It's amazing what a little publicity can do. Often when we write about things here, people who disagree with us post comments along the lines of "if you don't like it, stop talking about it and change it." They say this as if getting some publicity on a bad situation doesn't help change it. A few weeks ago, we wrote about Karoo, an ISP in the UK that wasn't just taking claims of unauthorized file sharing from the entertainment industry against its customers at face value, but was cutting them off on the very first accusation, with no real recourse. Except, after all the publicity from the original BBC report and others discussing it, Karoo quickly caved in, and said it would switch to a three strikes policy. Now, a few weeks later, the company is admitting that it will only disconnect someone over file sharing if it gets a court order. So in the period of just a few weeks, a little publicity turned a bad situation into a much better one.

With the new administration sticking by the old one in declaring negotiations over the ACTA treaty somehow a matter of national security as a way of avoiding revealing any info about the proposed treaty or its ongoing negotiations, the folks over at KEI have pointed out the long list of corporate lobbyists who have been involved in the negotiations, including those from the RIAA, MPAA, ESA and a long list of tech, telco and pharma companies. So... can anyone let us know if these folks have security clearance? After all, if they're a part of such sensitive matters concerning national security that are so touchy the public can't know about them, then, surely, the administration is being careful about who it provides that info, right? Or is the national security issue the fact that these folks don't want anyone to know they're writing the rules that will bind Congress (and legislatures in dozens of other countries) to adjust copyright law without any real leeway. And, just watch, these will be the same lobbyists who will spout off about how we have to make these changes to meet our treaty obligations. leaving out the fact that they wrote the treaties themselves to force through exactly this type of legislation.

Plenty of folks are quite concerned about the Anti-Counterfeiting Trade Agreement (ACTA) negotiations are being negotiated in secret. This is a treaty that (from the documents that have leaked so far) is quite troubling. It likely will effectively require various countries, including the US, to update copyright laws in a draconian manner. Furthermore, the negotiators have met with entertainment industry representatives multiple times, and there are indications that those representatives have contributed language and ideas to the treaty. But, the public? The folks actually impacted by all of this? We've been kept in the dark, despite repeated requests for more information. So far, the response from the government had been "sorry, we always negotiate these things in secret, so we'll keep doing so." At one point, even the ACTA negotiators held a closed-door meeting and then released a press release saying they discussed being more transparent, but haven't actually followed through.

When the Obama administration took over, there was a public stance that this administration was going to be more transparent -- especially with regards to things like Freedom of Information Act requests. The nonprofit group Knowledge Ecology International took that to heart and filed an FOIA request to get more info on ACTA. The US Trade Representative's Office responded denying the request, saying that the information was "classified in the interest of national security pursuant to Executive Order 12958." This is a treaty about changing copyright law, not sending missiles somewhere. To claim that it's a national security matter is just downright scary. As KEI points out, the text of the documents requested have been available to tons of people, including more than 30 governments around the world and lobbyists from the entertainment industry, pharma industry and publishing industry.

But when the public asks for them, we're told they're state secrets? This is transparency? This is openness?

As Declan McCullagh points out at News.com, Executive Order 12958 only allows material to be classified if revealing it would do "damage to the national security and the original classification authority is able to identify or describe the damage." Can the US Trade Representative please describe the damage to national security if the public gets to see what's being proposed that would require governments around the country to enact significantly more draconian intellectual property laws?

With various governments still insisting that ACTA negotiations must be done in near total secrecy, various folks are working hard to at least shine some sunlight on the details. Michael Geist discusses what he's been able to piece through, and it's not pretty. The only good news is that everything is still in the early stages, and there's some disagreement among the participating trade reps concerning how certain things should work. However, that's about the only good news. The bad news is that many of the provisions are clearly being submitted with significant "input" from industries who stand to benefit from greater IP protectionism -- and no effort has been made to see what impact the resulting output would have on everyone else.

Even more troubling are the specific details supplied by KEI, who includes some draft text, including a proposal pushed by the US and Japan to use ACTA to make certain forms of personal, non-commercial infringement a criminal offense as a "deterrent." Yes, this would include potential jailtime, even if the infringer had no intent to profit. Notice that this is happening in backrooms among trade representatives, rather than in public among elected officials -- especially as various countries have been increasingly open to the idea of exempting personal, non-commercial infringement from being subject to legal punishment. This "treaty" would force countries to put a halt to that, and then we'd hear all sorts of big-time IP defenders insist that we absolutely had to make these changes to the law to "live up to international treaties" which they helped write.

KEI also points out another downside to all of this being negotiated in secret. It appears that many of the trade representatives are ignorant of certain laws already in place in their own countries, as well as other legislation that is currently under consideration. For example, KEI notes the current debates over copyright laws concerning "orphaned works" which is a big issue in Congressional copyright discussions. Some of what's being pushed in ACTA would mess up those discussions -- but who cares, apparently, trade representatives, pushed on by industry representatives, seem to have no problem determining for themselves what copyright law should be all about.

And here's another bit of "transparency" that's just as lacking in the new administration as the last. For months, those of us concerned about backroom deals on intellectual property treaties bypassing an open legislative process have been demanding more sunlight on negotiations around ACTA, the Anti-Counterfeiting Trade Agreement. To date, the various folks negotiating the agreement -- which includes both entertainment industry representatives and government trade representatives from around the world -- have been averse to any sort of transparency, using the rather weak excuse that such treaties are always negotiated in secret. Amusingly, they even recently held a secret meeting where they promised to be more transparent. That's comforting.

In order to push this transparency issue forward, plenty of folks have been filing freedom of information requests to get documents related to the agreement and the negotiations. Up in Canada, these requests have revealed that the government may have publicly lied or misled people about its negotiations in ACTA. In the US, though, things are even more ridiculous. Apparently the US Trade Representative is refusing to release most of the documents requested under the FOIA claiming (I kid you not) that to release such documents could "implicate national security or expose the USTR's deliberative processes."

But, of course, the USTR had no problem at all sharing all this info with entertainment industry lobbyists. In the few documents that were released, it turns out that the USTR met privately with representatives of various "anti-piracy" lobbying groups multiple times in 2008 -- without bothering to consult with the folks who these laws would actually impact. In other words, they're getting one side of the story. Even worse, those lobbyists have been called out, repeatedly -- by the US government, no less -- for outright fabrications concerning the impact of piracy and counterfeiting. So why is the USTR only relying on them for determining how this trade agreement will work? And why is there no effort to make these negotiations more public so that all stakeholders have a say?

One of our biggest complaints with ACTA, the Anti-Counterfeiting Trade Agreement that was initially written by the entertainment industry, and is being used to effectively sneak through new copyright law requirements around the world (every time you hear an industry supporter claim that copyright laws must be changed to live up to "international obligations" you know they're leaving out the part where it was the same industry that wrote those international treaties), is that the whole thing is being negotiated in secret. So, it seems rather amusing that the latest (secret) negotiations resulted in a press release saying that they discussed how they need to be more transparent (found via Michael Geist). So, after holding a closed door meeting, they let everyone know that they discussed how it really sucks that they hold these closed door meetings? Here's a suggestion: instead of issuing a press release afterwards next time, why not open up the meetings?

We've been wondering for a while now about why the ACTA treaty is being negotiated in such secrecy -- since the treaty will almost certainly greatly expand copyright laws around the world, without any real judicial approval. So it's good to see our concerns are echoed even by politicians who have long supported Hollywood's efforts to strengthen copyright law. Following the recent Congressional hearings about ACTA, Senators Patrick Leahy and Arlen Specter (who were behind the Senate ProIP bill that would put a copyright czar in the White House and unsuccessfully tried to make the FBI Hollywood's private police force) have now sent a letter saying that they're quite concerned about the ACTA Treaty. They're worried both that it will be too broad and that it's being negotiated entirely in secret. When even the politicians who push Hollywood's legislation are questioning ACTA (which is being written by Hollywood insiders), perhaps it's time that ACTA negotiators finally open up the process and let the rest of us in.

Earlier this week, the US Trade Representative held an open hearing on the international intellectual property agreement currently being negotiated in secret, ACTA. The modicum of openness was assuredly a welcome change (even if USTRs insist that they aren't being as secretive as claimed by many), but having attended the public meeting, I can report that the treaty is, at best, a mixed bag (though, if the MPAA and RIAA praise is any indicator, the reality is likely to be much worse).

At the meeting, Assistant US Trade Representative Stan McCoy went to great lengths to assure attendees, which included representatives of industry groups, corporations and public interest groups, that the ACTA is not being overly opaque by choice, but instead because he is bound by confidentiality and a lack of a firm draft text. Even given this lack of progress, the countries currently involved hope to finish the treaty by the end of the year - a deadline which one cannot help but think may have to do something with a certain upcoming election.

As for the content of the treaty, McCoy foresees no substantive changes to American law. ACTA, in his view, is necessary to "bridge the gap between laws on the book and strong enforcement on the ground" by developing enforcement practices, international cooperation and a legal framework which would include "criminal enforcement, border measures, civil enforcement, optical disc piracy and IPR enforcement issues relating to Internet distribution." Of the many possible controversies which have been raised, McCoy went to great lengths to dismiss concerns that individuals' iPods or laptops would be searched at the border, even though existing bilateral trade agreements allow for this ex officio search. McCoy says the aims are to stop large-scale piracy, but given the ever increasing storage capabilities of personal electronics, it won't be long before the RIAA and MPAA are advocating for the search of travelers' personal devices.

Among other concerns raised and not fully addressed are the various misconceptions that Mike has gone to length to debunk. Not once was the supposed causation between stronger IP and innovation questioned. Little attention was paid to the interests of developing countries who are woefully underrepresented in the discussions. And important concepts like fair use were after-thoughts or, in the case of training border control officials to understand IP enforcement, had not even been approached.

Overall, the USTR and Department of Commerce representatives seemed to truly want a good piece of international law, but the manner in which the treaty has been designed has a number of flaws. An executive treaty is, by nature, less responsive to the concerns of citizens. This has manifest as a lack of serious conversation with consumer advocacy groups. Further, by confounding two separate issues - counterfeiting and copyright infringement - ACTA casts to wide a net to fully respond to the dynamic, evolving nature of IP law. And by starting with flawed premises, ACTA fights an uphill battle to acceptability.

We've been asking for months why the Anti-Counterfeiting Trade Agreement (ACTA) treaty is being negotiated in near total secrecy, allowing the entertainment industry to effectively rewrite international copyright law in substantial ways with almost no legislative review. Basically, various trade representatives, together with industry insiders, have been crafting ACTA to their own liking, with a plan to push it through for approval, claiming it's a trade agreement that shouldn't involve any legislative overview. It's an incredibly one-sided affair, from what's been leaked so far, and would substantially change copyright law around the globe in favor of protecting the entertainment industry's business model.

The entertainment industry had hoped to keep the whole process secret, and trade representatives have basically ignored all calls to open up the process, claiming that such trade agreements are always negotiated in secret. Of course, that doesn't make it right -- especially when this trade agreement isn't so much a trade agreement as it is a chance to sneak through legislation around the globe that is designed solely to protect a particular business model -- without any input from those who recognize that legislating business models harms both the competition and consumers. Now, over 100 public interest groups have teamed up to demand that the process be opened and that questions get answered about ACTA

While those involved in negotiating the document will continue to do what they've done all along (i.e., ignore the requests), hopefully some politicians will start to notice the complaints and begin asking questions. It's one thing for the entertainment industry to lobby politicians directly or pre-write their laws for them, but it's another to sneak widespread, sweeping -- and totally unnecessary -- changes to copyright law through without significant legislative review.

We've already talked about the ACTA treaty, which is being used by the entertainment industry to basically do an endrun around the legislation process for intellectual property, and getting all its wishes encoded into an international treaty, so it can start running around claiming that every country absolutely needs to change its IP laws to "live up to" international treaties. William Patry has been asking why the mainstream press isn't covering this, and it's an excellent question.

His latest post on the topic covers the fact that the entire process is happening in secret behind closed doors and the folks negotiating the treaty seem to think this is fine:

"A spokesperson of the European Commission confirmed that consultation with different stakeholders had been on the agenda and would happen over the coming month at the domestic level. Draft text proposals still have not been published, the source said. Several parties contacted pointed to confidentiality agreed on by the negotiating partners."

Patry translates that paragraph accurately as really saying:

"Countries also discussed whether they should actually talk to those who would be affected by the agreement, and agreed that sometime they will, but everything we have done is super-secret because we agreed it would be super-secret."

So why aren't stakeholders invited into the process? Why is the whole thing being negotiated in secret, using notes in discussion with entertainment industry lobbyists but no consumer groups or other business groups who aren't necessarily supporters of more restrictive copyright regimes? And why isn't the press asking these questions?