Thursday, 17 May 2012

New Hole In ACTA's Sinking Ship

I've been pointing out the problems with ACTA ever since I learned about them on the Internet Freedom Movement's page. [Disclosure: I'm now an IFM admin.] Despite the frantic behind-the-scenes work to pump out the water, more holes keep appearing in its hull. Will the latest revelations finally sink the ACTA ship, and will they change US policy on treaties with other nations?

Let's start with a bit of background. ACTA was initiated during a 2004 meeting of Interpol and the World Customs Orgnaisation in Geneva, which was sponsored by the Global Business Leaders Alliance Against Counterfeiting (GBLAAC), then developed by Japan and the United States in 2006, and the USTR has been driving negotiations ever since. Most of the countries involved have signed it but not all of them have yet ratified it. They were supposed to present this secretly-negotiated treaty to their parliaments as a done deal and get it rubber-stamped, but when Wikileaks brought it to the attention of the public and the human rights and tech blogs got hold of it in the wake of the PIPA/SOPA protests, all Hell broke loose.

From a tech point of view, the clauses on enforcement of copyright via our ISPs being made to "act to prevent it" was unacceptable. Then the other interest groups waded in and the protests began.

The medical angle

The concerns of the likes of Medecins Sans Frontieres have been well-documented. PLOS Medicine has since weighed in with an opinon that pours scorn on the idea that patents on medicine have any value except as a barrier to production and innovation by other companies.

One rationale for the global harmonization of patent policies was to distribute the burden of financing R&D more uniformly across more countries, and to prevent free-riding [12],[13].

A key problem, however, was the application of uniform patent rules in a world with great wealth disparities: the average per capita income across all high-income countries (US$37,719) was 30 times that across all low- and lower-middle income countries (US$1,270) [14]. Yet, a patent allows a company to price a medicine at the same level in the United States as in India, as some firms have chosen to do [15],[16]. While a globalized patent system may be effective in dealing with the free rider problem, it does not equitably distribute the costs of R&D and can block access to medicines for a large proportion of the population.

Basically, they're seeing the problem as I do: that making treaties between countries to benefit big business and their IPR (intellectual property rights) monopolies is harmful to the general population because a) they're being cushioned from the effects of a free market and b) we're the ones paying to fight their enforcement battles because they've made infringement a criminal matter. And they're working to extend that definition and enforce it via internet surveillance.

The human rights angle

“Multilateral trade agreements that affect public goods, including freedom of expression, innovation and access to basic medicines, must always uphold basic human rights principles, such as accountability, transparency, participation, equality and sustainability. ACTA has failed on all of these fronts.” - Amnesty International

The creeping surveillance of our society for dubious reasons is being copied and pasted by other governments and with few checks and balances. Meanwhile our representatives aren't doing all that much about it, apart from the odd one, e.g. David Davis. Labour started it; only the Liberal Democrats and their allies are really saying much against it. While the Liberal Democrats are part of the current Coalition Government, they have gone back on some of their promises so it remains to be seen whether they will be able to sway the government from its course.

The international angle

ACTA is a treaty that tips the balance in favour of the American interests that helped to develop it, that and the fact that the signatory nations are mostly the wealthiest has not gone unnoticed by those organisations that are usually involved in such arrangements. China, Russia, and other nations won't sign it because they prefer to do things their own way in their own treaties.

At the global level, the major criticisms of ACTA concern the limitation of its membership to developed and like-minded countries, the lack of representation by countries in the developing world and the agreement’s potential negative impact on the international intellectual property regime. To highlight the problematic nature of ACTA, some commentators, such as Daniel Gervais, have described the agreement as a “country club agreement”.

Within this country club, members set rules to govern its membership. Article 36 [of ACTA] provides details on the ACTA Committee, which is charged with the agreement’s administration and management and is granted broad powers to establish ad hoc committees. Article 42 delineates the procedure for amending the agreement. Article 43 further specifies the time the agreement will be open for signature and how countries can accede to it after the expiration of the specified period. - Peter Yu, ACTA and Its Complex Politics (PDF)

The arrogant high-handedness of the people involved is bad enough without the stakeholders and rights agencies being shut out. It's going to cost them dearly in the end, but we haven't even got to the best part yet.

The legal authority angle

It has emerged that the secretive way that the USTR has been going about the negotiation of the treaty may have scuppered any chance of actually enforcing it. By shutting out Congressional oversight, Ron Kirk may have overstepped his authority and may therefore invalidate the treaty. You see, Ron Kirk assumed the powers granted to the Executive Branch to negotiate treaties on behalf of the USA.

This made no sense, as prominent legal scholars noted. The President's inherent powers do not involve IP. That’s Congress's purview.  - Margot Kaminski, Techdirt

It wasn't until after tech-savvy Senator Ron Wyden publicly questioned the way in which ACTA had been negotiated that the Legal Advisor to the Department of State, Harold Hongju Koh, explained that ACTA wasn't being negotiated just by the President; Congress actually had been involved in ACTA, authorizing the negotiation of ACTA beforehand in the 2008 PRO-IP Act.

Well that's okay, then. Wait a cotton-pickin' minute, didn't the negotiations for ACTA first begin in 2006? Why, yes, they did. But can PRO-IP apply nonetheless? Erm, no.

Section 8111 creates the office of the Intellectual Property Enforcement Coordinator, puts her (Victoria Espinel) in charge of “the interagency intellectual property enforcement advisory committee” and orders the committee to “coordinate the development of the Joint Strategic Plan against counterfeiting and infringement.” The parts quoted by Koh are elements required to be in the plan. So the law says that the administration has to have a “plan” to “work with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.” - InfoJustice

Negotiating treaties on behalf of the country without Congressional approval is not included in this so it doesn't count. In any case, I don't believe there's a rationale to apply it retrospectively. Meanwhile, Congress has failed to reach for the torches and pitchforks over the matter and Senator Wyden's pleas have fallen on deaf ears because these are the same people who would have let SOPA and PIPA through, and passed CISPA with little dissent. Given that many of them are cronies of Techdirt punchbag and head of MPAA Chris Dodd, it's not much of a surprise, is it? That's what happens when you run the country in the interests of big business, not the people.

The FUD for surveillance and enforcement theatre angle

If all of the above is not enough to convince the powers that be of the ridiculous — not to mention precarious — situation that ACTA is in, consider this: if it does get ratified and goes through the EU Parliament, one lawsuit based on the fact that it's not valid in the US because USTR lacks the constitutional authority to negotiate it in the first place will surely finish it. In any case, ACTA has little if any value because the most rampant infringing nations aren't going to sign it and it's all a load of smoke and mirrors to shill for the security and surveillance industries anyway.

It's not going to go away when the legacy industries are hitching their horses to the IPR post and expecting our governments and law enforcement agencies to stand guard over it.

The threats to our security come not only from established terrorist networks, but also from individuals and small groups who are radicalized to violence at home... And, increasingly, they emanate from cyberspace... And in a globalized economy, our international responsibilities have become critical not only to our physical security, but our economic security as well. - Janet Napolitano, Secretary of Homeland Security: Achieving Security and Privacy

They're not only demanding that our governments fight their battles for them, they're expecting them to swallow all kinds of FUD and regurgitate it to the public when pressed on the issue.

The EPLP [European Parliament Labour Party] is committed to increased copyright protection for European manufacturers in order to

  •  stimulate the European economy
  •  ensure European producers receive a fair return on their innovation
  •  protect jobs in the EU.
  •  ensure high safety standards in the EU and prevent the circulation of counterfeit medicines and car parts.

It remains to be seen whether ACTA will be the right tool to tackle these issues. - MEP Arlene McCarthy in an email to me, quoted in a G+ post.

I hammered all that guff into the ground in my rebuttal, where I took on every point she made. She's not willing to engage with me properly, deviate from the party line, or even have the decency to address me personally as an individual. I don't vote Labour; never have and never will because they're either too wedded to party political doctrine instead of getting rid of policies that don't work or too busy trying to implement state ownership of people and property. I'm not having it! Needless to say, the opportunities for power-grabbing haven't gone unnoticed in either the Tory or Labour camps, so they'll play along with it unless we keep the pressure on. Meanwhile, the forces behind ACTA are pushing in the opposite direction.

Enforcement theater tends to generates a political economy of its own. The proxies for the industry actors may find their own positions enhanced by an expansion of enforcement measures; for example customs officials may receive wider powers. Lobbyists who act on behalf of industry actors are able to demonstrate their usefulness by having laws passed, regardless [of] whether those laws are effective. - Andrew John Rens

They're in it to win it because they can't see what they're doing as wrong because they're "protecting themselves and their interests" for the alleged benefit of all. That's why it surprises them when we rise up and protest. Besides, they consider it to be their own purview so we're not invited to the party. But why are they so invested in it? Why not try something else?

A legal, and political system that has not only committed limited resources to a 'war on piracy' but institutionalized the 'war' through mobilizing various branches of government will find it far harder to question the underlying policy that is being so vigorously defended. Critics of the vision of intellectual property advanced by industry actors can be more easily dismissed as apologists for criminals; pirates and counterfeiters. Thus while increasing enforcement measures may have no discernible effect on the claims of infringement by incumbent industry actors and their trade agency counter-parts it does promise non-enforcement benefits. These potential benefits come at a cost that is largely borne by those excluded from negotiating process that resulted in the proposed ACTA. - Andrew John Rens

And of course whole economies allegedly depend on it. Mostly on the enforcement (see "trolling") side. As long as nobody challenges the assumption that we have to expand copyright, patent, and trademark protection laws in order to protect against the (mostly imaginary) internet and real life bugbears, we will have to be vigilant and ready to fight any attempts made by our misguided and ignorant governments to further erode our rights to privacy and freedom of expression online and in real life. This week saw the official referral of ACTA to the European Court of Justice to determine whether or not it is compatible with existing treaties and the Charter of Fundamental Rights. Now we wait. They can only give an opinion, but if they find against the treaty, there's a better chance it will be shot down in the European Parliament next month.

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