ACTA Misreporting: Anatomy of a Smear

Managing the blogosphere is hard work. The very well funded Michael Geist recently showed up in an MSM tech blog going on about his currently favorite moral panic—so to speak–the Anticounterfeiting Trade Agreements (or “ACTA”).

One can’t help noticing that there has been a blister pop of activity trashing ACTA by the anti-creator labor crowd, including Lessig’s Change Congress (I thought he was out of the copyright destruction game?) and other signers of a letter to President Obama.

ACTA is throwing up the usual fund-raising muck from those in the Destroy Artists coalition. After you’ve read this post ask yourself which of these headlines is more correct:

Geist Given More Millions By Canada For Saving Canadians From Yankee Content Industries ACTA Threat”

or

“Public Knowledge Excludes Geist, Leverages Google Influence With Obama to Preserve Anti-Jobs/Pro-Piracy Provisions in ACTA”

As MTP readers know, the opposition to ACTA centers around the bureaucratic imperative of NGOs of dubious funding sources that are used to bullying creators in Geneva and who have been excluded from the ACTA negotiation process at the drafting stage. Like any other treaty, these groups will be able to lobby to the full extent of the law when ACTA is ratified by the member states, a mix of economic players. It should not be surprising that they are trying to elbow their way to the table by any means necessary in case someone found a way to do business without them.

So the ACTA blister pop truly is a moral panic without legitimacy or provenance. But that isn’t good enough for those who want to be sure that all professional creators—including journalists, recording artists, songwriters, authors, directors, screenwriters and actors–are unemployed. Not to mention unit production managers, electrical workers, makeup artists and set designers.

Thus there is much sound and fury from Geist, Public Knowledge and the EFF & Co. about “secret treaties” compared to the Patriot Act which is total gobbledygook. The latest moral panic by these groups about ACTA stems from a leak by an inside man at the recent ACTA meetings among the member states.

Nate Anderson at Ars Technica described the leaked document as “a written account of an oral report on a draft document that was itself still being altered.” In other words—shakey.

Yet Geist got the MSM to write a story based on—what exactly? Something that happened in that place down near the place we used to go back in the day but not too far?

Geist tells the trusting reporter that ACTA is wrapped in secrecy due to the “entertainment industry” (note that he carefully excludes journalists and their employers from the secret group–journalists who are definitely getting hurt as badly as other creators).

But if you actually read the leaked memo, i.e., fact checked, you might note that it says the following:“[The US Trade Representative] indicated that these internal discussions were sensitive due to different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet “freedom” on the other). Consequently, they have to delay the release of the initial text longer than initially expected.”

“Supporters of internet ‘freedom’.” I wonder who that might be. Whoever it is, it would appear that the ACTA talks are not quite so secret after all, eh? In fact, Ars says: “In fact, we know it was still being altered at the time because lawyers for groups like CCIA and Public Knowledge were invited to see the draft, comment on it, and later see it again when some changes had been made.” My, my, that sounds like negotiating to me.

I thought it was a secret negotiation controlled by the evil Yankee content industries? Of course what Geist & Co. are up in arms about is trying to promote the idea that ACTA means that 3 strikes/graduated response/HADOPI type regulation will become the law in the ACTA signatories and some jobs in the professional creative industries (such as those represented by IATSE, DGA, SAG, AFTRA) might be preserved from the Google onslaught and that there might be some quid for the pro quo of safe harbors. Can’t have that.

But the leaked memo goes on:“On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.”

That soft quid pro quo is a long, long way from what the anti-artist bullies are going on about. (It also appears that the leaker asked that the paper not be published immediately per Wired, so apparently Geist violated that request.)

So the reference to “unprecedented level of secrecy” in Geist’s presentation “The ACTA Threat” does not seem to be much secrecy at all, particularly because groups like Public Knowledge (who consistently oppose professional journalists, songwriters, artists, illustrators photographers and other creators) seem to clearly be involved.

Despite the shout out by Ars to their BFF (“We love you Corey!!”), even they seem to think there much less to the Geist Great Secrecy Obsession than meets the eye to a large extent. (This may explain why in the Great Circularity Geist doesn’t seem to mention Ars and vice versa. See “The Circular Awards 2009—now with added Astroturf”.) But check out the Great Circularity of this moral panic:

Geist obtains the leaked ACTA document and writes a speculative post based on the memo—a blog about a written account of an oral report on a draft document that was itself still being altered.

Then Geist’s post gets picked up by the EFF “Deep Thoughts” blog and Huffington and Puffington who make it even more inflammatory than Geist post also gets picked up by the Ars BFF, who goes all the way to comparing it to the hated Patriot Act.

And then Geist fans flames with what appear to be reinterpretations of his own posts and feeding what seems clearly to be misinformation to the press, who don’t bother to fact check.

But then Ars and more serious folks (or said another way, folks who have been burned before) actually take the time to review the source material before going to print, although many journalists, exemplifying citizen journalism at its finest, simply rely on the “moral panic” (such as http://www.guardian.co.uk/technology/2009/nov/11/acta-trade-agreement).

Geist then continues to fan the moral panic in other press outlets that don’t have the time or inclination to find out what’s going on: http://www.thestar.com/news/sciencetech/technology/article/722987–law-bytes-secret-talks-threaten-copyright-policy

So which headline is the right one?

It’s clearly not a “secret” process. There’s a negotiation going on that the USTR at least is seeing to it involves Public Knowledge (and presumably Google, although that remains to be seen).

So what’s the problem?

Somebody not getting enough attention?