Penny-Anna

Guys, ACTA does not go into effect tomorrow, nor is a vote happening tomorrow. While the petition on AccessNow is, I’m sure, an extremely impressive benchmark (100,000, guys, we did it!) we don’t need 100,000 signatures or 150,000 or whatever number they’ll adjust it to when they hit 150,000 (as they should, because they’re trying to drum up support, and numbers breed urgency.)

On Thursday, January 26th, 2012, the Polish government is planning to ratify ACTA. There were, as you might expect, protests—intense ones—and you should definitely contact your government if you are Polish. According to a member of the European Parliament, discussions on ACTA in the EU will start on the first of March, and while the EU did initially promise to ratify ACTA, severe doubts have been raised by EU committees. Continuing to quote Marietje Schaake, member of the European Parliament:

TL;DR: Important dates for ACTA in the European Parliament:
- 29 February/1 March: Discussion in international trade committee,
- April or May: Vote in international trade committee,
- 12, 13 or 14 June: Final vote in plenary (most important vote).

Okay, that’s it! Please do consider signing the petition as this is still super important!

So basically (if I am understanding things correctly), the EU have signed it (unless news sources are outright lying) but they haven’t ratified it yet and still might not?

(Source: nextian, via thenonexistence)

ACTA HAS NOT BEEN ENACTED YET

myskylark:

It’s starting to piss me off seeing all these petitions against ACTA because it does not go into effect today like everyone’s soothsaying. No, I am not a supporter. I am 100% against it as it spells the end of the world for me, but I do not like things being misrepresented.

When people say so-in-so has signed ACTA, it does not mean it has been enacted.

Nobody knows when ACTA will potentially be enacted. Our only clue is that countries who wish to participate and sign, must do so by March 2013.

For those who blame America, it was Japan who initially proposed ACTA.

The UK has final word on ACTA. If they ultimately refuse the agreement, ACTA must be renegotiated.

Nobody knows the full extent of ACTA as it has been kept secret and under wraps.

ACTA comes into effect 30 days after each country passes leglislation to enforce it. So unless you live in a country that automatically incorporates all treaties into their law upon signing, nothing happens today and you have at least a month to take whatever measures you deem necessary.

A reminder

ACTA is probably going to be signed by the EU tomorrow according to this article; however, according to the text of ACTA itself, the conditions of the agreement do not apply until 30 days after it’s ratified by a government. So basically, nothing will change until your government passes leglislation to enforce it.

What this means is: tomorrow is not going to be the end of the internet. You’ve got at least another month. :P

I have never seen as many lies on the internet as I have about ACTA…people really don’t know wtf they are talking about

muslamic:

why do people like to create mass hysteria for no good reason? Someone claims that “if you download music illegally, then they will send you to jail for 5 years”, and suddenly everyone panics. Where do you even get shit like that from? Do you all pull your “facts” about ACTA out of your ass or something? ACTA from 2010, and ACTA from 2012 are VERY different from each other..

do yourselves a fucking favour and read these

http://www.reddit.com/r/politics/comments/or8ag/ive_read_the_final_version_of_acta_heres_what_you/

http://trade.ec.europa.eu/doclib/docs/2012/january/tradoc_148964.pdf

http://www.techdirt.com/articles/20120124/11270917527/what-is-acta-why-is-it-problem.shtml

http://www.computing.co.uk/ctg/news/1821023/acta-strikes-approach-web-copyright-infringement

If ACTA can be stopped in the EU Parliament, then GREAT, but if not, then it really isn’t the end of the world..

It looks to me like stuff from the 2010 version is still floating about, and then that information has been exagerrated…

I have a lot of problems with ACTA but if we want the movement against it to seem serious we need to stop with the misinformation and hysteria. ACTA is bad and all but it’s not in itself an internet apocalypse.

What is ACTA and why is it a problem?

chichacabron:

Yesterday I noted that the anti-SOPA/PIPA crowd seemed to have just discovered ACTA. And while I’m pleased that they’re taking interest in something as problematic as ACTA, there was a lot of misinformation flowing around, so I figured that, similar to my “definitive” explainer posts on why SOPA/PIPA were bad bills (and the followup for the amended versions), I thought I’d do a short post on ACTA to hopefully clarify some of what’s been floating around. 

First off, ACTA, unlike SOPA/PIPA, is not “a law.” It’s a trade agreement, in which a variety of countries agree to deal with intellectual property infringement in a similar fashion. It does have some similarities to SOPA/PIPA — such as the conflation of counterfeiting physical goods with digital copyright infringement. This is a very common tactic for folks trying to pass massively draconian, expansionary, copyright laws. You lump them in with physical counterfeiting for two key reasons: (1) If you include physical counterfeiting, even thought it’s a relatively small issue, you can talk about fake drugs and military equipment that kill people — so you can create a moral panic. (2) You can then use the (questionable) large numbers about digital copyright infringement, and then lump those two things together, so you can claim both “big and a danger to health.” Without counterfeiting, the “danger” part is missing. Without copyright, the “big” part is missing. The fact that these are two extremely different issues with extremely different possible solutions, becomes a minor fact that gets left on the side of the road. 

Unfortunately, much of the information and fear-mongering about ACTA is extremely dated. People are asking me why the text of ACTA is hidden away as a state secret. Yes, during negotiations, there was an insane amount of secrecy — much more than is standard. But the final text of ACTA has been public for quite some time now. We can complain about the process, but saying that the document is still secret is false. 

Unfortunately, so much of the focus on ACTA was about the secrecy of the process, and the lack of actual stakeholders being involved (entertainment industry and pharma lobbyists had full access… everyone else? Not so much.), that the actual problems with the agreement have been clouded over. It is worth noting that the final ACTA text was very much improved from what was leaked out early on. In fact, it seems clear that, despite the attempts at secrecy, the fact that the document kept leaking really did help pressure negotiators to temper some of the “worst of the worst” in ACTA. 

For example, ACTA initially tried to establish much stronger secondary liability for ISPs, including effectively requiring a “graduated response” or “three strikes” plan for ISPs, that would require them to kick people accused (not convicted) of infringement multiple times offline. One of the key problems with ACTA has been how broadly worded it is and how open to interpretation it is. For an agreement whose sole purpose is supposed to be to clarify processes, the fact that it’s so wide open to interpretation (with some interpretations potentially causing significant legal problems) seems like a big issue. For example, while the original draft never directly required a three strikes program, it required some form of secondary liability measures, and the onlyexample of a program that would mitigate such liability was… a three strikes program. To put it more simply, it basically said all signers need to do something to help out the entertainment industry, and one example is a three strikes program. No other examples are listed. Then they could pretend that it doesn’t mandate such a program, but leaves little choice for signing countries other than to implement such a thing. However, thankfully, that provision was struck out from the final copy. 

So why is ACTA problematic?

• While it probably does not change US law (with some possible exceptions, especially in the realm of patents), it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled. Supporters of ACTA continue to insist that not only does it not change US law, but that it cannot change US law, since it’s an “executive agreement” rather than a treaty (more on that later). The reality, however, is that to be in compliance with this agreement, the US needs to retain certain parts of copyright law that many reformers believe should be changed. At the very least, it ties Congress’ hands, if we want to be in compliance with our “international obligations.” 
  
  An example of this is on the question of inducement theory for copyright law. Within copyright law there is direct infringement (you did the infringement) and indirect or secondary infringement (you had a hand in making someone else infringe). In general we should be wary of secondary liability issues, because they can create chilling effects for new innovations. It’s why the Supreme Court allowed the VCR to exist, despite the fact that it enabled infringement. Contributory infringement (in which you’re more actively involved) has been illegal, but there has been some question about inducing infringement (i.e., leading or pushing others into infringing). There was an attempt by Congress nearly a decade ago, under the INDUCE Act, to make inducement a violation of copyright law, but it failed to go anywhere in Congress. Of course, the Supreme Court then stepped in with its Grokster decision that made up (pretty much out of thin air) a standard for “inducement” to be a violation of the law. 
  
  Normally, if Congress decides the Supreme Court got something wrong, it can pass a law to clarify. However, under the terms of ACTA, countries need to consider inducement a violation of copyright law. There’s no way to read this other than to tie Congress’ hands on the question of inducement. That’s a big issue because we’re still sorting through the true impact of considering inducement as against the law. I know it’s tough to believe Congress could ever push back on ever more draconian copyright law, but with the SOPA/PIPA backlash, there’s at least a sliver of hope that some are aware that these issues impact innovation. Should Congress realize that greater liability through inducement is a mistake, under ACTA, their hands are mostly tied if they want to fix it. That’s a problem.


• Beyond just locking in parts of copyright law, ACTA also expands it. First, it takes things that would normally be considered non-commercial file sharing (which is potentially against the law), and turns it into commercial scale criminal infringement. Similarly, it appears to broaden the definitions around inducement/secondary liability to make what had been a civil (between two private parties) issue into criminal aiding and abetting. Basically, there are parts of ACTA that effectively seek to take what would normally be civil infringements, dealt with between two private parties, and allow the entertainment industry to offload the policing to government law enforcement (paid for by tax payers) and leading to a higher likelihood of jail time.


• Copyright law is, by its very nature, a bundle of forces — some that incentivize good behavior, and some that are bad. There should be no question that copyright has somegood effects and some bad effects. The real question is in weighing the good and the bad and making sure that that the bad don’t outweigh the good. Often, copyright law has used exceptions (fair use, public domain, de minimus use, first sale, etc.) to act as a “safety valve” in an attempt to make sure the bad doesn’t outweigh the good. 
  
  However, ACTA pretends that copyright is only good and there’s no need to minimize the bad effects. That is, it only talks about the enforcement side, and completely ignores the necessary exceptions to copyright law that make it function. Basically, it exports the punishments from the US, but leaves out the safety valves. That’s pretty scary. It may be (well, not really) okay in the US where fair use is clearly established, but most other countries don’t have fair use at all (if they have anything, it’s a much weaker system known as “fair dealing”). Exporting strict enforcement without exceptions is dangerous and will lead to unnecessary limitations on creativity and speech.


• There are serious health risks associated with ACTA, especially in the developing world. In this case, Europe pushed strongly to include patents under ACTA (something the US actually preferred to leave out). This has complicated matters for some countries. Under existing international agreements, countries can ignore pharmaceutical patents to deal with health emergencies. That is, if you have an outbreak and need a drug that pharmaceutical companies are unwilling to supply at a reasonable price, governments can break the patent and produce their own. That becomes much more difficult under ACTA, which could be a real threat to health around the globe. 
  
  Similarly, there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on “grey market” drugs — generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else. For example, say that a pharmaceutical company in India is shipping drugs to Brazil that are legal in both countries. However, those drugs violate a patent in Europe. If, during transit, those drugs pass through Europe, customs agents may seize them. That’s already been happening, but the fear is that there’s greater power to do so under ACTA.


• ACTA presents certain requirements for border patrol agents in determining what is and what is not infringing. This is a big issue for a variety of reasons. First, as we’ve seen in the US, ICE/border patrol isn’t very good at figuring out what is and what is not infringing. Traditionally, there are significant questions of fact to be explored in determining if something is infringing, but under ACTA, border patrol often will be in a position to make a snap decision. Believe it or not, Homeland Security itself was worried about ACTA, because of fears that it would actually make it more difficult to be effective on intellectual property issues — and might require them to spend more time trying to figure out if something is infringing, rather than if there’s a terrorist trying to get into the country.


• Again, while ACTA supporters insist that it won’t require changes to US law, there are a few parts of ACTA that are so vague that you can definitely see how they could be interpreted to require changes to US law. One key example is where certain kinds of patent infringement cases protect against either injunctions or damages… whereas ACTA would require one or the other.


• Even the signing parties don’t agree on the purpose, scope and nature of ACTA. This may be the scariest part. Part of the debate in the US is over the USTR and President Obama’s claim that ACTA is not a binding treaty, but rather a sole executive agreement that doesn’t need Congressional approval. Many believe that this is unconstitutional, and Senator Ron Wyden has asked the President to explain what certainly appears to be a violation of the Constitution. However, over in Europe, they’re insisting that it is a binding treaty. The US, on the other hand, has already said that it can ignore anything it doesn’t like in ACTA. If you think that’s a recipe for an international problem, you get a gold star.


• Finally, international trade agreements are a favorite tool of the copyright maximalist. You see it all the time. If they can’t pass legislation they want, they resort to getting these things put into international trade agreements, which get significantly less scrutiny. This also allows for two tricks: the first is leapfrogging, where you get each country to implement the laws required by these agreements in slightly different ways, and then push other countries to match (or better yet, exceed) the rules in the other countries to stay in compliance. Then you use those agreements to demand the same thing from other countries to “harmonize” international laws. It’s already been admitted that ACTA was done outside of existing structures for IP-related international agreements (like WIPO and the WTO) because a few countries wanted to negotiate it without input from Brazil, Russia, India and China… but the plan has always been to get ACTA approved, and then pressure those other countries to join. 
  
  The sneaky part is that once you have some of these “international obligations,” it’s almost impossible to get out of them. Copyright maximalists love to shout about how we must absolutely respect our “international obligations” on these kinds of treaties, to limit the government’s ability to fix copyright law.

All that said, for folks who have just discovered ACTA, it’s important to note that this is pretty much done. Many of the countries involved, including the US, have already signed on, and ACTA will go into effect soon (even if the other countries don’t sign on). It’s a bad agreement, but it’s pretty late in the ball game to step in. If the EU can be convinced not to sign, that would be a big deal, but at this late stage, that seems unlikely. 

In the meantime, for folks who are just getting up to speed on ACTA, you really should turn your attention to the Trans-Pacific Partnership agreement (TPP), which is basically ACTA on steroids. It’s being kept even more secret than ACTA, and appears to have provisions that are significantly worse than ACTA — in some cases, with ridiculous, purely protectionist ideas, that are quite dangerous.

(via adolfhitlermpreg)

Thoughts on the actual text of ACTA

You can read it here: that’s where all my quotes come from. It’s dated April 2011 and given that it came into action in May 2011 I assume this is indeed the final version. I have no idea if there’s a rule about quoting this material publically but if there is, there shouldn’t be because this needs to be open to discussion.

Teal Dear of the Teal Dear (because my Teal Dear got long): it’s not nearly as scary as it sounds and I didn’t come out of it panicky like I did reading the articles about it.

Teal Dear/final thoughts: Having read the whole thing, I’m kind of uneasy. I didn’t fully understand it cause y’know, not a lawyer and very sleepy atm. The impression I got was pretty much what this article says: the text itself isn’t that bad but it’s so vague and open to interpretation that it could be applied very strictly.

My main issue with it is that it doesn’t distuinguish between commercial and individual piracy. The section on counterfeit goods repeatedly states that it’s talking about commercial goods but the section on piracy does not, and that worries me. The wording suggests that it should only apply to big companies and so on but see above re vaguery. :/

However it clearly has been softened since 2010 and a lot of the worst clauses that are getting thrown around are not longer there - there’s no ‘three strikes and you’re out’ clause (in fact, I didn’t read anything that suggested cutting off internet access would be used as a penalty), there’s a lot of emphasis on upholding right to freedom of speech, privacy, fair trial, etc., a whole section on transparency and making this information available to the public… the part on surveillance and ISP’s having to pass over information on people who’ve been infringing copyright is there but it reads to me as if it’d be used on people who are already suspected of piracy rather than to catch people out.

Some more detailed thoughts (live-blogged as I read it):

Read More

Some reasons not to panic…

1) The European Parliament (which is what the anti-ACTA campaign is hinging on) has not fully supported ACTA in the past: in 2010 they passed a semi-formal declaration against it, criticised the ‘three strikes’ clause and demanded greater transparency and voted overwhelmingly against it. This means it’s fairly logical to assume that if they pass it now it’s because some kind of compromise has been reached and given that their objections were mostly the same as our objections that would be promising. If it’s just as strict now as it was in 2010 it’s quite possible they’ll vote against it again.

2) According to someone on Reddit, ACTA has indeed been softened a lot since 2010, it’s very vaguely worded, and it doesn’t have any real power unless individual countries create leglislation to back it up (which is where SOPA, PIPA, etc. come in). They reckon that the terms of ACTA itself aren’t actually that bad but could be implemented in very damaging ways. Apparently a lot of the information floating around is a mixture of stuff from early drafts and misinformation due to a the aforementioned vaguery and the excessive jargon.

They seem pretty knowledgable and a few people are also claiming to have read the treaty and agree that it’s not as bad as it sounds. Food for thought.

Personally, I’m still planning to email my MEPs as soon as I can find the time/energy to draft up a proper email because damn it and I’d reccommend other people do the same. But I’m going to (try to) stop worrying about this.

(Then again I may just be being over-optimistic because I am thoroughly sick of panicking and I need my brain calm atm because holy shit why do I have so much work to do this semester already.)