USTR Releases Openness Plan, While Celebrating That It's In The Pocket Of Industry Lobbyists

from the see?-people-like-us! dept

We were confused a few weeks ago when the USTR started promoting letters from lobbyists in support of ACTA. After all, of course the lobbyists want ACTA. They're the ones who wrote much of it in the first place. In the meantime, thousands have been writing the USTR to express their concerns about ACTA... but the USTR doesn't bother mentioning them at all. It's as if the USTR is flat-out admitting that it's controlled by the lobbyists.

So it should come as no surprise that the USTR is gleefully hyping up two more letters from lobbying groups in favor of ACTA. But why won't it put forth the letters against ACTA or worried about the process? And, of course, as Jamie Love points out, isn't it weird that these lobbyists are proudly supporting an agreement when, technically, they're not even supposed to know what's in the agreement?

What's even stranger is that all of this comes on the same day that the USTR has released its plan on being more open. How about, for a start, you open up ACTA, stop hiding behind lobbyists, and allow for a real open discussion involving the real stakeholders? Or is that too much to ask? Well, included in the openness plan is the following:

During the building of this plan, recommendations centered around two issues: the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and all other trade-related meetings. There was a desire to make all advisory committee, negotiating, and policy development meetings, and texts available to the public in "real time."

And yet, rather than any sort of real time release of information, we get the USTR still hiding the documents behind a bogus claim of "national security" and then showing off the fact that it's in the pocket of lobbyists who aren't even supposed to know what's in the document.

Filed Under: acta, lobbyists, ustr

Does ACTA Kill Online Anonymity?

from the it-might... dept

With the full draft of ACTA leaked, lots of people have been highlighting the various lowlights found in the draft. Andrew Moshirnia, over at the Citizen Media Law Project, has picked up on another one. If you read the draft, it appears to remove due process in revealing anonymous users. While other countries have viewed anonymity differently, in the US, at least, the courts have been very strong defenders of the right to anonymous speech. But the ACTA draft includes this fun tidbit:

Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

In other words, as long as someone makes a copyright claim -- bogus or not -- ISPs should be required to give up who the user is. Once again, this appears to be contrary to US law. The RIAA made this argument in the US years ago, and Verizon fought back and (eventually) won, as judges noted that ISPs did not just have to hand over information without a lawsuit being filed and an official subpoena issued. So much for ACTA not changing US law, right?

But, an even bigger concern may be how other countries implement this as well. We've already noted that China will likely use ACTA as justification for greater censorship, but Moshirnia points out that authoritarian regimes may start (ab)using it to unveil anonymous internet users as well:

Let's say I am an oppressive regime. One of the very few ways my citizens can reach me is by videotaping and publicizing my brutal methods of silencing protesters (warning, disturbing link). Now, not only can I use bogus takedown requests to pull down those videos (think a global DMCA) but I can also get the private information of the poster.

So why is anyone supporting ACTA again?

Filed Under: acta, anonymity, copyright

Some More Lowlights From The Leaked ACTA Draft: Whole Thing Can Be Rammed Through With 5 Votes

from the it-ain't-pretty dept

Michael Geist points us to a rather thorough review, by Margot Kaminski, of some of the more troubling aspects of the leaked ACTA draft. Kaminski highlights 24 different points, but we'll just pick out a few key ones. For example, she notes that ACTA would create an express lane for intellectual property cases in the courts, and questions: "Why should copyright take precedent over other cases and have such a fast turnaround?" There are a few concerning things about border searches. While ACTA negotiators and defenders keep insisting that ACTA won't mean border searches for individuals, the draft highlights a few things that are troubling. For example, the US, Canada and New Zealand want to change the exemption criteria for border searches from the current "small quantities of goods of a non-commercial nature" to the much lower standard of "reasonably attributable to personal use of the traveler." In other words, this does, in fact, grant more powers to customs and border patrol to search laptops and iPods and the like, if there's any indication of more information that is "reasonably attributable to personal use," -- though, that standard seems quite vague and subjective.

Then there are the big ones, such as greatly increasing the scope of what's considered criminal copyright infringement (remember, in reality, most copyright infringement is a civil offense, but copyright holders have tried desperately to turn it into a criminal offense, so the government gets to do the dirty work for them):

Expanding the definition of Criminal Copyright Infringement- THIS IS BIG: ACTA as the US wants it to read will expand the international definition of criminal copyright infringement to explicitly include Internet "piracy" done for personal benefit alone. Under TRIPS, countries must hold a person to have committed an act of criminal copyright infringement if he or she has willfully infringed on a "commercial scale", which was understood to mean involving sale to others. ACTA: 1) expands the international definition of "commercial scale" to include "private financial gain," (Australia and New Zealand request striking "private" to stick to a TRIPS understand of commercial scale) which is the standard in U.S. law, and 2) explicitly includes "significant willful infringements that have no direct or indirect motivation of financial gain" (U.S. initially, in its ACTA discussion paper, made clear that this was referring to Internet copyright infringement: "without motivation for financial gain to such an extent as prejudicially affect the copyright owner (e.g., Internet piracy).")

The downloading of copyrighted files or collection of copyright-infringing research "for private financial gain" by avoiding paying for such material may be found to meet this standard. This standard has the potential to criminalize the behavior of an enormous number of individuals, worldwide.

Along these lines, Kaminiski notes that ACTA greatly enhances and expands criminal aspects of various laws, well beyond previous agreements (i.e., this is not -- as ACTA defenders keep claiming -- just about enforcement).

And, yes, despite claims to the contrary, ACTA even goes beyond what US law currently includes. For example, in the language that seeks to export the DMCA to other countries, the US very specifically chooses language that goes beyond the DMCA -- specifically including language that covers inducement. Inducement is not found in the DMCA, though it is a part of US case law. But, of course, as part of case law, Congress could always clarify it and get rid of it. However, with it in ACTA, we'd be blocked because the industry folks would immediately start screaming about how we have to "obey our international obligations."

And the scariest part, right at the end:

Only Five states are required for ratification. So effectively, the five most powerful can rush to sign on to terms that everybody else will have to take on later.

Back when we first discussing the bits and pieces of ACTA leaks, an IP lawyer in our comments suggested that we shut up until the full document was produced, as commenting on it beforehand wouldn't do any good, and he was sure (so sure) that it wouldn't possibly include any language to expand US law. I'm curious what he thinks now.

Filed Under: acta, copyright, laws

ACTA Raising Serious Constitutional Questions

from the executive-agreements? dept

One of the talking points from ACTA supporters was always that it wasn't a "treaty" but an "executive agreement," claiming that this meant something different. However, as we discussed back in February, this is misleading. Executive agreements are generally a way to sneak treaties through without Congressional approval. That post linked to a great legal analysis by Andrew Moshirnia for the Citizen Media Law Project -- but some ACTA supporters in our comments claimed that since Moshirnia was "just a second year law student," his arguments were meaningless (of course, this commenter also ignored all of the legal citations Moshirnia raised (funny, that...)).

But it appears that some law professors are also pretty concerned about trying to sneak ACTA through by calling it an executive agreement. Harvard law professors Jack Goldsmith and Larry Lessig have penned an opinion piece for the Washington Post where they lay out an explanation for why calling ACTA an executive agreement may not be Constitutional:

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president's own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

At what point does President Obama begin to regret his blind support of ACTA?

Filed Under: acta, constitution, executive agreement, jack goldsmith, larry lessig

USTR Wants People To Know That At Least Someone Likes ACTA

from the yeah,-the-folks-who-wrote-it dept

The US Trade Rep is proudly promoting the fact that there's someone out there who likes ACTA. It's put up a new info website, where it highlights the fact that it's received TWO WHOLE LETTERS in support of ACTA. Of course, those letters come from two lobbying groups -- the International Trademark Association (ITA) and the Recording Industry Association of America (RIAA) -- two groups who have been heavily involved in the creation of ACTA in the first place. Of course they support it.

But, really, it's incredibly telling that the USTR is only willing to promote the letters it's received in support of ACTA, isn't it? Lots of people have been contacting the USTR with concerns about ACTA, and those don't get highlighted on the website at all. It's as if the USTR wants to make it clear that it works for the RIAA and the ITA, rather than the citizens of the country. It's reached the point where it's obvious that the USTR's focus is not on creating a good trade agreement, but on the trade agreement that some lobbyists wanted. It seems obvious that the USTR is not interested in understanding the complaints, but only in getting ACTA finished.

Filed Under: acta, lobbyists, ustr

Report From The Field: ACTA Negotiations Not Going Well

from the about-time dept

Well, there's a bit of good news coming out concerning ACTA negotiations: apparently, all this public scrutiny is causing some problems for the negotiators. Jamie Love points us to an analysis by David Hammerstein, based on talking to a number of people involved in or close to the negotiations, and came up with some key points, including that "the negotiations are not going that well and many issues are still wide open. It is doubtful they could wrap up soon" and that "there is a significant problem in making US and EU legislation compatible on a number of issues." Apparently, because of the way the US defines fair use and "commercial scale," the EU negotiators are trying to leave in vague language that doesn't sit well with others. He also notes that there's some confusion about what the EU Parliament's recent vote against ACTA means for the negotiation.

Then there are three key points at the end:

They get very uncomfortable when asked about the possible use of the legitimacy of Acta in authoritarian countries.

As well they should. This is a point that we've raised repeatedly, noting not just the similarities between the methods used for censorship in authoritarian countries and ACTA, but also in the way that those countries will almost certainly use ACTA to justify their own censorship.

They have no answer to concrete questions on the "innovation chill" that could be caused in many businesses by introducing criminal sanctions and other enforcement measures.

This is what happens when you craft rules designed to benefit legacy companies within an industry, without understanding the broader impact on the market. That the negotiators "have no answer" to this question only confirms that these rules were not created with the goal of improving the overall welfare of citizens, but to protect certain companies. And that point is only highlighted even more by the final point:

No social or economic impact studies seem to be undertaken in the EU on Acta.

Of course not. That's because, as per usual with intellectual property rules, these ideas are faith-based, rather than evidence based.

Filed Under: acta, evidence, negotiations

Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe

from the well,-look-at-that dept

As a whole bunch of folks have been submitting, the text of a recent draft of ACTA has been leaked (pdf). It didn't take long for some to convert the entire document to text, so that it can be analyzed and discussed more easily. Lots of folks are digging through the details, and turning up various gems. Michael Geist explores the different proposals concerning border searches of your iPod or other electronic devices. One of our readers, Robin, highlighted some specifically troubling points in the document. For example, on page 4, option 2 (submitted by the EU) includes:

The Parties shall also ensure that right holders are in a position to apply for an injuction against intermediaries whose services are used by a third party to infringe an intellectual property right.

Talk about a massive increase in secondary liability -- something that negotiators have insisted was not in ACTA and that we were all crazy to suggest it. Note that there are no caveats here. No limitation if there are substantial non-infringing uses. And, it even goes beyond direct liability to allowing an injunction against third parties. This clause would outlaw Google. Thankfully, New Zealand specifically has come out against this proposal and Canada questions the statutory limitations.

Then on page 7, in Article 2.5 (Provisional Measures), we've got a whopper of a suggestion from the EU:

Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.

Yup, you got that right. They want to let anyone block the possibility of future infringement. That goes way beyond the law today, and reaches into "pre-crime" scenarios out of Minority Report.

And yes, both of those proposals came from the EU, whose chief negotiator just this week insisted that no such things were in the document, and that it was all exaggeration by people on the internet. He also claimed that the EU had nothing to hide, but now that the document is out, we can see why they were very much hiding it. Anyway, I'm sure additional troubling parts of the document will be highlighted pretty quickly.

Filed Under: acta, eu, imminent infringement, infringement, leaks

EU Negotiators Insist That ACTA Will Move Forward And There's Nothing To Worry About

from the uh-huh... dept

With the EU Parliament overwhelmingly voting against ACTA, you might wonder how the EU negotiators would react. Apparently, the answer is by brushing it off and going right back to negotiations. The EU's main negotiator, Luc Devigne, was involved in an event where he defended himself and ACTA saying that all of the complaints are misrepresenting what's in the agreement, and insisting that the EU has "nothing to hide." Um, is that why the documents are all top secret? He says that he'll request the release of the documents, but we've been hearing that for a while now -- and the recent (leaked, of course) agenda for the next meeting in New Zealand shows just a tiny bit of time devoted to discussing transparency. Furthermore, it appears that, like the US negotiators on this topic, Devigne was being disingenuous with his statements -- and that's giving him the benefit of the doubt that he wasn't being outright dishonest.

The talking points from ACTA negotiators seem clear. When accused of being secretive, deny it and insist that you're being open. If really pushed on the matter, blame mysterious, nameless "others" for keeping the documents secret. Then, when specific items in the text are brought up, insist that these are being misrepresented, and if only you could see the real text (which you can't, because it's a secret) you'd know that it was all blown out of proportion. Then, finally, insist that ACTA won't change any laws. Of course, if that were the case, there would be no need for ACTA at all. The negotiators insist that it's all about "enforcement," but that's (again) being disingenuous. Many of the items in the drafts are created in a way that would lock countries in to certain paths. While they might not definitively prescribe things like "three strikes," the draft makes it clear that three strikes is the only real option to avoid liability. Even for countries that won't have to change their laws, these rules will prevent them from fixing the many problems found in today's copyright laws. Also, what's amusing is we've now heard from the US, Canada and the EU insisting that ACTA won't change their laws. But the US insisted ACTA was needed to force other countries to change their laws. Which countries? The US negotiators have suggested Canada, but Canada has said it won't change its laws for ACTA. So what's the point?

This whole thing is incredibly sneaky. Despite disapproval of many politicians, negotiators seem willing to just keep moving forward with this, and covering themselves by insisting that it won't actually change laws. That way they don't even need approval from politicians. But... when those politicians actually try to reform or fix broken copyright laws, you can bet that those who supported ACTA will be the first to stand up screaming that they can't make those changes because they'll "violate international agreements!" even though those agreements were put in place in secrecy in a back room, written by industry lobbyists and designed solely to limit how countries could fix their copyright laws.

Filed Under: acta, eu, luc devigne

ACTA Set To Cover Not Just Copyrights & Trademarks, But Seven Areas Of IP

from the stretching-the-law dept

The folks who created ACTA were already sneaky enough in describing it as an "anti-counterfeiting" agreement, when they knew all along it went way beyond issues related to counterfeiting. For a while, it's been obvious that it was also very much (perhaps more than counterfeiting) about copyright, but it's actually about much more than that. We already mentioned that it is designed to cover patents as well. Now, KEI has looked at another leaked draft document, and notes that the draft sneaks in the fact that it's designed to cover seven different areas of intellectual property. In typical sneaky fashion, it doesn't come out and list them directly, but in the definitions section, defines "intellectual property" as "refers to all categories of intellectual property that are the subject of section 1 through part 7 of Part II of the Agreement on Trade Related Aspects of Intellectual Property Rights." Basically, it's saying that it's accepting the definition in a totally different document, from TRIPs. So, what's in that document?

1. Copyright and Related Rights
2. Trademarks
3. Geographical Indications
4. Industrial Designs
5. Patents
6. Layout-Designs (Topographies) of Integrated Circuits
7. Protection of Undisclosed Information

Note how little of that has anything to do with counterfeiting -- which is mostly just a trademark issue.

Filed Under: acta, copyright, counterfeiting, intellectual property, patents, trademark

More ACTA Leaks: Would Create Special Organization To Manage Worldwide Copyright Laws

from the new-world-order dept

The more of ACTA that leaks, the worse it seems. KEI has the details on another portion of ACTA that had not leaked yet, which focuses on setting up new institutions that would manage ACTA after it was implemented. Basically, it would be an ongoing organization tasked with continuing to update ACTA's rules -- sort of a parallel organization to WIPO, which already exists, but which has recently committed the mortal sin of actually listening to consumer rights groups. The scary part is that this group would be allowed to amend ACTA provisions on the fly. And, while this new organization can "extend invitations" to governments, it's still being debated what non-governmental organizations will be able to take part. KEI notes that the "USTR has told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum," though does not provide a citation for this point.

Either way, it seems like the goal here is to create an extra-governmental body that effectively controls copyright law around the globe, with little input from the actual governments or the people they represent. And, of course, if the folks involved in ACTA negotiations are any indication of who will be involved in this group, you can assume that they will be strong supporters of the viewpoint of the legacy industries: that intellectual property law is designed solely to protect those industry's business models, and not to promote the wider progress of culture and the economy.

Filed Under: acta, copyright, enforcement