Time To Go: Why EU Commissioner De Gucht Has Disqualified Himself From Handling ACTA

from the he-really-doesn't-get-it dept

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.

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.
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.

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!

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.
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.

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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Filed Under: acta, copyright, eu, eu commission, kare de gucht

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  1. identicon
    Anonymous Coward, 2 Mar 2012 @ 9:47am


    No one can argue that millions of creative works are pirated. The effect of that piracy is difficult, if not impossible to determine. Estimates are made by both sides of the issue (the pro-piracy side and the anti-piracy side). Obviously, these estimates are made to cast the most favorable light on the respective positions. The truth is probably somewhere in the middle.

    Nope, but one can prove empirically that the harms done by it are firmly in fantasy land.

    If that were true open source would not exist, right?
    But still open source which says you are free to copy, modify, distribute and sell is a growing ecosystem, vibrant full of people creating and being paid to do so, how do you dismiss reality?

    Red Hat is a billion dollar company and all their "products" are pirate endlessly, where is the harm again?

    Open source alone disproves all those assumptions of harm, it also proves that one doesn't need a government granted monopoly to sell anything, he can do it even in the face of rampant copying.

    Do I think money is being lost? Nope, maybe spent somewhere else but not lost, how can you lose something you never had? potential sales are not sales are abstractions, assumptions or in the vox populi just dreams, why are people using rumors to decide serious business directions is beyond me.

    I do not believe that piracy has a net-positive effect on sales.

    Japanese animes conquered the world on the back of piracy, was that not a net positive outcome?
    Open source is thriving despite everybody being able to pirate it, is that not positive?

    I personally have converted some pirates into paying customers. I did so by explaining that the content creators invested time and resources into the production of the creative work. I explained that they are requesting a relatively miniscule percertage of the production cost for the opportunity to experience the piece.

    Did you explain also to them they will be paying those people everytime they go out, they go to the gym, they enter a mall, buy a storage device and will do so until the day they die?
    Of course not.
    Lets see how you feel if you was the one having to pay the makers of the tools you use to make money royalties until you die and you had to pay levies and everything you ever bought had you paying a fee for them.

    I doubt you would find it fair if you had to pay royalties for the car makers for the use of said car for driving to work where to gain money, I mean without that car would you take the bus to go to work? could you transport actors and equipment to a remote area without those vehicles? So why are you not paying the car makers royalties on every penny you make?

    Oh that is right only a class of people can do that because somehow they are more important than the rest of society.

    Oftentimes, people are not aware that piracy is costing the rightsholder money. The rightsholder has already paid the actors, the director, the scriptwriter, the camerman, etc.. for their work. But if the return on investment is negative (yes there are a LOT of movies and albums that actually LOSE money) or if performance is lackluster, these people will not be given new opportunities.

    That is not a problem for the public, is the problem of whomever is trying to do that work, but really between giving up my own rights so you can uphold your sense of entitlement that is an easy choice screw the entertainment industry.
    I'm not accepting censor laws just because some douche in a couch wants more money, I'm not accepting more restrictions on what I can use and how I can use it.

    If I paid for a CD or a movie I should be able to play that without having to pay anything else on top of that, content owners are stealing from the public and that is just wrong, not to mention that they don't even need a government granted monopoly to be in business which makes the granting of said monopoly even more immoral.

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