Letter from AmeriKat I: Secrecy, ACTA and Google

Yesterday the AmeriKat enjoyed a refreshing early Sunday morning breakfast at The Modern Pantry with a dear old friend. Having not seen him in over six years, the catch-up that ensued was a whirlwind of as many headlines from the past six years as was possible in a 90 minute slot. The big headline of the AmeriKat’s life was of course devoted to the pursuit of intellectual property law and practice, which was admittedly far less interesting than her friend’s headlines of adventuring in exotic locales of the world. However, despite the AmeriKat’s pretty linear career trajectory in comparison, the joy of working in IP meant that she was at least equipped with the ability to spin tails of how the latest technology and IP law has been changing and challenging creativity and human experience, not to mention providing a significant amount of intrigue…

Shhhhhhhh……it’s a secret!

An Act about which the AmeriKat has previously written (here and here), which could have a significant impact on IP and the internet, is the secret Anti Counterfeiting Trade Agreement (ACTA). The Agreement, which has been negotiated behind the closed doors of powerful stakeholders and at least 40 governments, will include expansive measures that tackle not only physical counterfeit goods but will include the involvement of ISPs to remove infringing material. The Seventh Round of the ACTA negotiations are either taking place now are soon to be held in Mexico (The AmeriKat asks, do any readers know?). The only official information about these negotiations has previously come by way of a leaked European Commission fact sheet entitled “Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement.” So far, no government has publicly disclosed any draft texts of the Agreement.

Given the cloud of secrecy behind this potentially powerful agreement, Google arranged a conference (click here to watch the must-see panel discussion) last week regarding the US government’s hush-hushed negotiations of the Agreement and the need for these negotiation’s transparency. Taking part on the panel was Steven Metalitz who represents client’s such as the Motion Picture Association of America (MPAA) and RIAA and who recently represented these groups’ opposition to the Obama Administration’s support of the WIPO Treaty for Sharing Accessible Formats of Copyright Works for Persons Who are Blind or Have other Reading Disabilities (see the AmeriKat’s article here). The MPAA and RIAA are touted to be some of the key beneficiaries of the proposed Agreement. Metalitz, unsurprisingly, argued extensively for ACTA and the apparent necessity for its secrecy. The AmeriKat remains unconvinced by his arguments.

Metalitz, however, did fairly argue that he is not the only representative doing the negotiating; the US Trade Representative (USTR) who manages ACTA on behalf of the US is responsible. Metalitz also stated that the MPAA has itself called for public transparency of ACTA in order to remove the so-called “distraction” that the secrecy has become to the provisions of the Agreement. The USTR previously indicated, however, that the ACTA negotiations would be hindered without the “frank exchange of views” which may run the risk of people “walking away from the table” in the event that these negotiations were not protected.

The Google discussion comes three days after the First Annual World’s Fair Use Day where Representative Mike Doyle (D-Pennsylvania) delivered a speech regarding ACTA, stating that despite his and the general public’s concern regarding the provisions:

“The USTR has communicated to me that ACTA won't cement current provisions in the Digital Millennium Copyright Act – provisions that I'd like to see changed, like the anti-circumvention provision. And they've said that ACTA won't require Internet Service Providers (ISPs) to become "copyright cops" above current law..."

The AmeriKat believes that, if this was really the case, there would be little need for the extent of secrecy surrounding such allegedly banal provisions. Unfortunately, Rep. Doyle could not tell the crowd “what’s in it because it's still in negotiations and I haven’t signed a non-disclosure agreement.” He did however, go on to say

“Well, that sounds nice, but there are still many respected scholars who believe that that will lead to a 3 strikes policy that would punish repeat infringers by cutting them off from the Internet. So let me be very clear. I will oppose any effort, by Congress or by trade agreement, to cut people off the Internet.”

The AmeriKat wonders how much longer the USTR and governments can maintain the level of secrecy of an agreement that could have such a profound effect on the public, given the increasing public and political lobbying for transparency.

For further information please see these articles in Ars Technica, Wired, and National Journal.