The Real Steve Harlow

Public Knowledge and 15 other public interest, library, artist advocacy, and civil rights organizations sent a letter to the President yesterday, urging him to keep his promise of making government more open, transparent, and participatory and release the ACTA text.

The recently concluded negotiation of the Internet section of the Anti-Counterfeiting Trade Agreement (ACTA) in Seoul, South Korea lends urgency to this call for transparency. As Prof. Michael Geist has reported, a memo prepared by the European Commission (EC), one of the ACTA negotiation parties, explaining the provisions in the Internet chapter authored by the U.S. has leaked on the Internet and has raised fears that the Internet provisions of ACTA might further harm the already fragile rights users of digital content have. According to Prof. Geist ACTA’s Internet provisions may require countries to impose liability on Internet Service Providers (ISPs) for actions of their subscribers, provide certain safe harbors based on the ISPs instituting policies to prevent unlawful storage and transmission of infringing content and terminating customer access in appropriate circumstances, and require all negotiating parties to enact DMCA-type DRM regimes.

ACTA threatens other harms as well. As the letter notes:

With respect to ACTA’s substance, we remain concerned that the terms may not adequately account for all of the interests that would be affected. Intellectual property law requires a balance between the benefits conferred upon creators and the rights of the general public to access and use those creations in free discourse and for the public good. Yet the public and the industries enabling such uses would face crippling liability under an improperly calibrated intellectual property regime. ACTA could increase the risk of participating governments taking an imbalanced approach.

The letter also notes that negotiating ACTA as a trade agreement is problematic. Traditionally trade agreements have related to regulating tariffs on physical goods. While intellectual property (IP) has gradually been dragged under the umbrella of trade, it has always been like fitting a square peg in a round hole. The revenue maximization motive that applies to trade agreements cannot be reconciled with purpose of IP law: to promote progress by encouraging creativity and innovation while also protecting user rights. Yet because of the its trade bias, the USTR is likely to look at itself as the protector of the interests of major copyright and patent owners at the expense of innovators and consumers. Further, these interests, through their membership in the secretive trade advisory committees, are assured better access and greater ability to influence the USTR’s position.

The so-called “Anti-Counterfeiting Trade Agreement” (ACTA - summary) is bad news and it’s coming to a country near you – and soon.

The recent meeting in Seoul, Korea wrapped up the next chapter in IP with regards to the Internet – yes, the thing you are using right this very minute – and it’s not looking good. Michael Geist (Canadian Uber Law Professor) has a great series of summaries. There’s also a detailed series of notes from the Electronic Frontier Foundation here. PC World also has a write up.

I’m about to start my quest to obtain a copy of any leaked documents as they pertain to the Internet. In the meantime, I strongly suggest whether you are a casual Internet user or not – to get educated about what is happening, and to write to your local representative and protest against this insidious attack on our society.

These (deliberately) underhanded and shadowy dealings are clearly not in the interest of the common good, or else it would be debated and discussed openly and with public consultation.

What's the best way to communicate our horror at having the open internet shut down for the sake of media businesses too lame to adjust their business models to reflect digital realities?

Under the new ACTA, the United States and the world should be prepared for the following:

-ISPs as watchdogs: The ISPs will be forced to "proactively" police all user-contributed materials for copyrights. At that point, many of the world's most popular sites won't be able to exist as they do now, such as YouTube or Photobucket or Flickr which will be impossible to regulate given that thousands upon thousands of videos and pictures are uploaded every hour.

-Three Strikes: As in the UK and France, the "three strikes" piracy laws will be in effect, forcing ISPs to cut off multiple time offenders from the Internet after two warnings. If you are accused, you do not receive counsel or a trial.

-Worldwide DMCA: "Notice-and-takedown" letters must be adopted worldwide, requiring ISPs to take down any "infringing" material. There needs to be no evidence or trial, if the material gets flagged, it must be taken down.

-DRM: Full prohibitions on breaking DRM, no more "fair use." Archival presentation (backups) will be a thing of the past.