ACTA-ion and ReACTA-ion

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I've written here and elsewhere about the pernicious Anti-Counterfeiting Trade Agreement (ACTA), which is currently being negotiated behind closed doors. Basically, it is an attempt to bring in yet more punitive measures against alleged infringements of intellectual monopolies, with less judicial oversight and no pesky European privacy protection.

But the trouble with these kinds of crude instruments, cooked up in haste without much deep consideration of their knock-on effects, is that they can backfire.

Here, for example, is a letter to the US Trade Representative from a bunch of big names, including Amazon, eBay and Yahoo. They have noticed a few tiny probs with ACTA:

We appreciate your objective of protecting the intellectual property of American rightsholders from infringement overseas. However, in light of these European decisions, there is a very real possibility that an agreement that would require signatories to increase penalties for “counterfeiting” and “piracy” could be used to challenge American companies engaging in online practices that are entirely legal in the U.S., that bring enormous benefit to U.S. consumers, and that increase U.S. Exports.

Is this rich, or what? Here we have a trade agreement that is essentially trying to export the insanely aggressive US system for dealing with alleged infringements to the rest off the world, but when it works the other way – with European norms exported to the US – suddenly, that's a problem.

Note, too, the awful, awful idea of online practices that are legal in the US being illegal elsewhere – despite the fact that the US refuses to accept something that is illegal in the US – like online gambling – but perfectly legal elsewhere (hello, Antigua).

In fact, the letter is quite open about the one-way nature of the treaty:

ACTA should not contain provisions that encourage the creation of intellectual property rights, obligations or government-fostered “best practices” that could extend beyond or modify rights and obligations existing under U.S. law. The agreement also should explicitly exclude moral rights and patents.

Again, it seems that it's OK for the US to push for software patents around the world, for example, but not OK for the silly, silly Europeans to push for moral rights being recognised more widely.

But by far the choicest example of the letter's deep-dyed hypocrisy – do as we say, not as we do – is the following passage:

because ACTA risks having such an adverse impact on intermediaries operating in full compliance with U.S. law, the negotiating process should be as open and transparent as possible. We appreciate your office’s efforts to work with us. Going forward, we respectfully request the opportunity to review the text of draft proposals before USTR submits them as the position of the U.S. government, and that USTR provide to U.S. intermediaries the same information about its plans for the negotiations and potential texts that it may decide to provide to rights owner organizations that include significant numbers of non-U.S. companies. The exact wording of proposals could significantly affect the business interests of U.S. Companies.

Of course, this openness does not extend to ordinary citizens: it's an exclusive kind of openness that is only available for that special club who presumptively arrogate to themselves the right to craft trade treaties that suit them, and them only, without any thought of providing checks and balances, any kind of quid pro quo or even protection for poor mugs like you and me, who will be adversely affected if such ill-drafted agreements are put into force.

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