ACTA and the Overblown Threat of Piracy

No Associated Press content was harmed in the writing of this post

The Anti-Counterfeiting Trade Agreement (ACTA) has been largely negotiated behind closed doors, and only recently was an official draft made public. The Obama administration even declared an early draft classified in refusing to comply with a Freedom of Information Act request. (Negotiating in secret seems to be an emerging theme.) It eventually made its way to Wikileaks despite this reluctance, but in general the American government has led the way in keeping a lid on it as much as possible. We therefore have no way of knowing what the next developments will be, nor when they will occur.

There is a lot to look at in the draft, but the linchpin may be the legal status of Internet service providers (ISPs). Up to now ISPs have been protected by what in the US is called a safe harbor provision. Basically, ISPs are regarded as providing dumb pipes that their customers can use to transmit whatever they want. This makes sense on the face of it; an ISP is no more responsible for an illegal activity by its users than a phone company is when crimes are plotted (or committed) using their services. Take away safe harbor and the Internet as we know it will disappear, replaced by something vastly smaller, slower, fragmented and closed.

The alternative to safe harbor is what David Kravets called "the holy grail of Internet-IP [Intellectual Property] enforcement, staunchly backed by the Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA]," so-called "three strikes" laws. Under these provisions a rights holder makes an infringement complaint to an ISP, and that counts as a "strike" against the user. After three such complaints the user would be kicked off the ISP – and the Internet.

In her analysis of the draft Gwen Hinze of the Electronic Frontier Foundation wrote it would "facilitat[e] an ISP practice of Internet user disconnection on the basis of copyright holder allegations of copyright infringement." Allegations, not proof. The legal system is entirely circumvented here. No judicial review of the allegations, no proof needs to be offered, nothing. The complaint gets made, it counts as a strike. If a paranoid and trigger happy company that prefers to shoot first and ask questions later lodges an abundance of specious complaints based on sketchy, absent or incorrect data, too bad.

Moreover, if infringing activity happens over a shared network address like a wireless router, if someone in the next apartment piggybacks onto your wi-fi connection and uses it for piracy, you are on the hook. If your stupid kid shares music on a file sharing or social network without your knowledge, you are out of luck. This all assumes legitimate violations, too. Since an allegation is all that is needed, imagine the havoc a disgruntled ex-spouse could wreak.

Keep in mind the MPAA and RIAA have already established themselves as completely malevolent actors in this area. Witness the surreal legal odyssey of Jammie Thomas, fined $1.92 million ($80,000 each for the sharing of 24 songs!) by a jury in the first major decision of an Internet IP case brought by the RIAA. The judge has since reduced the amount, but the case has been dragging on for years now.

Or consider how an industry-funded report screamed that there was "$53 billion lost to software piracy in 2008 alone, and claim[ed] that the costs of IP infringement may reach $1 trillion in the next several years." The only reputable study on it says such estimates are wildly inflated (via). Then there is the claim that infringement dwarfs bank robbery (via). They even floated the idea (I swear to God this is true and I urge you to click on the link if you don’t believe me) of having the Department of Homeland Security deployed to movie theaters to make sure no one tries to record the latest blockbuster (via).

The punchline in all of this is, it’s bad for business. For the past few years I have been a music scavenger, putting lots and lots of MP3 sites in my RSS feed and downloading the tracks they post. It is a great way to hear new artists, but it exists in a legal gray area. But because of them I have bought new CDs by Citay, Von Lmo and White Hinterland so far this year, and on June 8th I’ll buy the new one from Grace Potter. Prior to this I had not bought an album in years. There is a business model in there, where you give people free access to tons of stuff and they end up happily parting with more of their hard earned money. Instead of trying to refine that alchemy, ACTA proponents would rather blow up the lab.

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