US Trade Rep weasels and squirms when cornered on an airplane and questioned about secret copyright treaty

Read this account of James Love's conversation with Ambassador Ron Kirk, the head US Trade Representative, on the question of why the Draconian Anti-Counterfeiting Trade Agreement is taking place in secret. Love cornered Kirk on a United Airlines flight from Geneva to DC following a WTO Ministerial meeting. Love asks Kirk why the treaty isn't public, and Kirk's answers are -- at best -- total weaselling and at worst fabrications.

I had a chance to talk to Kirk about the secrecy of the ACTA agreement. He said the ACTA text would be made public, "when it is finished." I told him it that was too late, and the public wanted the text out now, before it is too late to influence anything.

Kirk said he was aware that there were those who wanted the text public, but the issue of transparency was "about as complicated as it can get," and Kirk didn't want people "walking away from the table," which would likely happen if the text was public, he said.

I said that it was untrue that IPR negotiations are normally secret, mentioning as examples that drafts of the other IPR texts, including the proposed WIPO treaty for disabilities and the climate change agreement language on IPR, as well as several drafts of the FTAA text and the 1996 WIPO copyright treaties had been public. Kirk said that ACTA "was different" and the topics being negotiated in ACTA were "more complex."

I brought up to Kirk that the USTR had shown ACTA text to dozens of corporate lobbyists and all of its trading partners in the ACTA negotiation, and the text was only secret from the public. Kirk did say USTR was discussing this issue with the White House and its trading partners, but that was about all he could say at that moment.

Ambassador Kirk: People would be "walking away from the table" if the ACTA text is made public (via The Command Line)

• [mdh]

  where is the harm in “interested parties” walking away from the table?

  Why do I care if a corporation throws a tantrum?

• [Antinous / Moderator]

  Now we’re going to have the Mustelid Anti-Defamation League after us.

• [insert]

  a.) If these “interested parties” are corporations, then I don’t care if they leave. Law shouldn’t be made when only one party gets to influence it; it’s even worse when that influence is made explicit through this secrecy crap.

  b.) If those interesting parties are other countries, then they should be able to leave. What the fear of these countries leaving means is that the countries are trying to pull a fast one on their citizens. And America — as the beacon of freedom whose God-given duty is to spread Democracy ™ across the face of the planet — should not be licensing other countries to pull fast ones on their citizens.

  (But hey. Who thought America still lives up to its ideals? Naive me.)

• [pplassm]

  I keep seeing Shatner in a toga and a red sash.

• [Anonymous]

  The only reason why I think these so-called ‘interested parties’ would leave the table if this is made public is if some detail of this agreement would cause severe PR issues and public outcry. Whether they be countries or corporations this doesn’t bode well at all. Every news post I read about this issue makes it sound more and more ominous. =/

  In my opinion all of this secrecy shows a complete lack of respect and total disregard for the people whom this agreement will directly affect. You know our world is in a really sad state when business interests take priority over citizens in nearly every country in the world.

  Le sigh…

• [Humptydank]

  I’d like to give Ron Kirk credit for not punching James Love in the nose.

  If someone “cornered” me on a flight and started peppering me with questions I would be hard-pressed to be so diplomatic.

  That, I suppose, is why he’s the ambassador.

• [Anonymous]

  Why does the litigation capital of the world i.e. America not o i don’t know SUE everyone involved from America about this?

  I know your government can block any lawsuits against it with sovereign rights or something but not everyone involved is the government.

  Make a class action suit against them make the biggest one ever hell as this is an international problem make multiple class action suits around the world get everyone who is interested and will be effected as part of the class action.

  Now here’s the catch this will not change anything, the class actions will probably be denied by the courts at the request government and the ones against the companies and other non governmental entities will be dropped by the request of the government as well

  BUT that’s all you want, if that happens you will get air time and paper space like crazy making this secret negotiations public and you will have prof that the governments of the world are conspiring with commercial entities something that they do not confirm now.

  Well? Anyone got the guts to try this?

• [jamielove]

  Dear Humptydank,

  In my world, anyone can talk to a government officials. Kirk was returning from a WTO ministerial meeting with a contingent of his staff, in a plane full of people, like me, who attended the same meeting. The WTO is an institution that puts the minutes from the TRIPS council on the Internet, and which routinely released and debated negotiating drafts of proposed norms for intellectual property. In Geneva, Kirk met with WIPO IP officials. In WIPO drafts of agreements, and country submissions are put on the Internet, and the public can attend meetings, and even speak during negotiations. So the question comes up, why is ACTA so secret. I don’t think I have to sign an NDA or bundle campaign contributions to ask that question.

• [japolo]

  on behalf of the mustelid anti-defamation league, i’d just like to illustrate a few points that nerds and many weasels share:

  * a common myth of their overwhelming odor
  * playfulness
  * curiosity
  * a love of naps
  * a love of tubes
  * awkward running
  * a love of sugary snacks

  many mustelids represent nerds interests within the animal communicty. from their early beastmaster film appearance to warehouse 13 and starship troopers, mustelids have long supported and enabled nerd and nerd-based interests. comparing them to lawmakers is unfair and cruel!

• [jamielove]

  I would also like to add a few additional thoughts. Ambassador Kirk was I thought very open and candid about why the ACTA is now secret, and quite cordial and willing to talk, not only to me but to others, like Laurie Wallach from Public Citizen, who was in the same airplane, and who joined the conversation, to ask questions about certain aspects of the WTO round negotiations, which Kirk seemed quite open to discussing.

  There was no effort to justify a “national security” rationale for the ACTA secrecy. What Kirk said on Dec 3 is very much the same as the statements that Luc Devigne and Pedro Velasco of DG Trade have said in several public meetings — namely that the secrecy is designed to protect the negotiators from criticism from domestic constituencies when they are considering controversial proposals.

  What I do object to is the suggestion that the ACTA secrecy is “normal” in trade negotiations. All other important multilateral negotiations on IP norms have been much more transparent, and the trend even for non-IP trade neogtiations is for more transparency. ACTA secrecy is a turning back of the clock, and is a quite important precedent for that reason, even if you don’t care about ACTA per se.

• [floraldeoderant]

  What I don’t understand is, why don’t the people on the, let’s call them ‘correct’ side, push financially too? Companies with tons of cash, and a vested interest in keeping people online (hiiiiiii Google). Let’s face it, if people start being permanently disconnected by their ISPs, that directly affects Google’s bottom line, at best damaging profits, and at worst destroying their business model.

  My theory is that internet businesses (especially rich ones with the extra cash to spare) know they’re in the right, and so they assume logic and justice will prevail and thus they don’t need to engage in lobbying/bribing. Which is simply not true. (Gaiz. Srsly).

• [jamielove]

  As an example of what is a global norm for transparency, consider this from an WIPO SCRR meeting in 2004, discussing a proposed WIPO treaty for broadcasting. It was read, I believe, by Cory Doctorow, who was attending WIPO meetings as an accredited observer, a practice NOT allowed in ACTA.

  http://www.wipo.int/edocs/mdocs/copyright/en/sccr_11/sccr_11_4.doc

  84 A representative of the Electronic Frontier Foundation (EFF) signaled that the technological measures in Articles 16 and 17 were not required for the protection of broadcasters’ signals and should not be incorporated in the proposed treaty, for four reasons. First, Article 16 required Member Countries to adopt extensive mandates over everyday technologies like televisions, and radios, thus constraining technology development. Article 16 envisioned broadcasters “marking” broadcasts, cable transmissions and webcasts with something like the “broadcast flag”. Secondly Article 16 was not a good way to protect the rights of broadcasters, as technological protection measures similar to those proposed had not succeeded in protecting intellectual property rights in other cases. Rather, such measures had imposed punishing collateral costs on the public interest that outweighed any benefit to rights holders. Thirdly, technological measures for broadcasts were unnecessary as there was no evidence that broadcasters had inadequate incentives for investment in broadcast technology. Rightsholders could already use technological measures to protect their copyrighted content in broadcast signals as a result of the 1996 Internet Treaties. Fourthly, Article 16 would harm the dissemination of information in the public domain, as broadcasters would be able to restrict the distribution of content that was not copyrightable, was not in the public domain or was made available for distribution by its creator. Finally Alternative V in Article 16(2) posed additional threats to consumers, scientific research and technological innovation, by creating a strict liability offense for the public and imposing a technology mandate for encrypted signal receiving devices.

• [Anonymous]

  The real answer is simple, and it should be stated. The USTR is afraid that the entertainment industry would not get everything it wants if the public were to find out how anti-consumer the treaty is.

• [demidan]

  Thank you for your article. I wish You were sitting in along side the weasels, fighting for us (with a cattle prod at hand).

• [Ernunnos]

  namely that the secrecy is designed to protect the negotiators from criticism from domestic constituencies when they are considering controversial proposals.

  But of course. How dare domestic constituencies criticize their betters? They should just shut up and be ruled.

• [phoomp]

  Does people “walking away from the table” mean politicians wouldn’t be getting their RIAA/MPAA bribes? If so, then I completely understand why they want to kowtow to the entertainment industry and keep the negotiations/arm-twisting secret.

• [hijukal]

  “Ambassador Kirk”? Awesome!

• [MasterSauce]

  Thanks for the article and asking those questions.
  This whole ACTA business is one giant clustercuss.
  Keep up the good fight.
  ~Sauce

• [michael holloway]

  If the contents we’re public MORE interested parties would want to come to the table, rather than some of the very elite stake holder invitees leave.

  ACTA it seems to me is a play by the most powerful players to sew up a deal that serves their interests, and forces the rest of the planet to take it. It’s an imperial enterprise.

  For example, why isn’t the biggest producer of content in the world, India, not at the table?

  Michael Holloway

• [spanish pantalones]

  Cory, why say Ambassador Kirk weaseled and a squirmed when “cornered” on an airplane, when it is clear from James Love’s comment that Kirk was “open”, “candid” and “willing to talk”?

  • [Cory Doctorow]

    Because he lied. He stated that IP negotiations are usually undertaken in secret. This is absolutely, categorically untrue. That is called “weaselling” and “squirming.”

    • [jamielove]

      I agree with Cory. The claim that they are just following standard operating procedures for IP negotiations is categorically untrue. If you known it is untrue, but say it anyway, it is a lie — delivered to people you think won’t know any better. Cory has attended a number of WIPO negotiations, including those where a bad treaty, the WIPO broadcast treaty, was stopped, precisely because people could discuss the proposed text, and attend meetings and talk to delegates and blog about the negotiations. If you were part of the fight over the broadcast treaty, you would not see the ACTA secrecy as a very benign decision.

      I do not think there is anyone at USTR who is engaged in the debate with other federal agencies over the ACTA secrecy, who has not had the opportunity to review countless memos and submissions to the USTR on the transparency issue that spell these issues out in great detail. (http://keionline.org/content/view/246/1)

      In government there arecases of strategic ignorance. There are also cases of government misinformation or lies. With ACTA many governments give out statements that are technically true but give most people the wrong impression, on purpose. Many government are also lying. I expected much more from the US and EU, and from some of the other ACTA participants.

  • [Itsumishi]

    How was he open? What was he willing to talk about?

    “about as complicated as it can get”.

    ““was different” and the topics being negotiated in ACTA were “more complex”".

    These are not examples of being open. Those are examples of answering a question without providing any information whatsoever.

• [Daemon]

  The more supposedly interested parties walk away from this stupidity, the happier I shall be.

  Heck, they should be walking away from it based simply on the fact that it’s secret in order to keep people from walking away. That’s not exactly a good sign.