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ACTA Treaty Released
roju writes "The full text of the Anti-Counterfeiting Trade Agreement (ACTA) was released today. It differs from the earlier leaks in that the negotiating stance of each country has been scrubbed. Preliminary analysis is up at Ars, which warns that 'Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet.'"
I've read the text and made a summary of how this affects software patents:
For introductory info, here's other info I've gathered over the past months:
Expert in software patents or patent law? Contribute to the ESP wiki!
How does this blurb towards the end of the article:
ACTA doesn't export all of US law in this area, though; the world doesn't get huge principles like fair use (which many countries don't have) and key judicial decisions (like the Sony Betamax case which found that a device with "substantial non-infringing uses" could be sold so long as the manufacturer was not inducing infringement). Countries could adopt these, but they aren't requirements.
square with this blurb towards the beginning of the article:
ACTA would ban "the unauthorized circumvention of an effective technological measure." It also bans circumvention devices, even those with a "limited commercially significant purpose." Countries can set limits to the ban, but only insofar as they do not "impair the adequacy of legal protection of those measures." This is ambiguous, but allowing circumvention in cases where the final use is fair would appear to be outlawed.
To me, the second blurb is pretty much saying "kiss your fair use goodbye, US Citizens"
Imminent infringement clauses are nothing new, and are mostly used in the commercial realm. Say, for example, that A holds a patent on stuff X, B advertises product Y which clearly infringes on that patent. A does not need to wait until B actually starts production and therefore infringes on the patent, but can slap B with an injunction right away. Nothing new here, folks.
Ubi solitudinem faciunt, pacem appellant.
Thanks for that. Some very good info on Wikipedia of all places. In case anyone wants the highlights:
Judicial view
Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart by noting:
" The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.
"A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."
Also, most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.
Now while some supporters of the notion might not see any particular reason for a person to need to circumvent copy protection for their own private use, when a publisher might choose to actively support it anyways, it actually ends up creating a situation where, for example, the publisher might be perfectly okay with you copying that movie to your iPad (presumably for your own private use), but when new technology comes out in a few years that doesn't happen to be all that compatible with the iPad, unless the company has had the resources to invest in keeping up with changes in technology for the purposes of utilizing their older material, a person is left being locked into only dealing with Apple stuff -- they cannot legally transfer their already purchased material to any entirely new device of a similar purpose that they might happen to acquire over time. In addition to almost openly serving the agenda of big businesses while strangle-holding the little guy, it creates a situation that, however inadvertent, ends up directing what sort of technologies can be legally developed in the future. It is my contention that ANY law that does this sort of thing is, regardless of how it might be intended to be used, a bad law, and should be stricken or completely redrafted so that this situation does not ever arise. At the very least, devices themselves that can circumvent copy protection without requiring sanctioning of the copyright holder should not be illegal. At most all that should be illegal is the act of a person that uses such a device to infringe on copyright (but here's the funny thing, with that provision, then they are already breaking a law, so outlawing circumvention serves no real purpose).
File under 'M' for 'Manic ranting'