I came across this very interesting summary of a public discussion on
ACTA on Monday in Google's Washington DC office. Is this going down
the same road as WIPO and TRIPS?
Cheerio,
Bernhard
http://techdirt.com/articles/20100111/2149377710.shtml
Reading Between The Still Secret Lines Of The ACTA Negotiations
from the /the-politics-of-politics/ dept
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
<http://worldsfairuseday.org/Worlds_Fair_Use_Day/Worlds_Fair_Use_Day.html>
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
<http://techdailydose.nationaljournal.com/2010/01/critics-deride-acta-secrecy.php>,
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
<http://www.techdirt.com/articles/20091118/1002136992.shtml>. 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.
