ACTA: If You Write A Trade Agreement No One Will Sign, What’s The Point?February 14, 2012
Last summer, with the Anti-Counterfeiting Trade Agreement (ACTA) negotiations stalled for two years because of Hollywood insistence adding all kinds of regulate-the-internet crazy stuff, we gave the US Trade Representative and the industries pushing for ACTA some friendly advice: “Drop the crazy stuff.”
Officially, the U.S. government wanted ACTA to stop people from bringing actual counterfeit goods into the country, or marketing actual counterfeit goods abroad. Thats why a lot of industry groups and companies wanted ACTA. Not because of they wanted to regulate the Internet and prop up the traditional business models of the movie and music industries, but to deal with the folks making wharehouses full of fake Louis Vitton bags and knock-off Omega watches.
Unfortunately for these guys, whenever there is an international trade agreement negotiation, Hollywood jumps in, takes over, and starts driving the crazy train off a cliff by demanding all kinds of nonsense in the name of “stopping piracy.” This invariably holds things up (ACTA got held up two years) because the rest of the world does not like the crazy stuff that Hollywood keeps selling, Nevertheless, the official position of the U.S. government has generally been to let Hollywood drive the crazy train through Trade Agreement Town. This makes everyone else in Trade Agreement Town captive to Hollywood’s crazy demands.
I and others at PK have occassionally tried to tell the USTR and the other industry groups involved in international trade agreement negotiation: “Guys, you are not actually doing anyone a favor by letting Hollywood drive the crazy train off a cliff. If you want a real trade agreement that deals with actual trade stuff, you need to stop letting Hollywood hijack your trade negotiations and tell them to stick to stuff the rest of the world will accept.” But then the MPAA and RIAA come along and say: “Ignore those whacky Public Knowledge hippes! They are just anti-globalization free trade haters who love piracy and hate capitalism and freedom. Do not even listen to their lies!” Sadly, this has pretty much cut off any intelligent conversation, as apparently all trade associations involved in international trade negotiations swore some kind of Pinky Oath to never ever question what Hollywood tells them.
Eventually, Hollywood had to drop the worst of the crazy stuff and the U.S. and a few other countries with similar crazy stuff already in their law signed ACTA last October. But that still left plenty of crazy stuff in ACTA for countries that did not have a Hollywood-owned legislature with a tradition of passing whatever legislation Hollywood’s little heart desired. But since no one ever reads trade agreements and a lot countries just sign on the dotted line, Hollywood figured two years of delay for everyone else was worth it. From Hollywood’s perspective, any day you can bring the crazy regulate-the-Internet stuff to another country is a good day, even if it’s not as crazy as you would have liked.
But then came SOPA/PIPA, and the rest of the world woke up to the Hollywood crazy stuff. As a result, resistance to signing ACTA suddenly spiked and shows every sign of continuing to grow. The President of the EU Parliment has spoken against ACTA, several EU countries, including Germany — the strongest economy in the EU — have now backed away from signing ACTA, and such sober publications as the Economist and the Financial Times are declaring ACTA in Europe dead for now, possibly permanently dead.
Which brings us to the problem of getting crazy stuff the world doesn’t like in trade agreements. Trade agreements are not terribly useful if other countries don’t sign them. I can write up the “Harold Feld Trade Agreement” that says I am entitled to duty free liquor whenever I travel, but if no one signs it I’m still gonna pay VAT when I do the Whisky Trail. So when USTR and the other trade associations involved in negotiating ACTA let Hollywood drive the crazy train, and the rest of the world decides they don’t like the crazy stuff, you don’t have a trade agreement, you have a train wreck.
So let me give USTR and the non-Hollywood industries involved right now in negotiating trade agreements like the Trans-Pacific Partnership Agreement (TPPA) another spot of free advice. (I won’t even try to suggest this to Hollywood, given they are still in denial there was ever anything wrong with SOPA.) Do not let hollywood hijack your trade negotiations to put in even crazier stuff no one in the world likes, wants, or will sign on to. I know Hollywood has probably already been pushing for plenty of crazy stuff and doing crazy things like saying Canada’s not moral enough to join you all on the Group W Bench at the TPPA negotiations. But it is never too late to take them aside and talk some sense into them. You can point out that we now have yet-another-study from academics rather than paid industry flunkies showing that peer-2-peer piracy has little impact on U.S. box office revenue and that Hollywood could do a lot to cut down on international piracy by making content available (for a fee) in a time and manner that customers want rather than insisting on an out-dated, complex “release windows” system developed in the old days when folks either went to theaters or waited ’til it showed up on DVD. So perhaps Hollywood should ratchet back the crazy stuff, or risk getting cut out of the negotiations entirely so every one else can get a trade agreement done?
If any of you are interested, we at PK have a few suggestions for how to handle intellectual property issues in a non-crazy way. Feel free to browse. But I confess I don’t have much hope of industry trade orgs that want a trade agreement to actually promote trade — rather than further their regulate the Internet agenda — staging an intervention at USTR any time soon. Given the awesome and terrible power of industry association Pinky oaths, I expect the trade associations and USTR will continue to believe everything Hollywood tells them and ignore the rest of us trying to talk some sense as anti-globalization whackos who don’t want to pay for movies and music. But while you’re still riding the Hollywood crazy train you may want to ask yourself this question: “What is the point of spending years writing a trade agreement that other countries won’t sign?”
Remember, any time you want to get off the Hollywood crazy train and avoid the train wreck, we’re happy to talk.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”