ACTA, the “anti-counterfeiting trade agreement” is a treaty that is ostensibly to combat copyright, trademark and patent infringement – so-called “intellectual property” – on a global scale. The treaty is not finalized, but is being negotiated by representatives from 37 countries (including the United States of America) in clandestine proceedings that are touted as being secret for purposes of “national security.” The list of who is supposedly allowed to see the text of the treaty is interesting to say the least (monsanto?).
After repeated calls from the EFF (electronic frontier foundation) and others on the USTR (Office of the United States Trade Representative) and on the Obama Administration to uphold campaign promises about delivering transparency in government (see the section on “Conduct Regulatory Agency Business in Public”), finally, yesterday they released a document outlining what might be in the eventual treaty. They probably did this allay fears that the new laws that would be passed to uphold the American part of the bargain would be a draconian grab for power by media conglomerates and software giants, among others.
The introduction spreads some FUD (fear, uncertainty and doubt) about how important “intellectual property rights” are to the burgeoning global economy and how it is imperative that we protect it, as if it were some guy in a movie theater with a camera who caused the recent global economic collapse.
There’s a lot of rhetoric in the document about how this infringing activity “often involves organized criminal networks,” and how it is an “ever-increasing threat to the sustainable development of the world economy,” but of course no examples nor references are given.
The most chilling parts are in chapter 2, entitled “legal framework for enforcement of intellectual property rights.”
chapter 2, section 2: border measures
From my reading of the document, it seems that whenever you cross a national border, customs officials can take anything you have with you that’s capable of containing someone’s “intellectual property,” which of course includes your laptop. They can force you to unencrypt any data contained therein and then confiscate or destroy the laptop and or media they deem infringing of someone’s copyrights, trademarks or patents. And all of this can happen without the alleged “rights holder” being involved or even aware. In other words, now on top of customs agents having to determine whether someone is a potential terrorist and/or a drug smuggler, they now also have to determine whether you legitimately ripped a dvd you own to your laptop to watch it on your flight or if you illegally downloaded it. There is supposedly a de minimis exception, but again, it is up to a customs official to determine at the moment of border crossing whether this applies, and we doubt that the already overburdened customs agents are up to the task of navigating “intellectual property” law, since by the document’s own admission, these are “complex issues.”
chapter 2, section 3: criminal enforcement
Again in this section, it suggests that relevant authorities (a newly created set of copyright cops) should have the power to take it upon themselves to go looking for infringement instead of waiting for an actual complaint by a rights holder. So now, not only will large media corporations have government employees in the FBI and the DOJ as their henchmen, but the people they nab will now have to face jail time instead of just tens of thousands of dollars in fines for making that mix tape or downloading that book that’s out of print. This section also describes how they will have the authority to seize and destroy the computer used for said infringement.
One of the goals stated in the document is the “promotion of public awareness of the detrimental effects of intellectual property rights infringement.” The RIAA (recording industry association of america) and the MPAA (motion picture association of america) have, for years, tried to “educate” the public about copyright infringement:
- first and foremost, they refer to it as “stealing” and equate non-commercial copyright infringement with the actual theft of tangible property
- they try to perennialize their straining business models by lobbying to get favorable laws enacted [such as the DMCA (digital millenium copyright act), the PRO-IP (prioritizing resources and organization for intellectual property act) and DTCSA (digital transition content security act, aka “closing the analog hole”)]
- they then abuse the legal system by stifling legitimate security research and by suing the families of children who live in low-income housing, deceased grandmothers and families who don’t own computers.
They do all this so that they can retain us as paying customers.
In one place, they state that “[t]rade in these goods causes significant financial losses.” Maybe that’s true, but the BSA (business software alliance) [undoubtedly a supporter of the goals of this treaty] routinely counts not only the small percentage of infringers that would have actually been paying customers if the “pirated” version had not been available, but simply everyone they believe to have infringed.
Furthermore, if their growth doesn’t follow the exponential increase they projected, then they figure someone must be “stealing” from them, even if the discrepancy is actually due to them delivering poor quality products at inflated prices or the fact that other, less expensive alternatives have cropped up in the meantime.
For monopolies (defined as 70% market share or more), it’s worse than that, they add up the number of people that have a use for their products and equate that with the number of products they should have sold and for which they deserve income.
There are several places in the document where it pays lip service to respecting citizens’ privacy rights and fair-use provisions:
“The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens. ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties”
We have seen such promises before on how a given law should be used that have proven to be not how a law was actually applied. One need not even consider ulterior motives to see how this could arise, as those who write the law and sign it into being are rarely the ones who end up enforcing it years later.
This is not pie-in-the-sky enforcement of “intellectual property” law that will only happen to “pirates” in some dark dungeon somewhere. As everyone relies more and more heavily on technology in their daily lives, those everyday people will find that they are impacted by these same issues and (il)legalities. This will be applied to innocent grandmothers, to academics doing legitimate research and to citizens who are exercising their parody or excerpt fair-use provision. I’m sure that the lobbyists behind this treaty (and behind the sort of legislation that this treaty will help proliferate throughout the world) find a convenient scapegoat of “pirates” and “counterfeiters” for the problems of the day facing their respective industries. Undoubtedly, there are legitimate concerns over counterfeiting currency and large-scale commercial copyright infringement, but the eventual treaty and laws will have to be worded very carefully to avoid the pitfalls of similar, seemingly high-minded legislation of the past that still haunt us now.