[A2k] Reading Between The Still Secret Lines Of The ACTA Negotiations | Techdirt

[Manon Ress]

http://www.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 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
***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673

Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer. (Pens=E9es, essais, maximes et correspondance de J.
Joubert  p.249)
Translation: It is better to debate a question without settling it
than to settle a question without debating it