Toxic Lunch: Digesting the Latest ACTA Leak

The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago. Before we delve into the more troublesome elements of the agreement, let’s take a few moments to ponder how sad it is that our government continues to craft this agreement in secret.

I have spilt much digital ink over the stupidity of overt secrecy. When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.

The trade representatives crafting ACTA feigned that they understood this basic equation (openness + politics = mundane disinterest) when they finally released a draft of the long secret agreement a few months back. Granted, this release came after a series of leaks exposed the noxious text. But I thought there was a glimmer of hope that US negotiators might provide some of the transparency our current administration had promised.

No such luck. The resumption of secrecy was all but announced when trade representatives would only show the text to the EU Parliament in camera, with the MEP’s forbidden to share the information with the public. I am happy to note that the representative from the Pirate Party, Christian Engstrom (arrgggh) walked out rather than take part in this Court of the Star Chamber.

Thankfully this is not the end of the story. Because this agreement (which, let's recall, was supposed to be about counterfeit goods) threatens the internet access of citizens, as well as the safe harbors of Universities and ISPs, there will be no shortage of leaks to the web.

The latest leak of ACTA signals that there might be trouble in overreaching-undemocratic-drafting-paradise. It seems that there is serious disagreement over Article 2.2 (Injunctions):

The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.

The United States and Japan seem to be considering the inclusion of this clause, while Australia, Mexico, and others oppose it.

The clause is troubling because it could serve as a backdoor method for introducing three strikes cutoffs for accused users. One of the great fears around ACTA is that the agreement will cause ISPs to block service to accused users. This is certainly the goal of representatives of the entertainment industry. Indeed, the industry supported the three strikes HADOPI law in France (which the current regime is rethinking) and Lord Mandelson’s Digital Economy Bill in England.  I don't think I need to revist why these measures are obscene. I have covered the arguments against these measures here and here.  When the latest ACTA draft was released, people cheered that the agreement did not mandate three strikes. However, the text encouraged such a method by providing a three strikes prohibition as the only example of a safe-harbor preserving ISP response.

Article 2.2 suggests that injunctions may be served directly to ISP intermediaries, resulting in the cessation of internet access. That is, rather than serving and trying the accused pirate, the rights holders would target the risk adverse ISPs. Although it is likely that courts would not order a digital execution without hearing something from the accused, it is likely that ISPs would want to avoid the matter entirely by simply acceding to the right holder’s demands. Cf. the rampant abuse of DMCA take downs. Kimberlee Weatherall, a law lecturer at University of Queensland, voiced similar concerns for Australians and their ISPs, mutatis mutandis.

Supporters of ACTA will claim that this doomsday interpretation is farfetched. I think that the track record of the entertainment industry and the clear push for a three strikes option counsel against that attack. However, I fully acknowledge that I tend to imagine the worst-case scenario when shadowy figures meet in smoke filled rooms and refuse calls for even the most basic transparency. If the ACTA negotiators would simply step into the light, I would no longer need to imagine secret rituals, swinging censers, and internet blocking collective punishments. So once again, I ask that this pointless secrecy cease. Be open. Be boring. Let politics be politics again.

(Andrew Moshirnia is a rising third year at Harvard Law School. ACTA makes him a sad panda.) 


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