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Evil Hates the Light

Why do negotiations for a new anti-counterfeiting treaty need to be hidden from the public?

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Since late 2007 representatives of governments from the United States, the European Union, Japan, South Korea, Australia, Mexico, and Canada, among others, have been negotiating a treaty known as ACTA. The negotiations—the seventh round is scheduled for Mexico in January—are held in strict secrecy, and ACTA memos are physically watermarked to prevent leaks. Some Freedom of Information Act requests regarding ACTA—including one in January by the nonprofit group Knowledge Ecology International (KEI)—have been flat-out denied, and similar requests have produced papers so heavily redacted that blacked-out text runs almost edge to edge. The U.S. government has routinely invoked national security to explain its lack of transparency on the matter, but ACTA doesn't have anything to do with nuclear stockpiles or espionage or the war on terror—it's just a trade agreement. Of course, to judge by EU documents leaked last month, it's a trade agreement with the potential to transform global intellectual property law, effectively remove due process from the prosecution of online copyright infringement, and turn Internet service providers into spies for the entertainment industry—but still.

ACTA stands for Anti-Counterfeit Trade Agreement, and its advocates emphasize the treaty's broad application across multiple industries—no doubt because it's hard to find anybody who'll protest a crackdown on knockoff car parts, pharmaceuticals, or Louis Vuitton bags. But people who don't like the sketchy picture of ACTA that's emerged as documents have leaked see that as a smoke screen to distract the public from the serious ugliness of the treaty's Internet chapter. That's where it becomes clearest that ACTA is in part a way for the entertainment industry to shape international law to suit its desires, often at the expense of individual rights.

If rights holders get their way, ACTA would force Internet service providers to filter traffic and monitor their users' activities, compromising privacy. Some of the only praiseworthy provisions in the 1998 U.S. Digital Millennium Copyright Act (DMCA), which are supposed to allow the circumvention of digital rights management in cases covered by fair use, would be modified, stripping those exemptions, and made international in their reach. The full text of the treaty hasn't leaked and probably doesn't even exist yet, but what's already under consideration is apparently bad enough that Ambassador Ron Kirk—head of the Office of the United States Trade Representative, the U.S. negotiator for ACTA—told KEI director James Love early this month that some countries would be "walking away from the table" if details of the agreement were made public before it's finalized.

ACTA is being negotiated outside preexisting bodies like the World Trade Organization and the UN's World Intellectual Property Organization (WIPO), both of which have attracted widespread criticism for functioning as "policy laundering" venues, allowing industry groups to hide their fingerprints and circumvent the democratic processes of member nations. Though WIPO has already done a lot for Big Content—Title I of the DMCA was a WIPO treaty first—the agency's 184 member states include troublemakers like China and Russia, who are notorious for letting their citizens play fast and loose with IP law and who have held up negotiations on WIPO copyright treaties in the past. The ACTA process is immune not only to the input of ordinary citizens but also to potential obstructionist tactics from countries that aren't totally on board. They simply aren't invited to participate. Russia, China, India, and Brazil are all conspicuously absent.

"This is absolutely a rightsholder-driven agreement," writes Danny O'Brien, international outreach coordinator for the Electronic Freedom Foundation, a nonprofit group of activists and lawyers who fight what they see as attempts by government and business to curtail the freedom to exchange data. "Increasing powers for enforcement and widening traditional commercial piracy strategies to cope with Internet file sharing is a very traditional technique to take, and from what we know of ACTA, that's what is being proposed by all sides."

University of Ottawa law professor Michael Geist, whose blog at michaelgeist.ca has been a go-to spot for ACTA info, agrees. "I don't think there is any doubt that the agreement is being driven by entertainment lobbyists," he writes. "There is little support for ACTA among technology companies and even less within the public. Some lobby groups have openly admitted that they view the agreement as a mechanism to induce change in countries such as Canada," where IP laws are currently much less draconian than in, say, the United States.

By all accounts, the U.S. is driving the ACTA process. The only people who will benefit from ACTA's proposed changes to intellectual property law are intellectual property owners—which is pretty much how IP law already works in the States. In early 2008 the Recording Industry Association of America sent Kirk a letter containing suggestions for provisions to ACTA. Their wish list contains things like ensuring that courts have the power to issue civil ex parte search orders—which don't require the notification of the party being searched, and whose use has fallen out of favor with judges due to their potential for abuse. The RIAA doesn't even want the complaining party, presumably a rights holder, to have to specify exactly what needs to be seized. The RIAA has also suggested narrowing "safe harbor" rules to make Internet service providers secondarily responsible for illegal file sharing by their customers—provided that such a responsibility would not be "unduly burdensome."

ISPs and the RIAA aren't likely to agree on a definition of "unduly burdensome," however, and any scheme to monitor data lines for copyrighted material would require a significant investment. And since earlier efforts by ISPs to block or restrict specific traffic—like Comcast's attempt to squash BitTorrent traffic—have raised howls of protest from users, any data-sniffing provision would basically amount to a government mandate for customer ill will. And the passage of a "three strikes" rule—like the one approved in October by the French Constitutional Council—would cut into ISPs' bottom lines, since it would require them to cut people off from the Internet after three charges of infringement. (It's not clear what form such a rule would take in ACTA, but some proposed versions require no judicial review or even presentation of evidence.)

O'Brien says ISPs voicing concerns would be out-lobbied. "The problem is that there's far more groups who stand to gain and lose from blanket changes in global IP law than just the entertainment industry," he writes. But entertainment firms have "a disproportionate influence in these discussions because historically they've been the major figures in any negotiations about copyright. Individual net users, ISPs, even companies like Google or telcos, just don't have the historical access."

The thing is, even if ACTA were passed with the RIAA's wish list entirely intact, file sharing would most likely continue unabated. Geist writes that ACTA would have "very little impact," and O'Brien goes further: "Even the most specific proposal we've heard mooted—the widening adoption of France's 'three strikes and you're out' policy of terminating 'Net users after three accusations from rightsholders—would just shift what technology people use to give their friends copies of their favourite media."

Geist and O'Brien agree that what Big Content needs to survive isn't something like ACTA—it's new ideas. "File sharing is here to stay," writes Geist. "The challenge is finding ways to monetize common practices."

O'Brien argues that ACTA might end up doing damage to intellectual property profits. "YouTube, blog hosting companies, Facebook, any group of individual net users talking together aren't exclusively dens of evil infringers," he writes. "They're also the ways that artists and creators distribute, communicate about, and profit from their work. What ACTA is trying to do is to somehow make these intermediaries 'pay' for facilitating what the entertainment industry doesn't like. By doing that, they're actually standing in the way of real alternatives for how artists might make more money in the 21st century."

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