German Gov't Uses Anger Over Lack Of ACTA Transparency To Justify Further Lack Of Transparency

from the missing-the-point dept

Even though the ACTA text is now finalized, getting details from national governments about what exactly happened during the negotiations is proving extremely difficult, with information still trickling out slowly.

For example, as the Netzpolitik blog explains (German original), the European Commission tried to counter accusations that the negotiations were lacking in transparency by pointing out that the German government had a representative present during all the sessions (that's transparency?). This was news to people, since the German government had somehow omitted to mention this fact.

A natural question was therefore: who exactly took part? A German freedom of information request was put in to find out, and refused on rather remarkable grounds: that it might place the German officials who had been present during the negotiations at risk, because of the "emotional discussions" about ACTA that have taken place recently. The German government even claimed that threats of physical violence had been made against those who had taken part in ACTA, and so it couldn't endanger the persons involved by naming them.

This all seems pretty far fetched. I don't recall hearing about anyone threatening ACTA officials with physical violence, but I suppose it's possible that someone, somewhere in Germany, say, wrote something to this effect. However, the Germany government is really missing the point here.

The fact that such "emotional discussions" have taken place demonstrates how deeply frustrated people are at the continuing lack of transparency surrounding the ACTA negotiations. Using that previous failure to provide information to justify further withholding of details is only likely to exacerbate things. It's time for the German government, and the other signatories, to stop playing these bureaucratic games and to start engaging with their citizens through the release of more details about what exactly happened behind ACTA's closed doors.

As well as details of who took part, there is one other category of information whose release is vital: the preparatory documents used during the negotiations. That's because much of ACTA is worded in an extremely vague way, making precise interpretation difficult. In these circumstances, Article 32 of the Vienna Convention on the Law of Treaties presumably comes into play (pdf):

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 [General rule of interpretation], or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

Without those preparatory materials the true effect of ACTA is difficult to gauge, and those "emotional discussions" that are apparently so problematic are likely to become even more heated. And we wouldn't want that, would we?

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Filed Under: acta, germany, transparency

Wyden Tries To Get Anti-ACTA/TPP Amendments Included In JOBS Act Vote

from the won't-happen dept

There's a lot of talk about how the Senate is likely to approve the JOBS Act today with a procedural plan put in place by Harry Reid that limits the ability for any real amendments to be debated or discussed. Unfortunately, the JOBS Act has been more controversial than it should be, based on some misinformation being spread about how it's somehow dismantling all investor protections from Sarbanes Oxley.

The fact is, this is a situation where the original rules clearly went too far in requiring onerous regulations on businesses that didn't actually do much to stop fraud and abuse, but did make it prohibitively expensive for many good companies to go (or stay) public. There should be a middle ground that is not the "anyone can go public based on hype" days of the late 90s, and the much more limited public markets we have today. The JOBS Act may go a bit too far in raising the ceiling for the IPO "on ramp" to $1 billion in sales, but it's not the free for all that some have made it out to be. It gives companies more time to meet full (expensive) Sarbanes Oxley compliance, but opponents make it out like in these five years, companies will just completely make up their financial documents (even knowing that they'll face a reckoning when the on-ramp is over). Making the on-ramp slightly smaller probably would have made sense (and there was an attempt to do that, which appears to be dead in the water), but this is a case where you have a basic trade-off. Yes, you can add regulations to public companies, but it means you'll have fewer public companies, and less money to spend on creating jobs. That's a real trade-off, and one where those advocating specific plans do need to recognize the costs and the benefits.

Separately, there are many other features of the JOBS Act that make plenty of sense -- such as allowing small businesses to make use of crowdfunding. Currently, crowdfunding is possible for pre-sales or donations, but not in exchange for equity. Yes, there is risk involved, but there are some limits here, and to some extent, people should learn to understand the basic risks of what they're investing in before they do so anyway. These crowdfunded operations aren't going to be giant companies dealing with Wall Street for the most part, so the talk of how this helps Wall Street is mostly bogus.

That said, because of the political process that will get this through quickly, it appears that Senator Wyden won't get to introduce two amendments he proposed, one of which would have made it clear that the US can't agree to ACTA without Congressional approval, and a second that would have required the USTR to make its proposals public on international trade agreements. Hopefully, we'll see those proposals turn up elsewhere.

Filed Under: acta, jobs act, ron wyden, sarbanes oxley, silicon valley, tpp

Why The Chances of China Joining ACTA Or TPP Are Practically Zero

from the why-on-earth-would-it? dept

As Michael Geist and others have pointed out, ACTA is the Anti-Counterfeiting Trade Agreement without the main sources of counterfeits being involved -- notably, China. This has required some skilful footwork on the part of ACTA supporters, who need to justify the ratification of a loosely-worded treaty with potentially harmful effects on Internet service providers, civil liberties and developing countries, but which doesn't provide the key benefit claimed in its name. Here's how the European Union's representatives tried to deal with this issue in a "statement on IP Enforcement Trends" made at the WTO Council for TRIPS:

ACTA is an agreement between a limited number of countries.

But it is a significant first step. It establishes a nucleus of countries that are committed to the highest standards of intellectual property rights enforcement. A nucleus that will grow. The World Trade Organisation had a different name, a weaker structure and only nine members when it started out in 1948. After Russia’s accession later this year, nearly all world trade will be bound by its rules.

We would have liked to have negotiated this agreement at a global level. That was not possible. But the countries who have joined us in this agreement will soon begin to see the benefits of good enforcement, in terms of investment and in terms of innovation.

Since the vast majority of ACTA's participants already have "good enforcement", the last sentence only makes sense if it's referring to signatories like Mexico and Morocco. So is the EU seriously claiming that ACTA is going to lead to a flood of investment in those nations? If so, when? Immediately? In ten years? All-in-all, it seems a pretty dubious metric for the success of ACTA, and a poor incentive for others to join.

That's especially the case for China, which probably needs investment less than any nation on earth, since its currency reserves are currently around the $3 trillion mark. But even if external investment isn't much of an incentive, maybe there are others.

That wasn't the case back in 2010, when China was unconvinced about the value of ACTA:

Causing particular concern to them [India and China] is the draft Anti-Counterfeiting Trade Agreement (ACTA) being negotiated by Australia, Canada, the EU and its 27 member states, Japan, Rep.Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US. Briefly, China's and India's lengthy statements argued that ACTA and other agreements could:

• Conflict with TRIPS Agreement (a reference to TRIPS Art.1.1) and other WTO agreements, and cause legal uncertainty
• Undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements
• Distort trade or create trade barriers, and disrupt goods in transit or transhipment
• Undermine flexibilities built into TRIPS (such as for public health, and trade in generic medicines)
• Undermine governments’ freedom to allocate resources on intellectual property by forcing them to focus on enforcement

Of course that was two years ago, and ACTA has changed during that time. Perhaps China is more positive about it now. This is how it felt last week, when it was at that same WTO Council for TRIPS meeting:

China said many provisions of ACTA go beyond the TRIPS provisions.

Still not happy, apparently. But maybe China doesn't like the Western bias of ACTA, which basically consists of the US and the EU, plus a few other smaller nations thrown in to give a semblance of globalization. Perhaps China will join TPP instead?

A recent article provides some insight into China's attitude towards TPP, and its plans in this area:

For evidence of China's vision for an integrated East Asian political economy -- binding China, Japan, and Korea -- look at remarks of China's Commerce Minister yesterday in Beijing. Speaking at a press conference during the ongoing Chinese National People's Congress, Minister of Commerce Chen Deming's said of that Japanese entry into negotiations of the Trans-Pacific Partnership (TPP) trade pact, if it happens, "Should not be allowed to influence progress on other types of cooperation in the East Asian region."

Translation: Japan should give priority to and focus first on the talks being promoted by Beijing to create a regional Free Trade Agreement (FTA) which would closely bind China, Japan, and Korea.

In other words, far from contemplating joining TPP -- and thus helping to address the same issues about that treaty failing to deal with counterfeiting in the same way that ACTA fails -- China clearly wants to promote its own regional Free Trade Agreement (FTA) for leading East Asian nations. One reason is that China would be the clear economic heavyweight of that group, not the US as in ACTA or TPP.

That's the key problem with the ACTA proponents' vague hope that China will one day join a treaty it had no input on and which aims to shut down parts of its economy: ACTA would not only diminish China's sovereignty in terms of limiting what laws it could pass, it would also undermine its attempts to strengthen China's position as the undisputed regional leader in South-East Asia.

There is simply no benefit for China to join ACTA or TPP; and without China, both become largely pointless exercises.

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Filed Under: acta, china, counterfeiting, tpp

Obama Administration: ACTA Is Binding & Don't Worry Your Pretty Little Heads About TPP

from the condescension-is-king dept

We've covered how Senator Wyden has been pressing the administration on ACTA and TPP concerning the process behind both agreements. The State Department has now responded by admitting that ACTA is, in fact, binding on the United States.

Under international law, the ACTA is a legally binding international agreement. By its terms, the ACTA enters into force when at least six parties have deposited instruments indicating their consent to be bound. Accordingly, once in force for the United States, the ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations.

That's interesting, because it's what many people had assumed (and what other signatories to ACTA have been saying), but actually contradicts earlier statements from the USTR suggesting that we can ignore parts of the agreement that we don't like or which conflict with existing US law. It also means that, as we've been warning, ACTA dangerously restricts Congress from passing new laws that could push back on some of the worst aspects of copyright law. Sure, Congress could ignore ACTA, but there would be substantial problems if it were to do so. In other words, ACTA is binding on the US under international law... but not under US law. Of course, international law trumps US law here, so that's kind of meaningless.

And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval. In the same letter, the State Department says that it doesn't see any problem in having the President approve ACTA without Senate ratification, because it doesn't require any changes today. First of all, it's not entirely clear if that's true, and there are some areas where it is believed current ACTA provisions likely come into conflict with US law (though the USTR squeezes around this by saying that all depends on how you interpret the phrases in ACTA -- which seems like an issue of piss poor drafting of the agreement by the USTR).

Either way, the claim that this does not need Senate ratification appears to be incorrect. The fact that it is restricting Congress's ability to act on an issue which is Congress's mandate (not the administration's) suggests that there is simply no way that the President can sign ACTA without it being ratified by Congress. Even if it doesn't force Congress to change laws today, it does unquestionably hinder Congress' ability to change laws in the future.

Perhaps even more ridiculous is that earlier today, USTR Ron Kirk appeared before a Senate committee on trade issues, where Senator Wyden was able to ask Kirk about both ACTA and TPP. The answers were quite disturbing, and show the rather imperialistic attitude that the administration and Kirk in particular have taken on this issue: After repeating what the State Department said about it being binding, the discussion on TPP is downright ridiculous. Kirk insists that the USTR has been super-transparent on TPP. That's interesting, considering that no documents have been released, no efforts to discuss the document with the public are planned and, in fact, the USTR has planned to keep all background documents on TPP secret until four years after the agreement is ratified.

Wyden points out that the public is clearly up in arms over intellectual property issues, as seen by the response to SOPA and PIPA -- and notes that, currently, the USTR is requiring people to have security clearance to see TPP. He questions what's wrong with having the USTR publicly display what its own proposals are for TPP. He's not saying they should reveal trade secrets or proposals from others -- but make the US's own proposals public. Kirk insists that it's unfair to compare TPP to SOPA and PIPA. That would be a lot more convincing if we could actually see the details, but we can't, since we don't have security clearance and we haven't been "chosen" by the USTR.

In response to the request to put the proposals up publicly on the internet, Kirk insists that if we do that, we'll "never be able to negotiate another trade agreement again" because others wouldn't come to the table. Kirk made this identical argument about ACTA. Of course, later, after the secret documents leaked, we found out that most of the other negotiators wanted the documents public... but it was the US and Ron Kirk who wanted them secret. So I'm sorry, but his claims that others would leave the table and wouldn't negotiate just don't make any sense at all.

Wyden points out, again, that "the norm" for how the public views intellectual property changed on January 18th -- and the public needs to be involved in these debates. He asks Kirk to "throw open the doors" to the USTR so that the TPP negotiation info is a lot more public. Kirk's response is quite bizarre. He talks about the importance of democracy and elections, and letting the elected officials represent the public's interest.

Forgive me for asking, but when did we elect Ron Kirk to head the USTR? He's an appointee, not an elected official. He doesn't represent the public. At all. And that needs to change.

Filed Under: acta, binding, copyright, ron kirk, ron wyden, tpp, transparency, ustr

Workshop Audience Barred From 'Demonstrating' Approval Of Michael Geist's ACTA Takedown

from the this-is-openness? dept

Although ACTA has now been referred by the European Commission to the European Court of Justice, it continues its passage through the various committees of the European Parliament, each of which will provide input on the final decision of whether to ratify ACTA or not. The first of these took place last week, when the International Trade (INTA) committee had a preliminary ACTA workshop. This included hearing from external experts, one of whom was Michael Geist, well known to Techdirt readers.

It will come as no surprise to learn that his ten-minute speech succeeded in distilling the key flaws of ACTA in a highly-accessible way that left the treaty's supporters desperately trying to undo the damage to their arguments for the rest of the day -- and failing.

You can either watch the video (embedded above), or read the text -- they offer perhaps the best summary of ACTA's problems so far, and are highly recommended. Since some of the points he made have been discussed elsewhere, I'll focus here on the issues he covered that haven't received so much attention.

After summarizing his views as "ACTA’s harm greatly exceeds its potential benefits", Geist broke down his analysis into three parts: the process, substance and likely effectiveness of ACTA. On the process, he made this great point that hasn't been brought out much before:

All countries and stakeholders benefit from a well-functioning international intellectual property governance model led by WIPO and the WTO. Ratification of ACTA will undermine the authority of those institutions, causing immeasurable harm to the development of global IP norms. ACTA countries avoided WIPO due to gridlock concerns, but ratifying ACTA would perversely increase the likelihood of gridlock. For those countries participating in ACTA, the successful completion of the plurilateral model will only increase the incentives to by-pass WIPO as a forum for challenging, global issues. For those countries outside of ACTA, the relevance of WIPO will gradually diminish, as achieving consensus on their concerns may prove increasingly difficult.

That is, if ACTA is ratified it will harm a wide range of global bodies because of its go-it-alone approach. Of course, for the leading signatories -- the US and the EU -- that's a feature, not a bug, since they were finding it increasingly hard to impose their one-sided plans on global institutions where the rising BRICS economies were beginning to assert themselves.

As far as ACTA's substance is concerned:

The net effect of these provisions [that signatories "may" implement] is to open the door to statutory damages, detain in-transit goods, disclose information to rights holders, create criminal provisions for unauthorized camcording, and require Internet providers to disclose information about their subscribers.

While it is true that ACTA parties will not be required to implement these provisions in order to be compliant with the agreement, there will be considerable pressure to reinterpret these provisions as mandatory rather than permissive. Indeed, it is already happening as the IIPA, a rights holder lobby group, has recommended placing ACTA countries such as Greece, Spain, Romania, Latvia, Switzerland, Canada, and Mexico on the USTR piracy watch list for failing to include optional ACTA provisions in their domestic laws.

This is a crucial point. Defenders of ACTA emphasize that many of the worst provisions, detailed above, are optional -- signatories are not obliged to implement them. But as Geist points out, "may" has a habit of turning into "must", and he cites concrete evidence that the USTR is already working to make that happen.

In the same section, Geist also shows why claims that ACTA does not go beyond TRIPS are simply not true:

Unlike comparable international intellectual property agreements that have identified the need for balance and proportionality, ACTA is almost single-minded in its focus on increasing enforcement powers. ACTA Article 9 removes safeguards, ACTA Article 11 removes the proportionality provision found in the TRIPS equivalent, and ACTA Article 18 does not include rules for compensation in cases of wrongful detentions.

Finally, in the effectiveness section, he underlines the key failing of ACTA:

ACTA supporters may have believed that an agreement could best be achieved by bringing together a "coalition of the willing", but by limiting ACTA to predominantly developed world countries that are not typically associated with being major sources of counterfeit product, the agreement is seemingly designed to fail.

Geist's speech was greeted with rapturous applause by the vast majority of the 600 people who were present at the workshop -- an unusually large number for such meetings. One person who was visibly annoyed by this warm reception was the workshop's chairman, Vital Moreira, who declared:

you are not here to demonstrate; from now on, I will not allow any demonstration. Those who will infringe this rule will be kindly asked to leave the room.

That's rather rich, since he opened the session by claiming that the high attendance at the workshop "bears witness not only to the importance of this file, but also to the openness and transparency of this parliament, which in my view is second to none." Clearly, that openness only goes so far. The pointed contrast between his first and second thoughts on the subject can be enjoyed in the video below. Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, eu, free speech, inta, michael geist

Danish Trade Minister Apologizes For Using Bogus Industry Numbers To Support Pro-ACTA Argument

from the wow dept

One of the things we've noted for years is how the debate over copyright issues is dominated by (often questionable) numbers put out by the copyright industries themselves. They get especially questionable when it comes to talking about infringement and the impact of infringement... and apparently some folks are finally calling out those who blindly repeat questionable numbers. Over in Denmark, where the battle over copyright and ACTA has been pretty fierce (Denmark has been one of the strongest ACTA supporters), a group of supporters have been called out for their bogus industry numbers... and (amazingly) they're now confessing that they used misleading numbers (and even admitting that this weakens their argument for ACTA). You can see both the Danish Trade Minister and the head of a Danish music rights organization (and famous Danish musician) Ivan Pedersen appear on a TV show below (with English subtitles). On the show, a well-informed presenter focuses on how both of these ACTA defenders claimed that 95% of music downloaded in Denmark was unauthorized, and carefully shows how that's simply false -- and then gets both of the ACTA defenders to admit that the numbers were wrong. What really appears to have happened is that the head of the rights organization used the (already questionable) IFPI report from three years ago that 95% of all music downloads were unauthorized. That number was widely attacked at the time, but even more important, that was a global number, not a Danish specific one. Furthermore, a lot has changed in three years. The TV presenter highlights a variety of research reports that show that actual infringement is almost certainly less than 50% and potentially much lower. And much of the reason why the number is low... is the rise of authorized services.

In other words: why are these people focusing on ACTA? What works is innovation and offering more legitimate services.

And that's actually really important, because it wasn't stricter laws that made such things happen: it was the rise of good, useful and convenient authorized services that effectively competed with the infringing offerings. If anything, those updated stats should raise even more questions about why new laws are needed. Instead, we should be asking why the legacy entertainment industry continues to make it difficult for new authorized services to get off the ground -- holding them hostage with ridiculous licensing demands, as well as demands for huge equity chunks. If they let innovation flow and authorized services grow, it seems like "infringement" as a problem would shrink tremendously.

It's nice to see these two pro-ACTA folks admit that they were wrong -- and even admit that it weakens their arguments, but both still argue for ACTA. They sort of brush off the wrong figure while both admitting that it was "given" to them by normally trustworthy sources. Of course, this really raises significant questions about how much they really understand what's going on vs. how much they're simply repeating the talking points handed to them by legacy entertainment industry conglomerates.

But, still, they can't back down on their support of ACTA. Pedersen says it's still needed because of "dramatic" amounts of infringement, while the Trade Minister is even more aggressive in claiming that ACTA is still needed. She says "it's unfortunate" that she had bad information and it's "a pity" that the 95% number is so wrong because now it makes her argument look bad. That it does. But she's not willing to let go or rethink her position. She immediately jumps into the ridiculous comparison of how it's "just like" the fact that "you may not steal an orange in the supermarket." The second anyone (especially a politician) argues that making a copy of a file is the same thing as physically stealing an object from a store, it shows that they have no business taking part in such a debate, because they clearly don't understand the issues at play. She then insists that no matter what the percentage of unauthorized downloads "it's still too many." If that's the case, then why even bring up the bogus 95% issue in the first place? And if any percentage is "too many" does she support shutting off the internet? Because that's the only way you stop all unauthorized downloads (though it won't stop infringement through other means). Bizarrely, after all this, when the TV presenter confronts her about the numbers again, she says "we need to have real numbers" in the debate, and that's "very important." Indeed. Kind of tragic that she didn't bother to actually bring any to the debate, isn't it?

Filed Under: acta, bogus stats, denmark, ivan pedersen

Darrell Issa Posts Text Of 'Unconstitutional' ACTA For Open Feedback; Something USTR Never Did

from the well-look-at-that dept

We've been really impressed (though we can see where it needs improvements in its next version) with the "Madison" platform that Rep. Darrell Issa put up to allow for open feedback and comments concerning the OPEN Act. And it appears he's not done using that platform, either. He's now posted the text of ACTA to the same platform to ask for feedback and comments. It comes with an initial statement showing that he's very concerned about the nature of ACTA (I believe this is the first time Issa has spoken out against ACTA:

Stopping SOPA and PIPA was a historic victory for digital citizens, but ACTA potentially poses a similar threat to the global Internet community. While the agreement’s stated goal of strengthening intellectual property rights is one all should support, it does so by undermining individual privacy rights and by empowering an unaccountable enforcement bureaucracy. And just like SOPA and PIPA, ACTA was crafted without input from citizens and key stakeholders in a secretive, closed-door process.

Worse, ACTA appears to be an unconstitutional power grab started by President George W. Bush and completed by President Barack Obama - despite the White House’s January 14 criticism of legislative solutions that harm the Internet and erode individual rights. The Constitution gives Congress the power to pass intellectual property legislation - like SOPA and PIPA - and gives the Senate the power to ratify treaties. But the Obama Administration maintains that ACTA is not even a treaty, justifying the exclusion of both American citizens and their elected representatives. It is a practice Vice President Joe Biden decried as a U.S. Senator.

Closed doesn’t cut it. We opened up ACTA in Madison so you can sign up, speak out and collaborate to build a better “treaty.”

For all of the USTR's ridiculous claims of unprecedented transparency, why couldn't it have done something like this before ACTA was "finalized"? The answer is that there's no reason at all. Instead, the USTR released the "final" draft of ACTA as a done deal, and any public comment was meaningless, because the document was not open for any additional changes.

Which raises another unfortunate point. The Obama administration has already signed ACTA. Hopefully this means that Congress is actually going to get serious about challenging the administration on its claimed authority to sign and ratify ACTA without Congress' approval. Until now, the only Congressional official who had questioned that right publicly was Senator Wyden -- though, we've heard of a few others who have sent pointed questions to the administration about its claims. With Issa going public and directly questioning this attempt to deny Congress the right to review ACTA -- despite the Executive branch not having the right to make copyright or patent law -- perhaps Congress will finally step up and make it clear that it won't let the President simply ignore Congress' mandate over both IP law and international treaties.

Also, when do we get the Madison'ed version of TPP?

Filed Under: acta, darrell issa, discussion, madison, transparency, treaties, ustr

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

Trademark Lobby Wants To Help European Court of Justice Forget About EU Citizens' Rights

from the is-that-the-smell-of-panic? dept

It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned.

Here, for example, is a press release from the International Trademark Association (INTA), in which it makes an extraordinary offer:

the International Trademark Association (INTA) stands ready to provide any assistance to the Court or other interested parties in order to highlight the positive effects the trade agreement will have on the EU, its economy and its citizens.

The referral provides an opportunity for interested parties to continue the discussions based on ACTA's text itself, and not the heightened sense of mistrust and misinformation that has proliferated in online conversations.

This is wrong on just about every count. For a start, there have still been no "discussions" about ACTA, despite the fact that public interest groups have been requesting them for years. And is it any wonder if there is a "heightened sense of mistrust" in online conversations if the governments negotiating ACTA have consistently refused to make key information available to the public?

But most of all it's wrong because the referral to the ECJ is emphatically not an opportunity to have a general chat about ACTA: it's for the EU's most senior judges to consider in detail whether the treaty as negotiated is compatible with Europe's existing laws -- not something a trademark association can contribute much to.

In particular, those judges will be looking at possible incompatibilities with the EU's "fundamental rights and freedoms." But that, of course, is the last thing INTA wants the judges to think about:

INTA hopes that the European Court of Justice will make a considered and quick assessment of ACTA, acknowledge the serious threats that counterfeiting and piracy pose for the EU and provide the necessary clarity to pave the way for consent to the Treaty by the European Parliament and ratification by Member States.

Counterfeiting and piracy are on the rise and constitute serious threats to consumers, legitimate businesses and innovators. ACTA is instrumental for tackling these issues

How the judges are supposed to make an assessment that is both "considered" and "quick" is something the press release doesn't make clear. But leaving that aside, together with the fact that the referral is purely about rights and freedoms, not commercial considerations, this does highlight an important, if obvious, point: that the principal justification for ACTA remains that it will tackle counterfeiting effectively. But will it?

The European Commission has put together a document explaining the rationale for ACTA that contains the following claim:

As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights [with ACTA] means protecting jobs in the EU.

But as I have explored elsewhere at some length, that makes no sense. According to the EU's own figures, 99% of those counterfeit goods entering Europe come from countries that are not signatory to ACTA. The treaty will therefore have no effect on those counterfeits in their countries of manufacture. And once they get to the EU, fake goods can be dealt with using existing EU laws. ACTA will make no difference because, as we have been told repeatedly by the Commission, the treaty changes nothing in Europe. Thus, ACTA will not help tackle that flood of counterfeits inside the EU, nor will it protect jobs there.

Interestingly, when he announced the referral of the treaty to the ECJ, de Gucht used a slightly different argument about fake goods to justify the ratification of ACTA:

Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.

But once more, what this skates over is the fact that ACTA will only have any impact on the countries that have signed it -- others, like China, will be able to carry on as before. So ACTA will only affect a portion of the "counterfeited and pirated goods ... floating around on the world market" -- those that are being offered in ACTA countries.

The main signatories outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which already have relatively stringent laws against counterfeit goods. So that means that the only places where ACTA might have some effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that on its own will achieve little: as with the counterfeits "flooding" Europe, ACTA will have almost no effect on those "floating around on the world markets."

So not only is INTA misguided in trying to divert the conversation away from the key issue of the EU's fundamental rights and freedoms, its principal argument in favor of ACTA -- that it will tackle counterfeiting in Europe -- just doesn't hold up. Which leaves us with INTA's parting shot:

it is imperative that the EU continues to protect its citizens and uphold its status as a responsible trading partner by joining the other negotiating parties in the international effort to fight counterfeiting and piracy.

In other words, if you decide not to ratify ACTA because it undermines civil liberties and doesn't tackle counterfeiting, we'll call you "irresponsible" and other rude names.

Yeah, that'll work...

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Filed Under: acta, eu, eu court of justice, karel de gucht, trademarks
Companies: inta

Polish Prime Minister Steps Up His Anti-ACTA Efforts After Hosting 7-Hour Open Q&A Via IRC

from the wow dept

A few weeks ago, we noted that Poland's Prime Minister Donald Tusk had agreed to suspend attempts to ratify ACTA while he explored the details -- completely flip-flopping on his earlier adamant support for the agreement. However, late last week he went even further. Rather than just putting off the issue, he's now actively campaigning against ACTA throughout Europe. While some are accusing him of bowing to public pressure and the protests throughout Poland (which wouldn't necessarily be a bad thing -- listening to the public and all), he insists that it had more to do with learning more details about the likely impact of ACTA.

And here's the thing: unlike most other politicians out there, Tusk actually set up a real and open interaction with people online. This happened a few weeks ago, but Wired has the details:

On Feb. 6, all this activity culminated in an unprecedented conversation between Polish Prime Minister Donald Tusk and — for want of a better word — the internet, that lasted the better part of seven hours.

People used social media to lob questions and comments, but when the anti-ACTA NGOs involved said Twitter and Facebook were not sufficiently open and transparent platforms for voicing public opinions and suggested IRC (Internet Relay Chat) the government agreed. #debataACTA and #debataACTA-pytania were set up on the IRC server of the political hacker group Telecomix, where a geekier set came to participate. The discussions were projected for the PM who answer questions and points for hours while the event was livestreamed and broadcasted over Polish TV and Radio.

What strikes me as most interesting about all of this is that we've been suggesting a truly open and online meeting concerning what the legacy entertainment industry players feel they need and how they want the internet to change. And people keep insisting that using an open platform like IRC would never work... and yet here's an example where it clearly did. It's really pretty amazing to see a head of state spend nearly seven hours discussing internet regulation/copyright issues with regular internet users via IRC... and having that have a real impact. Impressive.

Filed Under: acta, conversation, donald tusk, irc, poland, prime minister