US Copyright Official Pretends That Concerns About ACTA Are Unfounded; Mocks Legitimate Concerns

from the nothing-to-see-here dept

Michael Geist points us to a report covering a recent panel discussion at the Future of Music Coalition policy day, about ACTA. You can see the video of the whole panel discussion here: The session kicks off with U.S. Copyright Office official Steven Tepp defending ACTA, by saying right from the outset, "Quite candidly, we're in the midst of a worldwide epidemic of copyright piracy." What kind of epidemic? Well, he uses that old line about how organized crime groups and terrorists are being funded by copyright infringement -- a claim that the industry keeps making, but which makes little sense. Even if it were true that some crime operations are selling bootleg DVDs and such, aren't they under the same, if not more, pressure from unauthorized internet file sharing?

But, even more to the point, tossing out the "organized crime" and "terrorists" claim (never with any actual evidence, of course) is a pure moral panic. If organized crime groups and terrorists are a problem, go after them for their organized crime and terrorism efforts. Don't claim that we need to put in place restrictive copyright laws that impact everyone just because law enforcement is unable to stop these organized crime groups. And it's worth pointing out while Tepp claimed this is all about organized criminals and terrorists... pretty much all of his comments following that had nothing whatsoever to do with either, but were more directed towards file sharing.

Tepp's next point is to back this up by quoting the widely laughed at (even by Tepp's own bosses) USTR Special 301 report, which has no actual methodology, other than to repeat whatever complaints are made by the entertainment industry and the pharma industry, without any effort to back that up with facts or data. That's not evidence. That's just US companies begging the government for protectionist policies against competitors. Amusingly, Tepp won't even name the countries he's talking about, so that people can point out the mistakes or problems in the USTR's report. He refers to "one Latin American country" or "one Western European country," by which he means Spain, but never says that -- perhaps because the USTR's report on Spain is misleading and not accurate. For example, he claims that in Spain (er this "Western European country") "internet piracy is no longer prosecuted and that government seems to be moving in a number of wrong directions with regards to online enforcement."

That's insulting to the Spanish and blatantly incorrect. Spanish copyright law has recognized that private, non-commercial file sharing is not the same thing as commercial counterfeiting. It's really quite misleading and disingenuous for Tepp to kick off this talk by saying he's not talking about internet downloading but about organized crime and terrorists... and then just a couple sentences later, complain about Spain not punishing kids for downloading some songs for their iPods. Furthermore, the big complaint about Spain is that it properly recognizes that a search engine or a tool should not be blamed for the actions of users. The US used to believe that too. But does Tepp explain any of this? Nope. He makes it out like the Spanish gov't is supporting terrorists. This is blatantly untrue and misleading. And, honestly, claiming that Spain's decision to create copyright laws that make sense is the country going in "the wrong direction"? That's insulting.

However, it does show how the whole ACTA debate is being distorted by the industry. They'll claim over and over again that it's about stopping organized crime and terrorists, but then immediately assume that people doing file sharing online should get lumped in with those people.

From there he goes on to pull out the usual bogus (and legally false) claim that these actions "rob" the United States. Uh, what? If the US is being robbed, charge the perpetrators with theft, and move on. A government official should not be making such legally incorrect statements to support a policy. This is not about anyone being robbed. This is about countries that have made reasonable determinations on how copyright law should be applied. And many folks have figured out how to work successfully within those legal regimes. That a few US companies don't want to adjust shouldn't lead the US gov't to forcing other governments to change their laws.

And then, the kicker. Like Ron Kirk recently claimed, Tepp says that now that the ACTA document has been released, it's proved all the "wild internet rumors" to be "false." Um. Except that's not true. The details showed that there are massive problems with ACTA, in that it only exports the restrictions with none of the exceptions. While it is true, technically, that it is "consistent with US law," today, that ignores the fact that US law is constantly changing, and ACTA would lock in aspects of the law, without allowing Congress to make important and necessary changes for fear of "not living up to our international obligations." Fixing problems with current case law (not statutory law) on what constitutes "contributory" infringement? ACTA limits that. That's a huge problem that many people pointed out in those "wild internet rumors" and it was proved 100% true.

Later on Tepp makes even more bizarre claims (amusingly, right after he slips up and calls it a "treaty" despite all the efforts of US negotiators to make sure they never called it a treaty). He says that ACTA has no intention of changing whatever balance each individual country makes in terms of copyright sanctions or exceptions. He specifically says:

"ACTA very clearly, from day one, has never been about changing the balance of copyright law. It doesn't talk about rights. It doesn't talk about exceptions... ACTA's just saying, whatever the infringement provisions and exceptions you have in your law, are up to you (consistent with all those other treaties we've all negotiated and agreed to), and you should have some minimum type enforcement actions available so that the remedies for violating those rights... have some meaning... So to say that ACTA is exporting without exceptions is to ignore that it's also exporting without rights. It's not talking about rights or exceptions."

That's blatantly untrue. The provisions on secondary liability do exactly that -- increase restrictions, without corresponding exceptions. And if it's not changing what any country does, then what's the point of the document in the first place? To say that it's just setting a "minimum type [of] enforcement" is to say that it's requiring specific copyright sanctions, which was exactly the complaint. Furthermore, the idea that this is needed to make sure enforcement "has some meaning" is again incredibly insulting to the decisions on copyright law that those other countries have made -- such as Spain's decision that personal, non-commercial copying should not be treated like for-profit, commercial copying.

Tepp is playing sneaky word games. When people complained about how ACTA exports enforcement provisions without the exceptions, Tepp focuses on the fact it doesn't export rights, but ignores the enforcement provisions -- which is what people were concerned about in the first place!

Anyway, he goes on to try to address the secondary liability claim, first by mocking the example that was brought up earlier of the Google execs found guilty of criminal privacy violations:

In terms of secondary liability issue, this is another red herring. The Google case in Italy, that happened entirely without ACTA. How is that possible? How could something bad happen without ACTA?

Once again, blatantly misleading. The example of the Google execs was used to show how secondary liability could create harm for American companies, by highlighting troubling secondary liability rulings in a different realm -- in this case privacy law. It wasn't saying that it was directly an example of what would happen with ACTA, but highlighting how secondary liability, as a concept, can lead to bad results. Tepp either feigned ignorance or was actually ignorant of the fact that this example was just showing secondary liability problems in privacy law, to suggest how those problems might also show up in copyright law. Mocking such a serious problem with secondary liability does not inspire confidence that Tepp or the US Copyright Office has even thought through the consequences of secondary liability.

That's scary.

Tepp continues:

ACTA doesn't mandate every jot and till of secondary liability. It sets forth the basic approach to it in the US and proposes that as standards to follow elsewhere. Could countries go beyond that? Sure. Have countries already gone beyond that already? Sure. Does ACTA require it? No... This is something ACTA does not require...

Um. What? Section 2.18.3 of ACTA, as it stands, appears to require third party liability (i.e., "secondary liability") and the related footnote to that section defines it pretty clearly:

For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another.

Once again, Tepp is being misleading. He's pointing out that ACTA sets the floor for secondary liability based on what's in the US, but totally ignores the fact that secondary liability for copyright in the US is a highly dynamic area. It's not in the statute anywhere -- a law that tried to put it there did not pass -- and really was only defined by the Supreme Court just a few years ago in a manner that many people find problematic. If ACTA sets that as the floor, then it limits the US from being able to fix the problems with the Supreme Court's definition. At the same time, note that Tepp only talks about going "beyond" what's in the US today. He doesn't seem to realize that many countries find the US's view of secondary liability as already having gone way too far.

He's right that countries can already go further, and some do, on their own, but that does not minimize the fact that encouraging greater secondary liability will likely come back to haunt many US companies.

Thankfully, Michael Petricone from the Consumer Electronics Association responded to Tepp's statements by making many of the same points I'm making. Later he highlights many of the other problems with ACTA, including the lack of Congressional oversight, and the failure to involve stakeholders and the public (Tepp, amazingly, says that the process has been open to anyone who wanted in). A great moment, about halfway through, is when Petricone challenges Tepp, by saying that if he's right that "there's no 'there' there," then "why the secrecy?" Tepp's response? Basically "that's not my department."

A few other points:

• Richard Bengloff, from A2IM (representing independent labels), admits that they decided to support ACTA despite not having seen it. He says that someone from the RIAA "briefed him" on the background and that was enough for them to support it wholeheartedly. That's scary. Considering that the specific language choices are really important for the kind of impact ACTA will have, to say that an entire organization was in full support of the document, without even knowing what it really said, is stunning and a huge question market for A2IM. Why would you trust an organization that blindly accepts an important document it hasn't seen?
• Later on Bengloff makes this hilarious statement: "We're going to support anything of any type that stops this crime." And, of course, he emphasizes the word crime. Like Tepp before him, he is deliberately mixing certain criminal activities and civil infringement for personal use as if they are the same thing. And, he's being woefully uninformed if he thinks that ACTA will actually do anything to actually stop file sharing. He's doing the labels he represents a great disservice.
• Petricone does an excellent job responding to Bengloff on this point, noting that it's ridiculous to say you'll support "any" action designed to stop file sharing, when you don't look at the wider consequences of those actions -- including on other industries and the public at large.
• Petricone also highlights how the entertainment industry has been blurring issues by lumping copyright in with counterfeiting, saying that if the agreement focused on actual counterfeiting, there wouldn't be so many complaints about the proposed agreement.
• Malini Aisola, from KEI, reminds everyone how silly it was that the USTR wouldn't share the documents earlier, despite FOIA requests, claiming that keeping the documents secret was a matter of national security (a position that still has never been explained).
• Tepp is incredibly condescending to Aisola, when she expresses concerns about some of the language in the text and how it will impact seizure of legal generic drugs. He reads off a press release from ACTA negotiators that says ACTA won't impact that issue. As if the press release of what ACTA negotiators say the agreement will do has any impact on what the agreement actually says. Aisola has a list of text KEI would like included in the document, as a "consumer Bill of Rights" to ensure that what's in the press release is true, and Tepp shoots her down by saying that such agreements don't usually contain that kind of text. He says we should only discuss what's directly in ACTA, and if it violates those principles -- again, dismissing the idea that exceptions are important to making sure enforcement is not overly draconian.
• A final point from Bengloff, equally as jaw dropping as his earlier comments: "If we don't stop piracy, we won't be in the music business because there will be no more creation." Yes, that's why more music is being created today than ever before, and there are more people making money from music than ever before. This argument that without strong copyright law there will be no more creation is beyond laughable. Lots of folks have figured out business models that work without involving copyright law. Pretending those models don't exist is blatantly ridiculous. You would think that, as an industry association for independent labels, A2IM would be on the forefront of encouraging these better business models, but instead they're sucking up to the RIAA demanding protectionism for the same copyright laws that have allowed the major labels to be the gatekeepers in the market, at the expense of indie labels.

Filed Under: acta, copyright, copyright office, michael petricone, steven tepp

Obama Reiterates Support For ACTA, As More People Point Out How Far ACTA Is From The Purpose Of Copyright

from the bad-thinking dept

A few months back, President Obama publicly stood behind ACTA despite tons of concerns about it from the public. It's disappointing that as more and more concerns and problems with ACTA have been highlighted, Obama has not reconsidered. He still seems to be taking the position that "more copyright must be good, and ACTA therefore is good." That's a naive position. The group Open ACTA points us to a statement made by Obama in Mexico, concerning better trade relations with Mexico, where he again insists that ACTA is a key part of better trade relations:

Innovation and investment in technology and human capital are keys to sustained economic growth and competitiveness in both Mexico and the United States. The protection of intellectual property rights is essential to promote such innovation and investment. With this in mind, the Presidents charged their administrations to work together to formalize and expand the efforts of the existing bilateral Intellectual Property Rights Working Group. These efforts will include industry training (including of small and medium size enterprises); work between Mexican Institute of Industrial Property (IMPI) and the United States Patent and Trademark Office (PTO) to streamline patent reviews; and collaboration, training and increased intelligence sharing among law enforcement agencies to enforce intellectual property rights more effectively. The Presidents also reaffirmed their commitment to the negotiation of the Anti-Counterfeiting Trade Agreement and charged their administrations to conclude these negotiations soon.

But, this blind assertion that stricter copyright enforcement without key exceptions and consumer protections that actually contribute more value to the economy than copyright restrictions, isn't just wrong, it goes against the very purpose of copyright law.

Hephaestus points us to a submission to the Australian government, by the Australian Digital Alliance, that does a great job highlighting the negative impact of ACTA (pdf) and how it goes against basic copyright law:

"The text of ACTA does not reflect one of the most important objectives of copyright -- to ensure access to information for the benefit of society. Protecting creators to encourage continued innovation is only one half of the copyright equation, ACTA fails to recognise the dual purpose of copyright."

The whole submission is worth reading, as it highlights all sorts of serious issues with ACTA and the impact it would have:

ACTA might have a negative impact on individuals as Internet citizens and as consumers of digital technologies because some of its requirements go beyond Australian law. ACTA will facilitate excessive damages payouts by mandating the controversial 'lost sale analysis' for the assessment of damages and encouraging punitive style statutory damages that set arbitrary amounts for infringement. ACTA will also broaden the scope of commercial scale infringement to criminalise purely private acts that occur in the homes of some Australians....

ACTA might have a negative impact on intermediaries that will damage Australia's digital economy by diminishing Internet innovation, the free flow of information and legitimate commerce. ACTA provides for the unqualified award of injunctions against intermediaries, which creates new rights with significant potential for abuse and cost implications for ISPs. ACTA defines where third party liability will be imposed, which is a highly controversial issue that requires the flexibility of being dealt with at a domestic level. ACTA will burden intermediaries with more onerous requirements for safe harbour protection that may encourage three strikes.

What's most frustrating about all of this is that it really does appear that many ACTA supporters are simply going by the boilerplate myth that "stronger copyright protection" is "good for society," without ever once bothering to understand the details and why such a statement isn't just wrong, but dangerous.

Filed Under: acta, copyright, obama

ACTA Draft Release Was Apparently A One Time Deal: Now We're Back To Secrecy

from the transparency-shmancparency dept

After about a year or so of very public questions over the incredible level of secrecy of ACTA (including the patently ridiculous claim that details couldn't be revealed for national security reasons), including a complete smackdown by the EU Parliament concerning the whole ACTA process, the negotiators finally (and very reluctantly) released the latest draft in April. Of course, by then, the full document had already leaked. Still, the officially released document left out some of the key parts that were in the leaked draft. Funny how that works.

But, of course, the negotiators pushing for ACTA pretended that the only concerns people had with ACTA were over the transparency issue, and now that a draft has been released, apparently they think that there should be no more complaints about ACTA. Uh huh. Except, of course, those who actually understand these issues, have pointed out some serious problems in the way ACTA is written, in that it locks in certain parts of copyright law that are very much in flux, and seems to export only the limits of copyright law, with none of the very important exceptions.

And, now it's coming out that this new "transparency" may have been a one-time deal. The head negotiator from the EU, Luc Devigne (the guy who planned to ignore the rebuke from the EU Parliament), has apparently told people that the April release is all that they planned on releasing. So, after the next round of negotiations happens (next month), the latest document will not be released again.

However, the rest of Devigne's comments reinforce some of the earlier reports from the field that we've heard, suggesting that large parts of the negotiation are still in dispute:

• There is still no agreement on the ISP safe harbour provisions.
• Major disagreements in the criminal chapter include the definition of "commercial scale" (the U.S. wants it defined, the EU wants it left to national judges) and the inclusion of an anti-camcording provision.
• Disagreements on the civil enforcement chapter includes damages and scope.

Of course, those are some very key points that will determine just how bad ACTA may be. The fact that the negotiators won't be releasing updated drafts when these points are still very much in flux is quite troubling.

Filed Under: acta, luc devigne, negotiations, transparency

Google Lawyer Says ACTA Is 'Cultural Imperialism'

from the going-too-far dept

With the official release of ACTA finally out, it's good to see various organizations speaking out against the many problems found in the draft agreement. We've already covered the detailed arguments against ACTA supported by numerous organizations. And now, a Google lawyer, Daphne Keller, has spoken out harshly against ACTA as well, calling it "cultural imperialism" that had "metastasized" and "grown in the shadows, Gollum-like," from a document that was supposed to just be about dealing with counterfeit goods at the border, to a serious challenge to copyright laws around the globe. And, indeed, it is a form of cultural imperialism, in that it seeks to export certain aspects of US copyright law around the globe... while critically leaving out the consumer protections and necessary exceptions. I wonder if the USTR, who is negotiating the agreement on behalf of the US will put up Keller's words on their website next to the entertainment industry letters in support of ACTA that it's put on the USTR website? Or, does the USTR only listen to Hollywood on this particular topic?

Filed Under: acta, copyright, daphne keller
Companies: google

How ACTA Exports Worst Of US Copyright Law Without Corresponding Exceptions

from the despite-the-assurances dept

All along defenders of ACTA have insisted that it will not change US copyright law. In fact, the argue that, since it's an executive agreement and not a treaty, it cannot change US copyright law. However, the devil is always in the details, and the details are not good. Earlier this year, we noted that the real problems were not in what was included in ACTA, but what was left out. That is, ACTA technically includes stuff that is (mostly) already in copyright law... but leaves out all sorts of exceptions and consumer protections. On top of that, some of what it seeks to do is to "lock in" areas of copyright law that are still very much in flux -- such as aspects like "inducement" that have only recently been determined by case law, but have not been discussed or reviewed in Congress itself. ACTA would prevent such changes, because if Congress later decides -- for example -- that it did not intend for there to be an "inducement" standard for copyright infringement (as the courts have created) it would not be able to do so because of ACTA.

With the official draft of ACTA finally released, Jonathan Band alerts us to a filing (which I'm guessing he played a large role in drafting) from the Library Copyright Alliance (along with CCIA, CEA, NetCoalition, EFF, Public Knowledge and a few other groups) that carefully and with great detail highlights the many serious problems with the released ACTA draft, detailing how it is not, in fact, in line with US copyright law, and how at different points it seeks to lock in areas of the law that are still very much in flux. You should read the whole thing: It notes that the "official" version leaves out what countries are supporting what -- and points out that there are certainly parts of the text that are still up for debate that clearly go against current US copyright law. However, with many of those, the letter gives the USTR the benefit of the doubt that it will not agree to those phrases that are clearly outside the scope of US copyright law. Instead, it focuses on the parts of the released text that do not appear to be in dispute or negotiation any more, but which still appear to go against current US copyright law:

These comments will focus on the language in the Consolidated Text that we believe the U.S. government has endorsed. While the United States probably could comply with these provisions of the Consolidated Text without amending the U.S. Copyright Act, these provisions are inconsistent with U.S. law in several significant, troubling respects. The common thread of these inconsistencies is that the Consolidated Text does not reflect the balance in U.S. copyright law. This lack of balance is at odds with the Obama Administration's policy concerning balanced international copyright law

The biggest concern comes in the form of statutory damages. Again, the text of ACTA does not currently go beyond US copyright law, but it does tie the hands of Congress on an issue that has constantly been debated (and over which there are some ongoing lawsuits challenging the legitimacy of current statutory rates). Locking those in would be a massive problem. When you then combine that with a lack of prominent exceptions to copyright law -- such as fair use (which is in US law, but not elsewhere, and is not required by ACTA), you create a situation that could present massive liability problems to US companies operating abroad:

Although the existing statutory damages framework has a chilling effect on innovation and follow-on creativity, its negative impact in the U.S. is somewhat mitigated by the existence of strong exceptions such as the fair use doctrine. Other countries, however, do not have these exceptions. And the U.S. in ACTA has not demanded the adoption of these exceptions. In other words, the U.S. seeks the export of our strong enforcement mechanisms but not our strong exceptions.

This asymmetric export of our laws could be particularly harmful to U.S. Internet companies as they attempt to expand their operations overseas. For example, U.S. courts have treated the copying of copyrighted material by search engines as permitted by fair use. In contrast, courts in Europe have found Google and other search engines liable for copyright infringement for engaging in similar activities. If ACTA is adopted, and European countries enact statutory damages, the potential exposure of U.S. search engines will increase exponentially for conduct considered lawful in the U.S. They will be liable not just for the actual damages they cause, but the level of damages set by statute. Under current U.S. law, if a company is held liable under a direct or secondary liability theory for infringements by thousands of consumers, the resulting damages (up to $150,000 multiplied by thousands of works deemed infringing) could easily bankrupt the company. Raising the possibility of similar, ruinous damages for conduct considered lawful in the U.S. would simply hinder U.S. businesses' ability to operate abroad.

Along those lines, the letter notes that US law contains the right to decrease statutory awards in the case of "innocent infringement." Once again, this does not show up in ACTA, so we are, yet again, exporting the draconian parts of copyright law, without any of the important strong exceptions.

The letter also highlights the attempt in ACTA to not just lock in third party liability when it comes to copyright (a concept that has been determined by case law, but not in Congress -- and, in fact, was rejected by Congress when a law creating such liability was proposed a few years ago), but also appears to redefine third party liability, by expanding the definition to cover three different things, when current US law does not do that:

There are numerous problems with these two clauses of footnote 47. First, they suggest that inducement is a different test from contributory infringement; that is, they imply that there are three theories for third party infringement under copyright -- vicarious liability, inducement, and contributory infringement. However, Grokster makes clear that inducement is not separate and distinct from contributory infringement.

And, of course, once again, it looks like in the issue of third party liability, ACTA makes it much stronger and removes the balance found in US copyright law:

Finally, article 2.18.3 lacks the balance present in U.S. third party liability law. Article 2.18.3 makes third party liability mandatory. In contrast, exceptions to such third party liability are only permissive: "the application of third party liability may include consideration of exceptions or limitations...."

Notice the pattern? This does a variety of problematic things. First, it creates serious problems abroad for all other countries that sign onto ACTA, giving them all the limitations of copyright law without the important exceptions (which, it's been shown, are more important when it comes to economic activity). Second, should the US ever adapt its own copyright law, which has been going on pretty much non-stop, it locks in the limitations, but not the exceptions. That means that US law will only be able to take away the exceptions, but not ratchet down some of the problematic aspects of copyright law. That's downright scary.

And, of course, the rationale for all of this? It's based on studies that our own government now says were bogus.

It's even worse when you realize that if the point of copyright law is to promote the progress of science and the useful arts and there's no real evidence of a causal link between any particular copyright policy and greater societal progress, then it makes no sense at all to harmonize copyright laws in lockstep. Instead, it makes sense to do the exact opposite. It makes sense to let different countries experiment with different types of copyright laws so that we can actually build real evidence for what works and what does not work. Locking in a particular set of laws across much of the developed world, without any evidence as the basis is downright scary. It's faith-based policy making, pushed almost entirely by a small group of businesses who stand to benefit. It's an incredible shame that the USTR seems totally taken in by them.

Filed Under: acta, copyright, exceptions, fair use, laws

Could Cybercrime Treaty Already Push Through Some Of The Worst Of ACTA?

from the international-obligations dept

One of the important aspect of the leaked copy of the ACTA draft a little while back was that it also included what each of the different parties was pushing for in terms of language choices. This part of the draft was conveniently missing from the "official" draft that was released recently. But, if you looked through the different changes being pushed for by different countries, you quickly realized that definitions mean everything. The different wording seemed to only differ slightly, but depending on how you defined different terms, the actual meaning could be night and day. And, indeed, supporters of ACTA have been working overtime to make reading the draft seem innocuous, while making sure that the definitions make ACTA much more powerful.

Among the concerns is how "criminal copyright infringement" is defined -- specifically, what counts as "commercial scale." In ACTA, there's been an attempt to define commercial scale as broadly as possible, including copying for personal use.

Richard points us to some news down in Australia, where there's some concern that Australia's recent decision to sign on to a European cybercrime treaty, could force it to define criminal copyright infringement extremely broadly, along the lines of ACTA -- effectively getting that part of ACTA agreed to with or without ACTA. In other words, as plenty of folks interested in this stuff have been focused on ACTA, was the entertainment industry able to back door this really bad aspect of ACTA into many countries via the Cybercrime treaty already?

Filed Under: acta, australia, commercial scale, copyright, criminal copyright, cybercrime treaty

USTR Continues To Lie: Claims ACTA Release Proved Internet Rumors About ACTA Were False

from the lies,-damned-lies,-and-sticking-up-for-lobbyists dept

This is pretty funny. After working really hard to keep ACTA negotiations a secret (even ridiculously claiming it was a national security issue), the USTR finally was pressured into release the draft text which showed, in fact, that the online leaks were exactly correct. Yet, the USTR is sticking to its earlier talking point that all the concern about ACTA in the online community was due to "misrepresentation" and "misinformation."

USTR boss Ron Kirk, at a World Intellectual Property Day event earlier this week, claimed that the official release of ACTA text had shown that there was "a lot of the misinformation about ACTA." Except, no, that's not true. While there had been some misinformation about it last summer (mainly due to Kirk's own actions in keeping the document secret), the leaks that started coming out late last year appear to have been 100% accurate. In fact, the significant changes to the officially released copy appear to have been driven by concerns brought forth due to these leaks. He went on to say that it's too early to "judge" things:

"We're still in the middle of the process," Kirk said, adding that "let's not prejudge anything." He also said his office has "gone to great lengths to hear" from all the stakeholders involved in the ACTA debate and will continue to do so.

But that's wrong on a variety of fronts. While the USTR had shown some snippets of the documents, under NDA and only for very brief periods of time, to consumer advocacy groups, that was significantly less access than many industry lobbyists had to the document and the negotiations. As for "pre-judging" the document, the issue isn't "pre-judging" the document, it's about actually listening to the stakeholders. To date, Kirk and the USTR has shown no interest in doing so. That's why they seem to only be publicizing letters from industry lobbyists who support ACTA, but not the concerns of pretty much everyone else about ACTA.

The issue isn't "pre-judging," it's making sure that by the time anyone's allowed to "judge" the document, it isn't too late.

Filed Under: acta, ustr

Missing From ACTA Release: What Each Country Is Pushing For

from the well,-look-at-that... dept

We've already discussed the (finally) officially released draft of ACTA -- which only came out after a ridiculous amount of public pressure, multiple leaks and a total beatdown by the European Parliament. While the official version shows that the leaked versions were quite accurate (this version only has the few changes made at the recent New Zealand negotiations, which came after the leaks), some are noticing what's missing. Jamie Love is pointing out that the leaked versions clearly showed which countries were pushing for which provisions. But the different country positions have been conveniently deleted from the "official version":

"It's late, very late, and missing a key element of transparency -- the country positions. Governments had to be forced by civil society groups to make the ACTA text public. Let's hope that the precedent for the future is to publish the texts, and to publish them much sooner. Now that the text is out, it will be easier to have public debates about its contents. It is unfortunate that the country positions were eliminated from the published version, but positions as recent as January 2010 are available from the earlier leaked texts.... Clearly the text goes way beyond counterfeiting and copyright piracy, into several categories of intellectual property rights, including patents, semi conductor chip designs, pharmaceutical test data and other topics. Governments should engage with consumer groups, civil rights organizations, educators, libraries, generic drug manufacturers, technology companies and others to re-balance the text, or abandon the negotiation if this is not possible in the current political environment."

Once again, it looks like this "transparency" isn't quite as transparent as ACTA supporters would like you to believe.

Filed Under: acta, europe, new zealand

ACTA Released, Only Very Slightly Less Awful Than Expected

from the debating-a-global-copyright-nanny-state dept

After fighting every step of the way to keep the ACTA secret, the USTR last week disengenuously proclaimed that it was finally time to make the international agreement public -- to "help the process of reaching a final agreement." Of course this proclamation of transparency and cooperation comes only after much of the agreement had been hashed out without substantive public input, after the European Parliament voted 633-to-13 to demand the release of ACTA's text, and after most of the agreement had already leaked to the press. Today the European Union finally released the full agreement (pdf) -- as well as a statement by EU Trade Commissioner Karel De Gucht insisting that the release proves ACTA concerns have been unfounded (shockingly it turns out that's not true).

Most of what's in the agreement isn't a surprise given the leaks, and while the ACTA remains a bevy of awful policies, there are a few minor changes to degrees of said awfulness. While the leaked versions of the ACTA didn't explicity mandate ISP "three strikes" provisions, they did threaten to take away ISP safe harbor protections if ISPs didn't agree to police copyright, with the only real example of acceptable behavior being -- to employ three strikes provisions. This freshly-released version of the agreement gets rid of that language, instead simply insisting that ISPs can only retain safe harbor protections by adopting a "takedown" policy that will "address the unauthorized storage or transmission of materials protected by copyright."

That's of course simply taking our notoriously unreliable DMCA letter warning process and exporting it to Canada and elsewhere. Here in the States several major ISPs are already voluntarily taking this idea one step further -- by threatening users with disconnection for trading copyrighted files via BitTorrent (in some cases these threats, which no ISP is willing to transparently discuss, have been found to be a bluff). Some new language in the agreement also appears to take aim at softening European law, allowing countries to "terminate or prevent an infringement" and pass legislation "governing the removal or disabling of access to information." Meanwhile, Michael Geist notes that three strikes may not be dead yet given countries still need to hash out their differences:

"However, that does not mean that three strikes has disappeared from the draft entirely. The U.S. proposal for ISP liability is one of three options currently being considered. The European option preserves, but does not require, three strikes . . . The EU will argue this is consistent with the law in a few of its member states. If the approach is adopted, it will clearly keep three strikes on the table and could be used in other ACTA member countries to encourage its adoption."

Most of the language that critics have grown familiar with (making the bypassing of copy protection illegal even in cases of fair use, making copies of a large quality of content illegal even if no money is exchanged, mandating that ISPs become copyright nannies) remain at the heart of the ACTA. The agreement's central thrust continues to be to foist clearly dysfunctional, unreliable, and draconian U.S. DMCA-style copyright enforcement policies upon other countries. Other than that? Sure, ACTA concerns are "unfounded" with the release of this latest draft. Of course it can still get better (or worse) in time.

Filed Under: acta, ustr

Now That Everyone's Seen ACTA, USTR Says 'It's Time To Release It'

from the nice-work,-guys dept

So, for years now, the USTR has fought as hard as possible to keep ACTA a secret, while pretending otherwise. It's insisted that ACTA wasn't secret while at the same time refusing to release details of what's in the document, claiming that it was a national security issue. Later, when confronted about it, the USTR claimed that others would leave the negotiating table if the text was made public. However, as more and more info leaked about ACTA, it became quite clear that it was really the US that was behind the level of secrecy. Of course, as time went on, more and more of the document leaked, the whole "secrecy" angle got pretty silly.

So it's almost laughable to see the USTR say on Friday that now is finally the time to release a draft -- as if everyone who didn't already want to see it hadn't seen it.

Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

Yes. That or the massive public rebuke the USTR has been receiving from almost every quarter on this particular agreement. The full document gets "released" on Wednesday, and we expect it to be... well, pretty much like what was leaked last month.

Filed Under: acta, ustr