actafacts.com, a new pro-ACTA website, made the rounds earlier this month, along with a new report claiming ACTA would create billions of euros in growth and hundreds of thousands of new jobs. Glyn Moody was quick to pull the facts apart. FSF called it “3rd-rate astroturfing” and EDRI suspected “parody.” This week actafacts.com resurfaced on fliers at the European Parliament and on the entrance door to the EU Trade committee, prior to an important vote on whether to recommend the European Parliament to reject or accept ACTA on July 4th. The flyer, displaying a majestic container ship plowing through a quiet sea, was as clear in its advocacy — “A vote against ACTA would be a vote against Europe’s economy. Get the facts at actafacts.com” — as it was unclear about its origins (potentially violating EU rules). Oh, and the container ship image? Yeah, it’s infringing according to Jeremie Zimmermann. This, and other last-minute-lobbying-attempts, seem to have had little impact. The trade committee voted down ACTA. However, it’s interesting to analyze who’s actually behind this now that the monster has reared it’s head.

The registration info of actafacts.com is anonymized, but the the HTML source of the page points, rather clumsily, to the c: drive of a Mr. Jeff Hardy.

Jeff Hardy happens to be director of BASCAP, Business Action to Stop Counterfeiting and Piracy, which is a subdivision of the International Chamber of Commerce. The ICC describes itself as “the voice of world business,” and is an immensely powerful lobbying group, promoting the specific interests of large member companies.

It’s no surprise that American pro-ACTA lobbyists would pull thinly veiled stunts like these, though one would expect them to be able to hire better web designers (and check the HTML code for origin clues). What IS surprising is that the European Commission treats the group’s “facts” as such.

One of the problems with the astronomical figures Trade Commissioner De Gucht has been using in defense of ACTA, is that they cover both supposed losses due to counterfeiting of tangible (physical) goods, and non-tangibles, ie. digital / Internet piracy all conflated together. While he can lean on credible, reasonably well-sourced numbers on physical counterfeiting from the OECD, there are none on Internet piracy. That’s because, as OECD economist Danny Scorpecci explained to me, the data is simply too unreliable; too many factors need to be considered.  

So, I repeatedly asked De Gucht’s office to provide numbers backing the claim that internet piracy hurts the EU economy, and causes job losses in the creative sector. His team returned with one report: Building a Digital Economy: The Importance of Saving Jobs in the EU’s Creative Industries from TERA consultants, commissioned by — you guessed it — BASCAP, Jeff Hardy’s team. The report “predicts losses due to [digital] piracy to reach as much as 1.2 million jobs and €240 billion in retail revenue by 2015 (…) assuming no significant policy changes.” I asked whether the commissioner had taken into account the clearly biased and, according to the SSRC, misrepresentative nature of the report’s claims.

John Clancy, EU Trade Spokesperson, rejected that criticism offhand, without actually responding to it: “such analysis does not suddenly make the report invalid and the information contained in it unfounded”. Well, that depends. Joe Karaganis of the Social Science Research Council dismissed the TERA report entirely because of its use of “a methodology developed by Stephen Siwek in a series of papers commissioned by the MPA, RIAA, and ESA [aiming to] expand the debate about piracy beyond claims of losses to specific industries to losses to national economies, including especially lost jobs”. Karaganis argues that the contrary may well be the case, and that the EU may well “realize a strong net welfare benefit from audiovisual and software piracy” because money is spent elsewhere, not lost, and because the supposed job losses would happen in the US, thus affecting the trade balance positively for the EU. Siwek’s analysis does not even take into account this possibility.

When I spoke to Jeff Hardy in April about the report he defended the methodology and the use of Stephen Siwek as an advisor: “Our mission is to paint a picture with numbers. We try to be conservative, even though the numbers are gigantic. This is an illegal business. This is black market. We don’t have all the numbers, but someone has to step up. We need to have an understanding of the magnitude of the problem, that this is a real, economic loss.” And, apparently, the way to do so is not to address the facts, but to just make up numbers.

Hardy told me that the ICC hired TERA after their HADOPI report, which concluded that France would lose 10,000 jobs in the creative industry by 2012 unless France adopted the “3 strikes” law. This report uses the same methodology, dubbed “copyright math” by Rob Reid in his $8 billion iPod TED Talk. So, why, when everyone else — even the US Government — admits these inflated piracy numbers are bogus, does the EU Commission keep repeating them? This must be a successful turn of events, I asked Jeff Hardy? “Well, assuming our number is big enough, it’s successful”, he replied.

Yes, that’s right, in a refreshing moment of candor, Hardy appears to be admitting that all he cared about was making sure the number was “big enough,” not particularly “accurate.” That seems like a “fact” worth keeping in mind when you judge these “actafacts.”

Today, Danish Minister of Culture Uffe Elbæk announced the death of Scandinavian-flavored 3 strikes plans that would force ISPs to issue warning letters to users suspected of copyright infringement. Instead he introduces eight new initiatives aiming at “strengthening the development of legal services” and “motivating users to go for legal solutions”.

While disconnection was never part of the letter model, its passage looked like a foregone conclusion thanks to heavy lobbying efforts by IFPI and friends, the so-called RightsAlliance. (Yes, the bogus numbers folks we’ve covered before.)

Then, governments changed, and the new Minister of Culture (who’s in charge of copyright, but, curiously, has no influence over ACTA) started listening to common sense. Elbæk’s eight initiatives signal a sea change and, seemingly, an end to a symbiotic relationship with the entertainment industry lobby. As an example, former Head of Copyright Office Peter Schönning left the ministry after, conveniently, implementing an EU directive in a way that made DNS blocking of The Pirate Bay possible shortly before joining IFPI as chief prosecutor – and winning the precedence-setting case. Recently, Danish ISPs were ordered to block Grooveshark.

Instead of warning letters, a “positive” information campaign will teach the Danes about “the many good possibilities to legally access music, films and books”. A task force will “proactively” inform users of illegal services about alternatives in comment fields and on social networks. An informal innovation forum for new, legal business models is also planned.

“I believe this is the right way to go,” says Elbæk.

Interestingly, Elbæk, in an interview earlier today, gave credit to the demonstrations against ACTA earlier this year, which, “created a polical context which made the letter model nearly impossible”.

Co-founder of the Danish internet think-tank Bitbureauet and ACTA-critic Henrik Chulu says, “We’re pleased about the news, but there are still problems. First of all, this cements the problematic DNS-blocking scheme already in place. Secondly, it opens up for DMCA-style notice-and-takedown procedures. As we’ve seen in the US this inevitably leads to abuse because it sidesteps courts and privatizes enforcement.”

Here’s the original press release (in Danish) and a translation