No, ACTA Secrecy Is Not 'Normal' — Nor Is It A 'Distraction'
from the don't-make-us-laugh dept
Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we’ve seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it’s been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what’s going on).
One of the points they make is to say that the “secrecy” is no big deal, because it’s “normal” for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don’t support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.
A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It’s as if they think that we’re all idiots who haven’t seen how lobbyists have historically relied on the line “but we must live up to our international obligations” to push through all sorts of laws the public does not support.
A third point raised is that this isn’t a “treaty” but a “sole executive agreement,” so we shouldn’t worry since it can’t change the law. Except, by categorizing it as such, it’s actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that’s in the agreement, and then just wait for the “but we must live up to our international obligations” to start pouring out of lobbyists and industry lawyers’ mouths.
A fourth point of attack is that some of the descriptions of what’s being discussed are inaccurate. Well that’s funny since a big part of the problem is that we’re not even being shown what’s being discussed. So, yes, as we’ve been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don’t want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say “oh, that’s no different than what we have already.” Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what’s happening in South Korea now, since that’s what the new agreement is supposedly “modeled” on. And, it’s not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they’re barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That’s not the sort of world most of us want to live in.
Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are “a part of the process.” That doesn’t take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on “very short notice” in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy — but the process included NDAs that prevent much discussion about what was seen. That’s not serious involvement.
Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it’s having its best year ever). But the most ridiculous is this:
“Outcries on the lack of transparency in the ACTA negotiations are distraction.”
Yes, that’s right, making sure that the public knows what the hell its government is signing up for is a “distraction.” Could the MPAA’s lawyers be any more obvious in brushing off the concerns of the public than by calling it “a distraction.” To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn’t matter. As Jamie Love notes, “transparency isn’t a ‘distraction.’ it is an obligation of governments, to those it wants to govern.”
So, yes, perhaps some of the discussion has suggested things that will go beyond what’s actually in the document, but it’s hilarious to see industry lawyers suggest that those concerned about our rights are “creating a moral panic” when the only reason there’s concern at all is because the public is not even allowed to see what’s being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA’s letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.