EU Official Who Resigned Over ACTA Details Why ACTA Is Dangerous; While His Replacement Seems Unlikely To Care

from the not-good dept

Last month, we noted that, Kader Arif, the ACTA rapporteur -- or the guy in charge of "investigating" ACTA for the EU Parliament -- had resigned in disgust over the fact that the EU was moving forward with ACTA. He noted that he was denouncing both the process and the agreement itself. Arif recently gave an interview with the WSJ where he went into much more detail about the problems associated with ACTA. It's really worth reading the whole thing because while defenders of ACTA (like defenders of SOPA before them) keep insisting that the complaints are based on misinformation, you can't accuse the very guy Parliament had investigate the agreement of being a victim of misinformation. Here's a snippet:
The problem with ACTA is that, unlike its title indicates, it is not only an agreement related to the fight against counterfeiting, but a much broader agreement meant to tackle all forms of violation of intellectual property rights, including on the internet. And here I am very much concerned because I (and many international experts) consider that the text of the agreement breaks this very fragile equilibrium between interests of right holders and protection of civil liberties. I would like to give two examples to illustrate this concern.

First is the article 11 of the agreement, which states that the right holder has the right to ask for information “regarding any person involved in any aspect of the infringement or alleged infringement”. This article is worded in such wide and unclear terms that it leaves a great deal of room for interpretation. In practice, almost anyone could be linked to an infringement of intellectual property rights and face criminal sanctions under such a vague definition. It is our responsibility as legislators and people’s representatives not to leave it to a judicial authority to decide of the scope of an agreement which could affect people’s civil liberties.

The second is the issue of having travelers’ personal luggage searched at borders. ACTA foresees that the use of counterfeited goods on a commercial scale can lead to criminal sanctions. But here again no definition of “commercial scale” is given. Article 14 of the agreement clearly states that, unless contrary action is taken by one of the parties, it is possible to search people’s personal luggage, including small consignments. So if a traveler has on his laptop or MP3 player a tune or movie downloaded illegally, could he face sanctions ? How many tunes or movies would one need to set up a commercial illegal activity? In theory one would be enough… The problem again here is that ACTA does not give any clear indication. Besides the fact that it is an extremely sensitive issue to authorize for the search of all travelers’ luggage, and personally I am totally opposed to it, I see here a great risk for abuse and unjustified sanctions.
Later, he explains how those backing ACTA, by saying that it won't have any impact on EU laws, are being misleading. He says that if that's true, then the document is useless. And if it's not true, then it's a threat to people's rights:
So if ACTA does not create any new rights for this foreign company, what is the point of the agreement? Or is it that only our companies gain new rights for the action they want to take in partner countries, while the companies set in these partner countries do not gain anything? The argument of the Commission is that ACTA does not change anything for European citizens, but that it represents a huge progress for our companies operating abroad. This is not serious. Maybe, if China or India had been part of the agreement, we could have considered that ACTA was a way of exporting to these countries our legislation which is very protective of intellectual property rights. This could have been a real progress. But this is not the case, almost all ACTA parties are developed economies with well functioning judicial systems. The conclusion is simple: either ACTA is useless, or it is a threat.
Later in the interview he explains some of the reasons for his resignation, including the claim that some in Parliament more or less were trying to use some obscure procedures to force him into getting the document ratified in a very short period of time -- a timeframe he describes as "surreal for such a controversial file."

That point becomes even more important as information comes out about Arif's replacement, David Martin, who appears to not have a very good track record on issues like this. This is unfortunate. Apparently a few other Parliament Members who were in line for the job, but who had already taken stands against ACTA, turned it down. So, it may have fallen to someone who will say it's fine.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Feb 14th, 2012 @ 6:42am

    as being against ACTA is a sure-fire way of not progressing your career, why do you think he got the job? just another 'yes man', same as Karel De Gucht (he reminds me of a US official. perhaps he commutes between Congress and the EU Commission? he should do. he's a big enough liar to be in both!)

     

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    Killer_Tofu (profile), Feb 14th, 2012 @ 6:50am

    A Shame

    This makes it really a shame that Kader Arif resigned. Now that there is greater support for shooting ACTA down, having him in that position still would have been quite good.

    I am guessing he just didn't see the tide turning so quickly against ACTA so he was resigning to help draw attention to it. Thanks to the US copyright crazies though they pushed way too far with SOPA and it has helped draw worldwide attention to the great overreaches of copyright and 'international agreements'.

     

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      E. Zachary Knight (profile), Feb 14th, 2012 @ 6:58am

      Re: A Shame

      He probably saw that because of his position on ACTA his position in government was going to get very uncomfortable and didn't want to deal with all the crap.

      There are a lot of people in power that want ACTA and they will not stand to have anyone against them.

       

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        Killer_Tofu (profile), Feb 14th, 2012 @ 10:20am

        Re: Re: A Shame

        A very plausible thought. Those in power do seem to love to push everybody else aside so that they can continue to be the 1%. His job may indeed have run into a lot of hardships after ACTA gets smacked down (which it better).

         

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    Ima Fish (profile), Feb 14th, 2012 @ 7:11am

    Look, you either support ACTA or you support child pornography, terrorism, and halitosis. Not necessarily in that order.

     

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    identicon
    Anonymous Coward, Feb 14th, 2012 @ 7:18am

    I believe the individual who left his position has misconstrued the agreement. In business we routinely prepare what are known as Memorandum of Agreements, or MOUs. They are merely broad outlines, and not meant to burden each party with substantive rights and obligations.

    I have always viewed ACTA as a governmental equivalent of an MOU. It provides basic understandings, but leaves it up to each signatory significant leeway on how they each choose to implement its understandings consistent with domestic law.

    One feature that has not been mentioned is that even if a country signs the agreement, there is a specific opt-out provision with no negative consequences.

    It is said, unfortunately, that ACTA is an attempt to export US law to other countries. What is overlooked is that much of what comprises provisions now in US law (amendments made since enactment of the, the 1976 Act) is based upon international treaties to which the US is a party, provisions that have been culled back to reflect basic principles under US constitutional law. Frankly, I see this as a strength. For example, US law embraces First Amendment principles, something that is not a feature of the laws of many foreign countries. As for things like statutory damages, injunctions, criminal provisions, etc., they are presented in a manner that in many cases are permissive, with each country having the freedom to decide what best serves its interests.

    Just some observations.

     

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      identicon
      John Doe, Feb 14th, 2012 @ 7:25am

      Re:

      It provides basic understandings, but leaves it up to each signatory significant leeway on how they each choose to implement its understandings consistent with domestic law.

      An therein lies the problem. Obama signed this into law and the president of the US does not have the power to enact copyright law, that is left to congress. So this agreement is, or should be, toothless in the US but we all know that isn't what will happen, don't we?

       

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        John Doe, Feb 14th, 2012 @ 7:31am

        Re: Re:

        The more I read your post the more baffled I am by all the weasel clauses. Opt-out provisions, each country implements its own understanding of the act, etc. Why sign it if it really doesn't mean anything or if you can opt out of any part you want? You appear to have a stake in this thing as you try to paint a rosy picture of it but fail badly.

         

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          Anonymous Coward, Feb 14th, 2012 @ 7:42am

          Re: Re: Re:

          I have ZERO stake in this matter. I am just pointing out that many comments criticizing what the agreement incorporates are based upon an incorrect reading of its provisions.

           

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            John Doe, Feb 14th, 2012 @ 7:55am

            Re: Re: Re: Re:

            So the critics are reading it wrong? If there are so many, and there are very many, people reading it wrong, then maybe it isn't written too well?

             

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        Anonymous Coward, Feb 14th, 2012 @ 7:40am

        Re: Re:

        The President did not enact any US copyright law, so to say that Article 1 has been violated is simply incorrect.

         

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        Anonymous Coward, Feb 14th, 2012 @ 7:40am

        Re: Re:

        "It provides basic understandings, but leaves it up to each signatory significant leeway on how they each choose to implement its understandings consistent with domestic law."

        An therein lies the problem. Obama signed this into law and the president of the US does not have the power to enact copyright law, that is left to congress. So this agreement is, or should be, toothless in the US but we all know that isn't what will happen, don't we?

        Several generations of past practice and law seem to disagree with you:

        From Findlaw:

        The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between ”treaties” and ”agreements” or ”compacts” but does not indicate what the difference is. The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.
        During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded.

         

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          Gwiz (profile), Feb 14th, 2012 @ 7:51am

          Re: Re: Re:

          Interesting numbers.

          My question is this:

          How many of those executive agreements throughout history were outside the purview of the executive branch of the US Government?

           

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          Torg (profile), Feb 14th, 2012 @ 8:14am

          Re: Re: Re:

          Of course there are more executive agreements. Anything that doesn't require Congressional approval is a lot easier to do. That doesn't mean that one is appropriate in this case.

           

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      Torg (profile), Feb 14th, 2012 @ 8:09am

      Re:

      US copyright law only embraces First Amendment principles for those that can afford to go to court when those principles are violated. As those performing takedowns can usually afford to go to court much longer than their victims can, that is very few.
      Permissive agreements may work fine for businesses operating more or less on the same level as each other, but governments do not operate on the same level as their citizens. Given how popular SOPA was in Cingress, no one trusts a copyright bill that doesn't have very clear limitations to be interpreted in any way but as broadly as possible. We're just not willing to take that risk.
      Opt-out is bullshit. If a country didn't plan on following the treaty they wouldn't sign it.

       

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      JACKN, Feb 14th, 2012 @ 9:11am

      Re:

      For example, US law embraces First Amendment principles,

      not a very good example

       

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  •  
    identicon
    Anonymous Coward, Feb 14th, 2012 @ 7:39am

    "So if ACTA does not create any new rights for this foreign company, what is the point of the agreement?"

    ACTA actually does create rights, and it also helps to lower the legal burdens that exist for rights holders. It also makes it easier for people in general to understand the laws on IP in at least general terms, because there would be less variance from country to country.

    It also helps the countries involved to avoid becoming safe havens or offshore hiding places for illegal activity.

    Interestingly, ACTA could also lead to a more widespread acceptance of the concept of fair use, and that fair use being similar in most places. That would make it much easier for those who choose to work in those areas to be legal in all marketplaces.

     

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    •  
      identicon
      Anonymous Coward, Feb 14th, 2012 @ 8:23am

      Re:

      If it does create rights, it changes current law.
      If it lowers the legal burden for rights holders, it changes current law.
      If it lessens the variance from country to country, it changes current law.

      So you just admitted that it changes the law, which was one of the main (if not THE main) "don't worry" line in EU. Thank you.

       

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        identicon
        Anonymous Coward, Feb 14th, 2012 @ 8:39am

        Re: Re:

        Nice, but no.

        Within current law, you can expand or contract rights based on interpretation and implementation.

        US based fair use has been widely expanded without the law being changed. Would you consider that to be impossible in your black and white world?

        The creation of rights within an existing framework doesn't require changes to laws, it requires changes to interpretations. If by treaty the US extends fair use to include remixes by Marcus Carab, we don't need to change the law, because it's just an extension of what is already framed in the law.

        See how that goes?

         

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          identicon
          Anonymous Coward, Feb 14th, 2012 @ 9:06am

          Re: Re: Re:

          Ok, so what you are saying is that the letter of the law does not need to be changed, just the interpretation changes.

          I am not a lawyer, just a normal citizen. For me and other ordinary people it doesn't matter what is exactly letter by letter in the law - we want to know how it is applied or can be applied, and that is exactly what interpretations and precedences are for.

          Besides, I was speaking about EU, not US. I don't know about US, but in my country adding "right holder can get your personal data if he THINKS that you infringed on his rights" is not even close to current interpretations of copyright law (and we also do have some really stupid interpretations here, mind that).

          Under Vienna convention, interpretations of agreements like ACTA are interpreted on the basis of what has been said during negotations, but these documents are classified. Pretty handy to make people sign something that they have no way of knowing how it works. In private business that is called contract abuse and is punishable (there are institutions that govern that), guess international agreements do not need common sense.

           

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          A Monkey with Atitude, Feb 14th, 2012 @ 9:17am

          Re: Re: Re:

          Here we go again with the "interpretation" bs line.
          So if we choose to "interpret" your corporate drivel as being a gooseberry unworthy of comment, that's OK right?

          And of course if we in the USA decide to "interpret" that the ACTA is a crock of crap, and it should be ignored and deleted, that's OK too right? we are just "Interpreting in the framework"

          So glad I am an Engineer with actual Science backing what I do and not this legal crap Bs... Hell maybe that's the solution.. new law... All Legislative and Executive offices shall be held by anything other than lawyers (Doctors, Engineers, Scientist) to kill off this brand of stupid...

          Besides its a conflict of interest right? lawyers writing the laws they later get paid to practice?

          Your either for ACTA, or you kick homeless musicians in the gonads with spiked shoes...

           

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          •  
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            Torg (profile), Feb 14th, 2012 @ 9:39am

            Re: Re: Re: Re:

            While I like your proposal in principle, in practice enacting a law banning lawyers from holding office is just asking to have Congress filled with theologians.

             

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              identicon
              A Monkey with Atitude, Feb 14th, 2012 @ 2:12pm

              Re: Re: Re: Re: Re:

              Ban them too... see equal... Hard Sciences only... :) yes i know biased and all but at least we have formulas :)

               

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    identicon
    Anonymous Coward, Feb 14th, 2012 @ 8:23am

    nice to gloss over his words, since that way it aligns with your position

    read it again, he likes it if it defined better the rights of each and define commercial scale,

    if this treaty allowed him to force his laws on other countries, he would have been all for it

    and to search luggage at the border, they can already do that

     

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      silverscarcat (profile), Feb 14th, 2012 @ 8:41am

      Re:

      They can search luggage at the boarder, yes, but can they force you to turn on your MP3 and computer to look for infringing material?

       

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    identicon
    Anonymous Coward, Feb 14th, 2012 @ 9:19am

    "It's really worth reading the whole thing because while defenders of ACTA (like defenders of SOPA before them) keep insisting that the complaints are based on misinformation"

    It's straight out of Obama's playbook. If you don't agree with him, it's because you don't know what he's talking about. How many times do you hear him say "Let's get one thing clear" the second someone questions him?

     

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    identicon
    Gie, Feb 14th, 2012 @ 9:57am

    No ACTA!

    Romania/Bucharest. Not a pirate. Do not agree ACTA. Fight.

     

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    Rekrul, Feb 14th, 2012 @ 1:56pm

    So, if I understand the situation correctly, he was so upset about ACTA and what a bad idea it was, he quit his job rather than oppose it. Then, all the politicians who were also against ACTA and thought it was a bad idea, turned down the position where they could have fought it. Which paved the way for them to hire someone who would be favor of ACTA.

    In other words, they all think that the best way to oppose ACTA is to stand by and do nothing while 'yes men' pass it without opposition?

    Yeah, I'm sure that will do the trick...

     

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    identicon
    Rottweiler, Feb 14th, 2012 @ 2:49pm

    ACTA; ces't fini?

    Hi there, I think I found something interesting, according to the President of the European People's Party (EPP) in the European, Joseph Daul, "ACTA is over". Do you know anything else about this statement?

    Source: http://www.cuej.info/europe/la-session-au-jour-le-jour/pour-joseph-daul-acta-cest-fini (french website)

     

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  •  
    identicon
    Rottweiler, Feb 14th, 2012 @ 2:59pm

    Duch Parliament backing away from ACTA

    The Dutch Lower House has backed a motion from the Green Left party which says that the Netherlands should, for the time being, refrain from signing an international treaty designed to combat piracy and counterfeit trade on the Internet.

    http://www.rnw.nl/english/bulletin/dutch-parliament-opposes-ratifying-acta

     

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    identicon
    Chris Legaspi, Feb 19th, 2012 @ 6:47pm

    i love ACTA, but yet i love child pornography so therefore my favouritism is clashing :o

     

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    Brandon Naksavath, Feb 20th, 2012 @ 5:13pm

    I agree with what you said Chris Legaspi but isn't it a bit too much to be saying that on here. I mean I would totally understand it if you were to say something like hentai or something then that would be a lifesaver but child pornography? seriously! we now live in the age of hentai (anime pornography) which is what I usually watch.

     

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