If ACTA Is So Great, Where Are All The Supporters Extolling Its Virtues?

Glyn Moody — Fri, 30 Mar 2012 07:33:18 PDT

One of the striking features of the ACTA debate is the deafening silence from those who are in favor of it. Maybe that's down to the SOPA effect: companies and organizations are frightened of being associated with such an unpopular idea. Of course, it could just be that even its most fervent supporters can't really come up with any plausible justifications for it. That's certainly the impression you get reading a rare attempt to raise the ACTA flag from the Institute for Policy Innovation, entitled "Acting Out on ACTA."

It begins by focussing on potentially lethal counterfeits -- fake drugs, fake brake linings and fake circuit breaker boxes. That conveniently ignores the fact that no one is against cracking down on such dangerous counterfeits, and that the main problems with ACTA concern its attempt to apply the same rules to digital infringement, where there are no safety issues to justify its harsh and disproportionate measures.

But leaving that aside, ACTA doesn't actually tackle the problem of physical counterfeits, for reasons I've discussed before -- the main one being that the nations where fakes tend to originate are not signatories to ACTA, and so won't be bound by it. As for the countries that have signed up, the principal ones like the 27 European Union nations, Japan and the US already have stringent laws that enable counterfeits to be tackled, so ACTA won't make any difference for them either. The only countries where ACTA might have some effect are places like Mexico, and sadly the issue there is not so much fake drugs coming into America as the problems caused by real ones.

Rather than offer any more reasons why ACTA is a good thing, the IPI article then changes direction, and begins a bizarre attack on widespread concerns about ACTA's lack of transparency:

[Anti-IP activists] complain that ACTA was "negotiated in secret," and protest that critics did not have access to negotiators. Rather than making substantive arguments against the actual text of the agreement, they attempt to kill it by condemning the process.

In fact, plenty of "substantive arguments" against ACTA have been provided, for example here, here and here, as well as these on Techdirt. The IPI article goes on: it’s disingenuous to argue that agreements between governments must be negotiated in public with opposition activists in the room, and it’s naïve for elected officials to fall for that argument. That’s not transparency—that’s paralysis. Treaties, defense compacts, and trade agreements have always been negotiated confidentially between governments.
But no one has argued that activists must be in the room. Instead, people simply want access to draft versions of the treaty as they are negotiated, plus the ability to make their views known to their representatives. That does not mean people are demanding the right to do that in the negotiating room itself -- that's plainly absurd -- just a mechanism for providing feedback, perhaps by means of the Internet.

As to the point that treaties have "always been negotiated confidentially between governments", that's also not the case, as this article explains:

Ars Technica recently talked to Michael Geist, a legal scholar at the University of Ottawa, about this effort [to export restrictive American copyright laws abroad]. He told us that rather than making their arguments at the World Intellectual Property Organization, where they would be subject to serious public scrutiny, the US and other supporters of more restrictive copyright law have increasingly focused on pushing their agenda in alternative venues, such as pending trade deals, where negotiations are secret and critics are excluded.

So, far from being the norm, ACTA's secrecy is a conscious attempt to avoid the scrutiny and consensual approach that characterizes WIPO, the traditional forum for multilateral agreements in this area.

The IPI article concludes:

ACTA should be judged on its merits, not on some false illegitimate-process charge created by opposition activists. And its merits are many.

It's strange that an article that claims there are "many" merits of ACTA fails to mention them, and concentrates instead on attacking straw-men. But there's something stranger still. According to the IPI's donations: IPI is studiously non-partisan, but we have a definite philosophical opposition to Big Government solutions that are almost always worse than the problem. Today, the threat from Big Government is greater than ever, and our work is more important than ever.
ACTA is the ultimate in Big Government solutions -- in fact, it's even bigger than Big Government, because it's a supranational treaty that imposes an extra layer of obligations and bureacracy on governments, and hence their populations. So the key question is not: Why can't the IPI tell us what those "many" merits of ACTA are? but: Why is it supporting it at all?

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Spotting Counterfeit Chips Is Hard; Spotting Digital Piracy Is Even Harder

Glyn Moody — Fri, 9 Dec 2011 00:10:00 PST

One of the favorite techniques of those pushing for ever-more severe penalties for copyright infringement is to blur the distinction between analog counterfeits and digital copies. The argument then becomes: "counterfeit drugs can kill people, therefore we must come down hard on online filesharing." This trick can be seen most clearly in ACTA, which stands for "Anti-Counterfeiting Trade Agreement", but where the most problematic sections concern digital piracy, not counterfeits.

That false equivalence between counterfeits and digital copies is also employed to give the impression that since cheap knock-offs are pretty obvious, it's easy to tell the difference between a legal digital file, and one that is unauthorised. However, unauthorised digital files are generally exact copies of authorised ones, making it impossible to tell them apart. What counts is whether the distribution is authorized, and there are all kinds of legal considerations like fair use or Creative Commons licensing that can make it very hard to tell without detailed legal scrutiny in a court.

Even the assumption that physical copies are relatively easy to spot is dubious, as this fascinating essay from Andrew 'bunnie' Huang about counterfeit chips in military hardware explains. Here's the background:

Amendment 1092 to the Defense Authorization Act of 2012 is a well-intentioned but misguided provision outlining measures designed to reduce the prevalance of counterfeit chips in the US military supply chain.

< ...>

Under the proposed anti-counterfeit amendment, first-time offenders can receive a $5 million fine and 20 years prison for individuals, or $15 million for corporations; a penalty comparable to that of trafficking cocaine.

Huang then runs through the myriad ways in which counterfeits can be produced – and why spotting them is hard.

Alongside "trivial external mimicry" – authentic-looking but empty packages – he mentions the following: refurbished parts (authentic parts recovered from e-waste); rebinned parts (authentic but with markings changed to a higher specification); ghost-shift parts (produced in the official factory by employees, but unofficially); factory scrap (rejects and pilot runs recovered from the scrap heap); and second-sourcing gone bad (pin-compatible replacements produced by competitors remarked as superior brands.)

As Huang points out:

It’s one thing to inspect fruits and vegetables as they enter the country for pests and other problems; but it is misguided to require Customs officers to become experts in detecting fakes, and/or to burden vendors with the onus of determining whether parts are authentic, particularly with such high penalties involved and the relative ease that forgers can create high-quality counterfeit parts.

Indeed; and much the same could be said about asking local enforcement authorities or ISPs to detect whether digital copies are legal or not. It's yet another reason why ACTA is likely to have a chilling effect on the legitimate use of copyright materials online, and to throttle the next generation of digital innovation as a result.

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If ACTA Is So Great, Where Are All The Supporters Extolling Its Virtues?

Spotting Counterfeit Chips Is Hard; Spotting Digital Piracy Is Even Harder