Archive for the 'ACTA' Category

Exploring the ACTA pt.3; The Silent Hands

The U.S. Government claims that ACTA is needed to, “combat the proliferation of counterfeit and pirated goods…”. OK, that sounds like a legitimate concern, but the next part of that sentence seems extreme, “which, undermines legitimate trade and the sustainable development of the world economy”. Illegally downloaded mp3 files hinder the development of the world economy, really? I call baloney on that last charge.

So, are governments coming up with ACTA on their own? No.

We can agree that rights holders are losing money and thus illegal downloads should be dealt with, reasonably. Maybe both sides of the ideally balanced copyright equation; the rights holders and the consumers, can come together and work it out. Nope, ACTA is a definitively one sided agreement in favor of rights holders. In fact the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and others sent a letter to Congress encouraging their efforts.

The RIAA also submitted a wishlist of “Enforcement Best Practices” to the USTR which amongst other things states,

2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.

This passage takes direct aim at the DMCA’s “safe harbor” protections.  These protections provide shelter for ISPs and remove them from any liability associated with their user’s actions. If the above language makes it into ACTA, ISPs will become a tool of the RIAA, MPAA and others to hunt down alleged violators. The copyright equation would become imbalanced and distinctly in favor of the rights holders, leaving the rest of us at a disadvantage.

Keep in mind that unlike ACTA the DMCA hearings were open to public input. The DMCA is also an Act, which requires Congressional approval. ACTA on the other hand is a Trade Agreement, which means no Congressional approval is required.

ACTA is shaping up to be one fine example of corporate influenced policy twice removed from the citizenry.

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Exploring the ACTA pt.2; Who’s Involved?

ACTA negotiations began in 2007 between a few countries. Since then several corporations and a couple consumer groups have also been allowed to sit at the table. First the countries;

the United States (Office of the US Trade Representative, USTR), the European Community, Switzerland and Japan were first. A short time later;  Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada joined the negotiations.

Some of the countries missing from the negotiation’s member list appear on the U.S.’s “Priority Watch List“;  Algeria, Argentina, Canada, China, Chile, India, Indonesia, Israel, Pakistan, Russia, Thailand and Venezuela. The Priority Watch List is part of the annual “Special 301 Report” that the US government compiles to highlight, “the global state of intellectual property rights (IPR) protection and enforcement”.

I found it interesting that Canada appears on both the US Priority Watch List, and is part of the ACTA negotiations. The 2009 Special 301 Report, which added Canada to the list, first thanked them for their IPR commitments, but then stated that Canada has, “not delivered on these commitments by promptly and effectively implementing key copyright reforms”. The report seems to pressure Canada to increase IPR enforcement by, “giving its customs officers the authority to seize products suspected of being pirated or counterfeit without the need for a court order”.

I can’t imagine that the Canadian people appreciate having their neighbor to the south twisting their government’s arm by blacklisting them to pass laws that would remove civil liberties at the borders. More disturbing is that this may be an indicator that ACTA will include a provision giving all member countries a loophole to disregard their court’s involvement prior to search and seizure actions.

The US Constitution’s 4th Amendment protects US residents from unreasonable search and seizures.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

If language in the Special 301 Report is an accurate indicator, ACTA would be in direct conflict with language in the 4th Amendment.

So what about the corporations? I found a post on the not for profit non governmental organization, Knowledge Ecology International’s (KEI) site that provides some answers. In order to obtain the information KEI submitted a FOIA request to see which companies had signed the USTR’s NDA. The list includes representatives from;

Business Software Alliance, Google, eBay, Verizon, Dell, Intel, News Corporation, Sony Pictures Entertainment and, Time Warner.

Clearly these companies are interested in finding out how their business models may need to change, but do they care how ACTA will effect their customers?

Finally, the KEI post also shows that Public Knowledge and The Center for Democracy and Technology consumer interest groups have signed the USTR’s NDA. Unfortunately, due to the NDA they cannot disclose the ACTA text. However, once the text is made public they will be able to help consumers understand what it means to them.

Exploring the ACTA pt.1

A new class I’ve started titled, “Global Digital Media”, is having us look at the Anti-Counterfeiting Trade Agreement, (ACTA). This agreement is being secretly negotiated between the US and other governments, but will likely impact all consumers of digital media. Why all the secrets?

Admittedly I had not been paying too much attention to this secretive agreement and know very little about it. In fact, nobody really knows many of the specifics since the Obama administration has said that information is, “classified in the interest of national security pursuant to Executive Order 12958“.

Efforts to gain detailed knowledge of the agreement have not been successful. In June of 2008, the Electronic Frontier Foundation, (EFF) and Public Knowledge filed a request under the Freedom of Information Act (FOIA) for records on the treaty and the negotiations surrounding the deal. Then on June 17, 2009 the EFF decided to drop the lawsuit citing, “we’re not going to obtain information before ACTA is finalized”, due to Executive Order 12958. Knowledge on ACTA has been limited to what has come out in leaks, so it might not all be accurate.

However, what has leaked indicates that ACTA may have huge implications on copyright claims against ISPs, possibly conflicting with the Digital Millennium Copyright Act, (DMCA pdf), and against consumer privacy.

My task for the class is to research, review, and analyze the available information surrounding ACTA and determine how it might impact US and foreign intellectual property law.  I thought I would report some of my findings here as the outcome of the final ACTA agreement will impact all of us.

My next post will focus on who the major players are in ACTA.


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