I’ve been at this all backwards. See, first I read this story, which seemed to suggest that Canada was working on an agreement that would turn its border cops into copyright cops, lead to searching of iPods and computers for infringing material like ripped CDs and DVDs, and force their ISPs to turn over information on customers who were merely suspected of pirating copyrighted material. Then I realized the story was the same as the “Pirate Bay Killer” trade agreement story that was making the rounds last week, and I had sort of dismissed it as hysterical pro-Pirate Bay FUD. But then I realized that both stories are about a semi-secret international trade agreement with the potential to export some of the worst parts of the DMCA to the entire world, and I figured it was probably time to do some actual research and explaining. So, here goes.
On May 22, Wikileaks posted a leaked discussion paper that, for the first time, offered details into the proposed Anti-Counterfeiting Trade Agreement (ACTA) that’s under negotiation in multiple countries. It pointed out that most of ACTA’s provisions are being negotiated in secret, and that trade representatives would like to formalize the agreement during July’s G8 discussions. According to IP Justice, ACTA has been in the works since 2007, led by United States, the European Commission, Japan, and Switzerland, with the participation of Canada, Australia, Korea, Mexico and New Zealand. They’ve compiled quite a dossier on it here.
From my reading, at least, the ACTA discussion paper seems to be a mix of zealous crackdown efforts targeted at large-scale, commercial piracy operations, some vague wording that lends itself to paranoia and fear-mongering because of our long history with unintended consequences in lawmaking, and some legitimately disturbing efforts to criminalize consumer behavior, unduly bribe and burden ISPs, and further erode any semblance of fair use.
In a nutshell, according to the Wikileaks document, the act would allow for international sharing of information on infringers, boost “awareness” in the public and law enforcement, provide a legal framework that would specifically criminalize non-commercial infringement (“to such an extent as to prejudicially affect the copyright owner,”) allow authorities to seize and destroy “infringing goods and equipment and materials used to make them,” and implement various border measures intended to target, primarily, large shipments.
In Canada, at least, the border measures are being painted as a push to make customs officials responsible for searching iPods and laptops for infringing material. Honestly, in my reading, that may be a slippery-slope outcome, but the closest applicable language suggests “measures to ensure the seizure and destruction of IPR infringing goods.”
But things get really creative once you get to, say, “Civil enforcement.” Per the discussion paper, ACTA participants would adopt “measures to overcome the problem of rights holders not being able to get sufficient compensation due to difficulty of assessing the full extent of damage.” That’s right; it’s impossible to tell how much money they lost from piracy, since it’s impossible to know if anyone would have paid for the material they stole, had it not been available to steal.
And things do, despite a lot of heated rhetoric from both Wikileaks and IP Justice, get fairly disturbing down around the “Internet distribution and information technology” section of the paper. For example, the act would call for safeguarding ISPs from liability “to encourage ISPs to cooperate with rights-holders in the removal of infringing material.” That kind of thing is almost always code for, “threaten ISPs with liability if they DON’T cooperate with rights-holders,” and I’ve written before about the dangers and obstacles inherent in forcing ISPs to be copyright cops.
In addition, the act would make it easier to force ISPs to turn over information on suspected copyright infringers in a more expeditious fashion. Translation: we think so-and-so is illegally downloading music. Send us all his personal information in 24 hours or see previous re. “liability.” It definitely appears to lessen the burden of proof required in gathering information about ordinary citizens, and that’s not ok.
And then there’s anti-circumvention. The ACTA summary’s brief discussion of providing “remedies against circumvention of technological protection measures,” according to Wikileaks and others, “may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.” And as we know, the anti-circumvention measures in the DMCA have, in addition to virtually eradicating fair uses of things like DVDs, also led to a raft of unintended consequences that have dangerously stifled security research. For example, remember the Sony root kit fiasco? It was discovered by, among other people, a Princeton grad student who delayed revealing his findings for weeks because of DMCA anti-circumvention measures. If overly broad anti-circumvention measures like those contained in the DMCA become international law, the consequences for research, free speech, and academics could be disastrous, not to mention the fact that no one in any developed country would ever be allowed to rip a damn DVD.
So, clearly, inflammatory rhetoric aside, ACTA seems likely to contain some provisions that are almost certainly extreme, and almost certainly do not carve out the kind of specific, personal fair-use exemptions that would protect that average citizen from the unintended consequences of such an overreaching international trade agreement. But Canadian law professor and copyright expert Michael Geist eloquently drives home the most pressing concern of all: the secrecy.
No one can say for sure what will be part of the trade agreement, since the negotiations and drafting have all occurred behind closed doors. It seems hyperbolic and hysterical to say, for example, that Canadian border guards will be inspecting iPods for ripped movies and then destroying them if they mistake an iTunes purchase for a ripped DVD … but we just don’t know if that’s in the act, because no one’s seen it. And frankly, the intellectual property protection impulse coming from the U.S. is just as hyperbolic and hysterical as the opposition. Worse, per IP Justice, if the agreement is ratified, the language will be “locked,” and even developing countries who are later pressed to sign on to the agreement won’t be able to re-negotiate its potentially draconian terms.
The U.S. is exporting to the rest of the world a level of naked, sweaty terror about piracy that goes beyond legitimate concerns about, say, massive counterfeiting operations or phony prescription drugs, and truly does threaten the individual rights of consumers and their media. And they’ve now convinced other countries to plot some secret worldwide agreement that will potentially judge all of us as criminals without any sort of trial and without our input at all. That’s unacceptable.
Michael Geist is urging his government to insist on “full public disclosure of the ACTA while it is still in draft form,” and argues that “civil society and representative stakeholders should be permitted to participate in the final negotiation process,” and “developing world country representatives should immediately be invited to participate.” I agree, and I’ve written to my congressional representatives to suggest the same thing. I hope you will, too.