Escaping the Digital Enclosures 1: Networked Battlegrounds produced by the Anti-Counterfeiting Trade Agreement (ACTA)
File-sharing has continued to expand over the past decade regardless of some landmark legal wins against peer-to-peer companies, torrent aggregator websites, and individual file-sharers. Whenever popular torrent indexing sites like SuprNova and Mininova have been legally forced to remove copyright-infringing materials and/or monetise exchanges by charging users for access to copyrighted materials and passing on royalties, alternative sites have sprung up almost immediately.1 Infinitely reproducible media forms circulate via interlinked electronic clusters and scalable global networks. Those who have legally acquired cultural artefacts insist that they possess the right to digitise and circulate them over the internet, just as books and pamphlets have circulated informally since the advent of another world-changing technology, the printing press. The social intention remains the same, the sharing of ideas and cultural expressions. Enthusiasts share their passions for popular culture and/or obscure specialist media by participating in online discussion fora on their favourite torrent sites. Circulation encompasses not only content, but also ideas and information about that content and its makers, more evidence that file-sharing networks extend beyond the technological to the social domain.
In 2008, faced with escalating battles on multiple jurisdictional and industry sector front lines, Big Content shifted gear by proposing a three-pronged global strategy requiring tight cooperation between sovereign governments and Internet Service Providers (ISPs) (Yu 2010: 1374; Bridy 2011: 44). Firstly, transglobal corporations through their professional organisations insisted that ISPs around the world monitor their customers' downloading behaviours and discipline copyright infringements. Secondly, they lobbied national governments to enforce such ISP co-operation by introducing legislation which preferenced (often transnational or multinational) corporate interests over citizens. The new ‘graduated response’ or ‘three strikes’ protocols gathered steam, with governments within Britain, Europe, Canada, and across Asia drawing up relatively similar laws to present to their parliaments (Bridy 2011: 44). Finally and most significantly, they pushed for a plurilateral treaty—the Anti-Counterfeiting Trade Agreement (ACTA), which would ensure compliance with above demands by harmonising copyright laws including those related to file-sharing.
US industry groups have thus far refrained from pushing their own government to adopt a ‘statutorily mandated’ system, opting instead to pursue ‘voluntary agreements’ with ISPs (Bridy 2010: 45).2 This is of particular import given the Wikileaks’ Cablegate revelation that in 2008 the US government had demanded that the Spanish government must ‘curb file-sharing’ by instituting an ‘extra-judicial process to shut down websites’ or else they would be placed on the US ‘annual “Special 301” intellectual property watch list’ (Anderson 2010; Hinze 2010).3 Such political interference demonstrates how the US entertainment industry works with the US government to ‘bully governments to create harmonised laws that continuously ratchet up copyright protection, one country at a time,’ asserts Gwen Hinze (ibid.) from the Electronic Frontier Foundation (EFF). A cursory summary of the ACTA negotiations and machinations provides evidence that global networks of activists, scholars, and file-leakers have influenced the course of events in the asymmetrical battle for control of digital content.
The Anti-Counterfeiting Trade Agreement (ACTA) has been described by legal scholar Margot Kaminski (2011: 2) as an ‘attempt to introduce maximalist intellectual property standards in the international sphere,’ and ‘primarily a copyright treaty, masquerading as a treaty that addresses dangerous medicines and defective imports.’ As such, it has had the realm of file-sharing clearly in its sights. ACTA represents the apex of coordinated international lobbying since plans for the treaty were officially announced in October 2007 (after some years of informal discussions suggests key ACTA researcher Michael Geist) (2009b, np). This treaty involving 38 countries has been negotiated through a ‘private network of, by and for invited corporate insiders’ operating outside of ‘conventional’ policy-making venues such as the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO), notes activist and author David Bollier (2009, np). The lengthy in-camera deliberations have avoided public scrutiny by denying Freedom of Information requests by special interest groups and interested scholars (Geist 2009a, np).4 A major concern is that this secretive process enables ‘policy laundering,’ that is, the use of ‘Trojan horse’ international treaties to justify ‘controversial legislation within one’s own country,’ smuggling in ‘more expansive substantive rights’ disguised as ‘better-coordinated enforcement’ (Public Knowledge, quoted in Bollier; Bridy 2010: 7). Such non-transparency masks the all-encompassing, minutely-detailed agendas of a networked elite class as it did with other comparable agreements (MAI, TRIPS, GATT, NAFTA). In this case treaty signatories represent the interests of those at the pinnacle of the convergent media, entertainment, and telecommunications industries, and thus can ride roughshod over the desires of millions who have made their own circuits of production and exchange.
Ordering attempts inevitably produce disordering functions, which generate their own socially productive momentum, and so the cycle continues. Over time negotiations details and actual draft documents leaked out from the ACTA info-bunkers, following the cyber-libertarian principle that ‘information wants to be free.’ Leaks increased the pressure on governments to open up the process, and more recent leaks in February 2011 from the Wikileaks Cablegate tranche of documents have revealed how heavily the US government was pressuring certain signatories to unequivocally outlaw and punish file-sharing.5
What little was known about ACTA came from a compilation of Discussion Memos entitled 'Japan – US Joint Proposal' and marked US Confidential (to be declassified in 2018) which had been posted on Wikileaks in April 2009 (Anderson (2009). The leaked material contained various drafts of the proposal in 2008 (dated May 8, 25 June, 7 July, 23 September, and 16 October).6 Its physicality is intriguing, a poorly copied artefact bearing the signs of stealthy work by a mole, photographing the document page by page. as it rested on someone’s lap (perhaps even during an ACTA meeting). Some other leaked documents by anonymous whistle-blowers appear to have been liberated in a less harried way. Cultural activists, privacy campaigners, legal experts, and interested others have used these raw materials to raise serious concerns about the treaty’s intentions and substance.7 The negotiating texts concretise the anonymous negotiators’ intentions, revealing which parties will benefit from the treaty's provisions and which will be disempowered. Moreover, subtle linguistic shifts in the various iterations reveal the subtext of the tensions amongst the negotiating parties themselves, producing disorder within the ranks of the ordering project itself, as both Bridy's (2010: 7-11) and Kaminski’s (2011: 26-44 ) analyses demonstrate.8
In March 2010 the European Parliament voted 633 to 13 to force the disclosure of the negotiating text, forcing a ‘one time release’ of the ACTA negotiating text on 16 April 2010 (Love 2010, np; see also Yu 2010: 1377-8). Subsequently only the United States has blocked additional releases of the draft treaty. In contrast European representatives had recognised that secrecy had exposed the negotiations to attacks from numerous quarters, disorder within the info-realm generating its own transglobal constituency sharing information, ideas, strategies, and resources. In a November 2010 Resolution the European Parliament noted that the ‘public criticism of the secrecy of the negotiations’ clearly signalled the ‘political unsustainability’ of closed processes, and recommended that the ACTA Committee ‘operate in an open, inclusive and transparent manner’ (Rinaldi et al 2000, np).
When the final, legally-verified version of ACTA (dated 3 December 2010) was released publicly, governments expediently adopted a position of soliciting feedback, pledging for example that a ‘decision on signing any final new ACTA treaty will only be taken after full public and parliamentary scrutiny (Australian Department of Foreign Affairs and Trade 2011). Until all parties ratify ACTA, a global network of opponents continue to pool their resources to raise public awareness and lobby governments about striking a balance between individual rights and corporate interests in the digital domain. To date this network is composed primarily of legal and media scholars, and internet rights groups, with grass roots file-sharers on dedicated P2P fora such as TorrentFreak remaining relatively silent on the subject (although ACTA news posted on the geek news site Slashdot attracts numerous comments). Possibly this disconnect happens because such P2P fora tend to focus on events visibly related to P2P such as lawsuits against The Pirate Bay, other facilitating entities, and individuals. ACTA’s clandestine negotiations centre on establishing a meta-level of control. Perhaps because file-sharers already flaunt existing laws with impunity the threat of this invisible power is of little interest to them. Fora commentary demonstrates a commonly-shared conviction that P2P culture always will find a way to circumvent new restrictions, whether legal or technological.
The ‘most worrying provisions’ of ACTA’s final draft included now ‘subtler’ ‘legal and monetary pressure’ forcing ISPs to ‘police their networks and users themselves,’ noted La Quadrature du Net ('ACTA: Updated Analysis of the Final Version' 2010, np). This ‘weapon’ benefiting the entertainment industries was ‘incompatible with democratic imperatives and...fundamental freedoms’ (ibid.). For example, Article 23.46 set out criminal sanctions for ‘aiding and abetting’ which could be ‘used against Internet technical intermediaries and technology providers as a way to force them into accepting “cooperation” with rightsholders’ (ibid.). Furthermore, Article 27 covering Enforcement in the Digital Environment specifically identified ‘infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes,’ a provision that La Quadrature du Net envisaged could indirectly criminalise ‘blogging platforms, P2P networks, free software, and other technologies that contribute to dissemination of culture and knowledge on the Internet.’ Finally, a non-binding paragraph allowed ‘rights-holders to obtain private data regarding the users of Internet service providers, without a decision of a judge,’ raising further concerns about due process and electronic privacy issues.9
Inevitably, the unabated resistance to ACTA from below has propelled Big Content to formulate new proposals for reigning in file-sharing and other unauthorised forms of circulation. The most recent project is the multilateral Trans-Pacific Partnership (TPP), the ‘son of ACTA’ which would export core features of the United States’ Digital Millennium Copyright Act to a diverse agglomeration of countries including Australia, Brunei, Chile, Malaysia, Singapore, and Vietnam (Anderson 2011). Described by Michael Geist (cited in ibid.) ‘everything [the US] wanted in ACTA but didn't get,’ it is being drafted in secret but as with ACTA the boat has holes.
Over time online nodes in the resistance circuits develop distinct cultures and expanded networks around them, expanding potential leaked document depositories from where revelations ripple outwards to countless technology news and mainstream media sites. For example, someone deliberately chose Knowledge Ecology International as the drop box for the first leak of TPP material, perhaps because this new treaty combines the interests of both Big Content and Big Pharma (see 'Trans-Pacific Partnership, Intellectual Property Rights Chapter, Draft – February 10, 2011' 2011). In particular Article 16: Special Measures Relating to Enforcement in the Digital Environment devotes 4 pages dedicated to the proposed obligations of ‘service providers’ in monitoring and punishing copyright infringers (ibid. 32-36). Within hours a synopsis posted on Slashdot had attracted around 300 comments (''Son of ACTA' Worse Than Original' 2011). And with Wikileaks becoming more unstable and problematic (for both technical and social reasons), alternative safe havens for hot data will come into being. GlobaLeaks (2010, emphasis added) is one such example, launched by a geographically-dispersed group of hacktivists working on an open source ‘worldwide, anonymous, censorship-resistant, distributed Leak Amplification Network supporting whistleblowers all around the world.’
'ACTA: Updated Analysis of the Final Version' 2010, La Quadrature du Net, viewed 15 March 2011, http://www.laquadrature.net/en/acta-updated-analysis-of-the-final-version
Anderson, N. 2009, 'Canada, US pledge "transparency" on ACTA', Ars Technica, viewed 15 February 2011, http://arstechnica.com/tech-policy/news/2009/04/canada-us-pledge-transpa....
Anderson, N. 2010, 'How Wikileaks killed Spain's anti-P2P law', Ars Technica, viewed 19 February 2011, http://arstechnica.com/tech-policy/news/2010/12/how-wikileaks-killed-spa....
Anderson, N. 2011, 'Son of ACTA: meet the next secret copyright treaty', Ars Technica, viewed 15 February 2011, http://arstechnica.com/tech-policy/news/2011/03/son-of-acta-meet-the-nex...
Anti-Counterfeiting Trade Agreement 2010, no 3 December 2010, Canberra, viewed 15 March 2011, http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verifi...
Australian Department of Foreign Affairs and Trade 2011, 'Anti-Counterfeiting Trade Agreement (ACTA)', Commonwealth of Australia, viewed 20 March 2011
Bollier, D. 2009, Et tu, Obama? Open Government Suffers Another Blow, On the Commons, viewed 20January 2011
Bridy, A. 2010, 'ACTA and the Specter of Graduated Response', American University International Law Review.
Bridy, A. 2011, 'Is Online Copyright Enforcement Scalable?', Vanderbilt Journal of Entertainment & Technology Law, Forthcoming.
Geist, M. 2009a, Putting Together the ACTA Puzzle: Privacy, P2P Major Targets, viewed 20 January 2011, http://www.michaelgeist.ca/content/view/3660/125.
Geist, M. 2009b, The ACTA Timeline (or Everything You Need To Know About ACTA But Your Government Won't Tell You), viewed 15 March 2011, http://www.michaelgeist.ca/content/view/3786/125
Geist, M. 2010a, ACTA Guide, Part Two: The Documents (Official and Leaked), viewed 20 January 2011, http://www.michaelgeist.ca/content/view/4730/125
Geist, M. 2011, ACTA Watch, viewed 15 March 2011, http://www.actawatch.org
'Globaleaks' 2010, viewed 15 March 2011, http://www.globaleaks.org
Hinze, G. 2010, Not-So-Gentle Persuasion: US Bullies Spain into Proposed Website Blocking Law 17 December 2010 edn, Electronic Frontier Foundation, http://www.eff.org/deeplinks/2010/12/not-so-gentle-persuasion-us-bullies...
Kaminski, M. 2011, 'An Overview and the Evolution of the Anti-Counterfeiting Trade Agreement.', PIJIP Research Paper no. 19., http://digitalcommons.wcl.american.edu/research/17
'KEI's ACTA timeline' 2011, KEI's ACTA timeline, Knowledge Ecology International, viewed 22 January 2011,
Kirk, R. 2010, 2010 Special 301 Report, Office of the United States Trade Representative, Washington.
Love, J. 2010, 'White House Blocks Disclosure of Secret Intellectual Property Trade', The Huffington Post, viewed 20 January 2011, http://www.huffingtonpost.com/james-love/white-house-blocks-disclo_b_704...
''Son of ACTA' Worse Than Original' 2011, Slashdot, viewed 16 March 2011, http://yro.slashdot.org/story/11/03/11/2134224/Son-of-ACTA-Worse-Than-Or...
Rinaldi, N., Schaake, M., Alvaro, A., De Sarnez, M. & Weber, R. 2010, Motion for a Resolution on ACTA – preparing for the consent procedure, European Parliament, viewed 20 January 2011, http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B7-2...
'The Anti-Counterfeiting Trade Agreement (ACTA)' 2011, The Anti-Counterfeiting Trade Agreement (ACTA), Knowledge Ecology International, viewed 21 January 2011, http://keionline.org/acta
'Trans-Pacific Partnership, Intellectual Property Rights Chapter, Draft – February 10, 2011' 2011, viewed 15 March 2011, http://keionline.org/sites/default/files/tpp-10feb2011-us-text-ipr-chapt...
'WikiLeaks Cables Shine Light on ACTA History' 2011, La Quadrature du Net, viewed 15 March 2011, http://www.laquadrature.net/en/wikileaks-cables-shine-light-on-acta-history
Wolchok, S. & Halderman, J.A. 2010, 'Crawling BitTorrent DHTs for fun and profit', paper presented to the 4th USENIX Conference on Offensive Technologies, Washington, DC.
Yu, P.K. 2010, 'The Graduated Response', Florida Law Review, Vol. 62, pp. 1373-1430, 2010.
This is a section of a chapter (revised abstract attached) I am writing for a special issue of the Journal Global Networks entitled ‘Networks of Disorder.’ Editors: Jonathan Marshall and James Goodman. Forthcoming in 2012.
- 1. Site cloning is easy on a technical level (Wolchok & Halderman 2010), although community-building is a lengthier, less predictable process. As major copyright owners increased their surveillance of torrent sites, in 2001 the ‘BitTorrent community’ responded with technological measure by deploying ‘decentralising tracking systems based on distributed hash tables (DHTs)’ (ibid. 1). However, each party in the ‘BitTorrent arms race’ could exploit this trend by using new techniques for ‘rapidly crawling’ the DHTs. Computer scientists Wolchok and Halderman (ibid.) built a BitTorrent search engine indexing over one million torrents in a couple of hours using just one computer, proving that DHT crawling could rapidly ‘bootstrap’ torrent discovery sites to enable new sites to be created ‘almost immediately’ when existing ones were shut down. However, their experiments also demonstrated that it is possible to ‘monitor BitTorrent user activity by crawling only the DHTs and not the centralised tracker infrastructure or torrent discovery sites’ (ibid.). Thus over 16 days of monitoring they observed ‘1.5 million torrents downloaded by 7.9 million IP addresses; which effectively enabled them to measure ‘what content each user is sharing,’ a clear boon to content owners ready for litigation of individual file-sharers.
- 2. Perhaps this reluctance is due to entrenched libertarian values, as US-owned entertainment companies have vigorously lobbied other countries to legislate for mandatory graduated response systems. See Footnote 3.
- 3. On 3 December 2008 major daily Spanish newspaper El Pais published the 20 point ‘sensitive but unclassified’ cable from the US Embassy in Spain to Washington. Point 2 of the cable cut to the chase:
We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer-to-peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer-to-peer file sharing is legal. Third, announce that the GoS will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009.
As Spain ignored these demands, the US put Spain on its watch list, where as of 2010 it is sandwiched between Romania and Tajikistan (Kirk 2010). See also the Electronic Frontier Foundation’s (EFF) chronology of events by Hinze (2010). Wikileaks was instrumental in bringing the US government’s role to public attention in Spain according to the EFF, triggering a (successful) public campaign against a proposed government act which would have acquiesced to US demands.
- 4. Given the United States’ role in driving ACTA , when the Obama Administration was installed in 2008 some observers anticipated that the treaty’s secrecy provisions would be relaxed. But instead the US government determined that the draft text was a ‘matter of national security,’ withholding even the negotiators' names from FOI requests ‘while sharing the negotiating text secretly with hundreds of industry lobbyists’ (Love 2010, np).
- 5. Wikileaks gave internet freedom advocacy organisation La Quadrature du Net exclusive access to ACTA cables revealing the Unites States’ ‘prime role’ in the negotiations. See 'WikiLeaks Cables Shine Light on ACTA History' (2011) for a brief analysis and links to raw cables from embassies in Tokyo, Mexico, Rome, Stockholm and Lisbon.
- 6. Although unable to relocate this specific document at the post-Cablegate Wikileaks mirror sites (or anywhere else), I had previously downloaded and saved it. A notice on a Wikileaks mirror page has all links to the document broken. Clear copies of some drafts within this compilation are now linked from the Leaked Documents page on the ACTA Watch website of Michael Geist (2011).
- 7. Michael Geist, law professor at the University of Ottawa (2010a np, 2011), has played a leading role in analysing such leaked content particularly as it applies to Canada, maintaining an online repository of key documents, as has James Love through the auspices of Knowledge Ecology International (see 'The Anti-Counterfeiting Trade Agreement (ACTA)' 2011). While a number of legal activists from organisations such as Electronic Frontiers Foundation (EFF) have weighed in on the ACTA debate, law professor Annemarie Bridy's (2010) comparative analysis of leaked documents stands out for both its thoroughness and non-partisan approach.
- 8. Through its various iterations, the draft ACTA treaty centred on internationally-cooperative mechanisms to enforce Intellectual Property Rights (IPR) covering copyright, trademarks, and patents ('KEI's ACTA timeline' 2011). While organised counterfeiting operations were one target, its definition of ‘pirated copyright goods’ encompasses material circulated via file-sharing (Anti-Counterfeiting Trade Agreement 2010: 4). When a near-final draft was publicly released, some earlier provisions including the mandating the implementation of harsh punitive regimes against individual file-sharers had been omitted ('ACTA Consolidated Text, Informal Predecisional/Deliberative Draft, 2 October 2010'). This ‘ACTA Ultra-Lite’ treaty revealed just how much ground the United States had given away in regards to its internet provisions (Geist 2010b np). Provisions relating specifically to ISPs created no new substantive obligations on them to yield to rights owners demands. Pressure from inside and outside the formal process that the treaty be ‘more protective of the parties' sovereign prerogatives in areas relating to substantive rights, liabilities, and exceptions’ had caused this apparent retreat (Bridy 2010: 8). Nevertheless ‘graduated response’ measures remained ‘tacitly endorsed’ by both the preamble and provisions promoting ‘greater cooperation between rights owners and service providers’ (ibid. 1).
- 9. The text of this non-binding provision below is interesting, as it accords all rights to the content owners and the State, and none to ISPs nor internet users (Anti-Counterfeiting Trade Agreement 2010: 16).
[Article 27, Paragraph 4] A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.