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Chat with Michael Geist on secret copyright rules

Michael Geist, an Internet law professor at the University of Ottawa, thinks there is so much wrong with trade negotiations on anti-counterfeiting.

The least of which is that the dozens of countries participating in anti-counterfeiting talks have been secretly meeting for two years around the world to hash out details on Internet copyright rules. As reported last week, no one outside the meetings have been able to hear the discussions and the public isn’t able to weigh in.

Most of all, online copyright, which is detailed in one chapter of a draft treaty, doesn’t have to do with counterfeiting, said Geist, who writes a popular blog tracking the ins and outs of the secret talks…

His biggest concern: a “three strikes you're out” rule, according to leaks by participants in the meeting. That provision could lead an Internet service provider, like Cox, AT&T, Verizon or Comcast, to shut down your family’s service for one year if your kid, for example, illegally exchanges the latest Lady Gaga music clip over the Web. And if your service provider doesn't shut you down, it could face up to $150,000 in fines, he said.

Another round of meetings wrapped up last week in Seoul, South Korea. At least a few more meetings will take place before a final treaty is expected next fall.

Geist spoke in a phone interview about why he thinks these talks could set the rules of how Internet users access movies, music and publications over the Web. A treaty could also change the role of Internet service providers who will have a much heavier hand in playing police over illegal activity.

Where are we in the timeline of the Anti-Counterfeiting Trade Agreement?
They just finished the 6th round of talks and they will have another meeting in January in Mexico and probably three or four more rounds before a settlement text. That will probably be around fall and then have to be adopted by each country.

Why the secrecy? Is that because it's a trade negotiation and highly sensitive?
To me that is marketing. The Internet part shows that this is not fundamentally about trade. It seems that this is entirely by design to move away from transparency to a small coalition of the willing who are determined to keep it as secret as possible.
This is a copyright agreement. And any multilateral negotiation about intellectual property is far more transparent than ACTA.

Then who is informing the participants drafting these rules? Public interest groups, technology companies, content companies, scholars?
That was one of big concerns. Certainly the public interest side wasn’t being heard at all. Frankly there’s been very little information flow and most have come through leaks.

Explain what you see wrong with the Internet portion of this draft treaty.
There are 6 broad chapters to ACTA and the one that is by far getting the most attention is the (online) intellectual property chapter. The Internet provisions show this has nothing to do about counterfeiting.

One provision that is controversial is the role of the Internet service provider. The background of all this is big push in a number of countries to get Internet providers to play a more aggressive role in policing their networks.

By whom? Who is pushing them?
The content industry. As represented perhaps in this instance by the USTR. But it includes the music, movie and software industry. They have all been very aggressive.

So how would ISPs police their networks?
One way is called a notice and takedown system. If a subscriber infringes, then an ISP or an intermediary site like YouTube, would have to take down that content. Big shift in the ACTA is potentially to ratchet up the requirement to a notice and termination. This is what has people scared. How it works is that if you have three of these allegations of infringement -- and note there is no court or hearing on whether there is an actual infringement -- then you’ve gotten three strikes and then you’re out. That means your Internet access is cut off.

Notice and termination is incredibly disproportionate and the notion that we might see its way through a secret treaty is incredibly troubling. And then the ISPs may share information about customers who have been terminated.

How long are those users kicked off?
It could last for one year and not just for an individual. It could be for an entire household if one member has three allegations of copyright infringement.

Are ISPs okay with this? Why would they want to police their networks?
They are generally okay with notice and takedown. But the notice and termination is much stronger. One element that comes into play here is that U.S. law has provided a safe harbor for intermediaries if they do things like notice and takedown. If you take down content upon receiving notice, then the ISPs won’t be liable for any infringement claims.

Okay hear what you are saying, but what about content producers? How else can movie, music and publishing companies protect their expensive and valuable content and continue to make money?
Solutions lie in business models, not finding ways to fight the Internet through legal approaches. Some of these industries have been fighting change for better part of decade and that hasn’t gotten them anywhere. It’s like they want to put the toothpaste back into the tube and say if only we enforce this things will change. And there are shades of grey: where does fair use come into play for non-commercial uses, for example.

So what’s the best solution?
Wish there were good answers. This is being seen in such a negative light by so many people. The only chance at rehabilitating this is to come clean with an open process. And this is clearly not a trade treaty on anticounterfeiting. Because even the sources known as the biggest sources of pirating aren’t at the table: Russia, China, Indonesia and Pakistan.

photo credit: Canadian Broadcast Corporation

By Cecilia Kang  |  November 12, 2009; 8:00 AM ET
Categories:  AT&T , Comcast , copyright  | Tags: at&t, comcast, cox, verizon  
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Comments

I would point out that ACTA, like any other treaty, will have to be ratified by the legislatures of the countries involved. There will be plenty of opportunities for lobbying by Geist's US-backed Samuelson Glushko Canadian Internet Policy and Public Interest Clinic, as well as the full panoply of NGOs that typically occupy themselves in Geneva.

These groups will be able to lobby to the full extent of the law, and the public will have full access to that process as it does with any other treaty. The telcos are perfectly capable of protecting their own interests and don't need Geist to hold their hand.

So what is the difference between ACTA and say a WIPO treaty? The difference is that the complex work of crafting an international agreement on these important issues is done without the usual pile-on of NGOs whose main interest seems to be in stopping a legal framework from being created that might actually protect journalists, news organizations, authors, artists and songwriters, and sustain a professional creative class and the fourth estate.

Who can blame the trade officials from reserving the usual onslaught by the self-appointed for the duly elected?

Geist's feeble attempts to hide behind wedge issues like "the content industries made them do it" completely ignores the real issue for these groups--self-preservation and the bureaucratic imperative of justifying their continued existance.

With newspapers folding all over the world, not to mention the severe drops in revenue in the creative community, it is not surprising that world leaders are coming together to actually get something done at long last.

Posted by: chris90 | November 12, 2009 11:38 AM | Report abuse

Chris90:

I understand what you're saying about protecting the creative class, but the main objections to the ACTA are with the severity of its terms, the ratio of international involvement, and the fact that very little of this deals with trade. This really comes down to an internationally agreed upon definition of fair use. Also, how is this going to defend all members of the creative class? Is it going to be enforced against plagiarism? Copyright infringement for individual artists? This is mainly to benefit a few large groups, while the rest of us are still out in the cold.

The burden of proof is also objectionable. To say "Three strikes and you're out" is fine, but who decides whether or not you were even at bat? The requirement for actual evidence is nonexistent, which is rather alarming considering the financial implications.

While I agree with strengthening intellectual property definitions and making a clearer definition of fair use, the ACTA does neither of those things. It is a thinly masked offering to the record and movie industries.

Posted by: BurningRiver | November 12, 2009 1:30 PM | Report abuse

Who represents the public here and not the "stakeholders" who want to bypass Congress and receive special treatment? When the details are disclosed, as in the EU recently, an outcry does not lead to dropping the scheme, but rather in compromises that still make the public interest worse off. US national copyright law, including rights of fair use (fair dealing), should not be negotiated away so that Hollywood can enjoy monopoly rights. Instead, Congress should revisit copyright law for the Internet age and restore balance between the public interest and copyright rent seekers. Customs agents and ISPs are not equipped to enforce criminal copyright law, it should remain civil infringement that requires copyright owners to go to court and get legal resolution. Copyright term should be restored to reasonable length and free online registries established to prevent market failure. Collecting societies in countries outside US should not use these treaties to get monopoly rights over works that authors don't agree to.

Posted by: joeshuren1 | November 13, 2009 12:34 PM | Report abuse

ACTA is justified in believing that the lobbyists would be endlessly disruptive to the process of drafting a document. Let them do their draft in private! Eventually, the document will be made public when it is time for countries to ratify it.

Posted by: squirma | November 14, 2009 1:37 PM | Report abuse

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