Posts Tagged ‘three strikes’

ACTA: The Little International “Anti-Counterfeiting” Treaty That is Scaring the Pants Off People Everywhere

The Anti-Counterfeiting Trade Agreement (ACTA) is a new international treaty supposedly targeted at counterfeiters. However, supporters of liberalization of copyright law have been expressing serious concern that ACTA has become another vehicle for BigCopyright (Disney and its ilk) to impose more stringent copyright restrictions on the United States, among other countries. It doesn’t help that the ACTA drafting process has been secret, and a draft was just released to the public in April, after a significant period of negotiation.

The Electronic Frontier Foundation has been expressing alarm about ACTA for years. Meanwhile, President Obama has repeatedly stated his support for ACTA.

This past week, Ray Dowd at the Copyright Litigation Blog read the text of ACTA and had this to say: “I thought that I would find the concerns I’d seen floating around the internet to be a little overblown. In fact, I think that the concerns of the EFF are understated. . . . [T]he text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don’t think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.”

Similarly, Techdirt says that while the ACTA draft does not codify the “three strikes” approach (read: banning repeat infringers from the Internet entirely) being bandied about in European countries, including the UK, the draft apparently states that Internet service providers must have policies to deal with infringing works in order to have access to “safe harbor” protection under ACTA, and the given example of such a policy is termination of repeat infringers – the foundation of the “three strikes” approach.

Additionally, Techdirt reports that the ACTA draft would export the sort of notice-and-takedown regime, part of the safe harbor provisions already codified in US copyright law in the Digital Millennium Copyright Act, to the rest of the world, despite the fact that these provisions allow action against alleged infringers without proof of actual infringement, and are widely abused in practice.

One more reason to worry about ACTA: Andrew Moshirnia of the Citizen Media Law Project reports that the EU has proposed adding third-party criminal liability to ACTA. In other words, parties who aren’t themselves infringers but who engage in acts of “inciting, abetting and aiding” infringement might be subject to criminal penalties. Moshirnia says:

First off, this seems to criminalize most Internet . . . everything. . . . Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. . . . Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster.

Are you nervous yet?

Image: The above photo is a 2005 shot from Flickr user bsdfm, who writes: “The label reads: =if(Label=”",”RMA”,”?”) This is an Excel function. It also would work in Microsoft Access. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. This is what happens when there is a bug in their software. Chatuchak market, Krung Thep, Bangkok, Thailand.”

 

The State of Three Strikes

It’s spring training season, and that’s as far as I really feel like taking this metaphor at the moment.  Recently, a number of nations have considered implementing a “three strikes and you’re out” rule for illegal downloaders, wherein ISPs would disconnect the infringing user after they were caught pirating copyrighted material a third time.  France introduced the law in September 2009 and while it has yet to go into effect, early studies question its potency. New Zeland put a similar system in place, but had to retinker the law and soften the blow, completely removing the disconnect provision after significant protest. Dynamo agent Ari Emmanuel, inspiration for the Ari Gold character on HBO’s “Entourage” and little brother of White House chief of staff Rahm Emmanuel, has been using his juice to push the President for a simliar system in the United States.

The Obama Administration has remained relatively tight-lipped about its plans for their overall plans, but has insisted that they plan to aggressively protect the nation’s intellectual property.  One of the weapons in their arsenal is the soon-to-be-released Anti-Counterfeiting  Trade Agreement (“ACTA”).    The drafters of the agreement are notoriously silent, but have recently come under fire due to leaked rumors that there will be a “three strikes” provision in the trade agreement.  In response, the European Union has demanded that the US release a draft version of the ACTA in order to show that it does not, in fact, contain the provision.  The EU has taken a hardline stance that it will refuse to accept any sort of provision.  There’s a lot of he-said she-said going on here, and this will be tricky to implement across multiple nations.  With sentiment growing that internet access may be a basic human right, along with a vastly varying stance on piracy by country, agreement to a full disconnect for users seems somewhat unlikely.  Look for the ACTA to address this issue but in a somewhat lighter manner once the bill is released.