Google DC Hosts ACTA Panel Discussion

On Monday, January 11, 2010 Google’s DC offices hosted a panel discussion about the secretive Anti-Counterfeiting Trade Agreement (ACTA) moderated by the Washington Post’s Consumer Technology columnist Rob Pegoraro.  The panel consisted of Steve Metalitz, a partner at Mitchell, Silberberg & Knupp LLP who represents numerous clients in the publishing, recording, motion picture, software, music and database industries, James Love, the Director of the non-profit Knowledge Ecology International, Ryan Clough, legislative counsel to Congresswoman Zoe Lofgren from San Jose, CA and Jonathan Brand, from Jonathan Brand PLLC who represents organizations such as the Library Copyright Alliance and the Computer & Communications Industry Association.

The panel began by looking at the problems that ACTA is attempting to resolve.  Metalitz emphasized the extent to which the economy relies on the copyright industries for both maintenance and growth.  He maintained that ACTA is necessary to protect these industries and therefore to protect the economy.  Clough reminded us that the industries that rely on exceptions to copyright also contribute heavily to the economy and that ACTA might limit their ability to function, especially internationally.  He underlined the need for a balance between enforcement of copyright and exceptions to copyright to maintain a healthy economy.  The concern articulated by Clough and echoed by Band and Love was that ACTA falls too heavily on the enforcement side of the balance and disregards the necessity of exceptions. 

The discussion then turned to the possibility that ACTA would require changes to the current state of US law.  Metalitz explained that since ACTA is being negotiated as an Executive Agreement, by definition it must be consistent with US laws.  Clough contextualized the point by stating that although Metalitz was technically correct, an Executive Agreement still imposes obligations and constraints on the government and on its ability to change copyright laws in the future.  Band went on to describe the complexity of the current state of the law given that it is judge-made and constantly in flux.  It is therefore hard to know if something is consistent with US law when US is always changing.  Metalitz believed that it is not a matter of specifics within a law.  Rather, ACTA is about broad principles that all countries must agree upon and therefore no specific changes will result.  Love strongly disagreed.  He believed that the lack of transparency in ACTA negotiations is clear proof that governments are embarrassed by the changes being proposed. 

This began a point of contention between Metalitz and Love.  Love specifically asked Metalitz to concede that ACTA negotiations ought to be made public.  Love maintained that the lack of transparency is a blatant attempt to marginalize the public while empowering those who have access to the information.   Additionally, he insisted that transparency would likely result in a more consumer-friendly agreement, and this is why the Chamber of Commerce wants to preserve secrecy.  Metalitz countered by arguing that the level of transparency surrounding the ACTA negotiations is actually higher than in most trade agreement negotiations.  He believed that the secrecy is necessary in these types of governmental negotiations and that transparency could only be achieved with the consent of the other negotiating parties.  Band did not think that transparency would lead to a collapse of the negotiations, although it might lead to a narrowing of the issues.  Clough furthered the discussion by reasoning that transparency will likely be forced in the future in order to defend against the allegations being made against ACTA.  He added, however, that transparency ought to come sooner rather than later, and that if it only comes after an agreement has been signed by the President, then it has come too late.

The panelists went on to answer questions from the Google Moderator and from audience members.  The first question was about safe-harbor protection for uploads, and Band explained that ACTA will still include safe-harbors and that the US will probably not have to change its laws.  Metalitz hoped that, given that most countries involved in ACTA have safe harbors, those that do not (including Canada) would be “brought in to the 21st century”.  The next question asked was about anti-circumvention exceptions and Clough offered that the issue is fundamentally about how exceptions are articulated.  If exceptions are permitted while enforcement is required, this might result in an unbalanced understanding abroad of American copyright interests.  Band explained that the long term goal of ACTA is to pressure those countries who are not participating to eventually agree to the negotiated terms.  Love warned that the unintended consequences of ACTA could be the most harmful and this is why transparency is so important. 

Pegoraro had the last word and gave the example of watching a DVD on his Linux laptop.  He reminded us that banning copyright infringement technology entirely, some of which has legitimate uses, may not make any actual difference in the real world. 

Jessica Weiss is a law student from the University of Ottawa working this semester as a Fellow at PIJIP.  The teaser image was placed online under a creative commons license by mfophoto.


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