GigaOM Pro

ACTA aims to tackle digital piracy by exporting U.S. policies.
Source: Flickr user oneeighteen

Ever since its existence came to light two years ago, the Anti-Counterfeiting Trade Agreement has been the object of speculation, litigation and paranoia among media and technology policy wonks. First proposed by members of the European Union but quickly embraced by the U.S., the treaty is nominally aimed at harmonizing enforcement policies against counterfeit and pirated goods among countries that are the leading producers of intellectual property. But critics of the treaty, which are legion, particularly among public interest groups, seized on a leaked discussion paper from the negotiations to claim that the treaty would require massive changes to U.S. intellectual property law and would give customs officials the authority to seize your iPod or laptop at the border without due process to search for pirated recordings.

Last week, a new document leak added fuel to the fire by seeming to suggest that the U.S. is trying to engineer a worldwide “three-strikes” regime for accused file-sharers, through the expedient of a multilateral trade agreement, that would ultimately require a significant tightening of U.S. copyright law. But what the leaked document mostly suggests is that the U.S. position on ACTA has more to do with exporting U.S. copyright law to other nations than the other way around.

It hasn’t helped quell suspicions of ACTA that the U.S. government has treated the negotiations literally as a state secret, arguing that disclosing the terms of the treaty before negotiations were complete would harm relations with U.S. trading partners. In 2008, Public Knowledge and the Electronic Frontier Foundation sued the Office of the U.S. Trade Representative under the Freedom of Information Act seeking to force the administration to disclose the U.S. position on various issues under negotiation. But they were forced to drop the suit after the administration invoked national security concerns (!) regarding the discussions.

In September, the Obama Administration relented somewhat, granting access to portions of the treaty negotiations to critics under non-disclosure agreements. Among those allowed to see all or parts of the treaty were Google’s chief copyright counsel William Patry, Public Knowledge president Gigi Sohn, Intel’s IP counsel in Washington, Jim Burger of Dow Lohnes and Consumer Electronics Association IP counsel Veronica O’Connell.

Last week, an EU memo surfaced summarizing the U.S. position on ISP liability and other matters related to illegal file-sharing, touching off another round of sturm und drang among critics. Cory Doctorow of Boing Boing called it “bad, very bad.” On Wired’s Threat Level blog, David Kravets called it “policy laundering at its best.” So-called “policy laundering” refers to a process in which interests groups that are unable to persuade U.S. policymakers to enact favorable legislation or regulation seek to insert their preferred language into bilateral or multilateral treaties, typically trade agreements. Once those treaties are ratified, the U.S. can be compelled to amend its domestic law to comply with the treaty obligations.

What ACTA really seems to be, though, is not so much policy laundering as a kind of copyright gunboat diplomacy. The U.S. was among the first countries to ratify the World Intellectual Property Organization (WIPO) Copyright Treaty, which it did by passing the Digital Millennium Copyright Act over a decade ago. On a number of important matters, however, such as circumvention of technical protection measures, the DMCA went farther than the treaty strictly required.

At the time, the media companies whose lobbyists had helped craft the legislation hoped the DMCA would serve as a model ratification law that could be exported throughout the world, giving copyright owners more protection than they were able secure through WIPO. Few other countries, however, followed the U.S. lead. Instead, most enacted WIPO ratification legislation that hewed closely to the actual requirements of the treaty.

Ever since, then, however, Hollywood and the record companies (among others) have pressed to include DMCA-like language in bilateral trade agreements, hoping to force countries that did not embrace the U.S. approach into a bit of policy laundering of their own. With ACTA, we see that strategy reaching full flower.

For one thing, ACTA would be a multilateral treaty; no more picking off countries one at a time. And, as Nate Anderson points out on Ars Technica, the language in the newly leaked document tracks very closely with the DMCA. For instance, it states that ISPs must “put in place policies to deter unauthorized storage and transmission of IP infringing content.” While some have read that as laying the groundwork for a worldwide three-strikes regime, it’s no different from Section 512 of the DMCA. As Anderson correctly notes:

As Section 512 makes clear, a safe harbor will only be granted to an ISP who has “adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” Yet that provision has not created any sort of three strikes regime among the major US ISPs.

The anti-circumvention provisions in the leaked document are also essentially verbatim from the DMCA, as are provisions requiring other countries to adopt DMCA-like notice-and-takedown procedures.

Does all that make ACTA a good idea? Perhaps not. But it also doesn’t make it something radically new under the sun. We’ve known for years the media companies were trying to export the DMCA. ACTA is simply the bill of lading.

Question of the week