ACTA represents an attempt by a few
businesses using outdated business methods to try to find a way
around Clayton Christensen's
The
Innovator's Dilemma. They are doing this by lobbying for
rules which will protect their existing business methods against
emerging businesses which might transform the economy and replace the
old ways of doing things. In their lobbying they are manipulating
language to suggest what they are asking for is very different than
what they are actually asking for, and they are trying to suggest
that activities are devastating and must be stopped if someone else
does something which the companies the lobbiests represent commonly
do themselves.
Lets start with language. The
term "piracy" initially referred to acts of robbery and/or
criminal violence at sea. Then it was manipulated to refer to mass
for-profit copyright infringement, and has recently been further
manipulated to reference any type of minor copyright infringement. This manipulation has rendered the term meaningless given with the
complexities of copyright that any literate person infringes
copyright in some minor way every day.
A simple dictionary
definition of counterfeiting would be "made in
imitation so as to be passed off fraudulently or deceptively as
genuine; not genuine; forged". This is an offense against the
person that the passing off is being done to, in other words the
audience (ie: customer) of the forgery. It is not an offense against
the origin of the forgery, and certainly not a copyright or patent
holder. There are links to traditional trademark law which was
created as a form of consumer protection (so that trademarks could be
used to indicate to consumers something about the provider of
products and services), but the concept of trademark law has been
warped to focus on the special interests of trademark holders over
consumers.
While the term "piracy"
was manipulated over tens of years, the manipulation of the word
"counterfeiting" is happening far more quickly. In March
of this year the Wikipedia definition was changed from "A
counterfeit is an imitation (ie, a fake) made usually with
the intent to deceptively represent its content or origins, thus
increasing sales appeal due to the reputation of the imitated
product" to "A
counterfeit product is an imitation which infringes upon a
production monopoly held by either a state or corporation". While this was a radical rewriting of the meaning of the term,
something that might normally become the subject of edit wars on
Wikipedia, this manipulated definition is still there today. This
suggests how successful the special interest groups have been so far
in completely rewriting the concept of counterfeiting in peoples
minds.
The term "counterfeiting"
is now being used to reference any type of minor infringement of the
temporary government monopolies granted to holders of patents,
copyrights, trademarks or any other related rights. Rather than
being seen as an offense against consumers, it has been transformed
into an offense allegedly committed by consumers.
ACTA
If you don't know what ACTA is
about, I recommend you read some of the articles attached to the tag
ACTA on Michael Geist's blog. The short-form is that the
treaty is primarily about copyright and the Internet (the manipulated
meaning of the word counterfeiting), and little if anything to do
with the traditional definition of counterfeiting.
ACTA and Canada
Reading the media attention
you would think that ACTA were like the 1996 WIPO treaties, something
being policy laundered by a few United States special interests and
their policy making allies.
There are Canadian proponents
of this type of policy and treaty, with the most visible being
Liberal MP Hon. Dan Mcteague (Pickering
- Scarborough East). He has been a proponent of having an
"IP and Anti-Counterfeiting Caucus" within parliament to
focus on these types of issues. This was a follow-up to his
participation on Industry Committee towards the tabling of an
embarrassingly titled report Counterfeiting
and Piracy are theft in June 2007. Many of the members
of that committee from 2007 are still in parliament (James
Rajotte was chair, Paule Brunelle and Dan McTeague were vice-chairs,
and other members were André Arthur, Maurizio Bevilacqua, Scott
Brison, Gerry Byrne, Colin Carrie, Brian Masse, Bev Shipley, Dave Van
Kesteren and Robert Vincent). While Brian Masse of the NDP has
spoken out against this policy direction, I have not seen indication
that there was any significant dissent from any of the other members
of that committee.
When discussing the issue
committee members have abused the traditional definition of
counterfeit, talking about how public safety is compromised by people
not being able to be certain of the origins and thus quality of what
we are consuming. Examples often given are pharmaceuticals, airplane
parts and children's toys.
If this were the type of
counterfeiting we were actually talking about, there would be no
opposition. In the case of Mr. Mcteague he has given speeches and
co-lobbying with the recording industry (among others), making it
obvious that he is not talking about the traditional definition of
counterfeiting but the one that includes any minor infringement of
copyright, patent and related rights.
ACTA and
hypocrisy
There are two leaked
provisions of ACTA that are often highlighted.
One is the extension of the
the anti-circumvention provisions that we saw with the policy
laundered via the USA's National Information Infrastructure
implementation bill, the 1996 WIPO treaties, and then the USA's
Digital Millennium Copyright Act (DMCA). ACTA will be a back-door to
imposing the most controversial aspect of this policy laundering on
any of the countries that move forward with it, such as Canada. It
will render moot the consultations that recently happened.
This should make you wonder
how the Conservative government has been directing our
"representatives" in the ACTA negotiations. While they
were claiming to Canadians that they want to be open and transparent,
and have wide public consultations, they might have been whispering
the opposite to their negotiators on this secretive treaty. Possibly
even worse, if the Conservative cabinet has not been fully briefed
and directing our "representatives", then who is actually
in charge of this critical economic policy in Canada?
The second provision discussed
is graduated response, also known as the "three strikes"
rule. This is where Internet providers will be forced to terminate
the connections of citizens accused three times (without requiring
proof) of infringement.
These provisions are
embarrassing to even talk about. With excessively high statutory
damages in Canada, the reality for most Canadian citizens is we
already have a "one proven strike" and you are out. Being
able to have an Internet connection will be the least of concerns for
people whose families would be bankrupted by either the out of court
settlement with the copyright holders or the court fees plus
statutory damages if they go to court to defend themselves.
This is a case where the
punishment is entirely backwards. We are talking about an excessive
punishment for the least harmful form of copyright infringement,
while not at all talking about comparable punishment for some of the
most harmful forms of commercial copyright infringement. To me when
a private citizen accidentally or deliberately infringes copyright in
a non-commercial and non-profit context, it is of minimal harm.
As I included in my
submission to the 2009 Copyright consultation, this minor
form of infringement is sometimes beneficial to the copyright holder. In 2007
Jeff Raikes, then President of the Microsoft Business
Division , said "If they're going to pirate somebody, we want it
to be us rather than somebody else". This is a recognition that
while being directly compensated for a use of a copyrighted work is
ideal, that infringement is better for the copyright holder than
people switching to alternatives.
A far more serious form of
copyright infringement is when a corporation, many that include staff
lawyers who should be expected to know better, infringe copyright and
commercially redistribute someone elses work without permission. As
one example, yesterday I read Microsoft
pulls Windows 7 download tool where Microsoft was yet again
accused of commercial copyright infringement.
We should simply refer to this
as "strike one", and be done with it.
While Microsoft is just one
company, they are easily accused of copyright infringement more than
3 times in any given month. If it were not for that fact that
nearly every so-called "3 strikes" law were bogus,
companies such as Microsoft would not be allowed to have an Internet
connection (No more Bing, no more Windows or Office update or even
development/testing of any of their Internet products, no more
Hotmail, etc).
It isn't as if Microsoft is
alone. Brad M. Kuhn, the tech director at the Software Freedom
Law Center, blogged
on Sunday that, "Since 21 August 2009, I've been
finding one new GPL violating company per day (on average) and I am
still on target to find one per day for 365 days straight."
The terms of the GPL are
clearly aimed at commercial companies, given the license already
grants everything a private citizen would ever want which is to
legally redistribute the unmodified software for free to anyone they
want, and for any recipient to use the software for free. This means
that all of these potential GPL violations are commercial violations
that are far more serious than anything a private citizen would do. This type of infringement is far less forgivable given companies
commercially redistributing copyrighted works should be expected to
hire lawyers to understand the relevant legal contracts and license
agreements, while citizens shouldn't be expected to.
Brad clearly states that he
believes that these are largely unintentional and not malicious. What I'm trying to say here isn't that habitual copyright infringers
like Microsoft shouldn't be allowed to have an Internet connection,
but that we should be very quickly fully rejecting "3 strikes"
or even "notice and take-down" proposals for non-commercial
infringement. If we shouldn't be considering commercial copyright
infringement as a serious offense with serious consequences, why
should we be treating non-commercial copyright infringement as
anything more than a far lesser offense with far lesser consequences?
As embarrassing as these types
of rules should be to those that suggest or support them, they are
somehow moving forward in a few countries and being embedded in a few
treaties. Please get in touch with your elected representatives and
try to wake them up from the snooze they appear to be in.
Towards this end I am drafting
an anti-ACTA
petition which I hope people will get involved in. This
isn't something we should be sitting and waiting to be done to us,
but something we should be actively opposing.
For those members of
parliament that may be proponents of this type of policy, we should
all do anything we can to help ensure that they are not members of
parliament after the next election. We have said goodbye and good
riddance to Sheila Copps and Sam Bulte, and there is clearly still
some house (of commons) cleaning required.
---
Russell McOrmond is a self employed consultant,
policy coordinator for CLUE:
Canada's Association for Free/Libre and Open Source Software,
co-coordinator for Getting Open Source Logic INto Governments (GOSLING),
and host for Digital
Copyright Canada.
