People protesting SOPA

The web community and political activists fighting for less draconian copyright laws have seized the opportunity afforded to them by the defeat of the Stop Online Piracy Act and the Protect IP Act in the U.S. Congress to go after a bigger topic, the exportation of SOPA-style laws abroad. These laws, which include the Anti-Counterfeiting Trade Agreement, or ACTA, and the Trans-Pacific Partnership, which opponents have dubbed ACTA 2.0, are in the news lately.

These agreements are problematic, not just because of their content, but because they are negotiated in secret, and in the case of ACTA, were pushed through without event getting ratified by the Senate, holding the U.S. to international laws that never ever went through Congress. In this way, SOPA-style provisions might find their way into the U.S. But before we wade into the morass of intellectual property protection agreement, let’s just get some basic vocabulary down.

What the what?

ACTA: ACTA is an international trade agreement that criminalizes intellectual property theft across borders. Its targets are both those counterfeiting physical goods as well as folks pirating digital content. The U.S. signed it in 2010 along with six other nations, including Japan and Canada. Last week ACTA was in the news as the EU and Poland signed the treaty as well, much to the dismay of some of their citizens and politicians. Other countries have until March of next year to join — and trade groups representing the content industry would dearly like everyone to join.

SOPA/PIPA: The Stop Online Piracy Act and the Protect IP Act were companion bills that were proposed last year in the House and Senate respectively. As of last week, they have been shelved thanks to a massive online and offline protest spearheaded by web giants and communities such as Wikipedia and Reddit.

The Trans-Pacific Partnership Agreement (or ACTA 2.0): The TPP is currently being negotiated in Los Angles as a wide-reaching trade agreement between Singapore, Chile, New Zealand, Brunei, Australia, Peru, Vietnam, and the United States. It includes provisions about everything from labor conditions to tariffs, but it also has provisions on intellectual property, which have caught the eye of consumer-rights groups.

The theme here is behind closed doors.

Psst, let's negotiate a trade agreement.

However, a big issue with all of these agreements are not just the provisions– it’s the fact that the negotiation of these provisions and the treaties occur in secret. Like a VC Andrews novel (ACTA in the Attic?) all sorts of nasty things can occur when people negotiate behind closed doors, and those attacking such laws should mention that. Sure, some of the provisions might “destroy the Internet,” as folks argued that ACTA, SOPA and PIPA would do, but in all cases further discussion over problematic provisions helped eliminate some of the most damaging aspects of ACTA and stopped PIPA and SOPA for now.

For example, ACTA shows how secretive and undemocratic the process was in 2009 when it was being debated in the U.S. and in 2012 as the EU was approving it. In 2009, public interest groups including Electronic Frontier Foundation and Public Knowledge sued to get the details about the agreement before the Senate ratified it, and what they found was discouraging. But thanks to a procedural sleight of hand, it was ratified without ever going before the Senate.

And as ACTA spreads to other nations, frustration with it is mounting. Just last week, Kader Arif, a representative investigating ACTA on behalf of the EU, resigned from his position in apparent disgust at the way he felt the democratic process had ben circumvented in order to get the EU to sign the treaty. Meanwhile, the EU member states still have to ratify it. In Poland, citizens protested the country’s signing of the treaty.

Now, folks protesting TPP must first find out what it says before they can make judgements about it. Draft documents show that the agreement has several issues many in the online world will find problematic, including defining infringement not just by the intent to profit off the infringement, but also by how many people have illegally accessed that content — a problem if your YouTube clip that uses a copyright song goes viral. It also seeks to lengthen the time something is protected by copyright to match U.S. law, which now protects it for 70 years. For more, see this page set up on the agreement by the American University Washington College of Law.

Why is this all such a big deal?

Fundamentally, there are two big issues when it comes to piracy — one philosophical and one a difference in the underlying business models. Philosophically, the issue here is that the law, much like SOPA and PIPA, conflates the issue of counterfeiting goods with the many shades of copyright violations. The problem is counterfeiting goods such as baby formula or medicine where the buyer is unaware of the deception and could become physically injured as a result is a different kind of crime than copyright violations that range from videotaping a movie in theaters to a consumer breaking the DRM on their movies so they can side load them to their phones or other devices. There are many ways one can slice and dice these issues, and that’s where all that democratic process and discussions come into play.

The second big issue is one of a difference in understanding between the online world and the content world. Brad Burnham, a managing partner at Union Square Ventures expressed this dichotomy well when he explained to me that the content industry doesn’t understand its customers the same way the web industry does.

“In web companies like Etsy, Kickstarter and Foursquare, they provide an environment for users to create the value,” he said. “The users are partners and co-creators and a web company needs to think about them and empower them. The content industry views customers on whether they pay them or not, and instead of empowering customers they want platforms to control the customer on behalf of the content industry.”

But as Burnham added, if a web platform tries to enforce the demands of the content providers, it hacks off their co-creators — and without users the web platform is sunk. Burnham doesn’t think the content industry appreciates the position the web guys are in. Unsurprisingly, because of their inability to expand their world view, many in the content industry have been slow to embrace these platforms for marketing and promotional purposes that might actually encourage users to pay more for their content.

But, on the flip side, there are egregious violations of copyright out there, and web platforms have been understandably loose about enforcing rules as they try to woo users to their platform.

So, the issue here is the U.S., at the behest of Hollywood, is exporting its strictest IP protection laws and doing much of it in secret. Unfortunately, Hollywood and those in Congress who seem proud not to be a nerd and unable to understand how the web works are trying to force their worldview on a world whose views have moved substantially in a different direction. The debate over IP in a digital age is one well worth having, but we can have it if things are negotiated in secret.

Pirate image courtesy of Flickr user Richard Masoner.

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