(Original post, November 4, follows):
The United States is currently engaged, along with numerous other countries, in international negotiations surrounding what is called ACTA – the Anti-Counterfeiting Trade Agreement. I think we can all agree generally that unauthorized counterfeiting is a bad thing: illicit copies of everything from Toy Story DVDs to fifty dollar bills harm everyone eventually, with the possible exception of those who make the counterfeit materials themselves. International efforts at reduction of that sort of enterprise would be generally a good thing.
Unfortunately, as has long been hinted at through leaks to the media or the Internet, there’s much more to ACTA than simply preventing the basement press-operators from making phony Benjamins, or running off copies of the latest blockbuster. There’s also a provision of the law called the Internet chapter.
So what? There’ve been high-profile piracy cases (Sweden’s Pirate Bay, for one) in the news regarding Internet piracy of intellectual property, right? Well, yes. There have been. But that’s quite a bit different from – and should be dealt with (especially over international borders through binding trade agreements) through very different means than counterfeiting. The sort of piracy engaged in by some users of torrent services, or by the folks at Pirate Bay (or, before that, Napster) are decidedly not counterfeiting. They are unauthorized distribution of the real thing, not production of ersatz, fake copies.
It may seem like a distinction without a difference, but that’s far from the case. In the case, say, of a DVD copy of a movie, one might argue that extracting that movie and freeing it from its digital copy protection is the illegal act, and that whether one then burns the movie to an unrestricted DVD and tries to sell it at street fairs, or simply uploads the file to a server somewhere and makes it available for download, the result is the same. Not so. First, most digital file-sharing is done on a not-for-profit basis: people obtain copies of songs, movies, and other copyrighted material, and make it available to others using their own Internet connections or file-sharing services. They neither seek, demand nor receive any compensation or payment for the “product” itself. In the case of burning the disc back to physical DVD medium, the reverse is almost always the case; anyone who’s going to take the time and effort to burn multiple physical copies of a DVD, often complete with a case and accompanying printed cover artwork, is spending money to produce these copies – with the intent of selling the copies at a profit.
I’m not writing this to argue that “music (or movies) should be freeeee!” But it’s important – even critical – to draw a distinction between amateur, profitless piracy and small-scale commercial, profit-driven counterfeiting. Why do I call this distinction “critical?” Well, how about because of the contents of the “Internet chapter” of the ACTA that the US is currently involved in drawing up? The draft has finally leaked, and it’s not pretty. In fact, it’s draconian. Some provisions (via BoingBoing):
- 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.
- That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet – and hence to civic participation, health information, education, communications, and their means of earning a living – if one member is accused of copyright infringement, without access to a trial or counsel.
- That the whole world must adopt US-style “notice-and-takedown” rules that require ISPs to remove any material that is accused – again, without evidence or trial – of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
- 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)
How’s that for starters? Add to that the fact that the “pro-transparency” Obama administration refused to divulge any of this information, on the basis of “national security.” Shades of Dubya, gang. Not only is it a dubious claim that much if anything in this “Internet chapter” the United States is drafting relates to genuine counterfeiting, it’s even more skepticism-inducing that there’s anything in here which pertains directly to national security…at least enough so that it ought to be kept in the darkness and discussed only with a select few individuals.
Check that second paragraph in the list above: that means that if your teenage son or daughter uses a service like LimeWire or KaZaA to share a copy of the latest Britney Spears album with some friends online, your entire household would be denied Internet access. Do you telecommute? Not anymore, you don’t. And if you’re unlucky enough to be someone who does most or all of your work from your own computer, through the Internet, you’re stone out of luck. Not to mention that none of your children could access websites for school research, nor could the family use it for medical information-gathering or sharing, or a host of other vital services. Cheap VoIP? Not for you, even if you yourself weren’t the one who committed the violation.
If that’s not bad enough, most of the world does not currently have the same insane “takedown notice” laws that we have here in the United States – but they will if this passes in its current form. That means that anytime any corporate entity wishes to censor something published online, they merely have to issue a “takedown notice,” and the “offending” party would have to choose between complying (even if it felt it was not in violation of any laws, or was exercising “fair use” of material), or it would face certain penalty for not having done so.
This ain’t about “counterfeiting,” folks, it’s about making the Internet safe…for corporations and large organizations, and substantially more user-unfriendly – and, worse, punitive – for everyone else. Ironically, the most effective method of getting a message through to Washington legislators remains, even in the digital age, the business letter. I suggest everyone who finds this concerning (or outrageous, as I do) type up a letter, just as you would an email, and print it out and spend the stamp’s-worth of money to mail it to your representative and/or senator. Tell them you’re a constituent, and that you’d not only like to hear their position on this international agreement, but also that you’re concerned enough that if they don’t oppose this, visibly, you’ll organize against them in upcoming elections.
Oh…and? Mean it.
P.S. – by the way – in reference to the title of this post: to expand a bit on BoingBoing’s spot-on comment, the addition of third-party liability to the copyright laws is also a huge problem. Right now, blog owners and the owners of sites like YouTube, etc, are protected from copyright infringement suits under the legal theory that they are not responsible for the actions of their users, unless they have prior knowledge or it can be proven conclusively that they should have known a specific user intended to violate the copyright laws. This means that if corporation X, which owns the rights to material Y finds out that some of the material is posted without authorization on YouTube (or wherever), they can use a “takedown notice” to force YouTube to remove the material in question. And they can also sue the person who was responsible for uploading the illicit files. But what they CAN’T do, under current law, is sue YouTube (Google) themselves, because YouTube can’t be expected to monitor the flood of new data uploaded to their servers every minute. But under the ACTA provisions being drawn up and debated in Seoul Korea even as we speak, sites like YouTube would be legally liable for the actions of each of their members – in other words, potentially named in copyright suits – unless they comply with a provision of the proposed ACTA which forces them to screen all incoming content for copyright violations and other infractions before it is posted. In practice, as BoingBoing noted, the armada of lawyers and submission-checkers who would be required for large content sites (YouTube, Vimeo, flickr, etc.) to make sure none of the user-submitted content being uploaded to their respective sites could be even conceivably viewed as having violated any copyright laws, anywhere, would make the cost of operating such sites prohibitive enough that they would no longer survive in their current form.