A number of movie studios, record labels, and other copyright-holding companies (and their related trade associations) have also written a pro-ACTA letter to Congress, which I first saw posted on Ben Sheffner's blog. Minus the bizarre “distraction” claim, it follows the same basic pattern—that ACTA will benefit IP businesses and do nothing harmful.
The evidence for this? Still absent. Instead, the letter reiterates that changes in technology require online copyright enforcement, and thus a section of ACTA covering the Internet.
This probably shouldn't require repeating, but I'll say it again. A solution has to be tailored to solve the problem. Is ACTA properly tailored to solve copyright infringement? No one can tell. We can't tell whether it will appropriately curb infringement, and we can't tell if it will adequately preserve the rights of digital users and creators.
And once I get past my indignation over blind support for a secret international agreement (and perhaps I will, eventually), we're still left with the problem of the substance of the agreement. And herein lies a different problem entirely.
Anyone who's paid attention to the past several legislative debates on copyright knows that tiny, intricate changes in legislative wording can have massive effects on how artists, ISPs, and everyday users communicate. ACTA has every potential of being as significant.
And I don't think I'm violating any NDAs when I say that I seriously doubt that ACTA, either in the section I've seen or the several I haven't, will include a clause that uses the actual phrase “three strikes” or such.
Harmful language need not hit you over the head. It can be as bland and benign-sounding as
A copyright owner is entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed. The court may make either one or multiple awards of statutory damages with respect to infringement of a compilation, or of works that were lawfully included in a compilation, or a derivative work and any preexisting works upon which it is based.
That dry and plausible language, had it been passed as part of last year's IP enforcement bill, could have sent statutory damages skyrocketing for essays, music tracks, and later-edition books. Even that was too much for lawmakers who nonetheless were happy enough to pass the bill, once this language was removed.
So what worries me about the lack of transparency is that we have real worries beyond it. The secretive nature of ACTA is so egregious, that people are and should be outraged. But transparency alone isn't a cure-all. Once something comes into the sun, the difficult task remains of actually fixing its problems.
So for the task of making good IP policy, maybe the question of transparency is a distraction, after all. It's the distraction of a ticking bomb on a dinner plate, distracting from the fact that the meal itself might have been tainted.