SOPA Stopped: So Back to ACTA

So the Tweedledum and Tweedledee of copyright maximalist legislation, SOPA and PIPA, have been halted in their passage through the US legislative process. Of course, they're not dead, but are sure to return, zombie-like, either as modified versions of the current texts or new ones that turn out to be exactly the same as the old ones at their heart. However, the unprecedented action by the Net world to get the message across that these bills were not fit for purpose does mean that our attention can swivel back to somewhere else where bad things are happening: ACTA.

The key context is that the European Commission has approved it, but the European Parliament hasn't, so there's still a chance to kill ACTA by concentrating on the latter, and getting it to defend its electorate. For those of you who got distracted by all the SOPA/PIPA fun, and can't quite remember which from the extensive menu of freedom-threatening measures ACTA is trying to push through, here's a quick refresher.

ACTA, is by its very nature a trick – in fact, a double trick. It has been agreed between a self-selected group of countries outside any international organisations, and without any democratic oversight. Indeed, everything was discussed behind closed doors, and the hundreds of millions of people whose lives will be directly affected by it were not permitted to offer their views on anything at any point.

Strangely, though, the industries that make contributions to politicians' re-election in some countries, or who avail themselves of lobbyists who work very closely with national governments in the rest, were not only given access to drafts, but were allowed to contribute to the process.

ACTA is also a trick in that its name is "Anti-Counterfeiting Trade Agreement", and on the rare occasions that politicians have condescended to talk to the little people about it, much of the rhetoric used has been about the "dangers" of counterfeit goods like fake medicines or spare parts for aeroplanes. And of course, counterfeits are indeed a serious danger in those fields; but the deception is that alongside these physical counterfeits are slipped digital copies of intangible goods as if they represented the same dangers, and the same harsh laws against them will be applied to both.

Doing so is simply dishonest on the part of those drawing up the agreement: the honest thing would have been to create an APTA – Anti-Piracy Trade Agreement – alongside ACTA. That would have allowed the very different dangers to have been separated, and with them, the very different responses that were appropriate. Instead, to their eternal shame, the participating governments have used the shabby trick of bundling everything together in the vague hope that we might be stupid enough to accept them as if they were equivalent.

The end result of this fundamentally dishonest process conducted in guilty secret can hardly come as surprise: it is a completely pro-copyright industry, anti-end user document [.pdf]. For example, this is how damages are supposed to be calculated:

In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

And if those aren't enough, there are always these:

At least with respect to infringement of copyright or related rights protecting works, phonograms [sic], and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(i) pre-established damages; or

(ii) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or

(ii) at least for copyright, additional damages.

Clearly the sky is the limit here. And there are no minimum degrees of infringement specified for the above damages, which means that they could apply to even the most trivial acts – including completely innocent ones that happen by accident. Even more worrying is the following section on criminal enforcement:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

Notice that there is no definition of "commercial scale": this is another example of the thoroughgoing bad faith of the ACTA participants. When challenged on this troubling clause, the negotiators insisted that it only applied to "serious" criminal gangs engaging in infringement on a massive scale, and would never be applied to ordinary people swapping files, say. And yet, strangely, the negotiators refused to put that into the treaty.

Moreover, the treaty says "acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage". There's a huge amount of legal wiggle room there: especially in that "indirect economic advantage", which could apply to anything.

As you might expect, the section on "Enforcement of Intellectual Property Rights in the Digital Environment" also contains some dreadful things, like this:

A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party'slaw, preserves fundamental principles such as freedom of expression, fair process, and privacy.

It's hard to see how ISPs can be forced to give your name to copyright holders in a way that preserves your privacy, and it's not difficult to guess in whose favour that conundrum will be resolved.

Indeed, a detailed report written by the academics Douwe Korff and Ian Brown at the request of the Greens/European Free Alliance group in the European Parliament, concluded as follows:

Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end. This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and standards

And that's the key issue: this secretive, undemocratic treaty makes no attempt to be balanced. It's clearly just the wishes of the copyright maximalists translated into some supra-national document to avoid scrutiny at any level. But not only is it unbalanced, it's disproportionate.

The underlying assumption of ACTA is that there is a terrible copyright infringement problem to be solved, and that this fact somehow justifies such unremittingly harsh measures that trample on the civil liberties of ordinary people. As I've pointed out several times before, there is no evidence that there is such a problem. One of the good things to come out of the fight against SOPA was a broader awareness of this fact. Perhaps the best example of that is this excellent and very detailed debunking of the claimed economic harm from piracy by Julian Sanchez. As he says:

I remain a bit amazed that it's become an indisputable premise in Washington that there's an enormous piracy problem, that it's having a devastating impact on U.S. content industries, and that some kind of aggressive new legislation is needed tout suite to stanch the bleeding. Despite the fact that the Government Accountability Office recently concluded that it is "difficult, if not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole," our legislative class has somehow determined that—among all the dire challenges now facing the United States—this is an urgent priority. Obviously, there's quite a lot of copyrighted material circulating on the Internet without authorization, and other things equal, one would like to see less of it. But does the best available evidence show that this is inflicting such catastrophic economic harm—that it is depressing so much output, and destroying so many jobs—that Congress has no option but to Do Something immediately? Bearing the GAO's warning in mind, the data we do have doesn't remotely seem to justify the DEFCON One rhetoric that now appears to be obligatory on the Hill.

Not only is piracy not causing huge losses to the copyright industries, those pirate outfits that are supposed to be committing infringement on a massive scale, simply aren't. Here, for example, is an analysis of numbers being quoted with regard to the recently-seized Megaupload site:

Regarding the monetary harm of Megaupload's activities, the Justice Department characterized it, without explanation, as "well in excess of $500,000,000" since 2006. And although that number is probably meant to impress, it's somewhat baffling. Even without a per annum breakdown, it comes nowhere near the annual piracy losses claimed by the major industry groups—whether the BSA's $58 billion loss claims for software losses in 2010 or the "conservative" $26 billion estimate for movie, music, and software piracy from 2007, which lazy journalists still allow to circulate. This for the site that MPAA called "By all estimates… the largest and most active criminally operated website targeting creative content in the world." Since we're using made up numbers here, let's make up some more-and for the sake of argument, some extremely favorable ones for the Justice Department's effort to paint Megaupload as the big bad. Posit that all $500 million in losses came in 2011. Posit the $26 billion loss number. Megaupload's contribution to the pirate economy tops out at 2%.

ACTA emerges as a one-sided, deceitful document for the sole benefit of the industries whose unsubstantiated figures have been used to justify its framing. In this respect, it is even worse than SOPA, which sought to do many of the same things but had the virtue of at least minimal transparency. Now that SOPA and PIPA have been put on hold, the Internet community must come together to defeat the even worse and more unjust ACTA once and for all. I'll be writing more about how this might be attempted in due course.

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Copyright © 2012 IDG Communications, Inc.

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