What is ACTA and why should you care?

<p><strong>In Brief:</strong></p>

 The really short version is that ACTA is a treaty that involves copyrights and global intellectual property protections.  More specifically, it's a series of proposals that are being negotiated on an international level with the goal of writing treaty language that each country can pass that will become law in the signatory nation upon its passage.

Sounds thrilling, right?

The Big Picture:

 But this is big-deal stuff and here's why: in the United States, treaties are considered the law of the land under the U.S. Constitution. Moreover, negotiation of treaties is a "presidential monopoly". Just like an ordinary contract, the details are hammered out in negotiations between the signatories long before a presidential pen signs the treaty.  This is the phase where the "meat" of the treaty is decided.  After it's been signed, congress is only involved through ratification.  "[The executive branch] alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it".  What that means is that treaties can be enacted, and U.S. citizens can be constrained based upon negotiations that take place between the President and the heads of state for other nations.  

Normally, when laws are passed in Congress, the public has the ability to comment, lobby, and become involved in the process.  It doesn't always work, but on big-ticket items, people have a chance to at least voice their concerns to their representatives before a bill is passed.  An example is the pending health-care bill.  Whether you're for it or against it, the issue has been debated in public and voters can hold their representatives accountable if a bill is passed that doesn't  reflect the majority of voters is any given congressional district.

What's on the Nutritional Label:

There's an old adage that "laws are like sausages - it's better not to seem them being made". Unfortunately, ACTA doesn't come with a nutritional label.  In fact, it's deeply shrouded in secrecy.  But here is what we know:

1. Third-Party (Intermediary) Liability.
This would basically set out a default rule that you don't have to be a direct copyright infringer to be on the hook for liability.  The most common example is an internet service provider.  Let's say your Mom/wife/sister posts a video of a baby dancing to music on the radio, and uploads it to YouTube.  Not only could she get sued by Prince or the recording industry for violating the copyright (actually, the performance rights), but the intermediary could also be sued under an intermediary liability regime.  That means YouTube, their upstream providers, your home internet provider, and anyone else in the "path" of the infringement could get sued.  That's a great thing for copyright holders.  The chance of collecting much money from your Mom isn't great, but being able to bring in some "deep pockets" can make the litigation much more profitable.

2. Limited "Safe Harbor" for ISPs.
Intermediary liability is a big problem for tech companies if it's implemented without checks.  Safe Harbor allows the intermediary third party to avoid liability under specific circumstances.  In the U.S., the Digital Millennium Copyright Act (DMCA) is the controlling law, and the safe harbor provisions are implemented by take-down and notice provisions. While the take-down and notice system has drawn significant criticism, it is what US citizens have become accustomed to.

At present, most copyright complaints result in a letter to the poster's ISP or the file's online host, and the alleged infringement is taken offline unless or until the poster presents a counter-notice showing that the poster has the proper rights to use or post the content. "If the leak reports are correct, this would no longer be true. Instead, ISPs would be required to automatically terminate a customer upon a rightsholder's repeat allegation of copyright infringement at a particular IP address." 

This would be a significant change for bloggers and internet users.  Rather than having a single image or video taken down upon a complaint of infringement, your ISP would be either able or required to turn off the spigot of your internet access.  In effect, a single complaint (without judicial process) could stifle a person's online access and speech proactively.  There are also proposals to make this a "three strikes" approach that would require more than one allegation of infringement.  In practice, however, most of the copyright complaints that I've seen allege more than a single infringement.  None of the three strikes proposals that I've seen would require a judicial finding of infringement prior to termination, which reduces the three strikes to little more than a formality.  

 3. Criminal Sanctions

As well, ACTA signatories will be required to adopt both civil and criminal legal sanctions for copyright owners' technological protection measures.  That means things like unlocking cell phones, copying DVDs, or removing digital watermarks could be criminalized on a global level.  Most reasoned observers would agree that copyright holders need to have a way to stop unauthorized copying.  The "DVD pirate" who buys a DVD at Wal-Mart and sells 1,000 copies for $5 a pop out of the back of a van should be held properly accountable.  But do you really want the FBI breaking down your front door when your child loads a "cracked" video game on his online-connected Xbox?  

The Importance of Transparency

 ACTA raises a large number of issues that concern internet-connected citizens.  For example, some have interpreted ACTA to require that "ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability". Or what if we wind up with "Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)"? (Corey Doctorow)

As mentioned above, there is no open process required for treaty negotiation.  In fact, the negotiations are often done in secret.  The Anti-Counterfeiting Trade Agreement (ACTA) is being negotiated for the United States by the United States Trade Representative (USTR).  The USTR is an executive-branch diplomat that reports the President.  President Obama, in recent remarks, has said that "We have to rebuild our economy on a new, stronger, more balanced foundation for the future –- a foundation that will advance the American people’s prosperity at home, and support American leadership in the world." That sounds good to me, right?

As Obama said in the speech "The fact is other countries haven’t always played by the same set of rules.  America hasn’t always enforced our trade rights, or made sure that the benefits of trade are broadly shared.  And we haven’t always done enough to help our workers adapt to a changing world.
Now, there’s no question that as we compete in the global marketplace, we’ve got to look out for our workers.  But to look out for our workers, we’ve got to be able to compete in the global marketplace.  It’s never been as important an opportunity for America as it is right now." I don't think you'll find many Americans who would disagree with these goals.  

But, at some point, the rubber meets the road.  Sayeth Obama: "What’s more, we’re going to aggressively protect our intellectual property.  Our single greatest asset is the innovation and the ingenuity and creativity of the American people.  It is essential to our prosperity and it will only become more so in this century.  But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor.  There’s nothing wrong with other people using our technologies, we welcome it –- we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately.  That’s why USTR is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement."

And that brings us back to the whole treaty issue.  Negotiations on the ACTA began in June 2008.  Even though the treaty has been in negotiation for nearly two years, the Obama administration refuses to release the secret documents that detail what is being proposed.  In essence, if you're Joe Citizen, the US Trade Rep doesn't think you need to know what's being negotiated. Unless, of course, you're a lobbyist - "cleared" lobbyists do get access. "Because ACTA is intended to create new global international IP enforcement standards, including these provisions will allow US negotiators to achieve what they have not been able to do to date – ensuring that the US's overbroad implementation of the WIPO Internet Treaty TPM obligations becomes the global standard." (EFF)  

The Obama administration has been less than forthcoming.  Although the USTR has made some vaguely worded statements that "In keeping with President Obama's transparency goals, USTR will continue its efforts to ensure that the public is well-informed about the negotiations," very little information has been released. Instead, it's been publicly reported that "[i]n response to [a] FOI request, the White House Office of the U.S. Trade Representative refused to release the ACTA documents. It stated that the information about the treaty “is properly classified in the interest of national security pursuant to Executive Order 12958.” I don't see how copyright violations, or even bootlegged DVDs rise to the level of a "national security" issue.  It would be even worse if the Obama administration decided to proceed with ACTA as an executive agreement.  "Executive agreements do not require Congressional approval before they may take effect" and, according to Public Knowledge, can be used to "policy launder" material that wouldn't pass as legislation through ordinary channels.

The Way Forward

 Regardless of what the USTR advocates for, and what the signatories to the ACTA treaty finally come up with, open access for public comment should be a part of the process from the beginning. If we, as a global people, are to make decisions that will affect our daily lives on the internet, we need more than just closed negotiations to that legislation.