The Final Push for World Government

Preliminary Analysis of the Officially Released ACTA Text

April 23, 2010

Electronic Frontier Foundation - The text of the draft Anti-Counterfeiting Trade Agreement was finally released to the public yesterday. We welcome the official release of the ACTA text after two years of negotiations. We can now have a serious public debate about its content and far-reaching impact on citizens' lives.

If the previous leaks (here, here, here and here) left any doubt, the officially released text makes it crystal clear that ACTA is not just about counterfeiting.

When ACTA was announced two years ago, it was portrayed as a modest effort at increasing coordination between customs agencies tracking counterfeit physical goods. The officially released text shows that it's far broader. First, it is not just about trademarks: it covers copyright, potentially patents, and all other forms of intellectual property. Second, it's not just about physical goods: it's all about the Internet — which it targets very specifically — and citizens' ability to use it to communicate, collaborate and create. ACTA contains new potential obligations for Internet intermediaries, requiring them to police the Internet and their users, which in turn pose significant concerns for citizens' privacy, freedom of expression and fair use rights.

Read on for our preliminary analysis on copyright issues ...

ACTA will create new international norms, beyond those agreed in the 1994 Agreement on Trade Related Aspects of Intellectual Property and the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty. Aside from creating a new international institution -- the ACTA Oversight Council -- ACTA will create new norms in the following areas.

(a) Internet Intermediary Liability

Internet intermediaries are the chokepoints for the Internet. Creating or increasing Internet intermediaries' liability for their users' behavior and content on their networks creates incentives for intermediaries to police their users and platforms. This in turn has a direct impact on citizens' privacy, freedom of expression, and ability to create and collaborate.

Policy makers in the 1990s understood that Internet intermediaries had to be shielded from potentially unbounded liability if the Internet was to flourish. That is why many countries adopted special legal regimes for Internet Service Providers and other Internet intermediaries, limiting their potential legal liability for copyright infringement, and defamation.

Now, as more and more of our cultural and civic life depends on the existence of content hosting platforms, discussion forums, wikis and social networking communities, these rules have come to have even greater significance. In short, appropriately tailored limitation of liability regimes for Internet intermediaries are key to individuals' freedom of expression and user generated content. The existing limitation of liability regimes are under attack in a range of national and international venues, but ACTA is the most troubling.

ACTA contains various provisions requiring countries to impose liability on intermediaries for their users' behavior (Article 2.18(3)). This would apply to Internet intermediaries, but also to intermediaries such as libraries and educational institutions, which frequently provide Internet access to their customers and users. This is not required by any of the major international IP treaties -- not by the 1994 Trade Related Aspects of IP Agreement, nor the WIPO Copyright Treaty or WIPO Performances and Phonograms Treaty, and so would establish a new global norm.

Previous ACTA leaks disclosed that the US was proposing that signatory countries recognize third party liability based on the secondary copyright liability doctrines developed by US courts, including for "inducement" of copyright infringement. (Apparently opposed by New Zealand, Canada, the EU and perhaps Japan). The official text shows that this is still proposed. Footnote 47 states that:

"[For greater clarity, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another….]" ...

(b) Three Strikes

"Graduated response" or "three strikes" regimes which require ISPs to disconnect their subscribers' Internet access for alleged copyright infringement are extremely controversial. Three strikes laws currently exist in only three countries -- South Korea, France and Taiwan -- so inclusion in ACTA might result in more countries adopting such regimes. This has rightly been the subject of much debate in Europe, where the European Parliament has categorically rejected three strikes regimes on several occasions. Accordingly, the European Commission went to considerable lengths in their press release yesterday to emphasize that ACTA does not require countries to adopt three strikes laws:

The negotiation draft shows that specific concerns, raised in particular by the civil society, are unfounded. No party in the ACTA negotiation is proposing that governments should introduce a compulsory "3 strikes " or "gradual response" [sic] rule to fight copyright infringements and internet piracy.

We agree that ACTA does not require countries to adopt a three strikes law, but the more interesting question is: does it create a legal framework that facilitates that? Article 2.18(3) of ACTA contains three proposals in this area. In our view, the answer is yes under at least two of those proposals. Here's why.

The words "graduated response" and "three strikes" do not appear in the official ACTA text. The three strikes discussion is taking place in the context of intermediary liability for copyright infringement ...

(c) Technological Protection Measures – a Global DMCA

As we have previously noted, ACTA would make the US DMCA TPM legal framework the de facto global norm, effectively displacing the more open-ended language finally adopted in the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty ...

(d) Criminalization of Individuals' Non-Commercial Behavior

Finally, ACTA could rewrite the current internationally agreed standards for criminal penalties for copyright and trademark infringement. At the time that the TRIPS Agreement was negotiated it was understood that criminal penalties would be reserved for the worst cases of willful, commercial-scale copyright piracy and counterfeiting. This is reflected in the language ofArticle 61of TRIPs. However, ACTA could expand this, imposing criminal sanctions for individuals' non-commercial activities via a broad definition of "commercial scale." ACTA contains a US proposal to define "commercial scale" to include activities that have no direct or indirect motivation of financial gain (Article 2.14 (1)(a) and (b) (in square brackets)). While that appears consistent with US law, incorporating this in ACTA would amount to a wholesale re-write of the internationally agreed TRIPs standard.

This clearly reflects a desire to penalize P2P file-sharing. But no matter what views you hold about file-sharing, no one should lose sight of the larger impact of this: some of the 37 countries negotiating ACTA are seeking to overturn the standards agreed to by the more than 150 member countries of the World Trade Organization.

There is much more to digest in the official ACTA text. We'll be doing further analysis in coming days.

Webcast of the PublicACTA Conference at Wellington Town Hall, New Zealand

The Wellington Declaration calls for the full transparency and public scrutiny of the ACTA process... This is important to ensure the treaty has no unintended consequences and has maximum positive beneft.

April 11, 2010

nzlemming - On Saturday, a group of concerned people got together in Wellington, New Zealand, (where the next round of ACTA began today) to hold a PublicACTA Conference to discuss these issues. The event was streamed and recorded and you can find the video here.

The outcome of the meeting was the Wellington Declaration, which you can sign if you agree with it.

2000 have already signed. The petition will remain open, but PublicACTA will be delivering a physical copy to the negotiators tomorrow, so the more signatures the better. Tell your friends.

ACTA: The Acronym Hardly Anyone Knows Yet Should Be Scared to Death of

April 9, 2010

Steven Hodson - ... As bad as one might think the Digital Economy Bill might be, most of us think we can rest easy with the belief that this insanity is confined to Britain.

Think again, because there is a global effort to make what we see with Britain’s Digital Economy Bill nothing but child’s play. It is an effort that makes the heavy handedness of the European Union look like a sing-a-long around a campfire, and every attempt is being made to see it all happens in secret.

Building Frankenstein under NDA

So what is this global effort you ask. Well the acronym that it is going by is pretty innocent enough, and even in its full glory it sounds on the surface as being a pretty noble goal.

The acronym is ACTA and it stands for: Anti-Counterfeiting Trade Agreement.

Pretty innocuous sounding eh?

It is too, at least until you start looking it exactly what the agreement is all about, who is involved, and how it is planned to be implemented. That is, of course, if you are lucky enough to be able to find out any information about this international agreement, because all the meetings of the principals involved are held in secret. Not only that, but anyone who wants to even lay eyes on the documents making up the global agreement are required to sign a non-disclosure agreement (NDA)(pdf) ...

In the Global Economy, trade agreements trump local laws. You might not think so, but in reality they do. Just look at any WTO disagreements; in the end the WTO trade agreements will trump local laws — hint: the current battle between the US and Antigua over online gambling.

So rather than have to constantly fight against the constantly shifting landscape of local laws, the entertainment industry realized it was much easier to engineer a global trade agreement outside of even the WTO, WIPO and other related world trade organizations typically responsible for this type of thing. By doing so they have in effect created a global trade agreement that could marginalize or replace the WIPO.

And why is ACTA dangerous?

Besides the fact that it is an overt act to subvert local country laws, ACTA has the potential to change not just the Internet but, in my opinion, our very society. That might be an extreme view, but I have been following this since it first broke back in 2008 (even though the process had already been underway for two years) and the secrecy aside the fact that this is conglomerate-driven politics, the entertainment industry is looking to take total and utter control of how we can access information.

As Prof. Geist wrote back in 2007 when word of ACTA first started to leak out:

This treaty could ultimately prove bigger than WIPO — without the constraints of consensus building, developing countries, and civil society groups. The ACTA could further reshape the IP landscape with tougher enforcement, stronger penalties, and a gradual eradication of the copyright and trademark balance.

The fact is that there is nothing seen so far in ACTA that is of any benefit to you or I. If anything, everything suddenly becomes stacked in the favor of the entertainment industry. It would be easy to slough this off and say its only about entertainment so it’s not going to affect the Internet or my life beyond watching movies or listening to music.

Think again as Rafael Ruffolo pointed out in November 2009:

ACTA would basically change the way we all use the Internet and modern technology. The role of Internet service providers likeRogers Communications Inc. and Bell Canada Enterprises Inc. will also change, giving these companies unbelievable new powers to stop “copyright violations.”

For starters, ISPs will be forced to block anything that could be pirated material. The impact this will have on the music industry is obvious, but what about for software developers?

Maybe a start-up creates an app and decides to give it out for free to create some buzz. How will Rogers or Bell be able to differentiate this freeware software from pirated commercial software?

Oh, and that three strikes law that everyone laughs at France for enacting? Guess what? ACTA would have the same law built into it. Now who’s laughing?

Scratching the surface

As much as Fred Wilson might want to believe in Internet Freedom (and everyone is doing a lot of back patting because the FCC lost) we are only seeing the surface of what ACTA portends, as the majority of the work going into it is still going on behind closed doors.

The truth is we probably won’t know how bad things will be until the trade agreement is signed by all the parties involved and, for the U.S., knowing what is involved is even less likely since the Obama government has ruled that all documents related to ACTA are state secrets, as James Love found out.

There are number of outstanding Freedom of Information Act (FOIA) requests for key documents, by groups like EFF, Public Knowledge, and KEI. In one of our FOIA requests, we asked for seven specific documents, referenced by the exact title and date of the documents. These documents are the proposals for the text of the agreement.

The texts are available to the Japanese government. They are available to the 27 member states of the European Union. They are available to the governments of Canada, Mexico, New Zealand, Australia. They are available to Morocco, and many other countries. They are available to “cleared” advisers (mostly well connected lobbyists) for the pharmaceutical, software, entertainment and publishing industries. But they are a secret from you, the public.

Today we received this letter from the White House, Office of the United States Trade Representative. Our FOIA request was denied on the grounds that the documents are “information that is properly classified in the interest of national security pursuant to Executive Order 12958.”

An international trade agreement is considered a state secret. That should given even the most callous observer pause; so if you think that ACTA isn’t the most serious challenge to not just Internet Freedom but also some of your most fundamental rights, then I suggest you find a nice comfortable sandpile and stick your head in it.