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Copyright overreach goes on world tour

By Rob Pegoraro
Sunday, November 15, 2009

Some of the better ideas in the computing industry never make it into stores, and not because of expensive hardware, complex code or inadequate bandwidth. You can blame laws that keep otherwise desirable products off of the market.

Want a program to copy a DVD to your iPod? You can't pick one up in a shop, thanks to the 1998 vintage Digital Millennium Copyright Act. The DMCA bans that software, along with other tools that might help you use movie downloads, e-books and other "protected" files in ways not specifically allowed by their vendors.

We may be watching a sequel to the DMCA story today. An international copyright agreement, negotiated under unusual secrecy, could impose a further round of restrictions on our use of digital technology.

This Anti-Counterfeiting Trade Agreement, or ACTA, represents an attempt by the United States and other countries to set common rules for violations of intellectual-property laws. The United States hopes to use ACTA to export its laws, but in the process it might have to import others.

It's difficult to talk about ACTA without using words such as "may," "could" and "might" because of how little has been disclosed about it. The nations involved -- including Japan, South Korea, Canada and the members of the European Union -- have agreed to post little beyond topics that the agreement should address.

The Bush and Obama administrations have cited national security concerns to justify withholding further information. They have revealed ACTA texts only to selected individuals (few representing consumer interests) who sign non-disclosure agreements.

Congress, meanwhile, has no say, as ACTA is being written as an "executive agreement," not a treaty that would require Senate ratification.

Much information about ACTA has come from leaked documents posted to such sites as http://wikileaks.org; other details have been pried out through Freedom of Information Act requests by such groups as the Electronic Frontier Foundation and Knowledge Ecology International.

You can weave these scraps into a frightening future in which a site like YouTube couldn't stay in business and allegations of file sharing could lead your Internet provider to kick you offline.

The reality of ACTA doesn't seem that bad: Many of the provisions attacked by critics are part of U.S. law and such bilateral free-trade deals as the pending agreement between the United States and South Korea. But it's bad enough.

ACTA's first problem lies in the idea of making the DMCA a world standard. Globalizing that law's ban on circumventing digital locks would do no favors for people elsewhere. But it would also cement the DMCA's status at home, making it harder to fix its user-hostile provisions.

More important, the ACTA talks would be a rare negotiation if they resulted in one state giving up nothing in return for every other state accepting its ideas.

A U.S. trade official who spoke on the condition of anonymity emphasized that the government's proposals for ACTA color within the lines of existing U.S. laws. But trying to globalize them invites fine-print changes in emphasis or detail that could lead to changes in their enforcement here.

Consider the notion of "graduated response," the idea that Internet providers should discipline or disconnect users who keep sharing movies or music. The DMCA allows for that, but ACTA could increase incentives for Internet providers to act as copyright cops. We can't know for sure without seeing ACTA's text.

Free-trade agreements and ACTA's agenda include stopping counterfeit copyrighted works at borders. The trade official said the United State wants to exempt travelers from mandatory searches of iPods or laptops -- let's set aside the risk of overreach by law enforcement at airports -- but we won't know how much privacy to expect without seeing ACTA's text.

And free-trade deals and ACTA call for more rigorous mandatory penalties, including jail time. But it's tough to gauge how inflexible those punishments might be without seeing ACTA's text.

The U.S. trade official, when asked how ACTA's secrecy squared with President Obama's pledges of open government, said the administration is working to open the process further.

But more official blog posts and news releases won't suffice. An agreement this sweeping won't get far without public debate. Just ask one of the biggest advocates of stronger copyright laws, the Motion Picture Association of America. In a statement sent by its press office, chief policy officer Greg Frazier wrote that "clearly anything other than making the text public will not satisfy the ACTA naysayers," adding that "we will encourage the U.S. government" to do so.

The fair way to craft a deal like this in the daylight. When the United Nations' World Intellectual Property Organization proposes to write new treaties, it does so in public, publishing drafts and allowing outside parties to report on the progress of talks.

If ACTA's ground rules don't allow that, it's time to scrap this project -- before we inflict a 1.1 version of the DMCA on ourselves and the world.

Living with technology, or trying to? Read more at http://voices.washingtonpost.com/fasterforward.

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