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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"
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.