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Anti-Counterfeiting Trade Agreement (ACTA) Highlights

Posted by Laurel L. Russwurm on February 8, 2011

ACTA logo

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

government approved SPYware text and magnifying glass

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.

Vertical Canadian Flag

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.



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:

as well as on my Oh! Canada political blog:

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A.C.T.A. is BAD

Posted by Laurel L. Russwurm on December 7, 2009

Hollywood taught me about Democracy

Jesse Brown reported a very scary story How do you say “clueless” in Italian? on his Search Engine site.

No Usage Based Billing

No Usage Based Billing

Four Google execs may face jail terms because they didn’t pull an offensive video from their site BEFORE anyone complained about it.

Surprisingly, it didn’t seem to be a very big story, yet it is a perfect illustration of the incredible danger facing the internet. There is no way that large busy websites or the ISPs that host them can possibly monitor all of the material that is uploaded to the internet without seriously curtailing what is being uploaded to the internet.

For instance, when logging into Flickr I am told:

“There were 2,710 uploads in the last minute ”

Thousands of people upload images to Flickr every minute. It would take thousands of people to screen those images. If Flickr was forced to hire thousands of people to police the images members upload to the site, suddenly what Clay Shirky calls “ the transaction cost” would stop being nearly nil because the cost to maintain Flickr would skyrocket. It is doubtful that Flickr or YouTube or any other wildly successful website could cope with this without going bust.

Wikipedia, for example, has many people all over the world contributing articles and changing other people’s articles all the time. You would think that this would result in all kinds of internet vandalism happening.   But it doesn’t.   Sometimes people make mistakes, and the way Wikipedia works is that other people can fix those mistakes, And they do. And Wikipedia users also correct deliberate misinformation or vandalism.   So even if someone attempts to do a bad thing and vandalize wikipedia articles or disseminate misinformation on Wikipedia, Wikipedia is policed by its own editor/users.

As soon as anyone complains to Google, or YouTube, or Flickr about offensive content, the content is taken down. Now, I have to tell you, even though I am not by any means a young pup, in terms of understanding the internet, “I am only an Egg.” The internet we know today didn’t exist twenty years ago.

Like most people, I’ve been busy, so I wasn’t paying very much attention. Every now and then some new toy or gizmo having to do with computers would pop up — like iphones or ebooks or blackberrys. Or some new uber-cool thing like blogging or facebook or twitter or VOIP would suddenly be everywhere. And we can’t forget endless tales and dreams of dot com millionaires. The way the wold works has been changing very very fast. Six months ago I had no idea what Usage Based Billing was. About two months ago I started writing a simple little article explaining the mechanics of how the internet works. It turned out to be incredibly difficult to learn, let alone explain and mushroomed into “the alphabet series”. Simple? No, and the more I learn the more important I realize Net Neutrality is.

So I do understand why most people don’t even realize that this stuff is going on, or even that it matters. But the thing is that the internet has been slowly growing up and becoming more important in the world, and at the same time a much larger force for change. Which is why it is so important that there be Net Neutrality. Because the internet has come so far so fast it is especially important that it not be turned against it’s users.

Alongside Net Neutrality people in this brave new world are also talking about file sharing, “3 Strikes laws” and ACTA. Terms like piracy and theft are being hurled around and “copyright infringement” has been elevated to a near executable offense.

Why now?

It is no secret that governments around the world have been lobbied long and hard by the “copyright lobby” large media corporations, music and movie companies who are attempting to legislate prograss back into the twentieth century and change the way we think. They have been turning their media might into a propoaganda tool of epic proportions. Because of the incredible power that they can bring to bear, copyright laws around the world are being changed to appease these lobbyists.

Hollywood taught me spying on citizens is bad.

Hollywood taught me spying on citizens is bad

Copyright law “improvements” enrich the lives of Americans

An inflammatory Chicago Sun Times headline reads Woman arrested for trying to record ‘Twilight’ on digital camera. The article recounts a story about a young woman who is being criminally charged– to the same extent and in the the same way a professional bootlegger would be charged– for recording scenes of her sister’s birthday party at the movies. The video picked up about 4 minutes of movie fragments. This is the equivalent of charging a teenager with one joint as a drug dealer, or the child who swiped a tempting lollipop from the grocery store with grand theft. It is simply not reasonable.

I’ve taken photographs of family and friends on special occasion trips to the movies. I’ve made videotapes of birthday parties. If you make a video of a child’s birthday party and a movie or video game was playing on the TV in the background, you too could be criminally charged. Under ACTA what will happen when you email a copy of this copyright infringing video to Grannie in England? Will she be fined or jailed or will you?

These laws are already absurd. And then… here comes ACTA.

All of the citizens of the world are being deliberately excuded from all ACTA negotiations. President Obama, so recently praised for his commitment to Net Neutrality, believes this to be a matter of National Security.

There is a huge difference between “personal use copying” and “commercial bootlegging” which the copyright lobby is lumping together as “piracy”. This is all a wrongheaded attempt to legislate away progress. Instead of trying to adapt with the technology, the copyright lobby has chosen to pour millions (billions?) into lobbying for this legislation that will not in fact do anything to stop commercial bootlegging. To give the appearance of doing something they instead choose to criminalize the mostly young citizens who are not harming this special interest group. Personally, I would rather see the best and brightest of Canada’s younger generation find themselves in universities rather than jail.

ACTA is bad. Very Very Bad.

Hollywood Influences

Growing up I learned a lot from “Hollywood”.

Like most Canadians of my generation TV and Movies gave me a better understanding of the American legal system than the Canadian.

Hollywood taught me that:

  • free enterprise is admirable.
  • free speech is important
  • individuals have rights
  • democracy is good, and good government is responsive to the wishes of the citizens
  • communism is bad, because the government spies on its citizens
  • a person should be considered innocent until proven guilty

BUT.

Hollywood taught me "innocent until proven guilty"

Apparently that was all just “content”.  ACTA makes it pretty clear that Hollywood’s true objective is for governments around the world to:

  • suppress free speech,
  • shackle their competitors,
  • dismantle democracy,
  • spy on citizens and
  • throw out the rule of law to punish people on the basis of unsubstantiated accusations.

The saddest part is that it isn’t for some misguided ideological reason that they think will improve the world. This is pure greed.

ACTA links

“Canada and its international trading partners each have distinct copyright policies, laws and approaches for addressing the challenges and opportunities of the internet. Canada’s current framework provides strong intellectual property protections and our copyright laws apply in the digital context, including on the internet. Moreover, Canada’s regime for

the protection and enforcement of intellectual property rights is fully consistent with its international obligations.”

The Honourable Tony Clement, The Hill Times – Canada’s Politics and Government Newsweekly

YET.

Somehow Canada continues to participate in the secret ACTA treaty negotiations.

“Secret ACTA negotiations would criminalize Canadian internet use” says New Democrat Digital Issues Critic Charlie Angus, who demanded that Tony Clement reveal the ACTA negotiation mandate letter. Tony Clement Responds To Concerns That ACTA Will Circumvent Canadian Copyright Law

Ambassador Kirk: People would be “walking away from the table” if the ACTA text is made public . Maybe that is what should be happening.

Russell McOrmond tells us about:

Word manipulation, hypocrisy, and the so-called Anti-Counterfeiting Trade Agreement (ACTA) in it world.

Bytestyle TV’s Shelly Roche tells us a few things about ACTA, including the fact that it is being undertaken as an executive order, and therefore will not require ratification by the U.S. Congress. If it’s any consolation, American citizens are being kept just as much in the dark as Canadians, and, well, every other country in the world. ACTA: Internet Users Guilty Until Proven Innocent and ACTA: Will Corporate-Run US Government Destroy the Internet?

The Electronic Freedom Foundation Senator Bayh Responds on ACTA illustrates just how badly informed Americans (including Senators) are about ACTA.

Fortunately all Senators weren’t created equal. Senators blast Obama’s secret trade talks as Fox head calls for ‘3 strikes’

Michael Geist brings us: EU ACTA Analysis Leaks: Confirms Plans For Global DMCA, Encourage 3 Strikes Model

Where Paolo Brini passed along the news that the ACTA “negotiations now are not compliant with the Lisbon Treaty, which has come into force the 1st of December” EU negotiators show too many incompatibilities between ACTA and EU laws and Telecoms Package: 3-strikes forbidden in Europe He says further that “The agreement between the Council and the Parliament led to a new amendment which clearly forbids 3-strikes, in the sense meant by ACTA, and restrictions to fundamental rights without following very precise parameters (not respected by ACTA).”

Jamie Love’s blast from the past: Seven Secret ACTA documents from 2008 which includes the link to a PDF of the “Canada Non-Paper on institutional issues under the Agreement” is then discussed in Howard Knopf’s EXCESS COPYRIGHT: Canadian Proposal for ACTA Secretariat

Wired Magazine weighs in with the Threat Level column: Privacy, Crime and Security Online Report: U.S. Fears Public Scrutiny Would Scuttle IP Treaty Talks

New Zealand would like to know: Dunne: What are we signing up to, Mr Power? – 4 December 2009

Last week on BoingBoing Cory Doctorow passed along Javier “Barrapunto” Candeira’s information on the Spanish activists issue manifesto on the rights of Internet users which was created to battle the proposed suspension of due process “in the name of ‘safeguarding Intellectual Property Laws against Internet Piracy.”

1 .- Copyright should not be placed above citizens’ fundamental rights to privacy, security, presumption of innocence, effective judicial protection and freedom of expression.

2 .- Suspension of fundamental rights is and must remain an exclusive competence of judges. This blueprint, contrary to the provisions of Article 20.5 of the Spanish Constitution, places in the hands of the executive the power to keep Spanish citizens from accessing certain websites.

3 .- The proposed laws would create legal uncertainty across Spanish IT companies, damaging one of the few areas of development and future of our economy, hindering the creation of startups, introducing barriers to competition and slowing down its international projection.

4 .- The proposed laws threaten creativity and hinder cultural development. The Internet and new technologies have democratized the creation and publication of all types of content, which no longer depends on an old small industry but on multiple and different sources.

5 .- Authors, like all workers, are entitled to live out of their creative ideas, business models and activities linked to their creations. Trying to hold an obsolete industry with legislative changes is neither fair nor realistic. If their business model was based on controlling copies of any creation and this is not possible any more on the Internet, they should look for a new business model.

6 .- We believe that cultural industries need modern, effective, credible and affordable alternatives to survive. They also need to adapt to new social practices.

7 .- The Internet should be free and not have any interference from groups that seek to perpetuate obsolete business models and stop the free flow of human knowledge.

8 .- We ask the Government to guarantee net neutrality in Spain, as it will act as a framework in which a sustainable economy may develop.

9 .- We propose a real reform of intellectual property rights in order to ensure a society of knowledge, promote the public domain and limit abuses from copyright organizations.

10 .- In a democracy, laws and their amendments should only be adopted after a timely public debate and consultation with all involved parties. Legislative changes affecting fundamental rights can only be made in a Constitutional law.

The Spanish government withdrew the draft law that would have legalized punishment without due process.

Spanish Blogroll:

[this is only a smattering of the websites bearing the manifesto… a Google search shows “de aproximadamente 351,000 de manifiesto en defensa de los derechos fundamentales en internet”]

and the list goes on….

Bravo Spain.

Talk about this.

And please, contact your MP, Prime Minister Harper as well as the Honourable Ministers Clement and Moore.

Because ACTA is bad. Very very bad.

STOP Usage Based Billing

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