Behind ACTA

TechDirt has a fascinating look into the Anti-Counterfeiting Trade Agreement (ACTA) courtesy of a panel discussion on the topic hosted by Google this week as a build up to World’s Fair Use Day, which is today.

The panel featured lawyer Steve Metalitz, who serves as counsel to the International Intellectual Property Alliance (IIPA), James Love of Knowledge Ecology International (KEI), lawyer Jonathan Band and Ryan Clough, a legislative staffer for Rep. Zoe Lofgren (D-CA).

TechDirt notes that, after beginning with some standard talking points, things “got really interesting” when Love and Band offered their interpretations (i.e. read between the lines) of ACTA. In an ironic twist, while some of the participants had seen glimpses of actual ACTA documents—which they had to sign an NDA to view (and thus could not comment on publically)—they had to base their comments on leaked ACTA documents.

A few choice selections follow.

On the name of the agreement itself:

Furthermore, Band and Love took on the fact that it’s being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It’s got little to do with counterfeiting and little to do with trade. As Love explained, it’s like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are.

On the secrecy surrounding ACTA:

Love noted that the only reason to keep it secret is because the industry is "ashamed" of what’s in the document, and won’t come out and discuss it, knowing that the public would go nuts.

Love on what ACTA really is:

Love also pointed out that in what’s been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked — but without the consumer protections that were built into both agreements.

Much, much more is in the full article at TechDirt.

In related news, Rep. Mike Doyle (D-PA) is the latest politician to call for more transparency in the ACTA negotiations.

The next round of ACTA negotiations—the seventh so far— is due to kick off in Guadalajara, Mexico the week of January 25.

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  1. 0
    questionmark1987 says:

    I’m sorry but the "I’m not making any money off of it so I’m not infringing on their copyright" arguement is a crock of shit.

    Let’s say I make 10,000,000,000 copies of Darksiders the day it comes out and freely distribute it to anyone that would like a copy. Congratualtions, that’s BITORRENT. The infringer making money or not does not define if the actual owner of the IP is losing money, this is why you don’t have to make money to be considered infringing.

    For the most part I agree with you. It’s ridiculous to remove a youtube video or a blog post that’s talking about your game/movie/book/what have you, however there should be limits to that as well. Think about the shitstorm that occured when the whole "dumbledore dies at the end" thing was leaked before the book even came out. Artists should have a right to protect the experience their works provide.

    That being said educational purposes and fair use are one of the MOST defined aspects of copyright law if you even bothered to do the research. There are EXACT specifications on how many pages, seconds, etc. you can sample and display, if half the people who were using the fair use defense actual bothered to educate themselves on what fair use actually is they probably wouldn’t have gotten themselves in trouble in the first place.

    Final word, copyright is a necessary component of creation, without it no one would bother making something new because they could never guarentee they would get a return on their investments. Just because you personally don’t have anything you need protected by copyright it does not mean you have any understanding of the mentality of someone whose livelihood depends on their copyrights.

  2. 0
    ZippyDSMlee says:

    Cue zippy on the rag in…5…..4……..


    There’s been a lot of back and forth talk about ACTA and all the secrecy behind the negotiations on it. But what’s really happening behind the scenes? Some experts are pointing out that it’s a very profound shift in US policy — but done in a way that most people wouldn’t notice unless they’ve spent a lot of time understanding how DC politics works. Basically, the entertainment industry is driving through massive changes behind the scenes, and doing so in a way that lets them (falsely) say to the public "this really doesn’t change anything."

    So its pretty much what we all feared azz burn from the industry to widen their bottom line…..


    The National Journal’s Tech Daily Dose has a short summary of the event, but there were a lot more interesting things going on in the discussions — which got pretty heated at times. Metalitz began with the usual talking points from the entertainment industry on ACTA: (1) "copyright industries" represent a huge part of the economy and (2) piracy is a huge problem — thus, ACTA is important. Love challenged Metalitz on the numbers (and Metalitz simply said he’d have to get back to Love on the specifics), and it was nice to see Clough counter Metalitz’ numbers by pointing out that using the same counting methodology as the entertainment industry used to claim how "big" the copyright industry was, the size of industries that rely on exceptions to copyright law — like fair use — are even bigger. Love also countered Metalitz’ one-sided claim of "economic harm" from infringing by pointing out that almost every "infringement" could be seen as an economic benefit in some area as well — and discussed how research into medical cures — that was almost certainly infringing — was saving lives and how infringing on content for the purpose of teaching was making a smarter society.

    Large industry,large profit ,a larger market that they can not directly touch around them…. that sounds about right.


    The industry hates educational and news loop holes, it could be tighten up a bit to prevent flagrant abuse but if there is any wiggle room the CP lawyers will have their pound of flesh so meh.


    But that aside for the general populace trading and sharing should come down to gaining any money of the CP’d item, that should be the end all line in the sand where the dogs of hell…lawyers can cross.


    But where the debate got really interesting, and dug in well beneath the talking points, was when Love and Band (with an occasional hand from Clough) read between the lines to explain how these things tend to work, and what’s really going on, including the careful language choices by supporters of ACTA, such as Metalitz. They basically pulled back the curtains on the talking points and what happens in the backrooms during these types of negotiations. Amusingly, many on the panel had seen parts of some of the ACTA documents (briefly), but couldn’t talk about them since they had signed an NDA. Band, in particular, kept noting that his comments were not based on the document he signed an NDA over, since he couldn’t comment on that, but on a "leaked" copy that hit the internet. As Love and Band pointed out, the fact that they could only discuss the leaked content rather than what had actually been seen only served to highlight the ridiculousness of the process.

    If you know anything about politics its all about smoke and mirrors I sum up ACTA in a sentence could do it in 2 words but anal carnage dose not have a nice ring to it. They want to first off get rid of bits and pieces of fair use limiting what little "distribution"(posting pics,line for line lyrics or script) we can do and even if you comply a take down notice will ensure your silence as not many people will dare fight it much less question it.


    Distribution itself will be expanded to include torrents as well they are are files that tell you where the files are, it dose not matter where they are stored the whole distribution process (giving,getting) must be done through proper channels or you are breaking the law.


    Aside from that all forms of copying/copy circumvention hardware and software wise will be regulated copy circumvention even transcoding will be against the law tho because its poorly enforced and not so easily tracked it will not make much a dent on CD/DVD recorder and blank sales but its left in in order for the lawyers to attack when they smell blood in the water.


    With this in place I would not be surprised if fines are talked about and how local governments can join in with the media industry to track down and gather revenue from all the kids,teens and geeky slackers(raises hand) who scoff at the system and see no to little good in it.


    It seems my sentance became a drooling rant…..oh well…


    The key point, raised by both Love and Band, is that there are other forums for discussing international IP protections, such as TRIPS and WIPO — both of which have become increasingly more transparent and open to holding discussions with many different parties (including consumer rights people). As an example, Love pointed out that at the most recent WIPO meetings about IP issues, folks from EFF and Public Knowledge participated along with the big copyright interests — and he noted that as the discussion has become a more open and real conversation (rather than backroom dealing), the folks involved in WIPO and TRIPS are finally paying attention to the real impact of expansive copyright policy. Not only that, but the public has been able to speak up, and what’s being said online and elsewhere by people concerned about these issues is being heard within these organizations. But, of course, the copyright folks don’t like that.

    On top of that, Band pointed out, within TRIPS and WIPO there are numerous developing countries who are recognizing — correctly — that strict IP enforcement is designed solely to benefit a small group of companies in developed nations at the expense of the people in developing nations. Thus, they’re starting to push back on IP expansion. Combine all that, and you get ACTA — an entirely new forum to take on these issues, which (conveniently) only includes developed nations and leaves out the developing nations who had become so pesky. Metalitz pulled out the "but this won’t really change US law" gambit, to which Band pointed out that the real goal here was never to make huge changes to US law, but to eventually force all those developing nations to go along. Basically, you get the developed nations to agree to ACTA, written by the big copyright players, and then you start putting pressure on developing nations about how they need to conform to ACTA as well to join the club.

    In other words bend over we are doing nothing new…..ACTA needs to be scraped and TRIPS/WIPO paid more attention too….


    Even worse, the panelists explained multiple ways in which the claim that "this won’t change US law" is bogus. First, if that were really true, there would be no reason to keep it secret. Love noted that the only reason to keep it secret is because the industry is "ashamed" of what’s in the document, and won’t come out and discuss it, knowing that the public would go nuts. Love also pointed out that in what’s been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked — but without the consumer protections that were built into both agreements. And then, on top of that, the copyright industry put in dispute resolution concepts that greatly help it, not consumers. Effectively, it’s a way to claim that nothing changes — since it took the parts that favor the industry folks, but leaves out the protections and potentially aspects of the safe harbors.


    This whole thing is a circle jerk that doubles as a news story…it can’t get any worse….


    Furthermore, Band and Love took on the fact that it’s being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It’s got little to do with counterfeiting and little to do with trade. In fact, one of the "talking points" from the entertainment industry is that this is just an "executive agreement" rather than a "trade agreement" (which would require congressional approval). But why shove copyright into what’s officially a "counterfeiting" agreement? Because "counterfeiting" is one of those words that no one wants to be in favor of. No politicians will speak out against a treaty supposedly designed to stop "counterfeiting" since people intuitively believe that counterfeiting is bad. As Love explained, it’s like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are. He notes, tragically, that the only politicians who have spoken out against ACTA have spoken out about the transparency issue — but not about the substance of what’s being negotiated.

    Furthermore, Band pointed out another neat trick used by the entertainment industry with ACTA. Because they can pretend it’s not really an intellectual property agreement, but a "trade agreement," they can compare it to other trade agreements that were also negotiated in secrecy. But, as Band notes, this isn’t really a trade agreement. There may be good reasons for certain aspects of trade agreements to be negotiated in secrecy, as it actually could involve national secrets. But a multilateral negotiation on IP policy is not a trade negotiation and involves no state secrets. The only other reason to call it that is to pretend that the level of "secrecy" is normal, despite it being a totally different type of negotiation.

    I would be surprised it it had anything in it about piracy and I am not talking about downloading but actual bootlegging you know the stuff that really hurts the industry……


    Again, discussing the idea that ACTA wouldn’t "change" laws very much, a lawyer in the audience pointed out how incorrect that statement was, and noted how none of the countries negotiating had clear laws on secondary copyright liability to the level required by the leaked ACTA documents — and that even in the US secondary liability was far from settled law (and, in fact, aspects of it were disputed in various courts). But by mandating such secondary liability (things like an "inducement" standard for copyright infringement), it would mandate that countries go much further than they have already, sometimes in massive ways.

    Metalitz, once again, didn’t seem to think this is a problem — misstating the meaning of the Grokster rulings (and the IsoHunt ruling) way beyond what the court intended — and suggesting that other countries had a moral imperative to put in place similar laws. Not surprisingly, he singled out Canada — despite Canada’s strong copyright laws — insisting that ACTA "might finally drag them into the 21st century." By putting in place more draconian 19th century monopoly rules designed to prop up one industry? No thanks.

    Draconian Monopolies WTF!!!


    Why do I get the feeling they think each file shared is a file bought?


    There would not be this incoherent fervor otherwise…..


    All in all, it was an entertaining and enlightening talk. Mostly it was professional, though Metalitz regularly resorted to bizarre personal attacks and sarcastic digs at everyone else. He insisted that those who were complaining about secrecy "just don’t want any agreement at all." He mocked Love for claiming that earlier treaties were more open by saying that the anti-circumvention clauses came out of "one of those super open treaties that Jamie likes so much," and most obnoxiously of all, when Love asked why the industry and the US government couldn’t be more open on these things, Metalitz shot back that the US could absolutely be more open, "if it felt Jamie’s concerns were more important than progressing on an agreement." This suggests that no agreement could be reached if the US government were honest about it. That statement alone should be pretty telling. There was also a really telling Freudian slip at one point by Metalitz, though he didn’t realize it, and I don’t think most people noticed. In trying to explain why ACTA negotiations made sense, he insisted that because ACTA would benefit some industries deeply, it made sense for countries to meet about it. Notice that he switched from talking about industry at the beginning of the sentence to countries at the end. To him, it’s all the same. ACTA is really protectionism for a particular industry. The negotiations are effectively collusion, but perpetrated by gov’t officials acting as proxies for industry.

    Ick……. consumer guy needs some de cafe 0-o


    Well the media industry is made up of smaller industries… but still bad form man bad form…


    I definitely learned a lot at the session, but came out of it more afraid of ACTA than when I went in. But I certainly have a much better understanding of how ridiculous and misleading the entertainment industry’s talking points are on this discussion — and hopefully you do too.

    If its not balls out telling you up front (even in legalese) about what it will do then its out to subvert and limit your rights.




    God this all can be so easily simplified


    First off the common consumer can not infringe, no money being generated for sharing or site or file hosting(torrent=sharing indexing sites have to follow the same rules of sharing everyone else dose or be treated as a business whos digitally bootlegging),ect there can be no harm done, this also works for education and news if they do not make money off the class/segment/clip/episode,ect,ect


    2nd off fair use needs to be defined better not only for news but ad based blogging and what not so people can blog and youtube without the threat of it being taken down or being sued this also needs to include fair use for proper documentaries(not fake documentaries and the like, make up a panel to pass final judgment on this and news based fair use).


    What else is there? oh Modchips,copy circumvention,ect are all legal and can not be touched unless they have copy righted code on them when distributed in any form.

    AE: There is absolutely no need to take up that much space in the comments section.  In the future, please single space your paragraph breaks and paraphrase the quotes (or better yet, just reference the paragraph number you’re commenting on).

    Until lobbying is a hanging offense I choose anarchy! CP/IP laws should not effect the daily life of common people!

  3. 0
    hellfire7885 says:

    Here’s a tip, if you’re ashamed of it, DON’T FUCKING DO IT!!!!!

    Then again, anything so they dont miss a payment on their corporate jets I guess.If you have the money to own 50 cars, a jet, and a house your average house can comfortably fit in, I have zero sympathy if you lose a few dollars because someone whose to download your media and cut out the middle man.

  4. 0
    Ratros says:

    Yeah, figured as much.  They’re trying to blindside us.


    I once had a dream about God. In it, he was looking down upon the planet and the havoc we recked and he said unto us, "Damn Kids get off my lawn!"

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