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ACTA puts digital rights on the table, locks the public out of the room

For the more than 10 years I've been writing this column, I keep coming back to copyright-policy issues, and not just because I work in Washington. Laws and court decisions constrain the hardware, software and services we buy -- this was a subject of one of my first copyright-overreach rants, back in 2000.

The fact that these legal and judicial barriers don't seem to stop software fraud (I prefer not to use the term "piracy") or even halt the distribution of tools used to unlock "protected" digital files and formats doesn't seem to stop larger copyright holders from asking for new laws to defend their interests.

That brings me to today's column, a look at an international negotiation underway for a deal called the Anti-Counterfeiting Trade Agreement. ACTA shares the defects of such existing, unbalanced copyright laws as the U.S. Digital Millennium Copyright Act, then wraps them up in a layer of secrecy that is at best counterproductive and at worst contemptuous.

You have to wonder how the people involved in ACTA think they're going to sell this thing to the public. How do you make the headline description "SECRET COPYRIGHT TREATY" look palatable? How do you spin a situation in which the government -- that is, our hired employees -- won't specify the goals of a negotiation done in our name and concerning our rights?

"Absurd" is the right word for this. At one point during my no-attribution-by-name interview with a "U.S. trade official" yesterday, this person complained that much of the criticism of ACTA was based on "hearsay." Well, whose fault is that?

ACTA offers plenty of potential for trouble on public-policy grounds, too. Remember, you don't necessarily need a "you shall" or "you shall not" clause in the law to coax companies to act as you'd wish when incentives can suffice; see, for example, my colleague Cecilia Kang's post this morning about possible changes afoot at Verizon. Merely cementing the DMCA's sweeping "anti-circumvention" provisions into international law seems awful enough, considering the frequent abuses they've invited here -- my favorite example of DMCA overreach being when the National Football League sought to use a since-overturned copy-control system in digital TV to enforce local TV-coverage blackouts.

I don't want to get on any more of a rant here, so let me close by noting who I contacted for the column. In addition to my interview with that trade official, I spoke with representatives of the Recording Industry Association of America, the Motion Picture Association of America, the Consumer Electronics Association, the Electronic Frontier Foundation, Public Knowledge, Knowledge Ecology International, and Canadian law professor (and noted ACTA opponent) Michael Geist. I also chatted with two people who have seen the ACTA documents under a non-disclosure agreement (one with a public-interest group, the other working for a major American computing manufacturer); they didn't break their NDA but did offer useful guidance. Lastly, I checked with my former Post colleague Paul Blustein, who covered trade issues for us for years and now studies them at the Brookings Institution, to get some context about typical levels of disclosure in trade negotiations.

Does ACTA bother you or not? Let's discuss this issue in the comments -- or in today's Web chat, starting at noon.

By Rob Pegoraro  |  November 13, 2009; 11:16 AM ET
Categories:  Policy and politics  
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I consider the people involved with this traitors. If we had a sense of right or wrong in this country, we'd try them for treason and then let the jury decide the penalty.

I know which way I'd vote.

Posted by: Ombudsman1 | November 13, 2009 9:46 PM | Report abuse

Wow, two whole comments (in the web chat) and one lone-nut email which probably did not make ito through your spam filters because the writer has a funny name. Sorry, only one they gave me.

I did see an article about this in The Register(UK), but the subject seems low interest.
1) (web chat) People want to get their toys working by Thanksgiving so they can buy more toys. Can't blame them for that.
2) The chances of US Patent Law export is null. There would be torches, pitchforks and an armed escort for WIPO *out* of Switzerland to some unnamed cave, if they are lucky.
3) The fallback is a modified* US Copyright Law export. *Naturally this has to be done in secret. Maybe the RIAA will have better PR "luck" suing tweens from Countries we never heard of.

Posted by: gannon_dick | November 13, 2009 10:56 PM | Report abuse

The worst part is, Obama's doing this and using "national security" as a way to make secret laws.

OBAMA did it!

What the hell is wrong with him? Every decision he's made has contradicted what he said as a candidate. Everything he's done is what Checey would have done.

--faye kane, homeless brain
Read more of my smartmouth opinions at

Posted by: Knee_Cheese_Zarathustra | November 14, 2009 6:15 AM | Report abuse

The fundamental flaw underlying ACTA is that it is no international legal treaty but a multipartisan "trade agreement" which covers regulatory/legislative matters. It is very common to keep trade agreements confidential, this is what makes "forum shopping" so questionable for the functioning of a democratic rule. See my recent blog article:

What the European Commission DG Trade basically told at a hearing was "we are your friends" (but we won't let you see what we negotiate for you). By training and practice Trade officials are one-sided maximalists. And they are pretty arogant towards the democratic process and political representatives. You know, you could be in favour of industrialisation but an undemocratic administrations lets the peasants cook "steel" unless someone finds out there was a problem with food supplies...

Posted by: arebentisch | November 14, 2009 9:22 AM | Report abuse

Imagine if publishers had demanded that printing presses be illegal for all but them. This is what is happening here. The problem with ranting about it is that no one seems to have any suggestions on how to stop this from happening.

Posted by: lostinthemiddle | November 14, 2009 9:53 AM | Report abuse

Secret negotiations are still a step up from just changing the law in the middle of the night, like Mitch Glazier did with the "work for hire" clause in the copyright laws.

Five top Dept of Justice officials are former RIAA lawyers. So even without ACTA, they already have control of enforcement.

Yes, the DMCA has been a pain, but other than that, it seems rather useless toward changing behavior. The content "industries" have not gained anything from this except ill will. If they want to take that spirit globally, well...

Posted by: wizard2 | November 14, 2009 2:55 PM | Report abuse

You know they keep pushing Digital Rights and defend it based on dimishing sales, do they ever consider perhaps that they are pricing themselves out of the market.

Just released CD's and movie's are selling for $24.95 and up, I know I've not bought and have instead sought alternative artists and sources. I don't need the latest mainstream artist music and I can wait easily wait a year if necessary to watch on TV.

This is from someone who likes to collect especially music.

Posted by: sasha11 | November 14, 2009 7:23 PM | Report abuse

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