Why Would Countries Leave ACTA Negotiations If Text Was Public?

from the how-does-that-make-sense? dept

KEI's James Love ended up on an airplane with USTR Ron Kirk, and was able to ask him some questions about ACTA secrecy. Kirk's response was that the document would be revealed after it was finished -- i.e., after those who it will impact most could have a say in the matter. He also claimed that some of those in the negotiations would "walk away from the table" if the documents were made public. It's difficult to see how that makes any sense -- but if it's true, is that a bad thing? Do you really want to be negotiating a big treaty like this one if some of the countries are afraid to stand behind the document to the public they're supposed to represent? I think the fact that some countries would walk away from the negotiations if they were made public pretty much explains why this process is so broken in the first place.

Filed Under: acta, copyright, negotiations, ron kirk, secrecy

More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:

These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

Funny How Those In Favor Of ACTA Are Against Treaty Providing More Access To Content For Vision Impaired

from the must-strengthen-copyright-at-all-costs dept

It seems pretty bizarre that companies and industry organizations would be against helping those with reading disabilities or vision impairment -- but that's exactly what you get in the discussion over creating some loopholes in copyright law to make it easier to reformat content to help those who would have difficulties reading it otherwise. Their concern, of course, is anything that can be seen as weakening copyright law. As we've noted in the past, there's never really been any weakening of copyright law... ever. The only exception I can think of is when the US officially established that government documents could not be covered by copyright. But every other change has only strengthened it -- so perhaps it's no surprise that the usual suspects, including the MPAA and the RIAA are upset about this, claiming that this WIPO treaty on this subject would "begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms."

Now, that's funny, because you could pretty much say that ACTA is doing the same thing... and yet these same groups are strongly in favor of ACTA, which would also be at odds with existing, longstanding and well-settled norms." Funny how their view changes completely when discussing treaties that would beef up copyright law vs. those that would create important and useful loopholes in it.

Filed Under: acta, copyright, treaties, vision impaired

Senators Begin Questioning ACTA Secrecy

from the this-ain't-the-transparency-we-were-promised dept

Despite some sweet talk from Hollywood about how important ACTA and its secret negotiations are to America (and, once again, no, the secrecy is not at all "normal," as some industry lawyers would have you believe), it looks like some Senators are finally beginning to question how ACTA is being handled. Senators Bernie Sanders and Sherrod Brown have sent a letter to US Trade Rep Ron Kirk asking for ACTA documents to be made public. The letter points out that "the public has a right to monitor and express informed views on proposals of such magnitude" especially considering that "there are concerns about the impact of ACTA on the privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general." The letter also takes on the bogus claims of state secrets in protecting ACTA documents:

We are surprised and unpersuaded by assertions that disclosures of basic information about the negotiation would present a risk to the national security of the United States, particularly as regards documents that are shared with all countries in the negotiations, and with dozens of representatives of large corporations. We are concerned that the secrecy of such information reflects a desire to avoid potential criticism of substantive provisions in ACTA by the public, the group who will be most affected by the agreement. Such secrecy has already undermined public confidence in the ACTA process.... We firmly believe that the public has a right to know the contents of the proposals being considered under ACTA, just as they have the right to read the text of bills pending before Congress."

Unfortunately, these are just two Senators. Supporters of ACTA likely have many more who will blindly fight to keep ACTA secret and get it approved with little or no substantive input from those it will impact most.

Filed Under: acta, bernie sanders, secrecey, senate, sherrod brown

Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

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

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

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.

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

More ACTA Details Leak: It's An Entertainment Industry Wishlist

from the no-wonder-they-kept-it-secret dept

The latest round of "negotiations" over the ACTA treaty continue in secret due to as yet unexplained national security reasons (despite the fact that the entertainment industry lobbyists have had full access to the document) are kicking off in Korea. Once again is becoming clear that the claims by US trade reps that ACTA did not represent any kind of major change in copyright law, and thus didn't require public scrutiny, are nothing more than a myth. Despite ridiculous efforts to keep the document secret (some countries were given only physical, watermarked, copies of the latest drafts), some of the details are leaking out and it's not pretty at all.

The plan is modeled on the ridiculously misnamed "free trade agreement" between the US and South Korea from a few years back. It's misnamed because it wasn't about free trade at all, but massive protectionism for the American entertainment industry. The end results haven't been pretty. The treaty pushed South Korea to implement new copyright laws that are perhaps the most draconian around, getting the country to be the first to kick people off the internet based on accusations of file sharing, and putting so much liability on third parties that various user-generated content services have had to turn off the ability to upload all sorts of content (no videos on YouTube, no music on blogs) and has resulted in ISPs even banning any kind of advertising that might make them liable for copyright infringement.

It's Hollywood's dream. It would require signing countries to implement a more draconian version of the DMCA, including incredibly restrictive anti-circumvention wording that has no exception for fair use. It would put liability on third parties for the actions of their users (in other words, it wouldn't include current DMCA-style safe harbors). It would create incentives to kick people off of the internet for file sharing. This is not about free trade at all. This is an entertainment industry-written bill designed to recreate the internet in its image -- as a broadcasting platform, rather than one used for user-generated content and communication.

This isn't about free trade. This isn't about "anti-counterfeiting." This is the "Protect the American Entertainment Industry" treaty.

And, of course, it's not even close to necessary. As happy as the entertainment industry is about what's been happening in South Korea lately, before these laws passed, the industry there (though, not the local subsidiaries of stodgy American entertainment firms) were adapting in amazing and fascinating ways, that didn't require new laws, but embraced what was actually happening. Yet, because the American record labels and movie studios don't want to change with the times, they're pushing through these laws, outside the judiciary process, sneaking it through via a secretive international treaty they had a hand in writing.

There is simply no reason for ACTA, at all. It is nothing but an attempt by the entertainment industry to put massive restrictions on the internet, place liability on lots of third parties, and do nothing to push themselves to adapt to a changing marketplace with new business models.

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

ACTA Negotiations Back On... White House Shows Small Group Proposed Text Under NDA

from the but-what-about-the-public dept

With the next round of negotiations on the ACTA treaty -- which may require the US and other countries to make significant changes to copyright law that favor the entertainment industry -- set to get underway, the White House still refuses to release details to the public, but did show the text to 42 Washington "insiders" under NDA. The good news is that the list includes a fair number of folks who recognize the problems with copyright law and the ACTA proposal -- including people like Gigi Sohn, William Patry, Sherwin Siy, David Sohn and Michael Petricone. Many of those people will push for the public's best interests. But, still, it's a bit troubling that the whole conversation remains secret for "national security" reasons. If we're talking about changing copyright laws that effect everyone, why not let everyone know? Sherwin Siy, from Public Knowledge, told KEI (in the link above) about his experience viewing the document, which sounded greatly limited, and notes that while the document has been adjusted, "the most troubling aspects" have not been "resolved."

In the meantime, it's worth asking why this is necessary again. First of all, in a world where trade agreements are supposed to be about breaking down trade barriers, ACTA seems designed to be putting up protectionist policies. Protectionism doesn't work and only creates more harm. But, much more importantly, much of the push for ACTA is based on lobbyists' claims of the "harm" done by counterfeiting. Except both the GAO and the OECD have put out independent reports showing that counterfeiting isn't that big a problem, and that whatever problems there are seem to be significantly exaggerated by lobbyists. Yes, those same lobbyists who were given much earlier access to the document and, records suggest, had a hand in shaping the document itself. So why do we need ACTA again? And why are we allowing those who the government has already found to have exaggerated the problem drive the negotiations?

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

USTR: We Can't Be Open About ACTA Because We Promised We Wouldn't Be (*Lobbyists Not Included)

from the missing-the-point dept

The US Trade Rep apparently has a thing on their website called "ask the ambassador" and Robin alerts us that recently a "James from Virginia" asked a rather important question:

"If the United States government gives all other governments in the ACTA negotiation a copy of a text, what is the rationale for keeping this a secret from the American public? Why would a negotiation at ACTA be less transparent than negotiations at World Intellectual Property Organization (WIPO) or the World Trade Organization (WTO)?"

The USTR's answer is really a convenient non-answer. It basically says that it can't reveal the details because everybody promised not to do so. Of course, that doesn't explain why so many lobbyists have such detailed access to the info, and why other countries have revealed the details of the negotiations. The answer that "this is how we do things" isn't particularly reassuring when corporations and diplomats are basically negotiating basic civil rights.

Filed Under: acta, transparency, ustr

Once Again, Entertainment Industry Looks To Force Massive Copyright Changes Via Int'l Treaties

from the how-the-game-is-played dept

By now you should know that one of the entertainment industry's favorite tools for forcing ever more draconian copyright laws around the world is to use international treaties. Such treaties are not put together by elected officials, but appointed diplomats, often with tremendous input (to the point of allowing them to write the details) from industries that are protected. Then, once those treaties are in place, copyright maximalists just get to sit back and say "but we must make our copyright laws stronger if we ever expect to live up to our international obligations..." The latest such attempt is the infamous ACTA bill, which the entertainment industry has had a heavy hand in crafting -- but the public is told that the treaty negotiations are matters of national security and cannot be revealed. Uh huh.

Apparently, in a recent "Working Group" on intellectual property issues in Washington DC, one area of "concern" is Canadian copyright law -- because Canada appears to be one country where (thank you Michael Geist!) the public has been galvanized to speak up and explain that copyight law is a deal between the public and content creators, and the public shouldn't be ignored in the process. But, no worries. Apparently, one lobbyist said that perhaps the best way to deal with those rebellious Canadians thinking for themselves is just to use ACTA to force Canada to implement its own DMCA-like law, something that Canada has (thankfully) rejected in the past few years. So here we go again...

Filed Under: acta, canada, copyright, dmca, treaties