by Gennady Stolyarov II
A clandestine international treaty is currently being negotiated among parties including the United States, Canada, New Zealand, the European Union, Japan, Singapore, and Morocco. It can justly be called the greatest threat of our time to the advancement of human civilization. Considering the magnitude of the other abuses of power pervading the world today, this might seem an exaggeration, but the Anti-Counterfeiting Trade Agreement (ACTA) contravenes every principle of civilized society, both in its content and in the nature of the proceedings leading to its creation.
It threatens to undo the accomplishments of the great Internet revolution and to thrust humankind back to a time when individuals had no public voice and no countervailing power against politically privileged mercantilist institutions. ACTA tramples on essential rights that have achieved even mainstream recognition: innocence until one is proven guilty, due process, personal privacy, and fair use of published content. Moreover, because of its designation as a trade agreement, ACTA could be imposed on the people of the United States by the president, without even a vote of Congress.
Some excellent background information on ACTA can be found in posts by Stephan Kinsella (here and here) and Justin Ptak (here), as well as in a detailed communiqué from the American University Washington College of Law. The first official draft text of ACTA was released only as late as April 20, 2010, even though the treaty has been negotiated since 2006. A subsequent draft text was leaked on July 1, 2010. An earlier discussion draft was made available on WikiLeaks on May 22, 2008. Indeed, the extreme secrecy in which the ACTA negotiations have been shrouded should itself lead to the strongest doubts regarding the merits and desirability of its framers’ intentions.
Freedom of Information Act requests regarding ACTA have been denied in the United States on the grounds of “national security” — while major special interests supporting intellectual property have been allowed privileged access to the negotiations. These interests include the usual suspects — the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), Sony Pictures, and Time Warner — who were invited by none other than the United States Trade Representative to give their “input” on the treaty.
Members of the public at large, whom national governments are ostensibly supposed to represent, were not allowed to know about the ACTA negotiations for years. Meanwhile, front seats at the negotiating table were offered to the parasitic organizations which have thwarted actual creators’ freedoms and ruined the lives of thousands with frivolous multimillion-dollar lawsuits.
Here, I will only summarize the most salient abuses arising from this treaty, but I encourage readers to learn as much as they can about this truly totalitarian agreement. My other objective here is to demonstrate the enormous danger that ACTA poses: it threatens to thrust human civilization back into the pre-electronic Dark Ages.
ACTA’s provisions would amplify the already-onerous Digital Millennium Copyright Act (DMCA) of 1998. Prior to DMCA, copyright infringement was a civil offense; if the holder of “intellectual property rights” to a work found himself inconvenienced by its unauthorized distribution, he could sue the “infringer” in court. The DMCA criminalized copyright infringement and has rendered thousands of innocent creators’ work subject to notorious and frivolous takedown notices, but it retained important protections for individual consumers and Internet service providers (ISPs). For instance, the DMCA’s “safe harbor” provisions absolved ISPs from liability for any copyright infringement on the part of their customers. ACTA would eliminate this protection and require ISPs to become an enforcement arm of the treaty, under threat that the ISPs themselves would be fined or shut down if they did not comply.
Under the current copyright regime, a holder of “intellectual property rights” is at least formally required to gather evidence of any infringement and submit a grievance. With ACTA, this requirement would be eliminated, and the holder of “intellectual property rights” would not even need to complain in order for governments to persecute the alleged infringer.
The sheer absurdity of this approach does not take long to recognize. Indeed, many copyright holders today — from superstar musicians to part-time online content creators — deliberately look the other way when others reproduce their work without prior permission; they hope to benefit from the resulting exposure. Under ACTA, governments would be able to crack down on the fans of these creators, against those creators’ own wishes! Even if one accepts the validity of intellectual-property rights (which I do not), who would be the rights holder here — individual creators, or governments and the large, politically privileged trade associations that are pushing this treaty?