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Glyn Moody

Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

The Great ACTA Lie Revealed

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I've been tracking the Anti-Counterfeiting Trade Agreement (ACTA) story for a while, lamenting in particular the fact that these key negotiations are being conducted behind closed doors.

As I noted before, the general reason advanced for this is that it's purely a procedural issue – as in “we've promised” - and that nobody is trying to hide anything dodgy, you understand.

At the time of a major ACTA leak, I voiced the fear that something might be lurking in the missing section that deals with the Internet:

It's true that one of the key sections – that dealing with “Special Requirements Related to Information Technology and Internet Distribution” - is missing, and it's possible there's something truly shocking lurking there.

And guess what? They *were* hiding something truly appalling according the latest information that has crept out:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

As this shows, it collects all the worst ideas around copyright infringement – third-party liability, limited safe harbour rules, “three strikes and you're out”, anti-circumvention legislation etc. – and wants to make them mandatory in most of the developed world.

But step back a minute, and notice what I've just written: the worst ideas around *copyright infringement*. And yet time and again ACTA governments around the world have insisted that this is not a copyright treaty, but a treaty to fight counterfeiting by large-scale, organised crime – it's even in ACTA's name.

And yet the measure above will affect every person on the Internet by virtue of limiting what they can do with copyright materials – even ones whose copyright they own – and generally having a chilling effect on online activity. This section is almost entirely about copyright and the average user, not large-scale counterfeiting and organised crime.

It is surely no coincidence that the last piece of the ACTA puzzle to be revealed is the most contentious, and turns out to precisely the kind of thing that the governments concerned have been strenuously denying. This is out-and-out deception of the most cynical kind,

and emphasises once more why the ACTA process should have been conducted out in the open from the start. Had that been the case, it would not have been possible (a) to lie about the real intent of the treaty and (b) to sneak in devastating proposals right at the last minute when much of the treaty has been discussed and maybe even finalised, and when fighting them is even harder.

The whole ACTA saga is one of the most nauseating demonstrations of the contempt in which the Power-that-Be hold ordinary people and their interests. Sadly, it is not clear to me how to fight it: when most of the industrialised governments are hell-bent on pursuing this collective course, firing off an email to your MP suddenly looks a bit limp. Any suggestions not involving insurrection?

Follow me @glynmoody on Twitter or identi.ca.

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