ACTA Proposal Leaked: Confirms Wealthy States Trying to Evade Consensus; Impose Strict Enforcement

Fresh off the presses from Slashdot and Wikileaks: the “discussion paper” on the proposed “Anti-Counterfeiting Trade Agreement” (ACTA) that has circulated among wealthy trademark and copyright owning states (as well as a select group of industry lobbyists) has just reached the public. Here’s the description attached to the document by an anonymous Slashdot reader:

“The proposal includes clauses designed to criminalize the non-profit facilitation of copyrighted information exchange on the Internet, which would also affect transparency sites such as Wikileaks. The Wikileaks document details provisions that would impose strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods. If adopted, the treaty would impose a strong, top-down enforcement regime imposing new cooperation requirements upon Internet service providers, including perfunctory disclosure of customer information, as well as measures restricting the use of online privacy tools.”

All very true. In fact, the implications of the agreement reach even further – threatening the business interests of firms in innovative, knowledge-based sectors of the economy by imposing overly-harsh restrictions and enforcement measures. This would likely exacerbate the chilling effects of existing restrictions that have brought American and European corporations numerous defensive patent suits, bogus trademark infringement claims, etc.

The USTR and its trading partners have no business supporting a proposal like this. ACTA threatens citizens’ rights, businesses interests, and would create unnecessary layers of bureaucracy and state intervention. It should never be signed.

James Love on the definition of “counterfeit”

The incomparable Jamie Love has an excellent post today on the definition (and mis-definition) of “counterfeit.” It may seem like an arcane concern, but in the context of debates about generic medicines, unlicensed software and music reproduction, as well as other kinds of exchange in informational goods, the terms we use and the conceptual framing of legal debates make a huge impact.

Shameless Plug: “The Problem with ACTA” essay in Knowledge Ecology Studies

The interdisciplinary open-access journal, Knowledge Ecology Studies has published a short essay of mine about the proposed “Anti-Counterfeiting Trade Agreement” (ACTA) in their current volume.

My paper looks at some of the history behind ACTA and considers the most troubling aspects of the agreement.

As currently proposed by the United States (through the office of the U.S. Trade Representative), the European Commission, Switzerland, and Japan, ACTA threatens business interests, civil liberties, consumer rights and democratic governance.

If such an extensive laundry list of bad sounds improbable to you, I encourage you to read the essay (and contact me). The agreement could be signed within the next few months – unless sufficient opposition forms to alter its scope.

I’ll be writing more about ACTA (and other misguided attempts to impose overly-restrictive IP enforcement regimes) here in the coming weeks. In particular, I plan to analyze some of the economic and strategic reasons why more restrictive IP enforcement will not enhance innovation, market growth, or security. My sense is that the folks behind this treaty have either forgotten (or ignored) these realitie

Whether or not you have any interest in my essay, I highly recommend the other work in KE Studies. This issue includes an entertaining and thought-provoking interview with Bruce Sterling; a rigorous analysis of prize systems by Ron Marchant; and an important study (in French) on the impact of new restrictive IP regimes on access to HIV/AIDS anti-retrovirals in Morocco by Gaelle Pascale Krikorian, Kamal Marhoum El Filali, and Hakima Himmich.

(Photo credit: “Orange plug,” by nic0 (via Flickr). CC-BY-NC-SA)

Berkman@10: end of day one

I think I managed to make it out of the cocktail hour at the end of the day without any trouble. Now I get to relax and prepare for tomorrow’s schedule.

Today included a number of great talks. I also enjoyed my conversations with the other attendees.

This is the first conference I’ve been at with such intensive self-coverage: between the IRC backchannel, the twitter feed, the del.icio.us tags, and the live-question tool hosted by the amazing Berkman geek-cave crew (yeah Mike and Sebastian!) the information overload is pretty intense. Sorta like drinking from the firehose…

In case you’d like to follow the self-coverage, you can subscribe to the full feed of conference material (as tagged and submitted by the attendees)

Benkler and Wales on Cooperation, Crowd-sourcing

Back at the Berkman@10 Conference after lunch and watching the Q&A following a discussion of networked cooperation between Yochai Benkler and Jimmy Wales.

Meanwhile, over on twitter & the conference backchannel, people seem to be getting bent out of shape about the fact that Wales made a comment implying that he thought “crowdsourcing” was a bad way to think about networked collaboration. It sounded to me that what Wales meant was that the way some folks in the private sector talk about crowdsourcing (hypothetical sample quote: it’s like outsourcing to India, only cheaper…) misses the point of cooperative social action entirely.

I’m sympathetic to that idea (for many reasons). First and foremost because the possibility of distributed peer-production of knowledge (like Wikipedia) raises a number of fundamental questions about the nature of business and markets. In theory, we’ve wound up developing markets to resolve a large scale collective action problem of goods distribution.

As Esther Dyson is currently clarifying in her comment, the big problem is that many folks in the private sector just don’t understand that networked collaboration offers an alternative to how we build social institutions of exchange. Instead, some folks think its just another tool for profit-making and (in the worst instances) rent-extraction.

What if networked cooperation made it so that scarcity were not a precondition of successful (i.e. profitable) exchange? What if we could do better than markets (as we currently know them)?

That’s the promise of the commons.

Zittrain’s Dark Materials?

Watching Jonathan Zittrain do the short, stand-up version of his new book, The Future of the Internet and How to Stop It here at Berkman@10, it strikes me that he’s been reading a lot of Phillip Pullman lately.

The Internet runs on “Dark Energy” (dust) and we need to watch out for attempts to capture, box, gut, undermine that energy.

A great, thought-provoking talk – points to a lot of critical questions about the questions of governance, cooperation and innovation that will determine the networked commons for decades to come.

I will definitely be picking up the book and I can’t recommend JZ’s public speaking talents highly enough

Getting ready for Berkman@10 Conference

Yep, just like the badge over on the right says, I’m going to the Berkman@10 Conference tomorrow morning.

Should be an exciting event (just click the badge for more details). While I have no intention of live-blogging, I will try to post some periodic updates here about the presentations and conversations that happen there.

The list of attendees is pretty awesome (and intimidating!), definitely a star-studded crew.

I won’t go into more detail, except to note that for purely selfish reasons, I was most excited to see that Ronaldo Lemos, Director of the Center for Technology and Society at FGV Rio and current chair-person of iCommons, will be in attendance. A couple of weeks ago, I saw him give a few excellent panel presentations at the Forúm Internacional de Software Livre in Porto Alegre. Now maybe I’ll have a chance to ask him some questions about the talk (and practice my portuguese).

The Sociology of Ownership

Copyright law guru William Patry takes a look at Robert Merton’s thoughts on the ownership of ideas.

The moral of the story: the notion of originality (and therefore ownership in some sense) is vastly overrated.

Patry links to a number of Merton’s essays as well as his ASA Presidential address. I’ll be following up since I’m long overdue to read a lot more Merton.

WIPO has a new Director General (and he’s from Australia)

Breaking news: William New at IP Watch reports that Francis Gurry of Australia has just been named the new director general of the World Intellectual Property Organization.

Gurry won by a single vote (!) over Brazil’s José Graça Aranha, signalling that while the widely discredited former director Kamil Idris may be gone, the organization remains divided between those who favor the position of the G8 countries and those who prefer the pro-development leadership of the Brazilian delegation in recent years.

Both Gurry and Graça Aranha were WIPO insiders and both have strong reputations as credible, professional public servants.

Unfortunately, the IP Watch story does not include any additional data on the breakdown of the vote. (At the moment, I’m not sure whether such information can become public).

Reply to Lance Armsrong op-ed: When markets fail, it’s time to re-think innovation

Lance Armstrong (yes, that Lance Armstrong) has an op-ed in the Wall Street Journal this morning in which he argues that America needs more action from legislators, voters, and pharmaceutical firms if it wants to win “the war against cancer.”

I won’t go into details about why (as someone with a chronic illness) I always resent the militaristic talk about fighting, battling, and generally making-war-on our diseases, but I will take a moment to offer a quick rejoinder to Mr. Armstrong’s arguments about how to improve our existing medical industry and institutions.

In advocating for increased research funding, Lance says:

But increased funding is only part of the solution. Government must streamline the laborious process of getting breakthroughs from lab to clinic. We can cut out red tape of questionable necessity that discourages innovation in the private sector.

Meanwhile, the private sector must work to ensure that Americans fighting cancer have access to new treatments and therapies. Our regulatory system should not hinder the fight against cancer, and our profit-based health-care providers should do more to address the fact that too few people can afford the treatments they deserve.

In as far as it goes, I appreciate this last bit about recognizing the problem of affordable care. In contrast, I think the first paragraph should be amended entirely.

Government should not merely streamline existing innovation laws to make it easier for the private sector to wrap up their “inventions” in monopolistic legal protections. A philanthropy-based response (where we depend on pharma firms to willingly surrender potential profits in order to treat more people) will not provide a sustainable solution to existing healthcare inequalities. The issue becomes even more intractable once you step back and consider the global crisis in accessible medicines that the existing patent-based system has spawned.

Instead, the U.S. congress should take the current failures of the pharmaceutical industry as a signal that it’s time to re-think the way we regulate knowledge-based goods (like medicines, software, and cultural products) more generally. When markets fail, governments need to intervene to re-structure the existing legal and institutional incentive system at the foundation of that market. Currently, the legal and institutional system of medical patents and proprietary knowledge has become an impediment to the world’s ability to treat illness in a timely and effective manner. We must address this problem with swift and decisive action.

I grant that the old system of proprietary knowledge has gotten the world quite far in its efforts to reduce the incidence of many diseases. It has also produced remarkable and historic medical innovations. Nevertheless, rather than cling to the old system because it has worked pretty well up to now, political leaders must recognize that the next big step in knowledge governance and medical innovation will not happen within the existing industry structure. The pharmaceutical firms may not like it, but their interests must be reconciled with those of the rest of society.

Congressional leaders, researchers, and corporate strategists must look to alternatives like research prizes, open innovation networks, and expanded public cost-sharing programs (among others) to bring us new “victories” in our so-called “wars” against disease. A renovated system of medical knowledge production, if thoughtfully researched and well-implemented, could truly work wonders.