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Kennedy Op-Ed: 'For Your Digital Freedom and Ours'

February 5, 2012

Institute Professor Michael Kennedy wrote this weekend that digital rights protests in the streets of Poland should be duly noted in the US and other countries wrestling to formulate internet policy. In an op-ed in the Providence Journal on Saturday, he called for common sense rules that protect innovation and creativity as well as intellectual property.

The full text of his op-ed follows:

Are the Poles crazy? Does the international Anti-Counterfeit Trade Agreement (ACTA) really endanger freedom? And why should that matter to us?

When Wikipedia went dark in protest on January 18, the digital public took notice that something was wrong. And wrong it was. Advocates of Internet freedom warned that legislation going through Congress – the Stop Online Piracy Act (SOPA), in the House, and the Protect Intellectual Property Act (PIPA), in the Senate – risked tilting the balance toward the interests of content producers defending corporate intellectual property, and away from the innovation/creativity through sharing that has characterized the Internet. The electronic mobilization on that day and the lobbying that surrounded it moved our representatives away from misconceived legislation. But that was only the tip of the iceberg.

Little did the broader public appreciate that the U.S. had already enacted the ACTA, in October 2011, as an international executive agreement, through which the U.S. will ultimately have to develop new legislation to be in compliance. We will face the Son of SOPA once the ACTA takes effect, if it takes effect.

Because the ACTA was not a treaty, it was not submitted to democratic deliberation. That could raise questions about its constitutionality, which could then let the U.S. public debate the ACTA. But it should watch Europe to prepare for that discussion.

On January 26, representatives of most of the European Union's countries, as well as the E.U.'s executive branch representative, signed the agreement. And the usual protests took place, similar to what happened in the U.S. around the SOPA and the PIPA. The techno-savvy jammed Internet discussion, but this protest had another element that shows a more dangerous derivative of democratic deficit around Internet governance.

Anonymous, the group best known for its Guy Fawkes mask from "V for Vendetta" fame, hacked and shut down Polish government Web sites on Jan. 22 to protest the ruling party's support for the ACTA. Although many denounced this kind of virtual violence, inspiring Polish Premier Donald Tusk to declare he would not be blackmailed, it also raised awareness in ways that recalled the Wikipedia blackout over the SOPA. Except this time, instead of legislators changing legislation following reasoned discussion, Anonymous hactivism highlighting Poland's executive fait accompli moved thousands of protesters into the streets.

Across more than 20 cities in Poland people, especially the young, marched to demand that their fundamental rights stay protected, and that their interests as citizens take precedence over the rights of content providers worried about losing money due to copyright infringement.

Most experts acknowledge that existing copyright laws are inadequate for the Digital Age. I participated in an International Bar Association meeting about similar issues a year ago; lawyers typically argued that we needed new legislation, with the debate between Internet Service Providers (ISPs) and content providers going back and forth. But the techno-savvy said the debate is all wrong: The technology is changing so fast that legislating copyrights without recognizing how the digital era creates new economies and new public goods is like trying to demand in 1930 that those on horseback should get a license because people with cars have them.

We need legislation that preserves the Internet as a public good and recognizes legitimate concerns over copyright. In particular, we need to recognize and support the new business models coming along with this new technology so that private interests and public goods can be in sync again. The ACTA is better than it was, but it is still not good enough. We also need to be concerned about basic democratic rights in the process. Here are just some of the concerns experts have identified: The ACTA extends the range of those liable for infringing on intellectual property (IP) rights too far, from those who directly infringe to those who enable copyright infringement, such as ISP's. Moreover, ISP's become subject to criminal prosecution, and not just civil suits, as they are now. And when we add in such vague notions as "indirect economic advantage," even such innocent things as noncommercial file-sharing could become cause for action. "Fair use" of copyrighted materials could disappear under the ACTA. With this liability, IP rights holders and ISP's wind up governing who has access to the Internet, and who does not. Neither of those agencies is democratically accountable.

The Poles got it before any other public. They have a tradition of mobilization - remember how their 1980-81 Solidarity movement began communism's unraveling? They have a tradition of freedom - "for your freedom and ours" was their 19th Century rallying cry for independence. They are a big European nation, with lots of wired young people - a big "digital native" population. And while their leadership is liberal, their politicos are out of digital touch. Otherwise, they would have known. And now everyone can learn from their mistake. In fact, Premier Tusk has already backed down, and said that he is suspending the ratification process, and will have an open meeting about it on Monday.

The European Parliament is now up in arms about this legislation, which will not be ratified unless this branch of the European Union approves it. And that approval is looking more doubtful over time, as representatives listen to their public, and publics mobilize across the E.U. More than 50 publics across Europe plan protests in the next few days. The French Member of European Parliament charged with being the ACTA's lead negotiator has already quit. The European Parliament may listen to its citizens and shut this legislation down and go back to the drawing board to make it more transparent.

It would be good if President Obama could empower his legislature to do the same so that what the Poles have inspired in Europe might become common sense in America, too. For your digital freedom and ours.