Perspectives on ACTA – Andrei Tuch (Part II)

Andrei continues his reasoned analysis of ACTA, concluding that though it is not evil it must be rejected anyway.

ACTA is not evil : It must be rejected anyway – Part II

In Part I, I described why ACTA is not the intrinsically evil entity that people think it is. In fact, it is a relatively boring and toothless trade agreement that does not place any additional burdens on countries beyond what most signatories already have in their own national legislations.

So, am I going to go and withdraw my signature from the petition to stop ACTA, and tell my MEPs that they are free to vote for it if they can trade that favor for, let’s say, better agricultural subsidy terms for Estonian farmers?
I won’t. While ACTA’s text is nowhere near scary enough to warrant the level of public opposition it has received, the existence of that opposition is in itself a reason to reject the treaty.

As I have said before, if the majority of a democratic society expresses its desire sufficiently unambiguously, then that desire must be implemented, even if it is counter to the prevailing ideology. Governments and legislation exist only because it is not feasible to seek a referendum on each policy decision. At this stage, it would actually be technologically possible, but the general population does not have the time to thoughtfully consider the implications of a matter and arrive at an informed opinion. This is replaced by politicians running on broad platforms, and the people choose the broad direction they feel most comfortable with, then delegate their decision power. But the decision power stems from the people, and if the people actually care about an issue strongly enough, then that overrides the opinions of politicians, and the existing laws of the land.

ACTA is a touchstone issue. The anti-ACTA protests are not the result of the text of ACTA itself, or its implications; they are the result of an attempt to impose outdated behavioral models on an evolved technological world. And while a small layer of specialists may be genuinely worried about things like region-free DVDs or burdens on service providers, the majority of the human force of protesters is worried about something else. Everyone who saw the Wikipedia blackout and called their senator – for them, SOPA/PIPA/ACTA was only the last straw. Their patience was worn down, and their anger slowly built up, by the fight between rights holders and filesharers.

The Internet allows digital content – music, video, text, software – to be copied near-infinitely, at very little incremental cost. This creates a conflict. Consumers would like all content to be available for free. Rights holders would like to receive full retail payment for each created copy. Over the last decade or so, a dynamic balance has been reached. Businesses generally do not use pirated software, and this is heavily enforced. Consumers will prefer to use legitimate software and acquire legitimate content, where it has been made convenient for them, and where the price reflects the fact that the incremental cost of creating and delivering a copy has fallen dramatically since the days of cassette tapes. They do this partially on moral grounds, and partially because they recognize the importance of supporting the content creator. But consumers remain very aware of two things.

1. The content creator and the rights holder are often different entities. Consumers part with their money far more easily when it goes directly to the content creator (who then covers the expenses of production and delivery out of their revenue, and keeps the profit) than when it goes to a rights holder, who distributes that revenue in opaque ways. Even if the content creator makes a lot of money, people still resent the middleman. There is no sympathy for rights holders.
2. People are aware that the filesharing alternative exists. Where cumbersome artificial copy-protection measures makelife difficult for legitimate customers, and prices are perceived as being too high, they will turn to torrenting.

The origin of SOPA/PIPA, and the perceived threat of ACTA, is that the rights holders are attempting to legislate away the advances of digital technology, and the de-facto capabilities of consumers. This is why the public opposes ACTA. And the public’s voice must be heard. In a democratic state, if the will of the people is as clear as it has been made with ACTA, governments must submit to it, even if it is contrary to the interests of the rights holders.

If the public feels that intellectual property should not be protected or enforced in the way envisioned by ACTA, that’s just too bad for the rights holders. The public must then deal with the possibility that content will no longer be created if rights cannot be enforced. Implications must not be hidden from the people, and their impact must not be softened. But the will of the people must be paramount.

Digital rights enforcement is broken, and is actively counter to both the will of the people and the technological reality. That is what the web demos are protesting, really. Yes, ACTA was the catalyst because its communication was grossly mishandled, but it does come down to the issue that modern technology allows for free content distribution, and the rights holders have mostly chosen to ignore the change in technology and attempt to enforce outdated business models through legislative means.

It’s the same as the War on Drugs in that sense; if everyone is smoking weed, it’s stupid to put people in jail for carrying a joint. If everyone is downloading, it’s stupid to put people in jail for downloading.

One of the most preposterous things is that the issue has been successfully resolved for a different medium (analog-media copying) and works today. There was a hidden tax on every blank cassette tape and VHS tape sold, and that money was divided amongst rights holders. Even before that, there was the radio fee distribution scheme – radio stations pay to broadcast music, as do public venues that play music through their in-house audio systems. The equivalent solution – long since proposed and already adopted by some EEC members and other countries – is to place a flat levy on Web access, as payment for the implied piracy. This produces far less revenue for rights holders than they would like, but it resolves the moral issue while protecting the rights of consumers.

There are compromises to be made in the fight against piracy. As for ACTA, it is an issue of democracy. Because the people have chosen to reject it, and made their opinions heard, the politicians must reject it as well.

My signature is still on the petition.