ACTA: Who’s afraid of the big bad treaty?

Blair Hanley Frank

Internet piracy is a very big issue for content creators. So big that some game companies have begun to require Internet connections in order for games to run, in hopes of protecting them from piracy. Clearly, the practice of Internet file sharing has the large corporate intellectual property owners (or as I like to call them, Big Content) running scared. That’s why they’ve put so much money into lobbying for new ways to enforce their dominance over the market. Case in point: The Anti-Counterfeiting Treaty Agreement is supposed to be the new panacea for all of Big Content’s woes.

Of course, what’s good for Big Content may not be as good for you and me. Of course, nobody really knows, because the most controversial sections of the treaty are being hidden from public view. Jamie Love, of Knowledge Ecology International, filed a Freedom of Information Act request for documents regarding the Anti-Counterfeiting Treaty Agreement. He received a letter back from the U.S. Trade Representative’s office denying that request, saying that the text of the treaty was “classified in the interest of national security.”

That’s not to say we don’t have some clue as to what the treaty entails. The European Union produced a memo in September of 2009 which outlined some of the provisions in the section of the treaty regarding the Internet. The key points included a notice-and-takedown system, meaning that if Big Content sends a notice to a Web site (e.g. YouTube) saying that the content is infringing on a copyright, that Web site has to take it down.

Notice-and-takedown is already included in the United States’ Digital Millenium Copyright Act, which is why YouTube videos frequently disappear without notice, even if they were posted by the person who created that content.

But that’s not the really scary bit. According to the EU memo, the agreement will also mandate civil and criminal penalties for file sharing. Big Content has shown that it is very good at bringing lawsuits against people it has caught file sharing and has charged them gobs of money. Now, it looks like felony file sharing may be joining the legal lexicon.

Last, but certainly not least, the memo outlines a requirement that Internet Service Providers either use some means of banning the transfer of copyrighted files over their network, or implement a “graduated response” policy against file sharing.

Let’s break down those two options: The first is a major privacy issue. In order for content monitoring to be effective, your ISP will need to track what it is you’re uploading and downloading from the Internet. Did your significant other e-mail you some naughty pictures? Congratulations! Under a content monitoring system, your ISP got a chance to see them too.

Okay, so content monitoring is bad. What about this “graduated response” stuff? That has to be better, right? Unfortunately, it’s not. “Graduated response,” or more colloquially, three-strikes policies, are just as bad as content monitoring, if not worse. The idea behind a three-strikes system is that if Big Content sends a notice to your ISP that your IP address has been illegally sharing files three times, you get kicked off the Internet for good.

There are a few problems here. The first is that an IP address is not a singular identity. If you have three computers hooked up to a single router at home, all of those computers share the same IP on the World Wide Web.  So, if someone else got access to your wireless network and downloaded a bunch of movies, you could get kicked off the Internet.

Secondly, there’s the issue of accusation versus conviction. Under a three-strikes system, you don’t have to be convicted of file sharing for it to count as a strike. All that has to happen is for Big Content to accuse you of sharing files. All of this because Big Content hasn’t put the time into a working business model for the digital age. (But that’s another column.)

The bottom line is, why should you care? In a nutshell, here’s why: There’s a treaty being created in secret which is designed to serve the needs of large corporate interests by kicking people off of the Internet without proof and/or throwing them in jail. I don’t know about you, but that ticks me off.