More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of “national security,” the details behind what’s being proposed in ACTA have leaked, and they don’t look good at all. It’s basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it’s worth noting the most basic of all, found in the first paragraph that contains the “general obligations” of participating countries. As Michael Geist details:

These focus on “effective enforcement procedures” with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don’t seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be “fair, equitable and/or proportionate,” it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or “ratcheting,” where they focus on getting one country that’s agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of “harmonization.” Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren’t any different than what’s already in place. Of course, if that were actually the case, they wouldn’t be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an “inducement standard.” The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it’s not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by “harmonizing” these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They’re designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

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Comments on “More ACTA Leaks; Still Looking Really Bad”

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Ima Fish (profile) says:

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an inducement standard.

I have no doubt that the safe harbors provided by the DMCA where merely a part of a trojan horse used by the content industries. In other words, the content industry initially wanted safe harbors included, because that got the ISPs behind the DMCA, or at least the ISPs withdrew their objections to the DMCA.

However, now that the DMCA is the law, it’s been fighting ever since to get the safe harbors removed. Failing in that regard the content industry is trying to get rid of the safe harbors by sneaking it in a treaty. This is simply pure underhanded slimy greed.

Rekrul says:

Re: Re:

I thought this Trade Agreement was about counterfeiting? What’s with all the copyright talk? Are they the same thing now?

The “counterfeiting” was just a smoke screen to cover up the fact that ACTA is intended to drastically re-write copyright laws in every country that signs this “treaty”. While it does cover counterfeiting, it goes FAR beyond that, such as criminalizing non-commercial copyright infringement, providing for the seizure of computers and equipment used in copyright infringement even if no charges or a lawsuit are ever filed. ISPs would be required to implement “three strikes” plans and disconnect people based solely on the word on the entertainment industry. ISPs could be held liable for what their users do, which would require ISPs to implement things like content filtering if they wanted to stay out of trouble.

Why is it a secret?

To keep the general public, civil liberties groups, ISPs and a lot of other people & groups this will affect, from being able to effectively speak out against it until it’s too late.

They hope to negotiate it in secret, get it accepted and then present it to the world as a “done deal” so that they can push it through before everyone outside of the content industry and their paid puppets in the government, realizes what an incredibly lopsided and dangerous thing it really is.

Anonymous Coward says:

Hmm, It might be interesting to see if we can kill them with a “death of a thousand cuts” if they manage to get the inducement standard written in. Obviously their advance advertising induced me to pirate a movie since it wasn’t available in theatres yet. Therefore they, or their advertising agency are guilty of inducing piracy. Is that something I could take them to small claims court and get a default judgement on?

Hephaestus (profile) says:

Cool this is better than I thought it would be ....

Unintended consequences ….

1) ISP’s fight back when they realize how much this is going to cost them.

2) The public finds deep packet inspection intrusive the EFF, etc fight against it

3) Encryption usage will go through the roof making deep packet inspection obsolete. Possibly leading to civil unrest in a bunch of countries. IRAN and China come to mind, no great loss there.

4) Due process will go out the window, with three strikes as a precident, leading to the government farming out all sorts of things that should require a courts intervention. UK anyone ?

5) etc, etc

Quite the slippery slope we are on now, I wonder if cooler (read un paid for) heads will prevail or if this orwellian nightmare will actually come to pass?

spectraz (user link) says:


Nice article. I really think that more people should investigate how the lobby operates and how they work with word omissions, how they push enforcement measures and how they influence politics etc.

For some information about the connections between lobbies and ACTA see:
Please share that link and send it to your interested friends and fellow net activists.

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