ISP filtering of "pirated" material is a controversial measure that would be tough to push through a national legislature in the US, EU, Japan, Korea, or Canada, what with all those pesky "voters" with their concerns about privacy, fair use, and false positives. But sneaking the provision into a trade agreement? Much easier.

The Anti-Counterfeiting Trade Agreement (ACTA) has been negotiated in secret by trade negotiators from rich countries around the globe. Despite the recent leak of a four-page memo on possible ACTA provisions, no draft text (or details of any kind, really) have emerged from the process. Google's William Patry, a top US copyright lawyer, now says that anonymous sources close to the ACTA process have slipped him more details on the plan, and they don't sound good.

Bring on the filters

Writing on his blog yesterday, Patry noted that two separate sources talked about filtering. "The rumors of what is in the draft are pretty much all bad and the scope is growing, not shrinking," said one. "It is even said that the latest version has filtering language in it."The second report was similar.

ACTA negotiators are meeting in Geneva this week to hash out more details of the proposed deal, but their work is already generating furious online opposition from people like Patry, who thunders, "The attitude of USTR [United States Trade Representative] toward copyright is a blinkered, one-sided view that copyright is good and therefore as much of it as possible is even better."

A shroud of secrecy





US Trade Representative Susan Schwab

Critics are blasting the secret nature of the proceedings, which they see as a way to negotiate and sign a "trade" deal which will then be presented to national legislatures as something already done.

"This 'patriot act' for intellectual property 'crimes' may be one of the late legacies of the Bush Administration," writes James Love of the Consumer Project on Technology. "It would be nice to have more transparency about such a far-reaching and important global trade agreement."

Patry agrees that "we do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d'accompli."

Alan Story, a Senior Lecturer in Intellectual Property Law at the UK's University of Kent, objects not just to the secret process behind ACTA but also to the idea that stronger copyright is better copyright.

"Where do we read about how copyright blocks access to books or leads to ever greater commodification and sameness in our culture?" he asks. "Instead, we are regularly carpet-bombed by the latest revelation, accompanied by statistically unreliable surveys, as to how piracy is, one week, killing the music industry, and the next week, the film industry. Lock ‘em up, cut off their Internet access forever, piracy funds terrorist cells: the articles never cease in this steady drip after drip."

Because of the secrecy, though, it's hard even to criticize ACTA; no one yet knows what it might say. But if Patry's sources are correct, the agreement may go far beyond "fighting fakes" (as the USTR said last year) and could attempt to force new, tougher IP provisions on everyone who signs up.

Such a policy, negotiated at institutions like the World Trade Organization (WTO), would require more transparency and would be certain to raise more objections from countries and civil society groups. By forming its own club and including only select countries in the draft, ACTA can remain both secret and totally pro-copyright. That's a bad combination.