So, I'm asking you, Mr. President: if we're going to move forward on ACTA, let's first move forward on negotiating ACTA in public. And while we're at it, let's move forward on building in specific, wide-ranging, fair-use exemptions for individual citizens. Otherwise, ACTA risks becoming the kind of overly broad, poorly written law that's bad for innovation, is horrible for consumers, and threatens to--not to put too fine a point on it--break the Internet.
Because ACTA has so far been negotiated in secret, we don't know exactly what's in the treaty. But leaked versions raise very specific concerns. For example:
ISP liability
Leaks from various drafts of the treaty indicate that it would take a tough stance on ISPs, turning them into watchdogs for Internet content of all kinds.
With the threat of civil liability for online piracy held like a gun to their heads, ISPs will be required to monitor user content and turn over the private information of users at the whim of IP holders. They may even be forced to subject customers to those ridiculous "three strikes" provisions you've heard so much about, wherein you can be cut off from Internet service as the result of accusations of piracy, regardless of whether those accusations have any merit or are proven in a court of law.
Thankfully, the European Parliament has finally reacted strongly against these provisions, as well as the secret negotiations, calling for three-strikes measures to be stricken from the treaty, and for it to be negotiated in public.
Anticircumvention
But the three-strikes provisions are hardly the only problematic elements of ACTA. It would also strengthen the types of anticircumvention laws already found in the American DMCA. These provisions ostensibly prevent you from breaking any technological copyright protection, even for what might be a fair use. That's why it's technically illegal--illegal--for you to make a backup copy of a DVD that you own.
But it's worse than that. Anticircumvention provisions have brought the long arm of the DMCA down on all kinds of legitimate researchers, security experts, and even reporters. For example, when Sony embedded a rootkit into its CDs that was activated whenever you ripped one, the Princeton University graduate student who uncovered the dirty deed delayed announcing it for weeks, fearing that he'd be prosecuted under the DMCA for reverse-engineering the rootkit code.
Simply put, there's ample evidence that this provision does not work and can't be considered acceptable in a global treaty without, as I said, broad exemptions for fair use and research. And yet the ACTA treaty would, at least in versions we've seen, actually enact even tougher anticircumvention measures and export them worldwide, shutting down all kinds of research-based reverse-engineering and who knows what else.
Warrantless search and seizure
ACTA's intellectual-property provisions also potentially allow authorities to search your personal electronic devices for copyrighted material and seize anything that is suspected of being used for copyright infringement (think: your home PC). And it would dramatically increase fines and penalties for people accused of copyright infringement, even if that infringement is not for personal or even commercial gain (think: e-mailing a song to a friend for purely personal sharing).
There's much more that's scary in the treaty that we know about, and who knows what else we haven't yet seen. It's about time we got a look inside the sausage factory.
As Obama himself might say: Look. Clearly, counterfeiting, piracy, and intellectual-property theft are cornerstone financial issues of the 21st century. Personally, I seriously question the intensity of this concern, given the multiple ways the entertainment industry has been caught wildly exaggerating its losses. But I understand that you don't want China building entire false-front manufacturing plants and passing off products as, say, belonging to Intel. Global trade is changing the game--IP claims and counterfeiting are suddenly a global issue in a way they've never been before. I get that.
But here's the thing: this debate about digital intellectual property is, right now, being driven by companies trying to protect specific and pre-Internet era business models, and those companies have seen more of the treaty than U.S. citizens have. President Obama's own Justice Department is littered with RIAA lawyers, and his government has declared ACTA itself a national security secret.
Mr. President, you can't possibly continue to stand by this claim, especially as other treaty countries are increasingly calling for ACTA transparency. You've not only been called the technology president, you've personally promised to usher in a new era of openness and transparency. How is it possible that the administration behind the Open Government Directive is the lead country opposing transparency in ACTA negotiations?
Why the refusal to hear all sides of the story? Sadly, anyone who opposes restrictive intellectual-property laws has been painted as a "free software" anarchist type at best and an outright pirate at worst. Mr. President, I'm speaking to you as a law-abiding person, a technology enthusiast, and heck, a parent. Can you really look me in the face and tell me that allowing me to make a digital copy of a DVD, mainly so I can protect it from inevitable destruction at the hands of my sticky-fingered toddler, is a brick on the road toward destroying the entertainment industry as we know it? Really?
If you've actually come to believe that, consumers have already lost. And if you don't believe that, it means you haven't had a chance to hear from the other side, and that's the most dangerous part of this entire charade.
Mr. President, now is the time to stand up for technology--and for the citizens who can benefit immeasurably from the innovations the future can bring. You should be standing with the European Parliament and calling for a treaty negotiated in public, with the full input of the technology community and the rest of us with skin in the game: the Internet service providers, the citizens of the world and of the Internet, the individual artists, the researchers, the entrepreneurs, and yeah, even the hackers and the pirates.
That's the way this American experiment is supposed to work. If we're going to export our sweaty paranoia about piracy and our over-reliance on entertainment as the key to our country's solvency, we ought to at least counterbalance it with a respect for the underpinnings of our democracy.
