ACTA: Treaty without a cause?

The latest leaks on the ACTA treaty show that negotiations have gone a long way to resolving outstanding issues with some ground given by the US.. but some of the worst of the treaty still stubbornly in place. ACTA watchers are not impressed that three strikes still seems to be on the agenda, and that US led pro-DRM measures are included that go beyond the WIPO treaty and even existing US law. 
(More details from Michael Geist and Boing Boing.)

But do we really need an anti-counterfeiting treaty at all?  

Well perhaps not.  The Telegraph reports on a study that shows that the impact of counterfeiting on luxury brands isn't the disaster that it's made out to be... most consumers buying counterfeits aren't being ripped off- they know it's a fake, and they would never have bought an original.... meaning that fashion houses are not losing those sales to counterfeiting.  Counterfeiting is big business -but if it's not done to defraud who is it hurting?

The article is cited in many places... but the original report seems to be more elusive.  You can find it though at the British Journal of Criminology - with the pithy title of:
Jailhouse Frocks: Locating the Public Interest in Policing Counterfeit Luxury Fashion Goods
by David Wall & Joanna Large

Amongst other things it looks at the links between counterfeiting and organised crime ...and has an interesting section on the 'aspirational hierarchy' that binds together both the fashion houses and the counterfeiters.

Read it..  and see if you can find the public interest in ACTA....

Piratpartiet :  Building the information society.  Vote Pirate!

Let's play privacy invaders: EU, ACTA and the Digital Economy Act

When I think of privacy I think of going about my business unhindered and unmonitored by the state.. or anyone else for that matter.  It's a right.. and curiously I expect the law to not only respect that right but also to protect it.  But expectations and reality don't always match up.

This week though these are some positive signs that privacy concerns are starting to be taken more seriously. 

First off, the Electronic Frontier Foundation reports that EU data protection officials have been looking into the EUs Data Retention Directive and how it has been applied in the member states.  Their findings are depressing reading ...

• Service providers retain and hand over data in ways they shouldn't.
• data retention often exceeds the maximum allowed under the directive - in some case by as much as eight years!
• More data is being held than the directive allows - including in some cases message content and not just traffic data.
• Callers locations are being monitored continuously under a call - contravening the directives provisions

They conclude that
"The provisions of the data retention directive are not respected and the lack of available sensible statistics hinders the assessment of whether the directive has achieved its objectives."

The good news is that it's not until abuses are visible that you can do something about it.  The timing here is also good as the directive is up for review and this can contribute to revision or repeal of the directive which, in my view, inherently is a gross violation of people's privacy.

Meanwhile, the same Article 29 committee has also raised concerns about the privacy implications of the ACTA agreement (see Michael Geist for excellent coverage on ACTA). 

"WP29 emphasizes that any form of large scale monitoring or systematic recording of data of EU citizens would be contrary to the provisions of Directive 95/46/EC since that would affect millions of individuals, regardless of whether or not they are under any suspicion."

After a critical look at other provisions - including making service providers hand over personal data to copyright holders they conclude:

"Copyright infringement needs to be dealt with on a global scale and requires international cooperation. However the way things stand now, several of the proposed measures are in the end bound to interfere with the private life of many citizens.
In the EU, any such interference is subject to EU fundamental rights and must be proportional. Given the aspects of ACTA currently under negotiation and outlined above, the WP29 remains to be convinced that this will be the case."

The third piece of good news is really a consequence of the above... or at least a supporting document from the European Data Protection Supervisor (EDPS) giving a full analysis of objections to the three strikes principle.  The Open Rights Group highlight that this expert opinion should have implications for the UK governments Digital Economy Act - at least the parts dealing with combating copyright infringement .

In the words of the EDPS:

"...the monitoring of Internet user's behaviour and further collection of their IP addresses amounts to an interference with their rights to respect for their private life and their correspondence; in other words, there is an interference with their right to private life. This view is in line with the case law of the European Court of Human Rights. "

The bottom line seems to be that letting copyright holders loose as private police with powers to request private details on anyone they choose is likely to end up the wrong side of EU rights legislation....  which would be a welcome victory for our collective privacy.

Piratpartiet and The Pirate Party -  Putting privacy first.

India goes in to bat against ACTA

Trade is a two way street... and if you decide to make a private club to rewrite the rules it's maybe not surprising that the people you choose to leave out don't have the same rosy view of your club as you do.  At the latest meeting of the World trade Organisation India has been speaking out about ACTA.

"ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals."

Right on the wicket.....   More on India's objections to ACTA over at Michael Geist.

ACTA under fire at the EU Parliament

There have been rumblings for some time at the EU Parliament about the negotiations on the ACTA counterfeiting and trade negotiations.  Parliament doesn't like being told they are not allowed to see what the negotiators are agreeing on their behalf and for the benefit or otherwise of Europe's citizens.

Now the decks are cleared and the cannons rolled out and the parliamentarians are taking action.  Christian Engström, Piratpartiet's MEP is one of the movers behind a motion that in fine words tells the Commission to stop fannying around and put all their cards on the table.  Pointing out among other things that
 "the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations"

But it's not just an armlock to get visibility of what the negotiators are up to - the motion goes further, and places concrete limitations on what the negotiators can sign up for.

"..no to three-strikes Hadopi-type legislation, and no to searches of laptops, cell phones and other digital devices at the borders by customs officers".

Representation in parliament.  Isn't it wonderful.  Voting on the motion is today... though it sounds like it has broad cross party support which sounds promising.

All quotes from Christian's blog.

(PS: life's kind of busy right now... so blogging is on a bit of a low tide.)

ACTA update - Things afoot in EU, US, NZ & AUS

There has been a lot of vocal opposition to ACTA over recent days - some of it against the secrecy of the process and some of it against the content of the treaty itself.  EFF already have a good round up so take a stop by there as well....

In the US, two senators have sent a letter to the US trade representative asking for ACTA documents to be made public.  Meanwhile Swedish Minister for Communications Åsa Torstensson is on her way to Washington to lobby for opening up the negotiations to more public scrutiny - and to express the Swedish governments view that ACTA opening up for a three strikes policy for internet access termination is unacceptable.

Michael Geist is a good source as usual - reporting amongst other things that the EU has filed it's responses on the ACTA internet chapter - available here. ...that the kiwis are waking up to why ACTA is no good thing -  and an analysis of the impact of ACTA in Australia.  And he also links to a MUST READ piece from the american Library Copyright Alliance on the scope and implications of ACTA.

"ACTA could alter ways in which intellectual property infringement is discovered and penalized;
expand the reach and activity of courts in prosecuting intellectual property infringers; alter the scope of civil and criminal infringement; lower the threshold at which criminal infringement is defined, thus increasing cases of criminal infringement; increase remedies, including monetary damages and reimbursement of legal fees and costs in cases of infringement; increase border searching; and increase instances of confiscation and destruction of goods."

The EFF meanwhile highlight the ongoing double standard, with action to harmonize on the 'best practice' for copyright enforcement, without similar harmonization on best practices for fair use and educational and other exemptions.

"In the U.S. Copyright Office's WIPO treaty consultation, they are claiming that such a harmonization of standard copyright limitations would "begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms."

What comes through is that the world is waking up to the carve up that's taking place behind closed doors and that the ACTA train is starting to see some obstructions on the rails.....

Piratpartiet and The Pirate Party -  Working for copyright reform.

ACTA under fire from EFF

The EFF level their sights on ACTA in 'Stopping the ACTA Juggernaut' with a piece that highlights the way process has been manipulated to avoid serious debate on a trade agreement that has significant implications for national legislation on Intellectual Property.


It's hard to have confidence in a process that seems to be entirely based on avoiding any form of critical scrutiny.  It's not consulting stakeholders (for that would include the public) - it's pandering to interested parties......  which may be politics... but sure ain't justice.

Piratpartiet and The Pirate Party -  Working for copyright reform.

Behind closed doors - more on ACTA

 Michaels Geist's update on the latest discussions on ACTA brought forward this pithy comment.

"Our silly cops here are concerned with trivial things like gang murders, armed holdups, stabbings, crystal meth, tracking rapists etc. I'm sure they would really appreciate being diverted to hunt down unlicensed Mickey Mouse dolls, and infringing mp3s of the latest Metallica album."

The topic under discussion was criminal penalties for copyright offences... 

When governments get together behind closed doors to protect the interests of big business against the winds of change - and aginst the interests of their voters - you start to wonder where democracy went...

Can't we please just cut the terms for copyright back to something sensible (thereby simulating more new work, instead of letting companes live off back catalogs) and decriminilise non-commercial file sharing. 

Piratpartiet & The Pirate Party -  Working for copyright reform.

Internet enforcement under ACTA

Michael Geist blogs on the details of the latest chapter of ACTA under debate in Korea.  His top level take:

"it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea."

• Covers enforcement of intellectual property
• Eliminates sovereign choice of domestic copyright policy
• making Canada's recent copyright consultation a little pointless
• Focuses on copyright, not counterfeiting
• Goes beyond the terms of WIPO

Measures in the text include

• Third party liability for copyright infringement
• Restrictions on carriers limitation of 3rd party liability for infringement
• Termination of subscriptions
• Notice & takedown to become a requirement
• Anti-circumvention legislation with ban on DRM circumvention
• Rights management
• statutory damages
• search and seizure powers for border guards
• anti camcording rules
• mandatory disclosure of personal information

Cory Doctorow gives his take on it all here....

Piratpartiet & The Pirate Party -  Working for copyright reform.

Public Consultation on ACTA - in Canada

Michael Geist - who holds the Canadian Research chair in Internet and E-Commerce law has made public on his blog a copy of the Canadian governments public consultation on ACTA from 2008. It doesn't say so very much on the tabled agreement - and as it assembles 'stakeholder' views it contains a wide range of conflicting views - but it's interesting reading nevertheless.

Curiously - at various points the document uses underlining to highlight a particular opinion. Almost exclusively this is used for opinions supporting the status quo and in opposition to increased legislative powers, restriction on users rights etc. It is good to see that stakeholders a full spectrum of views are represented - but at the same time - when one is considering change shouldn't the starting point for consideration be that what we have is good enough?

Should it be remarkable to hold the view that:

• ACTA should not increase the criminal penalties for 'counterfeiting and copyright'.
• provisions under the agreement should not invest 'police type' search and seizure measures in private sector organisations
• the enforcement of IPR must not preclude, replace or assume the domestic adjudication and interpretation of the scope and limits of IPRs at the judicial level
• statutory damages for non commercial infringement should be lowered
• ACTA should not include provisions on Technical Preventive measures or technologies to circumvent such measures.
• obligations under ACTA should not shift liability onto Internet Sevice Providers

But then what faith can the public have in a negotiation framework that is by design outside of public scrutiny?