It's becoming clear that the Anti-Counterfeiting Trade Agreement is not, as backers have suggested, just a minor tuneup to worldwide intellectual property law, one done for the purpose of cracking down on fake DVD imports or Coach handbag ripoffs.

Such a law—one that amounted essentially to some streamlining and coordination in the fight against actual pirates—might well be hashed out between nations operating in secret. But a treaty that seeks to apply criminal penalties to peer-to-peer file-sharing? Let's open a window and let the sunlight in.

Rightsholders, especially in the music and movie businesses, have been upfront about what they want, and it's a long and sometimes scary list. But it has been hard to know if any of these ideas are actually moving forward in the ACTA negotiating sessions, since none of the countries involved have seen fit to release much in the way of useful information on the process—To the public, anyway. Based on sources and leaked documents, Knowledge Ecology International now asserts that ACTA drafts are in fact "formally available to cleared corporate lobbyists and informally distributed to corporate lawyers and lobbyists in Europe, Japan, and the US."

As for what's in these drafts, which are too secret to be seen by the public paying the negotiators' salaries, it's a long and mostly boring list of items intended to stop or slow shipments of counterfeit goods. But the ACTA proposals currently include language that would make copyright infringement on a "commercial scale," even when done with "no direct or indirect motivation of financial gain," into a criminal matter.

ACTA drafts are in fact "formally available to cleared corporate lobbyists and informally distributed to corporate lawyers and lobbyists in Europe, Japan, and the US."

Both KEI and Canadian law professor Michael Geist, who has been working his own sources, say that the current proposals require all signatories to "establish a laundry list of penalties—including imprisonment—sufficient to deter future acts of infringement." Geist believes that P2P use is the obvious target here, though such provisions might well be enacted only against file-sharing hubs rather than end-users.

Camcording in theaters gets its own special section and must also be considered a "criminal act" by countries that adopt ACTA. Handling fake movie and movie packages would also get the deluxe criminal treatment.

Also interesting, though of less concern to end users, are the proposed "border measures" that would allow customs agents to act against counterfeit goods. According to Geist:

The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the US would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.

ACTA will also become a sort of institution, with the creation of an ACTA Oversight Council to coordinate enforcement, schedule yearly meetings, etc.

Taking the hint

Some governments appear to be listening to the public criticism of the process. Michael Geist filed an Access to Information Act with the Canadian government and dug up a few new interesting documents.

One shows that Canadian negotiators at least read the documents submitted during public consultations; in it, negotiators noted "that the issue of transparency in the formal negotiation process is important for many of our stakeholders. Stakeholders have also requested additional information on the scope of the proposed ACTA, as well as further information on why the Agreement is being negotiated in this manner, as opposed to in existing multilateral fora such as WIPO or the WTO."

Such concerns are apparently being aired to the other ACTA countries, though it's clear that not everyone involved shares the Canadian public's interest in transparent process. The US Trade Representative has held a public consultation and a public meeting in DC to address concerns about ACTA, but little information has been forthcoming.

Just how little? Public Knowledge today detailed its struggle to get some ACTA documents using a Freedom of Information Act Request. The government turned over 159 pages of information, then indicated it had found another 1,390 pages.

But, according to PK attorney Sherwin Siy, "Of these, 1,390 will be withheld under various statutory exemptions to the FOIA. Yes, thats all of them."

Things haven't been much better in the EU, where a Dutch group has tried to access documents and gotten nowhere.

When have we ever lied to you?

So what we have to go on are largely leaked documents and the bland reassurances of governments. The European Union is a good example of the latter. "ACTA is about tackling large scale, criminal activity," we are told. "It is not about limiting civil liberties or harassing consumers."

It is not about limiting civil liberties or harassing consumers.

It goes on to say, "ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this."

(i-Pod?)

And if you think that these negotiations are taking place in smoky backrooms to which only corporate lobbyists have access, you couldn't be more wrong. "It is alleged that the negotiations are undertaken under a veil of secrecy," says the EU. "This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion."

Let's hope it's all true, and that the concerns of civil society groups and citizens really are considered. Perhaps they are; perhaps they will be. But it's certainly hard to tell at the moment. The EU and everyone else involved can issue all the say-nothing press releases they like, but those who care about the issue would feel a lot better if they could see the evolving drafts and have some process for providing input on them; asking people to turn in one document months ago without having seen even a set of proposals hardly qualifies as an "open process."

Still, when you consider that RIAA-backed measures like ISP filtering don't appear in the current leaked drafts and MPAA-backed "three strikes" laws also appear to be absent, perhaps the governments truly are attempting to keep ACTA focused on industrial-scale piracy. It would just be comforting to have something other than their words to go by.