When it comes to the privacy and surveillance debates, which are in various stages in different countries right now, many say that for national security concerns, further surveillance measures should be taken in the law books. Many policy makers want to know every detail of day-to-day communications of millions of people including who you talk to, when, how, where, and, with a warrant, what the contents of those messages are. Unsurprisingly, consumer rights groups have a problem with that. Meanwhile, when it comes to the highly secretive negotiations happening with ACTA, many consumer rights organizations want a clear indication on how the new international standard is forming and the contents of the legislation and to have such things disclosed to the public. Ironically, policy makers seem to have a problem with that.

That hasn’t stopped several consumer rights organizations from issuing a resolution to halt the ACTA negotiations and getting a chance to look at ACTA themselves. That’s currently what has been reported by IP Watch:

The Trans Atlantic Consumer Dialogue on 18 June issued the resolution on the enforcement of copyright, trademarks, patents and other intellectual property rights. The TACD is a trade advisory body to the European Union and United States government, and brings together 80 member organisations from those regions, claiming a direct paid-up membership of some 20 million consumers.

The resolution calls for a halt to the plurilateral negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) led by the United States, until the negotiating texts are made available to consumer groups and other conditions are met.

TACD wants future negotiations to be respectful of civil liberties such as the right to privacy and also demands the inclusion of developing countries in ACTA negotiations as the stated intention is to extend and apply the treaty to them. The resolution offers recommendations to ensure IP enforcement policies and practises address issues such as transparency, evidence and process, competitiveness, consumer protection, human rights, access to knowledge, and digital rights.

The resolution reflects discussions TACD had with representatives from the EU and the US government on 9 June, during the TACD 10th annual meeting in Brussels (IPW, Enforcement, 11 June 2009). But the resolution was released for the first time on 18 June and forms part of a larger effort by TACD to push back on the IP rights enforcement issues, according to consumer representatives.

This seems to be a brand new push to get ACTA out in the open. Last year, over 100 consumer rights organizations demanded public disclosure of ACTA.

Up to this point, even legal measures to obtain information about ACTA has been blocked or heavily filtered by governments around the world. In the United States, the EFF tried to get information regarding ACTA out into the public, but were hampered by “national security” concerns.

We here at ZeroPaid tried to get similar information in Canada throughout 2008 via Access to Information Act requests. All of our attempts returned with a borderline denial that ACTA even existed from DFAIT (Foreign Affairs and International Trade Canada). One of our attempts returned with a four figure price tag, but on closer inspection, it returned with a typo in the request which said it was a request for “AFTA”, not “ACTA” (our copy was hand-written explicitly requesting “ACTA”) Still, we will continue our efforts this year as well and inform you if we get any different results this year.

It’s not clear what effect this will have on ACTA negotiations, but leaks from the negotiations have painted a startling picture about ACTA which included calls for seizing portable information devices at the border and copying the contents to search for possible pirated material (a provision that was later denied by officials saying that this was inaccurate) Then again, if ACTA is so innocent and something we shouldn’t be worried about, why is there so much secrecy in the first place?

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In an interesting report from IP-Watch where there were a few choice words levelled against those that disagreed with the view-points of the copyright industry. Apparently, Fritz Attaway suggested that it’s false to assume that the rights of the industry and the interest of the public good are at odds. Maybe even giving the suggestion that 10 years of copyright debates is all just a big misunderstandings perpetuated by, using the black and white term, “enemies”.

So, where do these misunderstandings possibly come from anyway? We figured a short list might be in order: destroying Napster and Audio Galaxy and not creating an alternative for the get-go, raiding people’s homes because they uploaded Star Wars (not necessarily leaking it in the first place), hacking the URN hash and polluting FastTrack, hacking The Pirate Bay, having Viacom serve DMCA notices to people posting video’s of people eating in a restaurant on YouTube, suing tens of thousands of average American’s including fining one individual $222,000 for sharing a couple songs, saying that files in a shared directory is copyright infringement in court, saying that evidence is too hard to get and that the industry shouldn’t be burdened to prove their cases in court, suggesting that iPods are little more than little pirate ships, saying in court that even making one back-up copy of a DVD is illegal, lobbying to put in the DMCA, demanding that laws should be in place to prevent any tinkering with DRM including for research purposes, installing rootkits on people’s computers, installing spyware on people’s computers via the MediaMax technology, being outed for being hypocrites for pirating a documentary movie and claiming that it’ll only be in a safe place, tried to bring people a broadcast flag and telling people you can’t record TV shows if the broadcaster doesn’t like it, trying to bi-pass the backfiring of WIPO and the FCC to bring in the broadcast flag anyway, tried to get ISPs to do all the copyright industry’s dirty work, pressured and bullied other countries to implement laws the industry saw fit and using shady lobbying tactics to accomplish this, tried to sell us music that cannot be copied through the internet and on discs, tried to bi-pass the will of the European Union and get countries to pass “three strikes” laws even if artists disagree with it, attempted to price fix music albums, secretly hold negotiations to pass draconian copyright laws that would see people’s physical property effectively stolen on the mere suspicion of copyright infringement through ACTA, demanding that laws be passed that mandates the promotion of legal alternatives, then not providing the kind of deals that would allow legitimate services to flourish with internet groups and businesses like ISPs, alienate an entire generation by labelling their own customers as pirates, likened downloading music on the internet to terrorism, likened internet users who download music online to “bikey gangs”, spread blatantly false information about file-sharing, forcing people to watch anti-piracy ads on movies, suing people who had a recently deceased family member, argue that the industry is for artists, then going to court and demanding that royalty rates should be lower for artists – thus having to pay them less and keeping more money from album revenues, forcing radio broadcasters to pay royalties even if they don’t play music from the copyright industry, suing a lawyer for blogging about court cases related to copyright, and possibly the whole issue of listing countries that hold 70% of the world’s population and labelling some as rogue nations that need to update their copyright laws via the USTR Special 301 report – thus alienating many countries in the first place. Again, a short list of probably simple misunderstandings in the world of PR that have been taken out of context by the “enemies of copyright”.

At the very least, Fritz did have more to say: “We have got to do a better job” at attempting approaches at copyright protection “in a way that we get paid but also that consumers can access our works,” he added.

Perhaps not so noticeable and probably unintentional comment, but there is that whole concept of that this isn’t about creators being paid, much rather, copyright holders being paid which, in the industry, typically wind up being entirely different people. So, the use of the words “our works” could be considered quite appropriate for a number of people.

To his credit, he does say that the industry needs to do more of what they did with sites like Hulu. It’s nice for many to hear the industry talk about constructive things even though authorized websites tend to be vastly outnumbered by the number of unauthorized websites that offer unauthorized content. Attaway also said, “People are going to get it one way or the other. We would like them to pay for it and we need to seek out ways where they can pay for it. But just saying ‘no’ isn’t the answer.”

IP-Watch also features this fascinating excerpt:

Eduardo Bautista, president of the management board of Spanish collective management group, Sociedad General de Autores y Editores, agreed, saying, “We’ve done a lousy job. We should have been fired.”

President of the Consumer Electronics Association, Gary Shapiro, said, ”Recognise that kids today have been so turned off by the RIAA approach to litigation that they’re rejecting everything you say”. He then commented that there are those who think that there’s a big difference between physical property and intellectual property, saying “That’s hurting your case because you’re being rejected by anyone under 25 who is saying, ‘these guys are full of it,’”

So out of all of this discussion, it seemed as though there were a few interesting ideas, but they seem to conclude that the world needs to harmonize and legislate new copyright laws. Obviously, that’s not going to sit well for those who are worried over what ACTA has exposed as what the industry wants the world copyright laws to look like, (i.e. the concept of confiscating laptops and digital media players based on the assumption that copyright infringing files could be suspected of being on there or calling on the world to pass laws that would pave the way toward lawsuits as seen in the United States.

So really, one could argue that nothing has really changed outside of the odd comment that suggests a recognition of criticism. Still, very few people like the idea of a three strikes law – even ISPs are very reluctant to pull their weight behind such laws. Yet, laws like that are being pushed through in a number of countries anyway. The real question is, sure the copyright industry admits that they are losing the PR war, but does the industry really mind what the public thinks of them in the first place?

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

There’s no shortage of criticism for the Anti-Counterfeiting Trade Agreement (ACTA), but one of the biggest criticism is that it’s been kept out of the eyes of the public. While the amount of secrecy has been a concern for a large number of people, now the concern has moved from vocal opposition to legal opposition.

The press release contains the following:

The Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit against the Office of the United States Trade Representative (USTR), demanding information about a secret intellectual property enforcement treaty that the government has put on a fast track to completion.

“ACTA raises serious concerns for citizens’ civil liberties and privacy rights,” said EFF International Policy Director Gwen Hinze. “This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors.”

Because of the questions raised by ACTA, EFF and Public Knowledge filed a request under the Freedom of Information Act (FOIA) in June for records on the treaty and the negotiations surrounding the deal. EFF and Public Knowledge later clarified the scope of their request in July in response to concerns raised by the USTR. But the USTR still failed to provide any relevant documents.

“The lack of transparency in this process is incredibly alarming,” said Public Knowledge Staff Attorney Sherwin Siy. “Whatever form ACTA eventually takes, we can be sure it will be used to justify further international agreements and laws. The agreement text needs to be made public to ensure that it doesn’t encroach upon the rights of users, consumers, and citizens to access knowledge, information, and content.”

A copy of the legal documents have also been posted (PDF) Here’s a few samples rrom the legal documents:

16. On June 23, 2008, after receiving no written acknowledgement of plaintiffs’ FOIA request, counsel for plaintiffs spoke by telephone with USTR employees David Apol and Elizabeth Glacer. Mr. Apol and Ms. Glacer asked plaintiffs’ counsel to consider the possibility of narrowing the scope of plaintiffs’ FOIA request.

On August 22, 2008, plaintiffs’ counsel attempted to reach USTR’s employee, Mr. Apol, by telephone, but counsel’s call was directed to Mr. Apol’s voicemail system. Plaintiffs’ counsel left a voicemail message for Mr. Apol referencing plaintiffs’ FOIA request of June 11, 2008, and plaintiffs’ follow-up letter of July 24, 2008. Plaintiffs’ counsel requested information on the status of plaintiffs’ FOIA request.

22. To date, plaintiffs have received no communications from defendant USTR
concerning their FOIA request and request for expedited processing.

Defendant USTR’s failure to grant plaintiffs’ request for expedited processing violates the FOIA, 5 U.S.C. § 552(a)(6)(E).

In short, there was a FOIA request back in June, but nothing really materialized other than a request to narrow the scope of what was being asked.

While it is taking this long to produce much sought after content related to ACTA, it’s not exactly stopping the negotiations that have been ongoing and rumored to have been pushed through at a rapid pace.

It was only a few days ago that over 100 public interest organizations called for ACTA to be made public.

Officially, it’s not known what is being negotiated for ACTA, but with an ever present interest to find out what is really on it, so to is the pressure to make ACTA public. All this leads one to wonder, if ACTA isn’t all that bad, why has there been such an effort to keep the negotiations so quiet in the first place? The leaks certainly say how it would criminalize file-sharing among other things.

Further reading:

EFF – New US Copyright Enforcement Proposal and ACTA Could be a Catastrophe

Another Critical ACTA Leak Surfaces

US Proposes ‘Pirate Bay Killer’ Trade Agreement