Poland Prime Minister Suspends Any Effort To Ratify ACTA; May Kill ACTA In The EU

from the don't-piss-of-the-net dept

This is getting interesting. Following the growing protests about ACTA in Europe, as well as signs of US meddling, Poland's prime minister is making it clear that Poland will not ratify ACTA for the time being, leading to speculation that the EU may not actually join ACTA.

Tusk's backtracking could spell the end of ACTA for the entire European Union. If Poland or any other EU member state, or the European Parliament itself, fails to ratify the document, it becomes null and void across the union. As it stands, there are already five member countries that have not even signed ACTA.

"I share the opinions of those who from the beginning said that consultations were not complete," Tusk said, according to a report in Wirtualna Polska. The 54-year-old prime minister added that a Polish rejection of ACTA is now on the table, and admitted that he had previously approached the agreement from a "20th century" perspective, due to his age.

Filed Under: acta, poland, prime minister

Is The US Meddling In Polish ACTA Voting?

from the how-dare-they? dept

With the immediate threat from SOPA/PIPA on hold, people have started to turn their attention to the long-running saga of ACTA. While it was being negotiated behind closed doors, few people knew about it, and protests against it were muted. Now that it has finally emerged into the open and begins its last dash towards the finishing line of ratification, the pace of anti-ACTA activism is beginning to pick up quickly. That's especially true in Europe, where everything hinges on the result of the European Parliament's vote on the treaty later this year. If it rejects it, ACTA is dead.

First we had the dramatic resignation of the European Parliament's "rapporteur" on ACTA, then the public apology of the Slovenian Ambassador to Japan for signing ACTA last week in Japan. Individual members of the European Parliament are also coming out against ACTA, notably the Dutch MEP Marietje Schaake, who has prepared an excellent briefing document on the subject, together with several Bulgarian MEPs. But without doubt, the main focus of anti-ACTA actions so far has been in Poland.

As Techdirt has reported, the first demonstration against ACTA took place in Warsaw, and some Polish politicians donned Guy Fawkes/Anonymous masks in parliament to express their displeasure at the Polish government's signing of the treaty. Even the Polish prime minister is trying to back-pedal. Meanwhile, the Polish "No to ACTA" Facebook page has gathered nearly half a million supporters.

Clearly, something very interesting is happening at all levels of Polish society as a result of ACTA, and someone else has noticed this too. According to a translation of a report on the Polish web site gazeta.pl:

"--It was around 11.00 in the morning when an employee from the US Embassy called. She was curious about the voting [on ACTA]. He has counted the votes and she thought some of the deputies were missing. Eight deputies were for, three against, four have held up. Something's wrong here, because some votes seem to be missing." -- said Mieczysław Golba from Solidarna Polska.

As another Polish politician explained:

"-- If the US embassy was just interested in the voting itself, it's okay with us. But questioning about party discipline is scandalous"-- says Sławomir Neumann from PO. -- "Americans should calm down a little, as such behaviour is an interference into the internal affairs of the Polish parliament. We can treat Americans as friends, but there are some borders that one shouldn't cross.We are partners, but not a parliament dependent on the Congress or the president's Obama administration."

Assuming this really was someone from the US embassy checking up on the whether Polish politicians were following the party line on ACTA -- there's been no independent corroboration yet -- it does seem pretty extraordinary. Judging by the generally outraged tone of the 1100+ comments on this piece, the Poles themselves don't seem very happy either. I think we can expect to hear much more about Poland's resistance to ACTA in the coming weeks.

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Filed Under: acta, meddling, poland, us

Watch Out: Widespread Protests Against ACTA Spreading Across Europe

from the wow dept

As we've noted multiple times, it appears the entertainment industry still does not recognize what kind of beast it awoke with its efforts to shove through SOPA and PIPA. While it still believes it was the "tech community" that caused those bills to be shelved, it's been ignoring that a very large segment of internet users have been activated on these issues... and they're angry and willing to be proactive. We've pointed out that lots of attention has turned towards ACTA -- and while it's late in the process, don't underestimate the power of an awful lot of pissed off people who recognize that their internet is being messed with in a way that may harm their ability to communicate.

A bunch of folks have been setting up February 11th as a global day of protest against ACTA, and if the entertainment industry thought that the anger would simmer down after the SOPA/PIPA fight, they may have miscalculated again. Just take a look at the live map showing the planned February 11th protests across Europe:
View ACTA Protests Worldwide - Brought to you by stoppacta-protest.info in a larger map In case you can't see/interact with that, here's a screenshot version: These are live, in-person protests that people are planning across Europe, and if you start clicking through, you see fairly amazing numbers of people committing to come out and protest -- even in places where you wouldn't expect huge numbers of people protesting. Take, for example, Sofia, Bulgaria where over 33,000 (!!!!) people have said they plan to show up with nearly another 10,000 listed as "maybe." Over in Valletta, Malta there are nearly 3,000 people saying they'll be there. These are not exactly protest hotbeds. As you go through the list, you realize just how widespread the opposition on ACTA is becoming -- and you wonder if the entertainment industry has any idea what it unleashed with it's terrible miscalculation with SOPA/PIPA.

Filed Under: acta, europe, pipa, protests, sopa

The SOPA/PIPA Protest Shows Why There Needs To Be Complete Transparency With TPP

from the keeping-stuff-secret-is-simply-not-an-option dept

Lawyer Jonathan Band has written up an execllent analysis for why what happened with SOPA/PIPA (pdf) demonstrates why the Obama administration and the USTR in particular must be significantly more transparent when it comes to TPP, the Trans-Pacific Partnership agreement. TPP, of course, is the evil stepchild of ACTA. Rather than learning that excessive secrecy in ACTA was the wrong approach, it appears that the USTR simply determined that since it got away with being so secret with ACTA, it might as well double down and be even more secret with TPP. Not only that, but early reports and leaks from the ultra-secret TPP negotiations suggest that the USTR -- once again acting as the MPAA and US Chamber of Commerce's personal waterboys -- was trying to shove in every bad idea that it failed to get into ACTA.

However, as Band notes in his paper, the problems with excessive copyright legislation that impacts the internet is becoming a big issue with the public, and that shouldn't be taken lightly. Most of the paper goes through the specific problems of SOPA and PIPA, as well as the public's response to the attempts by the MPAA and US Chamber of Commerce to push through such a ridiculously bad bill that would impact internet sites worldwide. It then uses that to explain why the USTR simply needs to be more transparent:

The transparency surrounding TPP must increase. If the public feels that the provisions included in TPP jeopardize the openness of the Internet, it will strongly oppose the adoption of TPP. To prevent this from happening, the negotiations concerning the IP chapter must become more transparent. Drafts must be made available online for public comment. The fact that in the past some trade negotiations have had little transparency is irrelevant. The SOPA experience demonstrates that a new era of public engagement in IP policy has begun

Furthermore, Band makes the point that the USTR (and any government, really) can no longer pretend that copyright laws are obscure laws that do not impact the public. The public has hopefully now clearly established itself as a very important -- if not the most important -- stakeholder in any debates around copyright issues going forward.

Internet users care deeply about its vitality. The overwhelming public opposition to SOPA and PIPA generated by just one day of online protests indicates that the members of the public will take strong and immediate political action to protect this medium which has become a central part of their lives at home, school, and work. IP, at least to the extent it intersects with the Internet, is no longer an issue of only narrow technical interest.

Finally, the paper makes it clear that, no matter how many times the lobbyists backing these bills and trade agreements like to pretend that they don't impact US sites, that's simply laughable, and the public knows it:

IP rules can have a significant impact on legitimate websites. The Internet democratizes commerce and communications. Platforms such as eBay or YouTube allow individuals and businesses of all sizes to reach large audiences and markets. But IP rules that place too heavy a legal burden on the platforms for user activities, as do SOPA and PIPA, will constrain the growth of this Twenty-First Century medium of trade and discourse.

IP rules can affect international trade. The Internet does not recognize national boundaries. IP rules in one country can affect the operation of websites in another country. SOPA and PIPA would not only impose liability in the United States on non-U.S. websites that may be legal in their host countries; they also would interfere with the operation of these websites in their host countries. Provisions like SOPA and PIPA would allow countries – and indeed, individual companies – to erect trade barriers without following multilaterally agreed procedures with notice and due process.

These points seem obvious to many of us. The real question is whether or not the administration and the USTR recognize it yet. The fact that it's still been negotating the TPP agreement in secrecy suggests not. That it thinks it can get away with such blatant rent seeking for Hollywood interests, in the face of a public that is now paying attention to these issues shows an incredible disrespect for the public's best interests. It's a shameful statement on whose interests the USTR is really representing -- and the nature of crony capitalism in the US government these days.

Filed Under: acta, pipa, protect ip, sopa, tpp, transparency

Full Text Of Slovenian Ambassador's Apology For Signing ACTA

from the wow dept

Yesterday, we wrote about the Slovenian ambassador to Japan, Helena Drnovsek Zorko, apologizing for signing ACTA last week in Japan. We later updated the post with a link to a Google translation of her apology that was a bit confusing. However, she's also posted a version in English, in which she admits that she signed it because her government told her to, and "out of civic carelessness" in not bothering to understand what ACTA meant before signing it. She talks about being overworked, and apologizing to her children for signing ACTA. She also expresses exasperation at the fact that the hatred of many people has been directed at her, rather than at her government and others who actually created ACTA. The whole thing is worth a read, so we are posting it in its entirety below:

On Thursday, 26^th January, 2012, I signed the Anti-Counterfeiting Trade Agreement (ACTA) on behalf of the Republic of Slovenia, following the directive and authorisation of the Slovenian government. A somewhat longer clarification of the signature can be found on the Media section of the Ministry of Foreign Affairs website, which explains the role of the Ministry and my role as the Slovenian Ambassador to Japan.  This explanation states that I signed the agreement because I was instructed to do so by the government, and because it is a part of my job.

And yet, why did I sign ACTA. Every day there is a barrage of questions in my inbox and on Facebook from mostly kind and somewhat baffled people, who cannot understand how it occurred to me to sign an agreement so damaging to the state and citizens. With this reply, which is of a purely personal nature and expresses only my personal views, I wish to respond to all those people, all my friends and acquaintances who have remained quiet, all Anonymous, and not least also to myself and to my children.

I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children. I allowed myself a period of civic complacency, for a short time I unplugged myself from media reports from Slovenia, I took a break from Avaaz and its inflation of petitions, quite simply I allowed myself a rest. In my defence, I want to add that I very much needed this rest and that I am still having trouble gaining enough energy for the upcoming dragon year. At the same time, I am tackling a workload that increased, not lessened, with the advent of the current year. All in line with a motto that has become familiar to us all, likely not only diplomats: less for more. Less money and fewer people for more work. And then you overlook the significance of what you are signing. And you wake up the following morning with the weight of the unbearable lightness of some signature.

First I apologised to my children. Then I tried to reply to those acquaintances and strangers who expressed their surprise and horror. Because there are more and more of them, I am responding to them publicly. I want to apologise because I carried out my official duty, but not my civic duty. I don’t know how many options I had with regard to not signing, but I could have tried. I did not. I missed an opportunity to fight for the right of conscientious objection on the part of us bureaucrats.

But there is a second, very important reason why I am writing this. There has been a demonization of “some sneak”, that is me, who in far-off Tokyo secretly signed something on her own initiative.  This was heard in the Slovenian parliament and in the Slovenian media, and it is spreading on the web. It is dangerous particularly because it conceals the responsibility of those who had the power to decide, and did in fact decide, that Slovenia would be a signatory of ACTA. This was decided by the Slovenian government and by the parliamentary committee for EU matters, and before that, Slovenia was for quite some time involved in coordinating the agreement. All this was done with too little transparency, judging by the outraged responses that have appeared following the signing. Back then, the Slovenian media did not demonise this decision to the same extent as they now demonise my signature. This I consider very dangerous for the continuous (non-)development of democracy in Slovenia. At the same time, this means that I was not the only one whose attention slipped, that we, as Slovenian citizens, neglected our civic duty. And that there may be a little known party in the Slovenian political space that missed an excellent opportunity to gain votes in the recently concluded electoral struggle.

On Saturday, 4^th February, a protest is planned in Ljubljana for those who object to the ratification of ACTA. The true concern and determination of those Slovenian citizens who feel that the agreement must be stopped will be reflected in the number of people who attend this protest. I would like to ask for somebody to please attend in my name. One of my concerned correspondents asked me what my brother, the late Dr. Janez Drnovsek , would have thought of my signature. The struggle to protect civic freedoms is most certainly in the spirit of his heritage, much more so than the removal or non-removal of some statue. Let my example be a cautionary tale of how swiftly we can make mistakes if we allow ourselves to slip. And if nothing else, we then sleep very badly.

 

Helena Drnovsek Zorko

That's quite a statement... I'm still curious if Slovenia can now take back the signature?

Filed Under: acta, apology, helena drnovsek zorko, slovenia

Slovenian Ambassador Apologizes For Signing ACTA [Updated]

from the now-what? dept

Well, this is getting strange. The Slovenian ambassador to Japan, Helena Drnovsek Zorko has apparently issued a public apology for signing ACTA last week. There aren't many details, unfortunately, and I don't see the statement on the English-language Slovenian Japanese embassy website, nor on the Slovenian government's news page. Still, it makes you wonder, if she's sorry just a week after signing, why did she sign it in the first place? Did she not do the research? And what happens now? Can she retract the signature?

Update: As a few of you have sent in here is a Google translated version of her "apology." The translation isn't great... but it appears she's saying that the government told her to sign it, and she didn't know if she could push back, but now that she understands ACTA, she doesn't like it, and she appears to hope that people will protest ACTA and stop it from getting implemented. If anyone has a better translation, please let us know...

Filed Under: acta, copyright, free speech, helena drnovsek zorko, slovenia

Hollywood Gets To Party With TPP Negotiators; Public Interest Groups Get Thrown Out Of Hotel

from the yeah,-that-doesn't-look-corrupt-at-all dept

We've been talking about the ridiculous levels of secrecy around the TPP (Trans-Pacific Partnership) agreement -- a trade agreement that is being designed to push through basically everything that Hollywood wants in international copyright law. Last week, we mentioned that various civil society groups were planning to hold an open meeting about TPP in the same hotel where the negotiations were being held (in Hollywood, of course).

However, it appears that once the USTR found out about this, it got the hotel to cancel the group's reservation at the hotel. According to Sean Flynn, the Associate Director of the Program on Information Justice and Intellectual Property (PIJIP) at American University:

The public interest briefing was booked last week and advertised to all delegations, including the host USTR. An hour after the invitation was sent, we received a cancellation of our venue by the hotel. The cancellation by by Sophie Jones, Event Sales Manager, Sofitel Los Angeles stated:

“I am sorry to be the bearer of bad news but unfortunately we will not be able to move forward with your luncheon for Tuesday January 31st. It was brought to my attention that we have a confidential group in house and we will not be allowing any other groups in the meeting space that day. Again, my apologies for the late notice. Hopefully we can work together in the near future.”

Okay. I guess if no other groups are allowed in the meeting space that day it's understandable. Except... oops... someone in the group confirmed that the hotel was lying:

After receiving the cancellation, members of an advocacy organization called the hotel and were able to book a room for a claimed private event not related to the TPP. Apparently only TPP-related events were banned from the hotel at the request of an unidentified party. USTR is serving as the host of this meeting.

Well, at least MPAA execs were similarly blocked from access to the negotiators, too, right? Nope:

The film industry did not have similar problems – they hosted a multi-hour tour of 20th Century Fox Studies last night, led by a representative of the studio’s government relations office.

Yeah. This is what corruption looks, smells and tastes like. And the MPAA still doesn't get it. They still think that backroom deals like this are fine and that the public won't notice or care. That's quite a bet to make, and one they may regret.

Filed Under: acta, hollywood, secrecy, sopa, tpp, trade negotiations
Companies: mpaa

Please Keep The ACTA Debate Fact-Based

from the good-points dept

As we noted in our ACTA primer, there appeared to be a lot of misinformation spreading about the agreement -- which many people were comparing to SOPA/PIPA. While we appreciated that folks who had become interested in SOPA/PIPA were turning their attention to the (very problematic) ACTA, it didn't do anyone any good to spread misinformation. Tim Lee, over at Ars Technica, has taken it up a notch by putting together a very good debunking of some of the exaggerated statements that people are making against ACTA. There are plenty of serious problems with ACTA -- but it doesn't help if those opposed to ACTA are spreading misinformation. It merely aids ACTA supporters in their attempts to claim, incorrectly, that all of the opposition is ill-informed. So, please, to those out there working hard against ACTA, read the details carefully and focus on the real problems.

Filed Under: acta, facts

The SOPA/PIPA Protests Were Not Pro-Piracy... They Were Anti-Crony Capitalism

from the time-to-realize-that dept

Larry Lessig has an excellent article over at The Nation, that puts the events of January 18th into perspective. He talks about the Supreme Court's Golan ruling, which rejects the idea that copyright is really limited in any way under the Constitution:

The Supreme Court, however, reversed that finding, crafting an opinion that all but guarantees Congress a constitutional “free ride” within the copyright field. Only two justices dissented—Justice Breyer, who had dissented in Eldred, and Justice Alito, to his credit as a conservative originalist. The rest were happy to signal to the copyright bar: Constitution time is over. Pay no attention to that puzzling clause at the core of the Constitution’s enumerated powers. The hint that it would be as vigorously defended as other clauses was now officially rejected. We had tried. And we had lost.

But, as he noted, at the very same moment the Supreme Court was granting copyright maximalists and their lobbyists free reign over expanding copyright, something very different was happening out in the free world: it was rejecting those same laws:

That new generation is now responsible for the extraordinary victory achieved on January 18. After months of rallying activists of all stripes, including liberals and conservatives, technology companies and free software activists, the protest against SOPA and PIPA achieved critical mass. With the support of the traditionally non-activist Wikipedia, the Internet community staged a powerful and effective shut down of critical parts of the web, awakening millions to the fight that had been brewing for almost a year. That fight didn’t try to affirm any “right” to “pirate” anyone’s work. Instead, the anger in this battle was about the extremism of Hollywood’s response. It was fair and true to say that this statute would effect a kind of “censorship” unknown in the history of the Internet (at least in the United States). That fact was a critical motivation to fight it.

And it is that final point that many in Hollywood still fail to understand. They positioned this whole battle as if it was about the right to enforce laws on a lawless internet vs. those who wanted to pirate. But pretty much everyone can see through that facade. And, as we've said before (and will say again), this was never about just this bill. You can see that in the continued focus of people on other efforts by these industries to push through bad policies -- such as ACTA and TPP. No, this was a rejection of crony capitalism -- an attempt by one industry to push through laws that solely benefit some of its biggest players, at the expense of everyone else. But the real question, as Lessig lays out, is whether or not this movement can expand to really make that point clear:

The (Internet) giant has stopped this craziness—here and now. But the challenge is for the giant to recognize the need to stop this craziness generally. We need a system that is not so easily captured by crony capitalists. We need a government that is not so easily bought. And if only the giant could be brought to demand this too, in the few moments we have before it falls back to sleep, then this war—this “copyright war,” this war that Jack Valenti used to call his own “terrorist war,” where apparently the “terrorists” are our children—will have been worth every bit of the battle.

It's a key challenge, and one that I believe the internet community is up to tackling. But it's going to take quite a fight against those who are entrenched in power already.

Filed Under: acta, copyright, internet, larry lessig, pipa, sopa, supreme court, tpp

As USTR Insists ACTA Doesn't Need Congressional Approval, Wyden Asks State Dept. For A Second Opinion

from the that's-not-what-the-constitution-says dept

Back in October, we noted that Senator Ron Wyden had sent the Obama administration a letter pointing out that it appeared unconstitutional for the President to sign ACTA without getting Congressional approval. The USTR had been insisting that because ACTA does not require any change to US law, it doesn't need any such approval. Of course, that ignores a few issues. First, while it may not change US laws, it seems likely that it would restrict future changes to laws if we wanted to stay in compliance. For that reason alone, it should have Congressional approval. But the larger point is that international agreements signed without Congressional approval -- so-called "executive agreements," -- can only be done for issues solely under the President's mandate. Copyright and patent laws, however, are the mandate of Congress, not the President.

The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.

Thus, Wyden asked the President to explicitly state that ACTA was not binding and does not create any international obligations for the US:

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA.

Instead, however, the USTR responded (embedded below) with the same exact response it's been giving out all along: nothing to see here because ACTA requires no changes to US laws. There are two very big problems with this. First, it's not clear that's even true. The Congressional Research Service's analysis of the language of ACTA (done at the request of Wyden) pointed out that ACTA may require changes to US law. The problem (and it's a big problem) is that the language is so vague, it all comes down to interpretation.

Second, even if the USTR is correct that ACTA requires no changes to US law, that's answering a different question. Wyden did not ask about what ACTA required to implement. He asked what was required to approve it. And the law does not say that the President can declare something an executive agreement if it doesn't require a legislative change -- but that he can only do it for things under his sole mandate. ACTA clearly does not qualify. Either way, this is a really disingenuous move by the USTR. It answers a different question and does so possibly inaccurately. And, nowhere in the letter did anyone respond to Wyden's specific request for a declaration that ACTA creates no international obligations for the US.

In response, Wyden has now sent a second letter (also embedded below) to the State Department, asking it to look into this and clarify if a mistake has been made. Here are the specific questions he asks the State Department to answer:

1. If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State's opinion that ACTA will be equivalent to a non-binding "memorandum of understanding," like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding "sole executive agreement" under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval?
2. What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation?
3. What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)

These are good questions. The first and third are the crux of the Constitutional issue, but the second one is the really important one from a policy standpoint. We've argued that a rather serious problem with ACTA is that it will severely limit Congress' ability to fix certain aspects of copyright law. The example used by Wyden is a good one. There's a very strong argument to be made that statutory damages in copyright law are ridiculous, disproportionate and out of control. Fixing them would be a big help in making sure that copyright law isn't used regularly as a nuclear weapon against people who simply can't defend against the possibility of ridiculous damages awards. Another example would be if Congress decided to walk the courts back on their made up idea of "inducement" being a form of copyright infringement. Under ACTA, either of these moves would put the US in violation. So while it may not require legal changes to implement today, it may significantly prevent Congress from making those changes. And shouldn't Congress have the right to weigh in on that?

Filed Under: acta, constituion, executive agreement, ron wyden, state department, treaty, ustr