Straight Talking About the Unspeakable ACTA


I and many others have written a fair amount about the Anti-Counterfeiting Trade Agreement (ACTA).

We'd doubtless write far more, were more details forthcoming. And yet despite the huge potential knock-on effects of this agreement, everything is being negotiated behind closed doors. Even more outrageously, those doors are nonetheless being opened for representatives of trade organisations who wish to see their own agendas pushed through, but not for ordinary citizens, who seem to have no rights in this arena.

Against this background, it has been hard for most people to grasp what is at stake. Now, though, the Foundation for a Free Information Infrastructure (FFII) has put together what is the best introduction to ACTA that I have come across, spelling out how it will adversely affect businesses, computer professionals and ordinary citizens. Here's the start of its executive summary:

Behind closed doors the EU, US, Japan and other countries negotiate an Anti-Counterfeiting Trade Agreement (ACTA).

A leaked discussion paper mentions types of provisions that could be included. According to the European Commission's website, a "path breaking" agreement is foreseen. For this reason the Commission likes to work outside the normal formal structures. Indeed, the leaked document contains unprecedented measures. We will analyse the Community's competence to conclude ACTA and proportionality issues.

The Community's efforts to fight piracy suffers from a fundamental misconception. It fails to make adequate distinctions between commercial piracy enterprises, legitimate/lawful activities undertaken by business competitors, or even the common activities of ordinary Europeans. As a result harsh measures aimed at commercial piracy enterprises also hurt business competitors and civilians.

On the business side, the FFII sees a danger that ACTA will be abused by unscrupulous companies to stifle fair competition:

The Community confuses business conflicts with piracy. The leaked ACTA document shows the same misconception. Not all alleged infringements are indeed infringements. The exclusive right may turn out invalid or the act may fall outside the valid scope of the right. It is often unclear whether an intentional commercial scale act falls within the valid scope and whether the right itself is valid.

This can only be established in a civil case. The conditions intentional + commercial scale + infringement are not enough to determine whether an act reveals piracy. More conditions are needed, we will elaborate on this in the proportionality section. Unfortunately, the Community just uses these three.

As a result, legitimate business competitors can be branded as pirates and harsh anti-piracy measures can be invoked against them. One of the parties in a business conflict gains disproportional advantage. This advantage can easily be misused.

Those in the computing world are likely to be affected by the enhanced bite of software patents that ACTA will provide – and the vastly-greater power of patent trolls to threaten:

The broad and abstract nature of software patents makes infringement unavoidable, and most software systems unavoidably infringe on multiple patents. All companies ignore software patents to some extent, simply because every single useful program you write infringes on several patents.

The IPRED (1) Directive gave patent litigants great powers to harass software producers, seize documents and freeze assets. Harsh measures which are justified against commercial piracy enterprises, not against legitimate entrepreneurs. One could say that the Directive enhances legal security for right owners by introducing new legal insecurity for competitors.

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