Last week, Komplicated's co-owner and editor-in-chief Hannibal Tabu had a spirited discussion on the popular web radio show Sunday Morning Live regarding intellectual property and the much-maligned pieces of legislation SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), which brought much of the web together in protest. Yay, online freedom reigns, right? WRONG!
ACTA (PDF) is a trade agreement (duh). This makes for two important details you need to understand. 1: ACTA doesn't have to go through the congressional process the way SOPA and PIPA did (in the U.S. at least, stay tuned for more on that), and 2: ACTA dictates international behavior, and could affect countries that didn't even sign it. …
ACTA has provisions that reference piracy outright, but a lot of the underlaying logic seems to stem from the idea that a pirated digital media is a counterfeit, not a copy of the genuine article like it actually is. It's very similar to the piracy-is-theft fallacy that's been around for years and just refuses to die. Basically ACTA is welding these two issues together because they both involve patents and intellectual property …
When it comes to the Internet provisions, ACTA has some strong similarities to SOPA and PIPA, mainly in that it takes due process out of the equation and sort of blackmails ISPs into doing the dirty censorship work by holding them legally accountable for what their users do and encourages them to use the censorship hammer liberally. The idea is that if you're on Time Warner, and you infringe, ACTA makes it so Time Warner will take some of the heat. This gives Time Warner a great incentive to censor your access to any temptations, or anything for that matter. How would they know what you're doing, you ask? ACTA gives them the power — or more accurately forces them — to monitor all your packets, all the time.
On the counterfeiting side, like the actual counterfeiting side, ACTA greatly reduces freedoms many poorer countries have to combat high prices of important patented goods. For example, under current international trade law, if there is an outbreak of a disease in a country and the only company that makes the cure has it patented and refuses to sell it at a reasonable cost, the country can break patent to produce a generic version of the patented cure in order to curb the outbreak. ACTA makes this much more difficult.
The reason Congress didn't have to get involved is that ACTA, as far as the United States is concerned, is an "executive agreement" as opposed to a "binding treaty." This means that the U.S. can technically ignore any part of ACTA it doesn't like, which means that it doesn't necessarily affect U.S. law, which means it doesn't have to pass through Congress. There are opponents to this line of thought, but ACTA already got signed, so they're coming from a retroactive angle, which is always tougher.
As a bonus, while ACTA may not explicitly — explicitly is an important word there — dictate changes, it's vague enough to do all sorts of bad stuff implicitly. On top of that, it effectively restricts Congress's ability to go back and change any copyright law that's already in effect. Say, by some miracle, Congress wanted to go back and defang DMCA. ACTA would prevent that. In short, ACTA doesn't necessarily mean that U.S. copyright law has to get worse, but it does mean that it won't get better, and plenty of people think that it's already broken.
ACTA is particularly dangerous because it is nebulous; just like how ill-defined terms like counterfeit and theft, and ill-perceived concepts like piracy-as-theft and potential-revenue-lost are warping copyright law into a monster. Also, the E.U. just had 22 of its member states sign ACTA and is treating ACTA as if it were a binding treaty — and by doing so, making it one, kind of, if you catch my drift. This creates a situation that is just begging to be as impenetrably confusing as it is dangerous.
In the immortal words of Sticky Fingaz, "bu-bu-bu-but wait, it gets worse!" Developed in secret, vague enough to allow widely varied interpretations that can affect real peoples' lives, and if you don't live in Europe, there's not much you can do about ACTA, which makes SOPA and PIPA look like they were penned by India.Arie, Denise Huxtable and a Care Bear, already signed and approved by Al Green-singing president Barack Obama. Well, except looking out for Rep. Lamar Smith's new "Protecting Children From Internet Pornographers Act of 2011," which has pieces of SOPA and PIPA sprinkled in and a name that's hard to vote against.