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Europe's ACTA Freak Out: How Hollywood Holds Back the Trade Agenda

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For years, Hollywood has used the negotiation of international trade agreements to push for heavy regulation of the Internet in the name of "fighting online piracy." As a general rule, the United States Trade Representative (USTR) and the non-Hollywood industry trade associations (with the notable exception of the tech industry) involved in the negotiation of these trade agreements let Hollywood have its way. (The public, needless to say, are generally not consulted at all.)

So it was with the Anti-Counterfeiting Trade Agreement. Although negotiations began in 2006, Hollywood's insistent demands for a "censorship firewall to fight piracy" held up negotiations for years. Last summer, with ACTA negotiations stalled for two years because of Hollywood insistence adding all kinds of regulate-the-internet crazy stuff, I and my employer Public Knowledge gave the USTR and the industries pushing for ACTA some friendly advice: "Drop the crazy stuff." And indeed, only when Hollywood dropped its most ridiculous demands did the U.S. finally get the ACTA Treaty signed in October 2011.

But Hollywood still got plenty of crazy stuff into ACTA. The furor over Hollywood's failed effort to get its "firewall of censorship" through the Stop Online Piracy Act (SOPA) woke up the people of Europe to the crazy stuff in ACTA. As a result, we have seen massive protests throughout Europe and many European Union members (and the EU itself) backing away from ACTA. This should raise a rather important question for the U.S. negotiators and the trade associations that have, until now, allowed Hollywood to drive the crazy train on these negotiations: what good is spending years negotiating a trade agreement no one wants to sign? Officially, the U.S. government wanted ACTA to stop people from bringing actual counterfeit goods into the country, or marketing actual counterfeit goods abroad. Thats why a lot of industry groups and companies wanted ACTA. Not because of they wanted to regulate the Internet and prop up the traditional business models of the movie and music industries, but to deal with the folks making warehouses full of fake Louis Vitton bags and knock-off Omega watches. But with the backlash against the Hollywood crazy train, the agreement has become a train wreck. So we won't have countries working with us on the actual problem ACTA was supposed to address -- mass production of counterfeit real goods -- because Hollywood made this all about making sure no one streams Mars Needs Moms before the DVD release.

Unfortunately for those supporting the "free trade" agenda, ACTA is not unique. Whenever there is an international trade agreement negotiation, Hollywood jumps in, takes over, and starts driving the crazy train off a cliff by demanding all kinds of nonsense in the name of "stopping piracy." This invariably holds things up (as noted above, ACTA got held up two years) because the rest of the world does not like the crazy stuff that Hollywood keeps selling. Nevertheless, the official position of the U.S. government has generally been to let Hollywood drive the crazy train through Trade Agreement Town. This makes everyone else in Trade Agreement Town captive to Hollywood's crazy demands.

I and others occasionally tried to tell the USTR and the other industry groups involved in international trade agreement negotiation: "Guys, you are not actually doing anyone a favor by letting Hollywood drive the crazy train off a cliff. If you want a real trade agreement that deals with actual trade stuff, you need to stop letting Hollywood hijack your trade negotiations and tell them to stick to stuff the rest of the world will accept." But then the MPAA and RIAA come along and say: "Ignore those whacky Public Knowledge hippes! They are just anti-globalization free trade haters who love piracy and hate capitalism and freedom. Do not even listen to their lies!"

Sadly, this has pretty much cuts off any intelligent conversation, as apparently all trade associations involved in international trade negotiations swore some kind of Pinky Oath to never ever question what Hollywood tells them. But here's the problem: Trade agreements are not terribly useful if other countries don't sign them. I can write up the "Harold Feld Trade Agreement" that says I am entitled to duty free liquor whenever I travel, but if no one signs it I'm still gonna pay VAT when I do the Whisky Trail in Scotland. So when USTR and the other trade associations involved in negotiating ACTA let Hollywood drive the crazy train, and the rest of the world decides they don't like the crazy stuff, you don't have a trade agreement; you have a train wreck.

So let me give USTR and the non-Hollywood industries involved right now in negotiating trade agreements like the Trans-Pacific Partnership Agreement (TPPA) another spot of free advice. (I won't even try to suggest this to Hollywood, given they are still in denial there was ever anything wrong with SOPA.) Do not let hollywood hijack your trade negotiations to put in even crazier stuff no one in the world likes, wants, or will sign on to.

I know, Hollywood has already been pushing for plenty of crazy stuff and doing crazy things like saying Canada's not moral enough to join you all on the Group W Bench at the TPPA negotiations. But it is never too late to take them aside and talk some sense into them. You can point out that we now have yet-another-study from academics rather than paid industry flunkies showing that peer-2-peer piracy has little impact on U.S. box office revenue and that Hollywood could do a lot to cut down on international piracy by making content available (for a fee) in a time and manner that customers want rather than insisting on an out-dated, complex "release windows" system developed in the old days when folks either went to theaters or waited 'til it showed up on DVD. So perhaps Hollywood should ratchet back the crazy stuff, or risk getting cut out of the negotiations entirely so every one else can get a trade agreement done?

If any of you are interested, we at Public Knowledge have a few suggestions for how to handle intellectual property issues in a non-crazy way. Feel free to browse. And remember, any time you want to get off the Hollywood crazy train and avoid the train wreck, we're happy to talk. At the very least, the next time someone from Hollywood starts babbling about how you need this or that crazy Internet censorship thing to "fight online piracy," ask yourself this question: "What is the point of spending years writing a trade agreement that other countries won't sign?"