How ACTA Turns Private, Non-Commercial File Sharing Into 'Commercial Scale' Criminal Infringement

from the this-is-not-good dept

We've already discussed some of the problems of the "near-finalized" draft of ACTA, but the deeper people dig into the agreement, the worse it gets. We had noted, in our original post, that the definition of "commercial scale" matters a lot, and Glyn Moody points us to an analysis that shows how the ACTA negotiators cleverly scaled back their definition of "commercial scale," to make it both vague and incredibly broad. The current text in ACTA reads:
ACTA 2.14.1: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. [ACTA footnote 9]

For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage."
"Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that? We've recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it's commercial scale.

Of course, what's really troubling here is that the EU negotiators had already promised that there would be no definition of "commercial scale." Yet, there is... and it's a lot worse than what the EU Parliament had already determined "commercial scale" to cover. The analysis linked above, first looks at the Max Planck Institute's analysis of "commercial scale" infringement, where it notes that just saying "commercial scale" "fails to provide for an appropriate and sufficiently precise definition of the elements of a crime" under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:
  • Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
  • Commercial activity with an intention to earn a profit.
  • Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.
Note that none of that is found within the ACTA definition. The report also highlights the EU Parliament's own definition of commercial scale, which has important caveats not found in ACTA:
"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes
Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    weneedhelp (profile), Oct 11th, 2010 @ 9:23am

    these omissions were done through incompetence or for other reasons.

    Ahh...yeah OK.

    1 vote for:
    other reasons. They knew exactly how they are writing it.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    Berenerd (profile), Oct 11th, 2010 @ 9:35am

    These ACTA supporters may have been born at night...

    ...but not last night. they know where they can put words to make what appears to be harmless, harmful.

    I am not a supporter of pirating anything. Music, software, Movies, I download and watch. if I like it I buy it, else it gets deleted.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Oct 11th, 2010 @ 9:37am

    Why does it have to be one or the other? Can't it be a little of both? Or maybe a lot of both? Maybe it's an 80-20 split? Or a 60-40?

    I'm just saying...

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Oct 11th, 2010 @ 9:38am

    Perhaps someone can explain if this provision presents a conflict with US law.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Oct 11th, 2010 @ 9:46am

    The way ACTA has been handled and the reasons behind its existence are such an indictment of the various "democratic" governments involved that I'm surprised more people haven't complained about it. I guess I shouldn't be surprised. Keeping the masses ignorant and artificially happy has always been an effective means of domination.

    Still, I find it outrageous that leaders like Obama can insist, with a straight face, that secrecy is at all essential for a treaty such as ACTA when the purpose of such secrecy is obviously to keep the masses from complaining and somehow short-circuiting negotiations.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    The Infamous Joe (profile), Oct 11th, 2010 @ 9:58am

    Re: These ACTA supporters may have been born at night...

    I am not a supporter of pirating anything. Music, software, Movies, I download and watch. if I like it I buy it, else it gets deleted.

    I am unaware of the exemption in (US?) copyright law that says it's not copyright infringement if you end up buying the product or delete the copy after using it.

    So, yeah, you're a supporter of piracy. It's okay, though, everyone else is too, they just don't always admit it.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    bigpicture, Oct 11th, 2010 @ 9:58am

    For the People

    Why are they negotiating with parties who did not elect them, about issues that will effect the people who did elect them? Why are these idiots not targets of the Taliban unless they actually have some connection with them to destroy democracy? The laws are no good unless they protect their Greedy Ways.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Josh Taylor, Oct 11th, 2010 @ 10:00am

    "For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage."

    In other words, non-commercial private acts of infringement is treated as a commercial activity. Thus ACTA will require countries to give phone companies the authority as the "Phone Police" to listen in on individual's calls and install surveillance cameras to spy on an individual's personal everyday life activity, even if it's not internet related.

    The "Three Strikes Policy", if left alone in the treaty, doing the things you do in your personal and private life 3 times will suffer the consequences.

    Example:

    Singing a song 3 times or 3 songs in the shower and you will lose your larynx (voice box).

    You or your child draws copyrighted/trademarked cartoon characters off the TV and on 3 pieces of paper with a crayon/pen/pencil, your TV will be destroyed along with other infringing artwork that you or your child made.

    Discussing about your favorite TV show, movie, music video, or live sporting event at the dinner table with your family 3 times and you and your family will be blacklisted from society (meaning you will be forbidden from ever getting a job, finding a home, opening a bank account, buying/renting a home, banned from supermarkets, shops, movie theaters, malls, your child with your family name will be blacklisted from ever attending or enrolling at every school in the nation, you and your family will be blacklisted from ever attending church, in fact orphanages and homeless shelters will be forced to deny you and your family who are blacklisted from society to be taken in) or be hauled off to prison.

    Sharing 3 secret cooking recipes to your neighbor over the phone and you will lose your phone service.

    But notice how the private acts of infringement is edited out.

    "infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes"

    So does this mean no requirements for countries to make your phone service to become a "phone police" and no more spying on your everyday life personal activities with surveillance cameras in your home? Maybe. But I wouldn't let my guard down if I were you. The "private acts of infringement and the "3 strikes policy" parts could secretly be put back in the agreement, and thus screwing us all and putting the final nail in our fundamental freedoms.

    So what should we do? Boycott and shun technology and everything that runs on electricity and live like the Amish.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    The Infamous Joe (profile), Oct 11th, 2010 @ 10:09am

    Re:

    So what should we do? Boycott and shun technology and everything that runs on electricity and live like the Amish.

    This again? Josh, buddy, you need to take a deep breath and count backwards from 10 before you start typing these things out. Combating extremists by becoming an extremist is counter-productive, and never works for long.

    Besides, I really like snow cones, and that shit is a pain in the ass to make without electricity. :)

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    MrWilson, Oct 11th, 2010 @ 10:21am

    Re: Re: These ACTA supporters may have been born at night...

    To which definition of piracy are you referring though?

    Theft, murder, rape, property damage on the high seas?

    Commercial activities involving selling counterfeit versions of copyrighted material?

    Copyright right infringement for personal, non-commercial use - which may lead to the purchase of official copies?

    How much looser can the definition get? Maybe open source will be equated with piracy...? Oh wait, we've already heard that one...

    Everything is piracy if it involves not handing at least half your paycheck to the entertainment industries. Drop your failing mortgage and invest in CDs (Compact Discs, not Certificates of Deposit) and DVDs! Don't you know you're just a money-generating robot for Hollywood?

    I'm sorry, is my sarcasm showing?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Valkor, Oct 11th, 2010 @ 10:23am

    Everything's commercial

    "indirect economic ... advantage" I didn't pay for it, therefore I was able to use my actual dollars for some other economic activity. Voila! Commercial Infringement!

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Karl (profile), Oct 11th, 2010 @ 11:02am

    Re: Everything's commercial

    You jest, but this is actually how the U.S. is able to justify defining private, not-for-profit infringement as "commercial."

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Jungle Jim, Oct 11th, 2010 @ 11:04am

    Great...

    Oh wow, I actually thought that it couldn't get any worse and now this fruit of the dark rolls along... Oh wow.

    Hmm, 3 strikes policy could also mean making a full frontal lobotomy, if you are singing a copyrighted song in your head 3 times. =)

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    chris (profile), Oct 11th, 2010 @ 11:18am

    Re: Re: Everything's commercial

    this is actually how the U.S. is able to justify defining private, not-for-profit infringement as "commercial."

    that's because not making money is the same as losing money... just like standing still is the same thing as walking backwards.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Tor (profile), Oct 11th, 2010 @ 11:39am

    EU Parliament's own definition

    I think the source of the EU Parliament's definition of "commercial scale" in this case is the so called IPRED2 directive about criminal sanctions which created too much controversy and has not been passed yet.

    If you instead look at the currently in force IPRED it's not quite so categorical:
    "Acts carried out on a commercial scale are those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end- consumers acting in good faith." (emphasis added by me)

    As I have previously pointed out, in some countries almost any act of making a single work available to the public is regarded as commercial scale. Personally I agree with la quadrature:
    ACTA provides that criminal sanctions must be applied for cases of infringement on a "commercial scale". This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement. Widespread social practices, like not-for-profit filesharing betweens individuals, could be interpreted as "commercial scale". The only acceptable limitation of the scope of enforcement should be "commercial intent" or "for profit".

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Reality check, Oct 11th, 2010 @ 12:12pm

    The real problem is all of you guys here. Not actually standing in front of their door 24/7 because you don't care enough about this to actually do something. That my friends is why you keep getting raped.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    The Infamous Joe (profile), Oct 11th, 2010 @ 12:32pm

    Re:

    Who's door?

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    The Infamous Joe (profile), Oct 11th, 2010 @ 12:33pm

    Re: Re:

    Whose* :P

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    grimp0teuthis, Oct 11th, 2010 @ 6:35pm

    commercial scale has been interpreted

    You're missing some important context:

    "Commercial Scale" has only been interpreted once by the WTO, here: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds362_e.htm

    In that decision, finding "commercial scale" required a minimum amount of infringement that was set according to various factors relating to the economy of the country in which the infringement supposedly happened.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    darryl, Oct 11th, 2010 @ 9:49pm

    Inclusive ?? what about ..... and .... and .... and the other things.?

    "Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that?

    Mike Mike Mike !!!!!

    How is that 'inclusive' ?

    So in your narrow world Mike there is nothing else except

    commercial activities for direct or indirect economic or commercial advantage

    You are getting worse, Mike, really do you honestly believe that those are the ONLY factors, what you claim to be 'highly inclusive'

    What about non commercial use, was that INCLUDED, what about educational use, was that INCLUDED, what about parody ? what about 'fair use', what about 'hot news'.

    was ANY of that in that statement about direct or indirect commercial advantage ?

    Alot (MOST) of the time you appear to have little or no understanding of the english language !!.

    You seem to confuse words and show no understanding of basic terms you should have learnt in first grade.

    So if you ask how could you be MORE inclusive that the above statement. Do you really want me to show you here, infront of all your friends ?

    Its far easier to list what was EXCLUDED, but ofcourse that is not the spin you are trying to create...

    And Mike, when are you going to write an original article ??

    Instead of trolling the web for Glyn Moody or who ever, to do your dirty work for you ?

    You think its a good formula? Steal others content, paste it here, add a few purile comments, stoke the flames, sit back and watch the money roll in !!..

    You come across as a one show pony Mike, sorry to say, we always know exactly what your opinion will be, regardless of any facts or particular differences with a particular story,

    If everything you say is the same, ACTA is bad, patents are bad, filesharing is harmless, no evidence of damage.

    Then you have nothing to really say, we know you feel that way, and you say it over and over and over and over and over and over again..

    Never a new opinion, never a new idea, never that odd example where copyright or patents have done great good.

    we know what you're going to say before you say it, and we know regardless of the facts or the dicisions of the courts, you are right and everyone else is wrong.

    What you get like that, people stop to take notice of you, they know what your going to say, they know you cannot make statements that support the facts if they contradict your bias..

    What that happens you lose you authority, and your reputation, you've just become a professional troll, shock jock in it for the dollar at the end of the day.

    And that is where you are now Mike, you in too deep, to unwind the lie's and misinformation.
    So now, to most you are a one trick pony, with no personal opinion, and no understanding..

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    krusty-g (profile), Oct 12th, 2010 @ 1:19am

    Re: Inclusive ?? what about ..... and .... and .... and the other things.?

    I get that you're just trolling, but this line right here:
    "Alot (MOST) of the time you appear to have little or no understanding of the english language!!", instant classic.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    techflaws.org (profile), Oct 12th, 2010 @ 2:23am

    td; dr

    (you drivel's) too dumb; didn't read

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    The eejit (profile), Oct 12th, 2010 @ 2:49am

    Re: Inclusive ?? what about ..... and .... and .... and the other things.?

    How many time do I have to tell you? SHUT. THE. HELL. UP.

    Stop trolling, get a life, and get your money back for that goddamned lobotomy. It didn't take.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Christopher (profile), Oct 12th, 2010 @ 1:34pm

    Re: Re:

    Funny, it seemed to work for our Founding Fathers in the United States, and has worked for over 200 years.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    The Infamous Joe (profile), Oct 12th, 2010 @ 2:25pm

    Re: Re: Re:

    What did?

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Hephaestus (profile), Oct 13th, 2010 @ 7:21am

    Re: Re: Re: These ACTA supporters may have been born at night...

    "I'm sorry, is my sarcasm showing?"

    Not really I thought you were an industry shill ... :)

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This