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ACTA And Others In War For Internet Freedom

ACTA And Others In War For Internet Freedom
2/15/2012 1:53 PM ET

A little over a month into 2012, the so-called "World Web War" has moved from fighting legislation in one country to combating a larger, global bid to bring the Internet under the yoke of stringent copyright law. With the U.S.'s Stop Online Piracy Act, or SOPA, and Protect IP Act, or PIPA, both now on the back burner, protest groups are now taking the fight to the Anti-Counterfeiting Trade Agreement, or ACTA.

Unlike SOPA/PIPA, whose legal remit was confined to the United States, ACTA, being principally a trade agreement, has worldwide consequences. Also, although negotiations on ACTA date back to 2006 and 2007, it was "non-transparent" until May 2008, when a draft was posted to the Internet by WikiLeaks. It was only in 2010 that an official version was made public, and a "final text," dated April 2011, features Japan as a "depositary" and signatories include Australia, Canada, and France, besides the United Kingdom and the United States. On January 26, 2012, the Ministry of Foreign Affairs of Japan reported a ceremony where the EU and 22 of its Member States signed the agreement.

Another area of divergence from SOPA/PIPA is ACTA's stated aim of countering counterfeiting of goods and medicines, besides Internet-related intellectual property rights. It is seen as creating a supranational body that seeks to work outside of established trade organizations such as the World Trade Organization. Members of the WTO have expressed concern about a possible conflict between ACTA and the currently existing Agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPs, which first brought intellectual property laws into the ambit of international trading. While ACTA and TRIPs both seek convergence on such issues as copyright and patent infringement, critics have argued that developed nations propagate, among other things, the threat of counterfeiting as a counter to the legal trade of generic drugs.

In the limelight, however, are intellectual property rights, especially those that relate to digital, Internet-based content. Among those who participated in discussions on ACTA were such U.S.-based organizations as the Business Software Alliance, the Motion Picture Association of America, or MPAA, and the Recording Industry Association of America, or RIAA, all of which are part of the International Intellectual Property Alliance, or IIPA. Both the MPAA and RIAA found themselves the focus of much opprobrium for their vociferous backing of SOPA and PIPA. One commentator called ACTA "an attempt to push the Digital Millennium Copyright Act onto the rest of the world," albeit without such safeguards as provided by domestic U.S. law.

Since the first "leak" of ACTA drafts, the signatories have been under pressure from a variety of civil liberties groups, with the effect that the final version seems to be "watered down". This version - the April 2011 text - is also seen to have "problems" such as "over-zealous statutory damage rules". Poland was the latest theater of protest following that country becoming a signatory on January 26. That same day, the European Union's investigator for ACTA, Kader Arif resigned from his position and issued a statement denouncing ACTA, claiming "no inclusion of civil society organizations, a lack of transparency from the start of the negotiations, and repeated postponing of the signature of the text without any explanation." The EU's parliament is expected to see a make or break vote on ACTA in the summer of 2012, and if the agreement is not ratified by the EU, it might suffer the same fate as SOPA and PIPA.

In a post-WikiLeaks age, the so-called "netizen" - the Internet-inhabiting human - is arguably more aware and attuned to the fragile dynamic that connects governments and corporations with the netizen. While dependent on the resources and services supplied mostly by multinational corporations, Internet users have unwittingly become engaged in a battle that seeks to define such legal terms as ownership and privacy in the digital context. WikiLeaks exposed government secrets in a manner unimaginable in any other age - anyone with a computer and an Internet connection could access the leaked cables, redacted or otherwise, on an open website. Subsequently, all legislation that has tried to impose any measure of control on the Internet was seen in a suspicious light, and while there were serious, legitimate protests, there were also some knee-jerk reactions.

Yet every bone of contention only seems to be part of a skeleton whose bulk is yet to come out of the closet. What SOPA, PIPA, and perhaps ACTA may fail to do, governments are suspected to trying to achieve through other means. The Electronic Frontier Foundation, which has long been a respected Internet watchdog, has already identified the Trans-Pacific Partnership Agreement, or TPP, as a possible means of imposing the "draconian" intellectual property legislation currently in place in the US. Adding fuel to fiery rumors is the decision by the countries involved - a list that currently includes the United States, New Zealand, Australia, Chile, Malaysia and Singapore and may soon involve Japan, Canada and Mexico - to keep secret all treaty documents, except the final text, for up to four years after either the formalization of an agreement or the collapse of negotiations.

Both ACTA and TPP have also come under fire from U.S. Congressmen in part due to fears that these treaties would be negotiated through a possibly unconstitutional "sole executive agreement". The U.S. came under the ACTA umbrella with U.S. Trade Representative Ron Kirk signing ACTA in October 2011, without any discussion in the Congress. Arguably, the impact of ACTA on U.S. legalese relating to Internet freedom has been "difficult to assess" due to a "lack of transparency". A similar scenario is envisioned with TPP, although some observers have said TPP offers a "testing ground" for "progressive" intellectual property rights. The root fear, in either case, may be traced to the lobbying effect of organizations such as the MPAA and the RIAA, and their perceived political clout, in bringing about a one-size-fits-all, stringent copyright law for the entire planet, without any room for local discussions.

Again, this purported power is, according to some views, countered by the corporations that dominate the Internet - Google, Amazon.com, and Yahoo! to name a few. The protests of January 18th demonstrated that the combination of "Anonymous" internet users, when combined with the voices of these corporations can cause legislators to backtrack on policy actions. Since these corporations have a global presence, they often find themselves enmeshed in politico-legal battles far from the United States. The earliest of these goes back to 2000, when France took Yahoo! to court for displaying materials with Nazi connotations on its Auctions webpages, in violation of French criminal law. Even before this case was resolved, Yahoo! had inked a pledge in order to do business with China, which forbade the company from displaying websites that had "harmful information" and were detrimental to maintaining a "healthy and civilized environment".

The idea of letting a government - or a special interest group - define what constitutes such an atmosphere on the Internet is, to say the least, anathema for most Internet users - even those who are not part of such collectives as Anonymous. Academics and social commentators have also railed against such "regulation," claiming that the Internet is a venue for a "free and fair" exchange of information. Ideology aside, the booming commercialization of the Internet has also resulted in a tussle for profits, and every attempt at legislation gets mired in coming to grips with the scale of this commercial enterprise. Freedom and fairness are abstract enough to stump even the most erudite of philosophers, but when finance is mixed in, you have a cocktail that has, perhaps, defined nearly every human struggle in history.

by RTT Staff Writer

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