ACTA

September 28, 2011 7:30 AM

The once-secret Anti-Counterfeiting Trade Agreement (ACTA) slouches toward signing on Saturday. ACTA is expected to raise constitutional issues in the U.S., raise soverenty issues in the E.U., give copyright holders extensive powers to impose DRM and identify alleged infringers, and increase health risks worldwide. In addition, the U.S. has launched the Trans Pacific Partnership agreement (TPP) to obtain what copyright provisions were stripped from ACTA. (see michaelgeist.ca, techdirt, or slashdot)

There remain plausible options for limiting the damage done in Europe by the copyright clauses, or at least excluding patents from section two.

posted by jeffburdges (44 comments total)

Mmm, rent-seeking.
posted by delmoi at 7:38 AM on September 28, 2011 [7 favorites]

I don’t get why the Obama administration is doing this end-run around Congress. It’s not like Congress wouldn’t sign it — they’re already bought and paid-for cronies of Big Copyright.

Maybe Obama wants it to get thrown out in a Constitutional challenge? That’d make a fine bait-and-switch on the IP lobbyists.
posted by spitefulcrow at 7:43 AM on September 28, 2011

Maybe Obama wants it to get thrown out in a Constitutional challenge? That’d make a fine bait-and-switch on the IP lobbyists.

Ten-dimensional chess, eh? I think that theory has been pretty roundly discredited in general. In this specific case, the Obama administration has been very friendly to copyright owners. I see no reason to think its position will change.
posted by jedicus at 7:48 AM on September 28, 2011 [13 favorites]

Maybe Obama wants it to get thrown out in a Constitutional challenge?

Well considering that the constitutional challenges to Obamacare have - as many people predicted - made it to the SCOTUS this would seem to be a consistent strategy.
posted by three blind mice at 7:51 AM on September 28, 2011

What role, if any, do you suppose trade negotiators played in coming up with the terms of this agreement, as opposed to the executive branch directly?

Also, isn't diplomacy--stuff like negotiating trade agreements--the job of the State Department? Sure that's executive branch, technically, but how much does the state department defer to the executive? What powers/responsibilities does the State Department have? (I don't actually know, but it seems to me there's some reason all those different diplomats and negotiators are involved in the process. And that WTO organization. Etc. Reading the first few comments here I would have thought Obama personally authored the agreement.

Especially odd that Obama has played such a crucial role in masterminding this thing, since the negotiations first began before he was even in office.

Negotiations for the ACTA treaty are not part of any international body.[2] According to the United States Trade Representative agency (USTR), preliminary talks about ACTA took place throughout 2006 and 2007 between United States, Canada, the European Commission, Japan and Switzerland.[4]
posted by saulgoodman at 8:02 AM on September 28, 2011 [1 favorite]

AAARRGHGHGH THIS HYDRA HAS SO MANY HEADS!!!!! [puts on sunglasses, hacks wildly]
posted by fuq at 8:04 AM on September 28, 2011 [1 favorite]

Obama has always been a lacky for the copyright industry. He appointed a bunch of lawyers who had been working for the RIAA suing people in upper level positions overseeing copyright, etc. This DOJ is the one that started trying to shut down websites where people were trading files, even popular message boards in some cases.
posted by delmoi at 8:15 AM on September 28, 2011 [3 favorites]

On the code side, we should probably further expand the friend-to-friend software, like Turtle, WASTE, and Oneswarm, thus helping clarify that piracy ain't going away no matter how much they limit people's rights online.
posted by jeffburdges at 8:16 AM on September 28, 2011 [3 favorites]

What role, if any, do you suppose trade negotiators played in coming up with the terms of this agreement, as opposed to the executive branch directly?

If by trade negotiators you mean lobbyists, they wrote the whole thing from the standpoint of what would benefit their corporate employers the most. Then they passed drafts back and forth in secret with their counterparts in other countries (possibly employed by the same exact firm or interest holder). Once the existence of the talks was revealed to the public, they gave up a few of the most draconian provisions, but by and large still got everything they really wanted into the final draft about to be rubber stamped into a treaty with the force of law.

Your corporatocracy at work.
posted by T.D. Strange at 8:58 AM on September 28, 2011 [1 favorite]

Okay, you say so delmoi. But as far as I know, he hasn't even been a party to the negotiations in this case, so why is it specifically productive to focus activist ire and public attention on him now? And not the people actually involved in making the decisions? Did we actually, literally become a dictatorship under Bush II and I missed it? Otherwise there are people whose jobs it is to negotiate trade agreements, and it might be a little more effective to try to influence them (or at least call attention to their existence so people know how the sausage is actually made).
posted by saulgoodman at 9:08 AM on September 28, 2011

It appears the entertainment industry doesn't give a flying fuck about the rights of the average citizen.

Why shouldn't the average citizen return the favor?
posted by DreamerFi at 9:11 AM on September 28, 2011 [5 favorites]

Obama has appointed lawyers who were involved in egregious abuse of human rights in the name of copyright enforcement, both inside the DOJ and as judges.

Yes, there are republicans with similarly awful positions of course, but the democrats are not the lesser of two evils on this issue. I'd imagine both parties are nearly tied given that's the a priori optimal position for the industry on such a detailed 'corporate' issue.

You can only make a corporate issue into a political issue by refusing to support politicians who do the wrong thing, including Obama I'm afraid.
posted by jeffburdges at 9:31 AM on September 28, 2011 [1 favorite]

In any case, we should really be talking about Europe because they're the more important venue here what with sanity costing slightly less over there.
posted by jeffburdges at 9:33 AM on September 28, 2011 [1 favorite]

So I have this friend, "A" (a 24-year-old hipster-y Seattleite of 24, who graduated from Harvard a couple of years ago and has just moved to NYC to get her Masters in Economics in NYC) with whom I'd often argue heatedly about Obama. I would steadfastly claim that regardless of his intentions, based on actual results he was in effect no better than a duplicitous Manchurian candidate. She in turn felt strongly that he was doing something far more important than mere policy wonkery or pushing through legislation: he was trying to "change the way politics was done in Washington".

Heh. Heh heh. HehhehheheheeheeheehahahahahahaHAHAHAHAHAHAHAHA oh man.... *sigh*
posted by hincandenza at 9:34 AM on September 28, 2011

In government, if you are not paying, you are the product.
posted by CautionToTheWind at 9:38 AM on September 28, 2011 [4 favorites]

DreamerFi : It appears the entertainment industry doesn't give a flying fuck about the rights of the average citizen. Why shouldn't the average citizen return the favor?

The entertainment industry has exactly that problem - The average Joe doesn't give a fuck about copyrights. Nor should he. Copyrights exist for a reason, and ACTA pretty much throws out that baby while keeping the bathwater.

And now, we have governments stepping in with secret treaties to try to squeeze all that pesky smoke back into the match. This should get interesting - No one cares about stealing elections, or rampant corruption, or kickbacks, or police abuses (of other people), or "pork", or faraway wars on brown people. But take away the "circuses" half of the Roman formula for success, and perhaps we'll actually get some real (as in, non-Obama-brand) change.
posted by pla at 9:41 AM on September 28, 2011 [2 favorites]

What circuses? Nothing will stop file trading. This is just a way of tossing random people in jail, when/if needed.
posted by CautionToTheWind at 9:44 AM on September 28, 2011 [3 favorites]

I'm having trouble understating what exactly changes here with respect to US law. I also don't see how this is different from other non-treaty agreements the USTR has in place.
posted by humanfont at 9:58 AM on September 28, 2011

But really, regardless of whether or not Obama personally deserves name-identification level blame, can someone sketch out how these kinds of deals actually get done? How much of the deal was pushed for by what parties, etc? It would be helpful to increasing my understanding of the deal and what the motivations are behind the various provisions.
posted by saulgoodman at 10:00 AM on September 28, 2011

Especially odd that Obama has played such a crucial role in masterminding this thing, since the negotiations first began before he was even in office

Why we don't see a lot about this in the press: Obama's Big Media contributions (unrelated note: I always wondered why Hillary couldn't get a fair shake; now I know).

The Joint Strategic Plan for Intellectual Property Enforcement that established Cabinet level Senior Intellectual Property Enforcement Advisory Committees comprised of the heads of the Departments responsible for intellectual property enforcement, including the Departments of Justice, Homeland Security, Commerce, Health and Human Services, State, Treasury, Agriculture and USTR

Looks to me like Obama is really good at taking care of the "property" of content creators, even though some of those content producers obtained the source of their inspiration form the public domain.. From the last reference ("Free Culture" by Lawrence Lessig), here's an excerpt listing some of Disney's borrowing from public domain:
"...the catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), /Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), /Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a recent example that we should perhaps quickly forget, Treasure Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn."
posted by Vibrissae at 10:01 AM on September 28, 2011 [1 favorite]

So back in 2007 when the secret negotiation started, Obama was in on them, too?

Seriously, does anybody know who the actual players at the table were in the case of ACTA, or is there a detailed explainer somewhere?
posted by saulgoodman at 10:06 AM on September 28, 2011

But as far as I know, he hasn't even been a party to the negotiations in this case, so why is it specifically productive to focus activist ire and public attention on him now?

Because he appointed the people who did the negotiating? And he's appointed hard-line copyright lawyers to various jobs dealing with copyright?

What is the deal with people not wanting to hold Obama responsible for the actions of the people he appoints? Appointing people to do things is the President's major job.

It's is entirely typical and normal to use the president as a synecdoche for the president's administration because, obviously, it's his administration. If Obama had appointed Lawerence Lessig as IP Czar and other copyright reform advocates obviously the result would be very different. Instead he did the opposite, for example appointing Tom Perrelli and David Ogden to the DOJ and so on.

Just because Obama didn't personally do these things doesn't mean he's not responsible. It's a completely absurd standard. You would also have to argue that the president doesn't get any credit for things like Healthcare, since it was actually done by congress.
posted by delmoi at 10:07 AM on September 28, 2011 [6 favorites]

I meant to add that if Obama and his cronies gave even half a shit as much about the "real property" of the American homeowner; the "earned pension property" of the American retiree; the "intellectual capital property" of the American student; the "bandwidth property" of the American public, as he does about the Intellectual Property of companies that have looted our public domain then I could support him...but he doesn't. He's just a bare notch netter than most of the GOP lackeys in these respects. Why? Because, in the end, he's just as much controlled by private money as the GOP. All politicians are. So, pick your poison. I'm writing in my next door neighbor in 2012.
posted by Vibrissae at 10:09 AM on September 28, 2011 [6 favorites]

Well, I already know I don't agree with you, delmoi (or China, for that matter) on the basic premise that all copyright law is inherently evil, but since we might still find some common ground on this topic, I wouldn't mind some help finding it. How much is the WTO to blame for pushing the terms of this deal, and what are some of the more onerous terms? In a lot of the press copy I've seen, this is being pushed as a China on one-side vs. the rest of the world on the other kind of affair. Any truth to the other side's claims that this is all really about keeping China from counterfeiting crap without compensating creators?
posted by saulgoodman at 10:37 AM on September 28, 2011

It's not just about music piracy, is it? That's the only part people on the internet care about, I know, but this is much more than a music piracy deal.
posted by saulgoodman at 10:54 AM on September 28, 2011

I'm looking forward to the right-wing reaction, if there is one. On one hand, it's a pretty massive Constitutional problem, and the Tea Party claims to be all about the Constitution. On the other hand, ACTA is massively pro-corporate, so the "money" might not want to draw much attention to it.
posted by skymt at 10:55 AM on September 28, 2011 [1 favorite]

humanfont : I'm having trouble understating what exactly changes here with respect to US law.

1) It criminalizes non-commercial infringement.

2) It allows for extrajudicial punitive action against those merely accused of infringement.
posted by pla at 11:02 AM on September 28, 2011 [3 favorites]

It's not just about music piracy, is it? That's the only part people on the internet care about, I know, but this is much more than a music piracy deal.

Well, the title of the agreement refers to anti-counterfeiting provisions. E.g. the ballyhooed border-search section and restrictions on "commercial scale" piracy are probably targeted at counterfeit physical goods. Older versions also included some troublesome patent provisions, but those have been removed.

The part of ACTA I'm most worried about is the exporting of the DMCA's anti-circumvention laws. It's bad enough that US hackers* are denied the right to inspect and modify their own devices, now it could spread to Europe and other hacker hotbeds.

* In the positive sense
posted by skymt at 11:10 AM on September 28, 2011

Looks to me like Obama is really good at taking care of the "property" of content creators, even though some of those content producers obtained the source of their inspiration form the public domain.

Right, because Bush was such a copyright libertarian and tried to prevent ACTA ever coming into being.

In any case, copyright protects expression, not ideas. You are still free to make a movie about Snow White, or Sleeping Beauty, or what-all else. You just can't use the artwork, dialog, or music from the Disney versions of those stories.You'll have to do all that from scratch, which is actually a lot of hard work compared to copying and pasting the product of someone else's labors. I disagree with Lessig here, because he makes it seem like those animated films were just thrown together in the space of a few weeks. The idea behind the story is easy. Making the finished product of an animated movie is terribly hard. If you think it's easy, download a copy of Blender (free) and make your own Snow White.
posted by anigbrowl at 11:23 AM on September 28, 2011

Does this mean I can start suing people who copy my metafilter comments?
posted by srboisvert at 11:26 AM on September 28, 2011

I was going to post a comment, but instead I'd rather ask for suggestions on what to do with this stick and this dead equine mammal.
posted by RobotVoodooPower at 11:31 AM on September 28, 2011

Does this mean I can start suing people who copy my metafilter comments?
posted by Talez at 11:47 AM on September 28, 2011 [2 favorites]

I'm looking forward to the right-wing reaction, if there is one. On one hand, it's a pretty massive Constitutional problem,

No it's not because the agreement doesn't affect US law in anyway and the executive branch has always had the constitutional authority to negotiate trade agreements.

Does this mean I can start suing people who copy my metafilter comments?

No, because, as noted in the Ars Technica piece in the FPP, the agreement doesn't change any aspect of existing US law.
posted by saulgoodman at 11:56 AM on September 28, 2011

No it's not because the agreement doesn't affect US law in anyway and the executive branch has always had the constitutional authority to negotiate trade agreements.

You're right, and I apologize for my hyperbole. I just skimmed the agreement itself, and while I'm no lawyer, the language appears to be non-binding throughout, making it more of a collective statement of intent than an actual treaty.

(Section 5's exporting of the worst bits of the DMCA still pisses me off.)
posted by skymt at 12:11 PM on September 28, 2011

The idea behind the story is easy. Making the finished product of an animated movie is terribly hard.

"A special effect animated movie without a story is a pretty boring thing."
posted by entropicamericana at 12:49 PM on September 28, 2011

Meanwhile in Germany, if you held the election today, the Pirate Party would effectively throw the Free Democratic Party (think old style moderate-conservative, banking-and-insurance Republicans, minus all the Jesus and anti-intellectualism) out of the Bundestag.

Seriously, the cat's out of the bag here. In 1995 it would have been a little silly to predict that the Internet would kill the music industry as it had been, but there you go. The industry was damage, and it got routed around. And if you continue technical restriction by political means, well, as long as you have something that looks like a functioning democracy, the politics can be easily routed around as well.
posted by Vetinari at 12:50 PM on September 28, 2011 [2 favorites]

You're right, and I apologize for my hyperbole. I just skimmed the agreement itself, and while I'm no lawyer, the language appears to be non-binding throughout, making it more of a collective statement of intent than an actual treaty.

That's the idea. It's Policy Laundering.

Big Content has largely got what it wants in the US, so now it passes ACTA and the countries that have had problems passing restrictive laws get to blame their treaty obligations.
posted by Sebmojo at 1:03 PM on September 28, 2011 [2 favorites]

The University of Ottawa's Canadian Internet Policy and Public Interest Clinic filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.

Nice. Doesn't sound like the public will have anything to worry about. Structuring your organisation like something out an illuminati whack job theorist web site isn't actually recommended.
posted by Mitheral at 1:44 PM on September 28, 2011

"A special effect animated movie without a story is a pretty boring thing."

...and that's why I pointed out that ideas do not enjoy copyright protection. If you make your own version of Sleeping Beauty then nobody will actually sue you. I'm no fan of current copyright law, but to complain that idea = expression is to miss a rather fundamental legal distinction.
posted by anigbrowl at 2:47 PM on September 28, 2011

In any case, copyright protects expression, not ideas. You are still free to make a movie about Snow White, or Sleeping Beauty, or what-all else. You just can't use the artwork, dialog, or music from the Disney versions of those stories.You'll have to do all that from scratch, which is actually a lot of hard work compared to copying and pasting the product of someone else's labors. I disagree with Lessig here, because he makes it seem like those animated films were just thrown together in the space of a few weeks.

You are putting words in Lessig's mouth. The meme that Lessig is contributing to is the same one that Google economists subscribe to - i.e. that as the world becomes more interconnected, and we gain access to more knowledge, more QUESTIONS will result. Thus, a large dividing gap between information expanding at faster than liner rates, but the ability to "rip-mix-burn" information in sufficient quantity, without copyright hassles, to satisfy problem solving and question-answering.

Simply lifting Snow White from the Disney archive and taking as one's own for commercial purpose is wrong, but current DRM constraints are so onerous that they create a chilling effect re: accessing information via the "network".

The incessant and continuing extensions of copyright are going - over the long term - to create information dis-economies. We are literally stabbing ourselves in our collective backs by letting DRM laws and all the other heavy-handed crap associated with those laws, stand. We need to continue to fight a *legal* battle with those forces who want to own information, forever. (btw, I, in no way, condone downloading material that is protected by copyright).
posted by Vibrissae at 3:45 PM on September 28, 2011 [1 favorite]

Righthaven ain't doing too well. lol
posted by jeffburdges at 10:54 AM on September 29, 2011

Senator Ron Wyden raises questions about Obama's ability to sign ACTA (original)
posted by jeffburdges at 9:39 AM on October 13, 2011

ACTA signed by 8 of 11 participants
The remaining three, the E.U., Mexico, and Switzerland, have issued a joint statement affirming their intention to sign "as soon as practicable".
posted by jeffburdges at 9:40 AM on October 20, 2011

Cable reveals extent of lapdoggery from Swedish government on copyright monopoly
posted by jeffburdges at 10:59 AM on October 24, 2011