Reading Between The Still Secret Lines Of The ACTA Negotiations
from the the-politics-of-politics dept
Yesterday I attended a fascinating panel discussion about ACTA, hosted by Google at its Washington DC offices, as a lead-in to today's World Fair Use Day event. The four participants each brought a different perspective to the panel, though only one, Steve Metalitz, a lawyer who represents a coalition of entertainment industry interests, was there to defend ACTA. Jamie Love of KEI was his main sparring partner, though Jonathan Band (a lawyer representing various tech and library organizations) made plenty of insightful points as well. The final participant was a legislative staffer from Rep. Zoe Lofgren's office, Ryan Clough, who tiptoed the line of expressing some concern about ACTA, without fully coming out against it.
The National Journal's Tech Daily Dose has a short summary of the event, but there were a lot more interesting things going on in the discussions -- which got pretty heated at times. Metalitz began with the usual talking points from the entertainment industry on ACTA: (1) "copyright industries" represent a huge part of the economy and (2) piracy is a huge problem -- thus, ACTA is important. Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics), and it was nice to see Clough counter Metalitz' numbers by pointing out that using the same counting methodology as the entertainment industry used to claim how "big" the copyright industry was, the size of industries that rely on exceptions to copyright law -- like fair use -- are even bigger. Love also countered Metalitz' one-sided claim of "economic harm" from infringing by pointing out that almost every "infringement" could be seen as an economic benefit in some area as well -- and discussed how research into medical cures -- that was almost certainly infringing -- was saving lives and how infringing on content for the purpose of teaching was making a smarter society.
But where the debate got really interesting, and dug in well beneath the talking points, was when Love and Band (with an occasional hand from Clough) read between the lines to explain how these things tend to work, and what's really going on, including the careful language choices by supporters of ACTA, such as Metalitz. They basically pulled back the curtains on the talking points and what happens in the backrooms during these types of negotiations. Amusingly, many on the panel had seen parts of some of the ACTA documents (briefly), but couldn't talk about them since they had signed an NDA. Band, in particular, kept noting that his comments were not based on the document he signed an NDA over, since he couldn't comment on that, but on a "leaked" copy that hit the internet. As Love and Band pointed out, the fact that they could only discuss the leaked content rather than what had actually been seen only served to highlight the ridiculousness of the process.
The key point, raised by both Love and Band, is that there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties (including consumer rights people). As an example, Love pointed out that at the most recent WIPO meetings about IP issues, folks from EFF and Public Knowledge participated along with the big copyright interests -- and he noted that as the discussion has become a more open and real conversation (rather than backroom dealing), the folks involved in WIPO and TRIPS are finally paying attention to the real impact of expansive copyright policy. Not only that, but the public has been able to speak up, and what's being said online and elsewhere by people concerned about these issues is being heard within these organizations. But, of course, the copyright folks don't like that.
On top of that, Band pointed out, within TRIPS and WIPO there are numerous developing countries who are recognizing -- correctly -- that strict IP enforcement is designed solely to benefit a small group of companies in developed nations at the expense of the people in developing nations. Thus, they're starting to push back on IP expansion. Combine all that, and you get ACTA -- an entirely new forum to take on these issues, which (conveniently) only includes developed nations and leaves out the developing nations who had become so pesky. Metalitz pulled out the "but this won't really change US law" gambit, to which Band pointed out that the real goal here was never to make huge changes to US law, but to eventually force all those developing nations to go along. Basically, you get the developed nations to agree to ACTA, written by the big copyright players, and then you start putting pressure on developing nations about how they need to conform to ACTA as well to join the club.
Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret. Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts. Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements. And then, on top of that, the copyright industry put in dispute resolution concepts that greatly help it, not consumers. Effectively, it's a way to claim that nothing changes -- since it took the parts that favor the industry folks, but leaves out the protections and potentially aspects of the safe harbors.
Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. In fact, one of the "talking points" from the entertainment industry is that this is just an "executive agreement" rather than a "trade agreement" (which would require congressional approval). But why shove copyright into what's officially a "counterfeiting" agreement? Because "counterfeiting" is one of those words that no one wants to be in favor of. No politicians will speak out against a treaty supposedly designed to stop "counterfeiting" since people intuitively believe that counterfeiting is bad. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are. He notes, tragically, that the only politicians who have spoken out against ACTA have spoken out about the transparency issue -- but not about the substance of what's being negotiated.
Furthermore, Band pointed out another neat trick used by the entertainment industry with ACTA. Because they can pretend it's not really an intellectual property agreement, but a "trade agreement," they can compare it to other trade agreements that were also negotiated in secrecy. But, as Band notes, this isn't really a trade agreement. There may be good reasons for certain aspects of trade agreements to be negotiated in secrecy, as it actually could involve national secrets. But a multilateral negotiation on IP policy is not a trade negotiation and involves no state secrets. The only other reason to call it that is to pretend that the level of "secrecy" is normal, despite it being a totally different type of negotiation.
Again, discussing the idea that ACTA wouldn't "change" laws very much, a lawyer in the audience pointed out how incorrect that statement was, and noted how none of the countries negotiating had clear laws on secondary copyright liability to the level required by the leaked ACTA documents -- and that even in the US secondary liability was far from settled law (and, in fact, aspects of it were disputed in various courts). But by mandating such secondary liability (things like an "inducement" standard for copyright infringement), it would mandate that countries go much further than they have already, sometimes in massive ways.
Metalitz, once again, didn't seem to think this is a problem -- misstating the meaning of the Grokster rulings (and the IsoHunt ruling) way beyond what the court intended -- and suggesting that other countries had a moral imperative to put in place similar laws. Not surprisingly, he singled out Canada -- despite Canada's strong copyright laws -- insisting that ACTA "might finally drag them into the 21st century." By putting in place more draconian 19th century monopoly rules designed to prop up one industry? No thanks.
All in all, it was an entertaining and enlightening talk. Mostly it was professional, though Metalitz regularly resorted to bizarre personal attacks and sarcastic digs at everyone else. He insisted that those who were complaining about secrecy "just don't want any agreement at all." He mocked Love for claiming that earlier treaties were more open by saying that the anti-circumvention clauses came out of "one of those super open treaties that Jamie likes so much," and most obnoxiously of all, when Love asked why the industry and the US government couldn't be more open on these things, Metalitz shot back that the US could absolutely be more open, "if it felt Jamie's concerns were more important than progressing on an agreement." This suggests that no agreement could be reached if the US government were honest about it. That statement alone should be pretty telling. There was also a really telling Freudian slip at one point by Metalitz, though he didn't realize it, and I don't think most people noticed. In trying to explain why ACTA negotiations made sense, he insisted that because ACTA would benefit some industries deeply, it made sense for countries to meet about it. Notice that he switched from talking about industry at the beginning of the sentence to countries at the end. To him, it's all the same. ACTA is really protectionism for a particular industry. The negotiations are effectively collusion, but perpetrated by gov't officials acting as proxies for industry.
I definitely learned a lot at the session, but came out of it more afraid of ACTA than when I went in. But I certainly have a much better understanding of how ridiculous and misleading the entertainment industry's talking points are on this discussion -- and hopefully you do too.
Update: If you have an hour and a half to spare, Google has now posted a video of the session: