Ti Point Tork

Software Freedom Day Notes: ACTA

September 19, 2008 – 3:09 pm

Mark Harris lead this session.
Was at SSC, MORST, now Independent. When Wikileaks in May released ACTA doc, saw NZ mentioned, began digging.

ACTA is the Anti-Counterfeiting Trade Agreement. Proposed by Japan and USA, but not limited to them at all. About eight countries, mainly G8 and a few others like us and Morocco. Mainly about IP. Calling it “counterfeit” gets it under the radar.

Also very much about the Internet. While it did talk about physical products, morphed over last four years and now about more. Don’t really know what it is about: unnerving level of secrecy. Can’t find anything official about what it is, other than US trade representatives office official line “it’s about enforcement”, a universal framework of enforcement procedures around the world. All have signed non-disclosure agreements.

Silence leads to supposition. People are supposing the worst. Are they trying to pull our teeth by getting us to say how bad it is, then come back with “it’s not that bad” but still bad.

Started at a congress sponsored by Interpol, International Trademark Association, WTO, and others. GBLAAC mystery group. From record of the congress, had one each year for last four years, no longer mentions that group. GBLAAC speakers from Proctor and Gamble, Unilever, Philip Morris, Coca-Cola. Also sponsored by Baker-McKenzie (global law firm), and Rouse & Co. (specialists in patent and IP law). Not RIAA and MPAA, the usual media players involved in IP restrictions and copyright restrictions. These are serious players with long-term aims and much patience. If they’re in the game then it’s moved to a whole new level of worry.

Tried to get it through WIPO first, and got a big fail. Developing countries said, “we’ve got more important things to worry about”. WTO failed for same reasons. In Oct 2007, Bush’s trade rep decided to push it through USTR. Put out press release, and invited people to pre-negotiation meetings (Nov, Jan, and May this year). First actual negotiation meeting in June, before the deadline for submissions on what MED should talk about there.

At July 2008 meeting, they said expected negotiations to be completed by end of this year. Suspicion: they want to get it through while Bush is still President. Still must go through Congress. Don and Mark went to see Judith Tizard, the Minister (Assoc. Min of Commerce), but the Minister opened with “all this lunatic talk on the web”. MED doing driving says this isn’t about counterfeit, it’s about IP.

While talking to them, were addressing Mark’s submission. Also talking about whether concept was a good idea. American publishing industry built through piracy. Didn’t become full member of Berne Convention until 1989. Books published in UK said “not to be sold in US or Canada”. Until US worked out they were becoming an exporter of IP.

Tried to find what NZ’s position was, what they were negotiating about. Failed. They said, “all we’re doing is talking about enforcing existing law”. Obvious question: does that mean changes on Copyright Act that’s come through recently. They denied correlation, and said there was no need to change the Copyright Act. Nobody’s sure what law they’re talking about enforcing.

MED are policy people, not experts–know crap about copyright (lost all the people who did know about copyright). They are historically very inflexible.

Fear is that it will affect knowledge, books, music. Fear is that it will move enforcement from courts to the front-line officers. Certainly talking about enforcement at front line for DVDs, etc. “So Customs will be regulating online stuff as well?” “Oh no nono” but wouldn’t say who would. We suspect ISPs.

“It’s not practical to do that!” Yes, but governments haven’t been worried about what’s practical. Looks unenforcable but if someone decides they want to enforce it, they have carte-blanche to decide how to go about it.

A third party, like a corporate, can use customs officials as enforcers. “We want to know what’s on Don Christie’s laptop every time he goes through customs, whether his MP3s comply with TPM provisions, does he have rights to them”. Becomes something for a busy, technically ignorant customs official to begin evaluating. Imagine the damage someone could do trying.

Worried about chilling effects.

USTR published the submissions they got. The summaries were written by MED and may not reflect exactly what was in the submissions.

Asked officials, “what’s IP? Anti-counterfeiting for pharmaceuticals and consumer goods–all for it”. They talked about the copyright industry, patents, and trademarks. Four distinct areas of legislation. By conflating trademarks (in perpetuity while defended) with patents and copyrights (limited term rights with obligations to publish).

Don’t have to prove you’re an infringer before they can have your stuff taken away. Container of DVDs that might be Debian, could be claimed as “our IP” by SCO, and you’ll have to fight to get it back. If it hasn’t been destroyed–possibility that seizure can be accompanied by destruction.

Mark made a FOIA request the same day he heard about it. Supposed to get answer in 20 working days. On 4:45 on the 20th working day, got a note they’re extending two weeks. They extended his submission date one week. When it came, 91 documents were identified in their index, and they supplied 13. The rest were withheld for various reasons under the act, and the ones they did send were redacted. Though I did want to know who we had negotiating.

Q: Talk to Ombudsman? A: Haven’t gone there yet, but still in the quiver of arrows.

Documents say nothing. What was redacted: anything that referred to the NZ position. Their argument is that they entered the negotiations with an agreement to maintain confidentiality, particularly around other country’s positions. Don and Mark said: we don’t care about other positions, just ours. NZ is not a net exporter of IP.

Q: China putting ENZA labels on apples. A: That’s counterfeiting. If you buy an Apple iPhone, you want to know it’s real. If you buy food or a drug or even smoking Rothmans cigarettes, you’ll want to know you’re getting what you paid for. The whole presentation of this agreement is around counterfeiting, but we know it’s more than anti-counterfeiting because they talk about the copyright and patent industry.

Q: From MED’s point of view, our exports of physical primary goods is single biggest chunk of our export earnings. So that’s what they care about. It won’t occur about them to worry about IT sector. Even if it explodes, better IT than dairy. A: Don saw figures that ITC’s contribution to GDP is significant. There is concern about ICT-they know and have been pushing ICT as enabler of NZ and talk about “Knowledge Economy” etc.

For last 15 minutes, what should we do about it? First thing, make non-hysterical fact-based noise. Focus on what we know is wrong, secrecy. Contact your MP. If 30ppl put in an OIA to MED, they won’t be able to deny that there’s a lot of interest in this. Raise it with your MP and your party. Ask them “what is your position on this?”, with a link to MED’s stuff. Mark’s waiting to hear back from doing that. Writing letters on paper better than emailing, although they’re required to acknowledge and answer electronic comms same as paper.

Then get the public to understand. Educate not evangelize. Computerworld been good, and Glynn Moodie in the UK. Don’t shoot the messengers, MED and the officials, because they’re acting in good faith and probably think they’re doing the right thing.

Don: with the Copyright Act, we didn’t talk to writers, artists, musicians well about it. What three statements can we take to musicians about why this would be bad?

My take: NZ artists biggest problem is breaking into overseas markets, not piracy. You need as few obstacles as possible. If untrained border guards stop only .01%, it’ll be the small acts like Kiwis rather than big US acts that bear the brunt. Keep powers in the hands of the courts, don’t devolve them to decentralized rent-a-cops.