★ The Typhoid Mary of Three Strikes

Just before Christmas we saw the Spanish Parliament reject yet another attempt to introduce laws in Europe restricting Internet freedoms. There have been a rush of them this year, popping up in country after country, each national government calmly pretending it was their idea and they thought of it unaided and they think it’s a really good one, honestly. Yet many of us saw the mysterious pattern, like a fairy ring of mushrooms on a lawn, and surmised the empty centre wasn’t so empty after all.

Over the last year, we saw them spring up all over the world, notably in Australia and in France but also in many other countries. It seemed odd that so many legislatures should simultaneously feel the urge to create extrajudicial protection for mainly foreign – American – copyright holders, especially in a market where the emergence of alternative models favours local rather than imported talent.

Much of the fuss about Wikileaks has focussed on meta-issues. But there are interesting insights to be gained by correlating the information in the (carefully edited) diplomatic cables. So far I’ve seen nothing that wasn’t already the product of informed cynicism, but a useful confirmation casts light on “three-strikes”-style copyright-owner protection laws. Wikileaks has confirmed that the invisible something at the centre of them all is indeed what we thought it was – USTR, proxied by US diplomats.

About USTR

The Office of the US Trade Representative (USTR) performs the task of protecting American business interests and is now soundly gamed by large corporations. In 2010 its “Special 301” list came to public notice for declaring open source software to be akin to an anti-American tariff barrier, and USTR plays many other roles, mostly more covert, in attempting to create business advantage for its favoured businesses through diplomatic channels.

While I was working with others on preventing software patents being uniformly available in Europe in the middle of the decade, one point of fascination was the presence of USTR in the process of pro-patent advocacy, as well as the way certain large companies appeared to have permanent staff at the US Trade Mission. So I had long suspected USTR would be connected with the outbreak of the three-strikes disease. Wikileaks reveals that the “Typhoid Mary” of three-strikes law – claiming innocence while spreading infection – is indeed USTR.

Cables released already show they have been “helping” a range of governments. Indeed, the unseemly rush to impose the Digital Economy Act without discussion in Britain with the connivance of all political parties spoke loudly of civil servants briefing every MP who asked on a top-secret imperative to obey the Americans or face the awful consequences. I’ve no doubt that we’ll find the data to support the conjecture that every instance of three-strikes legislation globally has their fingerprints.

Here are some of the traces of USTR’s activities reported in the cables so far:


What can we do about this? Truth be told, not much given a modern society where government largely ignores citizens instead of representing them, preferring the collective soothing explanations of professional lobbyists. But there are two things.

First, the Spanish experience sets an important precedent. No politician wants to champion a new law as their own and then have it disclosed that actually they are acting as an agent for a foreign power, as Sinde had happen in Spain (even if her film industry background predisposed her to act against the citizens she was supposed to be representing). So we now know to ask in every case whether these laws are the result of US pressure, creating a resistance in the future to the effectiveness of USTR’s malign influence.

Second, USTR’s magnum opus – ACTA – is still not a done deal. The Wikileaks cables confirm USTR is the driving force, and also confirm that European politicians are getting cold feet over some of the ACTA malarkey. Let’s keep up the public pressure, both individually and through bodies like ORG, FSFE and EFF. We may yet find that the collective voice of the Internet-savvy citizens becomes as effective for citizen freedoms as the lobbyists have become for commercial advantage.

[First published in ComputerWorldUK on December 23, 2010]

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