European Union ⇒ Stop Acta: Infographic

Canadians can tell our government to say “no” to Bill C-11, the so-called “Copyright Modernization” law. The worst bits of C-11 are undoubtedly tied to ACTA. Unfortunately Canada has already signed the secret ACTA Trade agreement in spite of the fact that most of Canada is only hearing about it now.

But the people of Europe have a real opportunity to say “no” to ACTA.

For more information, visit www.stopacta.info or La Quadrature Du Net

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Image Credits

Derechoaleer.org has made the Robocopyright Infographic [and more] available in support of La Quadrature Du Net/StopActa under a Creative Commons Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) License

The Hidden Rationale for Usage Based Billing

by Sharon Polsky
President and CEO — AM¡NAcorp.ca
National Chair — CAPAPA

The recent discussion about Usage Based Billing being a ‘cash grab’ has generated much debate: Is a cash grab warranted? Should Internet users have to pay according to the volume they download?
Does UBB discourage innovation?

The simple answer to the underlying question is:
ISPs and telcos need a way to fund
the Internet monitoring functions required by
the Anti Counterfeiting Trade Agreement (ACTA) and Canada’s Investigating and Preventing Criminal Electronic Communications Act (Bill C-52).

To understand the real impact, though, it is important to view UBB in context with other issues, which together: 

• jeopardize the sovereignty of our nation,
• have a chilling effect on freedom of expression, and
• threaten the privacy and democratic freedoms traditionally enjoyed in Canada.

It can be argued that these measures do nothing to protect Canada or Canadians from the threat of terrorism (real or perceived), US protectionism or other economic threats, or future retribution by the Department of Homeland Security or other agencies.

UBB In Context

ACTA (the Anti-Counterfeiting Trade Agreement) is an international agreement to protect intellectual property and guard against piracy. It was hammered out by a handful of countries and requires signatories to have civil and criminal law that complies with it. Canada may have bargained away our ability to create independent legislation simply by being a party to ACTA, with terms allowing Canada to pass laws more stringent than required, but depriving us of the authority to create laws that contravene ACTA. This clearly undermines Canadian sovereignty.

ACTA was Negotiated in Secret

The US declared the draft ACTA text to be confidential as a matter of national security (the economy is a matter of ‘national security’ in both the US and Canada) so negotiation of the international scheme to guard against piracy and copyright infringement was done in secret, with a level of secrecy that excluded input from Canadian citizens, consumer and human rights groups, or Canada’s Information and Privacy Commissioner; yet the draft was circulated amongst rights-holder lobbyists (generally from the recording and motion picture industries). Many experts consider this to be an unprecedented degree of secrecy for a set of copyright protection rules.

Once approved, ACTA member countries are expected to put pressure on their trading partners to have them join the treaty — of course, after ACTA is finalized, so the newcomers will have no option but to accept the terms set by the original negotiating parties.

Prosecution, Remedies and Penalties under ACTA

Under ACTA, allegations advanced by rights holders lead to prosecution, remedies and penalties decided by judicial or ‘administrative’ authorities, with restitution and “lost profits” calculated by the rights holder. Although an alleged infringer can be ordered to reimburse the rights holder for the retail price and “lost profits”, legal expenses, court costs, and other amounts, as well as bearing the expense of destruction of allegedly counterfeit products, if it’s ultimately found that there was no infringement, the alleged infringer can ask for damages, but no process or formula is articulated.

Border officials will be compelled to carry out injunctions obtained in other countries, even if legal in the border official’s country. ACTA will also:

• facilitate seizure of off patent medicines in the country of production and export,
• empower member countries to seize and destroy exports while in transit to other countries
• encourage countries to seize and inspect personal devices for any pirated material

The costs will be born by the individual being searched or the sender of the seized goods.

Privacy invasive provisions require release of personal identity information about alleged infringers, and information about any party who might be associated with alleged infringers are included in ACTA.

Third parties (i.e., distributors, NGOs, public health authorities) are put at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses:

• Suppliers of active pharmaceutical ingredients used for producing generic medicines;
• distributors and retailers who stock generic medicines;
• NGOs who provide treatment;
• funders who support health programs; and
• drug regulatory authorities who examine medicines

could be implicated under ACTA. Ascertaining the third party involvement will require inspecting digital records; and ACTA compels disclosure and international sharing of that information.

Potential repercussions may well deter direct or indirect involvement in research, production, sale and distribution of affordable generic medicines.

Deep Packet Inspection (DPI) of online activity is already being used to identify alleged infringements. DPI has been in use by Canadian ISPs and telcos for some time. In August 2009, Canada’s Privacy Commissioner ruled on DPI used by Bell/Sympatico (Case Summary #2009-010). The Commissioner recommended that Bell Canada inform customers about Deep Packet Inspection, but did not prohibit its use.

“It is relatively easy to paint a picture of a network where DPI, unchecked, could be used to monitor the activities of its users.” 

— Privacy Commissioner of Canada

Financial Impact of Bill C-52

Bill C-52: An Act regulating telecommunications facilities to support investigations
— referred to as the “Investigating and Preventing Criminal Electronic Communications Act” — is only one of the many ways that Canada is giving force and effect to ACTA.

C-52 is intended “to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information” upon request.

No warrant is necessary.

C-52 also requires the telcos and ISPs to provide the transmissions in an unencrypted form and to “comply with any prescribed confidentiality or security measures“.

to provide “any information in the service provider’s possession or control respecting:

• the name,
• address,
• telephone number and
• electronic mail address of any subscriber to any of the service provider’s telecommunications services and the
  Internet protocol address,
• mobile identification number,
• electronic serial number,
• local service provider identifier,
• international mobile equipment identity number,
• international mobile subscriber identity number and
• subscriber identity module card number that are associated with the subscriber’s service and equipment”.

Under current Canadian law, Internet Service Providers who have the means to spy on their customers (Deep Packet Inspection capability) can be asked to do so by the government, but they cannot be compelled to have such means.

Under C-52, Telcos are required to have and bear the cost of the equipment necessary to comply; and the equipment can be specified by the government or enforcement agencies. The cost of actually determining and providing the information to law enforcement will be billed to and paid by the requesting agency — with our tax dollars.

Usage Based Billing could well pay the costs of the Government mandated spyware that will be required should Bill C-52 become law. Not only will citizens find themselves stripped of privacy and spied on but we will be overcharged to pay for it.

The Future of ACTA

The ACTA text was finalized in November 2010, and the US and Canada (quietly) asked for feedback to be submitted by February 15th, 2011. The request was visible on the DFAIT website for a short time.

ACTA participants successfully completed a legal verification of the finalized ACTA text at a meeting in Sydney, Australia between November 30 and December 3, 2010.

Every Canadian Needs A Copy

The Standing Committee on Canadian Heritage met to discuss ACTA and other matters on January 31, for 2 hours, and was scheduled to meet again on February 7, 2011.

The final ACTA text includes mechanisms to amend the agreement. That provides a ‘back door’ to get acceptance of the most contentious issues (such as the three strikes rule) that were rejected during the negotiations.

Even before the three strikes rule is adopted, the scope of ACTA provides the latitude that permits individual member nations to impose a three strikes rule.

So between ACTA and other laws, international agreements, and multilateral treaties to share information it’s easy enough to circumvent the provisions of Section 8 of Canada’s Charter of Rights and Freedoms and to circumvent the protections embodied in all of Canada’s various privacy laws.

Canadians’ most intimate information can be sent outside of Canada to be examined, and then the results back into Canada. Canada and the US have been known to do that on occasion, typically to protect ‘national security’ or guard against the perceived threat of ‘terrorism’.

Stripping Canadian Law of citizen protection measures that have evolved over hundreds of years has not been shown to protect citizens from terrorism, but rather to open up new avenues of compromising and removing the Rights and Freedoms Canadians expect to enjoy under our democratic system.

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Guest blogger Sharon Polsky is the President & CEO of AM¡NAcorp.ca as well as the National Chair — CAPAPA More background can be found in Anti-Counterfeiting Trade Agreement (ACTA) Highlights

Image credit:
Canadian Charter of Rights and Freedoms: “Every Canadian Needs A Copy” released under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) licence by Bitpicture on Flickr

Anti-Counterfeiting Trade Agreement (ACTA) Highlights

by Sharon Polsky
President and CEO — AM¡NAcorp.ca
National Chair — CAPAPA

ACTA is an international agreement hammered out by a handful of countries (led by the US, including Canada) that requires signatories to create civil and criminal law to give force and effect to ACTA.

ACTA is intended as a global standard to ‘protect’ against intellectual property and counterfeit products, containing very specific discussion about digital information.

The negotiating parties did NOT include:

• India,
• Brazil,
• China,
• Russia
• or any countries known as the greatest sources of counterfeit goods.

Nor did it include any:

• consumer rights groups,
• human rights groups, or the
• Information and Privacy Commissioner of Canada.

The intent to negotiate a deal was announced in late 2007. Because there’s an economic impact component to it, the US declared the draft ACTA text to be confidential as a matter of national security. A draft was circulated amongst rights-holder lobbyists (generally from the recording and motion picture industries). After three years of negotiations, the text was leaked in April of 2010. The Government of Canada released a copy of the draft in October 2010. The final text was issued in November 2010.

An unprecedented degree of secrecy for a set of copyright protection rules.

Once ACTA is approved, its member countries are expected to put pressure on their trading partners to have them join the treaty — of course, after ACTA is finalized.

The final text includes a provision for amending the agreement, and that’s viewed as a back door to get acceptance of the three strikes provision that was rejected during negotiations.

Three strikes law describes the penalty: after three allegations of inappropriate Internet use, service will be suspended for 12 months.

heavily stacked in favor of “rightsholders” at the expense of consumer human rights

Under ACTA, prosecution, remedies and penalties are acted upon based on allegations advanced by the rights holder, and all can be decided by judicial or ‘administrative’ authorities. ACTA sets out the items that can be included in calculating restitution. For instance, an alleged infringer can be ordered to reimburse the rights holder for the retail price and “lost profits” (as calculated by the rights holder), legal and court costs, etc etc. Allegedly counterfeit products must be destroyed, at the expense of the alleged infringer. If it’s ultimately found that there was no infringement, the alleged infringer can ask for damages, but no process or formula is articulated.

ACTA puts individuals in jeopardy since border officials will be compelled to carry out the injunctions obtained in other countries, even if the activity is legal in the border official’s country. Thus, ACTA empowers officials to seize medicines that are off patent in the country of production and in the countries where they are being exported to, if a company holds a patent to that medicine in any member country.

Similarly, ACTA’s border enforcement provisions empower member countries to seize and destroy exports while in transit to other countries. ACTA provides that “parties MAY exclude small quantities of goods of a non-commercial nature contained in travelers’ personal luggage”, so it still leaves it to countries to seize and inspect personal devices to determine if and how much pirated material is there; and the individual will have to bear the cost of inspection, storage, and destruction. So anyone who rips music from the CD they bought and transfers that ripped music onto their iPhone or Blackberry, and then tries to carry it through the border might not get very far. Imagine what it could do at airport screening lineups!

ACTA offers many privacy-invasive provisions, including requiring the release of information necessary to identify an alleged infringer, and any party who might be associated with that alleged infringer.

ACTA puts third parties (i.e., distributors, NGOs, public health authorities) at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses. This could implicate, for example, suppliers of active pharmaceutical ingredients used for producing generic medicines; distributors and retailers who stock generic medicines; NGOs who provide treatment; funders who support health programs; and drug regulatory authorities who examine medicines. The potential repercussions are expected to serve as a deterrent to being involved — directly or indirectly — in the research, production, sale and distribution of affordable generic medicines. Ascertaining the third party involvement will require inspecting digital records; and ACTA compels disclosure and international sharing of that information.

Deep Packet Inspection

Deep packet inspection of online activity will be used to identify alleged infringements. ISPs will be required to shut down alleged infringers’ Internet connections, and publicize the identity of the alleged offender amongst other ISPs.

DPI is also expected to cause ‘collateral damage’ when blameless sites at the same IP address get shut down along with the accused. DPI was approved for use by ISPs and telcos when, in August 2009, Canada’s Privacy Commissioner ruled on the Bell/Sympatico case (Case Summary #2009-010). The only limit was a recommendation Bell Canada inform customers about Deep Packet Inspection.

The Commissioner did note that “It is relatively easy to paint a picture of a network where DPI, unchecked, could be used to monitor the activities of its users.”

In January 2010, President Nicolas Sarkozy gave a speech to members of the French music and publishing industries and said that “authorities should experiment with filtering in order to automatically remove all forms of piracy from the Internet.”

France

Liberté, égalité, fraternité?

France recently passed its HADOPI “three strikes” law that targets alleged illegal Internet file-swappers. There is no no presumption of innocence in HADOPI. After a rights holder advances an allegation of infringement and gets administrative approval, the alleged infringer receives two warnings, and then gets cut off the Internet.

And there is no judicial recourse.

Under the terms of HADOPI, Internet access is only restored after the “offender” allows spyware to be installed on his/her computer, monitoring every single thing that happens on said computer, and that could also reach to the entire network (personal or corporate) that the computer is attached to.

HADOPI has been sending out notices. Initially, it sent out about 10,000 per day, with plans to ramp up to 50,000 per day. ISPs must hand over information to the government about those accused within eight days. If they don’t, hey could get fined 1,500 euros per day per IP address.

USA

A few weeks after Thanksgiving weekend in November 2010, the US Homeland Security’s Immigration and Customs Enforcement (ICE) department seized and shut down 82 domain names during “Operation In Our Sites II” without prior notice. Not all of these domains contained counterfeit products.

The web sites included a search engine and some well-known music blogs.The released partial affidavit and seizure warrant show that that the decision to seize the domains was almost exclusively dependent on what the Motion Picture Association of America said were the facts, and the MPAA’s numbers about the economic importance of the movie industry and MPAA testimony about how piracy hurts its income.

The MPAA and the Recording Industry Association of America were two of the 42 individuals and groups in the US that were given access to the draft text early on.

Canada and the International Sacrifice of Personal Privacy

Canada’s Anti Terrorism Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act in conjunction with other legislation allows governments to trade and swap Canadians’ information with around the world without our knowledge.

The PATRIOT Act does the same in the US. The UK Home Office recently resurrected the so-called ‘Super Snooper Bill’ that will allow the police and security services to track the British public’s email, text, Internet and mobile phone details. And the “Server in the Sky” global biometric database will tie it all together.

Canada’s Bill C‑52 — referred to as the “Investigating and Preventing Criminal Electronic Communications Act” — is intended “to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information” upon request.

No warrant necessary in Canada.

C-52 also requires the telcos and ISPs to provide the transmissions in an unencrypted form and to “comply with any prescribed confidentiality or security measures“. A gag order, in other words.

And the information to be provided is quite specific and broad: It is “any information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address,
mobile identification number, electronic serial number, local service provider identifier, international mobile equipment identity number, international mobile subscriber identity number and subscriber identity module card number that are associated with the subscriber’s service and equipment”.

C52 compels ISPs to spy on their customers

Under C-52, Telcos are required to have and bear the cost of the equipment necessary to comply; and the equipment can be specified by the government or enforcement agencies.

Between ACTA and other international agreements and multilateral treaties to share information it’s easy enough to circumvent the provisions of Section 8 of Canada’s Charter of Rights and Freedoms by having an agency outside of Canada do the work, and then share the results back into Canada. Canada and the US have been known to do that on occasion, typically to protect ‘national security’ or guard again ‘terrorism’.

ACTA is based on allegations and assurances of the rights holder.

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Guest blogger Sharon Polsky is the President & CEO of AM¡NAcorp.ca as well as the
National Chair — CAPAPA, the Canadian Association of Professional Access and Privacy Administrators. This article provides the necessary background for the Sharon’s article “The Hidden Rationale for Usage Based Billing” scheduled to be published here in the Stop Usage Based Billing blog February 10th.

Post Script:
Internet Service Providers are in the business of providing Internet Service, and ‘deputizing’ them to spy on citizen customers is an atrocious breach of net neutrality, which I wrote about a year ago in Nutshell Net Neutrality

Looking over my blogs, I was surprised to see just how much I have actually written about ACTA shared both in this blog:

• ACTA is Bad
• Errata: ACTA is Bad
• ACTA is still Bad
• Much Ado about ACTA
• Cat Joke: Making Light of ACTA
• Vanilla Copyright Treaty
• Sign the Wellington Declaration
• 2010 is the New 1984
• ACTA Conspiracy Theory
• Did ACTA Pass?

as well as on my Oh! Canada political blog:

• A.C.T.A.: Anti Counterfeiting Trade Agreement (double speak)
• ACTA keeps chugging along
• ACTA and democracy
• ACTA: Truth or Pravda
• ACTA W5
• Memo to World: Stop ACTA Now
• From ACTA to Bill C-32

ACTA Conspiracy Theory

The latest round in the ACTA talks has finished and KEI (Knowledge Ecology International) has released the leaked version of the text, which seems somewhat toned down. Still, it isn’t over yet. Nor is this an official version.

Obviously the USTR (United States Trade Representative) is aware that there have been many ACTA leaks. It is reasonable to assume that the people who have leaked the ACTA documents have been as concerned about ACTA’s attempt to make an end run around democracy as I am. Leaking the ACTA documents has been a very risky undertaking with serious consequences if caught. Yet there have been many such leaks.

There was in fact been one official release. In the midst of the process. But the American Government blocked a second official release.

The August 25th version isn’t an official ACTA release, this is another leak.

It has long been clear that major media corporations have been the biggest force behind ACTA. And the most major of these special interest groups are the MPAA movie corporations.

I’ve always loved spy thrillers and multi-layered mystery stories. If I were a major movie company trying to pass a secret trade treaty that would ensure my corporation’s economic health by forcing global adoption of laws beneficial to my interests, I would do what any good thriller writer would do: employ misdirection. It shouldn’t be very difficult at all particularly with the talented writers at their disposal.

Think about it. Releasing an official version would show the reasonableness of the treaty participants. It would demonstrate that ACTA is not as bad as it has been portrayed. Doing it in the middle of the process would be a wonderful way to lull opposition into a false sense of security. You can always reintroduce controversial elements once it is again clothed in secrecy.

In the same way the Allies used misdirection to keept the Nazis confused as to where an Allied invasion force would land, I would release a fake leak. One that would make it look as though the worst bits of ACTA have been watered down. Declawed even. It is not like draft legislation; it is a document without provenance. No one stands behind it.

a leak is not official… it can say anything

Are movie companies that sneaky? Several years back I remember reading that three movie companies decided to make a movie based on The Three Musketeers in the same year. Why not? It’s a great story and its in the public domain. The story was that the richest and most powerful of the three movie companies scoured Europe and bought or rented every possible period costume that could be had. The end result being that only one Three Musketeers film was made that year. So yes, I rather think that movie companies could be that sneaky.

If ACTA appears to be getting weaker the forces arrayed against it may weaken as well. I don’t know about anyone else, but I would rather be working on any number of things than blogging about this. This is just a wild eyed conspiracy theory. Pure speculation.

I learned a long time ago not to believe in the check that’s in the mail until it has been cleared by my bank. The thing is, we can’t afford complacency.

cliched but true: it ain’t over ’til it’s over

Some recent ACTA articles from around the web:

Starting with KEI’s James Love in The Huffington Post: White House Blocks Disclosure of Secret Intellectual Property Trade Text

and one of the premier sources of ACTA information and explanations is Canada’s own Michael Geist, whose latest at time of posting is ACTA’s Enforcement Practices Chapter: Countries Reach Deal as U.S. Caves Again

Another important ACTA Source has long been La Quadrature Du Net

TECHDIRT: And, Of Course, ACTA Leaks: Some Good, Plenty Of Bad

TECHEYE.NET: ACTA turns on Movie Studios

SYDNEY MORNING HERALD: Piracy setback for movie giants

OPEN ENTERPRISE Glyn Moody: ACTA: Please Do What Simon Says…

NationalJournal Tech Daily Dose: Scope Of ACTA Worries Critics

Zero Paid: ACTA Leaks Again – Our Review of the August 2010 Copy

P2PNET: Latest ACTA draft leaked online

ZDNET Australia: ACTA warms to ISPs?

Wild Webmink: URGENT: Has Your MEP Signed The ACTA Written Declaration?

WIRED INN: ACTA Letter to MEPs

POGO WAS RIGHT: Of Note: Text of ACTA leaked (updated)

PNT: ISP Liability For Infringement Nuked, ACTA Leak Reveals

STAND UP DIGGERS ALL: ACTA: Treaty without a cause?

TORRENT FREAK: ISP Liability For Infringement Nuked, ACTA Leak Reveals

Oh! Canada: ACTA keeps chugging along post

and ending with the inimitable Cory Doctorow’s boingboing: Latest leaked draft of secret copyright treaty: US trying to cram DRM rules down the world’s throats

Any way you slice it, ACTA continues to be bad.

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Image Credit:

“A COPYRIGHT will protect you from pirates” under a Creative Commons Attribution Share Alike License (cc by-sa) by Ioan Sameli

Sign The Wellington Declaration

InternetNZ organized PUBLICACTA to give the public an opportunity to critique the ACTA proposals on Saturday, 10 April 2010, 2 days before the ROUND 8 A.C.T.A. negotiation being held in Wellington NZ right now. This round of ACTA concludes Friday. Let’s keep our fingers crossed that the A.C.T.A. process will finally be opened up and made transparent.

Failing that, with luck the next incarnation of A.C.T.A. could well be leaked. After all, New Zealand is the land where Peter Jackson brought the cinematic Lord of The Rings to life… certainly it’s a land of mystery and magic, and a place where people know the importance of fighting against the dark forces of Mordor.

The Wellington Declaration

Preamble

The participants at the PublicACTA Conference of 10 April 2010 respectfully submit this, the Wellington Declaration, to the parties negotiating the Anti-Counterfeiting Trade Agreement (ACTA), for their consideration during the Wellington round of negotiations.

Consistent with the European Parliament’s Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations (P7_TA(2010)0058), ACTA should be limited to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).

The first part of the Declaration deals with general matters and principles.

The second part of the Declaration deals with some of the specific points under discussion in Wellington.

Part One: General Matters and Principles

Preserving the Internet

We recognise that the Internet has enabled creativity and innovation, the sharing of knowledge, citizen engagement and democracy, and is an engine of economic growth and opportunity. This is the result of certain attributes of the Internet: its open protocols and its generativity; the fact that anyone can connect and anyone can build new applications, and find new uses without discrimination. ACTA should preserve these attributes.

Forum for the Negotiations

We note that the World Intellectual Property Organisation has public, inclusive and transparent processes for negotiating multilateral agreements on (and a committee dedicated to the enforcement of) copyright, trademark and patent rights, and thus we affirm that WIPO is a preferable forum for the negotiation of substantive provisions affecting these matters.

Purpose of ACTA

We note that the purpose of copyright is to encourage creation & distribution of works for the public good, by allowing creators a limited opportunity to control their work. ACTA assumes that this is under threat, and further protection must be developed. We call for a clear statement of the problem that ACTA is designed to solve, with independent evidence to support it.

Process

ACTA’s process must change:

o  Transparency

We declare public scrutiny and accountability to be important aspects of life in a free society. We call for full transparency and public scrutiny of the ACTA process including release of the text after each round of negotiations. Governments have been unwilling to respond to specific concerns raised by the public. Public scrutiny will help to ensure the Agreement has no unintended consequences and has maximum positive benefit.

o  Impact Analysis

We believe that Governments should not sign ACTA without an independent impact analysis covering economic, social, environmental and cultural impacts of the agreement on their respective countries. Such analysis should be published well in advance of any agreement being signed, so it is open to public scrutiny and consideration of its thoroughness.

o   Participation

We call for wider participation in setting the agenda and scope of ACTA. The negotiation and consultation process must enable full participation and informed input into reviewing and developing drafts. All governments must be invited to be part of the negotiating process. Input must be sought from affected sectors such as Education, Health Care, Arts & Culture and Information Technology, NGOs, and consumer rights groups.

Local Flexibility
We affirm the importance of local flexibility and the need to preserve a nation’s tino rangatiratanga and sovereign rights to adjust copyright, trademark and patent law to reflect local culture, preferences and conceptions of the public good.

Part Two: Specific matters for the Wellington Round

Should the negotiations continue to deal with wider copyright, trademark and patent issues, we call on the parties to take account of the following matters:

Exceptions and limitations

We declare that ACTA must address exceptions and limitations, such as fair use and fair dealing, to maintain the balance that is fundamental to copyright.

Technological Protection Measures

We note that ACTA is an Agreement to, among other things, enforce copyright interests. TPMs concern access and control and so should be beyond the scope of the Agreement, because existing copyright law is sufficient to address infringement. TPMs should not be protected: copyright works should.

In the event that ACTA provides legal protection for TPMs, such protection shall go no further than Article 11 of the WIPO Internet Treaty. TPMs should not infringe on or limit the rights of users to use or access copyright material in a manner that would be permitted without the TPM.

Preserving civil procedures

We declare that ACTA must not override or supplant domestic civil procedure. Those accused of infringement must have the benefit of robust consumer protections and safeguards, and access to due process.

Privacy

We declare the importance of maintaining people’s right to privacy including user details, personally identifiable information, IP addresses, and similar information. The Agreement should not require or permit such information to be disclosed to third parties without due process and judicial oversight, and nor should it limit or derogate from any existing data protection or privacy regimes, nor introduce surveillance.

Intermediaries

We declare that ACTA must recognise that intermediaries, such as ISPs, web site hosts, and search engines, are central to enabling people to derive the benefits of the Internet. Their role must be protected and encouraged.

Intermediaries who do not initiate or direct the content on their systems or networks must have the benefit of safe harbours that are not predicated on enforcement obligations designed to address third-party infringement.

ACTA must not mandate secondary liability standards.

Access to the Internet
We declare that access to the Internet is increasingly necessary for participation in society.

Disconnection, account suspension, or limitation of service, have disproportionately negative consequences for civil rights. ACTA cannot require or allow that it be an acceptable sanction for copyright or trademark infringement.

Damages

We declare that damages:

• must be determined only by competent legal authorities (such as courts) within each sovereign nation.
• must be proportionate to the intent, and to the real and actual harm.
• must not be implemented by means of a statutory damages regime.

Criminal liability

We declare that ACTA must provide a high bar for criminal liability. ACTA must not attempt to reframe personal use and private acts to fit a definition of “commercial” infringement.

ACTA must recognise the need for proportionate criminal provisions acknowledging the problem of large-scale commercial infringement, for profit, that is direct and intentional.

Done at Wellington, New Zealand on Saturday 10 April 2010.

The Wellington Declaration —InternetNZ

Everyone, every citizen of every country, is invited to sign this Declaration.

[Note: Photo Credits:
New Line Cinema: The Lord of the Rings
http://www.newline.com/properties/lordoftheringsthefellowshipofthering.html
“The Eye of Sauron” photo by Amelie, on Flickr
http://www.flickr.com/photos/amunivers/199008242/
“The One Ring” and “Frodi vs. Ringwraith are photos taken by me at Future Shop’s Lord of the Rings DVD release party.]

Much Ado About A.C.T.A.

This past Thursday I scrambled to put together a personal submission to the Office of the United States Trade Representative.   Although the USTR made it clear that all submissions would be welcome, the Canadian Government chose to stand mute.   I’m only a private individual, but I thought it was an important thing to speak out about particularly since Canada, like many other sovereign states around the world, is under a great deal of pressure to participate in the secret A.C.T.A. (Anti-Counterfeiting Trade Agreement) negotiations.

Should the USTR again unfairly place Canada on their “watch list” politically this could be used to leverage Canada into follow the American A.C.T.A. game plan.

There is a growing awareness of the potential danger from this negotiation among ordinary citizens.

The first warning sign about A.C.T.A. is the level of secrecy demanded by those negotiating it.   Although these negotiations have already been underway for a couple of years, anyone privy to the negotiation is required to sign a rigorous non-disclosure agreement that prevents all of the participants from divulging any of the details.   This means that there are many elected government representatives in the countries involved who are not privy to the details.   Logically, it is also a compelling indication that the terms are not going to meet with the approval of the citizenry.   After all, if any of this was in our best interests why would it need to be so secret?

If it was simply an anti-counterfeiting treaty, there probably wouldn’t be any controversy at all.   The problem is, although it sounds like counterfeiting is the A.C.T.A. raison d’être, it appears that the driving force is to force the rest of the world to follow the American lead and rewriting our copyright law according to the specifications of the American Corporate Copyright Lobby.   The ultimate goal seems to be to force all the countries involved in the negotiation to fall in line.

The Internet has some wonderful things going for it.

Not least of which is the ability to connect with people all over the world and communicate regardless of language.

Although I’m unfortunately a mono-lingual English speaker, I was able to read this inspirational online petition offered by the Mexican internet freedom fighting group OPENACTA.

“Sharing knowledge and information without profit is never smuggling, countefeiting or piracy. ” — OpenActa petition

With the assistance of Google Translation and a dash of common sense, I offer my amateur translation here:

Petición de Transparencia re: #ACTA para el Senado de la República

From 25 to 29 January 2010, the Mexican Institute of Industrial Property was the host of the 7th Round of Negotiations of ACTA (Anti Counterfeiting Trade Agreement by its initials in English) at the Fiesta Americans in the city of Guadalajara.

Despite repeated demands by the international community and specifically of Mexican citizens to make public the negotiations and reveal the text of the treaty, so far, the agencies involved in these negotiations have ignored our demands for transparency, information, and openness of debate regarding the ACTA, intellectual property and the right to information of all Mexicans.

Through this petition we demand that the Mexican Senate ask the administrative entities responsible for negotiating the ACTA in our country to publish a detailed report of that meeting as soon as possible.

We also require a public hearing by the administrative representatives of ACTA negotiations with the competent authorities of the Senate, to meet the urgent demand of the public to remove the unfortunate opacity over two years of negotiations of this treaty being negotiated secretly on behalf of all Mexicans.

Finally, on receipt of this request we kindly request that the Senate make its position on the matter and communicate the steps to start a public debate about absolutely the entire contents of the ACTA text proposed, and which is an essential component of citizenship.

Sharing knowledge and information without profit is never smuggling, countefeiting or piracy.

Thanks for your attention.
OPEN RECORD

Sincerely,
Citizens of Mexico

—OPEN ACTA online petition

Bravo to the Citizens of Mexico and OpenActa.

Possibly because the details of A.C.T.A. are so heinous, but even the rigorous non-disclosure agreement has been unable to prevent leaks.

Cory Doctorow reported the latest on boingboing as well as offering this handy concise breakdown of the A.C.T.A. problem in Internet Evolution: Copyright Undercover: ACTA & the Web

Michael Geist breaks the latest leaked document into understandable bits in ACTA Internet Chapter Leaks: Renegotiates WIPO, Sets 3 Strikes as Model

Finally, word from yet another part of the world New Zealand’s Coffee Geek: Recent ACTA content leaks   It seems that the folks in New Zealand are also unhappy at the very thought of A.C.T.A.

Previously, laws in democratic nations were drafted according to the societal norms and ethics of the countries, not handed down from above like tablets from heaven… not in democratic nations anyway.

A.C.T.A. is still BAD

In my previous two A.C.T.A. posts, A.C.T.A. is BAD and errata: A.C.T.A. is BAD, I passed along the sad tale of the 22 year old Chicago woman who made the terrible mistake of attending her sister’s birthday party at a screening of the movie New Moon.

Maybe ten or fifteen years ago I first noticed movie theatres promoting the idea of holding birthday or other parties at the movies.   Many of them offer special deals and party facilities. Just like MUVICO, the theatre where this incident took place.   And many people have unofficial birthday parties at the movies too.   Even though I haven’t, I have taken my camera to movie theatres and taken photographs of family members gathered to watch a movie inside the theatre on more than one special occasion.

Samantha Tumpach’s crime was taking home video of her sister’s 29th birthday party.   Less than four minutes of footage on her camera showed the movie screen. Maybe I empathize so very much because I am the photo nut in my family.   It might have been me dragged off in handcuffs.

TorrentFreak reports that the charges have now been dropped, and she is free again.   This young woman should not have had to spend two nights in jail for going to a movie theatre birthday party.

My Zorro "En Garde"

I’ve made plenty of amazing Hallowe’en costumes for my son over the years, many based on movie characters.   The year my son decided he wanted to be Zorro for Hallowe’en was the year that The Legend of Zorro was released theatrically.   So naturally my small Zorro wanted to see the new movie in his awesome (Don Alejandro) Zorro costume.

My Zorro waits for the movie to start.

So of course I took the camera to the theatre and took lots of photos of my Zorro.

And of course I was using my very first digital camera which had video capabilities.

Had I not been enjoying the movie, I could easily have taken photos or video of my little Zorro watching the big Zorro onscreen.

I wasn’t detained by theatre staff or arrested.   Seems I was lucky.

It doesn’t matter if the staff actually believes the MPAA copyright propaganda, or whether they acted out of fear of MPAA, the result is the same.

The movie industry put a patron in jail.

Kudos to New Moon director Chris Weitz, who contacted the Samantha Tumpach and offered his support.

The three minutes of footage she shot inside the theater, Tumpach said, also included film previews and ads, along with short segments of the film — and her talking about the camera and the movie.

“It was never my intention to record the movie,” Tumpach said. “You can hear me talking the whole time.”

—Chicago Sun-Times:’New Moon’ director defends woman accused of piracy

Most people working in the movie business probably don’t support the draconian copyright laws the MPAA is lobbying for.   But they need to make a living, and so I can understand why feel they can’t speak out against MPAA lobbying or A.C.T.A.   Most are probably just as much in the dark about A.C.T.A. as the rest of the world, since most elected representatives in the countries negotiating A.C.T.A. appear to be uninformed.   This would be why A.C.T.A. has already sprung so many leaks.   Since President Obama has labelled A.C.T.A. a national security issue, it is probably far too dangerous for Americans to risk leaking further documents.   Yet being an international treaty there are many parties to the negotiations so I expect leaks will continue to be provided by people of conscience.

Stories like this reflect very badly on the movie industry.

More and more consumers are coming to realize that the media industry has effectively declared war on us.   Which is precisely why the major media companies are lobbying so hard to have governments around the world enact A.C.T.A.   The want the government to be the “bad guy”.

It is the real reason why A.C.T.A. is secret: so that no one will be accountable for drafting or implementing the draconian copyright laws that will necessarily result from ratification.

Yet if A.C.T.A. was in place NOW, there is a very strong probability that Samantha Tumpach would not have been released after a mere two nights in jail.

Tumpach dared to infringe copyright, even though it clearly was not for the purpose of “bootlegging”. Under the laws that A.C.T.A. is seeking, innocuous personal use “infringements” like this one will be treated the same as “for profit infringements”.   Even in the face of contrary evidence, MPAA and other A.C.T.A. lobbyists claim that file sharing damages their business.

Whether this is because the MPAA is actually so ignorant of what is happening that they don’t understand the phenomenon, or if this position is assumed to convince their shareholders that they are doing something to combat bootlegging doesn’t really matter.   Not only will laws like this fail to prevent criminals from continuing to profit from bootlegging, but the result will be uniformly bad for consumers and citizens.

Although A.C.T.A. means “Anti-Counterfeiting Trade Agreement” it seems clear that the name is a product of doublespeak since it actually seeks to criminalize personal use “copyright infringements”..   They have tried to change the way people think by including anti-piracy commercials in theatres and on DVDs.   Since that has not worked, they’re playing hardball.

Why Secrecy is So Essential

The copyright lobby believes hiding behind A.C.T.A. secrecy will keep us from knowing that they are responsible for having our young people locked up for sharing.

• They think that we will instead blame the lawmakers.   After all, they will have made the laws.
• And the law enforcement officials.   They will be the ones investigating, arresting, prosecuting and jailing these copyright infringers.

The politicians also believe hiding behind A.C.T.A. secrecy will absolve them from blame. They think they will be able to escape blame by saying:

“But you can’t blame us for this… all the other governments did it so we had to do it too”.

Every parent knows the classic parry to the “Everybody’s doing it” argument: “If everybody else was jumping off a cliff would you do it too?”

If everyone jumped off a cliff...

Since we don’t buy that excuse from our children, why would they think we’d accept such a feeble excuse from our government?

Do they think we’re stupid?

Because we will know who to blame.

Maybe I am just not subtle enough for this. Maybe I think too much in terms of black and white. After all, in the “mom” game, you quickly learn to skip over the shades of gray. You teach your two year old, “people are not for hitting”, because a two year old doesn’t have the life experience to be able to judge when hitting can be justified (as self defense, say).

Cut to the chase: right and wrong.

But then again, what do I know?

I thought part of being a mother was teaching kids the value of sharing.

Something else parent need to consider is possible consequences. So I began wondering what the consequences of A.C.T.A. might be.

A.C.T.A. Introduces a New Criminal Class

The special interest group behind A.C.T.A. believes that they will be held blameless for the fallout.

They think that once people know file sharing would will send them to jail, they’ll stop.   And that will frighten other people so they won’t do it anymore either.   Right.

It seems to me that now the people who are prepared to go to jail for copyright infringement are the criminal bootleggers. Like the alcohol bootleggers before them there are enormous profits to be made.   They feel it is worth the risk to make such enormous profits.

The people who are file sharing don’t believe they are doing anything wrong.   They believe that they can share music and movies they’ve bought with their friends.   I doubt any of them expect to go to jail.   (After all… everybody is doing it…)

But once A.C.T.A. passes and the laws of all our lands change, I think that many of the young people who feel so strongly about this will start expecting to go to jail.   I rather think that A.C.T.A. will increase filesharing.   I wouldn’t be the least bit surprised to see the evolution of an A.C.T.A. underground resistance movement.   A war could well be fought between the forces of idealism and the forces of greed.   Sooner or later the young people who believe that file sharing is a good thing will be in charge.

Insult and Injury

Of course the ways to bring these nasty file sharing criminals to justice would certainly involve “3 Strikes” laws, where allegations of copyright infringement can result in websites being taken off the internet.   Even without A.C.T.A. currently the U.K. is looking at doing this with only 2 strikes, and huge fines.   This is being challenged by the British ISP talktalk who have launched a petition in an effort to prevent this bad law from being passed.

Every example I have heard of this type of law includes making the Internet Service Providers spy on our internet activity.   None of these laws seem to require mundane things like search warrants or evidence.   The accused is guilty until proven innocent.

Who will pay for this?

The jails are full.   In a world where murderers rarely serve as many as ten years, my question is, where are they going to put this new criminal class? It will cost as much to incarcerate a personal use copyright infringer as it will to incarcerate a rapist.   It costs a lot of money to keep people in jails.   Because the criminal justice system is so expensive, plea bargains are already putting dangerous offenders back on the streets too quickly.   What about the overextended law enforcement agencies?   Where will the money come from to pay for the police man hours and court overheads?

Who will pay to draft and enforce these laws?   Governments will have to foot the bill.
For the MPAA and the Canadian Recording Industry Association this is an excellent reason to put personal use copying under criminal law rather civil because that puts the onus for investigating and prosecuting (and just as importantly, paying for investigating and prosecuting personal use copyright infringements on to the government.

And since government money really comes from the citizens, the reality is that we will be paying for this.

In order for ISPs to spy on our internet connections and computers, they will need large outlays of cash pay for the specialized equipment and personnel to run it and correlate the huge quantities of data required.   Who will pay for this? The ISPs.   Of course they will have to pass along the cost so…the reality is that we will be paying for this.

Who will pay for this erosion of civil liberties and human rights? The reality is that we will all be paying for this… especially our children.

Bootlegging

Bootlegging is wrong.   Videotaping a movie in a theatre or duplicating a DVD you purchased in order to press your own counterfeit copies to sell is theft.   As a law abiding citizen, I do not purchase bootleg merchandise from flea market stalls or retail stores.   If the vendor was aware that the merchandise was bootleg, I might even be inclined to complain.

But it seems that Hollywood isn’t even bothering about professional bootleggers.   So why should we?

Hooray for Hollywood

In the 1950’s Hollywood lived in fear of government witch hunts.

In the 21st century will we all have to live in fear of Hollywood?

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