India Gearing Up To Fight ACTA; Seeking Other, Like-Minded, Countries

from the good-for-india dept

While the various governments supporting ACTA continue to insist there's nothing wrong with it, clearly more and more people are realizing that there are some massive problems with it, and we're not talking about the usual group of activists. It seems that India -- which is in the middle of reviewing its own copyright law -- is quite worried about ACTA. It's looking to team up with "like-minded countries" to oppose ACTA and to hold talks with countries who agree to ACTA to explain why they're worried about it. India's main concern appears to be over some of the proposals that would continue to allow the seizure of legal generic drugs passing through other countries, something that has been a huge problem for the Indian healthcare system.

Meanwhile, others elsewhere are seeing problems as well. Ray Dowd, a copyright litigator who writes an excellent blog on copyright issues, is getting himself up to speed on ACTA and seems horrified by what he's reading. He admits that he expected that the scare stories online that he'd been reading would prove to be exaggerations, but he now thinks that people aren't concerned enough about ACTA:

So when I finally got around to reading the text of ACTA, I thought that I would find the concerns I'd seen floating around the internet to be a little overblown.

In fact, I think that the concerns of the EFF are understated. I am not so concerned about confidential negotiations to give trade representatives some time to brainstorm. But the text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don't think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.

I am surprised that ISP's and technology users seem to have had so little input into the process.

He notes that he's all for a true anti-counterfeiting agreement, but he's surprised that the government is using this to shoehorn in all sorts of things that have nothing to do with copyright:

What is counterfeiting? In my humble estimation, it is knowingly making large quantities of exact copies of a trademarked, patented, or copyrighted good with the intention of selling such large quantities to defraud consumers and the rights holders.

Thus, any anti-counterfeiting treaty would have the elements:

1. exact copies or copies intended to be so similar that a consumer could not tell the difference;
2. protected goods;
3. large quantities (500?) (2,000?);
4. intent to defraud consumers and rights holders.

Some kid copying stuff to his Ipod is not counterfeiting. Even 2,000 songs.

So anyone labeling a treaty "anti-counterfeiting" and that does not have the foregoing elements is trying to pull a scam on me.

His conclusion sums up what many of us have been saying for quite some time:

ACTA appears to be an attempt to tie Congress's hands in terms of domestic copyright legislation, rather than a legitmate attempt to pursue counterfeiting.

But, of course, according to various folks at the USTR and the Copyright Office, now that ACTA's been released, it's proven that all the "fears" from online sources were misguided. Right?

Filed Under: acta, copyright, counterfeiting, india

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

USTR Insists Gov't Isn't Keeping ACTA Secret

from the up-is-down,-black-is-white,-you-said-what-now? dept

Stan McCoy, the assistant US trade rep, is apparently the new point man from the USTR office on jaw-dropping political doublespeak about ACTA. You may recall a few days back when McCoy insisted that there was a lot of misrepresentations about ACTA, but failed to clarify any of them. Instead, he started talking about the dangers associated with counterfeiting (something no one denies) and then simply wrapped copyright infringement into that -- even though copyright infringement and counterfeiting are entirely different. Now, McCoy has gone even further. Jamie Love points us to a letter he sent the Financial Times, where McCoy insists that there is great openness about ACTA. He kicks off with another bogus attempt to blur the lines between counterfeiting and copyright:

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

See the switcharoo in the middle there? He starts of talking about intellectual property... but then in the middle lumps counterfeiting and infringing (which he falsely calls "piracy" even though he's not talking about what's happening off the Somalia coast) together, and then at the end he's really only talking about counterfeiting, but to the untrained observer, they still think he's talking about copyright infringement. That's political bullshitting. And I won't even get into the evidence that raises serious questions about whether his first sentence is true at all, but will mention there's a lot of data that suggests IP actually limits jobs and slows down innovation and creativity. But, at this point, I think McCoy has already established that the USTR is not a fact-based organization.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy -- not to "transform" already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Okay. Pick your jaws up off the floor. That last sentence is so ridiculous and so false; it's amazing he thought that he could get away with it. Exactly which governments have "sought public comments" on ACTA? The answer? None. Why? Because no government has yet revealed what ACTA is officially. Hell, in the most recent ACTA negotiations, held in Mexico, the government wanted to force the public to sign NDAs just to attend a public meeting, and then had industry representatives mocking public concerns and demanding that a blogger leave the proceedings for live Tweeting the meetings. Yes, "sought public comments" indeed. Does he think that if he says day is night people just believe him? And the idea that the government is "far from keeping [ACTA] secret" is pure hogwash. A comparison of ACTA secrecy to similar negotiations suggest that ACTA is being kept exceptionally secret.

Furthermore, if the laws are already strong, then what's the point of ACTA?

Among other things, the summary states clearly that "ACTA is not intended to interfere with a signatory's ability to respect its citizens' fundamental rights and civil liberties".

Oh, well, if the summary states it, then why didn't you say so in the first place? Obviously there's nothing to worry about at all. Except... it doesn't appear that the actual documents follow what the summary says. Of course, we've only seen the "leaked" documents, but they certainly suggest plans to interfere with fundamental rights and civil liberties on a pretty widespread basis. Supporters of ACTA even talk about "dragging countries in the 21st century" by forcing on them DMCA-type laws and requiring secondary liability that flat out violates basic fundamental rights. The fact that the "summary" says so isn't convincing, Mr. McCoy. It just highlights that you're hiding what the document actually says.

So, come on, Mr. McCoy. Stop treating concerned citizens like we're idiots and maybe respond to the actual concerns of citizens around the world.

Filed Under: acta, copyright, counterfeiting, secrecy, stan mccoy

Seriously: Where Is The Link Between Copyright Infringement And Terrorism/Organized Crime

from the point-it-out dept

Over the past few years, the entertainment industry has been pushing hard on the claim that copyright infringement and organized crime (or terrorism) are somehow connected. It's a regular talking point and is often brought up in discussions about ACTA. And yet, where is this supposed link? Glynn Moody discusses what a bogus concept it is, and why a new EU report is massively discredited in simply taking the claim at face value:

I've noted several times an increasingly popular trope of the intellectual monopolists: since counterfeiting is often linked with organised crime, and because counterfeiting and copyright infringement are vaguely similar, it follows as surely as night follows day that copyright infringement is linked with organised crime.

But, of course, that's not the case. In fact, those who traffic in things like counterfeit DVDs are discovering that unauthorized access to online files is actually harming the counterfeit DVD business that organized crime has used in the past. Based on the logic put forth by the entertainment industry, shouldn't we cheer on The Pirate Bay for putting DVD counterfeiters (and thus, organized criminals and terrorists) out of business?

Moody goes on to challenge the idea that copyright infringement leads to people being put in harm's way:

*Counterfeiting* can certainly be a threat to consumer health and safety, and needs to be combated vigorously, but the idea that copyright infringement might be is simply risible, and it's an insult to our intelligence even to suggest it.

Indeed. This is a problem. So, let's start calling the industry on this. Can they show any actual evidence that basic online copyright infringement is in any way linked to organized crime or terrorism?

Filed Under: copyright, counterfeiting, organized crime, terrorism

NY Police Destroy Counterfeit Clothes Rather Than Giving Them To The Homeless

from the can't-let-that-destroy-the-brand dept

Last week there was a big controversy over the fact that some stores in NY were caught destroying unsold garments rather than donating them to charities. After people got upset, the main store in question, H&M promised that this wouldn't happen again. This week we've got a related, but somewhat different story, as the NY Police have admitted to shredding and burning the counterfeit clothes they've confiscated, rather than giving them to the homeless, as had always been done in the past. When asked to explain why, the police claimed "no one asked" for the confiscated clothing -- but many charities insist they had, in fact, made many requests for the clothing. Apparently, the destruction is being felt at clothing banks, who say they have many fewer clothes on hand this year than in the past.

Not surprisingly, a lawyer representing various clothing designers was quite happy with the news, saying that they don't want those clothes "back on the street," which suggests that the designers may have pushed for the police to destroy the clothes rather than help the needy. Of course, it's worth pointing out -- yet again -- the recent study that showed most people are not fooled by counterfeits, and they rarely represent a "lost sale." In fact, many counterfeit purchases lead to real purchases later on. So the idea that they act as a "substitute" or somehow "harm" a brand is not actually borne out by the research. And, of course, some companies have learned that there are ways to embrace counterfeiting to their own advantage, as a form of price differentiation.

Filed Under: clothing, counterfeiting, homeless, nypd, trademark

Kenya's Anti-Counterfeiting Act Challenged As Violating The Right To Health

from the confusing-generics-with-counterfeits dept

As a bunch of countries continue to negotiate ACTA, the Anti-Counterfeiting Trade Agreement, in secrecy, Kenya already has its own Anti-Counterfeit Act. Michael Geist points us to the news that that particular law is now being challenged in Kenya for violating peoples "right to health." The issue is worth following, because it will almost certainly become an issue assuming ACTA moves forward. Whenever we discuss ACTA, it's inevitable that someone stops by to say that anti-counterfeiting is really, really important to stop dangerous counterfeit drugs from being sold, potentially harming people. Now, I have no doubt that counterfeit drugs may be a serious problem -- but if that's the problem, we should target a narrow attack on that problem alone, not some wider "anti-counterfeiting" effort.

We've already seen that lobbyist-funded and promoted reports on the "counterfeiting problem" are widely exaggerated, and any real "problem" is much smaller than the numbers that get tossed around. Furthermore, recent studies have shown that counterfeit products quite frequently lead to purchases of the real product in the future (i.e., people aren't "fooled" into buying counterfeits -- they know they're buying counterfeits). But that's with things like luxury goods. What about drugs?

Well, we've already seen that big pharmaceutical companies conveniently like to use anti-counterfeiting laws not to stop dangerous counterfeit drugs, but to destroy legitimate generic drugs. It's not about making sure that drugs and people are safe -- but quite the opposite. It's about limiting competition so that these pharma firms can jack up prices even higher.

And that's the issue in Kenya. About 90% of the drugs in Kenya are generics -- for a very good reason. Those drugs are much cheaper and are helpful in saving many lives. The Kenyan anti-counterfeit law makes counterfeiting a criminal issue, rather than a civil one, and gives the power to police and border officials, who have no way of knowing counterfeit from generic, so often label generic drugs as being counterfeits. There are plenty of good reasons to try to stop counterfeit drugs from hitting the market, but if that's the real problem, any solution should be narrowly focused on that specific problem. Unfortunately, since it's quite often the big pharmaceutical lobbyists who help write and push through these bills, that's not how it works at all.

Filed Under: counterfeiting, drugs, generics, kenya, laws

More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:

These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

Lily Allen: It's Ok To Sell My Counterfeit CDs, Just Don't Give My Music For Free

from the confusion dept

Dark Helmet alerts us to the news that our good friend Lily Allen is back in the news discussing file sharing again. Tragically, it does not appear that she's used her "time off" to better understand copyright issues very much. Unlike nearly everyone else who complains about copyright infringement, she's apparently "all for" infringing on her copyrights, just so long as you pay someone -- even if it's the guy on the street selling the counterfeit CDs. Seriously:

"If someone comes up with a burnt copy of my CD and offers it to you for £4 I haven't a problem with that as long as the person buying it places some kind of value on my music."

Yes, so while some musicians have said they're fine with non-commercial file sharing, but are against anyone selling their unauthorized works, Ms. Allen seems to have taken the opposite approach. Counterfeit all you want, just as long as you profit from it. Yeah. Someone should explain to her the difference between price and value, and also the benefits of word of mouth marketing. But, it doesn't seem like she's much interested in actually understanding this stuff, so if you want to help her understand, maybe go set up a shop selling burned copies of her CDs, and see what happens.

Of course, if we take this seriously, it shows how little she's thought this through. Her earlier complaint was that when people file share, they don't provide money back to the artists and the labels. Of course, when counterfeiters are selling on the street, the same thing is true, but suddenly it's okay? At what point does the world realize that Ms. Allen doesn't know what she's talking about?

Filed Under: cds, commercial use, copying, copyright, counterfeiting, infringement, lily allen

Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

No, ACTA Secrecy Is Not 'Normal' -- Nor Is It A 'Distraction'

from the don't-make-us-laugh dept

Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we've seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it's been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what's going on).

One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don't support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.

A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It's as if they think that we're all idiots who haven't seen how lobbyists have historically relied on the line "but we must live up to our international obligations" to push through all sorts of laws the public does not support.

A third point raised is that this isn't a "treaty" but a "sole executive agreement," so we shouldn't worry since it can't change the law. Except, by categorizing it as such, it's actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that's in the agreement, and then just wait for the "but we must live up to our international obligations" to start pouring out of lobbyists and industry lawyers' mouths.

A fourth point of attack is that some of the descriptions of what's being discussed are inaccurate. Well that's funny since a big part of the problem is that we're not even being shown what's being discussed. So, yes, as we've been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don't want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say "oh, that's no different than what we have already." Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what's happening in South Korea now, since that's what the new agreement is supposedly "modeled" on. And, it's not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they're barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That's not the sort of world most of us want to live in.

Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are "a part of the process." That doesn't take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on "very short notice" in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy -- but the process included NDAs that prevent much discussion about what was seen. That's not serious involvement.

Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it's having its best year ever). But the most ridiculous is this:

"Outcries on the lack of transparency in the ACTA negotiations are distraction."

Yes, that's right, making sure that the public knows what the hell its government is signing up for is a "distraction." Could the MPAA's lawyers be any more obvious in brushing off the concerns of the public than by calling it "a distraction." To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn't matter. As Jamie Love notes, "transparency isn't a 'distraction.' it is an obligation of governments, to those it wants to govern."

So, yes, perhaps some of the discussion has suggested things that will go beyond what's actually in the document, but it's hilarious to see industry lawyers suggest that those concerned about our rights are "creating a moral panic" when the only reason there's concern at all is because the public is not even allowed to see what's being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA's letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.

Filed Under: acta, copyright, counterfeiting, lobbyists, secrecy
Companies: mpaa