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ACTA Update III

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It's a sign of the European Commission's increasing desperation over ACTA that it has been forced to send out a document entitled "10 Myths About ACTA" [.pdf] that purports to debunk misinformation that is being put around. Unsurprisingly, the EC's document is itself full of misinformation; over the next few days I'll be going through some of its most egregious attempts to obfuscate and generally explain away the deep problems of ACTA.

1. ACTA will limit the access to the internet and will censor websites.

Read the text of the ACTA Agreement - there is no single paragraph in ACTA thatsubstantiates this claim. ACTA is about tackling large scale illegal activity, often pursued by criminal organisations. It is not about how people use the internet in their everyday lives. Internet users can continue to share non-pirated material and information on the web. ACTA will not limit people's rights on the internet nor will it shut down websites, unlike the proposals discussed in the US (SOPA and PIPA).

There are some convenient half-truths here. Its supporters may claim that ACTA is about tackling large-scale illegal activity but nowhere in the document is there mentioned any minimum level for its operation. That is, potentially, it can apply to the actions of a single person, perhaps even sharing a single file, depending upon the circumstances. The problem is, ACTA's framing is so vague that it's not clear exactly who might be caught by its terms. Whatever the Commission may say now, it's how the text is interpreted later that matters.

After all, if the Commission had really wanted only to tackle "large-scale illegal activity", it would have added a minimum level to exclude the risk that ordinary Internet users would be affected. The refusal to add that minimum level to the treaty - something that would have been easy to do - can only mean that the Commission does indeed want the option of applying ACTA's rules to ordinary citizens, and that its claims to the contrary are simply whitewashing.

The next half-truth is: "Internet users can continue to share non-pirated material and information on the web". But what exactly is "non-pirated material"? Who decides? Because copyright has become such a complex set of laws that it is rarely clear - even to copyright lawyers - what exactly is or isn't "pirated": often the courts have to decide whether something is covered by "fair dealing/fair use", for example. So how can ordinary citizens possibly know in every case whether what they are sharing is "pirated"?

In particular, there is the situation that the term of copyright varies by country, and what may be in the public domain in one, is still in copyright in another. So what happens when someone in a country where some creation is in the public domain shares it with someone in a country where it isn't? The continuing injustice of the O'Dwyer case shows us that the US tries to applies its laws everywhere in the world: so does that mean its copyright laws apply in Europe?

Finally, while it is true that ACTA will not "shut down websites" directly, there is another clause that is even worse (Article 10):

"judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of"

Now, by definition, a Web site "creates" infringing copies when it sends or streams them to users; so lawyers could - and almost certainly will, knowing lawyers - argue that ACTA provides for the destruction and disposal of any computers whose "predominant use" is copyright infringement. So, no simple censorship, certainly, just the seizure and physical destruction of computers (assuming they are in one of the ACTA signatories), and probably the domain name too.

Not only that, but another section (Article 12) allows for "materials and implements" to be seized without informing the party affected, and even without any guarantee that people can defend themselves afterwards - so much for due process and justice.

3. ACTA is a secret agreement. Negotiations were not transparent and conducted "behind closed doors". The European Parliament was not fully informed, stakeholders were not consulted.

The text of ACTA is publicly available to all. The negotiations for ACTA were not different from negotiations on any other international agreement. It is a fact that such agreements are not negotiated in public, but with the Lisbon Agreement and the revised Framework Agreement there are clear rules on how the European Parliament (EP) should be informed of such trade negotiations. And these have been scrupulously followed. Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations.

Likewise, the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations. The Commission released summary reports after every negotiation round and the negotiating text since April 2010. It organised press briefings and four stakeholder conferences on ACTA, one of them evenonly a few days before the first negotiating round.

This is extraordinarily duplicitous. The text of ACTA may be available to everyone now, but that is after the negotiations have been concluded - in other words, as a fait accompli. Even though the ACTA discussions began in 2006, the first formal draft that was officially released was only in 2010. The only reason people knew what was in ACTA was thanks to a document posted in Wikileaks in 2008: in other words, if the ACTA negotiators had got their way, ACTA would have been negotiated behind closed doors for four years before the public was allowed to see anything (and had there not been the Wikileaks leak, it's possible that even the draft would not have been released.)

The Commission claims "the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations": but what matters, of course, are the details, not the "general thrust". A few press briefings and stakeholder conferences are no substitute for actually allowing the public to give some - any - input to the ACTA process. But in the many years of negotiations, there was no possibility whatsoever to do that.

And yet even though the public was denied any opportunity to comment on a treaty that would have important implications for their lives, certain privileged groups were not just given access but consulted on their views, as Wikipedia explains:

"Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon."

Given the fact that major US corporations that stand to benefit directly from ACTA's disproportionate enforcement terms were allowed to shape its details from early on, while the 300 million European citizens who will be subject to those same terms had not a single formal opportunity even to express their views, the Commission's attempt to suggest that this was not a secret treaty, and that the public was consulted, is risible and insulting.

ACTA Update I
ACTA Update II

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