Even though the European Commission has referred ACTA to the European Court of Justice, the European Parliament continues to examine the treaty in its various committees. Earlier this week, the one dealing with International Trade met for a preliminary discussion. One of the key speakers was the Commissioner responsible for ACTA, Karel De Gucht, who naturally tried to make light of the many problems that have been raised in recent weeks.
But as the text of his speech makes clear, he did a poor job. For example, in an apparent attempt to distract attention from the real issues, he brought up the irrelevant and widely-condemned DDoS attacks on the European Parliament, perhaps hoping to spread around a little guilt by association.
Another passage reveals De Gucht completely at sea when it comes to the online world:
I think it's probably fair to say that everyone in this room knows someone who, without paying for it, has downloaded onto their computer a song, an album or an episode of a television series.
The first two statements overlook the fact that there are hundreds of millions of digital files online that can be downloaded without paying quite legally -- De Gucht seems unaware of Creative Commons licensing. He continues with the classic error of treating non-rivalrous digital goods as if they were the same as rivalrous physical ones. It's hard to believe that De Gucht, who trained as a lawyer, doesn't understand the fundamental distinction between copyright infringement and theft. True, he does say there is no "moral" difference, but it's a perverse view that sees creating more copies of a digital file as morally equivalent to stealing someone's bicycle.
I cannot, in good conscience, condone that action. I know there are some people who see this differently, young people in particular. But for me there is no moral difference between taking something that is not yours in the physical world and doing so in the virtual world. Illegal file sharing means money that should have gone to some of the most creative people in our society does not. It is a disincentive to their work.
Maybe he's basing that perspective on the claim that illegal file sharing deprives creators of revenue; but he offers no evidence for that statement. And there are studies that show the reverse -- that file sharing increases sales. The fact that the entertainment industries are all thriving suggests this anecdotal evidence might be representative of the larger market.
De Gucht then goes on to discuss one particular aspect of ACTA:
Maybe some of you in the back of your mind are worried that the people you know may be subject to fines or jail as a result of ACTA. But today's law is quite specific here. Because to steal even an apple remains a crime that can be reported to the police. However, to share a song without paying for it, while strictly speaking illegal, is not a criminal offence. Damages may be awarded by a judge but there is no possibility of punitive action unless the activity were to be carried out at a commercial scale. This is why today, for example, the people behind and profiting from sites such as 'Megaupload' now find themselves in the spotlight of the law -- and not the tens of thousands of end-users worldwide. This is common sense!
Even if it's true that ACTA doesn't criminalize anything that is not already a crime, it does set minimum levels for punishments, and encourages through its enumerated possibilities far harsher penalties than are currently imposed. One consequence is that signatories lose the power to change their laws regarding enforcement as they wish: ACTA ensures that future implementations can only be made stricter.
That will not change under ACTA. So if this is one of the reasons that you are having doubts, perhaps in the back of your mind, let me be clear: ACTA will not criminalise anything that is not already a crime. Thousands of young people will not be hauled before the courts because of it.
This is what ACTA says about the damages that De Gucht refers to:
In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.
As can be seen, this grants the right holder wide powers to submit "any legitimate measure of value", including ones like "lost profits" that are impossible to calculate sensibly in the case of digital files shared around the Internet. This could easily lead to exorbitant fines of the kind that people are indeed worried about, but which De Gucht dismisses in such a cavalier fashion.
Criminal enforcement is even worse. As De Gucht says: "there is no possibility of punitive action unless the activity were to be carried out at a commercial scale". But what he omits to mention is that "commercial scale" is nowhere defined in ACTA, and has no minimum level specified to exclude ordinary users:
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on commercial scale. For the purposes of this Section, acts carried out on a commercia scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.
Notice the word "shall" -- this is not optional. The key phrase is "indirect economic advantage". For example, consider a site that carries Google Ads, and that also occasionally links to commercial sites offering unauthorized downloads. In doing so, it provides a service to its visitors, who are thus more favorably disposed towards the site, and return there more often, boosting ad revenues: in other words, it has gained an indirect economic advantage. Because it is commercial, it becomes subject to criminal enforcement measures for "aiding and abetting" copyright infringement (another ACTA requirement.) And that means extradition treaties might become relevant, with people running small-scale Web sites facing the threat of being hauled off to America, say, just for including a few links in their blog posts.
ACTA may not criminalize what is not already a crime, but it certainly increases the reach and severity of enforcement. So contrary to what De Gucht claims, those "young people" may well find themselves facing the courts -- or worse -- and all thanks to ACTA.
De Gucht's recent statements show that he lacks a firm grasp of the online world he is seeking to regulate, while his one-sided explanations of how ACTA's civil and criminal measures will work gloss over major problems with the text. Taken together, that pretty much disqualifies him from the crucial task of helping the European Parliament understand the full implications of ACTA, as it seeks to come to a fair and balanced decision about whether to ratify it or not. It's clearly time for De Gucht to move on to other things.
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