[Infowarrior] - Copyright overreach takes a world tour

[Richard Forno]

Copyright overreach takes a world tour
By Rob Pegoraro
Sunday, November 15, 2009

http://www.washingtonpost.com/wp-dyn/content/article/2009/11/13/AR2009111300852_pf.html
Some of the better ideas in the computing industry never make it into  
stores, and not because of expensive hardware, complex code or  
inadequate bandwidth. You can only blame laws that keep otherwise  
desirable products off the market.

Want a program to copy a DVD to your iPod? You can't pick one up in a  
shop, thanks to the 1998 vintage Digital Millennium Copyright Act. The  
DMCA bans that software, along with other tools that might help you  
use movie downloads, e-books and other "protected" files in ways not  
specifically allowed by their vendors.

We may be watching a sequel to the DMCA story today. An international  
copyright agreement, negotiated under unusual secrecy, could impose a  
further round of restrictions on our use of digital technology.

This Anti-Counterfeiting Trade Agreement, "ACTA" for short, represents  
an attempt by the United States and other countries to set common  
rules for violations of intellectual-property laws. The United States  
hopes to use ACTA to export its laws, but in the process it might have  
to import others.

It's difficult to talk about ACTA without using words like "may,"  
"could" and "might" because of how little has been disclosed about it.  
The nations involved -- including Japan, South Korea, Canada and the  
members of the European Union -- have agreed to post little beyond  
topics that the agreement should address.

The Bush and Obama administrations have cited national-security  
concerns to justify withholding further information. They have  
revealed ACTA texts only to selected individuals (few representing  
consumer interests) who sign non-disclosure agreements.

Congress, meanwhile, has no say, as ACTA is being written as an  
"executive agreement," not a treaty that would require Senate  
ratification.

Much information about ACTA has come from leaked documents posted to  
such sites as http://wikileaks.org; other details have been pried out  
through Freedom of Information Act requests by such groups as the  
Electronic Frontier Foundation and Knowledge Ecology International.

You can weave these scraps into a frightening future in which a site  
like YouTube couldn't stay in business and allegations of file sharing  
could lead your Internet provider to kick you offline.

The reality of ACTA doesn't seem that bad: Many of the provisions  
attacked by critics are part of U.S. law and such bilateral free-trade  
deals as the pending agreement between the U.S. and South Korea. But  
it's bad enough.

ACTA's first problem lies in the idea of making the DMCA a world  
standard. Globalizing that law's ban on circumventing digital locks  
would do no favors for people elsewhere. But it would also cement the  
DMCA's status at home, making it harder to fix its user-hostile  
provisions.

More important, the ACTA talks would be a rare negotiation if they  
resulted in one state giving up nothing in return for every other  
state accepting its ideas.

A U.S. trade official who would not speak for attribution emphasized  
that the government's proposals for ACTA only color within the lines  
of existing U.S. laws. But trying to globalize them invites fine-print  
changes in emphasis or detail that could lead to changes in their  
enforcement here.

Consider the notion of "graduated response," the idea that Internet  
providers should discipline or disconnect users who keep sharing  
movies or music. The DMCA allows for that, but ACTA could increase  
incentives for Internet providers to act as copyright cops. We can't  
know for sure without seeing ACTA's text.

Free-trade agreements and ACTA's agenda include stopping counterfeit  
copyrighted works at borders. That trade official said the U.S. wants  
to exempt travelers from mandatory searches of iPods or laptops --  
let's set aside the risk of overreach by law enforcement at airports  
-- but we won't know how much privacy to expect without seeing ACTA's  
text.

And free-trade deals and ACTA call for more rigorous mandatory  
penalties, including jail time. But it's tough to gauge how inflexible  
those punishments might be without seeing ACTA's text.

The U.S. trade official, when asked how ACTA's secrecy squared with  
President Obama's pledges of open government, said the administration  
is working to open the process further.

But more official blog posts and news releases won't suffice. An  
agreement this sweeping won't get far without public debate. Just ask  
one of the biggest advocates of stronger copyright laws, the Motion  
Picture Association of America. In a statement sent by its press  
office, chief policy officer Greg Frazier wrote that "clearly anything  
other than making the text public will not satisfy the ACTA  
naysayers," adding that "we will encourage the U.S. government" to do  
so.

The fair way to craft a deal like this in the daylight. When the  
United Nations' World Intellectual Property Organization proposes to  
write new treaties, it does so in public, publishing drafts and  
allowing outside parties to report on the progress of talks.

If ACTA's ground rules don't allow that, it's time to scrap this  
project -- before we inflict a 1.1 version of the DMCA on ourselves  
and the world.