrets. The only other reason to call it that is to pretend that the level of "secrecy" is normal, despite it being a totally different type of negotiation.
Again, discussing the idea that ACTA wouldn't "change" laws very much, a lawyer in the audience pointed out how incorrect that statement was, and noted how none of the countries negotiating had clear laws on secondary copyright liability to the level required by the leaked ACTA documents -- and that even in the US secondary liability was far from settled law (and, in fact, aspects of it were disputed in various courts). But by mandating such secondary liability (things like an "inducement" standard for copyright infringement), it would mandate that countries go much further than they have already, sometimes in massive ways.
Metalitz, once again, didn't seem to think this is a problem -- misstating the meaning of the Grokster rulings (and the IsoHunt ruling) way beyond what the court intended -- and suggesting that other countries had a moral imperative to put in place similar laws. Not surprisingly, he singled out Canada -- despite Canada's strong copyright laws -- insisting that ACTA "might finally drag them into the 21st century." By putting in place more draconian 19th century monopoly rules designed to prop up one industry? No thanks.
All in all, it was an entertaining and enlightening talk. Mostly it was professional, though Metalitz regularly resorted to bizarre personal attacks and sarcastic digs at everyone else. He insisted that those who were complaining about secrecy "just don't want any agreement at all." He mocked Love for claiming that earlier treaties were more open by saying that the anti-circumvention clauses came out of "one of those super open treaties that Jamie likes so much," and most obnoxiously of all, when Love asked why the industry and the US government couldn't be more open on these things, Metalitz shot back that the US could absolutely be more open, "if it felt Jamie's concerns were more important than progressing on an agreement." This suggests that no agreement could be reached if the US government were honest about it. That statement alone should be pretty telling. There was also a really telling Freudian slip at one point by Metalitz, though he didn't realize it, and I don't think most people noticed. In trying to explain why ACTA negotiations made sense, he insisted that because ACTA would benefit some industries deeply, it made sense for countries to meet about it. Notice that he switched from talking about industry at the beginning of the sentence to countries at the end. To him, it's all the same. ACTA is really protectionism for a particular industry. The negotiations are effectively collusion, but perpetrated by gov't officials acting as proxies for industry.
I definitely learned a lot at the session, but came out of it more afraid of ACTA than when I went in. But I certainly have a much better understanding of how ridiculous and misleading the entertainment industry's talking points are on this discussion -- and hopefully you do too.
I used to read stuff like this and get upset. But then I realized that my entire generation knows it's baloney. They can't explain it intellectually. They have no real understanding of the subtleties of the law, or arguments about artists' rights or any of that. All they really understand is there are large corporations charging private citizens tens, if not hundreds of thousands of dollars, for downloading a few songs here and there. And it's intuitively obvious that it can't possibly be worth that.
An entire generation has disregarded copyright law. It doesn't matter whether copyright is useful or not anymore. They could release attack dogs and black helicopters and it wouldn't really change people's attitudes. It won't matter how many websites they shut down or how many lives they ruin, they've already lost the culture war because they pushed too hard and alienated people wholesale. The only thing these corporations can do now is shift the costs to the government and other corporations under color of law in a desperate bid for relevance. And that's exactly what they're doing.
What does this mean for the average person? It means that we google and float around to an ever-changing landscape of sites. We communicate by word of mouth via e-mail, instant messaging, and social networking sites where the latest fix of free movies, music, and games are. If you don't make enough money to participate in the artificial marketplace of entertainment goods -- you don't exclude yourself from it, you go to the grey market instead. All the technological, legal, and philosophical barriers in the world amount to nothing. There is a small core of people that understand the implications of what these interests are doing and continually search for ways to liberate their goods and services for "sale" on the grey market. It is (economically and politically) identical to the Prohibition except that instead of smuggling liquor we are smuggling digital files.
Billions have been spent combating a singularily simple idea that was spawned thirty years ago by a bunch of socially-inept disaffected teenagers working out of their garages: Information wants to be free. Except information has no wants -- it's the people who want to be free. And while we can change attitudes about smoking with aggressive media campaigns, or convince them to cast their votes for a certain candidate, selling people on goods and services they don't really need, what we cannot change is the foundations upon which a generation has built a new society out of.
But, still, they will try, and the way they try to do it is in backrooms and convincing governments that they must be right, and increased protectionism really is better for everyone -- even though it's really only better for a select group of middlemen.
Later on, she discusses how we've reached a "copyright bubble":
Copyright won't end anytime soon, but I'm suggesting we look at the fundamentals here: it is an artificial construct within the digital environment. It's something we built extraneous to it, and in fact, is antagonistic to it. The exchange of information is fundamental to the existence of the internet. Copyright is not. Copyright is an institution, like marriage, the church, the government, etc. Like those things, it has a maintenance cost. It is a coping mechanism. That's not a judgment on its sustainability nor its justification for existence (or lack thereof).
Copyright is an institution and like all social institutions remain in existence only for as long as its members continue to support it. There is a substantial and growing number of digital identities (people, organizations, projects, etc.) that exist outside of that institution. Why? Because information is very, very cheap to replicate. Production of that information however can vary in cost. Everybody agrees that there must be some compensatory mechanism, however artificial, to reimburse people for the effort invested in the production of the goods and services that copyright protects. If there is no protection at all, many staples of modern life cease to exist. This is the loci of why copyright exists.
The cost to society now outweighs the benefits and we exist within a market bubble right now: A copyright bubble. Large corporations and governments alike have bought into it and driven up its cost. Like any market-driven force however, it will eventually return to equilibrium. We had the dot com bubble, and the housing bubble, but that's nothing compared to what's going on right now -- we lost billions when that one burst. We stand to lose trillions when this one does. And, ironically, it will be burst by the very forces that businesses are embracing right now -- labor capital in the third world.
Well-written and thought-provoking. While not all that different than similar pieces we've discussed in the past, it does present it in a very clear manner that makes it worth reading in its entirety.
Late last year, we noted that Senator Bernie Sanders had questioned why ACTA negotiations were being kept secret well beyond normal -- even to the point of being classified as a state secret. The USTR gave the usual non-answer in response, and it appears that other Senators are beginning to worry about this as well. Senator Ron Wyden is now demanding that the USTR confirm or deny the various leaks about ACTA that have raised so many concerns.
Wyden also pointed out that "objectives behind the negotiations still remain inadequately clear to the American public." I actually don't know that this is true. The objectives seem abundantly clear from what's been leaked: to put up artificial barriers to help prop up an industry unwilling to adapt to changing times. The letter itself (pdf) includes 11 questions for the USTR including asking for assurances that ACTA would neither force changes on US IP laws nor would it constrain Congress from adjusting such laws in the future.
"More broadly with respect to ACTA the UK considers that transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe the lack of transparency is unhelpful and do not believe that it is in the public interest."
Of course, the folks pushing for ACTA have no concern, at all, about "the public interest." Their only concern, all along, has been about further protecting their business models. The public interest might go against that, hence their opposition to such transparency.
As a bunch of countries and lobbyists continue to debate ACTA in secret, it's interesting to compare that to an ongoing effort by Christian Engstrom, one of two Pirate Party representatives in the European Parliament, to create an Internet Bill of Rights by asking people what they want. Which one sounds more like government for the people, by the people?
