What your elected representatives are up to, part I
What's uh the deal
I say "your" and probably mean it -- I just made it through the first publicly available ACTA draft (there were pirated versions of the document available but I waited until the first public release to read it). This concerns the US, EU, Canada, Mexico, South Korea -- and realistically, the entire world (for reasons I'll get to later). This not-yet-law *will* effect you, wherever you are. I will try to attack it from a Canadian perspective, however.
It is a trade agreement on the topic of piracy, copyright, patents. It has been negotiated behind closed doors as a way to circumvent the normal democratic process involved in updating copyright law in the respective countries involved. And its content is what you could expect from such a closed door, secret process -- policies only benefiting certain private corporate interests to great public cost.
It has the support of major players like Barack Obama. A lot of the document does not have very much to do with online rights, and private copyright matters, but instead deals with large scale piracy, patent infringement and cross-border concerns. Since I do not often travel between countries, even potential ipod-theft sections escape my concern. A lot of this IS specific to counterfeit goods -- but not all of it. You will have to find other people concerned about these sections(and they are out there). Stuff like forbidding certain classes pharmaceutical of drugs to cross ACTA borders similarly must be looked over by someone with more expertise in this area. There might be some good things in those sections, and ACTA *does* have some compromises, specifically in regards to ISP liability that have been tagged on before the draft was made public.
There is a clear strategy at play here: establish world law in regards to use of computers in the rich countries before democratic responses can be made to their attempts, and then force developing countries to accept the laws once made. Make the laws US-centric and make sure that developing countries get the short end of the stick. We in the countries that are negotiating the treaty still have the option to both stop the treaty from happening to start with, and to make it more technology-neutral, to instill a democratic aspect to the agreement and to help keep the treaty from, for example, creating a culture of fear giving trigger happy law firms legal fuel to sue the rest of us into oblivion for normal day to day activities.
There is no talk of fair use/dealing/user rights as far as I can see in the document. Although token compromises have been made, this is mostly a copyright maximalist document. This will bend the spectrum of honest discussion on copyright to an extremist stance around the world, and shut moderates on all sides out of the process, since they tend to use more democratic forms to express their concerns.
It was suggested to me that one of the major selling points of ACTA was that it would reduce barriers of trade by way of paperwork between the various shipping companies worldwide. However upon closer inspection, as far as I can tell it reduces paperwork between ports of call by a very small amount, if at all. It might even increase paperwork. Maybe I completely missed the point on this one(and as I am not an expert in shipping and corporate communications, it's entirely plausible), but I just don't see it.
Some Details
In Canada, ACTA would break the PIPEDA barrier between private information of ISP subscribers(p21-22 S 3) from copyright holder. In the EU, similar safeguards between copyright holders and filesharers will be similarly dropped. While there are problems involved (artists not being paid very well, who to go after in an existing set of copyright laws if you're not allowed to sue the napsters) there are other implications here as well. DMCA notice & takedowns have been known to have chiling effects. In Canada, you would be able to effectively mine ISPs for customer information a la carte by sending takedown notices to every subscriber, and there is so far no protection against this from happening as far as I can tell.
DRM will be protected by law(p22 s 4). Instead of allowing governments to protect, or not protect consumers from harmful DRM, ACTA will force countries to protect the DRM from consumers. This can only lead to the kinds of absurdity in the right to read. It creates a permanent wedge between the abstract concept of a general purpose computing machine, one of the most powerful ideas ever created, and our ability to use physical manifestations of said machines in as close of approximation to them as we have been able to create. It creates permanently coloured bits, by international fiat. Canada will no longer be allowed to choose laws that respect the sovereignty of individuals to extend their brains through external cognition, and hardware manufacturers will have an incentive available to lock all people in to mandatory DRM. In general the treaty is "anti-hacking"(p27 S 5) and is aimed directly at those of us who want to control the technology in our lives, rather than let ourselves be controlled by the technology in our lives.
RMI is also going to get its own set of sui generis rights(p23). I seem to remember RMI was a part of C61, but not C60 (fact?). Instead of treating RMI as something that individuals are to share in maintaining, it is seen as a top-down thing, where the people at the top (not even the artists, but the government, and large corporate interests) define the information, and if you think you can correct the information, or merge them into a new system, or disregard them to interoperate with new systems you become a (likely large commercial piracy scale) criminal by law. It is a reasonable compromise for RMIs to be even protected by law -- but it should be
- a minor offense to violate them (involving mens rae)
- there should be defenses allowed, depending on the legal particulars of the legal system of the country involved. One such defense could be fair use, another could be the right to update the information based on new information available to the user but not the RMI management system.
It will involve expanding police powers, centralizing authority and increasing public costs(p27 S 4) in order to implement. More information will be shared by police/border guards/governments of all nations(p26). Public taxpayer dollars will be diverted to train more lawyers(p27 S 5), of all things. Just keep that one in mind the next time you hear healthcare discussions; we're going to be diverting public funds from healthcare to law students (in the US/Canada) should we enact this treaty. ACTA will go further than making us pay for our own shackles, however, taxpayer dollars will also be spent convincing the public in propaganda campaigns that ACTA and similar laws are a good thing, and will explicitly try to subvert existing Canadian(and other local) culture with a made-in-US "culture of intellectual property"(p27 S 5).
Ways Out
To start with, it's probably about time that the treaty-signing process got some public scrutiny, especially in Canada. How is it possible that these treaties which effect a broad spectrum of public interests can be negotiated in secret, against the interests of the canadian public? I know some of you might respond "this is just typical conservative policy", but really, the public, or at the very least parliament should have some say in these matters before they are even agreed upon at the international level beyond conservative trade ministers muck things up for a whole generation.
The next few months will involve first analysis, then discussion and finally some actionable results. When this treaty was first being negotiated, it was completely secret, and the governments involved refused to even acknowledge that the treaty existed. Now that it's public there is a short window of opportunity to defeat it by pressuring elected representatives, protest, and more importantly helping IT companies understand how this will undermine them and their future prospects. DMCA is a major anti-competitive tool and so smaller companies will suffer if its provisions are made globally mandatory. People in the EU have done the best job of organizing cross-political-spectrum alliances against these sorts of things lately, but more of this is called for. Don't write off, for example, the tea party. They might end up being handy, as an organized, politically active group with lots of footsoldiers. Small business will suffer and should be approached and organized against this treaty. The "we" against this treaty should be so massive that they cannot ignore us, and only through ignorance and the shadowy process that was involved in creating this treaty will it is allowed to exist at all.
Legal challenges must be formulated, and now is a good time to start on them. Canada has a strong legal sense of defending our culture from American imperialistic pressures, of which this is only the latest example of. Specifically the section about changing our culture -- that should be fought at all costs in Canada. We have our own culture and do not need to have it extinguished by US corporate media culture. The NDP have so far been a stalwart for Canadian culture, and it's something the NDP has successfully used in the past to find common ground with the liberals (and realistically, this would replace Quebecois culture as well, so the Bloc should be brought under this banner). Looking through the drafts you see again and again the Canadian representative trying to divert attention away from "IP" rights in general and specifically tying them to actionable rights specific to the context in which they are discussed(esp. copyrights and related rights), and over and over the US has been diverting attention back to its own interpretation.
Promote the use of technology to the people who haven't quite caught on yet, and show that this affects everything from our right to use modern 4G cellphones(which are basically computers) to the cloud. Get more people engaged with technology and show them that their ability to make use of the technology is about to be limited by law.
But what if it passes? The people negotiating this treaty have barely any input from the canadian public(or public of other countries) -- it is possible that the conservative government could fall and the liberals could pull Canada from negotiations entirely, but this doesn't look like it's going to happen. But if it does pass, the government will be required to setup focus groups for "rightsholders [and other relevant stakeholder [where appropriate]]" to provide feedback (p29 S 4) on how ACTA is doing. I suspect these groups will largely be used by CRIA and the IFPI tentacles to pressure even more hard-line laws restricting our freedoms, but there is no observable reason so far why NGOs could not be brought in to bring their own sets of pressures, and to help the technology using public have their say.
As a last resort, we could pressure half the ACTA countries to dissolve the agreement, without the US/whoever support. It's in the document that's how you get out at a last resort. It's not likely to ever happen, but it's still out there -- nothing in this is permanent except by apathy. We can and must resist this apathy, if our ability to learn and use computers as we desire is to continue.
But don't take my word for it, or forbes for that matter -- read it yourself