ACTA

[karo]

So it seems now that they couldn't get SOPA passed in the US now they are trying to get ACTA passed in the EU.

http://www.zdnet.co.uk/blogs/communi...ning-10025297/

A French MEP has quit the process of scrutinising ACTA for the European Parliament, calling the treaty's passage through the EU legislative system a masquerade.

In a statement on Thursday, Kader Arif denounced the signing of ACTA (the Anti-Counterfeiting Trade Agreement) by the EU and 22 member states earlier in the day. He said the European Parliament was being undermined and the process was a "charade" in which he would no longer participate.

An EU diplomat signed ACTA, which is aimed at harmonising the intellectual property enforcement regimes of many countries, on behalf of the European Commission, along with member states including the UK.

http://tacd-ip.org/archives/404

At the G8 summit, the Anti-Counterfeiting Trade Agreement (ACTA) signing procedure will be initiated by its negotiating parties, namely the US, the EU, Switzerland, Japan, Canada, Australia, Mexico, Morocco, New Zealand, Korea and Singapore. Its official purpose is to set a legally binding framework for the enforcement of standards on intellectual property rights. Its overly extensive target includes counterfeit goods, generic medicines and copyright infringement on the net.
By nature, substance and object Acta is unacceptable. Not only from a Green point of view, but more largely from a European point of view, Acta is in breach of two fundamental principles: democracy and fundamental freedoms.
Unacceptable by nature – a failed legitimacy
In its process, Acta challenges the usual classification of international agreement, and is some kind of a legal UFO whose nature is in breach of many basic democratic principles: accountability, reversibility, transparency.
1. Acta empties out multilateralism: Negotiated behind closed doors by its parties, leaving out developing countries, without any democratic accountability at UN, EU or national level, in spite of the clear rules set by the UN for international negotiations.
2. Acta avoids most democratic decision-making processes: Extreme secrecy, lack of transparency and the agreements objectives, absence of impact studies on proposed provisions are all ominous signs of a will to bypass the necessary public debate on the substance of the agreement. The broader public was made aware of the negotiations only through leakages was made aware of the negotiations.

22 EU countries have already signed this only Germany, Cyprus, Estonia, the Netherlands and Slovakia haven't signed this.

This was all done in secret, democracy is dying one step at a time. And this doesn't only affect copyright on the internet but also things like this;

One example: Monsanto could have rice crops in-transit from Thailand to Ehtiopia seized, and possibly destroyed, by customs in Singapore on the claim that it suspects the shipment is infringing one of its seed patents.

[Manuel I Komnenos]

I am aware that those who support piracy in Europe are many and are so organized that they have even created pro-piracy political parties -the Greek piracy party will open in a few months. Hopefully, their pressure will be enough to reverse this anti-democratic act.

[Yoda Twin]

Ok, people need to stop jumping on bandwagons here, there is quite a difference between SOPA and the ACTA, one being that ACTA as an international treaty doesn't create law in signatory states, merely seeks and guides the signatories to pass similar laws for various areas of law.

Here's a reasonably thorough explanation of the treaty, sorry if the formatting is a bit rough, I'm in a bit of a rush.

Spoiler Alert, click show to read: 

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 6.1
Each 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 proportionality between 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 8.1
Each 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 DAMAGES
Each 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 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
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 provision
Without 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 a harmonisation 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 Party’s 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 new burdens 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.

http://www.reddit.com/r/politics/com...eres_what_you/

EDIT: Spoilers added.

[2-D Ron]

Though I welcome that big time Piracy Firms get shut down, like you said this is down to Countries to decied what parts of ACTA they will implement/write into law.

Personnaly I'm paranoid at this, if our current Government takes a stand against ACTA's Legislation, who says what the next Government will think?
I see this solely as an appeasment and what is stopping them pushing for further legislation? A slow creeping of 'SOPA like' legislation.

And how long before they start to Extradite people for illegal downloading to somewhere like the US for downloading a few Songs or for simply linking to Copyrighted Content and it has happened?

[Pontifex Maximus]

Anything that gives Monsanto more power should be opposed at all costs.

[Rero]

https://secure.avaaz.org/en/eu_save_...ead/?slideshow

[mAIOR]

OK guys. Since the petition was already posted, here are some links with further info on ACTA and the contacts of the MEPs for all EU countries which are part of the committee responsible for the analysis and implementation of ACTA. All EU citizens who are against it just select your country and flood your MEP with emails expressing your direct opposition to this nonsense.

http://www.edri.org/edrigram/number1...rong-with-ACTA

https://memopol.lqdn.fr/europe/parli...mmittee/DEVE/#



Cheers and let's stop this before it goes any further!

[Yosemite]

theres a petition for the us to review acta
https://wwws.whitehouse.gov/petition...Mt#thank-you=p

[spanish_emperor]

Apparently some countries had already signed it on October.

[Kanaric]

I dont understand why they are passing these. The laws are in place to allow for them to take these people into custody that run these sites. This kind of law only allow sites like CNN or something to be shut down because some retard links to a theft site.

[justicar5]

I dont understand why they are passing these. The laws are in place to allow for them to take these people into custody that run these sites. This kind of law only allow sites like CNN or something to be shut down because some retard links to a theft site.

Because the music and movie industries want total control again, the ability to crush indy movies and bands, that had been doing well off internet distribution and sites like myspace and youtube, make those sites either shut down or be to paranoid to let people link music (even their own)

[Rero]

The little amount of discussion going on really scares me. Have anyone seen this mentioned in their local newspapers?

[MathiasOfAthens]

ACTA will

remove "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".

Articles 5 and 6 of the treaty provide creation of an "ACTA committee" which may make subsequent amendments to the agreement, subject to the approval of the parties. Public review or judicial review will not be needed to create amendments. Industry representatives may have consultatory input to amendments.

[karo]

ACTA will

remove "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".

Articles 5 and 6 of the treaty provide creation of an "ACTA committee" which may make subsequent amendments to the agreement, subject to the approval of the parties. Public review or judicial review will not be needed to create amendments. Industry representatives may have consultatory input to amendments.

So the committee can do as they please and us in any way they see fit? Did I get it right?

[Yoda Twin]

ACTA will

remove "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".

Articles 5 and 6 of the treaty provide creation of an "ACTA committee" which may make subsequent amendments to the agreement, subject to the approval of the parties. Public review or judicial review will not be needed to create amendments. Industry representatives may have consultatory input to amendments.

Mind stating a source for that quote? Also the ACTA can't have a "Will do" all it can do is encourage member states to comply with these agreements. The only danger with this agreement is legislatures going overboard in apply what the treaty desires, so before everybody goes crazy, take it up with your legislature if they do go overboard.

So the committee can do as they please and us in any way they see fit? Did I get it right?

No, the committee can only make amendments with the approval of the parties, which is stated in the above post. So it's exactly the same as if the treaty was still being drafted.

[karo]

No, the committee can only make amendments with the approval of the parties, which is stated in the above post. So it's exactly the same as if the treaty was still being drafted.

From what I've heard from government here in Belgium, they will do anything that the industry is asking them so will the US government the reason SOPA was stopped because we did freak out. And I really don't feel comfortable with giving some committee this much power when public review or judicial review is not needed to get new amendments. The core text may look innocent but the evil that can be done with it are so big that this has to be stopped now.

[Yoda Twin]

From what I've heard from government here in Belgium, they will do anything that the industry is asking them so will the US government the reason SOPA was stopped because we did freak out. And I really don't feel comfortable with giving some committee this much power when public review or judicial review is not needed to get new amendments. The core text may look innocent but the evil that can be done with it are so big that this has to be stopped now.

The freak out over SOPA was reasonable, as the legislation went way over the top. This treaty, is nothing like SOPA. None of it's articles are even close to the levels that SOPA went to. If the ACTA committee decides to go crazy all of a sudden (When it has actually been used to tone down the measures in the treaty quite considerably), then we can start having a SOPA-like freak out. Until then, relax your internets won't be in ruin.

[MathiasOfAthens]

Mind stating a source for that quote? Also the ACTA can't have a "Will do" all it can do is encourage member states to comply with these agreements. The only danger with this agreement is legislatures going overboard in apply what the treaty desires, so before everybody goes crazy, take it up with your legislature if they do go overboard.



No, the committee can only make amendments with the approval of the parties, which is stated in the above post. So it's exactly the same as if the treaty was still being drafted.

The treaty calls for the creation of an "ACTA committee" to make amendments, for which public or judicial review are not required. Industry representatives may have "consultatory input" to amendments.

Here and here (wiki) and here as well.

Border searches, random searches of your electronics, laptops and Mp4s.

In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow U.S. Customs and Border Protection agents to conduct random searches of electronic devices for "information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws."

So if you have some music on your laptop they might confiscate it if you cant prove the music is yours.

Link for the first quote in italics.

[MathiasOfAthens]

Yep

[Adhamh Ashashi]

I am going to wait till this is in statute in Ireland before I worry about it.