ACTA has been called many things over the years since it was first leaked online, but an all around failure was certainly not one of them until until the last few months.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
The Anti-Counterfeiting Trade Agreement (ACTA) has been one of the biggest topics of discussion in the realm of internet user rights, intellectual property discussions and legal circles that deal with these issues. Early on, it was the ultra-secret agreement that virtually no one knew about until there was an explosion of publicity online when the documents leaked on various whistle blower sites including Wikileaks.
Things were never really the same since.
After initial leaks of draft documents, many quickly realized that this agreement was much more than just an agreement on stopping counterfeit handbags and bootlegging CDs, but rather something far more sinister and fears about the kind of harm it could do on personal freedoms were enormous.
Among the initial criticisms were that police officers would stop you and confiscate your property at the border for merely possessing a “digital storage device” (which can mean anything from a cell phone to a laptop or even an iPod). Another fear was that it would effectively export some of the more dangerous portions of the United States DMCA which has caused a lot of grief for innovators and researchers (i.e. just ask any open source developer about reverse engineering something for research purposes in the US). Then there was also the exporting of the three strikes law where entire households would be disconnected from the internet on nothing more than merely three accusations – no courts, no accountability, no opportunity to challenge any claims.
It was these and other claims which sparked a massive campaign to lift the veils of secrecy on this elusive and heavily redacted treaty through laws such as Freedom of Information Act Requests – legal procedures that are suppose to let citizens know what their own governments are up to. Many were horrified to discover that not only was the information not forthcoming, but governments were stonewalling any attempt to get any information. Some said it was for reasons of national security, others remained tight-lipped altogether. This certainly did not quell fears of the worst possibilities of this treaty.
Human rights and online rights organizations such as the Electronic Frontier Foundation issued letter writing campaigns pressuring the government to release any official papers on the treaty, but to no avail. The European Union at one point refuted some of the suggestions made by the draft documents that leaked, but since there was no evidence to back up their position, it was extremely difficult to believe them.
Later on, KEI revealed that ACTA insiders were doing something to quell criticisms by allowing major corporations such as representatives from members of the RIAA and MPAA to have access to those documents. Later on, the MPAA even suggested at one point that criticisms that ACTA is so secret are little more than “distractions”.
ACTA had all the trademarks of a conspiracy theorists worst nightmare. Governments were co-operating together under the veil of secrecy away from their own citizens. Only mega corporations are allowed to part-take and a deal that stood outside the standard processes of lawmaking. While major corporations tried to speed up the process, the criticism just continued to mount. It was those criticisms that eventually started to have an impact on the internal negotiations.
It may be simply the way ACTA went about that might be fuelling a possible demise. We’re talking about a law that even law-makers don’t have access to it to even look at let alone have official authority to criticize or support it. Do politicians like it when there is a sense of them losing their own power to govern? Probably not. Chances are, when national politicians are involved, interesting things can start to happen. Canadian MPs have been voicing their concerns and one MP, NDP MP Charlie Angus, even recently launched his own Facebook account which calls for the end of the secrecy surrounding ACTA. In Europe, MEPs were raising concerns including recently also raised concerns about ACTA.
Still, after all this criticism even from national politicians, it didn’t seem like it was going to even phase the state of ACTA negotiations – or would they? A recent article in the New York Times suggested that “[e]ven some participants want to ease the secrecy that surrounds the process.”
“The Swedish government believes that we should release a consolidated text as soon as possible,” said Stefan Johansson, a Swedish Justice Ministry official who has been involved in the talks.
One defender of ACTA had some interesting comments as well:
“Given the importance of this agreement to our economy and to consumers, we must not allow ACTA to be derailed by a minority opposed to protecting the rights of artists, inventors and entrepreneurs,” Mark T. Esper, executive vice president of the Global Intellectual Property Center, an affiliate of the U.S. Chamber of Commerce, said in a statement.
The New York Times article alluded to that part of the problem also stems from several different countries wanting to do several different things – no huge surprise there. Still, flexibility within ACTA was noted:
“Our system allows for flexibility,” said one person with knowledge of the E.U. position, who insisted on anonymity because of nondisclosure agreements governing the talks. “The E.U. cannot accept an agreement that mandates a single solution.”
One might wonder if there’s any form of unity within ACTA. One would think that if there is some sort of major problem happening within a world that requires an international agreement, then an agreement would say something like, “Look, here’s a problem and here’s where we are going to fix it.” If there was an asteroid about to crash in to the Earth, would the last thing one would want to hear is, “Well, countries can kind of do their own thing to solve this problem I guess.”?
So one thing one might ask after all of this is, “If countries can pretty much do whatever they want, then what’s the point of ACTA to begin with?” Certainly, entities like the MPAA had high hopes about this agreement by hoping there would be an internet chapter that tackles non-commercial copyright infringement online, but not all countries subscribe to the notion that consumers should be arbitrarily cut off from the internet outside of any judicial oversight.
All in all, this might be a beginning sign that ACTA could end up being something very few even remotely predicted – a dud. It’s all thanks to ongoing criticism, overwhelming and unprecedented secrecy and disunity from within the negotiations themselves (how long have they been going and what about the rumours that negotiations could be going in to 2011?) that might very well sink ACTA into irrelevancy. At there very least, there are some signs of this happening.
Drew Wilson on Twitter: @icecube85 and Google+.
