☆ How To Fight ACTA

Now that the US bills SOPA and PIPA have been put on ice, attention has returned to their parent, an international treaty called ACTA. I’ve written extensively about ACTA before, but in summary it is an international treaty that has been secretly negotiated to ensure as little input as possible from the citizens of any country.

While superficially about stemming the flow of counterfeit physical goods (ACTA stands for “Anti-Counterfeiting Trade Agreement“), the copyright and patent industries (music, movies, software, pharmaceuticals and more) have successfully infested it and the result is a trade agreement that substantially reduces the scope for discretion over new approaches to business on the internet.

While we are told ACTA “will not require changes to Europe’s laws”, it creates an environment where we can expect all the most controlling and invasive parts of every country’s laws to be emphasised and all the most flexible parts – such as fair use, the public commons and cultural expression – to be minimised. It’s a treaty that will be cited every time the USA wants to extradite a British citizen over copyright, for example – even when no law in Europe is being broken. Like DRM, ACTA quantises discretion and reduces all our freedoms.

Despite the fact it is obviously controversial – even the MEP tasked with working on it for the European Parliament quit – the European Commission saw fit to co-ordinate its signing by most European administrations last week. They are now ridiculing opposition to their actions and misrepresenting the impact of ACTA.  A clear gesture of defiance to the popular will expressed against SOPA/PIPA, this is anti-democratic arrogance at its worst and a gift to Britain’s euro-sceptics.

Mobilising MEPs

All is not lost, though. ACTA will come to the European Parliament in June for ratification, and there is every chance that MEPs can be mobilised to reject it. Since the treaty has already been finalised in secret and presented to the world as a fait accomplis, rejecting or accepting it whole are the only available options. But since, according to the European Commission, it changes no laws, presumably its rejection is no big loss.

I’m reminded of the battle by the Internet against the Software Patent Directive back in 2005. That too was an unwise legislative direction that would have seriously impacted European business by allowing giant monopolistic international corporations to stifle competition, even for interoperable software permitted by copyright law. MEPs had been told the Directive was a non-controversial piece of industry law that should just be waved through. The European Council waved it through on that basis.

To their surprise, there was a massive backlash from a large number of previously politically silent citizens across Europe, culminating in a huge protest at the European Parliament. MEPs were faced with a public backlash. While the actual mechanism for its defeat was obscure and complicated to explain, the basic reason the Software Patent Directive was defeated was that MEPs discovered they had been deceived and that the topic was in fact highly controversial and citizen-oriented.

We need to demonstrate the same for ACTA. It’s not a business-as-usual commercial-only matter. It’s a treaty that stifles the soul of the meshed society in the interests of the winners in the technology markets of the twentieth century. In the coming months we all need to speak out.

[First published on ComputerWorldUK]

★ 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:

Responding

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]

☞ Transparency: Wrong and Right

  • If you thought there was something fishy about the European Commission engaging in secret negotiations at ACTA behind the backs of the European Parliament and against the interests of Europe’s digital society, you’d be right. I missed this when it was first posted back in April, but it turns out that the Commission sought permission to negotiate not from a relevant part of the Council of the EU such as trade or competitiveness, but from the Fisheries committee.The whole matter around ACTA – both the negotiations and the mandate of the negotiators – is a disgrace to modern democracy, hidden from scrutiny both of citizens and their elected representatives, with the goal of establishing by fait accomplis a set of precedents that will over-rule the instinctive and correct misgivings that we all have about the creation of legislation to protect broken business models in perpetuity.

  • Yes, all that work many of us across Europe put in to call MEPs and ask them to sign Written Declaration 12 succeeded and at the 11th hour it has become the ratified position of the Parliament.
  • The process to revise the Mozilla Public Licence is well under way – today the team released their “Alpha 2” draft, and invite inspection and comment.

☞ Getting The Point

  • This FAQ/debate article with an anonymous BCS spokesbeing make it clear what the issue at the BCS is all about, both directly and through tone.
    (tags: BCS EGM UK)
  • This EFF campaign makes a great point: that ACTA is ironically a counterfeit itself, since it is not mainly about the counterfeiting of goods but has been hijacked as a back-door method to impose controls on the internet that have failed to be imposed by transparent and democratic methods. The campaign is very much focussed on the US but the message seems one worth transplanting elsewhere.

☞ The Next Act(a)

  • Very useful summary indeed, although it lacks a section on the impact on software freedom (which I believe to be significant). Raed this and distribute it widely, it’s the best summary I have yet seen for the general reader.
  • A good, easy-to-understand explanation of why the European Commission’s proposal to introduce criminal penalties both for copyright infringement /and for “aiding, abetting or inciting”/ copyright abuse spells the end of any semblance of an open internet and takes us back to Microsoft’s proposed Blackbird (and if you remember that you are officially old).

    This is indeed the Pirate Bay Killer clause that caused IPRED2 to be sidelined, and is one of the clauses that makes the EC want to keep the ACTA negotiations secret until the results can’t be changed. Because that’s the game, and it’s the nastiest anti-democratic game I’ve seen in a while.

  • In case you’re interested in digging a little deeper on that criminalization of copyright infringement idea, here’s the report of a joint working group of activist organisations explaining why it was a bad idea when IPRED2 tried to introduce it. Plenty of EP and EC people agreed and it was put on ice. Seems the Commission are using ACTA as an excuse to thaw it out.
  • “What you are doing is preparing a peephole into the private lives of a member, which will either distract them or lead them into additional questions which they’ll feel they have to defend themselves over. . . Transparency will damage democracy.” Great read [Meta: May be the only time you’ll ever see me link a Daily Mail story too]

☂ ACTA Roundup

§ I’ve had a few listeners to FLOSS Weekly write and ask for more information on the ACTA negotiations. There is plenty of information on the web, but a getting-started guide might help.

Here’s a list of references to get you up to speed.

What action can you take?  Here are some suggestions:

ACTA is legislation laundering on an international level of what would be very difficult to get through most Parliaments

Stavros Lambrinidis, Member of European Parliament, S and D group from Greece.

If you have more references, add them in the comments below please.

☞ Not In Your Name?

  • "The U.S. position for the moment appears closer to 'take it or leave it' with the bet that many ACTA partners will see little political alternative but to take it." — I agree that's likely to be what the US "negotiators" think, but they surely have to take seriously the threat posed by the vote this week in Europe, which could mean not one country but a whole bloc refusing to ratify the treaty. The ACTA strategy relies on a fait accomplis that no nation can afford to refuse; having 26 nations refuse calls the bluff on that strategy.

    US citizens: Is this really what you want done in your name? Do your representatives know how you feel about it?

  • The wonderful thing about open source is that once softweare has been set free it can find new ways of being useful and evolving even if its original benefactors go away. I'm delighted to see Project Wonderland from Sun Labs finding a new home like this. I hope the other projects that are being put out to grass find similarly enthusiastic homes.
  • Hopefully this includes chopping firewood.
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