ACTA: The copyright treaty that won’t die

This week’s On the Media has an excellent 4-minute segment on ACTA featuring Harvard Law Professor Jonathan Zittrain.

ACTA? Isn’t that long gone?

Well, yes. Back on July 4, the European Parliament voted ACTA down, leading to a flurry of reports like this one from Wired’s UK Site:

Acta la vista, baby! European Parliament rejects controversial trade agreement

The European Parliament has rejected the controversial Anti-Counterfeiting Trade Agreement (Acta) by a vote of 478 to 39, which means that it cannot become law in the EU. This is the first time that the Parliament has exercised its Lisbon Treaty power to reject an international trade agreement.

Acta was a proposed international agreement that aimed to create international standards on intellectual property rights enforcement. Critics likened it to the Stop Online Piracy Act (Sopa), and argued that it would stifle freedom of expression on the internet, brand individual file-sharers in the EU as criminals, and introduce disproportionately harsh sanctions for breaches of copyright.

Google the phrase “ACTA is dead” and you’ll find nearly 200,000 hits. Hasn’t rigor mortis set in by now?

Well, there’s dead and there’s undead. Zittrain observes that the ACTA corpse has become a grisly organ donor, “with various constituent parts of it able to be sewn on to other creatures”. OTM co-host Brooke Gladstone listed some of the recipients of ACTA DNA: SOPA, PIPA, TPP, and CETA. That last one, the Comprehensive Economic and Trade Agreement, is currently under secret negotiation between Canada and Europe.

The key word here is “secret”, and that’s Zittrain’s main concern:

We don’t know what’s in it until it suddenly is dropped upon everybody for ratification. … It’s the attempt to do this without the best disinfectant, which is sunshine. And if there is the sunshine and you have a process that’s more open you really will have geeks who are keeping an eye on things, they’ll raise the alarm if they see something that worries them, there’ll be a discussion about it, we’ll see if people are rallied about it, and that’s how you do things in a democracy.

Well, that’s how you do things in a democracy if you want to use the democratic process. But the motivation behind all of these initiatives is not to follow the popular will, but to prop up the business model of the content industry. This is a business model based on monopoly and artificial scarcity that is untenable in a digital world and undermines the reason U.S. copyright law exists. Without rescue by law or treaty, the legacy industry is doomed, so it should come as no surprise that the undead keep haunting us. And, as Zittrain says, “You can get fatigued, you can get exhausted again and again trying to beat this back in every form.”

But remember: Vampires hate sunshine.


Chris O’Brien’s 4-part program to “move the piracy debate forward”

Mercury News columnist Chris O’Brien asks, “After SOPA defeat, how can we move the piracy debate forward?“. He answers his own question with a 4-part program:

  1. Cool the rhetoric.
  2. Get better data.
  3. Be transparent.
  4. Avoid politics.

What’s not to like? So let’s look at some details.

Cool the rhetoric. O’Brien says, “It’s unhelpful and dangerous to take a heated situation and try to escalate it to nuclear levels.” As examples, he points to a blog headlined “Kill Hollywood” as well as Chris Dodd’s threat to withhold political contributions from President Obama and from legislators who wouldn’t stay bought. Good advice, but let me add a few more suggestions:

  • Stop using the word “piracy”. Pirates wield AK-47s, hijack ships, and kill people. Even Kim Dotcom hasn’t been accused of any of these (except maybe a virtual AK-47 in Modern Warfare 3).
  • Also stop talking about “content theft” and “stealing”. “Content theft” is when someone steals the CD you bought. The issue here is copyright infringement, which is when someone copies the CD you bought. One way to tell the difference is that stealing the CD is punishable by a small fine and/or a few months in jail, while copying the CD is punishable by a fine of up to $2.5 million plus a year in jail.
  • And stop equating copyright infringement with counterfeiting. In particular, stop suggesting that unauthorized sharing of movies has anything to do with deaths from phony pharmaceuticals. If you can’t tell The Dark Knight from the dark night, let someone else take over the argument.

Get better data. As O’Brien observes, “opponents simply don’t believe the content industry’s claims,” and not without reason: PolitiFact’s Truth-O-Meter recently said “False” to chief SOPA sponsor Lamar Smith’s oft-repeated claim that “Illegal counterfeiting and piracy costs the U.S. economy $100 billion every year.” So, yes, by all means, let’s do the numbers, but let’s do them right:

  • Don’t count each unauthorized download as a lost sale. That assumption violates common sense and everything we know about human nature.
  • Measure ends, not means. Copyright exists for exactly one reason, “to promote the progress of science and useful arts”. When you hear “financial rewards for the creation of art”, remember that money is the means, not the end. It’s the goal of Copyright to create as much art as possible, not to generate as much money as possible.
  • Don’t presume the existing business model and don’t narrowly define the music business or the movie business. The music business is not the commercial labels; the movie business is not Hollywood. For help avoiding legacy-business-induced myopia, read The Sky Is Rising by Michael Masnick and Michael Ho.

Be transparent. That is, avoid back-room deals. O’Brien suggests posting proposals for all to read and comment on, and carrying out negotiations and discussions in the light of day. To which I’d add:

  • Put an end to the ongoing secret negotiations and arm-twisting related to ACTA and TPP. One reason no one trusts the entertainment industry is that, even after decades of laws strengthening copyright, there always seems to be one more working its way through the system, which emerges as a fully developed fait accompli. A transparent post-SOPA discussion is pointless if a secret parallel agenda is being pursued at the same time by one of the parties.

Avoid politics. In O’Brien’s words, “Any dialogue will likely have to come from outside Congress.” Venture capitalist Fred Wilson made the same point a few days ago in the context of his proposal to create a blacklist/whitelist approach to Web-site blocking:

  • “We don’t need legislation. We need a negotiated solution between the tech industry and content industry. The minute you introduce Washington and lawyers and courts, it’s war. I don’t think that’s where we want to solve this problem. Let’s solve this problem in boardrooms and meeting rooms, not in Washington.”

We’re seeing more and more of these “Where do we go from here?” articles, and O’Brien’s provides another increment of grist. Sooner or later the mill will start turning again.