January 2012, Week 4


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Sat, 28 Jan 2012 07:41:03 -0500
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1 Weaving a Tangled Web
2 We Have Every Right to Be Furious About ACTA


Weaving a Tangled Web

Pratik Kanjilal
January 27, 2012

Salman Rushdie has won the Battle of Jaipur, in
absentia, by doing nothing but tweeting. The Satanic
Verses, almost a quarter of a century old, has got free
mileage which may trigger a fresh spurt in sales. And
India has seen the first public defiance of the culture
of book-banning, thanks to readings from the proscribed
text at the Jaipur Literature Festival.

But in the private domain, the ban has been meaningless
for years. Ever since BitTorrent, every Indian who
wanted to read The Satanic Verses and discover what the
fuss was about has quietly downloaded a bootleg digital
edition. In this story, the pirate is the good guy and
the cop is vile.

Of course, Rushdie has been popular with pirates from
pre-internet times - since the early Eighties, when
Midnight's Children breached a glass ceiling and won the
Booker. A pirated paperback edition immediately flooded
the market. I think I first saw a legit edition in the
Nineties. In 2007, on his last - and completely peaceful
- visit to Jaipur, Rushdie had revealed that his pirate
publishers were so grateful that they sent him greeting
cards at Eid and Christmas.

Coincidentally, just 48 hours before Rushdie was
scheduled to speak at Jaipur, the internet blacked
itself out in protest against two Bills in the US
Congress and Senate, the Stop Online Piracy Act and the
Protect Intellectual Property Act.

They have been promoted by major copyright owners like
Hollywood, the music industry and a few big brands, big
publishers and big media, but the internet industry
regards them as draconian for several legitimate
reasons. They are loosely framed, intrusive and can be
misused, they criminalise websites hosting pirated
material - not just the pirates themselves - and can cut
off their funds and search engine links. Like sanctions,
a useless tool of Western foreign policy, they will only
cause collateral damage. Because pirates already know
how to subvert them.

Even copyright owners who are directly hurt by piracy,
like Trent Reznor, founder of Nine Inch Nails and
composer of the soundtrack for The Social Network, have
spoken out against these proposed laws. That's not as
strange as it sounds. Creative people sometimes have a
love-hate relationship with piracy because they aren't
purely commercial. They are also interested in reaching
out to new audiences, to which the pirate gives access.
The interests backing sledgehammer anti-piracy laws are
mainly corporations with a strong profit motive.

But legal action has never curbed piracy, from Napster
till now, because it is not a criminal issue. Rather,
the issue is freedom of access. Think for yourself: if
you had easy access to both pirated and legitimate
copies of a book, an album, a movie or a software
package, which would you choose? The legit copy,
obviously. There is a motive for piracy only when
something is not available in your country, like The
Satanic Verses in India, or when it is exorbitantly
priced by local standards, like DVDs, books and software
packages sold here at Western prices.

The quickest way to generate a demand for pirated goods
is to tell people that they can't have it because it's
either banned or priced beyond their reach. It sounds
too much like a challenge.

(Pratik Kanjilal is publisher of The Little Magazine.
The views expressed by the author are personal.)


We Have Every Right to Be Furious About ACTA

By Maira Sutton And Parker Higgins
January 27, 2012 

If there's one thing that encapsulates what's wrong with
the way government functions today, ACTA is it. You
wouldn't know it from the name, but the Anti-
Counterfeiting Trade Agreement is a plurilateral
agreement designed to broaden and extend existing
intellectual property (IP) enforcement laws to the
Internet. While it was only negotiated between a few
countries,1 it has global consequences. First because it
will create new rules for the Internet, and second,
because its standards will be applied to other countries
through the U.S.'s annual Special 301 process.
Negotiated in secret, ACTA bypassed checks and balances
of existing international IP norm-setting bodies,
without any meaningful input from national parliaments,
policymakers, or their citizens. Worse still, the
agreement creates a new global institution, an "ACTA
Committee" to oversee its implementation and
interpretation that will be made up of unelected members
with no legal obligation to be transparent in their
proceedings. Both in substance and in process, ACTA
embodies an outdated top-down, arbitrary approach to
government that is out of step with modern notions of
participatory democracy.

The EU and 22 of its 27 member states signed ACTA
yesterday in Tokyo. This news is neither momentous nor
surprising. This is but the latest step in more than
three years of non-transparent negotiations. In
December, the Council of the European Union-one of the
European Union's two legislative bodies, composed of
executives from the 27 EU member states-adopted ACTA
during a completely unrelated meeting on agriculture and
fisheries. Of course, this is not the end of the story
in the EU. For ACTA to be adopted as EU law, the
European Parliament has to vote on whether to accept or
reject it.

In the U.S., there are growing concerns about the
constitutionality of negotiating ACTA as a "sole
executive agreement".  This is not just a semantic
argument. If ACTA were categorized as a treaty, it would
have to be ratified by the Senate. But the USTR and the
Administration have consistently maintained that ACTA is
a sole executive agreement negotiated under the
President's power. On that theory, it does not need
Congressional approval and thus ACTA already became
binding on the US government when Ambassador Ron Kirk
signed it last October.

But leading US Constitutional Scholars disagree.
Professors Jack Goldsmith and Larry Lessig, questioned
the Constitutionality of the executive agreement
classification in 2010:

     The president has no independent constitutional
     authority over intellectual property or
     communications policy, and there is no long
     historical practice of making sole executive
     agreements in this area. To the contrary, the
     Constitution gives primary authority over these
     matters to Congress, which is charged with making
     laws that regulate foreign commerce and
     intellectual property.2

(And by the way, we agree [pdf].)

Senator Ron Wyden has been asking these questions for
years, first demanding an explanation from USTR
ambassador Ron Kirk, President Obama, and now the
administration's top international law expert Harold
Koh. The distinction between executive agreement and
treaty should not be lost on this administration: as a
Senator, Vice President Joe Biden used the same argument
to require the Bush administration to seek Senate
approval for an arms reduction agreement.

Public interest groups and informed politicians have
long lamented these problems with ACTA. But the impact
of dubious backroom law-drafting is getting fresh
attention in light of the powerful global opposition
movement that has emerged out of last week's Internet
blackout protests. Activists and netizens all around the
world have woken up to the dangers of overbroad
enforcement law proposals drafted by monopoly industry
lobbyists, and rushed into law through strategic
lobbying by the same corporate interests that backed
SOPA and PIPA. Tens of thousands are protesting in the
streets in Poland as their ambassador signed the
agreement in Tokyo. The EU Parliament's website and
others have come under attack for their involvement in
these laws. The Member of the European Parliament who
was appointed to be the rapporteur for ACTA in the
European Parliament, Kader Arif, quit yesterday in
protest. In a statement he said:

     I want to denounce in the strongest possible manner
     the entire process that led to the signature of
     this agreement: no inclusion of civil society
     organisations, a lack of transparency from the
     start of the negotiations, repeated postponing of
     the signature of the text without an explanation
     being ever given, exclusion of the EU Parliament's
     demands that were expressed on several occasions in
     our assembly ...

     ...This agreement might have major consequences on
     citizens' lives, and still, everything is being
     done to prevent the European Parliament from having
     its say in this matter. That is why today, as I
     release this report for which I was in charge, I
     want to send a strong signal and alert the public
     opinion about this unacceptable situation. I will
     not take part in this masquerade.

We couldn't have said it better ourselves. ACTA may have
been signed by public officials, but it's crystal clear
that they are not representing the public interest.

It is now up to the collective will of the public to
decide what to do next, and for individuals to ask
themselves what they want their government to look like.
Do you believe in democracy? Do you believe that laws
should be made to reflect our collective best interests,
formulated through an open transparent process? One that
allows everyone, from experts to civil society members,
to analyze, question and probe an agreement that will
lead to laws that will impact potentially billions of
lives? If we don't do anything now, this agreement is
going to crawl itself into power. With the future at
stake like this, it's never too late to fight.


If you live in Europe, follow these links to learn how
you can take immediate action and stay informed on the
latest updates:

La Quadrature du Net (@laquadrature): How to Act Against
ACTA https://twitter.com/laquadrature

European Digital Rights (@EDRi_org): Stop ACTA!

Open Rights Group (@OpenRightsGroup): ACTA: signed, not
yet sealed - now it's up to us

Foundation for a Free Information Infrastructure
(@FFII): ACTA Blog https://twitter.com/FFII

For those in the U.S., you can demonstrate your
opposition to the dubious decision to negotiate ACTA as
a sole executive agreement to bypass proper
congressional review by signing this petition on the
whitehouse.gov website, demanding the Administration
submit ACTA to the Senate for approval.

EFF will continue to monitor ACTA's global
implementation and watch for efforts to use ACTA to
broaden US enforcement powers.

1. United States, Australia, Canada, Japan, Morocco, New
Zealand, Singapore and South Korea.

2. See also http://infojustice.org/wp-content/uploads/2011/02/ACTA-Comment-Thirty-Professors-USTR-2010-0014.pdf


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