Let's Act on ACTA Before it's Too Late

It was over a year ago that I wrote about the “Anti-Counterfeiting Trade Agreement” (ACTA), a new global standard for the enforcement of intellectual monopolies currently being discussed by representatives of the United States, the European Commission, Japan, Switzerland, Canada, Australia, Korea, Mexico and New Zealand. Since then, the secret negotiations have been continuing, and the threats it poses to the Internet as we know it grow ever larger.

That was starkly demonstrated recently when Michael Geist managed to get hold of details about the hitherto-mysterious section of ACTA dealing directly with the Internet. Here are its main provisions:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

The second of these means that ISPs would become liable for copyright infringement committed by their users. The idea here is to force them to become copyright cops if they want to survive, and to shift the onus onto them for the policing of all digital content – a massive win for the media industries, which have hitherto shown themselves totally inept when it comes to trying to do the same.

Section three basically mandates the introduction of the infamous “three strikes and you're out” disconnection policy that has been adopted by France, and is being considered in the UK. Note that it's enough for the content companies to *accuse* you of downloading copyright material three times for your connection to be cut off. Moreover, it doesn't matter who in a family may or may not have done the downloading: the connection is cut off for *everyone*.

Section four brings in DMCA-like anti-circumvention provisions that make it illegal for anyone under almost all circumstances to try to get around DRM on content.

Some have downplayed the importance of these revelations, pointing out that many of the proposals are already law in some jurisdictions such as the UK and US. But that misses the point: ACTA is about *exporting* the worst aspects of existing copyright legislation to those major economies around the world where they are not yet implemented. It's the classic ratchet effect that always moves legislation in a direction favourable to the content industries, and never sees corresponding moves in favour of consumers.

The other troubling aspect of ACTA is that the negotiations are *still* being held behind closed doors, despite growing recognition that transparency is indispensable if the end-result is to have any legitimacy with those of use outside that process. The nominal, and totally feeble, justification for this secrecy is the old catch-all “security”. But as the leaked documents have made clear, ACTA has nothing to do with *national* security, but is all about giving the content industry security that they can continue to impose their broken analogue business models on a changing, digital world.

Indeed, it is clear from a recent European Commission document, obtained this time by the indispensable Wikileaks, that the US media companies, though their proxy, the US government, are the main driving-force behind the section on the Internet (and probably in the rest of the treaty, too). It's really rather pathetic:

This is to inform [Member States of the EU] about the state-of-play of the internet enforcement chapter that should be discussed at the next ACTA negotiating round in Seoul, Korea.

On 22-24 September, DG Trade participated in the EU-US IPR Working Group, which took place in Washington. In a side meeting with the USTR (US lead negotiators on ACTA), at their request, the US colleagues informed us about the progress in the preparation of a draft text of the future Internet Chapter of ACTA. US reported that they have been working on a draft text since the end of the 5th round (end of July) and that this was basically finalised. However, they are still involved in internal consultations with other government agencies and a number of private stakeholders (bound to strict confidentiality clauses), therefore they were not willing to share with COM (or even to show us) the text at this stage.

USTR 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).

That is, the US isn't even sharing with its ACTA partners the “basically finalised” draft of the Internet chapter. Why? Because of “internal consultations” with “a number of private stakeholders”, who are essentially calling the shots – or at least, some of them: the scare quotes around the word “freedom” makes plain the attitude of the ACTA crowd to people who dare to stand up for Internet end users' rights in opposition to the commercial interests of the copyright crowd. The only ones that really count are representatives from the media industries, who are among the very few being granted access to ACTA documents, and being allowed to influence their drafting.

The real reason these discussions are being held in secret is not “security” but because the outcry over them would be much greater were the proposals out in the open. It's a blatant attempt to slip hugely-damaging clauses into the treaty without the little people like you and me noticing until it's too late.

Fortunately, the leaks linked to above have given us a last chance to kick up a fuss before these negotiations are concluded. If we don't, then the powers-that-be will certainly take it as a sign that nobody really cares anyway, and that they can just satisfy the demands of their media chums. Assuming you don't want the Internet to become a sterile wasteland of locked-down content, with threats of Internet disconnection hanging over entire families for any alleged infringement, you might want to spread the word in any way you can (emails, blogs, tweets, dents, word of mouth) so that more people know about ACTA, and more people start to react.

Follow me @glynmoody on Twitter or identi.ca.

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Too Late

Sen's picture

ACTA: The Hidden How

Andrei Mincov's picture

The only reason ACTA can attract radically differing opinions from indisputably educated and intelligent people, is that it is based on the philosophy of a compromise, a balance of interests between creators and the public.

In my new article, "ACTA: The Hidden Why" at http://mincov.com/articles/index.php/fullarticle/acta_the_hidden_why/ (http://bit.ly/aoa6Do), I explain why the only way to deal with mass violation of intellectual property rights on the Internet without creating a coercive mechanism of oppression, is to state clearly at the outset that intellectual property is being protected because no one has a right to use the results of another’s creative labour, other than on terms put forward by the creator or the subsequent copyright owner who voluntarily purchases said rights from the creator. It has nothing to do with whether the society benefits from such protection. Appeasement and compromise may temporarily create a "balance", but what this balance effectively does is that it subjects individual rights of one group of people to some undefinable "common good". It is only a matter of time until an elected or self-proclaimed representative of the interests of the whole society will make a case that, instead of vesting in authors exclusive rights to their works, the common good will be best served by nationalizing all works of art and imprisoning those who disagree.

sorry for the double post

Andrei Mincov's picture

sorry for the double post

ACTA: The Hidden How

Andrei Mincov's picture

The only reason ACTA can attract radically differing opinions from indisputably educated and intelligent people, is that it is based on the philosophy of a compromise, a balance of interests between creators and the public.

In my new article, "ACTA: The Hidden Why" at http://mincov.com/articles/index.php/fullarticle/acta_the_hidden_why/ (http://bit.ly/aoa6Do), I explain why the only way to deal with mass violation of intellectual property rights on the Internet without creating a coercive mechanism of oppression, is to state clearly at the outset that intellectual property is being protected because no one has a right to use the results of another’s creative labour, other than on terms put forward by the creator or the subsequent copyright owner who voluntarily purchases said rights from the creator. It has nothing to do with whether the society benefits from such protection. Appeasement and compromise may temporarily create a "balance", but what this balance effectively does is that it subjects individual rights of one group of people to some undefinable "common good". It is only a matter of time until an elected or self-proclaimed representative of the interests of the whole society will make a case that, instead of vesting in authors exclusive rights to their works, the common good will be best served by nationalizing all works of art and imprisoning those who disagree.

Word manipulation, hypocrisy, and the so-called Anti-Counterfeit

Russell McOrmond's picture

Beyond talking to your local representatives, I believe we need to poke fun at the sheer stupidity of these proposals.

For instance, in my article "Word manipulation, hypocrisy, and the so-called Anti-Counterfeit" I wrote about how some of the proponents (and I picked on Microsoft here) would be impacted by a legitimate form of graduated response system. These types of companies are accused of copyright infringement more than 3 times in any given month, and thus it would be a short amount of time before most of the proponents of ACTA would no longer be allowed to have an Internet connection.

That is, of course, if "graduated response" was intended to have any level of legitimacy. It is intended to create severe punishment for the most de-minimus forms of copyright infringement, but de-minimus punishment for the most serious forms of copyright infringement.

Christmas for criminals

Anonymous's picture

Although the problems of copyright theft are major ones, the ACTA proposals do not seem to be a good way to address them. It would be hard to imagine a greater opportunity for the criminally-minded! Large ISPs, especially those who miscalculate the escalating costs of policing, will be smacking their lips at the prospect of smaller rivals being driven out of business, and some at least will be tempted to start laying traps that will provide evidence of the failure of a rival to police properly. Another black market will develop, where the unscrupulous can commission attacks against business or personal rivals that either force the rival's ISP to close them down or will cause those rivals significant time and money to defend themselves.

One has to marvel at the way governments labour so hard to try to get the black economy to grow. Rather than cutting people off on the basis of accusations, who not just threaten to charge those who host copyrighted material distributorship fees? They can desist or pay up, on the basis of their logs. That too is far fom perfect, and scammable, but the aim of such agreements should be deterrence rather than draconian compliance.

bogus or deliberate virus?

Martins's picture

Over the years I had written a pile of powerful directory searching utilities. After my computer was stolen in July 2003 by 4 armed bandits who managed to get hold of the key to my condominum, I had no money to buy a new windows system. Bad stuff started happening when I tried to distribute a new dos-based argument based unicode text editor in November to friends via e-mail to allow them to compose text in another language on an MS-DOS US code page system. By 2004 something called NOVARG was spoofing users although I had been previously hit by something of a sleeper called "Netsky" that, according to Norton, didn't contain a dialer that secretly activated itself each time I left my room. A couple years later the same quarantined code was identified by Norton to have a dialer in it when I was backing up a hard drive to a new one overseas. Makes me wonder how far monopolies will go to keep us in the dark? The stolen system I had contained a platinum soundblaster used to convert 24bit audio on a PII system. I had no interest in copying other peoples' media with it.

Is it time for some tea in the harbor?

sevatt's picture

At some point they will push to far and people will start pushing back.

Anyways, just think how much more damage would happen to the world economies if every household who was accused of downloading three questionable items had their internet cut for life. Not only would it kill the internet economy, it would kill the economy for the big copyright holders. I'd be willing to bet top dollar that everyone who lost their internet would be part of the worlds largest boycott.

Action?

Anonymous's picture

What action can any individual take to support the defeat of ACTA?

you can contact your

Anonymous's picture

you can contact your senators re: acta through http://www.eff.org/action

there is a petition to the president at http://www.keionline.org/acta-petition it was already sent but you can still add your name to the online version.

The obvious forms of action

Glyn Moody's picture

...include things like writing to politicians, even though that probably doesn't do much good in the short term.

Probably more useful is just making more people around you - family, friends, colleagues - aware of the situation. ACTA has been negotiated behind closed doors for a good reason: to minimise people's outrage at what is being contemplated. The more we can get this out in the open, the more people will be concerned, and the more politicians will sit up and take notice.

The Iron Fist of the Global-Elite Money-Master Cyborg-Overlords!

John and Dagny Galt's picture

The Iron Fist of the Global-Elite Money-Master Cyborg-Overlords!

The Iron Fist of the Cyborg Collective cannot be defeated and shall rule the world

Sincerely,
John and Dagny Galt
Atlas Shrugged, Owner's Manual For The Universe!(tm)

http://www.starvingthemonkeys.com/

http://voluntaryist.com/fundamentals/introduction.php

http://marcstevens.net/

http://www.freedomainradio.com/

.

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