If ACTA Gets Approved, Expect China To Use It As Justification For Censorship

from the just-watch-and-see... dept

While one of ACTA's biggest supporters, Rep. Howard Berman, is now pushing for laws to stop companies aiding in China's censorship, he might want to consider that a better plan would be to back down on ACTA. If ACTA passes, it seems quite likely that China would then use it as justification for its own "great firewall" censorship program. Already, we're seeing that China is looking to use plans for internet filters in Australia to its own advantage by comparing that system to its own -- and you can bet China would be thrilled to be able to use a US-backed concept to support its continued censorship.

In the past, China has justified its internet censorship by saying things along the lines of, "well, you in the US have laws against obscenity online, and what we're doing is passing laws against the type of content we feel does not belong online either." But something like ACTA could make the case much stronger for the Chinese. That's because ACTA and China's censorship have a lot in common, in that they're both plans that involve vague secondary liability aspects applied to ISPs. That is, China's Great Firewall works by the government telling ISPs that they might get in trouble if anyone says anything "bad" online, and are given just vague rules about how to stop the bad. Thus, the ISPs respond by being overly aggressive in their enforcement. Similarly, ACTA hints at vague secondary liability safe harbors needed for an ISP not to get blamed for copyright infringement -- and, as we've seen, when such vague rules were implemented in South Korea, service providers start getting overly aggressive in banning things as well.

So if Howard Berman really wants to crack down on Chinese censorship online, perhaps he shouldn't be working so hard towards giving them more justification for China's actions.

Filed Under: acta, censorship, china

EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google

from the third-party-criminality dept

While the EU Parliament has decisively denounced ACTA -- both in terms of the process and the substance of the (still secret) draft agreement, it appears that the EU negotiators are still pushing to include draconian provisions in ACTA. KEI has discovered that the EU is proposing to make inducement a criminal offense, rather than just a civil one:

KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."

Of course, definitions matter here. In this case, the question is what constitutes "rights piracy on a commercial scale." Beyond the troubling notion that these negotiators are using such an inaccurate and imprecise word as "piracy" in such a big agreement, the commercial scale definition is quite broad:

"significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain"

Consider this the "let's criminalize The Pirate Bay" clause. Of course, it could also be read as the "let's criminalize the VCR clause" as well -- which is why this is so troubling. It's one thing to add civil penalties and liability to third parties through some sort of misguided secondary liability policy -- but it's really pushing to dangerous extremes to add criminal liability to that as well.

Now, let's look at the potential unintended consequences of such language. It effectively could outlaw Google. Google, without a doubt, can be used to "aid" or "abet" "copyright... piracy on a commercial scale... that have no direct or indirect motivation of financial gain. Now, those in support of this bill will quickly insist that no one is going to use it to shut down Google. And they're probably right, given Google's brand recognition. But the fear is that they would almost certainly use this to shut down the next Google-like company before it had a chance to get very big. This is what happens when you have technologically, economically clueless bureaucrats trying to protect a dying industry. You get bad regulations that have massively dangerous unintended consequences.

Filed Under: acta, copyright, criminal, eu, inducement, secondary liability, third party liability

Obama: We Must Move Forward On ACTA

from the missing-the-point dept

With the EU Parliament soundly voting against ACTA secrecy and current proposals, lots of folks have been wondering how the US was going to respond. So far, it's not looking good. The USTR gave a giant no comment, and President Obama (who had been pretty quiet on ACTA himself) addressed ACTA in a speech, where he expressed strong support for continuing to move forward with ACTA.

What was telling, however, was how he described ACTA -- which is that he used the bogus arguments for what people think ACTA is about, rather than what's actually in the agreement. It's a political trick:

"There's nothing wrong with other people using our technologies, we welcome it -- we just want to make sure that it's licensed, and that American businesses are getting paid appropriately," Obama said. "That's why [the Office of the U.S. Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement."

Except, of course, ACTA goes way, way, way beyond that. It's disappointing that Obama, who keeps insisting he's in favor of greater transparency in government seems to be ignoring the fact that the USTR has been anything but transparent on ACTA, and that the whole effort has really been a blatant push by the entertainment industry and pharma to engage in legislative laundering to push through all sorts of restrictive rules that have nothing, whatsoever, to do with protecting against counterfeiting.

Filed Under: acta, obama

Overwhelming Majority Of EU Parliament Votes Against ACTA

from the wow dept

Wasn't expecting such a lopsided result, but EU Parliament voted 663 to 13 against ACTA, saying that "it flouts agreed EU laws on counterfeiting and piracy online." Beyond that, apparently the Parliament is ready to go to court to stop EU negotiators from continuing down the path they're on:

MEPs will go to the Court of Justice if the EU does not reject ACTA rules, including cutting off users from the Internet "gradually" if caught stealing content.

Some Members of Parliament are also pointing out that the EU negotiators are violating the Lisbon Treaty, which says that EU Parliament Members should have "full and immediate access at all stages of international negotiations."

This is pretty big -- and a massive setback for ACTA supporters. The MEPs didn't just reject the lack of transparency, they were blatantly rejecting some of the proposals that were in the leaked documents.

Filed Under: acta, eu, secrecy, transparency

EU Politicians Get Serious Demanding ACTA Transparency And No Three Strikes

from the excellent-news dept

Last week, there were reports that the EU trade policy folks had decided to stand up for ACTA transparency, and now it looks like they're really doing it. As various reports are noting, a joint resolution was put forth by nearly all party groups in the EU Parliament demanding that ACTA negotiations be opened up. It also goes further, demanding that there be a ban on imposing "three strikes" laws included as well and a promise that ACTA will not impose personal searches at the border. This is tremendous news, and if this gets approved, it could reshape ACTA in a positive way. But, of course, let's see how the US reacts. While repeatedly insisting that it wasn't the US that was trying to keep negotiations secret, at this point, it looks like the only countries that are actively opposed to transparency in negotiations remain South Korea and Singapore -- with the US remaining silent. This would be the time at which the USTR needs to stand up and either open up the negotiations or admit that it's the reason they've been so secretive all along.

Filed Under: acta, eu, three strikes, transparency

Latest ACTA Text Seems To Conflict With Hard Fought New Language On Damages In Patent Reform Bill

from the but-it-won't-change-the-law... dept

Remember how the USTR and various lobbyists keep insisting that ACTA won't change US law? Or even limit its flexibility in changing the law? Well, if you take the latest leak and the fact that the USTR is now admitting that it's hoping ACTA will cover patents, and then look at the newly released patent reform bill, you'll discover that, on the issue of damages, it certainly looks like the two are in conflict. This is pretty important, since the "damages" part of patent reform was the key stumbling block last year, with a lot of back and forth going into the development of the language. For the USTR to then come along and potentially screw that up with poorly thought out language in ACTA could be a big problem...

Filed Under: acta, damages, patent reform, patents

EU Apparently Agrees That ACTA Should Be More Transparent

from the ok,-so-open-up dept

Via Jamie Love we learn that at an EU trade policy meeting, EU member states have agreed to push for more transparency with ACTA, including releasing the draft negotiation documents as soon as possible. Apparently, this position was driven by Sweden, who we already noted was unhappy with where ACTA was heading. Since this apparently includes all EU member states, does this mean that Denmark has backed down from its hardline position against transparency? And if this is the case, who is left arguing that the documents need to be kept secret? As far as I can tell from the earlier list, we're now down to Singapore, South Korea and the US. That's odd, because Singapore, South Korea and the US already have trade agreements of this nature. In fact, much of ACTA is actually based on the agreement between the US and South Korea -- which is already proving problematic for those in South Korea.

Filed Under: acta, eu, transparency

Sweden Says It Won't Agree To ACTA If It Requires Any Changes To Swedish Or EU Laws

from the take-a-stand dept

While US negotiators keep insisting that ACTA won't change US law, they're perfectly willing to admit that's not the case for other countries. That's why much of what the US is insisting on in ACTA looks like the US's quite problematic existing copyright law (minus a few consumer protections and with some "hints" at stricter compliance). However, it looks like at least some countries aren't interested in taking dictation from the US when it comes to their own copyright laws. Henrik Moltke points out that Swedish officials are saying they simply won't agree to ACTA if it requires any changes to Swedish or EU laws. Of course that "or EU laws" part is tricky. What if it requires changes to EU law, and that impacts Sweden even without agreeing to ACTA? Still, it's nice to see some countries standing up and publicly stating they won't be bullied by the US into copying (wait, weren't ACTA supporters calling that "stealing?") US copyright law.

Filed Under: acta, copyright, europe, sweden

USTR Responds To Sen. Wyden About ACTA; Admits It Hopes ACTA Will Cover Patents Too

from the expansion-of-power dept

You may recall, at the beginning of the year, Senator Ron Wyden complained about the secrecy surrounding ACTA and sent a series of questions to the USTR about the negotiations behind ACTA. While the USTR apparently replied in late January, both sides have only just revealed the contents of the response (pdf). It's about what you would expect. The answers leave plenty of wiggle room, and a few seem to be blatant falsehoods. For example, Wyden is concerned (accurately) not just over whether or not ACTA will change US copyright law, but if it will limit Congress's ability to change copyright law to fix some of its problems. The USTR claims that it is making sure there is "flexibility" in the agreement to allow for that -- but the leaked documents show no such flexibility.

Furthermore, the response confirms what became clear in the most recent leak, that the US sees ACTA as covering not just copyrights and trademarks -- but patents as well (though, some of the other participants are against including patents).

Finally, the USTR repeats the bogus claims that it is being transparent about ACTA, noting that it put up a dedicated web page. Well, doesn't that just solve everything?

Filed Under: acta, copyright, patents, senator wyden, ustr

Danish Politicians Questioning Why Denmark Is So Against ACTA Transparency

from the where-are-the-politicians dept

One of the really amazing things in witnessing the reactions among various politicians to the ACTA negotiations is realizing how out of the loop they are as well. They're often just as angry that things are being done in the name of their country that they have no visibility into. Of course, this adds to the impression that this whole process is not about figuring out what's best for the people of each country, but an end run around the democratic lawmaking process, pushed mainly by big industries (led by the entertainment and pharmaceutical industries).

So, with last week's leak showing that Denmark was one of the countries that was most against transparency for ACTA negotiations, Danish free culture activists like Henrik Moltke have been speaking up, going on TV and questioning why Denmark is being the transparency roadblock. And it appears to be working.

Danish politicians are questioning why Denmark is so against ACTA transparency:

"It is news to me that Denmark is so close to the negotiations. And it's pretty shocking that Denmark should have taken the position that you actually want to give priority to secrecy," said Morten Messerschmidt, a member of the European Parliament

Messerschmidt has gone on to say that he's going to demand that Denmark support a more transparent ACTA process, and it appears that some other Danish politicians are agreeing as well.

Filed Under: acta, copyright, denmark, politics, secrecy, transparency