ACTA Is Not Evil; It Should Be Rejected Anyway - Part II

In Part I, I described why ACTA is not the intrinsically evil entity that people think it is. In fact, it is a relatively boring and toothless trade agreement that does not place any additional burdens on countries beyond what most signatories already have in their own national legislations.

So, am I going to go and withdraw my signature from the petition to stop ACTA, and tell my MEPs that they are free to vote for it if they can trade that favor for, let’s say, better agricultural subsidy terms for Estonian farmers?

I won’t. While ACTA’s text is nowhere near scary enough to warrant the level of public opposition it has received, the existence of that opposition is in itself a reason to reject the treaty.

As I have said before, if the majority of a democratic society expresses its desire sufficiently unambiguously, then that desire must be implemented, even if it is counter to the prevailing ideology. Governments and legislation exist only because it is not feasible to seek a referendum on each policy decision. At this stage, it would actually be technologically possible, but the general population does not have the time to thoughtfully consider the implications of a matter and arrive at an informed opinion. This is replaced by politicians running on broad platforms, and the people choose the broad direction they feel most comfortable with, then delegate their decision power. But the decision power stems from the people, and if the people actually care about an issue strongly enough, then that overrides the opinions of politicians, and the existing laws of the land.

ACTA is a touchstone issue. The anti-ACTA protests are not the result of the text of ACTA itself, or its implications; they are the result of an attempt to impose outdated behavioral models on an evolved technological world. And while a small layer of specialists may be genuinely worried about things like region-free DVDs or burdens on service providers, the majority of the human force of protesters is worried about something else. Everyone who saw the Wikipedia blackout and called their senator – for them, SOPA/PIPA/ACTA was only the last straw. Their patience was worn down, and their anger slowly built up, by the fight between rights holders and filesharers.

The Internet allows digital content – music, video, text, software – to be copied near-infinitely, at very little incremental cost. This creates a conflict. Consumers would like all content to be available for free. Rights holders would like to receive full retail payment for each created copy. Over the last decade or so, a dynamic balance has been reached. Businesses generally do not use pirated software, and this is heavily enforced. Consumers will prefer to use legitimate software and acquire legitimate content, where it has been made convenient for them, and where the price reflects the fact that the incremental cost of creating and delivering a copy has fallen dramatically since the days of cassette tapes. They do this partially on moral grounds, and partially because they recognize the importance of supporting the content creator. But consumers remain very aware of two things.

1)      The content creator and the rights holder are often different entities. Consumers part with their money far more easily when it goes directly to the content creator (who then covers the expenses of production and delivery out of their revenue, and keeps the profit) than when it goes to a rights holder, who distributes that revenue in opaque ways. Even if the content creator makes a lot of money, people still resent the middleman. There is no sympathy for rights holders.

2)     People are aware that the filesharing alternative exists. Where cumbersome artificial copy-protection measures makelife difficult for legitimate customers, and prices are perceived as being too high, they will turn to torrenting.

The origin of SOPA/PIPA, and the perceived threat of ACTA, is that the rights holders are attempting to legislate away the advances of digital technology, and the de-facto capabilities of consumers. This is why the public opposes ACTA. And the public’s voice must be heard. In a democratic state, if the will of the people is as clear as it has been made with ACTA, governments must submit to it, even if it is contrary to the interests of the rights holders.

If the public feels that intellectual property should not be protected or enforced in the way envisioned by ACTA, that's just too bad for the rights holders. The public must then deal with the possibility that content will no longer be created if rights cannot be enforced. Implications must not be hidden from the people, and their impact must not be softened. But the will of the people must be paramount.

Digital rights enforcement is broken, and is actively counter to both the will of the people and the technological reality. That is what the web demos are protesting, really. Yes, ACTA was the catalyst because its communication was grossly mishandled, but it does come down to the issue that modern technology allows for free content distribution, and the rights holders have mostly chosen to ignore the change in technology and attempt to enforce outdated business models through legislative means.

It's the same as the War on Drugs in that sense; if everyone is smoking weed, it's stupid to put people in jail for carrying a joint. If everyone is downloading, it's stupid to put people in jail for downloading.

One of the most preposterous things is that the issue has been successfully resolved for a different medium (analog-media copying) and works today. There was a hidden tax on every blank cassette tape and VHS tape sold, and that money was divided amongst rights holders. Even before that, there was the radio fee distribution scheme – radio stations pay to broadcast music, as do public venues that play music through their in-house audio systems. The equivalent solution – long since proposed and already adopted by some EEC members and other countries – is to place a flat levy on Web access, as payment for the implied piracy. This produces far less revenue for rights holders than they would like, but it resolves the moral issue while protecting the rights of consumers.

There are compromises to be made in the fight against piracy. As for ACTA, it is an issue of democracy. Because the people have chosen to reject it, and made their opinions heard, the politicians must reject it as well.

My signature is still on the petition.

ACTA Is Not Evil; It Should Be Rejected Anyway - Part One

There has been plenty of noise on the Internet about ACTA, the treaty that includes provisions on regulating copyright infringement on the Internet. There is a lot of criticism, but most of it is emotional and confusing. A fellow Euroblogger, looking for clarification on the meaning of ACTA, contacted me and asked if I had actually read the full text.

I hadn’t. So I did.

A few disclaimers to begin: I Am Not A Lawyer. I am, however, interested in European affairs and technology politics; I have been asked to comment on politics before, by press and official organizations; and by occupation I am a technical writer and translator. Some people pay me to read complicated legal texts, understand what they mean, and recreate that meaning very accurately in a different language. Other people pay me to take complicated ideas and concepts, and explain them in simple, understandable ways. They keep paying me, so I guess I’m good at it. (If any lawyers are reading this and have substantial objections to my analysis, I'd love to talk to you in the comments!)

The text of ACTA that I am using is this one: http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verification.pdf. There are many versions and drafts of ACTA around. That one appears to be the final one that’s being signed. I will quote relevant bits of text, but in any case I encourage you to go and read the source. By the standards of international treaties, ACTA is very understandable and unambiguous.

Most of ACTA’s text is actually about counterfeit trademark goods – things like knock-off designer handbags and fake name-brand sneakers. I will disregard all of that, and just focus on things that have to do with the Internet. (None of the stuff about knock-off handbags and sneakers is objectionable, it’s all about seizing shipments and border controls.)

Got that? OK.

First, the good news:

ACTA does not supersede national legislation. It is an international treaty under the umbrella of the World Trade Organization. It is not a law of the land in the same way that SOPA/PIPA was in America. It has very specific language to this effect, in Article 3: “This Agreement shall be without prejudice to provisions in a Party’s law governing the availability, acquisition, scope, and maintenance of intellectual property rights. […] This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under its laws and regulations. […] In implementing the provisions of this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties.” In the text of ACTA, some paragraphs say “shall” and some say “may”. For the latter, the country gets to decide if those will be implemented in its own legislation. Each country is explicitly permitted to have exceptions in its own legislation, choosing not to make certain activities illegal. This is part of the opening paragraphs, the context for everything that follows. Also pay attention to the principle of proportionality. In America, where massive civil lawsuits result in disproportionate financial settlements, the principle of proportionality does not seem to be widely upheld. In Europe – and particularly in Estonia, where many have complained about overly lenient prison sentences for crimes such as rape and murder – a specific reference to proportionality is very soothing to individual Internet users.

ACTA does not turn individual pirates into criminals. Even if it is accepted as written and the country does not claim an exception under its own laws. There are two relevant sections here: Chapter II, Section 2 “Civil Enforcement” and Section 4 “Criminal Enforcement”. Under the latter, Article 23 says: “Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.” ACTA requires each country to criminalize companies such as Megaupload (which was making a profit directly out of copyright infringement) and the sort of counterfeit software shops that Estonia used to have in the late 90s-early 2000s, where people were actually selling CDs and DVDs of software – making money out of it. As written, ACTA’s criminal enforcement articles would not even apply to The Pirate Bay, which does not make money from copyright infringement (it takes donations and sells merchandise with its own logo, demonstrably only making enough money to cover its operational expenses – a non-profit organization, not operating on a commercial scale). These provisions certainly do not apply to individual downloaders, for whom no money ever changes hands while they torrent.

ACTA does not place unreasonable burdens on service providers. The American version, SOPA/PIPA, scared the likes of Google and Wikipedia because it would have made it possible for rights holders to force-close websites for something as small as a visitor posting a link to unlicensed media in a comment box, and because it would have forced ISPs – the companies that provide Internet connections to homes and offices – to actively hide websites, effectively censoring content. All of this would be done without any involvement by courts, and without any ability to challenge the rights holders’ claims. But in ACTA, there is specific language to prevent this. In Article 6: “These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.” And in Article 27: “These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.” Again, ACTA leaves a lot of room for countries to individually decide what constitutes a barrier, an abuse and a fair process.

ACTA does not introduce limits that are not already in Estonian legislation, nor in any Western country’s legislation, I suspect. The Estonian government already released a statement saying nothing in Estonian law or practice would have to change because of ACTA. The test case for this is Estonia’s filesharing loophole: it is technically illegal (though rarely prosecuted) to upload unlicensed content, but if you’re only downloading a copy and not allowing anyone else to copy it off you, then you’re fine. From ACTA’s most draconian part, Article 27 paragraph 7b: “to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.” You will note that it says distribute, but not acquire. The loophole stands.

Now for the bad news. There are two parts of ACTA that can justifiably make the Internet public nervous.

The first is Article 27, which requires countries to have legislation against copyright offenses on the Internet. However, this is about circumvention – actively removing copy-protection from works, and does not cover using works with it already removed for personal purposes. (You can’t crack a game, but you can download and play a cracked one, if you set your torrent client’s upload speed limit to zero.) It is also about making circumvention measures available – but not using them. (Building a keygen or a cracked EXE file for a game is illegal; downloading that EXE and using it on your own computer is not.) This is where you have to do some soul-searching. Will the Internet really be destroyed if the people who create copy-protection workarounds are declared criminals? Remember that a) they already have been under most national legislations and ACTA does not introduce any new measures to find them, b) they are few and far between, and c) as a group they have stayed anonymous very effectively until now, and will probably stay anonymous if ACTA passes.

Article 27 also makes distributing that content illegal. You are liable for uploading content, including participating in BitTorrent file-sharing the way it is meant to work – not just receiving data, but sending it to others as well. But remember that this is merely illegal, not criminal; and that ACTA leaves room for countries to decide just how much they care about stopping you from doing it.

The other disturbing part of ACTA is in Chapter II, Section 2 “Civil Enforcement”, Article 9. Without quoting the full text (go and read it!), this introduces the rights holders’ favorite idea: that civil damages from copyright infringement should be measured in the retail cost of a single copy of the content, multiplied by the number of copies made. Or, for a single filesharer, the sum of the retail prices of all songs, movies, games etc. found on their computers. This obviously is to the benefit of the rights holders, letting them demand more money. It is also completely, self-evidently idiotic to anyone who has studied even the simplest, most basic level of economics, the elasticity of demand. Actually, it’s intuitively idiotic to anyone who has ever made a purchasing decision when they wanted two things and only had enough money for one.

When a type of product is available for free, and is easy to get, then people will get any item that seems even the least bit interesting. Digital content that you will end up not liking doesn’t even take up room in your closet, so there isn’t even an opportunity cost to stop you from getting it. And since downloading a file doesn’t mean someone else is deprived of the ability to use that file – perfect copies are created without damaging the original – there is no low-level moral argument against downloading, like there is against stealing an apple from a tree in your neighbor’s garden. But if you have to give up some of your money in exchange for digital content, then you will simply get a lot less of that content, because your money is limited, and there are a lot of things which you would like to have more than music or movies that aren’t very interesting to you.

The revenue that rights holders lose to digital piracy is not equivalent to the sum retail price of all existing pirated copies. They would never have sold that many copies. To claim otherwise is disingenuous on the part of the rights holders, and this is the main reason why normal people – not zealots who believe all information must necessarily be free – have no sympathy for the rights holders.

And normal people are the ones who matter. That is why ACTA – which is not evil, nowhere near as destructive as SOPA/PIPA, and in fact a boring trade agreement that does not change anything significant in any participating country’s legislation – must be rejected.

But this article is long enough already, so you’ll have to wait for Part II to read what I mean by that. (Sorry, Jacques, I know it was the second part you really wanted me to write today, but I got carried away!)