Debunking Reasons For ACTA Secrecy: Just Enforcement Doesn't Tell The Whole Story

from the open-things-up dept

We've had a series of posts debunking all of the bogus claims from supporters of ACTA and the current secrecy involved in the ACTA process -- such as how this secrecy is "normal" (no its not), how this is "just an executive agreement, not a treaty" (the difference is effectively meaningless) and how this can't change US law so there's nothing to worry about (even if it doesn't change US law directly, it can prevent fixing problems in the law, while putting pressure on legislators to change the law anyway). Well, here's another one, courtesy of the folks over at Public Knowledge.

One of the claims that's been made in defense of the "secrecy" around ACTA is that the agreement is really just about "enforcement," rather than any legal changes. While we've already questioned how true that claim really is, John Bergmayer, does a nice job explaining why we should be worried about an agreement on "enforcement" anyway: because the question of enforcement is meaningless compared to the actual procedure of enforcement. Bergmayer quotes Rep. John Dingell to make the point:
"I'll let you write the substance ... you let me write the procedure, and I'll screw you every time."
The fear here is that while ACTA might not technically change US law, it could easily change US procedures and policies on "enforcement" allowing the effective change in the law, without people even realizing it. He quotes Professor Thomas Main, saying:
"procedural reforms can have the effect of denying substantive rights without the transparency, safeguards and accountability that attend public and legislative decision-making."
And, indeed, this is what we've see in the leaked drafts of ACTA. While most (though, certainly not all) of the proposals that have been leaked don't necessarily include a direct change to US law, they often do subtly word things so that existing rights, safeguards and accountability are left out, just as Prof. Main warns. To make sure those subtle changes do not have serious impacts that let certain special interests (in the words of Rep. Dingell) "screw" the public, doesn't it make sense to reveal the contents of what's being negotiated?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Feb 17th, 2010 @ 3:23pm

    "The United States is a nation of laws: badly written and randomly enforced." - Frank Zappa

     

    reply to this | link to this | view in thread ]

  2.  
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    gawdlerd, Feb 17th, 2010 @ 3:35pm

    gimmie a break

    suddenly now that the cat has come home to check on the mouse, the mouse is really scared... it's about time.

     

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  3.  
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    Alan Gerow (profile), Feb 17th, 2010 @ 3:47pm

    Re:

    *nods*

     

    reply to this | link to this | view in thread ]

  4.  
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    DeadParrot, Feb 17th, 2010 @ 3:58pm

    Three strikes laws

    "3 Strikes" laws (3 accusations of infringement = internet ban) is actually a "3 Pitches" policy: it is accusations of guilt not convictions.

     

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  5.  
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    compgeek (profile), Feb 17th, 2010 @ 4:12pm

    Re: gimmie a break

    When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
    Thomas Jefferson said that i believe.
    when acta and other laws put fear of the government in the american public there WILL BE tyranny. maybe you want that but if that is so then i pity you. forgive me if i misunderstood your post

     

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  6.  
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    Mike Masnick (profile), Feb 17th, 2010 @ 5:30pm

    Re: gimmie a break

    suddenly now that the cat has come home to check on the mouse, the mouse is really scared... it's about time.


    I agree. Now that the people are finally standing up to the stunts the entertainment industry has gotten away for years -- propping up their business through artificial monopolies and other forms of gov't subsidies, and those things are starting to fall apart, they do seem to be freaking out that the technology is getting rid of all that.

    So, yeah, the industry (mouse) is really, really scared that the people (the cat) are finally checking up on them. Hence all the secrecy in ACTA dealings.

    Or were you suggesting something else?

     

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  7.  
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    Marcus Carab (profile), Feb 17th, 2010 @ 5:48pm

    Re: Three strikes laws

    Well said!

     

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  8.  
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    gawdlerd, Feb 17th, 2010 @ 8:19pm

    hmmmm

    I make one post here and the big guy responds. hi mike. it must have hit pretty close to the mark - well, that's an interesting take you have on the situation, not accurate, but interesting none the less... buckle up... the free ride is about to get really bumpy...

     

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  9.  
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    Hephaestus (profile), Feb 17th, 2010 @ 8:31pm

    Re: Re: gimmie a break

    Perhaps he is suggesting that Mickey Mouse's cat Friends over the years have come home to have a dinner party.
    Figaro, Pete the cat, and Tom the hooch loving Cat have finally grown up and are looking at him like he is dinner.

     

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  10.  
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    Anonymous Coward, Feb 17th, 2010 @ 8:37pm

    Re: hmmmm

    Gee, with such a convincing argument, too.

     

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  11.  
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    Hephaestus (profile), Feb 17th, 2010 @ 9:36pm

    Re: hmmmm

    Over One Billion of us on the internet and how many of you? It really "is about to get really bumpy..." so "buckle up" and enjoy the ride down.

    My big interests include Unintended Consequences, and the psychology of groups. The one never ending truth about groups in conflict is, the larger group always wins in the end. Expressed in its simplest terms, what ACTA is, is an attempt by a small groups of people to control the communications of a large group of people. Here is the kicker, this large group contains a chaordic mix of individuals moving in different directions all wanting to communicate freely. In much the same way they do in real life.

    Attempting to stop or limit specific communications between individuals will cause them to hide what they are doing or, it will cause them to find things to talk about that cant be limited. Threats, Fear, and intimidation always backfire. Those are the unintended consequences.

    Look forward to more encrypted P2P. More Bars, restaraunts, people, and radio staions using free and CC music. More people talking about how to avoid the record labels like the plague and where to get free music. More artists going the free route.

     

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  12.  
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    Anonymous Coward, Feb 17th, 2010 @ 9:44pm

    Re: hmmmm

    Hey, weren't the same things being said a decade ago?

     

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  13.  
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    Mike Masnick (profile), Feb 17th, 2010 @ 9:51pm

    Re: hmmmm

    buckle up... the free ride is about to get really bumpy...

    Indeed. Once again, we agree. The free ride that the entertainment industry has had for years in the form of gov't granted monopolies and subsidies is, indeed, about to get quite bumpy.

    Of course, those who understand the economics will do fine, so I wouldn't worry about it, so long as you do understand those economics. For such folks, it's a world of opportunity.

     

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  14.  
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    Anonymous Coward, Feb 17th, 2010 @ 10:26pm

    "One of the claims that's been made in defense of the "secrecy" around ACTA is that the agreement is really just about "enforcement," rather than any legal changes."

    Someone made a speed limit analogy before, I think it was the Anti Mike, and I just wanted to respond.

    Indeed, it was idiot Anti Mike.

    "You have to remember too, the will of the masses isn't always how things are done. The will of the masses is to drive faster than the speed limit on highways, but you don't see anyone running on a platform to repeal speed limits."

    http://www.techdirt.com/articles/20100204/0117178039.shtml

    The reason why you know that this is the will of the masses is because the masses do this. In other words, the will of the masses IS indeed how things are done. The reason why we no one is running on a platform to repeal speed limits is because the speed limits are very poorly enforced. If hey were strictly enforced, people will run on a platform and demand reasonable speed limits and they WILL get reasonable speed limits. But since the speed limits are just ignored anyways, there is no need to protest.

    The same thing goes here. If the RIAA et all demand unreasonable laws and demand the enforcement of them, people will rebel and they will demand the laws be changed to become more reasonable. And they will get their way, eventually.

     

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  15.  
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    Anonymous Coward, Feb 17th, 2010 @ 10:28pm

    Re: Re: hmmmm

    I see a lot of talk about IP reform that makes IP less restrictive and not last as long, and I really want such reform, but so far I have seen no action.

     

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  16.  
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    Anonymous Coward, Feb 17th, 2010 @ 10:30pm

    Re: Re: Re: hmmmm

    by action, I mean laws passed that makes IP more reasonable, not merely protests that demands such laws.

    I want action, I want the laws to change, NOW!!! IP needs to pretty much go away, or at least be hugely alleviated.

    and I want cableco monopolies GONE, I want competition, and I want it NOW, EVERYWHERE. People need to stand up and DEMAND these things with much more force or else we will go back to the dark ages before the Internet.

    Oh, and I want the FCC disbarred and not replaced by anyone. The public airwaves should be free for public use.

     

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  17.  
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    Cdaragorn (profile), Feb 17th, 2010 @ 11:30pm

    Re: Re: hmmmm

    "The one never ending truth about groups in conflict is, the larger group always wins in the end"

    Not to debunk this too far, but the problem with this statement is that far too often, that isn't what happens. For proof, just look at the revolutionary war.

    Now that's a nice example because it had good results, but there are too many cases where small groups manage to win out for all sorts of reasons. We should be very concerned about what's going on here.

     

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  18.  
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    Cdaragorn (profile), Feb 17th, 2010 @ 11:33pm

    Re: Re: Re: Re: hmmmm

    "Oh, and I want the FCC disbarred and not replaced by anyone. The public airwaves should be free for public use."

    You do realize that the only thing that would do is make the airwaves completely useless to all of us, right? There are only so many frequencies available, with everyone trying to randomly use them, the only outcome would be chaos.

     

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  19.  
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    Richard (profile), Feb 18th, 2010 @ 5:10am

    Re: gimmie a break

    "suddenly now that the cat has come home to check on the mouse, the mouse is really scared... it's about time."

    Said the SS officer as he entered the Ghetto.

     

    reply to this | link to this | view in thread ]

  20.  
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    Hephaestus (profile), Feb 18th, 2010 @ 8:08am

    Re: Re: Re: hmmmm

    "For proof, just look at the revolutionary war"

    That is proof of what I was saying. From 1770 to 1800 the population of the US went from 3 million to 5.3 million. Historians say that 35% to 45% of the population of the US was involved in the war effort. Meaning more than third of the population was against the british. Wars are not only won by the troops but the support the troops receive.

    "We should be very concerned about what's going on here."

    We are concerned. The great thing is that no matter how many new laws get pushed through to protect their business model they cant win.

    Eventually the greed and need to increase fees through collection agencies will cause people to seek other sources for music. Its happening all over Australia, Germany, UK, US, and Canada where people are using CC and free music alternatives. All you need is one person to put together playlists and spread the word for basic economics to kick in. "This free music costs me 10 dollars a month for playlists and the mp3s, and Sound exchange gouges me for 60% of my profits"

    Artists are being berated by fans for supporting RIAA and MPAA positions. Lily Allen comes to mind for her three strikes position.

    Fans are swearing off and staying away from music from RIAA, etc artists.

    Competition from other forms of entertainment. Xbox, YouTube, facebook, etc.

    Little by little the actions of the media distribution types is killing their business. They continue to do everything to make a profit for this quarter and not years out. They seem to be trying to piss off their customers. They are doing everything to prevent changing. Slowly the world is adapting and changing around them and they refuse to.

    The phrases "Future potential profits", "growth over profits", and "leveraged to the hilt" come to mind. The reason they come to mind is slowly from the bottom up the big 5 record labels are going to fail. They will then be purchased by a larger record label. This will in turn incur debt on the aquiring label. With the sales CD music falling and the online purchase of music reaching its peak. Profits will fall they wont be able to make payments and they also will fail.

    Next ...

    The important part of the labels are their catalogs. The value of the music catalogs will begin falling because no one can see anyway to really make a profit on them and no one will really want to purchase them.

     

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  21.  
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    Anonymous Coward, Feb 18th, 2010 @ 9:26am

    Re: Re: Re: Re: Re: hmmmm

    You do realize that this is a lie, right? It maybe chaos for those who bribe the government the most (ie: the highest bidders), but for society it would not be.

    The early days of public airwaves were much like the Internet now. It would not be chaos, or even if you wish to call it chaos, it would serve the public most optimally.

    For one thing, instead of having just one big station everywhere, people can more accurately direct their signals to the intended recipients which would not block those same frequencies for others who can also use signal directional tools to direct their signals to the intended recipients.

    Even if it were "chaos," that just means that the airwaves are being USED which means they are serving the public good and they will certainly serve the public interest better than the FCC or any government can ever do (since the public is better able to decide what's in its best interest than any government ever can and the government only serves the corporate interest).

     

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  22.  
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    Anonymous Coward, Feb 18th, 2010 @ 9:30am

    Re: Re: Re: Re: Re: hmmmm

    But keep on telling lies to scare the public into keeping a system that took years for the corporations to make the government adopt exactly because the public once realized the utility that public airwaves provided as a communication tool and adopting our current laws on public airwaves all at once (back then) would have created huge backlashes.

     

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  23.  
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    Anonymous Coward, Feb 18th, 2010 @ 10:48am

    Re: Re: hmmmm

    Is saying "we agree" really accurate. The original comment can be read as applying to those on the other side of the issue.

     

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  24.  
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    MattP, Feb 18th, 2010 @ 11:10am

    Re: Re: Re: hmmmm

    Obviously.

     

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  25.  
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    gawdlerd, Feb 18th, 2010 @ 12:24pm

    seriously?

    all this so that the self entitled don't have the faucet of free mp3s (and movies, and videgames, and software, etc) cut off? unbelievable...anyone opposed to IP protection better hope that they never need it...

    what if I cloned this website and sold ads, would that be ok too? or is that somehow different?

     

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  26.  
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    longtimelurker, Feb 18th, 2010 @ 1:23pm

    Re: seriously?

    ----what if I cloned this website and sold ads, would that be ok too? or is that somehow different?---

    Just so this isn't the last comment on the thread, I just will leave this as an obvious sign that 'gawdlerd' has never actually READ much here, since this EXACT "gotcha" has been posted on MANY an occasion, with the same response from Mike: "Go ahead...have fun, enjoy driving traffic back to me, and thank you for the exposure."

    Dumbass. If you can't come up with anything better than that, tell your bosses you aren't worth the money. As far as protecting your 'IP'....well, gotta have an intellect to have 'intellectual property'.

    BTW...when are these copyright maximalists going to start paying taxes on their "intellectual" property, like everyone else in the real world? Oh, wait...you mean it's different? Nah, couldn't be.

     

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  27.  
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    gawdlerd, Feb 18th, 2010 @ 1:50pm

    so in the lack of a real response there are insults and name calling... nice.

    "Go ahead...have fun, enjoy driving traffic back to me, and thank you for the exposure."

    that sounds like the same arrogance that cost the record labels dearly "who would want to" "whats the point" "were in control" etc...

    ...it's all fun and games until someone actually does it, so is mike then allowing any part or whole of the site to be replicated for profit by a third party?

    if so, this could get real fun.

    mike?

    thanks.

     

    reply to this | link to this | view in thread ]

  28.  
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    Mike Masnick (profile), Feb 18th, 2010 @ 4:01pm

    Re: seriously?

    what if I cloned this website and sold ads, would that be ok too? or is that somehow different?


    Of course it's ok.

    http://www.techdirt.com/articles/20090116/0348223430.shtml

     

    reply to this | link to this | view in thread ]

  29.  
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    Mike Masnick (profile), Feb 18th, 2010 @ 4:03pm

    Re:

    ...it's all fun and games until someone actually does it, so is mike then allowing any part or whole of the site to be replicated for profit by a third party?

    Yes. Absolutely. As I've stated for years, this site is in the public domain, and there are already about a dozen sites that copy its contents in their entirety and seek to make money off of ads.

    Feel free to help us out by doing the same. More promotion for us is great.

    Please feel free to let us know when you've set up your site.

    if so, this could get real fun.


    Yes, please let us know when the site is up.

    Thanks for wanting to promote our content!

     

    reply to this | link to this | view in thread ]

  30.  
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    nasch (profile), Feb 18th, 2010 @ 8:21pm

    Re: seriously?

    all this so that the self entitled don't have the faucet of free mp3s (and movies, and videgames, and software, etc) cut off?

    Nope. It's about important stuff like culture, democracy, and liberty.

     

    reply to this | link to this | view in thread ]

  31.  
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    Anonymous Coward, Feb 18th, 2010 @ 8:38pm

    Re: Re: seriously?

    "Nope. It's about important stuff like culture, democracy, and liberty."

    Culture? Yes, downloading files preserved under copyright without an iota of originality being added to the files certainly promotes culture. Hey, it's not like downloaders were going to buy them anyway. Besides, think of all the free publicity the copyright holders are receiving. They should be grateful.

    Democracy? I demand my democratic rights to copy what I darn well want whenever I darn well want. I am being denied an important right, even if I am flaunting the law enacted by democratically elected representatives. Heck, we all know Congress is just a bunch of shills for the entertainment industries.

    Liberty? How dare the law tell me what I can and cannot do. I have a God given right to download whatever I want, whether subject to copyright or otherwise. Darn rent seeking content industries and silly copyright laws. Don't they realize they are penalizing me by attempting to prop up failed business models? They should congratulate me for taking my important time to show them the error of their ways.

    Yeah, I know I can always download CC, freeware, etc., but what if I want more? Copyright law denies me fundamental rights secured to me by the Constitution, so in effect content industries are the ones who should be held responsible, and not me!

     

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  32.  
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    Marcel de Jong (profile), Feb 19th, 2010 @ 12:27am

    Re:

    I have yet to see any insults or name calling in this entire comment section of this story. So not sure where that is coming from. And you have been getting real response.
    Yes, Mike is ok with you copying his content, putting it on your own site and running ads next to it. He has said so on many different occassions.

    And yes, it's about protecting culture, democracy, and liberty.

    Culture, because by locking everything up with insane copyright levies and royalties will make sure that at some point no-one will want to use our current culture to build other stuff on (Yes, in the olden days, artists built upon works of others).
    Democracy, ACTA is a highly undemocratic document. It's being forced from above to us, we, the people never got any say in it.
    And liberty, if you can get booted of the internet from just 3 accusations (mind you, no convictions, nor any need for proof, just an accusation is enough), that's a violation of my basic right of liberty on the Internet.

    Yes, copyright infringement is illegal, and has been all these years, and ACTA won't change that. But it will change the world in many unprecedented ways, that will harm YOUR basic rights. Whether you downloaded MP3s off of bittorrent or not. It just takes 1 a-hole with enough technical knowhow to get YOU booted of the web for good. (IP-addresses and MAC-addresses can be spoofed quiet easily)

    Besides all that, ACTA is being written by a bunch of hypocrits. Because a lot of the people in the industry and those who support ACTA have infringed on copyrights themselves. There is proof about this on this very website and in other media.

     

    reply to this | link to this | view in thread ]


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