stories filed under: "acta"
UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation
from the nice-to-see dept
Via Michael Geist, we learn of a new UN report on Human Rights, that (among many other things) talks up the importance of free speech online (pdf), worries about the expansion of third party liability laws as a tool to suppress speech online, and is generally concerned about government attempts to censor the internet. Where it gets even more interesting is where it pretty clearly states that three strikes or other efforts to kick people off the internet for file sharing is a trend it does not approve of at all:While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes- law” in France and the Digital Economy Act 2010 of the United Kingdom.Of course, supporters of such laws will downplay the significance of this, but they might not realize just how much influence these types of reports can have over time. Either way, it's nice to see UN officials recognizing that yes, copyright can and often is used for censorship.
The report goes on to worry about ACTA as well:
Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.We keep hearing from supporters that there are no "free speech" concerns here, and yet the UN clearly sees the issues. Seems like ACTA supporters have a serious case of willful blindness.
On top of that, the UN report points to all sorts of other serious concerns that we've raised, including how "notice-and-takedown" provisions such as those found in the DMCA are open to widespread abuse.
In the recommendations section, the UN report is pretty clear and damning. Kicking people off the internet is a violation of existing civil rights:
The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.Now watch as our usual "law & order" commenters rush to talk about how the International Covenant on Civil and Political Rights can be ignored as it's no big deal.
Finally, the report actually (amazingly) goes so far as to suggest countries "repeal or amend" any law that would kick people off the internet for infringing:
The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.While I doubt the report will have too much impact, it certainly is nice to see it getting some significant attention. It's too bad, but you can bet that politicians around the globe will simply ignore it... and when asked about it, will instead just point to debunked industry claims of "losses" to back up their ongoing push towards censorship and civil rights violations in the name of protecting the obsolete business models of a few industries.
Filed Under: 3 strikes, acta, civil rights, copyright, dmca, free speech, notice and takedown, un
'New' ACTA Version Published, EC Pushes For Signing
from the and-here-we-go dept
There hasn't been much movement in the last few months with ACTA, though there's been plenty of scrambling behind the scenes. The latest is that a "new" final draft of the document has been released, though all it really appears to have changed is the signing period. But, more important, is the news that the EC is pushing really hard to get it signed:The European Commission is piling on pressure for ACTA (Anti-counterfeiting Trade Agreement), and is quietly preparing a legal proposal for the EU to sign it. The news comes in the context of ongoing discussion in the European Parliament on the question of whether to obtain a legal opinion on ACTA's compatibility with the Treaties.However, the European Parliament, which has been much more skeptical of ACTA from the beginning, is apparently still skeptical, and would like to take the shocking step of actually making sure that ACTA doesn't go against existing EU laws. The EC has simply declared that it is, and would rather that the Parliament not actually confirm this. Hopefully, the Parliament doesn't cave in to EC pressure, and actually takes the time to make sure that anything it signs is appropriate.
In its recent Communication on IPR Enforcement, the Commission suggests it is a fait accompli that the EU will sign ACTA in 2011. Indeed that all of the countries involved in the negotiation will sign.
Filed Under: acta, eu parliament, europe, european commission
Why ACTA Requires Congressional Approval
from the indeed dept
All along, the USTR and the White House have insisted that ACTA is not a treaty and doesn't require Congressional approval. Of course, many people have pointed out this is a game of semantics in which the White House is calling it one thing to avoid having to get Congressional approval. The EU has already admitted that ACTA is a binding treaty, and even ACTA supporters in the US have admitted it's really a treaty.Last year, we saw a bunch of law professors explain why ACTA required Congressional approval, and law professor Frederick Abbott has written up an analysis that also questions the "baffling" claim that ACTA wouldn't need Congressional approval by pointing to the plain language of the Constitution:
Perhaps the most baffling aspect of the exercise is the announcement by USTR that it will not seek congressional approval of the ACTA. The US Constitution expressly grants Congress the power to regulate commerce with foreign nations. That express grant distinguishes regulation of international trade from the general allocation of treaty making powers under the Constitution. Moreover, Congress is expressly granted the power to make laws regarding patents and copyrights. It is difficult to identify an area of international agreement-making that more directly entails a constitutional requirement of congressional approval than the ACTA.The larger point raised by Abbott is one that we've been pointing out for years: it's stunning how all of these countries that pretend they're pushing for "free trade" and a decrease in protectionism, are really doing exactly the opposite with so-called "free trade" agreements like ACTA. They're nothing more than protectionist policies, and they're going to backfire in a big way by allowing other countries to be protectionist back (something that even Homeland Security has warned about). Here's Abbott:
USTR has taken the position that the ACTA will require no changes to US law. Therefore, in USTR’s view, congressional approval is not required. This argument ignores that the ACTA regulates commerce with foreign nations, whether or not it requires changes to existing domestic law. Beyond that, however, does US law presently grant customs authorities a broad power to seize undefined “suspect goods” at the border as the ACTA requires?
One wonders what the G8 negotiators were thinking about as they negotiated the ACTA. The agreement seems designed to confer extensive authority on customs to seize and hold goods as they enter and/or pass through borders. It is the virtual antithesis to opening markets to international trade. We see the difference between the rhetoric of Doha and the reality: stalling on trade liberalization while erecting new nontransparent trade barriers. Mystifying.It really does seem problematic. As these countries claim they're trying to decrease trade barriers, the whole point of ACTA is to give border control in all of these countries excessive and broad powers to block the import of goods and effectively put up new trade barriers.
Developed Nations Protest Developing Nations' Desire To Create Their Own IP Laws
from the hypocrites dept
We've discussed many, many times how the US and other developed nations have been relying on extreme secrecy in crafting new intellectual property agreements, such as ACTA and TPP. They continue to insist that no one else should be in the room when they discuss these important laws. So, what happens when some poorer developing nations want to get together to discuss how developing nations might create better intellectual property laws that match their own specific needs? You guessed it. The big developing nations freak out and demand to be in the room. Apparently, the developed nations only think things should be secret for their own intellectual property discussions.This all happened recently at WIPO, concerning the Development Agenda. As a bit of background, over the past few years, WIPO has finally come around to realizing that a single strict intellectual property regime around the world doesn't make much sense. Over the last decade, the amount of evidence showing how developing nations are seriously harmed by strict intellectual property laws is overwhelming and, at this point, incontrovertible. With that in mind, the Development Agenda within WIPO has grown, allowing various developing nations to really seek out alternative views on intellectual property. In fact, this is why ACTA and TPP are being done outside of WIPO, despite it being the natural place for such agreements: because the US (mainly), and some others like Japan, didn't want to let the developing nations into the conversation.
And yet, when the Development Agenda tried to have some private discussions on "enhancing cooperation" on intellectual property issues among developing nations... the developed nations threw something of a hissy fit, and effectively derailed the meetings by demanding to be there. The end result was that the meetings were suspended:
In the project, two inter-regional meetings were planned among developing countries and LDCs, and two annual conferences with the full WIPO membership. According to sources, the two inter-regional meetings would have been closed meetings only allowing members from developing countries and LDCs and that was challenged, in particular by developed countries.While I tend to think that all such discussions should be open, I find it astoundingly hypocritical of the "developed nations" to insist on keeping their own discussions entirely secret (and even taking them out of WIPO to keep them secret), and then to claim that these discussions need to involve them.
Some concessions were made so that only the first inter-regional meeting would have been closed and the second one would be open to developed countries but only with an observer status, with one conference open to the whole WIPO membership, according to sources. Some developed countries argued that no meeting should be restricted to only some members as some developing countries purported the opposite opinion, saying that a closed meeting would constitute the first step of South-South collaboration, sources said.
No consensus seemed reachable and Egypt asked for a vote to adopt the project, backed up by India and South Africa. Matters got only worse when a developed country member asked for a secret ballot vote, which gave way to a discussion on the WIPO rules of procedures and the difficulty to organise a secret ballot vote this late into the evening and the meeting, sources said.
Egypt finally asked for a suspension of the meeting, backed up by India, according to a source. The vice-chair of the meeting, Garikai Kashitiku, first secretary of the permanent mission of Zimbabwe, suspended the meeting.
Filed Under: acta, developed nations, developing nations, ip, secrecy, wipo
Hollywood Pushing EU To Sign ACTA Before It Has A Chance To Study The Legal Implications
from the but-of-course... dept
Michael Geist points us to the news that a bunch of lobbyists (mostly driven by Hollywood interests, it appears) are pressuring the European Parliament to just sign ACTA already. It appears that they're realizing that there's growing opposition to ACTA and serious concerns by some in the Parliament about just how much of an impact ACTA will have, and (most importantly) whether or not ACTA itself conforms with European law. The letter takes the usual IP bully tact of making totally ridiculous claims, such as saying that not signing it now would mean that it would "weaken the position of the EU viv-a-vis its international trading partners."That, of course, makes absolutely no sense. Making sure a treaty (and yes, the Europeans, unlike the Americans, are willing to admit that it's a treaty) does not violate consumer rights or other laws seems like a prudent step to take. It seems odd that Hollywood lobbyists could possibly be against that. The only comprehensible reason to be against it is if you know that ACTA won't actually pass muster on review. Separately, I'm wondering just how it will weaken the EU's position with trading partners? Who exactly? Who's going to cut back on trading with the EU because it wants to make sure of the impact of ACTA? No one. Hopefully, most in the EU Parliament got a good chuckle out of this and moved on...
The EU Commission Tries To Defend ACTA And Fails Miserably
from the shocking dept
We've already discussed the many, many concerns that people have that ACTA will go against current US law (though, it appears that negotiators have put in enough weasel words that they can pretend it doesn't until a later date when the laws need to be updated). It seems that something similar is happening in Europe. A bunch of academics had written a letter to the EU Commission earlier this year, pointing out the many, many (sometimes serious) conflicts with EU law and the final draft of ACTA. Recently, the EU Commission responded (pdf). However, as pointed out by Slashdot, an analysis of the response by Ante Wessels shows that The EU Commission appears to lack basic reading skills.Basically, as with the US analysis, the issue is that ACTA is dreadfully drafted, in such a way that many parts are vague or overly broad. This allows ACTA supporters to claim that there are ways to work around anything that people complain about -- but in this case, part of the complaints was that the broadness and vagueness meant that it went beyond current EU law. The EU's response was more or less to repeat the lie that the broad and vague definitions would mean countries could do their own thing and remain in compliance.
Basically, it looks like ACTA supporters on both sides of the Atlantic are now using this kind of strategy. When people confront you on something specific, point to the vague and broad language and pretend that the specific issues are solved by that. When people point to the problems with broad and vague language, insist that there's nothing to worry about. What a debacle.
Former DHS Official: ACTA 'Sweetheart Deal For IP Owners; Free Gov't Enforcement Of Private Rights'
from the indeed dept
We recently wrote about a 2008 memo and position paper from Homeland Security to the USTR warning that ACTA was a bad idea that could harm national security, and transfer private civil issues to the government to enforce. The author of the original memo, Stewart Baker, who is no longer at DHS, has now commented on our coverage of this issue, stating that DHS did not like ACTA as it was drafted:It seemed like a sweetheart deal for a few intellectual property owners, who’d get free government enforcement of their private rights, potentially to the detriment of security and traditional customs enforcement. Worse, the sweetheart deal would be written into international treaty, putting it beyond Congress’s reach if the risks we foresaw actually came to pass.Baker notes that he still feels this way. Of course, he also jokes that it appears to cause us "physical pain" to admit we agree with the DHS. I recognize it's a joke (and kind of amusing, too), but just for clarity's sake, I have no problem agreeing with anyone when I think they're correct (even the RIAA). It's not about who's making the argument. It's about the argument.
Filed Under: acta, copyright, dhs, stewart baker
Confirmed: US Was The 'Lone Holdout' In Refusing To Release ACTA Text
from the transparency? dept
Throughout the ACTA negotiations, the USTR insisted on two things: (1) it was being as transparent as possible in the negotiations and (2) that it simply couldn't agree to release the document because other countries would get upset and leave the negotiating table. Of course, while it later came out that a small group of countries were against transparency, almost all of those countries backed down on the transparency issue after that report was leaked. And, yet, there was still no transparency from the USTR. Why? Well, it's now come out that the USTR was "the lone hold out" on the issue -- mainly over whether or not the text that was still under negotiation would be released or not. Everyone else was fine with releasing the versions that still had text under discussion. The US alone refused. Not only that, but they had to fight hard to keep such text secret:The Euros and some others push hard for release, but since it required consensus the text will not be released. We spent the final 3 hours arguing over all of this.This is the sort of "transparency" that our government provides? They promise to be transparent, and everyone wants that transparency, but the USTR/Obama administration fights it. Shameful.
Filed Under: acta, copyright, transparency, ustr
CRS Report Withheld By USTR Confirms That ACTA Language Is Quite Questionable
from the revealed dept
We're happy to announce that we've been able to get our hands on the -- until now -- secret Congressional Research Service analysis of ACTA. You can see it embedded below, and it shows that the language used by the USTR in ACTA has lots of weasel words that let them claim it doesn't impact US law, but the interpretations of the language could very much impact US law. First some background.A few weeks back, we mentioned that KEI was appealing the fact that the USTR was refusing to release a Congressional Research Service report on the legality of ACTA, claiming that it couldn't release the report because it was controlled by Congress. However, there is little evidence to support that. Not surprisingly, the USTR's response to KEI's appeal was to again deny the FOIA request to release the report, claiming:
The [USTR FOIA Appeals] Committee undertook a comprehensive review of the circumstance of the creation of the document at issue and the conditions under which it was sent to USTR, including through statements provided by members of USTR's Office and Congressional Affairs and Office of Intellectual Property and Innovation. The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA.What struck us as odd about the whole thing was why KEI was focused on the USTR, rather than Senator Wyden. So we asked Senator Wyden to release the report, and about an hour ago, his office sent us the CRS memo, in slightly redacted form. The redactions are around a specific issue relating to ongoing negotiations over the degree to which patents are covered by ACTA -- the one key sticking point in the remaining negations. The US wants to include a footnote that effectively lets it ignore a key point about patent injunctions, because US law has certain prohibitions on injunctions, and the current ACTA text suggests that all signatories would have to offer up injunctions as a possibility in those cases.
As you read through the document, however, what becomes clear is that nothing is very clear in ACTA, and there are all sorts of weasel words and poorly-defined aspects to the drafting. What that means is that it all depends on the interpretation. If certain sections are interpreted one way, then ACTA clearly conflicts with US law. If they're interpreted in a more permissive fashion, then the US can walk the tightrope and comply with ACTA without having to change US law. But the problem is that it's not at all clear. This leads ACTA supporters to be in a position to say, "well, it doesn't require changes to US law," and then not have to deal with the issue that, down the road, lobbyists (and other countries) will inevitably point to language in ACTA and push the US to change its laws in order to comply. That's the really nefarious part about all of this.
The memo also notes that while technically Congress is not supposed to be restrained by ACTA, the practical realities may be different:
Congress may not feel compelled to take into account the requirements of an agreement that it had no formal role in approving. On the other hand, it may well be that Members of Congress might be reluctant to consider legislative approaches that would alter federal law in a manner that might make the United States in default of its ACTA obligations. The seriousness of such a concern may turn on the extent to which the United States may be held accountable for ignoring its ACTA obligations, or how successful the United States is in convincing other ACTA Parties of its compliance with the ACTA commitments even with such legislation.In other words, if the US can weasel its way around complaints from other countries and industry lobbyists, it might still be able to fix broken parts of copyright, trademark and patent law... but most folks in Congress probably don't want to bother with that fight. More simply: technically, ACTA probably doesn't constrain Congress, but the political reality is that it absolutely does constrain Congress. But we knew that already.
Most of the other concerns are specific to the language choices used in ACTA. For example, in this section, the CRS researchers note how the drafters try to distinguish rights from enforcement in ways that might not be reasonable or even possible:
Another initial provision in the draft tax declares: "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law." Note that this language refers to intellectual property rights (as opposed to remedies for violation of those rights). Thus, this provision allows a Party to have domestic laws that contain exceptions, limitations, and conditions concerning the "availability, acquisition, scope, and maintenance" of IPR. It does not, however, appear to apply to a Party's domestic laws that provide exceptions to the remedies that are available to intellectual property holders that seek to enforce their IPR. Yet it may be difficult in certain circumstances to draw a distinction between a Party's domestic laws that establish rights and those that provide remedies for violation of those rights; if the domestic law clearly concerns the latter, then this provision does not appear to be relevant. For example, a law that specifies that "injunctive relief is not available..." for certain acts of infringement, appears more clearly to be a limitation on available remedies. However, a law that specifies that "it is not an act of infringement to" perform a specific action could be considered a limitation on remedies, or it could also be regarded as an exception, limitation, or condition regarding the availability and scope of IPR.Really, what becomes clear in all of this is just what a dreadful document ACTA is. It's vague in all sorts of important places, in order to give the USTR and ACTA supporters wiggle room to claim that it is in line with US law, but allow folks in other countries to claim that the US is not in line with ACTA. Agreeing to ACTA is a disaster in waiting. Even if it doesn't technically constrain Congress, it's going to tie us up in a series of ridiculous fights over compliance, and the pressure will clearly be on the US to interpret the provisions in ACTA in the most stringent ways (necessitating changes to US law) to avoid fights over whether or not we've lived up to our "international obligations."
Filed Under: acta, congress, crs, restrictions, ron wyden, ustr
