Senator Ron Wyden's Favorite Techdirt Posts Of The Week
from the didn't-have-to-filibuster-this-week,-so... dept
When Mike asked if I’d be willing to write this week’s “Favorite Techdirt Posts of the Week,” I’m fairly
certain he thought I’d say no. He noted how busy I must be — which is true — but in a display of his
trademark humility, he said he could think of a number of reasons that a U.S. Senator might not want to
be associated with a site called “Techdirt.” I can’t think of anything further from the truth.
While I know I’m supposed to write about my favorite Techdirt posts from this week (I’ll get to that in
a moment), after the events of last week, it is impossible for me not to acknowledge the tremendous
work that Mike Masnick and the folks at Techdirt have done over the last year and a half.
As loyal readers know, Techdirt was sounding alarm bells about PIPA, SOPA and even their predecessor
bill, COICA, long before they became household words. Techdirt’s regular and thoughtful posts throughout
the PIPA/SOPA debate kept attention on the problems with these bills, while providing relatable
explanations for even the most technical concerns.
In a debate that was won by people using the Internet to alert, inform and take action, Techdirt’s voice
was the loudest and most consistent.
Now to the favorite posts of the week…
One of the positive outcomes of defeating PIPA/SOPA has been a much wider public focus on the
problematic ACTA agreement. These concerns are nothing new to readers of Techdirt, which has literally
been raising alarms on this agreement for years.
As usual, Techdirt did an excellent job this week of recapping the history and main issues of the debate,
showing that the struggle for an open, global Internet doesn’t begin and end with the PIPA/SOPA
debate. The agenda by the legacy content industry is executed deeply and broadly across the
government, as demonstrated by ICE’s Operation in our Sites and the office of the U.S. Trade Representative’s (USTR) work on ACTA and TPP, as well as its
ventures into blacklisting.
Techdirt is doing important work to highlight the secretive process surrounding ACTA and the USTR which has
a policy of chasing and negotiating international agreements under the cloak of “it’s classified” (pdf). Getting information on USTR’s actions and agenda is never easy.
So, given that ACTA was largely conceived and written behind closed doors, groups like the MPAA and
RIAA were able to exercise a great deal of influence over the product. It wasn’t until the draft texts of
ACTA were leaked and then released, that we were able to influence
ACTA’s content. Mike did a good job of explaining how the leaks and resulting transparency were
essential to tempering the worst of ACTA:
It is worth noting that the final ACTA text was very much improved from what was leaked out
early on. In fact, it seems clear that, despite the attempts at secrecy, the fact that the document
kept leaking really did help pressure negotiators to temper some of the “worst of the worst” in
For example, ACTA initially tried to establish much stronger secondary liability for ISPs, including
effectively requiring a “graduated response” or “three strikes” plan for ISPs, that would require
them to kick people accused (not convicted) of infringement multiple times offline. One of the
key problems with ACTA has been how broadly worded it is and how open to interpretation it
is. For an agreement whose sole purpose is supposed to be to clarify processes, the fact that
it’s so wide open to interpretation (with some interpretations potentially causing significant
legal problems) seems like a big issue. For example, while the original draft never directly
required a three strikes program, it required some form of secondary liability measures,
and the only example of a program that would mitigate such liability was… a three strikes
program. To put it more simply, it basically said all signers need to do something to help out the
entertainment industry, and one example is a three strikes program. No other examples are
listed. Then they could pretend that it doesn’t mandate such a program, but leaves little choice
for signing countries other than to implement such a thing. However, thankfully, that provision
was struck out from the final copy.
The final text of ACTA was ultimately made public and USTR invited comments. (Although seeking
comments after the negotiations are through doesn’t really provide for public input, now does it?)
Setting aside whether ACTA is fully consistent with U.S. law, pursuant to our Constitution, ACTA does not and can not bind the U.S. unless the Senate ratifies it. But until the Obama Administration says that, our negotiating partners may believe
that ACTA provides them the right to challenge whether our laws are consistent with ACTA. That would
result in what we call an international, legal quagmire.
My only guess as to why the USTR won’t actually tell its negotiating partners that it is not legally binding
is that doing so may dissuade them from signing onto ACTA, which would be embarrassing.
So, what is ACTA at the end of the day? A political document that took enormous government resources
to negotiate. Which is ironic given that U.S. companies and citizens may be the only ones who won’t
have to live under ACTA’s rules. (I think we’d all prefer that the USTR invest its resources into other
efforts like combating the illegal subsidies that the Chinese government is using to monopolize the
world’s green tech industries…)
Mike’s Thursday post entitled “Public Interest Groups Speak Out About Next Week’s Secret Meeting
In Hollywood To Negotiate TPP (Think International SOPA)” gets at an issue that I find far more
troubling than ACTA: the Trans-Pacific Partnership (TPP). Like ACTA, these TPP negotiations are being held in
secret. Unlike ACTA, the terms of the TPP extend to just about every facet of our economy and society.
Now, when asked, the USTR will say that industry and public interest representatives are made privy
to the details of the negotiations and are asked for input; however these representatives are sworn to
keep what they know secret. How can an agreement claim to represent our broad economic, political,
and societal interests if it’s only being shaped by people handpicked by USTR?
As Techdirt has repeatedly warned, it will be important to keep a
close eye on the TPP negotiations and press the USTR to make public at least what it is seeking in terms
of Intellectual Property protection online:
And, if you thought that ACTA was negotiated in secret, you haven’t seen anything. Rather than
learn their lesson from the excessive and damaging secrecy around ACTA, it appears that the
USTR has decided that the lesson to learn is “we can be as secret as we want… and we still win.”
Of course, this seriously underestimates the mood of the public towards backroom deals on IP
laws that will benefit a few large industries at the expense of the public (in a big, big way).
To show just how ridiculous this is, it has been leaked out that next week there will be a
negotiation over TPP. Unlike ACTA, where at least the negotiators would admit where and when
negotiations were happening (though, not always with much time for others to get there in
time), the TPP negotiations are kept entirely in the dark from the public. However, it has leaked
out that the next negotiation is happening from January 31st through February 4th… in West
Hollywood (where else?).
The question we should be asking is: why keep the U.S. position secret, when the proposals USTR puts
forward at the World Trade Organization aren’t secret?
Among other interesting points, the study found that, “Across all three Scandinavian countries, …over
half the people who previously downloaded music illegally no longer do so after they have been given
access to a streaming service.” These posts underline the fact that embracing new distribution mediums is the way
for traditional content industries to overcome the disruptive effects of technological change.
A number of commenters point out the real problem the content industries face: identifying the value
they add to the creative process and finding ways to provide that value in the new mediums. If they can
do this successfully they can build a business for the future.
It’s been a pleasure to connect with Techdirt readers this week. Just as I appreciate Mike and Techdirt’s
involvement in the PIPA/SOPA debate over the last year, your active involvement sent Washington a
clear signal that the future of Internet policy can’t be decided without engaging the Internet. I hope you
will remain engaged in the policy process, as there are many important debates ahead where your voice
will be needed.