Free Markets, Free People

Say “No” To Secret Treaties – Especially This One (update)

Corey Doctorow at Boing Boing has gotten a leaked copy of what is characterized as a “secret treaty” – secret because of so-called “national security” implications (secrecy, as we were told during the last election, is the first refuge of tyrants). In fact, it is a copyright treaty alleged to be a part of the Anti-Counterfitting Trade Agreement. Doctorow distills the treaty’s salient points as he understands them:

* That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.

* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel.

* That the whole world must adopt US-style “notice-and-takedown” rules that require ISPs to remove any material that is accused — again, without evidence or trial — of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

* Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM).

I’m assuming “DRM” stands for Digital Rights Management.

Read each of those points carefully. If accurate these measures would effectively shut down much of the internet and certainly, at a minimum, change the way political blogs function. And there is no question, given the onus being put on ISPs by this treaty to police copyright infringement, that they would err on the side of caution.

This is being negotiated right now in Seoul, Korea by the administration (and, as this Canadian blogger points out, these provisions are being pushed by the US) which so derisively trashed the “Patriot Act” during the presidential campaign. As Doctorow points out, it’s draconian provisions leave ISPs with little choice but to take down anything about which there is even a hint of doubt.  “Chilling effect” doesn’t even begin to describe the effect of such a treaty on free speech.

As for the transparency promised by this administration, this, among a mountain of things since it has taken office, apparently doesn’t fit that category.  Being negotiated away in secret is  your ability to access the internet and speak out if there’s even a hint (proof is not necessary) that copyrighted material is included in your piece.

Sound reasonable?  Or are you still a bit of a traditionalist and want to see legal due process and the presumption of innocence remain as the first line defense of your rights? If you enjoy the ‘net as it stands now, you need to speak out against this obvious attempt to control speech.  Treaties, even secret ones, still have to be ratified by the Senate.  The way to stop this one is to make it not so secret and demand that the Senate vote it down.

UPDATE: Reason’s Jesse Walker:

As the Anti-Counterfeiting Trade Agreement enters its sixth round of secret negotiations, rumors are emerging about the provisions under discussion. The Electronic Frontier Foundation has posted the reports it has heard here; if the leaks are true, the treaty will be filled with measures that, in EFF’s words, “have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet.”

See Michael’s discussion about “corporatism”.  It’s like slipping an amendment to build a museum to Ted Kennedy into a defense appropriations bill – hide the desired but unpopular special interest legislation in a more popular and necessary bill.



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12 Responses to Say “No” To Secret Treaties – Especially This One (update)

  • So no Obama plans to take on the internet? I don’t think he knows what he is dealing with here. This will not be pretty.

  • What are the constitutional ramifications of this?  If the treaty passes, are its terms subject to judicial review?

    Obviously, this is a good way to get around the Constitution for a president and Congress inclined to do so.

    • The answer to your question is easy, but unfortunate. There are no grounds for our judicial system to review it, let alone nullify it. That’s why the ultimate power to nullify rests with the people themselves.

      “This Constitution, and the laws of the United States which shall be made in pursuance thereof; <b>and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby</b>, anything in the Constitution or laws of any State to the contrary notwithstanding. “

  • if this is true this will be the final nail in Obama, and the dems, coffin, because about the only guys out side of the unions who are still loyal are the nut roots.  They will be apoplectic about this.

  • As I recall, “Secret Treaties” was a damn good Blue Oyster Cult album. 

    okay, all those other secret treaties, I’ll say no to them. 

  • I wouldn’t trust Cory Doctorow to tell me the time of day accurately, let alone analyze policy. (He is, shall we say, somewhat excitable. And not exactly the clearest thinker in terms of policy… or anything else.)
    People attempting to pin this on Obama should note that ACTA’s first discussions date to 2007, and no matter what, it can’t be made into a binding treaty here in Americaland without being publicly available and approved by Congress. That dog won’t hunt – I doubt the President’s put more than an hour’s thought into ACTA since he was elected. Even though “the administration” is negotiating it, I bet that’s people at State who have been negotiating on it since it started.
    My experience with the accuracy of “leaked documents” for things like this has not been positive, and let’s not conflate what <I>other parties to the drafting</i> want with a sinister plot by the President.
    I’m no fan of his, but I see no reason to see that any of the contents of ACTA are his fault – even if we take the “leaked version” as accurate… assuming it ever makes it to a vote and matters.

  • Watch out Bruce, they’ll tear up your libertarian card if you keep going on about copyright holders not having a right to vigorously defend their property.

    • I made it clear what I thought was kosher in that vigorous defense – and government fiat through a treaty isn’t it. Same old Retief – reading comprehension is not a strength.

      • Do you really have a scheme for enforcing copyright that doesn’t include government fiat?
        Don’t get me wrong Bruce, I’m not at all pleased with the idea of making the ISPs responsible for copyright enforcement either.  But that’s because I recognize that copyright is nothing but government fiat and that we are not well served by how far copyright holders have pushed (with the DMCA) and are trying to push us in “protecting their property”.  I’m glad to see you’re an ally in that. Even if it isn’t very coherent libertarian philosophy.

  • This is to kill the new media and restore the old media.   Period.