[Infowarrior] - Explanations for ACTA's "shameful secret"

[Richard Forno]

Adding up the explanations for ACTA's "shameful secret"
A Google-hosted event this week tried to make sense of the secrecy  
surrounding the Anti-Counterfeiting Trade Agreement (ACTA), but came  
up empty. If the whole future of our economy depends on protecting the  
creative industries, as is argued, why are the negotiations to do that  
treated as a "shameful secret?"

By Nate Anderson | Last updated January 15, 2010 8:23 AM

http://arstechnica.com/tech-policy/news/2010/01/actas-shameful-secret.ars

Why is an intellectual property treaty being negotiated in the name of  
the US public kept quiet as a matter of national security and treated  
as "some shameful secret"?

Solid information on the Anti-Counterfeiting Trade Agreement (ACTA)  
has been hard to come by, but Google on Monday hosted a panel  
discussion on ACTA at its DC offices. Much of the discussion focused  
on transparency, and why there's so little of it on ACTA, even from an  
administration that has made transparency one of its key goals.

The reason for that was obvious: there's little of substance that's  
known about the treaty, and those lawyers in the room and on the panel  
who had seen one small part of it were under a nondisclosure agreement.

In most contexts, the lack of any hard information might lead to a  
discussion of mindnumbing generality and irrelevance, but this  
transparency talk was quite fascinating—in large part because one of  
the most influential copyright lobbyists in Washington was on the  
panel attempting to make his case.

Steven Metalitz represents clients like the MPAA and RIAA, and he's  
quite good at what he does. If there's a copyright-related issue being  
discussed in DC, he has a hand in it. Over the last year, he has used  
his position to argue that consumers should have no ability to strip  
DRM from music or video tracks even if an online store takes down its  
authentication servers.

He has also argued against the Obama administration's stance at the  
World Intellectual Property Organization, where he opposes a treaty on  
copyright exemptions for the blind. The reason: international  
copyright laws should only force copyright protections and enforcement  
on signers, but exemptions to copyright must never be anything more  
than "permitted."

Metalitz took on three other panelists and a moderator, all of whom  
were less than sympathetic to his positions, and he made the  
lengthiest case for both ACTA and its secrecy that we have ever heard.  
It was also surprisingly unconvincing.

Parsing the unknown
ACTA is currently being hashed out by 40 countries apart from any  
existing international process such as WIPO or the WTO. No government  
will show draft texts of the treaty, though the public looks likely to  
be offered a draft once negotiations are complete (when it's too late  
to make substantive changes).

Far from covering "counterfeiting," ACTA covers a host of issues that  
include Internet infringement of copyrighted works. That's key, said  
Metalitz, because one in ten US jobs depends on copyright protection.

A legislative aide for Rep. Zoe Lofgren (D-CA) retorted that the same  
stats show just how many companies rely on fair use, copyright  
exceptions, DMCA safe harbors, and Communications Decency Act safe  
harbors. ACTA "can't just be about going to the max for enforcement,"  
he said.

But because it's hard to argue specifics when it comes to ACTA, the  
talk turned to the question of why we can't see the text. Jamie Love  
of Knowledge Ecology International, a group which has obtained many of  
the leaked documents about ACTA, noted that all 40 countries involved  
could see the text, "every lobbyist in K Street who has the phone  
number of USTR can get access to what's available in the proposal, any  
one of the thousand members of the [USTR] advisory boards that are  
cleared advisors has the right to ask for access to these documents,"  
but voters do not.

If the whole future of our economy depends on protecting the creative  
industries, why is an intellectual treaty being done "as some shameful  
secret?"

Metalitz said that ACTA so far has been more transparent than numerous  
other trade agreements, but Love pointed out that the major  
international agreements on these issues (TRIPS and the WIPO treaties)  
have been far more open. And, under pressure to open up, WIPO and the  
WTO have both allowed nonprofit civil society groups access to debates  
and negotiations over the last decade—and, suddenly, the agreements  
coming out of those bodies became more pro-consumer. WIPO also  
regularly posts drafts, working papers, and proposals online.

Past free trade agreements have been handled in a similar fashion.

"Steve's embarrassed by the content of the negotiation or he would be  
more supportive of transparency," said Love, not one to hold back in  
his rhetoric. Keeping negotiations secret is how "you get big fees to  
be a lobbyist," since only the "insiders" have access to the process.

Frank discussions
Metalitz never provided a cogent case for why it might be acceptable  
to negotiate such an agreement in secret when so much of the public  
clearly wants to be involved. When pressed most directly on the issue,  
he punted, criticizing those who oppose protecting intellectual  
property.

But he also made the fair point that he's not the one doing the  
negotiating. The US Trade Representative, which handles ACTA, is  
ultimately responsible. Though it has repeatedly pledged transparency,  
none has been forthcoming. Canadian law professor Michael Geist, going  
back through the few documents that we do have, believes that the US  
is one of the primary obstacles to such transparency.

Even the MPAA, one of Metalitz's top clients, has publicly called for  
transparency on ACTA to remove the "distraction" that the issue has  
become. Such transparency would require the assent of all the  
governments involved in the negotiations. As the head of USTR has  
indicated, the ACTA talks might break down completely without secrecy,  
and it's clear that many governments don't actually want their own  
people to see the proposals being made and to shape their outcome.

This isn't surprising, of course, since international groups like WIPO  
and WTO already exist to tackle these kinds of issues. But those  
groups would be more open than the ACTA process, and they would force  
countries like US, Canada, Japan, and the EU to involve more  
countries. Much easier to form a "coalition of the willing" instead.

The USTR has claimed that it needs the privacy to have a "frank  
exchange of views," though WIPO has managed to work on major  
international IP legislation without such total secrecy. No one argues  
that every moment of the negotiating sessions needs to go on YouTube,  
or that there is never a place for an off-the-record exchange of  
views; but members of Congress like Mike Doyle (D-PA), Sherrod Brown  
(D-OH), Bernie Sanders (I-VT), and Ron Wyden (D-OR) have all blasted  
USTR in recent weeks for not taking basic steps, such as offering  
drafts to the public.

Several of the panelists agreed that this might well be because the  
public wouldn't support what's being done in its name, but all of  
them, including Metalitz, believe that the transparency issue will  
eventually put real pressure on the USTR to open up further. When that  
might happen, however, remains a mystery.