Parliament’s influential international trade committee on Thursday voted 19-12 against merely deferring its decision on adopting the Anti-Counterfeiting Trade Agreement (ACTA) until the  European Court of Justice has decided whether it would violate the EC’s fundamental freedoms.

The vote means parliament is more likely to adopt the committee’s view against ACTA in its July 4 plenary meeting, regardless of whether the court rules it lawful or not.

There is a growing realisation that, in the online age, digital piracy, physical counterfitting and patent abuse can best be tackled through global consensus on intellectual property legislation. But digital liberties activists have mobilised a campaign against ACTA, citing “secret” inter-country negotiations over how digital piracy must be handled.

The agreement was signed in October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the U.S.; it was later signed by the European Union and some of its member states. But the commission will find it hard to adopt ACTA without parliament’s consent.

In a Brussels press conference following Thursday’s vote, Swedish Pirate Party MEP Amelia Andersdotter hailed it as a “great victory”. German Left MEP Helmut Scholz called it “a victory for participatory democracy”.

Scottish Labour MEP David Martin, who has been ACTA’s rapporteur (investigator), said: ”This was not an anti-intellectual property vote, this was a vote against ACTA.” Martin said ACTA was too vague on the role ISPs must play in online IP enforcement, its proposed sanctions for copyright abuse and other definitions.

There is, of course, a counter-logic here. If ACTA was so vague, why did it stir up so vehement and specific a campaign against it?

German CDU MEP Daniel Caspary, speaking to journalists, lamented ACTA’s outright discarding rather than refinement: ”If you’ve got a cold, you should try to cure him, not kill off the patient. We said we wanted to improve ACTA. If we reject it in plenary in two weeks’ time, we’re going to have to start again, people are going to be put at risk of having counterfeit goods again.”

Martin continued: “I welcome the active engagement of citizens, which is not always the case for legislation going through this parliament. When it came to defending our intellectual property or civil liberties, I’m pleased the committee voted to protect our civil liberties.”

Although some EU member states had already consented to ACTA, Martin said they would not be allowed to sign up if the EU does not.

If the parliament votes against ACTA, many observers will look to the European Commission for what, if anything, it plans to do next with the agreement.

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As general counsel for Avvo, a social media startup that offers an expert-only Q&A forum and profiles and ratings of lawyers, doctors and dentists in the U.S., I’ve seen firsthand how those with the means to do so will exploit any opening possible to try to silence speech they do not like. I’ve responded to hundreds of lawsuit threats and lawsuits against Avvo on grounds ranging from privacy to commercial misappropriation to unfair competition to copyright or trademark infringement — all for activity that is soundly protected by the First Amendment.

The takeaway is simple: any attempt to regulate speech online — whether in service of “stopping piracy” or “defending against cyberattack” — must be ruthlessly interrogated for how it will be abused. Because it will be abused. Those with censorious impulses will push the four corners of the law as far as possible to silence speech they don’t like. It is depressingly common to see the mere threat of a lawsuit cause a withering of speech online. It’s vitally important that we recognize and call out the certainty that even well-intentioned laws that impact expression will be used as a bludgeon against the open expression of information and ideas online. In addition to opposing SOPA and its ilk, here are three areas where companies can take a stand to protect free speech on the Internet.

1. Retain anonymous comments.

Are anonymous comments less credible than those attributed to a person? Of course. Does anonymous commentary increase the likelihood of “flaming” attacks and false statements? Naturally. But anonymity has its place. Anonymous authorship of the Federalist Papers allowed the founders of the republic to circulate ideas unsullied by the personality of those espousing them. Anonymity offers protection from retaliation and harassment. And in the case of today’s online forums, it allows the posting of sensitive material (think, for example, of doctor reviews by patients) free of privacy concerns. Ultimately, it should be up to readers to determine whether they trust an anonymous comment rather than censor the message altogether. The cure for speech you don’t like shouldn’t be to curtail it, but to create an environment in which more speech can flourish.

2. Support existing laws enabling online forums. 

Credit for much of the robust sharing of ideas and information online can be laid at the feet of Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA). Although the DMCA in particular was controversial among free speech advocates when it was enacted, it created a good balance between the needs of online forums and those of rights holders. And by immunizing interactive service providers from liability for third-party comments, CDA 230 enabled the flourishing growth of user-generated content, from reviews on Yelp to videos on YouTube. These two stalwarts are the sort of laws those of us in the online community should stand behind — laws that allow breathing space on the Web without limiting free speech. Attempts to gut these laws — whether legislatively (SOPA) or judicially (Viacom’s continuing battle with YouTube) — should be actively resisted by all who care about robust and free-flowing interaction online.

3. Enact a national anti-SLAPP law.

“Strategic lawsuits against public participation” are a form of “lawfare,” a use of the courts to bully speakers into staying silent for fear of incurring the costs of defending a lawsuit. As a company that rates and profiles lawyers, Avvo has seen more than its share of threatened and actual lawsuits. Fortunately, Avvo is based in Washington, which — along with California, Texas and a number of other states — has a robust anti-SLAPP statute. Such statutes level the playing field by allowing those exercising their First Amendment rights to quickly dispose of lawsuits designed only to silence them. And as the last attorney to sue Avvo discovered, losing a SLAPP suit in Washington state also means paying our attorney fees and a $10,000 fine.

But not every state has such protections. In New York, Florida and dozens of other states, it’s still far too easy for speech to be chilled by the prospect of defending against uncertain and costly litigation. To help change this, the Public Participation Project (PPP) is spearheading the effort to enact full anti-SLAPP protections at the federal level. Such a law would end forum shopping in defamation cases and be a powerful development for free speech online. I’m on the board of the PPP, and I encourage everyone with an interest in free speech to support its good work.

As the Internet becomes more and more vital to our daily lives, it is inevitable that legislators will continue to propose laws restricting it. Many of these laws will be cast in moral tones, imploring us to “think of the children,” protect people from cyberbullying or save us from criminals. These may be laudable goals, but it’s incumbent on the Internet community to ask whether the price in free speech online is worth it. And it’s not going to be. There’s no way to restrict just the bad and preserve only the good. Limits and restrictions invariably favor one class of speaker over another, impoverish the discourse and reduce transparency. Ultimately, the answer to concerns about the messiness of communication online lies in what caused the messiness in the first place: Keep the discussion as wide open as possible.

Josh King is vice president of business development and general counsel of Avvo, a free social media platform that provides a health and legal Q&A forum and a directory of doctors and lawyers in the U.S.

Image courtesy of Flickr user Newtown grafitti.

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By now, most of us have grown pretty used to hearing the word “theft” used to describe what happens when someone downloads a movie or a song that isn’t theirs, and certainly media and entertainment lobby groups make heavy use of such terms — as do people like News Corp. founder Rupert Murdoch when talking about what Google News does with his newspaper content. But as Rutgers law professor Stuart Green describes in a New York Times opinion piece, this terminology is fundamentally flawed, since copyright infringement is a very different thing from theft of physical property.

Why does this matter? Because seeing it as theft makes it easier to accept ridiculous court decisions and/or unreasonable government legislation that vastly over-reaches what copyright is supposed to cover.

Green notes that the Justice Department is busy prosecuting a massive legal case against MegaUpload, the file-hosting and sharing site run by the colorful German hacker Kim Dotcom. But while the documents filed by the FBI and others for the indictment included enormous estimates of the amount of digital property allegedly “stolen” by the company — just as the record industry has in cases against Napster and other sites — it isn’t clear that MegaUpload has done anything different from what YouTube and others do. And whatever other things the company might be guilty of, theft isn’t among them.

Intellectual property is unlike any other kind of property

As with the Napster and Grokster and other similar cases, the argument made by the movie and music and software industries is that all of the files that are shared on such sites represent a theft of their property — their “intellectual property,” to use another term that is filled with contradictions and actually muddies the debate even further. Obviously, all of the people who downloaded movies and software from MegaUpload did so instead of buying a physical copy, and therefore it represents theft — just like walking into a movie store and taking a DVD. Except that it doesn’t represent anything of the kind, as Green notes:

If Cyber Bob illegally downloads Digital Joe’s song from the Internet, it’s crucial to recognize that, in most cases, Joe hasn’t lost anything. Yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully.

But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft.

As Green and others too numerous to mention have pointed out, downloading or copying something doesn’t represent the loss of anything tangible at all, which is what makes “intellectual property” such a misnomer. If I take your car or your coat, you no longer have them — that represents real theft. And even the argument that the content industries fall back on, which is that downloading or copying represents the loss of a potential sale, doesn’t hold water. As Tim O’Reilly of O’Reilly Media has noted, many of those who copy his books likely would never have paid money for them in the first place.

This is about more than just legal terminology or semantics

But this is all just semantics, right? Not really. For one thing, seeing it as theft makes it easier to steamroll right over issues like “fair use,” which is an incredibly important principle and one that is unique to copyright law (there are distinctions around public use of land in property law, but that’s a topic for another day). In a nutshell, the principle of fair use allows both individuals and corporations to take copyright content and use it in various ways without being guilty of infringement — it’s like a get-out-of-jail-free card, and it was included in copyright law to make creative use of content legally defensible.

One of the problems with fair use, however, is that it is incredibly complicated and filled with grey areas: as I described in a recent GigaOM Pro report on Pinterest (sub. req.) it is a four-factor test in which judges try to assess the original intention of the work, the nature of the infringing use, the amount of the original that is used, and the effect on the market for the original. In some cases the courts have decided that Google should be allowed to use images in search, because thumbnails are seen as a “transformative use.” Exceptions are also often made for journalistic or educational purposes.

But seeing any form of copying or unauthorized use as theft makes it virtually impossible to justify any of these actions, and makes it easier to see them as a crime.

And so we have the Authors’ Guild fighting for years to prevent Google from copying books so that they can be easily found, because the group argues that the simple act of copying them — even if only small portions of those books ever see the light of day — amounts to theft. And YouTube gets a takedown notice when a user’s video happens to have a song playing faintly on a radio in the background while her son dances. And laws like SOPA and PIPA and too many others to mention are drafted to prevent the widespread “theft” that is allegedly stealing billions from intellectual property holders.

And all the while, content industries deliberately ignore the fact that the intended purpose of copyright law is to promote innovation and creativity, not to smother it. Are there real issues around how creators get compensated for their work, and how we can accomplish that most effectively in an era of unlimited copying? Sure there are. But using terms like “theft” and “piracy” doesn’t get us any closer to solving those very real issues in any meaningful sense — it pushes us further away.

Post and thumbnail images courtesy of Flickr users David Goehring and Seth Anderson

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The law, which was snuck through parliament shortly before the 2010 election, introduces new measures and an ex-judicial process for tracking down and punishing those believed to be illegal file sharers. That includes a three-strike system that could see persistent offenders lose their connections or be sued. BT and TalkTalk had spent two years arguing that the proposals were not compatible with European law, but that didn’t chime with three top judges who made their ruling that the law was legal and enforceable on Tuesday.

So what next?

In the wake of widespread protests against proposals such as SOPA and ACTA, there is chatter online that the law is out of sync with the public mood.

The BBC is even reporting one legal expert’s view that BT and TalkTalk could look to bring in support from those previous protests to give them more consumer power.

Adam Rendle, a copyright specialist at international law firm Taylor Wessing, said he expected BT and TalkTalk to now appeal to the Supreme Court. He added that it was also likely the companies would step up lobbying efforts, perhaps harnessing support from groups recently protesting against the US Stop Online Piracy Act (Sopa) and the EU’s proposed Anti-Counterfeiting Trade Agreement (Acta) . . .

“When the Digital Economy Act itself was passed in the dying stages of the Labour government, there was a huge amount of disquiet that this kind of important legislation was being introduced without proper scrutiny. That kind of disquiet didn’t result in the kind of action we’ve seen against Acta and Sopa. It wouldn’t be surprising to see a lot more public outcry than there was when the Act was first passed.”

Will that work? It seems unlikely.

True, the widespread anger over SOPA and ACTA means there is now a broader base for protest than when the DEA was first pushed through. But the evidence that there will be an uprising in Britain seems thin on the ground.

For a start, there has not been much local appetite for this so far. While the recent protests against ACTA that occurred all over Europe saw thousands take to the streets in countries such as Poland, the response in Britain was muted: Only around 200 demonstrators gathered in London to protest outside the offices of rights holder groups, despite the effort to mobilize support from organizations like the Open Rights Group.

This is not just the British stiff upper lip at play, either: Last summer’s riots and recent major marches against austerity measures being put in place by the government show that for certain issues, public demonstrations can happen. For whatever reason, the Digital Economy Act hasn’t been able to spark passion on the same scale.

Behind it all I think there are two problems that anyone opposing the DEA has. The first is that this is already the law, which makes it tricky — and expensive — to oppose. SOPA was a proposal, able to get shot down before it turned into reality. So in part, the time for protest has passed.

The second problem is a rhetorical one. Assuming there is a public out there to be motivated, there has been little success in doing that — unlike SOPA, which mobilized Internet users from all over the world.

Even those who have continued to fight against it have rarely made an argument about how it will affect real people. Instead of BT and TalkTalk saying, “We think this is a bad deal for our subscribers because it will kill legitimate Web services, drive prices up and lead to many people being unfairly punished,” they have largely framed their arguments around the costs they will incur if they have to implement the law.

While they are, obviously, concerned with protecting the rights of ISPs, without making a stronger case for protecting the rights of users there is never going to be much traction. And without public support, you can’t apply political pressure to try to prevent the law from being put into practice.

The ISPs say they will “continue to fight.” But if their arguments don’t change, I suspect it will make no difference.

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Measures like these, also know as three strikes, are seen as controversial in the European Union. France instituted its own three-strikes legislation earlier this year, and Torrentfreak reported just this week that  ISPs have started to receive IP addresses of alleged French infringers. However, the IPRED2 framework that would institute such measures in all of Europe has lost steam in recent months. The report passed today is widely seen as an attempt to bring the subject back into the spotlight.

In fact, a large portion of the report is directly addressing three-strikes sceptics within the European Commission. For example, it states that it “[d]oes not share the Commission’s view that the principal body of laws with respect to IPR enforcement is already in place.”

The report also mentions the need for further education on copyright issues. Apparently, those European kids just don’t know what’s right and what’s wrong, and the report “(s)tresses the need to educate young people to enable them to understand what is at stake in intellectual property and to identify clearly what is legal and what is not, by means of targeted public awareness campaigns, particularly against online IPR infringement.”

The report isn’t binding, but it could help to set the tone for further copyright directives, as well as Europe’s take on the controversial ACTA negotiations. It was drafted by French parliamentarian Marielle Gallo, who is a member of the same party as French President Nicolas Sarkozy. The European parliament passed the report today with 328 votes, with 245 parliamentarians voting against it.

Image courtesy of (CC-BY-SA) Flickr user Jan Beckendorf.

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Ever since the ACTA partners — among them the U.S., E.U., Canada, Japan, South Korea, Australia, New Zealand, Mexico, Morocco and Singapore — announced negotiations plans in October 2007, ACTA has been dogged by controversy over a near-total lack of transparency. Early talks were held in secret locations with each participating country offering virtually identical, cryptic press releases that did little more than fuel public concern. Now that the ACTA text is public, some might wonder whether there’s still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe it’s time to actively support ACTA.

It’s not — at least not this version.

Still secret

From a transparency perspective, the text release still feels like the exception to the general secrecy rule. The ACTA governments have revealed that the next round of negotiations will take place in Switzerland in June, but currently refuse to provide a specific location or dates. Moreover, the official release scrubbed all references to country positions (such information was available in a previously leaked version), so as to U.S. government claims that ACTA is fully consistent with current U.S. law, at this point we have to take their word for it.

Different region, different rules

Of even greater concern are the provisions themselves. Because of the large number of substantive rules and the differences in domestic law among the ACTA countries, fears about specific provisions vary from region to region. In the U.S., ACTA might means the rules for obtaining injunctions would have to be changed, removing some of the balancing safeguards that currently exist. In Europe, ACTA’s privacy implications have generated concern from data protection authorities and the prospect of mandatory statutory damages, which has led to the multimillion-dollar file-sharing lawsuits in the U.S., would represent a major change in the law there.

Virtually every member country would have to amend its own rules and regulations: Japan would have to change its laws to require ISP policies on allegations of subscriber infringement, Australia would need anti-camcording rules, New Zealand would have to change its anti-circumvention rules and Canada would be forced to adopt a notice-and-takedown system similar to the one found in the U.S. Of course, the many countries excluded from the ACTA talks — including China, Brazil and India — would likely face pressure to conform to ACTA standards and if they complied, even more dramatic changes.

Behind closed doors

Beyond the fundamental reshaping of intellectual property law on a global scale, ACTA is also reframing how those laws are made. The alphabet soup of international organizations typically responsible for such issues — WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD –- are all far more open, transparent and inclusive than ACTA.

Moreover, final approval of ACTA raises significant constitutional issues. In the U.S., ACTA is being treated as executive agreement in a blatant attempt to sidestep Congressional approval. Across the pond, the European Parliament has demanded far greater involvement in the ACTA process, but has been largely rebuffed by the European Commission, which heads its delegation.

Public pressure helped make ACTA marginally better, but the release of text only confirms many of the fears regarding the substance of the treaty. Add in the ongoing transparency and process concerns and it is clear that public engagement on ACTA is needed now more than ever.

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Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.

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