ACTA: The acronym hardly anyone knows yet should be scared to death of

In light if the FCC loss to Comcast in the courts Fred Wilson wrote an interesting post where he uses the phrase Internet Freedom and how it is an important concept for his company Union Square Ventures and how it impacts their investment thinking.

Our firm, Union Square Ventures, focuses most of our time on finding companies, investing in them, and working with the entrepreneurs to build them. But a few years ago, we made the decision to invest a small amount of our time on public policy issues, like net neutrality, patent reform, spectrum reform, immigration reform, and a handful of other ones. All of this and more is about Internet Freedom. Our business requires it. If we lose Internet Freedom, we won’t have any companies we would want to invest in and we’ll close up shop and move on with our lives. That would be our loss.

Noble words indeed.

Idealism versus citizens under siege

During this conversation around the FCC loss there was another big Internet Freedom action going on in Britain. I am of course referring to the Digital Economy Bill which was passed in their House of Parliament much to the horror of anyone involved with Internet policy and freedom. It wasn’t so much that it past but the fact that it was done so with next to no debate because of tactic used by the Labour Government to sneak it by in the quiet days leading up to their upcoming election.

Simon Mackie at GigaOm writes:

Shortly before midnight last night, the UK’s Labour Government finally managed to push through its Digital Economy Bill. It’s a controversial and wide-ranging piece of legislation that is aimed at tackling copyright infringement and, among other things, will force ISPs to cut off persistent file-sharers. Because the bill was forced through during the “washup” period before parliament is dissolved in advance of May’s General Election, there has been concern that the bill hasn’t been debated thoroughly, and not enough attention has been paid to its implications for digital freedoms — for example, the Bill could have the unintended consequence of forcing places like libraries and cafes to stop offering free Wi-Fi. It could also give the government the power to block sites like Wikileaks, just because it hosts copyright-infringing material.

On one hand we have the idealistic thoughts of Fred Wilson and on the other we have the total capitulation of a government to paranoia and draconian methods of trying to control one’s population.

However it doesn’t just stop with governments trying to control the Internet within their own borders as Canadians are finding out. In March I wrote on my Shooting at Bubbles blog about the pressure being exerted on our government by the European Union to change our laws regarding copyrights and intellectual property. In the post I quote Professor Michael Geist who said:

Given the magnitude of the proposed changes, the price of a trade agreement is clear. The EU is effectively demanding that Canada surrender its sovereignty over intellectual property law and policy.

In effect we are being told that if we want to be able to play with everyone else on the global stage we had better be ready to forgo making our own laws and become a rubber stamp country.

One has to wonder how much worse things can get but unfortunately one doesn’t have to wonder for very long as the biggest threat to Fred Wilson’s idealism is already here waiting in the wings. As bad as one might think the Digital Economy Bill might be most of us think we can rest easy with the belief that this insanity is confined to Britain.

Think again because there is a global effort to make what we see with Britain’s Digital Economy Bill nothing but child’s play. It is an effort that makes the heavy handedness of the European Union look like a sing-a-long around a campfire and every attempt is being made to see it all happens in secret.

Building Frankenstein under NDA

So what is this global effort you ask. Well the acronym that it is going by is pretty innocent enough and even in its full glory it sounds on the surface as being a pretty noble goal.

The acronym is ACTA and it stands for: Anti-Counterfeiting Trade Agreement.

Pretty innocuous sounding eh?

It is too, at least until you start looking it exactly what the agreement is all about, who is involved and how it is planned to be implemented. That is of course if you are lucky enough to be able to find out any information about this international agreement because all the meetings of the principals involved are held in secret. Not only that but anyone who wants to even lay eyes on the documents making up the global agreement are required to sign a non-disclosure agreement (NDA)(pdf).

First, we agree that the documents relating to the proposed Anti-Counterfeiting Trade Agreement (ACTA) will be held in confidence. This means that the documents may be given only to government officials or persons outside government who participate in the party’s domestic consultation process and have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. The United States plans to hold ACTA documents in confidence for a fixed period of time after the negotiations conclude.

For the first time government officials and others involved are being bound to secrecy in the creation of a global trade agreement. As Prof. Geist points out this is something totally unheard of in the world stage – especially when it comes to trade agreements

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. With regard tointernational fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA.

It is only within the last year or two that the veil of secrecy has been lifted to a degree as more people have heard about the trade agreement and started raising a fuss. Even though there are an increasing number of politicians from around the world beginning to ask questions about ACTA the people and organizations behind it all are still trying to keep as much of a lid on access as they can.

So who is playing puppet master here?

As you may have noticed in the above quote there was the mention of the music industry as being one of the driving forces behind keeping this agreement as secret as possible. However it’s not just the music industry trying to hustle this agreement through but rather the whole US entertainment industry.

Right from the very beginning this has been a play by the entertainment industry to perform an end run around both American laws and other individual country laws as well. Their fingerprints are all over ACTA as it is their trade group lawyers who first drew up the originating agreement that was then put into the hands of satellite agencies which then shopped it to the required government officials in the participating countries, even if they are only called advisors.

At all points of the ACTA trail you will find that there has been the strong involvement of just about every entertainment trade group from the RIAA with their wishlist (which includes gutting the DCMA and licensing CD content providers) through to the movie companies wanting everything from stiffer sentences for people caught recording movies to the destruction of P2P networks.

So why a trade agreement?

The simple answer to that question is – the laws; and legal rights, are getting in the way.

The entertainment industry has been trying in the US – with a lot of campaign bucks being donated – to get the laws changed to something more in their favor but there is this pesky thing called the Constitution as well as the Supreme Court that keeps getting in the way. While that hasn’t stopped them it has made their task a lot more difficult.

Then you have all those really irritating foreign countries with their own silly laws. They’ve tried in Canada to influence our government by donating as much as they possibly can, by whatever means they can, to favorable political candidates running for office. There influence has also been felt in other countries around the world but in the end – or at least at this point in time the standing laws of those countries are proving more difficult to get around than the entertainment industry would like.

With all these headaches why not find another way to get what you want and not have to deal with these piddling laws which is what the industry has done. You see in the Global Economy trade agreements trump local laws. You might not think so but in reality they do. Just look at any WTO disagreements, in the end the WTO trade agreements will trump local laws – hint: the current battle between the US and Antigua over online gambling.

So rather than have to constantly fight against the constantly shifting landscape of local laws the entertainment industry realized it was much easier to engineer a global trade agreement outside of even the WTO, WIPO and other related world trade organizations typical responsible for this type of thing. By doing so they have in effect created a global trade agreement that could marginalize or replace the WIPO.

And why is ACTA dangerous?

Besides the fact that it is an overt act to subvert local country laws ACTA has the potential to change not just the Internet but in my opinion our very society. That might be an extreme view but I have been following this since it first broke back in 2008 (even though the process had already been underway for two years) and the secrecy aside the fact that this is conglomerate driven politics the entertainment industry is looking to take total and utter control of how we can access information.

As Prof. Geist wrote back in 2007 when word of ACTA first started to leak out

This treaty could ultimately prove bigger than WIPO – without the constraints of consensus building, developing countries, and civil society groups, the ACTA could further reshape the IP landscape with tougher enforcement, stronger penalties, and a gradual eradication of the copyright and trademark balance.

The fact is t hat there is nothing seen so far in ACTA that is of any benefit to you or I. If anything everything suddenly becomes stacked in the favor of the entertainment industry. It would be easy to slough this off and say its only about entertainment so it’s not going to affect the Internet or my life beyond watching movies or listening to music.

Think again as Rafael Ruffolo pointed out in November 2009

ACTA would basically change the way we all use the Internet and modern technology. The role of Internet Service Providers like Rogers Communications Inc. and Bell Canada Enterprises Inc. will also change, giving these companies unbelievable new powers to stop “copyright violations.”

For starters, ISPs will be forced to block anything that could be pirated material. The impact this will have on the music industry is obvious, but what about for software developers?

Maybe a start-up creates an app and decides to give it out for free to create some buzz. How will Rogers or Bell be able to differentiate this freeware software from pirated commercial software?

Oh and that three strikes law that everyone laughs at France for enacting? Guess what? ACTA would have the same law built into it. Now who’s laughing?

Scratching the surface

As much as Fred Wilson might want to believe in Internet Freedom and everyone is doing a lot of back patting because the FCC lost we are only seeing the surface of what ACTA portends as the majority of the work going into is still going on behind closed doors.

The truth is we probably won’t know how bad things will be until the trade agreement is signed by all the parties involved and for the US knowing what is involved is even less likely since the Obama government has ruled that all documents related to ACTA are state secrets as James Love found out.

There are number of outstanding Freedom of Information Act (FOIA) requests for key documents, by groups like EFF, Public Knowledge, and KEI. In one of our FOIA requests, we asked for 7 specific documents, referenced by the exact title and date of the documents. These documents are the proposals for the text of the agreement.

The texts are available to the Japanese government. They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to “cleared” advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public.

Today we received this letter from the White House, Office of the United States Trade Representative. Our FOIA request was denied on the grounds that the documents are “information that is properly classified in the interest of national security pursuant to Executive Order 12958.”

An international trade agreement is considered a state secret. That should given even the most callous observer pause so if you think that ACTA isn’t the most serious challenge to not just Internet Freedom but also some of your most fundamental rights then I suggest you find a nice comfortable sandpile and stick your head in it.

A timeline of ACTA since the first available documents became available – courtesy of Professor Michael Geist.

The ACTA Timeline on Dipity.