The entertainment industry wants to retreat to the comfort of 1996. It was a good year for them. CDs were selling briskly, but no one had figured out how to rip them and turn them into MP3s yet. Music fans were still spending money to buy CD versions of music they owned on LP. DVDs had just been released, and movie fans were spending money to buy DVDs for movies they already owned on VHS.
And most importantly, the laws regulating copyright and technology were almost entirely designed by the entertainment industry. They could write anydamnfoolthing and get it passed in Congress, by the UN, in the EU.
Private agreements with electronics companies guaranteed that all new devices were crippled: Remember the Sony Minidisc players that could record sound digitally, but could only output it on the headphone jack, meaning that you couldn't just record your kid's first words and digitally transfer them to your computer for safe keeping?
1996 is gone, and good riddance.
In 2009, the world is populated by people who no longer believe that "Thou shalt sell media on plastic discs forever" came down off the mountain on two stone tablets. It's populated by people who find the spectacle of companies suing their own customers by the thousands indefensible. It's populated by activists who've figured out that the Internet is worth saving and that the entertainment industry is prepared to destroy it.
And the entertainment industry hasn't figured that out, and that's why they're doomed.
Contents:
— Cory Doctorow, Internet activist, blogger, co-editor of Boing Boing
Next Page: The Background
I recently found myself debating the head of the British Phonographic Institute, our local equivalent of the Recording Industry Association of America (RIAA). He's Britain's top lobbyist for the collapsing record industry, and he said a remarkable thing.
An audience member had just stood up and asked one of those rambling non-questions that are really just polemics, words to the effect of, "You people are so evil -- just look at the Anti-Counterfeiting Trade Agreement, it's full of bad things and it's all being negotiated in secret, away from public input. It's more corporate influence on government!"
And then Britain's top record industry lobbyist said the remarkable thing: "It's perfectly normal for this kind of treaty to be negotiated in private. There's nothing sinister going on at all." That's when I realized that the all-powerful entertainment lobby has developed advanced lobbyist's senility. Lost its tactical marbles. Lost its spine.
And I had to suppress a grin.
Here's some background for you: The Anti-Counterfeiting Trade Agreement (ACTA) is a draft treaty among a bunch of rich countries that is supposed to combat "increase in global trade of counterfeit goods and pirated copyright protected works." It's a private, multilateral negotiation that's taking place without the benefit of the United Nations' World Intellectual Property Organization (WIPO), the UN agency where copyright treaties are normally negotiated.
WIPO is open to all the world's nations and to lots of non-governmental agencies (activists and corporate lobbyists alike), and it publishes public minutes.
ACTA is taking place in the proverbial smoke-filled room, and its provisions are nominally secret.
Still, though ACTA is nominally private -- the actual treaty language has been classified by the Obama White House as secret due to "national security" (!) -- we actually know rather a lot about its provisions.
Partly, that's because trade agreements like this are visible to "cleared advisors" -- members of the U.S. Trade Representative's advisory boards -- a list of hundreds of people, including many corporate lobbyists. For example:
That's right -- it's not just Time Warner Inc. (NYSE: TWX), the RIAA, and the Motion Picture Association who are in on this deal. It's also beer execs, execs from sinking banks and car-companies, fertilizer salesmen, and the people who make aluminum siding. They all get a seat at the table and get to know what's being said out of the public's earshot.
Well, once you tell hundreds of executives from random industry associations and corporations a secret, it's not going to remain secret for very long.
Indeed, a year and a half after the ACTA process began, a memo detailing the substantive terms of the deal leaked onto Wikileaks. (But even before then, we knew an awful lot about what was probably going on there, through all kinds of off-the-record back-channels.)
And as of this month, we know a little more -- Obama's United States Trade Representative (USTR) and the other negotiators were arm-twisted into releasing a "Summary of Key Elements Under Discussion" a condescendingly general and fuzzy document reiterating much of what was in the Wikileaks document that's been online for more than a year now.
The USTR document repeats the remarkable thing that the record industry lobbyist said: "It is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."
What's in the treaty? Oh, lots of nasty stuff. But I'll get to that in a minute. What I want to talk about first is why it is so remarkable for the U.S. government and the British recording lobby's top guy to assert that this is all just business as usual.
Next Page: A Glorious Memory
Back in 2003, I flew to Geneva for the first time, to attend the WIPO Standing Committee on Copyright and Related Rights (SCCR) negotiation on a proposal called "The Broadcast Treaty." The treaty was complex and difficult to summarize, but in a nutshell, it looked to solve the mess that is copyright and the Internet by creating even-more-complex rules about copyright and the Internet, with lots of exotic provisions for making it harder to launch an Internet company or free software project that would disrupt existing entertainment businesses.
As I mentioned, UN negotiations like this one were nominally "public." I was able to attend as a representative of the Electronic Frontier Foundation , a non-profit activist group in San Francisco by which I was employed at the time. This was new ground for EFF -- we'd never gone to the UN before, and we weren't sure what, if anything, we could do about this stuff.
What's more, the negotiations were just brutal. UN diplomats talked in a long-winded, opaque style that wasn't helped by the simultaneous translation lag in our earpieces. The treaty had been under discussion for years at this point, and had developed its own dense, technical idiom that was half diplomatese, half copyright wonkery, and entirely impenetrable.
So EFF -- and our colleagues from the other public interest groups there and those who showed up over the coming months -- began to do what we'd always done when we found ourselves faced with something scary but hard to understand: We wrote about it.
We wrote down what everyone said. We wrote down what we thought it meant. We used software like SubEthaEdit, which lets lots of people work on the same document over a network, so that one person could transcribe, another could fix typos, and the third could add commentary and analysis. And we published these editorialized transcripts twice a day, at the lunch and dinner breaks.
It's not that the SCCR negotiations had never been transcribed before, but all previous transcriptions had been in that same impenetrable bureaucratese, published only on the UN's Website. If that wasn't bad enough, the Secretariat always gave everyone who was quoted in the transcript the chance to edit out anything they wished they hadn't said, sucking what little life was to be had out of the documents. They were dry as mummy-dust and got so little public attention, they might as well have been classified.
The act of publishing unofficial SCCR minutes proved to be profoundly transformative to the Broadcast Treaty process. It made it go crazy.
The rightsholder groups and the national delegates they'd strong-armed into playing ball with them found themselves having to answer for their actions, something that had never happened before. Powerful geeks all over the world saw the Slashdotted stories and called politicians, who called their negotiators in Geneva. Things started to get slippery.
And the negotiators went nuts.
They tried to move the discussion about the public interest to a separate discussion group, and then fiddled the rules so that none of the public interest groups would be eligible to attend.
Someone started to steal our multilingual handouts (translated overnight by volunteers from Indymedia), hiding them in the toilets and potted plants.
The Secretariat shouted at one of the public interest reps and threatened to throw her out for "making trouble" (complaining about having our papers stolen).
It was glorious.
It was such a gift. Before all the shenanigans started, I had to tell this incredibly complicated story: "Here's this UN body you've never heard of. Here's this subcommittee of that body. Here's this insanely complicated copyright treaty they're working on, and here's this really difficult-to-grasp but vitally important thing it's going to do to the Internet."
After the shenanigans, the story got much simpler: "We went to Geneva to take part in this Internet treaty negotiation and they threw out our handouts, gamed the system to keep us out of the room, and shouted at us for writing down what they said."
The press -- which had been lacklustre on the subject of the Broadcast Treaty -- became very interested in the craziness.
And so did our fellow-traveler organizations. Greeted by the news that all the public-interest non-governmental organizations were to be excluded from the special "what do we do about the public interest" meetings, over 700 NGOs (non-governmental organizations) from around the world signed a disgusted petition and contacted their local governments to complain.
The national delegates, already suspicious about this copyright treaty, began to ask difficult questions, and fragile alliances crumbled. When the dust settled, the treaty was dead, and the entertainment giants who'd spent years and millions trying to get this bit of favorable international law passed were defeated by the proverbial band of plucky underdogs using the power of the Internet to subject them to withering scorn and ridicule.
Next Page: Who's Responsible
It wasn't always that way at WIPO, which is the birthplace of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), collectively called the "Internet Treaties."
Dating from 1996, these treaties are responsible for pretty much every stupid Internet copyright law in the world.
The Digital Millennium Copyright Act (DMCA)? Yup. The European Union Copyright Directive (EUCD)? That too.
WIPO used to be the kind of place where corporate entertainment giants could go to get their farcical wishlists for Internet regulations rubber-stamped with a minimum of fuss. Once WIPO green-lit the rule, it spread like a virus to all the countries that could be arm-twisted into signing the treaty.
But delivering expensive, corrosive privileges to entertainment companies is bad politics if you plan on getting re-elected. It only works well if all the negotiations take place in secret and no one gets to see the ugly, greedy horse-trading that happens behind the scenes.
Next Page: Rebellion
Here's why it's remarkable for the USTR and the BPI to say that copyright, patent, and trademark treaties are usually negotiated in secret: It's a bald-faced lie.
Copyright treaties -- the WCT, the WPPT, the Berne Convention, the Film Register Treaty, the Patent Law Treaty, the Phonograms Convention, the Trademark Law Treaty, the Singapore Treaty on the Law of Trademarks, and a bunch of other treaties you've never heard of -- are all administered at WIPO. They are part of the system of international law that's based on UN principles of access by NGOs, public discussion, and debate.
It's practically unheard of for big, multilateral copyright agreements to come into existence without a trip through the UN and the acid-treatment from groups like the Electronic Frontier Foundation, Public Knowledge , Knowledge Ecology International, and other groups that owe their financial and moral support in large part to public outrage at the complete clusterpoop that is modern copyright and the Internet.
These groups kick ass. (I'm allowed to say that because I'm no longer employed by EFF, so I'm not bragging, I'm admiring.) They can take the tiniest amount of funding and warm bodies, leverage them with the Internet's help, and beat the hell out of huge, powerful entertainment companies.
It's not that these companies can't get their laws on the agenda, and not that they can't cook the process to make it run favorably for themselves. For example, when Canada was considering its own version of the WCT, the entertainment giants saw to it that the parliamentarians in charge of the process only talked to multinational entertainment giants, without conducting any kind of embarrassing public consultation. They wouldn't even talk to the Canadian record companies -- just the multinationals.
The proposed laws -- Bill C60 and Bill C61 -- were complicated and took a lot of explaining. But here's what didn't take any explaining at all: "Your government is about to introduce sweeping, controversial regulations to the Internet, and they won't talk with anyone except the jerks who are suing all those music downloaders in the States about it -- they won't even talk to Canadian record companies!"
This made the Canadian lawmakers who backed the proposal look like sellouts (which they were); made the laws look like conspiracies (which they were); and made the geeks who cared about this stuff look like heroes (which they were). The complicated story about the law became a simple story about the process.
Likewise in New Zealand, where a new copyright provision called "Section 92A" made every geek in the country freak out in unison. 92A allows a rightsholder to have your Internet connection terminated by filing three unsubstantiated accusations of copyright infringement against you. No judge and no jury: just a rightsholder standing over you, able to administer the death penalty to your participation in electronic life without showing a shred of evidence.
Now, this is a little easier to explain to the general public -- the entertainment lobby isn't just stupid about process, they're also greedy in what they ask for -- but 92A was rammed through Parliament in a dodgy process that got those people who weren't interested in copyright or the Internet outraged anyway.
New Zealand's brilliant, tireless geeks organized around the clock, mounted a huge, high-profile global campaign through Twitter and blogs (they probably tripled the amount of international coverage New Zealand received), and forced the government to back down on its plans, sending the entertainment industry packing.
In France, the "colorful" Nicolas Sarkozy faced a revolt after trying to pass the New Zealand law there -- where it was called HADOPI -- and having it rejected by his own government.
There are plenty of other examples I could cite -- the U.S. "Broadcast Flag" plan was staunchly not newsworthy until the entertainment companies kicked the journalists out of their conference calls. There was a European version whose provisions were very similar to the Broadcast Flag -- I was allowed to attend these, but only by promising nondisclosure. No problem: I stumped up and down Europe, saying, "There's a crazy, evil DRM thing coming that's really bad and it's so bad they won't even let me tell you about it!" That was a lot simpler than explaining what was wrong with it.
Next Page: Enter ACTA
And now we have ACTA. The entertainment industry has gone forum shopping again -- for a nice, private cave to skulk in while they spin their fantasies about a future in which the Internet is regulated to their sole and extraordinary advantage, where the magnificent tool that gives us freedom of speech, freedom of assembly, and freedom of the press in one wire is crippled and locked down in the service of preventing unauthorized copying.
No amount of law will do this, of course; just ask the undergrads I taught at the University of Southern California in 2007, who held "hard drive parties" where they'd gather with guitars and laptops and beer, synchronizing their gigantic movie and music collections while they sang songs of their own. The 32-Gbyte memory card in my pocket camera will hold tens of thousands of songs and can move them from A to B a lot faster than a network can.
What's in ACTA? Well, it kind of doesn't matter. If it were good stuff, they'd be negotiating it in public where we could all see it. They've decided to declare this copyright treaty is a "trade agreement" and move the discussion to a private forum where only entertainment giants, car executives, aluminum siding salesmen, and governments get to know what's going on.
Next Page: Heinous Highlights
Seriously, though: What's in ACTA? Here are some highlights:
Does this mean that your iPod will be inspected at the border? Maybe. Your laptop? More likely. There's a "de minimus" exemption under discussion that will give countries the option of asking their customs searchers to pass over the "small stuff" -- but it's controversial. And how "small" is an iPod? What if it's carrying the leaked print of a yet-to-be-released movie? Give it a year or two and your music player will have the capacity to store every song ever recorded -- what's "de minimus" in that world?
Next Page: Bring It On
The global furor over ACTA shows that every time the entertainment industry screws up the process so that only it gets a seat at the table, it emboldens our side. It sends supporters our way. It makes explaining the substantive points simpler -- "See, this is just like that stupid law everyone in New Zealand was protesting!" -- and it makes the entertainment industry look stupider.
You know what would probably get something done? If the record industry proposed a law through the front door, with public hearings, to find an equitable, simple way to get paid for the use of its material online. A blanket license, say, that users or ISPs could opt into in exchange for access to all the music that's already online, wherever and however they can find it.
Sure, some of the hardcore copyfighters would hate it -- it'd feel too much like a "music tax" for their taste, and they won't rest until the music companies have been killed in vengeance for all the bad stuff they've done since 1996 -- but it'd make the entertainment giants seem reasonable, and it would make anyone who disagreed with them seem unreasonable. They'd have the easy sell: "We want to stop suing your kids, but these crazy infohippies won't let us!"
But they won't be doing that any time soon. In early April, Howard Berman, the powerful Hollywood Congressman, held a town hall meeting on copyright to which he invited a bunch of entertainment industry goons -- and not one advocate for a more moderate copyright stance. Whatever comes out of that meeting, we'll always be able to drum up public opposition to it by making fun of the cowardly way it was convened.
So bring ACTA on, bring on copyright term extension in Europe, bring on the next version of Canada's DMCA, bring on more ridiculous proposals from secret negotiations. The more they act like mustache-twirling villains, the easier it'll be to bring them down.
— Cory Doctorow, Internet activist, blogger, co-editor of Boing Boing
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