The War on Progress, Freedom, and Human Civilization

Anti-Counterfeiting Trade Agreement (ACTA)

by Gennady Stolyarov II,  Tuesday, August 03, 2010

A clandestine international treaty is currently being negotiated among parties including the United States, Canada, New Zealand, the European Union, Japan, Singapore, and Morocco. It can justly be called the greatest threat of our time to the advancement of human civilization. Considering the magnitude of the other abuses of power pervading the world today, this might seem an exaggeration, but the Anti-Counterfeiting Trade Agreement (ACTA) contravenes every principle of civilized society, both in its content and in the nature of the proceedings leading to its creation.

It threatens to undo the accomplishments of the great Internet revolution and to thrust humankind back to a time when individuals had no public voice and no countervailing power against politically privileged mercantilist institutions. ACTA tramples on essential rights that have achieved even mainstream recognition: innocence until one is proven guilty, due process, personal privacy, and fair use of published content. Moreover, because of its designation as a trade agreement, ACTA could be imposed on the people of the United States by the president, without even a vote of Congress.

Some excellent background information on ACTA can be found in posts by Stephan Kinsella (here and here) and Justin Ptak (here), as well as in a detailed communiqué from the American University Washington College of Law. The first official draft text of ACTA was released only as late as April 20, 2010, even though the treaty has been negotiated since 2006. A subsequent draft text was leaked on July 1, 2010. An earlier discussion draft was made available on WikiLeaks on May 22, 2008. Indeed, the extreme secrecy in which the ACTA negotiations have been shrouded should itself lead to the strongest doubts regarding the merits and desirability of its framers' intentions.

Freedom of Information Act requests regarding ACTA have been denied in the United States on the grounds of "national security" — while major special interests supporting intellectual property have been allowed privileged access to the negotiations. These interests include the usual suspects — the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), Sony Pictures, and Time Warner — who were invited by none other than the United States Trade Representative to give their "input" on the treaty.

Members of the public at large, whom national governments are ostensibly supposed to represent, were not allowed to know about the ACTA negotiations for years. Meanwhile, front seats at the negotiating table were offered to the parasitic organizations which have thwarted actual creators' freedoms and ruined the lives of thousands with frivolous multimillion-dollar lawsuits.

Here, I will only summarize the most salient abuses arising from this treaty, but I encourage readers to learn as much as they can about this truly totalitarian agreement. My other objective here is to demonstrate the enormous danger that ACTA poses: it threatens to thrust human civilization back into the pre-electronic Dark Ages.

ACTA's provisions would amplify the already-onerous Digital Millennium Copyright Act (DMCA) of 1998. Prior to DMCA, copyright infringement was a civil offense; if the holder of "intellectual property rights" to a work found himself inconvenienced by its unauthorized distribution, he could sue the "infringer" in court. The DMCA criminalized copyright infringement and has rendered thousands of innocent creators' work subject to notorious and frivolous takedown notices, but it retained important protections for individual consumers and Internet service providers (ISPs). For instance, the DMCA's "safe harbor" provisions absolved ISPs from liability for any copyright infringement on the part of their customers. ACTA would eliminate this protection and require ISPs to become an enforcement arm of the treaty, under threat that the ISPs themselves would be fined or shut down if they did not comply.

Under the current copyright regime, a holder of "intellectual property rights" is at least formally required to gather evidence of any infringement and submit a grievance. With ACTA, this requirement would be eliminated, and the holder of "intellectual property rights" would not even need to complain in order for governments to persecute the alleged infringer.

The sheer absurdity of this approach does not take long to recognize. Indeed, many copyright holders today — from superstar musicians to part-time online content creators — deliberately look the other way when others reproduce their work without prior permission; they hope to benefit from the resulting exposure. Under ACTA, governments would be able to crack down on the fans of these creators,against those creators' own wishes! Even if one accepts the validity of intellectual-property rights (which I do not), who would be the rights holder here — individual creators, or governments and the large, politically privileged trade associations that are pushing this treaty?

Under ACTA, the very suspicion or allegation of having downloaded or even accessed copyrighted material online would render one's computer open to search without a warrant. Fines and other penalties would apply to refusing permission for a search, while anyone consenting to a search would almost certainly be found guilty of some "infringement" or another. Under ACTA, even viewing a website containing material that infringes a copyright — without the viewer being aware of said infringement's existence — would be considered aiding and abetting the infringement.

Moreover, ACTA would render individuals liable to searches and penalties even for the suspicion of possessing materials that might have been obtained via distribution channels that are similar to distribution channels for obtaining unauthorized copies. So, if you ever downloaded a free mp3 file from an artist who shares all of his work for free online, you would not be safe. And this is not too far off from what the proponents of ACTA desire. Remember that, with the force of US law on its side, the RIAA does not allow even nonmember artists to offer their own works for free on certain channels — such as Internet radio. This organization — the epitome of mercantilism and protectionism for politically connected large studios — would enjoy nothing more than the death of free, legitimate sharing of content online.

Just as important to remember is that people who never infringe on anyone's copyright are just as likely to suffer from ACTA, particularly if they have anything intelligent and controversial to say online. If there is anything that the history of DMCA notice abuses teaches us, it is that sophisticated expressions of ideas are never safe from malicious and contrived allegations of copyright infringement.

Thousands of creators on YouTube, whose works contained no copyrighted materials, have for years been served DMCA takedown notices by fanatics who intensely disagreed with their ideas. YouTube's mindless automatic response system to DMCA notices resulted in these creators' accounts being suspended and sometimes deleted altogether, even when their accusers clearly violated the law by bringing forth frivolous charges. Under ACTA, the same frivolous accusations can result in much more than the deletion of a video account; governments will assume the role of enforcers, and — judging by precedents such as the war on drugs and "airport security" — you can be certain that they will not be nearly as scrupulous or respectful of individual rights as YouTube.

While the current judicial system's treatment of intellectual property has certainly been flawed, when compared to ACTA, it is a shining example of respect for individual rights. Over the years, a number of fair-use exemptions to copyright law have been carved out by the courts to protect individuals seeking to use portions of copyrighted material for research, teaching, satire, and debate — among other worthwhile purposes. ACTA would greatly roll back the scope of fair use and would largely take the questions out of national judicial systems and into the scope of an international enforcement body specifically created by the treaty.

Under the current system, there at least exists the hope that other policy objectives pursued by the same governmental bodies — such as economic growth and semifree trade — might trump draconian crackdowns on dubiously classified infringements. But an organization devoted primarily to persecuting copyright infringers will have no such countervailing considerations. The theory of regulatory capture suggests that this body will quickly be co-opted to serve the agendas of the RIAA, MPAA, and other parasites of copyright.

Explicit comments from ACTA negotiators deny that governments would use the treaty to launch massive search efforts by border guards of individual travelers' laptops and mp3 players. However, the draft treaty and discussion drafts nevertheless do contain provisions authorizing exactly this sort of search. It is immaterial whether or not the intent is to target massive commercial cross-border "pirating" operations: where the authority to engage in a certain act against ordinary individuals exists, it will be invoked somewhere, sometime, by somebody.

To be sure, the searches would be scattered and irregularly applied; they would not affect all people all the time. But the very right to conduct such a search would provide a formal justification for inconveniencing and punishing individuals who may displease the authorities for other reasons but who, in the absence of ACTA, would provide no probable cause for their devices to be scrutinized. To quote Ayn Rand's villain Dr. Floyd Ferris from Atlas Shrugged,

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted — and you create a nation of law-breakers — and then you cash in on guilt.[1]"

Not every person would have a laptop or mp3 player searched at the border under ACTA, but the possibility of such a search would be a sword hanging over every traveler, descending at the enforcers' whim. Would you take the risk of traveling with an electronic device under such a regime, or would you consign yourself to the safer drudgery of travel without one, as occurred before the electronic age?

ACTA's scope extends into the sphere of patents as well. ACTA would greatly restrict generic drug competition against expensive brand-name labels — creating still more pharmaceutical monopolies and becoming yet another law that contributes to the ever-skyrocketing cost of healthcare. For instance, if a generic drug shipment were traveling from Country A (whose laws allowed it) to Country B (whose laws allowed it), but happened to pass through Country C, where the patent laws prohibited the drug, the officials of Country C would be empowered to confiscate the shipment. Moreover, producers of inputs used in patent-infringing generic drugs could be persecuted under ACTA, even if the use of their product in the drugs occurred without their knowledge. As with any law affecting the availability of medicines, Frédéric Bastiat's emphasis on the unseen effects is paramount here. How many lives will be lost because of the confiscation of affordable, safe, generic medicines due to ACTA?

Readers who have followed me to this point may be thinking, "Sure, ACTA is misguided and abusive in many ways, but is it not an exaggeration to call it the greatest threat to civilization?" I will now take up the challenge of demonstrating this more ambitious part of my argument.

The Internet and other personal technologies have been the saving grace of the past 20 years. In every other respect, Western societies in 2010 look much more dysfunctional and tyrannical than they did in 1990. Consider that, 20 years ago, totalitarianism was collapsing in the Soviet Bloc and beginning to be consciously rejected in China; today, in the West itself, our previously creeping totalitarianism now advances at a gallop. Twenty years ago, one could arrive at the airport a half-hour before one's flight, pass through perfunctory and barely noticeable security, and enjoy a relatively comfortable flight. Today, the airports are populated by virtual strip-search machines, while the bailed-out, subsidized airlines inflict a litany of petty abuses on travelers.

 Even the water-boarding torture under the Bush administration seems mild compared to the prerogative that the Obama administration has assumed to unilaterally order the assassination of any person — American citizens included — on the mere suspicion of terrorist activity. The First, Second, Fourth, Fifth, and Tenth Amendments to the US Constitution have all suffered grievous abuses that would have been unthinkable in 1990. In the meantime, vast segments of the population continue to think that this is all being done for our own good. However, without the Internet, the majority of these abuses would simply have been hushed up, as they probably have been during most of human history.

The actions of national governments have not been the only signs of deterioration over the past 20 years. In 1990, large Western corporations still maintained a semblance of competency and focus on satisfying consumer desires; today, most of them are lining up for bailouts. They have refused to innovate and refuse to adjust obsolete institutional structures to take advantage of new technological possibilities. Predictably, they began to fail.

In virtually all areas of life — transportation, finances, entertainment, and education — individuals began to look to more forward-thinking and reliable providers, and this has been greatly assisted by the Internet. Unable to compete on the technologically bolstered free market, the old institutions clamored increasingly for political protection.

Indeed, ACTA is itself an instance of this tendency. The obsolete Hollywood entertainment industry — with its gigantic, capital-devouring record labels, movie studios, and culture of serving mind-numbing trash of the lowest common denominator to as many people as possible — finds itself unable to compete with a new paradigm where individual creators and individual consumers are truly in charge.

Under the new culture, barriers to entry are much lower, technologies for disseminating art and entertainment are much more accessible, and there exist numerous niche markets for sophisticated consumers who reject the vacuous, conformist mass culture disseminated by the established entertainment firms.

The rise of online video sites and the Creative Commons license has further cast the RIAA/MPAA types into irrelevancy. But just like the banks and automobile companies of the American establishment, these organizations will not adapt to new technological realities; nor will they bow out with dignity. They prefer to remain as vampire institutions, perpetuating themselves by draining the lifeblood of the economy, and unwaveringly holding on to every vestige of the waste and inefficiency that fueled the current economic predicament. Politicians, knowing where their campaign contributions are coming from, are all too happy to oblige and to cement old institutional arrangements into law. ACTA is the TARP of the entertainment establishment.

The free culture of the Internet — free both in the sense of liberty and in the sense of monetary cost — has the potential to loosen and ultimately remove the death grip of the old institutions on Western societies. In "The Effects of the Economic Crisis on Young People" I argue that the up-and-coming generation should create an alternative economy using the Internet and personal technology so as to immunize itself from the depredations of bailed-out firms and inflationary monetary authorities. But if this culture of creative activity on the Internet is quashed by ACTA, the vampire institutions could persist indefinitely.

This would not be the first time in history when stagnation and decline characterize entire eras. Ancient Egypt, the Roman and Byzantine Empires, the European Dark Ages, Bourbon France, and the Soviet Union are just a few examples; obsolete and parasitic institutions, with enough force, can ruin the lives of multiple generations before finally collapsing under their own oppressive weight.

To be sure, ACTA would not kill the Internet altogether — not directly, at least. But if even routine uses of the Internet — not to mention trying to develop new online technologies for creation and distribution of content — render one vulnerable to criminal persecution, how many ordinary, risk-averse people would choose to participate? Not even the semblance of breaking the law would be required for one to be harmed by ACTA.

Indeed, the model for what would happen on a much larger scale under ACTA can already be foreseen by observing recent US federal government crackdowns on innocent, legitimate blogs. On July 16, 2010, federal authorities shut down Blogetery.com, a site that hosted 73,000 blogs, under the allegation that some of these blogs reproduced copyrighted material. Any reasonable person will recognize, of course, that most of the blog owners probably committed no violation whatsoever, but millions of hours of human effort were nonetheless wiped out by this new kind of random, arbitrary censorship. Would you invest your time and energy into developing a high-quality blog if you feared that it could be destroyed at any moment, and not because of any action you took?

I somehow doubt that the federal authorities are experiencing any pangs of guilt or regret on account of this. It is, after all, much easier to control a population that only has access to three evening news channels, which are carbon copies of one another. Under ACTA, the books burned by the Spanish Inquisition would pale in comparison to the human knowledge and creative effort that will be forever eradicated under the rationale of enforcing dubious intellectual property rights.

I predict that ACTA will result in a war on the Internet, akin to the war on drugs. Internet use would not disappear, but many perfectly legitimate activities will be relegated to a black market of sorts, complete with all the attendant evils of genuine, physical crime, fraud, and an artificially created Hobbesian state of nature. Product quality, too, will decline, as people will direct their efforts more toward avoiding persecution than toward innovating.

The sophisticated online creator will become an outlaw, and what could have been unambiguously beneficial or at least harmless activities may become tainted by association with more sinister doings — much as the war on drugs has cast criminal aspersions on the procurement of cough medicine. For "respectable people," the Internet will come to be seen not as the civilization-saving nexus of progress that it is, but rather as another outlet for gangsterism or, at best, a messy battleground that people concerned with a modicum of stability in their lives would do well to avoid. The resulting chilling effect on progress would be the greatest long-term tragedy conceivable for our time.

A determined effort should be launched by all parties who are rightly appalled at the abuses ACTA would bring about. Fortunately, many allies from diverse backgrounds and intellectual perspectives can be found for this particular battle. Unfortunately, ACTA advocates will do everything they can to bypass channels of government and civil society where extensive and thorough debate would be possible.

The inability of national legislatures to vote on the treaty is particularly disturbing, as it allows for expeditious, behind-the-scenes implementation without the possibility for political fallout for ACTA's supporters on account of their votes. There remains no option but for members of the public to oppose ACTA directly using whatever methods of peaceful communication and persuasion are available to them.

It is important to remember that convincing others to oppose this treaty does not require full-fledged intellectual conversion to anti-intellectual-property libertarianism. While I personally reject the concept of intellectual property, it is also possible to support the general idea but to detest the kind of draconian regime that ACTA would implement. It is my hope that the intellectual-property justification for censorship and terrorization of innocent people will disappear over time, but stopping this treaty is a much more urgent and time-sensitive goal. If ACTA is stalled or thwarted, then maybe civilization will have a fighting chance.

A medium-term goal would be for consumers, through their peaceful and perfectly legitimate choices, to cast the entertainment establishment out of existence. As long as the vampire institutions continue to exist, they will continue to lobby for violent protectionism at the cost of basic individual freedoms. It is time to stop purchasing the completely superfluous products of these institutions and to cease having anything to do with their output altogether. The culture will become much improved as a result, and autonomous, thoughtful creators will only be benefited.

We should deliberately escalate the consumption and use of Creative Commons work — and the rewarding of its producers through donations and recommendations. Many genuine and consumer-respecting creators continue to produce under the copyright model and innocently support it, while refraining from turning it into a weapon against peaceful consumers; their work should also still be encouraged. However, the types that deliberately and knowingly aid the likes of the RIAA and MPAA should cease to receive the patronage of freedom-loving individuals who do not wish to be hanged by their own purse strings.

Stopping ACTA is absolutely indispensable for the short term, and relegating intellectual property to the dustbin of history is a praiseworthy long-term aim. In the intermediate timeframe, though, it is important to recognize that, even if defeated now, ACTA may be resurrected in other venues and forms. It is time to launch a cultural rebellion against the organizations that would foist ACTA's tyranny upon us.

Notes

[1] I quote Ayn Rand with full knowledge of her strong support for intellectual property. Nonetheless, I am convinced that there is plenty in ACTA that would have appalled Rand had she been alive today. Indeed, Rand's staunch opposition to totalitarianism would probably have made her one of ACTA's foremost opponents.