The usual suspects are threatening to dismantle our Internet

We are coming up to a watershed moment in the existence of the Internet and very few people seem to care. Right now there are two separate events happening that will have a direct impact on both the Internet we have right now and the one we will have in the future.

While they might seem like two disparate events they are in fact being lead by one industry. Under the guise of copyright infringement and piracy the entertainment as a whole is spearheading the adoption of the Digital Economy Bill in England and the Anti-Counterfeiting Trade Agreement (ACTA) which would be global in impact.

It is easy to shrug our collective shoulders over the Digital Economy Bill suggesting that it’s strictly a British problem and doesn’t affect the rest of at all. Well one only has to look at the persuasive use of CCTV in Britain and how it became the template for other countries like the U.S. to follow suite to see how foolish that argument is.

When I first wrote about the Digital Economy Bill here back in August of 2009 it was in light of how the original bill was changed after a weekend meeting get-together on the Greek island of Corfu. This little confab consisted of Lord Mandelson, the British business secretary, members of the Rothschild banking dynasty; who paid for the retreat, and David Geffen, an American billionaire record producer.

Prior to this retreat in sunny Corfu the Digital Economy Bill was actually a forward looking document that the British government hoped would take the country into the next millennium. After the trip though it suddenly became a totally different beast all together that saw everyone using the Internet as a criminal.

Now just this past week thanks to Cory Doctorow at Boing Boing we find out that this new Digital Economy Bill that is now before the British Parliament not only will treat web users as criminals but it is also being used to create a process that will see unelected officials able to do just about anything without Parliamentary oversight or control as long as it is done in the name of protecting copyright.

Doctorow was able to get his hands on some reliable information (via a British Labour Government source) and points to the three specific arguments that Lord Mandelson uses for justifying the revamped bill

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a “three-strikes” plan that costs entire families their internet access if any member stands accused of infringement)

2. The Secretary of State would get the power to create procedures to “confer rights” for the purposes of protecting rightsholders from online infringement. (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

3. The Secretary of State would get the power to “impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement” (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright “militias” can be formed with the power to police copyright on the web)

As Doctorow points out in this post, and a follow-up to it, unelected officials like Lord Mandelson would have the power to create and run a private copyright police force that wouldn’t answer to anyone.

But that’s just for starters. The real meat is in the story we broke yesterday: Peter Mandelson, the unelected Business Secretary, would have to power to make up as many new penalties and enforcement systems as he likes. And he says he’s planning to appoint private militias financed by rightsholder groups who will have the power to kick you off the internet, spy on your use of the network, demand the removal of files or the blocking of websites, and Mandelson will have the power to invent any penalty, including jail time, for any transgression he deems you are guilty of. And of course, Mandelson’s successor in the next government would also have this power.

Now it would be a common reaction from the rest of us in the world to shrug our shoulders saying ah it’s a British problem, if they want to let this happen it’s their own fault and carry on our way. The problem is that besides recent history showing that this is a short-sighted position to take there is also another much more subtle and potentially dangerous change to individual country laws.

Under the guise of protecting corporate copyrights a new global treaty; think WTO, WIPO, WHO etc., called Anti-Counterfeiting Trade Agreement (ACTA) is being created and agreed to in secret. The secrecy around ACTA is so persuasive that anyone viewing the actual agreement and participating in the talks around it are forced to sign a Non-Disclosure Agreement (NDA). The Electronic Frontier Foundation has even had to go to court to force the release of any documents surrounding the Treaty.

This is a treaty that has been written by the entertainment industry and then promoted to governments around the world and being the necessary way to protect the status quo in a world that is changing to fast for many people – especially in the corporate world. Both here in Canada and in the U.S. this treaty will fundamentally change the way that copyright laws are written and policed – just as we are seeing in England with their Digital Economy Bill.

In an article published in the Yale Journal of International Law (PDF version) Eddan Katz and Gwen Hinze wrote

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade the debates about intellectual property (IP) at established multilateral institutions. The Office of the USTR has chosen to negotiate ACTA as a sole executive agreement. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all.

via Cory Doctorow

In Canada Professor Michael Geist; Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, has been heavily involved in trying to keep this treaty in the public eye. You can read his work in this area here at his blog but he points to the spin that the organizations and governments involved in foisting this treaty on the world are putting around the secrecy.

In their opinion this secrecy is just normal business when working on large treaties like this but the facts; and history, tell a different story.

In the face of widespread criticism of the lack of ACTA transparency, participating governments and music industry lobbyists have claimed that the transparency issue is much ado about nothing. As governments seek to keep relevant information secret, those same governments released a joint statement last week arguing that “it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation.”

It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions. U.S. NGO groups have made a strong case for how ACTA’s lack of transparency is out-of-step with many other global norm setting exercises.

Michael Masnick at Techdirt also has a good post where he examines this argument that secrecy is normal and that any open discussion about ACTA is nothing more than a distraction.

A third point raised is that this isn’t a “treaty” but a “sole executive agreement,” so we shouldn’t worry since it can’t change the law. Except, by categorizing it as such, it’s actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that’s in the agreement, and then just wait for the “but we must live up to our international obligations” to start pouring out of lobbyists and industry lawyers’ mouths.

This isn’t a treat about securing copyrights for rights holders as much as it is a method by which the entertainment industry of the U.S. can exert a stranglehold on the Internet. James Love at Knowledge Ecology International has a list of who the White House shared the ACTA text with; under an NDA, but what is more interesting is seeing just who some of the corporations behind this push for the acceptance of ACTA are.

In this regard Michael Masnick has a list of entertainment companies that signed a letter that was sent to the government supporting ACTA; which considering that they helped draft the treaty shouldn’t be too surprising.

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

In combination these two seemingly disparate items might seem to be connected but the fact is that behind both of them are the powerful people in the entertainment industry that don’t want to boat rocked. In fact they are doing everything they can to get the boat back into dry dock and under lock and key.

We might like to believe that the Internet will always be open and free but the reality is that there are some strong forces at work that want to turn it into something totally different. It is my fear that with the secrecy surrounding things like ACTA and the Digital Economy Bill along with people’s seeming nonchalant attitudes we will end up with something totally different than we dream of.

That would be a sad day.