Euractiv.com reports that the USTO officials responsible for negotiating the Anti-Counterfeiting Trade Agreement (ACTA) are blocking the EU delegation from publishing the draft agreement online completed after the August round.

I can only imagine, based on my experience with DFAT that the Australian delegation has not been pursuing transparency as a key issue within the negotiations. The debriefings by the EC to the EU remain confidential and secret, and are the reason Engström removed himself from those debriefings — it is disgracefully undemocratic for such laws and agreements to be crafted under such a veil of secrecy, and in the face of such public protest and calls for disclosure.

A little while ago, Matt Dawes from the Australian Digital Alliance, an NGO whose membership largely consists of libraries and museums, wrote a piece published by IT News discussing the cyclical behaviour of established industry when disruptive technology threatens, or seems to threaten a particular business model.

One has only to look to history to confirm this almost automatic response of the established/dominant industry looking to preserve the status quo — from the menace of mechanical music that threatened the weakening of the national throat and chest, the savagery and ravages of the photocopier that would destroy academic publishing, Japanese VCRs that would obliterate free to air television, home taping that would kill music and digital music and culture that dooms all media, condemns all art to amateurish mediocrity. New technology creates new paradigms, markets and new regulations.

Inevitably, opportunities present themselves and innovative industry will adapt to the new technology, or like is the natural order, outdated modes will perish — regardless of how many looms you destroy, or shearing sheds you burn down. With each bout of feverish hysteria however, established industry has demanded and sometimes gained extensions to the statutory monopoly granted by the state — all which eat into freedom and accessibility of culture, knowledge and information.

It’s a great article, but curiously, and to a little bemusement, Dawes concludes that change must occur, lest support for radicals like the Pirate Party entrenches itself. Language usually reserved for terrorist organisations or revolutionaries.

It’s a little perplexing, because after all, one would think that the public library movement are very similar in their goals to the Pirate movement — to make access to culture equitable, to enable the free flow of information that benefits society. I would go as far as to say that a good deal of the philosophy that underpins that movement, underpins ours — they, along with groups like the EFF, the EFA and FFII are the foundations and root of the Pirate Party. Librarians have always been strong advocates against censorship, and for the free flow of information — opposing CIPA in the US, opposing the ALP’s Internet censorship platform in Australia. In the US, there was even an open support for Napster — non-commercial file sharing is a completely legitimate means by which to transfer culture, information and knowledge. So just how radical is the Pirate Party relative to this understanding? Are they also radicals?

“They’ve got their radical factions, like the Ruby Ridge or Waco types who want to share all content for free.”

— Judith Platt, Association of American Publishers

There is a tension between copyright and the freedom of expression — borne from censorship and control, copyright works to impede the flow of information. In a digital paradigm, laws drafted for an analogue paradigm no longer function as they should, and represent a dangerous threat to privacy, and thus human dignity. There is a genuine need of structural reform. It is difficult, if not impossible to ask industry to innovate where the law does not permit it — concessions extracted from previous panics have created structural barriers to reform and innovation of new business models. Whilst some will adapt, incumbent organisations will pursue the maintenance of their monopoly if the law, and politicians permit and enable it — society’s perception of how information and culture regulation should occur has shifted. It is time to change the law. This is a central plank of our policy. It’s not at all radical — its pragmatic, and considered. The radicals are in the WhiteHouse, declaring ‘piracy is flat, unadulterated theft’, negotiating opaque agreements, policy laundering and circumventing the democratic process that protect lazy incumbents with their statutory privilege.

The Senate is currently holding a Senate Inquiry into ‘The adequacy of protections for the privacy of Australians online‘ — we submitted a quick document outlining some of our concerns regarding privacy, and the perception of it amongst younger persons, and more specifically some issues around data retention, which the Attorney General has been making enquiries about. We really didn’t have enough time to go through everything we wanted to raise, or properly elaborate on our points, only we hope that our submission helps the committee in their deliberations.

The document can be found here (PDF) Unfortunately there weren’t that many submissions, which is very disappointing.

Thanks to Brendan, Frew, Steve and Stefan for their help.

Just received an email from Wikileaks, probably like countless others, which I’ll publish here – but if you have the ability to help, please do so.

One of our alleged sources, a young US intelligence analyst, Bradley Manning, has been detained and shipped to a US military prison in Kuwait, where he is being held without trail. Mr. Manning is alleged to have acted according to his conscious and leaked to us the Collateral Murder video and the video of a massacre that took place in Afghanistan last year at Garani.
The Garani massacre, which we are still working on, killed over 100 people, mostly children.

Mr. Manning allegedly also sent us 260,000 classified US Department cables, reporting on the actions of US Embassy’s engaging in abusive actions all over the world. We have denied the allegation, but the US government is acting as if the allegation is true and we do have a lot of other material that exposes human rights abuses by the United States government.

Mr. Manning was allegedly exposed after talking to an unrelated “journalist” who then worked with the US government to detain him.

Some background on the Manning case:

• Transcript Daniel Ellsberg says he fears US might assasinate Wikileaks founder
• Bradley Manning
• Wired – Leak
• Wired – Wikileaks chat
• State department anxious about possible leak of cables to Wikileaks
• Daily press briefing – June 11

[ note that there are some questions about the Wired reportage, see: Video: Wikileaks founder Julian Assange and Daniel Ellsberg at Personal Democracy Forum ]

WikiLeaks a small organization going through enormous growth and operating in an adverserial, high-security environment which can make communication time consuming and the acquisition of new staff and volunteers, also difficult since they require high levels of trust.

To try and deal with our growth and the current difficult situation, we want to get you to work together with our other supporters to set up a “Friends of WikiLeaks” group in your area. We have multiple supporters in most countries and would like to see them be a strong and independent force.

Please write to friends (AT) sunshinepress (DOT) org if you are interested in helping with Friends of WikiLeaks in your area. You will receive further instructions.

We also have significant unexpected legal costs (for example flying a legal team to Kuwait, video production. Collateral Murder production costs were $50,000 all up).

Any financial contributions will be of IMMEDIATE assistance.

http://wikileaks.org/wiki/Special:Support

Please donate and tell the world that you have done so. Encourage all your friends to follow the example you set, after all, courage is contagious.

Julian Assange
Editor in Chief
WIKILEAKS

Interestingly, the Spanish Broadcasting System seem to have laid a copyright claim to the shortened version of the video titled ‘Collateral Murder’ released by Wikileaks, and hosted on YouTube – and thus the video has been disabled.

On what basis SBS would be making the claim will be interesting to see. Perhaps on the basis that it contains an archive or copy of the video in question, and thus alleges it owns the work i.e. copyfraud? If this had been time sensitive material, or not as widely disseminated, such take downs could be very detrimental, not to mention the time taken to lodge an appeal.

After Wikileaks of course made this widely known, using it’s clout and contacts, that video has since been made available once again. In the case of Wikileaks this is inevitable – a well known and respected entity – however what about other smaller publishers that have to deal with such takedowns? Perhaps there should be some penalty to dissuade false claims of a copyright.

wikileaks

WikiLeaks

@wikileaks: Collateral Murder, with over 6M views, removed from YouTube after unknown US copyright claim http://bit.ly/aS3bMk

May 16, 2010 @ 05:29 AM from bit.ly Powered by Tweeted

The section which deals with a groundless claim with respect to copyright infringement in Australia is s202 of the Copyright Act 1968. In the US the equivalent section looks to be s506(c) which stiputlates:

Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Will be interesting to see where this all goes.

The Bundesrat has passed a resolution criticising the process of ACTA negotiations, inferring they have not respected the democratic process. A lack of transparency, consultation with civil society, consumers and the general public. It recognised that it is necessary in a democracy for the public to be able to both access and participate in the decision making process – especially when the spectre of the deprivation of internet access and incursions into fundamental rights of privacy is threatened by those negotiations.

Interesting story today in the AFR today (paywall I’m afraid) by Rachael Bolton regarding the legal complications and dangers inherent in the ‘cloud’, and the alleged complacency with which Australian firms have embraced cloud computing:

Mark Vincent of information technology law firm Truman Hoyle says many companies in Australia were not taking the security threat of offshore hosting seriously enough. According to Mr Vincent, “the biggest Australian organisations – the banks, the telcos, the governments – have the money and resources to think through all the aspects of what’s being served up to them and, quite rightly, will insist their data resides in Australia.” However, as Mr Vincent continues, smaller companies are not in the same position of power and “will often be presented with a take-it-or-leave-it-product.” Mr Vincent also warns that any company registered in the US is subject to the Patriot Act, even Australian incorporated subsidiaries of US companies such as Microsoft and Google. [Italics Added]

Cloud-based services have been openly advocated by the Commonwealth Bank of Australia’s group executive of operations and technology, Michael Harte; while Westpac Banking Corp chief information officer Bob McKinnon has said that its cloud computing strategy would demand that all data be housed on Australian soil.

Not surprising that Jeff Bullwinkel from Microsoft said the claims of complacency were overstated, and exposure to the Patriot Act exaggerated. Quite a few relatively complex legal issues in the cloud.

Last week I attended a debriefing and meeting at the home office of the Department of Foreign Affairs and Trade (DFAT) in Canberra at the invitation of the Department after the submission of a Freedom of Information (FOI) request with respect to various types of documentation DFAT may have regarding the Anti-Counterfeiting Trade Agreement (ACTA).

In response to my initial FOI request, DFAT gave a notice to refuse my request under s24(1)(a), which provides inter alia, that an agency may refuse a request where it “would substantially and unreasonably divert the resources of the agency from its other operations.” Preliminary searches uncovered 21,000 pages. I’ve since resubmitted a narrowed request, and will refine it again after the consultation received both from DFAT and some kind gratis counsel, narrowing the request to something much more manageable.

In this notice to refuse, DFAT extended an invitation for a debriefing and meeting, mentioning that “[DFAT] are conscious of the importance of public dialogue on the ACTA.” That there has been a veil of secrecy the negotiations are shrouded in, and the worrying provisions that have been found in leaked documents meant that I, of course, accepted this invitation, and headed down to Canberra.

The conversation covered many topics, here are some of the interesting points.

The ‘P’ is for Piracy

Conceding that the agreement is much more than just counterfeiting, and it aims for much more than is suggested, an official ruminated that its purpose is a new standard for the protection of ‘intellectual property’ – including copyright, although patent isn’t seen by DFAT as something needing to be included in the agreement itself (just yet anyway). There is a much greater ambition for the so called ‘trade negotiation’ than I had understood, and undermines the continual reference throughout the meeting that the agreement is essentially ‘only a trade negotiation’. It is much more.

DFAT reiterated that the ACTA is not deceptively named, however conceding the ACTA was not named to appropriately reflect the content — it should perhaps contain the term ‘pirate’ in the title, possibly becoming the Anti-Counterfeiting and Piracy Trade Agreement.

There’s More Transparency Than Ever for a ‘Trade Negotiation’

The World Intellectual Property Organisation (WIPO) is the special arm of the United Nations (UN) structure that sets standards and treaties that regulate the production, distribution and use of knowledge, culture and information. What ACTA essentially could do, is undermine WIPO - it effectively creates the IPR (Intellectual Property Rights) equivalent of a ‘coalition of the willing’ – and undermines this structure and the mechanisms within it for the public to engage or observe.

Headquartered in Geneva, and currently with 184 member nations, it is the forum for the negotiation of a range of different intellectual monopoly mechanisms – including copyright, patent and trademark. It has its own issues, for instance with transparency – ranking last amongst the 10 intergovernmental organisations (IGO) assessed for transparency capability.

It fares slightly better with regards to external stakeholder engagement. There are mechanisms and arrangements for consultation and cooperation with any authorised non-governmental organisation (NGO). There is oversight, and any NGO can apply to be an observer, and subsequently participate in all meetings. There are commitments to engage civil society in WIPO activity, and there are even provisions for NGOs to speak. There is an institutionalised mechanism for engagement. Of course I believe the focus and goals of WIPO to be reviewed, and so do many others however there is a recognition of the need for dialogue, and in recent years developing nations have begun to question the inherent imbalances within the current framework and the consequences of the over monopolisation of knowledge.

ACTA has none of this — there is no oversight. There is no external stake holder engagement or allowance for participation. DFAT concedes there is no obligation for this. This is why ACTA is most dangerous. It represents a belligerent expansion of intellectual monopoly privilege, with scant regard for consequence or the opinion of the public, and little to mandate public consultation.

Canada is Primitive

DFAT raised the need to bring nations with inadequate protection – namely ‘pirate nations’ like Canada who were placed on “Special 301” watchlists by the USTR, who have ‘inadequate or non-existing laws for the digital environment’ and ‘is in no way prepared to deal with the Internet’.

I thought this was a strange comment, especially when you look to the defence given by the Computer & Communications Industry Association – which includes the likes of Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo. The statement provides that the US wrong to place Canada on the Special 301 watch list, and to use the mechanism as a stick to construct a worldwide DMCA.

What it does show, is a complicity within DFAT to advance the USTO agenda and kowtow to the industry driven agenda. So even where the need for public dialogue is recognised, how much dialogue is actually happening, and is DFAT listening?

Hey Relax, Guy

The standard for a trade negotiation I am assured, is that no nation enters into negotiation, or advocates for a higher standard than they already have. There is no intention to create a notice and termination/graduated response/three strikes type mechanism where by a household’s access would be terminated on allegation of copyright infringement. It was clearer than that – three strikes is not on the table.

What is troubling with those assurances and statements, is that they seem to conflict with what is possibly a current draft of the ACTA Digital Enforcement Chapter | [Mirror] which has been leaked, which DOES provide for “three strikes”. Footnote 6, makes it clear that negotiators intend that “policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s system or network of repeat infringers.”

Within signatory nations, ISPs would basically be obliged to implement notice and termination policies in order to attain the benefit of “safe harbours” or a limitation of liability. Here in Australia, the court has clearly stated that the mere provision of an internet service does not provide the means by which copyright infringement occurs, and that infringement can only be proved in a court of law.

So if ACTA does contain these provisions, it won’t necessarily mandate notice and termination style law, but it certainly does create an environment for notice and termination as the norm. If ACTA does indeed require a legislative response, then we are all entitled to engage, participate and observe these negotiations – it is a necessary pre-requisite if we are to knowledgeably exercise our democratic rights and understand the legislative direction of our elected representatives.

Any move to require extra-judicial termination or suspension of accounts, or even the provision of private and personal identifying details without a warrant or judicial oversight, upon allegation of copyright infringement is completely unacceptable. Peter Hustinx, the European Data Protection Supervisor raised concerns about privacy with respect to data sharing arrangements, the invasiveness of three strikes and called for a more transparent, open and public dialogue.

DFAT has publicly stated that there will be no three strikes. Officials have privately told me that there is nothing to worry about. ACTA will not contain within it a so called ‘three strikes’ mandate. That promise is looking increasingly hollow, and perhaps even an outright lie.

The ACTA is being negotiated, behind closed doors, by unelected representatives. It must be made transparent, or it must be stopped.

Finally have my blog back up. Have been so busy with work and party matters, I haven’t had the chance to remake this after it was all lost – oh well, there wasn’t too much here.

I can probably find drafts and put them back up in time. Hope to make contribution to this blog a little more regular.