ACTA: No longer secret but still plenty to worry about

The secrecy did not do the process any good

It has been public knowledge for quite a while that many of the world's governments have been working on an "Anti-Counterfeiting Trade Agreement, but none of the details of what they were thinking was public knowledge, in spite of a few leaked documents. The people involved in the negotiations seem to have believed that a knowledgeable public would just get in their way.

The secrecy did not do the process any good since it ceded the field to the rumor mongerers, who did a fine job of painting a dire picture. In spite of this history of secrecy, an official copy of the text currently under discussion was released on April 21.

The current version is not as bad as the rumor mongers had painted -- it is not clear that anything could have been that bad -- but there is still a lot of reason to worry.

I expect that there would be little controversy if the proposed agreement was true to its title. The title makes it sound like the effort is limited to dealing with fake merchandise -- $10 Gucci handbags and the like. The draft text does deal with counterfeiting but it also deals with trying to limit violations of copyright. This last topic is the one that gets most observers' attention, with the copyright industry generally in favor and most other people worried. I expect there would have been less of a uproar if negotiators had been more open all along.

The Web site of the U.S. trade representative recognizes "the Obama Administration's commitment to transparency" but does so in conjunction with the release of a summary of information rather than the release of any real information. It is more than a bit sad if the U.S. government thinks that anyone would see such an action as representing "transparency." This has been something that one might get from a Ministry of Truth rather than what the last presidential campaign led us to expect.

The draft text is still in quite a state of flux, with many areas bracketed to indicate that agreement has not been reached. But one fact is clear enough: this is an agreement largely shaped by one side of the issue. The impact of the copyright industry is very clear. We have not seen earlier versions of the text, so there is no way to know if the imbalance was larger in the past, but the current version is clearly imbalanced.

Many observers consider U.S. laws like the Digital Millennium Copyright Act (DMCA) to be an example of the undue influence of the copyright industry and that some of its provisions are deeply harmful to the United States and the Internet. (see "Legally mandated stupidity"). But, taken as a whole, U.S. copyright-related law has some balance to it. The concept of "fair use" of copyrighted materials is well established in U.S. law, as is the idea that a carrier (such as an ISP) does not have the responsibility to police the actions of its customers. For example, a phone company cannot be held responsible if someone uses a telephone when committing a crime. This balance is generally absent from the draft ACTA text.

I could spend time detailing the issues with the current ACTA text but others, including the EFF have done a better job that I could in the space I have here. In addition, I do hope that exposing the ACTA process to a little light will result in a better balance in the future.

Disclaimer: Maybe the ability of Harvard researchers to stop light would be of use to the ACTA negotiators but I've not seen a university position on that use of this research, so the above argument in favor of light is my own.

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Scott Bradner

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