I've read the final version of ACTA, here's what you need to know about it.
It can be found [1] here
Firstly, let's take stock of how this is progressing.
- Australia, Canada, Japan, Republic of Korea, Morocco, New Zealand, Singapore, and the United States have signed ACTA
- The EU as a bloc, Mexico, and Switzerland all want to move to signing ACTA in the future.
Why is there such a controversy about ACTA?
- A considerable part of this is because we didn't know what was in it. The negotiations were conducted in secret for several years, and some governments refused to honour freedom of information requests. It has started to get the sunshine treatment since a leaked draft of the document emerged last year.
- Another part was legitimate fear that it would trample all over individual rights. This is the concern and we'll have a look at it in a minute. But first:
Understanding how a treaty differs from a national law
ACTA is a treaty. It is signed by multiple governments and does not involve the legislatures of these states (except some states, like the US, who later ratify the treaty). However that isn't the end of the story.
If you read through ACTA (look to the top) it should become immediately clear to you from the continous use of this language:A Party may provide...
Each Party shall..
That ACTA has no domestic force.
So what does it do?
In a nutshell, it gives each signatory authority to create laws that satisfy ACTA's requirements. Without getting into the issue of monism and dualism (international legal concepts for how treaties embed themselves into domestic law) it simply means that until signatory states create enforcing legislation, ACTA does nothing.
An example would be that, once passed, a US federal act that enforces ACTA is immune from challenges over states rights (though not bill of rights challenges). To be frank this isn't too controversial, there is nothing in ACTA that doesn't satisfy the inter-state commerce clause anyway.
So undersand that ACTA isn't really the issue. What people need to be prepared for is how states implement it, which is where scope for abuse is.
What are the dangerous parts of the treaty?
First, throw out any past assumptions, youtube videos, or otherwise you've read or watched. The final draft of ACTA is much weaker than previous drafts. We'll go through the bits that could be abused, but understand this:
If implemented with respect, ACTA doesn't do much more than standardise across several countries enforcement law that pretty much already exists in some countries (the US clearly had a hand in getting other countries to pass laws similar to its own on infringement). That said, let's take a look:
Article 6.1Each Party shall ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
This is the core of the agreement. Each signatory will create laws that give effect to the parts of the agreement, which is broadly to give remedies and rights to IP holders that can be applied quickly and effectively. There is scope for abuse in so far as a signatory might be overzealous and pass unfair legislation, but it isn't demanded by the treaty.In implementing the provisions of this Chapter, each Party shall take into account the need for proportionalitybetween the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties
Key point here. The treaty clearly states that it does not, and can not, make countries infringe their own civil liberties and rights in pursuance of the agreement. Again, it is up to the public to make sure their legislators deal with this fairly.
Article 8.1Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce.
This instructs signatories to create a power to give an injunction (order to stop) against infringing practices. This is not new in many states. A company engaged in piracy can already be ordered to stop in many jurisdictions, and I'm reading this part as a harmonization effort; so all signatories have similar standards.
Article 9.1 DAMAGESEach Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, a Partys 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
This is a serious worry to sites like megaupload. It means that signatories must create a framework of assessing damage based on lost profit from the infringement. Again, as those of you who have read about RIAA or MPAA lawsuits, you will know that this already happens to a degree; this law will create a framework around which this operates.
There is a question of how this will apply to individuals as opposed to companies. I'm wondering if, as damages are assessed on lost profit, the argument that "I wouldn't have bought it anyway" would shield an individual torrenter from having to pay up. Ultimately this issue will be determined on a nation by nation basis, as their judiciary interpret the enabling legislation. Given the mass engagement in piracy by individuals (including legislators and officials), I imagine it will be softened against non-commercial infringers.
Article 11 Infringement related provisionWithout prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.
This is probably the first really worrying bit. It means that an ISP may be required to give up information on subscribers if a rights holder is planning a lawsuit. However, let's bear in mind 2 parts of the treaty:
- Without prejudice to ... the processing of personal data . This means that if existing law protects the privacy of subscribers, or if legislation is passed to do so, this part is inoperative against ISPS.
- Such information .. [that the] .. infringer possesses or controls. Aha. If an ISP only keeps IP logs for a month, or doesn't do so at all, then the copyright holder is without any recourse. You can't hand over information you don't have.
A worry is that this part, along with other laws, could lead to issues. Consider the Orwellianly termed "Stop Child Pornography Online ACT" that congress, now that it's killed SOPA and PIPA, is considering. That bill requires ISPs to log information on their subscribers to stop child pornography, but under enforcing ACTA legislation, could be ordered over to sue copyright infringers. To stop this, congress would have to protect the data collected in the child pornography act so it qualifies for the first bulletpoint above.
Article 14 Border measures
This was one of the most controversial parts in early drafts. It previously would have meant customs could check your ipod or laptop at a terminal and hand over 'infringement' (torrented music, etc) information to copyright holders. Thankfully this part has been declawed, or at least there is the ** opportunity** to do so. I won't go over the parts that apply to chinese bootleggers shipping container crates full of pirated goods, for the little guy:
- Each Party shall include in the application of this Section goods of a commercial nature sent in small consignments.
- A Party may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travellers personal luggage.
Okay. So part 1 applies to sending packages in the mail, and even then internationally. If you send a burned DVD of a game or a movie, it can be intercepted and information allowing a lawsuit passed onto the copyright holders.However, a copyright holder has to provide actionable reasons for doing so. Border agents may use 'initiative' to do so on their own, but to be frank I cannot anticipate any state authorising agents to check all international freight; it would be ridiculously expensive. I see this part applying perhaps to known small-time infringers (e.g. someone operating a pirated delivery service on ebay, or at worst a company that burns large media files to disc to send to low bandwidth customers)
Part 2 is where you come in. A concern by some of the signatory states was that they weren't going to rifle through peoples baggage or check their carry-on laptop for downloaded movies. This part allows signatories to do nothing about those issues, and its really a case of watching your national legislature and making sure they don't pass baggage search laws for pirated goods.
Section 4 Criminal enforcement
I'm going to gloss over this part, because it only applies to infringers who do so on a commercial scale. Yes, that means companies like megaupload can be taken down but, as you are probably aware, this part is already implemented in a number of countries in some form. Again, remember that this treaty is for the most part aharmonisation effort to get various jurisdictions enforcing infringement in the same way. This is a personal opinion of mine, but I think that while individual piracy is fair enough, making money off it isn't.
A point of interest is that people who film in cinema halls are directly and specifically targeted by this part.
Section 5 Article 27.4 Digital enforcement (uh oh)A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights.
These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Partys law, preserves fundamental principles such as freedom of expression, fair process, and privacy.
So this makes the above general part about infringement crystal clear in a digital environment. Of note is that, again, whilst ISPs may be ordered to hand over information on infringers, there is nothing requiring them to gather information to do so, and there is a specific clause " These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity " . Which gives ISPs a fighting argument that any newburdens on logging users would be a barrier to their current conduct. The privacy clause is also a strong piece of ammunition for legislatures that actually give a damn about their citizens.Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law.
Effective technical measures means DRM.
Now this means that a company that creates software that specifically aims to disable DRM is liable for a lawsuit and (remember the criminal element) is liable to criminal sanctions if they do so knowingly for profit.
There are two points to make here :
- A great deal of DRM stripping software today is open source of freeware. There is nothing in this treaty that controls the flow of information on the internet, and so long as there is no company or group to take down, there is nothing stopping P2P software exchanging that blu-ray ripper or what have you.
- Further, let's look at part 6(b)
(b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:
(i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or (ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.
My emphasis. We may as well call that the betamax clause. Which means if there is a legitimate function of the device or software, it will be immune from any actions taken. Again, there is a discussion of what the courts will do here, and how the incorporating laws will treat the issue, but there's nothing to worry about per se from the treaty itself.
Chapter IV International Co-operation.
Well while it won't affect individuals, this part will no doubt help countries co-ordinate efforts against torrent trackers and similar sites. It means that an operation like taking down Megaupload or thepiratebay (from a few years ago), whilst still requiring going to a court, getting the judge to agree and all the rest of due process, will be much easier to put into operation. It means that countries like the US will no longer have to spend months getting individual states to agree to let LEA raid servers; under ACTA provisions, *once the court in one country has agreed, * enforcement can take place quickly.
Summary : How does it affect me?
To be blunt, for individuals there is not a great deal of change, at least if you live in the US (or to a lesser extent the UK). I'm not familiar with the law of the other signatories, but if you frequent reddit, expect similar copyright enforcement standards as the US (the Scandinavian countries are going to ing love this...)
The dangers are in how the bill is implemented, with the following issues for individuals:
- Will the enabling legislation require ISPs to keep more detailed logs that can be handed over to copyright holders? Will other legislation (like the child pornography act) successfully pass and not protect the data from non-criminal investigation use?
- Will government ignore ACTA's opt-out on personal luggage and carry-on goods? It would be monstrously stupid if they did
- Will governments shrink the betamax style permissiveness on technologies that can be used for infringement but have other uses aside?
For regularly legitimate companies there are the following:
- Am I mainly enabling piracy? Megaupload for example. This isn't to say all digital locker sites are in jeapordy; the fairness requirements in the treaty should, if implemented properly mean that sites that promptly remove infringing content are safe.
- Am I selling things that primarily enable infringement? This will probably mean an end to modchip sellers for xboxes and the like. Heavy criminal and civil penalties mean it will not be a very smart business to be in
- Will I get a betamax exemption for borderline cases? This is what requires careful observation of individual legislatures. If they it up, things like DVD authoring software could be in trouble.
For companies that almost wholly pirate or facilitate the piracy of goods knowingly
- Cat and mouse is going to get a lot harder in signatory states. Coordination requirements mean the hammer gets brought down faster
- You will likely go to jail if you are profiting from piracy. I'm not going to lose much sleep over this myself. If something is going for free in a torrent, fine. But if someone is making money off it, it's only right that it be the copyright holder that does so.
Your 'right' to torrent. What happens next?
This in a way highlights the futility of this agreement for anything other than unlawful profiteering from piracy.
Every. Single. Time. Government and copyright holders have tried to clamp down on piracy, it has backfired and led to more robust, harder to combat forms of piracy.
You may have read that thepiratebay is switching to magnetlinks. Now, instead of a tiny torrent file, all it takes is an even tinier link to start downloading pirated material.
I'm not a tech expert, but even I can imagine, should websites like thepiratebay becomes impossible under ACTA, that a new generation of torrent clients that incorporate something like TOR, and 'host' the magnet links across all computers on the network, could become possible. If that happens, the genie really is out of the bottle; ACTA lets companies sue individuals if ISPs keep the information needed to identify people, but even then they can't sue everyone. There is a victory waiting for media corporations in ACTA's implementation, but it will be a profoundly pyrrhic one.
What do we do about it?
Hopefully I've made it somewhat clear that ACTA is really a combination of existing enforcement mechanisms, and agreements to create new mechanisms that MAY be abused when passed into law.
PIPA and SOPA could easily resurface as 'ACTA-enabling legislation' for example, but that doesn't mean implementation of ACTA must be so draconian.
So long as the online community can be as active as it was last week, ACTA can be implemented in a pretty fair way (for-profit infringers aside). Two big points to dwell on:
- I have no doubt congress will try to resurrect the nasty bits of SOPA and PIPA, as well as some new RIAA/MPAA sponsored madness, under the guise of ACTA. It must be resisted when it emerges
- The EU is a potential problem. It was great to hear one of the Commission's VPs condemn SOPA and PIPA, but I won't rule out cognitive dissonance seeing to it that the EU proposes just as bad legislation. This is particularly a problem because most people haven't the faintest ing clue what the European Parliament does, and it would be all too easy to sneak an overzealous implementation of ACTA through it. That said, the pirate party and some of the other civil libertarian parties will no doubt kick up an appropriate fuss when it comes up. EU citizens should be prepared to react to it. There's the final hope that the ECJ will on the Commission's cornflakes (which is one of its hobbies) but it really shouldn't be getting to the point where we must lean on a court to right poor legislation.
Summary
ACTA itself is not too bad. It is an agreement to create new laws in each signatory state, and most of the rules are either fairly reasonable, or are wide enough in scope to be handled reasonably.
Don't make the treaty itself an issue. It has already been signed by most of its initial target, and the others are going to jump on soon enough. It isn't nasty enough to warrant a fight, and it fundamentally weakens the online user's position to shrilly protest what it a relatively tame enabling treaty.
The fight will come when legislatures implement it, and you should be ready to protest stupid, draconian or unfair implementations of the treaty.
