ACTA Treaty is DMCA on Steroids

In last year’s election campaign Obama came across as vaguely more friendly to open-culture than the alternatives, among other things supporting “fair use” reform of the DMCA and opposing requirements for ISP data retention (both issues on which Hillary waffled). As somebody put it, “Obama’s a Mac and Hillary’s a PC.” Even the U.S. Pirate Party endorsed Obama as the least evil candidate.

But if recent events are any indication, Obama’s stance on the preexisting digital copyright regime is that of Rehoboam: “My little finger shall be thicker than my father’s loins. For whereas my father put a heavy yoke upon you, I will put more to your yoke.”

It was a safe bet something was up when Obama refused to discuss—for “national security” reasons, of course—the terms of the forthcoming Anti-Counterfeiting Trade Agreement (a secret copyright treaty). Now the Internet chapter has leaked, according to Cory Doctorow, and “It’s bad. Very bad.” Among other things:

It requires ISPs to “proactively police” user-generated content for copyright violations. This effectively puts the legal onus on hosting services for enforcing digital copyright, resulting (according to Doctorow) in liability issues that will destroy the business models of services like Blogger and YouTube.

This “proactive policing” means, in particular, requiring DMCA-style “takedown notices” as standard practice in all signatory countries, and requiring automatic takedown and cutoff of Internet service on accusation—not conviction. As we’ve already seen in the U.S., takedowns are a virtually 100% effective form of censorship, since ISPs typically respond immediately and with a complete lack of due process. It will also impose DMCA-style restrictions against breaking DRM on the whole world, even when it’s for an otherwise lawful fair use purpose like making content you already purchased more usable to you.

Most commentators seem to agree that, if this is enforceable, it will effectively destroy what’s variously known as Web 2.0 or the writeable Web. If the treaty is literally and effectively enforced, it will mean a return to the Internet of the 1990s, when most websites were high-tech sales brochures and/or PR handouts for large corporations and government agencies. Or as one commenter under Doctorow’s post put it, “The problem with the Internet is that it is not TV. This will be fixed by ACTA.”

The good news is, it’s probably not enforceable. If it’s ratified by the U.S. in its present form, I expect non-signatory countries all over the world will become web-hosting havens and instigate a mass exodus from signatory countries, and for this to give the biggest push yet to mainstream adoption of anonymizing services. And as a commenter at Doctorow’s BoingBoing story points out, in an age of local wireless meshworks, ISPs have a lot less power than they used to:

“OH FOR CRYING OUT LOUD PEOPLE!!! Just open your wireless port, call it parasite.net, and then set yourself up as an ‘ISP’ with an FTP, web server, torrent tracker, etc. If you can convince enough people in your area to create access points and mirrors of the content we’ll eventually cut out the telecoms and have a truly distributed data and communications network.”

I’m not enough of a techie to know whether that would work, or even entirely what it means. But I share Arthur Silber’s gut reaction (Silber cited that comment himself) that this isn’t the end of the world. Charles Johnson once posted, on Rad Geek blog, a “Cat and Girl” cartoon in which the girl lamented the election of George W. Bush and all the horrible laws that would likely be passed under his leadership. The cat responded, “Since when do we obey the laws?”

There’s a country that already has all these draconian rules on paper: China. How’s that been working out for them?

One thing I do believe: These people and everything they stand for are doomed, no matter how much damage they cause on the way down. We’re rats in the dinosaurs’ nests, waging Fourth Generation Warfare against those dying monsters. We’re agile and resilient, and we treat their surveillance and censorship as damage to be routed around. As their lumbering bureaucracies spend hundreds of thousands of committee man-hours fighting the previous war, adding new concrete to the Maginot Line by the thousands of tons every day, we’re turning on a dime thinking up new ways—cheap ways—to destroy them. We will bury them.

In the meantime, we’ve reached a point where “the authorities” need to get a lesson in their own impotence, loud and clear. We need to treat laws like these with the contempt they deserve, and break them every chance we get. The people who draft such filth behind closed doors need to learn the meaning of the words “HELL NO!”

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