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.'"

Comments

Prior restraint?

[Pharmboy]

"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."

Isn't that called "prior restraint"?

Re:Prior restraint?

[Pharmboy]

How do you sue someone for "potential infringement"? This says they can be enjoined before they actually infringe anything. This is stomping over someone to make sure they don't do something that violates a copyright. Why not take away every teenagers computer, to prevent them from pirating in the first place?

Re:Prior restraint?

[Thanshin]

What if you take their computer and they don't infringe? Do you have to go to jail for stealing a computer?

The second question is: If you're about to take away a computer from an adolestent because he's going to infringe, but, as he then won't be able to, you're just going to steal a computer; can we put you in jail, knowing that once there you won't be able to take the computer away from the adolescent?

However, the real question for the truly enlightened is: If we do jail you because you were thinking about taking a computer away from an adolescent because he was about to infringe, if he later does infringe with a different computer... you'd have to be freed... to take the computer... hmmm... DAMN! I got lost.

These predictive laws are clearly too complex for the common minds. We should just let the corporations imprison us when they consider it's the right thing to do.

Re:Prior restraint?

[Anonymous Coward]

Clearly, the MPAA and the RIAA have combined their R&D teams and now have their own Pre-Cog Division headed by Tom Cruise. This treaty will just allow them to operate with support from the law.

Re:Prior restraint?

[Mindcontrolled]

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.

Re:Prior restraint?

[tophermeyer]

It's not truly suing, there would be no civil action or damages. It would merely be obtaining an injunction, which is basically a way for the courts to say that they are aware that you are about to do something they consider illegal and they think you should stop.

IANAL but I feel like a possible example would be for a company to file an injunction as soon as they see a torrent tracker appear for their IP. It would allow them to stop the spread of their IP without having to wait for the infringement to happen first. To me, this seems less ridiculous than forcing rightsholders to wait for years while their case is being built, argued, and considered before they can seek help from the law.

Of course, the question becomes what is the burden of proof that infringement is imminent, and what legal recourse does the alleged infringer have to continue their activities if they consider them to be lawful. Does the MPAA have the authority to file an injunction against me knowing that I possess 1) DVD movies 2) a DVD burner 3) access vie internet to DRM cracking software.

Re:Prior restraint?

[jollyreaper]

"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."

Isn't that called "prior restraint"?

Pre-crime. And your eyeballs are latent copyright infringement devices. They're gonna have to do something about that.

Re:Prior restraint?

[AnnoyaMooseCowherd]

"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."

Why not take away every teenagers computer, to prevent them from pirating in the first place?

You have only got to look at their other wish lists that include such things as "everyone should have to install spy software on their computers, to look for and delete things we think they shouldn't have", to see that, armed with this legislation, they will argue that anyone with a computer is potentially going to infringe imminently and so fair game for their legalised extortion.

If this doen't shore up the share price, I don't know what will (James Bond doesn't seem to be enough any more).

Re:Prior restraint?

[hackwrench]

I never did get why they didn't lock him out of the system once he was found to be in imminent danger of killing someone.

Re:Prior restraint?

[DJRumpy]

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.

Re:Prior restraint?

[Pharmboy]

Think about the SCO case: Perhaps SCO should have gotten an injuction to prevent anyone from distributing any version of Linux while the courts figured it all out. After all, they were claiming copyright infringement, exactly the type that would be covered in this treaty. SCO even brought the case to full fruition. This is 100% the type of case that can be subject to being enjoined. Imagine if that happened, and the judge decided that everyone that didn't have an SCO license also needed to take their Linux servers down for infringment.

The answer is to NOT have prior restraint, and sue for damages later if that is the case.

Re:Prior restraint?

[Yvanhoe]

Is that the newspeak for "thought crime" ?

Re:Prior restraint?

[Rogerborg]

Isn't that called "prior restraint"?

See the It's Coming Right For Us defence, as enshrined in the PATROIT Act. Wait... you are a patriot, aren't you?

Re:Prior restraint?

[Theaetetus]

What if you take their computer and they don't infringe? Do you have to go to jail for stealing a computer?

That's why these provisions are almost never used except in trademark infringement cases. If you seize someones truckload of counterfeit Prada shoes, you know that you didn't just steal a load of legitimate shoes, so you're not worried about a lawsuit for conversion or unfair competition.

What a lot of people in this thread don't realize is that, for better or for worse, nearly everything mentioned in ACTA already exists in US law. ACTA, like most of the treaties we have a hand in writing, is more of a way of extending US law to other countries.

Re:Prior restraint?

[rtb61]

More dangerous is the definition of what is or is not significant copyright infringement, especially when it is linked to "no direct or indirect motivation of financial gain", using P2P would be considered significant due to the number of people the infringing content is made available to and hence a criminal not a civil offence, which is their obvious intent. Now add seizure of assets "any related materials and implements used in the commission of the alleged offence", which of course could not only includes the computer but the house within which the computer was housed.

Most conspicuous in it's absence was anything related to false charges being placed and, suitable remedial penalties, for infringing free speech rights and, invasion of privacy in false investigations.

To rub salt into the wound, "Parties shall put in place a special allocation Fund to finance ACTA initiatives on capacity building and technical assistance", they expect the tax payer to pay for it all, including the cost of forcing it on "developing countries" (I would assume those a countries rich in primary resources and exploitable labour).

Re:Prior restraint?

[davester666]

Yeah, now big media just needs to get a judge to issue a mass injunction for all the clients of every ISP in the US, because they are all just about to use a P2P application...

Re:Prior restraint?

[jedidiah]

> It seems a bit of a stretch to call copyright infringement "expression"

Clearly you missed the campaign materials from the last US Presidential Election that were suppressed through the DMCA.

This isn't just some pie-in-the-sky theoretical idea. The notion that copyright interferes with free speech was acknowledged by the people that wrote the US Constitution.

Publishing "pirated" works is still publishing.

Re:Prior restraint?

[fahrbot-bot]

Several sections of the ACTA draft show that rights holders can obtain an injunction just by showing that infringement is 'imminent,' even if it hasn't happened yet.

It's handled by the Precrime unit. Tom Cruise comes out of the closet, I mean down through the skylight, and wraps a "halo" around your head...

Re:Prior restraint?

[myspace-cn]

How do you sue someone for "potential infringement"?

Let's see , I'm holding up a Hamer connected to a Marshall stack, and you tell me the words, "Smoke On the Water." And before the buuum buuum baaaa buuum buuum baaaa bah can come out the signal is cut and a lawsuit is deposited into your e-INBOX.

Re:Prior restraint?

[xelah]

How do you sue someone for "potential infringement"?

You can't, but in the UK you can already ask for an injunction concerning infringement which hasn't happened yet (including ongoing infringement). I'd be surprised if you couldn't elsewhere, too.

This says they can be enjoined before they actually infringe anything. This is stomping over someone to make sure they don't do something that violates a copyright.

It's a court declaring that a person should not do something because the court says it would infringe copyright. That's not (inherently) stomping, it's saying 'don't do the specific thing we have good reason to believe you're likely to do, because we think it's illegal'. Think of, say, a software publisher being told not to start selling the software they're about to release because it contains unlicenced stolen code.

Why not take away every teenagers computer, to prevent them from pirating in the first place?

Because that would be a stupid idea? How is it related to injunctions?

Re:Prior restraint?

[zill]

That's just too much trouble. There are hundreds of ISP in the US. Contacting all of them will take days.

When the ACTA passes they can go green by issuing a single mass injunction to solve the problem - against all Homo Sapiens.

Re:Prior restraint?

[Hal_Porter]

I particularly like the way the name ACTA sounds like a gansta version of Actor when it's Hollywood that bought it. Guess all those donations to the Democrats are now starting to pay off.

The music lobby is even more extreme. Bono said that China's censorship shows it is possible to stop file sharing. Maybe we'll see a RAPPA act that forces ISPs to do deep packet inspection to block torrents.

Re:Prior restraint?

[ubermiester]

Isn't that called "prior restraint"?

No. Prior restraint is related to original publication. I.e., "Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied."

The key word here is censorship. The govt cannot stop the original work from being published, but it can stop someone else from stealing revenue from the author. If the person who published the original work had to get permission to do so, that's prior restraint. But in this case, the work has already been published, and the treaty is attempting (with arguable side-effects), to discourage the re-publication of copy-protected works. The public is therefore not denied access to the work by the government (assuming the author is interested in sharing it). Only the alleged infringer would be affected.

If you are planning to release a Rolling Stones album, you would be stopped from doing so, and with no recourse to prior restraint because you do not own the copyright. The public can still get Rolling Stones albums, just not from you...

This does not imply approval of the treaty. I am simply pointing out that this is not an issue of prior restraint...

Re:Prior restraint?

[Mindcontrolled]

Well, obviously, this is an extreme case and would be bad indeed, I completely agree. I just wanted to point out that it is not a generally new thing. I gotta read the actual document when I got time, but what I got from the previously leaked drafts did not look that bad. I work in patent law, under a relatively sane patent system, and here it is mostly the other way around. If A gets hit by an injunction or sued for infringement, he can put it on hold by filing a countersuit questioning the validity of the patent the injunction is based upon, which is then put on hold until the legal status of the patent is clarified. Per analogy, SCO would not get an injunction as far reaching as in your scenario around here as long as the status of their claims is not clear. I am not completely certain how it is handled in the copyright business though. Anyway, I did not find the leaked drafts too scary, what I find absolutely abominable regarding ACTA is the utterly undemocratic way it is negotiated.

Re:Prior restraint?

[Pharmboy]

And my SCO analogy demonstrates it *CAN* be. This would make it easier to use an injunction as a defensive corporate tool against other companies, by claiming they are infringing on your copyright. Linus might get an injunction against Linksys (or Tivo) because they didn't publish their source code (thus, a copyright infringement), SCO against all Linux distributors, etc.

Not all "copyrighted works" are movies and songs.

Re:Prior restraint?

[westlake]

Isn't that called "prior restraint"?

The problem here is that the words aren't your own. They belong to someone else.

Freedom of speech doesn't imply the freedom to publish - or threaten to publish - someone else's work without their permission.
 

Re:Prior restraint?

[ObsessiveMathsFreak]

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.

It's safe to say those days are long gone. The courts care far more about order and the rights of corporations now. Rights for individuals are ignored as they aren't needed to protect the rights of the powerful, who act through corporations.

Re:Prior restraint?

[DJRumpy]

Although as a general rule I agree that the courts seem to be very corporate friendly lately, I don't necessarily think it's a given that they would go with this full steam ahead. ACTA has been soundly trounced in the UK, and I hope that the congress follows suit in the US now that the details are out and published. They could resist weak consumer protections and effect change before it's ratified. There is already a very strong anti-government sentiment in the US that would be hard to ignore with elections so close, which may be a factor as well when it comes down to the wire.

Re:Prior restraint?

[dryeo]

What I don't understand, not being American, is why the first amendment does not override copyright. My understanding is that the amendments modify the US constitution so you can have an amendment changing the method of appointing senators and the amendment overrides the original text of the constitution.
The first amendment is pretty clear that congress can not make a law restricting speech yet copyright is a law passed by congress that restricts speech eg can not quote the words to happy birthday.

Re:Prior restraint?

[ubermiester]

And my SCO analogy demonstrates it *CAN* be. This would make it easier to use an injunction as a defensive corporate tool against other companies, by claiming they are infringing on your copyright. Linus might get an injunction against Linksys (or Tivo) because they didn't publish their source code (thus, a copyright infringement), SCO against all Linux distributors, etc.

Not all "copyrighted works" are movies and songs.

What exactly does any of that have to do with prior restraint?

Getting a judge to issue an injunction against someone else reproducing your work illegally is not prior restraint. Prior restraint would be getting a judge to block an innovation by another company (that did not infringe on any patents/copyrights) simply because it would hurt your bottom line. What grounds would the judge have for such a move?

That said, I see your point about frivolous suits, but is it really that common? Even if you (disingenuously) claimed that an innovation is actually an infringement, and got a sympathetic judge to go along with it, you'd still have to spend many thousands if not millions to prove it in court. SCO was a high profile case because of the tech involved (*nix), and they had financial backing from MS. And because they were fighting over *nix, billions were at stake. This is not the norm. Most cases are about plain old piracy.

The treaty is simply trying to address the problem of a company profiting from the sale of bootleg movies/music/books/software/etc, getting shut down after making millions (paying little if any penalty), and then starting up with a different name somewhere else. By allowing for injunctions BEFORE they start selling, there would be much less incentive to even try.

Re:Prior restraint?

[nospam007]

"Isn't that called "prior restraint"?"

No, it's 'preemptive strike', your freedom is 'collateral damage'.

Re:Prior restraint?

[Solandri]

IIRC, SCO never explained what parts of Linux they thought were infringing. They basically bluffed to buoy their stock price until certain shareholders could unwind their positions. A court would never grant an injunction on such flimsy evidence.

At the opposite extreme, consider a person whose SO shoots a private sex video of them. Then they break up, and the ex-SO threatens to release the video on the Internet. Your position that there should never be prior restraint means the victim in this case has to wait for the video to be released, then sue for damages. Prior restraint allows a court injunction to prevent the ex from releasing the video in the first place (at risk of great penalty).

Re:Prior restraint?

[tnk1]

Pre-crime. And your eyeballs are latent copyright infringement devices. They're gonna have to do something about that.

In the land of the blind, the MPAA is King.

Re:Prior restraint?

[Smauler]

Copyright is a direct restriction on free speech. It's always been so, and (probably) always will be. Most Americans believe the advantages gained from their copyright laws outweigh the restrictions on their speech. _Some_ Americans are deluded enough to believe they have the absolute right to free speech except for shouting fire in a crowded theatre, but they are not in the majority.

Absolute free speech is far from desirable.

Re:Prior restraint?

[Smauler]

Freedom of speech doesn't imply the freedom to publish - or threaten to publish - someone else's work without their permission.

Freedom of speech does not only imply that, it expressly allows that, by its very name. If there are restrictions on freedom of speech, it is not freedom of speech. Freedom of speech is nonexistant in any current society, and for good reason IMO. This weird definition of "freedom of speech" that some people have that has loads of caveats is not freedom of speech, it's purely demarcation of allowed speech in certain areas. The sooner people get used to the fact that speech is restricted _all the time_, the faster society will get better.

Re:Prior restraint?

[elgaard]

That is exactly the point. It do in fact override prior restraint.

McCain could have published his campaign ads on his own webpage (and maybe he did).
But it just does not have the same impact as Youtube.

Google could have chosen to keep McCains videos on Youtube. But then they would loose the DCMA safe harbour proctection because they did fnot ollow the DCMA provisions.
Which could be really expensive for a big company like Google, and why would they risk that for McCain.

So in principle there is not prior restraint. In practice the provisions works just like a prior restraint.

Now DCMA is USA and for hosting and searches.

ACTA and other new initiatives expand this principle to the rest of the world and includes also ISP's and all kinds of services on the internet. I.e., the common carrier status is undermined.

Instead of introducing prior restraint you make everyone liable for every single bit that passer thought their servers, routers, software of cables. They you make exemptions based on certain criteria.

In Denmark they just proposed a new law regulating gambling. They just make ISP's, DNS-servers, etc liable for letting Danes gamble on sites, that are not registered with the danish government (and thereby paying taxes). But you are exempt from the liablity if you block access to sites when requested by the government.

It is just a loop-hole to introduce prior restraint.

Re:Prior restraint?

[makomk]

Take the US helecoptor video footage of the army murdering a journalist. It's obviously newsworthy, and in order to be able to communicate just how bad their actions are the media needs to be able to show the actual video. Now as it happens, that probably wasn't copyrighted - but if it was another countries' army doing the shooting, or a private contractor, then it would be and ACTA would require that the perpetrators of those murders could get an injunction preventing publication.

That's prior restraint. In fact, it's common for newspapers and other news sources to have to reproduce parts of copyrighted material whose copyright holder is hostile in order to report effectively.

Re:Prior restraint?

[makomk]

Getting a judge to issue an injunction against someone else reproducing your work illegally is not prior restraint.

What if your work is a report showing you knowingly and deliberately dumped toxic waste illegally in the third world in order to save money, and it killed people? Or a video of you murdering a journalist in cold blood? (Granted, the latter's technically not copyrightable because it was produced by the US military, but still. The former is not a hypothetical issue, by the way.)

Re:Prior restraint?

[ubermiester]

Both scenarios are covered under whistleblower exemptions in both the treaty and common law. Wikileaks does it regularly,and journalists are exempt from copyright restrictions anyway when pure reporting is the context.

this treaty is about piracy, plain and simple.

Re:Prior restraint?

[makomk]

journalists are exempt from copyright restrictions anyway when pure reporting is the context

Nope, they're not. Use of copyrighted material may count as fair use (if such a thing still exists by then) but that has to be determined by a court. Which gives the offenders, at the very least, a nice delaying tactic to discredit the info, the source or the journalists - or just to spin the story, possibly even giving one of the competing news organizations a nice exclusive (this has been done before with court injunctions).

"Imminent infringement"

[dsavi]

How convenient.

Re:"Imminent infringement"

[TheVelvetFlamebait]

No. Really, no.

Give the courts some credit. They've had plenty of practice ignoring arguments that rest solely upon taking well-defined terms and blowing them out of proportion.

Re:"Imminent infringement"

[xelah]

Why would a film studio seek an injunction against a cinema to stop it showing a film when the studio has just agreed to accept money from the cinema in exchange for being allowed to show it? Why would a court be so stupid as to issue an injunction if they did?

provisions on software patents

[ciaran_o_riordan]

I've read the text and made a summary of how this affects software patents:

• news.swpat.org: ACTA draft text officially released

For introductory info, here's other info I've gathered over the past months:

• Anti-Counterfeiting Trade Agreement overview
• ACTA and software patents
• 201001 acta.pdf as text - this is the complete leak of the January text. It's still useful because it has each proposal tagged with the country that proposed it. These tags have been scrubbed in today's official version.
• ACTA-6437-10.pdf as text - this is slightly incomplete, but in addition it contains comments from the EU negotiator.

infringement is "imminent,"

[PolygamousRanchKid]

So we should lock folks up not because they have committed a crime, but because they might commit a crime in the future.

Buy stocks in companies that build jails . . .

Re:infringement is "imminent,"

[elrous0]

Well if Tom Cruise believes in it, it must be right.

Re:infringement is "imminent,"

[houstonbofh]

So we should lock folks up not because they have committed a crime, but because they might commit a crime in the future.

Buy stocks in companies that build jails . . .

So... Lets lock up the *iaa now. Yes I know they have already committed crimes, but it will be easier to prove that they are about to.

And while we are at it, the house and the senate as well.

Re:infringement is "imminent,"

[Richard_at_work]

There are already plenty of laws to that effect - conspiracy is one of them, you do not necessarily have to commit the crime you are planning, so long as you plan it together with someone.

Re:infringement is "imminent,"

[Pharmboy]

Don't the Brits already do something like this? ASBO? Some other acronym that reduces down to "punish you efore you commit a crime"?

At the very least Greorge Orwell wrote about this happening in Oceania. Did you hear? They are at war with Eastasia.

Re:infringement is "imminent,"

[Pharmboy]

In the USA, simply conspiring isn't illegal unless you have also performed at least one overt act in furtherance of that agreement. Few people are ever punished for simple conspiracy, unless the final act has been done. In most convictions, there is only enough evidence to convince the lesser participants of conspiring (buying the gun, driving the getaway car) and not doing the actual act (murder, robbery). Even with terrorism and paranoia that follows, people have generally had to have shown they bought the fuel oil and fertilizer (or equivalent deed) to get a conviction. There are obviously exceptions, but they are more rare than mystery novels would have you believe.

Re:infringement is "imminent,"

[Richard_at_work]

In the USA, simply conspiring isn't illegal unless you have also performed at least one overt act in furtherance of that agreement. Few people are ever punished for simple conspiracy, unless the final act has been done. In most convictions, there is only enough evidence to convince the lesser participants of conspiring (buying the gun, driving the getaway car) and not doing the actual act (murder, robbery). Even with terrorism and paranoia that follows, people have generally had to have shown they bought the fuel oil and fertilizer (or equivalent deed) to get a conviction. There are obviously exceptions, but they are more rare than mystery novels would have you believe.

Actually, if you read the Wikipedia article it says that the Supreme Court has ruled 'common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis.', and indeed several statutes have been ruled to not require overt step.

Also: 'Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific person to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law.' from the Wikipedia article, under the US section. State jurisdictions differ on requirement of an overt act or step.

Re:infringement is "imminent,"

[Yvanhoe]

Buy in those that sell pitchforks and torches.

Re:infringement is "imminent,"

[Hurricane78]

Why do you think Haliburton was and is massively building jails?
Sorry, but I think this time there really is a bigger plan behind all this.

Re:infringement is "imminent,"

[MachDelta]

As I understand it, you can only get an ASBO *after* you've engaged in delinquency. So if you keep doing lots of stupid little things that won't always result in prosecution, they can sort of lump them all together and then slap you with an ASBO. It's retroactive punishment for minor offenses, with the intent of reducing further offenses. More like probation than pre-crime.

Re:infringement is "imminent,"

[CrimsonAvenger]

As I understand it, you can only get an ASBO *after* you've engaged in delinquency. So if you keep doing lots of stupid little things that won't always result in prosecution, they can sort of lump them all together and then slap you with an ASBO. It's retroactive punishment for minor offenses, with the intent of reducing further offenses. More like probation than pre-crime.

From Wikipedia:

An Anti-Social Behaviour Order ASBO (pronounced /æzbo/) is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour in the United Kingdom and in the Republic of Ireland [1]. The orders, designed originally by Tony Blair in 1998[2], were designed to be imposed after minor incidents that would not ordinarily warrant prosecution[3]. The orders then restrict behavior in some way, by prohibiting a return to a certain area or shop, or by restricting public behavior such as swearing or drinking. As the ASBO is a civil order, the defendant has no right to evidence that might disprove the assertions of the plaintiff, though violating an ASBO can incur up to five years imprisonment.

So, you can't present evidence in your defense, and you can get 5 years for a violation. And the original offense didn't warrant prosecution.

Sounds more like pre-crime than probation to me....

Re:infringement is "imminent,"

[jonwil]

These provisions are specifically aimed at cases where the rights holder (or an agent authorized by the rights holder) has evidence that someone is likely going to infringe but has not yet done so. It then allows the rights holder (or agent) to obtain an injunction against the potential infringer.

Re:infringement is "imminent,"

[blai]

I'll start making caskets.

New Technology

[carp3_noct3m]

Since the majority of us have very little control over this, for various reasons, if this is going to pass or not is mostly up to those negotiating it, not our public uproar. That being said, I'm at the point where I think that the future of the net will be a very divisive one, where most of the sheeple are herded around to only a few pastures, but the hackers among us will find increasingly clever and more numerous ways to farther decentralize, encrypt, and generally help privacy. I'm not for ACTA, but I'm all about new technology that can end up protecting netizens. Cecked out wikipedia, anything that has listed as concerns the following should be extremely closely looked at, Secrecy of negotiations, threats to freedom, legal scope, practicality, privacy.

Re:New Technology

[Yvanhoe]

But instead of building the future, so much brilliant minds are busy correcting the present. I do not find this acceptable or desirable. Yes, this might lead to a friendly clique taking power, so what ? Couldn't we go forward without it ?

Re:Stop being a criminal.

[Pojut]

Not even to mine? http://last.fm/music/pojut ::sniff sniff:: You make me a sad panda. /shameless self promotion

Re:Stop being a criminal.

[Errol backfiring]

Well, if the law starts breaking the law (like privacy laws here), things start getting really messy!

Re:Stop being a criminal.

[Thanshin]

Actually, you don't have to stop being a criminal; what you must stop is to be going to be a criminal.

If you're not going to be a criminal, you've got nothing to fear.

This kind of law is the only way to stop going to be criminals. I hope all going to be criminals go to jail as soon as possible.

What I'm afraid of, now is what can we possibly do against those insidious people who will be going to be criminals in the future.

Think of the going to be going to be criminals! They're going to be going to harm your child! Probably!

Too much hysteria from the peanut gallery.

[Anonymous Coward]

http://www.theregister.co.uk/2010/04/21/acta_draft_issued/

The register has one of the few reviews of this draft that doesn't resort to mindless hysteria. Makes for a good read.

Re:Too much hysteria from the peanut gallery.

[hibiki_r]

I wouldn't call it a review of the draft: It doesn't really say all that much about it. Most of the text is spent insulting those that disagree with the author's views.

Who knows, he might be right, but the text doesn't really resemble a good review.

Re:Too much hysteria from the peanut gallery.

[Spad]

Yes, but Andrew Orlowski is an idiot with a massive hard-on for the creative industries and a disklike of anything created by us plebs (like Wikipedia) - just read his back-catalog to see some of his rants again the "freetards".

[...]ACTA is plurilateral, and voluntary[...]

Purely voluntary for the governments who are currently negotiating it and have gone to great lengths to conceal its details from their voting public you mean?

Re:Too much hysteria from the peanut gallery.

[Sockatume]

That sounds more like The Register I know than the GP's comment. :p

Re:Too much hysteria from the peanut gallery.

[Blue Stone]

Orlowski, the author, used to be a really interesting, insightful and entertaining journalist a few years ago, but at somne point he strayed over the guide rails and wandered off into the land of peurile labels and trolling where he transformed into Orlowski the Insult Comic Tech Journalist (where he is the joke rather than the joke-maker). Shame - when he makes the effort to not rely on such easy angles, and tries to be fair, he's still capable of very good writing. (Many of his articles at the Register don't even have comments enabled, because readers tear apart his lame biases and flamebait in seconds).

I guess the Register keeps him on, doing his schtick, because people want to see what crap he's spouting this time, and that results in page-views.

Re:Too much hysteria from the peanut gallery.

[jedidiah]

If he's the one that coined the term "freetard", then clearly you can't really trust anything he has to say on this matter.

All the DMCA does is prevent people from managing their DVD collection with iTunes.

This hands a nice effective monopoly to Apple but not much else.

Re:Too much hysteria from the peanut gallery.

[Falconhell]

It is an insult to real journalists to call Orlowski a journalist. He specializes in publishing every loony climate change denial theory as if it were fact.

He is a hopelessly biased writer who does not have the courage to allow comments on most of his posts.

ElReg has become a typical British tabloid, with no crediblity at all. Their forum is censored to remove any crticism of ElReg and its staff.

What rights?

[Pewpdaddy]

I love the assumption of guilt. Welcome to America "Land of the free, home of the guilty." Theres only 6 billion citizens, if 100,000 of them commit "Copyright Infringement" we must punish the masses.

Re:What rights?

[Em Emalb]

This isn't just about the US. This affects everyone in every country that is considering signing the treaty.

Re:What rights?

[thatskinnyguy]

In a court of law, as a defendant, they may say the burden of proof is on the prosecution. When in fact, you have to prove your innocence. I don't like it, but that's the way things really are.

Also, if you don't like someone, all you have to do is accuse them of something like copyright infringement and that could equate to instant financial ruin from having to pay attorneys and court costs. EVEN IF THERE IS NO PROOF

What I would like to see is someone anonymously accuse a phantom of copyright infringement and have the RIAA waste their time and resources on prosecuting a fiction, or a dog, or a dead person.

Re:What rights?

[TheLink]

That's why he said 6 billion?

Re:What rights?

[Culture20]

Theres only 6 billion citizens, if 100,000 of them commit "Copyright Infringement" we must punish the masses.

If you don't like it, you've got the 100,000 to blame. New topic; the monthly shipment of soap and socks has arrived. Collect your soap and socks, then it's lights out at 21:00, ladies. We've got a twenty mile hike at 05:00.

Re:What rights?

[cdrguru]

The population of the US is around 330 million, not 6 billion.

Only around 50% of the US has access to high-speed Internet connections in their homes. Pirating at the library doesn't really work so good. You can believe that with 165 million potential pirates that at least 50 million of them are actively pirating media, mostly music.

I don't think I know anyone that would ever pay a dime for music ever again. Movies are on their way out as something to pay for as well, but NetFlix is pretty cheap still.

Every day in schools all across America children are taught that it is wrong to give people money for what can be freely downloaded from the Internet. The teachers pirate software for classes, the students use school computers to download stuff. The children then can go home and show Mom how she can get her favorite songs on her iPod for free. She is of course amazed at the "power of the Internet" and how smart her children are.

Do you really think things can continue this way? The business model of selling a product seems to be completely outmoded today. You wonder why stores no longer have displays outside on the sidewalk? It is because people would just take stuff, just like they have found they can just take stuff on the Internet. I guess this is the "new business model" that people keep talking about.

Re:What rights?

[Omestes]

Do you really think things can continue this way?

Nope. Eventually the big corporations will learn to stop fighting and learn how to cope with "new" technology. If not, then I won't mourn their death. These big corporations elicit zero sympathy from me, they served their purpose, crapped on it, and now are outmoded by technology. Boohoo. Publishing should now be a game with only two players, the artists and the consumers. If your business model requires endless litigation, lawyers, and acts of congress to survive, you are fighting against the inevitable. If your business model requires stomping on the rights of your customers, then you should just die.

As long as there is culture, there will be producers of arts and music, whether or whether not they get to sign to mega-corps, and whether or whether not they are granted eternal protection of a mere idea. Hell, even if every single man, woman, and child in the entire world stopped buying music, music would not die. Musicians (as a whole, discounting the very very large ones) might even benefit from the death of the publishing industry.

I, as a citizen, have no obligation to help you make money. And your profit margin is far less important than my rights.

Currently I have nothing against much of what is considered piracy, it is to a large degree a victim-less crime. Me downloading the full works of Elvis doesn't hurt a single person, nor could Elvis ever benefit from my purchase, so I have a hard time seeing a moral or ethical component behind the restriction from doing so.

You wonder why stores no longer have displays outside on the sidewalk? It is because people would just take stuff, just like they have found they can just take stuff on the Internet. I guess this is the "new business model" that people keep talking about.

Odd, many stores around here still have signs on the sidewalk. The main reason the practice is dwindling is because small business has largely been replaced by giant, mindless, corporations.

If I could walk into a grocery store and make a perfect molecule for molecule copy of a carrot, I would do it without a second thought. The store keeps their carrot, and I get a carrot, seems win win to me.

Fair Use?

[PolyDwarf]

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"

Re:Fair Use?

[Theaetetus]

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"

Nope, that's exactly how the law works right now. It's basically a rephrasing of the DMCA. Under current US copyright law, you are allowed to make a backup copy of a DVD for your own personal use. But, under the DMCA, you can't trade DeCSS. The argument "but DeCSS has substantial non-infringing uses, like backups and playing DVDs under Linux," doesn't work because the DMCA specifically bans circumvention measures, regardless of their non-infringing uses.

Note: this is not an endorsement of the current state of the law, merely a description of it, and is merely to point out that ACTA isn't making fair use go away... it doesn't actually change current US fair use law at all. The DMCA was responsible for that.

Re:Fair Use?

[PolyDwarf]

I know about decss.. I read the blurbs more as a way to end-run an outlawing the Betamax decision.

Re:Fair Use?

[Theaetetus]

I know about decss.. I read the blurbs more as a way to end-run an outlawing the Betamax decision.

The blurbs don't do anything more than the DMCA did. If the DMCA outlawed the Betamax decision, then this would too. But the DMCA didn't.

Re:Fair Use?

[Culture20]

But, under the DMCA, you can't trade DeCSS.

ACTA would ban "the unauthorized circumvention of an effective technological measure."

Under ACTA, you can't write and/or use a DeCSS equivalent? That's worse than DMCA's non-distribution limitation.

Re:Fair Use?

[Theaetetus]

But, under the DMCA, you can't trade DeCSS.

ACTA would ban "the unauthorized circumvention of an effective technological measure."

Under ACTA, you can't write and/or use a DeCSS equivalent? That's worse than DMCA's non-distribution limitation.

No, it isn't. I think you're misreading the DMCA:
ACTA:

Each Party shall provide for adequate legal protection and effective legal remedies, in the form of civil remedies or criminal penalties in appropriate cases of willful conduct, against the circumvention of effective technological measures that are used by authors, performers or producers or phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonogram. These shall apply to:
(b) the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.

"Oh, no, it bans manufacture, not just importation and distribution! That's much worse than the DMCA!"

DMCA sec 1201(a)(2)

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; [or] `(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title

DMCA bans manufacture, too.

I think the point you're getting at is that the DMCA isn't applied to people who code their own DeCSS equivalent but don't distribute, because then they're not engaging in interstate commerce and federal law doesn't apply. ACTA, if enacted, is also federal law, and similarly wouldn't apply to personal manufacture without interstate distribution.

Re:Fair Use?

[Jason Levine]

Who defines "effective?" I guarantee that it won't be you or me. It'll be the media companies. It won't matter how useless the measure really is, they'll push the courts to rule that that it is effective. It'll be circular reasoning. You can't legally use the tool to break it because the encryption's effective. It is effective because there's no legal tool to break it.

Re:Fair Use?

[slashqwerty]

Constitutionally, I think the official justification is that this falls under the Copyright clause, not the Commerce clause.

In Universal v 2600, Universal argued just the opposite. They claimed it was obviously enacted under the commerce clause. The intellectual rights clause "Authorizes Protection for 'Writings,' Not Prohibition of Technologies Regardless of Originality, Duration, or Infringement".

This draft is so

[damona]

This draft is so vague I don't even know when I am supposed to feel angry or sad.

Arrest all content producers

[bigrockpeltr]

Content producers will then be arrested for their own good work. If they create good enough content then they cause (imminent) copyright infringement.

Re:Arrest all content producers

[TheVelvetFlamebait]

Ah, but they have their own permission to cause the imminent infringement of their own copyright!

Seriously though, the courts aren't that stupid. The words themselves aren't the law, but the well-established meanings behind them. So, taking a word like "imminent" and hyperbolically extending it to mean "probable; sometime in the next century or two" does not alone mean the law is ripe for abuse. The courts can tell the difference between between two vastly different applications of the word "imminent".

Translation?

[cvnautilus]

"Each party shall provide that its judicial authorities shall have the authority at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right. Each party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods." Um...What?

Re:Translation?

[Theaetetus]

"Each party shall provide that its judicial authorities shall have the authority at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right. Each party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods."

Um...What?

"Each party" - each signatory country to the treaty
"shall" - must
"provide that its judicial authorities shall have the authority at the request of the applicant, to issue an interlocutory injunction" - give its judges the power to, at a copyright/trademark/patent owner's request, issue a preliminary injunction. The judges do not have to issue the injunction, but they must have the power to do so.
"to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]" - the applicant must show a strong likelihood of imminent infringement. Note the bracketed part - this may end up only applying to copyright and trademark infringement.
"An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right." - The owner of the rights at issue can also ask the judge to stop a third-party distributor, like Youtube, from distributing their copyrighted work. Again, this just requires that countries give judges the power to issue these injunctions, but doesn't require the judge to go along with it.
"Each party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods." - This is called an 'Anton Piller order' and has existed in trademark law for about 40 years. It stems from a case by the same name in which a German electronics design company contracted with an English manufacturer to build their designs. The German company send them plans, blueprints, schematics, etc., and things seemed fine... until the German company suddenly discovered (from two whistleblowers in the English company) that the manufacturer was selling the plans to another German company! The design company knew, from the whistleblowers, that if they filed suit, the manufacturer would just destroy all of their records. So, they went to court and got an order to go with police to the manufacturer and seize records, schematics, and blueprints with their name on them.
Anton Piller orders have also been used in trademark cases - Coach finds out that a factory is producing counterfeit Coach bags, for example, and they know that if they file suit, the counterfeiter will simply destroy all the evidence and records. So, they get a Piller order to go, with the police, to the factory and seize the evidence. They don't get to keep it - it's retained by the court or the police, to be preserved for trial.
To prevent abuse of the system, Piller orders frequently require that the plaintiff put up a cash bond. If you're going to seize someone's records, which may put them out of business, you have to put up a bunch of money. If you're wrong about the counterfeiting, you owe them the money.

So, in summary, this paragraph is simply a restatement of the current law.

Re:Translation?

[Culture20]

"Each party shall provide that its judicial authorities shall have the authority at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right. Each party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods." Um...What?

Any countries signing the treaty agree to make laws so their police forces must seize any goods that *AA thinks might possibly be imminently infringing. ? I am not a lawyer.

Re:Translation?

[Mindcontrolled]

Careful, this is slashdot. Informed reading of legal code will drown in the "they gotta seize all computers", "precrime-nazi" and "using the net will be illegal" - spam. In general I didn't find much in the leaked drafts that was out of the ordinary compared to current IP law.

Re:Translation?

[Theaetetus]

Careful, this is slashdot. Informed reading of legal code will drown in the "they gotta seize all computers", "precrime-nazi" and "using the net will be illegal" - spam. In general I didn't find much in the leaked drafts that was out of the ordinary compared to current IP law.

True enough.
My reading is that it pretty closely mirrors the Paris Convention, with some additional changes based loosely on the DMCA and some modern trademark law. Essentially, this won't change US law much, if at all, while it may significantly change IP law in Mexico, South America, China, etc.

ugh

[apricotmuffins]

Imminent copyright infringement? Why don't they just take down the sodding internet already.

Not a big change

[Theaetetus]

"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."

Isn't that called "prior restraint"?

This already exists in trademark law. There are even things called Anton Piller orders (after a famous case) that allow you to seize infringing goods before you even file suit, to prevent the other side from destroying all the evidence once they get your complaint letter.

Note, in many countries, getting a preliminary injunction or a Piller order requires the plaintiff to post a pretty substantial bond. And if it turns out that the other side is doing nothing wrong, they get that bond. This prevents you from using the process to destroy someone's business.

Re:Not a big change

[Pharmboy]

Trademark != Patent != Copyright.

As I point out in a post below, just imagine if the judge in the SCO case used this treaty as a basis, then he could have enjoined anyone from distributing (or using) Linux that didn't already have an SCO license. It *was* specifically a copyright issue, just like this treaty covers.

Re:Not a big change

[Theaetetus]

Trademark != Patent != Copyright.

As I point out in a post below, just imagine if the judge in the SCO case used this treaty as a basis, then he could have enjoined anyone from distributing (or using) Linux that didn't already have an SCO license. It *was* specifically a copyright issue, just like this treaty covers.

Yes, and? The judge in the SCO case had that ability already. The treaty doesn't require judges to issue injunctions, and they're still appealable. All the treaty requires is that judges have the power to issue injunctions. This basically forces some countries that have weak judicial powers to beef up them up.

Re:Not a big change

[Pharmboy]

Prior restraint is something that is looked down upon in our judicial system, something that should only be used in the most extreme cases, and with damn good cause and serious consequences without the restraint. This treaty gives another point of authority for it, and justifies it under more moderate situations. MPAA/RIAA's life or liberty is not being threatened when someone infringes (so sue them), but when someone is restrained in this fashion, all too often their liberty is.

In the SCO case (and other potential future cases), prior restraint would have caused havok and great financial burden on many, many people, and in the end, the company/person making the claim LOST the case. Prior restraint can (and will) be used, not to prevent loss, but simply to put a chilling effect on free speech and fair use.

You are correct, we can already use prior restraint in the US where it is appropriate, and it is already abused enough as it is. The countries that don't, that is their decision. Make it easier to use it is NOT "a good thing", particularly for free speech.

It's precrime + Nazi laws that can lead to lockup

[Joe The Dragon]

It's precrime + Nazi laws that can lead to lockup just for being some who want to speak up as a law like that can make easy to cut off any one who may even thing about trying to say something bad about some on in power.

At least the constitution does not let stuff like that happen.

But in places like china they can then just use the ACTA to get a way with it.

Warehousing prisoners as an industry

[SgtChaireBourne]

Buy stocks in companies that build jails . . .

There you hit the nail on the head. Once the US moved to a privatize prison system, we ended up with an economic incentive to increase crime while at the same time jacking up penalties for increasingly trivial non-white collar crime. We also now have a whole industry related to shipping, importing, exporting and warehousing prisoners across state lines and even from one region of the country to the next.

Re:Warehousing prisoners as an industry

[Shakrai]

Once the US moved to a privatize prison system

Huh? I know there are a handful of US States that have experimented with this but they are in the minority. Most US States and the Federal Government still run their own prisons.

Re:Warehousing prisoners as an industry

[SgtChaireBourne]

Huh? I know there are a handful of US States that have experimented with this but they are in the minority. Most US States and the Federal Government still run their own prisons.

Even using data from 1999, that is not true: Prison privatization in just one instance of corporate welfare. By itself it skims many billions of dollars and actually creates many societal problems. From the student paper linked there you can see that the main argument for privatized prisons is a circular argument.

Need for incarceration is an indication that something failed and needs to be fixed in how society builds its communities and cultivates citizens. Corrective action never is more cost effective than prevention. Happy, well-adjusted, well-fed, individuals busy doing useful things that they find interesting aren't going to get into crime.

how many people who do real robberies will get les

[Joe The Dragon]

how many people who do real robberies will get less time then file downloads?

So I can get less time by robbing apu then I get by downing a CD / moive?

Powerless

[Adrian Lopez]

Countries negotiate away our rights with impunity, the reason they get away with it being that citizens -- myself included -- have neither the guts nor the means to stage an armed uprising against today's leading governments and often have no clue what's going on anyway. Is there any hope for freedom in a world where the powerful conspire to restrict it against the best interests of the people?

Re:Powerless

[Dunbal]

the reason they get away with it being that citizens -- myself included -- have neither the guts nor the means to stage an armed uprising against today's leading governments

      Living conditions have to get pretty shitty before we start thinking it's worth getting our heads blown off. Much, much shittier than this. However sadly you are right - every time the government makes a law, it takes away a little bit more of your rights. The world today is vastly different (and more restrictive) than the world I knew 40 years ago.

Re:Powerless

[BJ_Covert_Action]

Is there any hope for freedom in a world where the powerful conspire to restrict it against the best interests of the people?

Well, this isn't the first time the world's been in this situation. For reference, please see the British Empire, French Empire, Roman Empire, Japanese Empire, German Empire, Aztec Empire, Inca Empire....and so on.

Of course, all of those came crashing down eventually. However, the combined circumstances that brought about such demises were neither pretty, nor easy to live through. There was blood. There was starvation. There was disease. There was death. So that's a good point to keep in mind as well.

Oh, one more thing, regarding the title of your post. You are not powerless as a citizen. It may seem so. It may seem any struggle you make day by day is done in futility and easily wiped away by the powers that be. That doesn't mean you are powerless though. That means that your actions, indeed, have some power. Otherwise the powers that be wouldn't go through the trouble they do to repress such actions (see, for instance, mass media smear campaigns against the people, large corporate conglomerates attacking their customers via lawsuits and other avenues, the cessation of your civil liberties at a given protest or rally, etc.) If you were powerless, truly powerless, then whatever power was in charge of the world wouldn't even bat an eye at your actions.

That said, while you may feel hopeless or depressed, stick it out anyways. As a citizen of this world, and as a human being and member of this species, it is not only your right to stand for what you believe in, but your duty. So when your letters to Congress get ignored, write more. When your votes get tossed out the window, vote in the next election, and actively campaign against the evils you see. When your rights are tread upon by the law, break the damn law, and confess to such transgressions with your chin held high in the courtroom. When this world shoves a truckload of hopeless shit into your future, go grab the shovel and start throwing it back into the very truck that dumped it. Yeah, it will be hard. Yeah, it is a pain in the ass. Yeah, it is a lot easier to sit down and watch TV after work instead. But that doesn't mean you are powerless. That means you have to square your shoulders, puff up your chest, clench your jaw, and level your gaze at the darkness of this chaotic reality and meet it, proudly, as a man (or woman) with ferocity and vigor.

And if it boils down to an armed uprising and a bath of blood for the streets, then clench your rifle, level your arm, steady your hand, and do your part. As a human being you, and I, and all others owe it to ourselves, to our children, and to our future as a species to stand proudly, strongly, and with dignity for those things we hold dear: things such as freedom, equality, safety, and community. Strong men and women have toiled and died for these things in the past. If today's world calls on you to do the same, then shy not away from the darkness in shame. No, stand strong, and bear the lineage of humanity that rests on our shoulders with pride. We are the shapers of the future of this species. Upon us rest the hopes and dreams of every generation that preceded ours. Let us do them proud.

Re:Powerless

[seekertom]

BJ_Covert_Action i wonder... do YOU own a gun? would YOU shoot a cop who just came by to arrest your 12 year old because he just unlawfully downloaded a ton of copyrighted stuff.... see what i mean? it ain't that easy. what you say is true, right up there with 'give me liberty or give me death', but do i really hear YOU repeating those hallowed words and meaning it.....? so, in the long run, maybe we ARE powerless at this point. after all, we're already at the point where the govt can disappear you way or another, take everything you've got and lock it all up in some warehouse. think about this scenario... we get to the point of open rebellion (because all other legal avenues of conduct have failed) and 1) martial law is declared, 2) the Constitution is set aside and in its place sits the commander-in-chief (remember him?) 3) all interpersonal communication is shut down, cell phones, the internet, 4) food, fuel and power is cut off from the masses. can ya think of any other thing we'd need on a daily basis for survival? prob'ly that'll be gone too. get seriously sick? cars and trucks dam the roads, so how are ya gonna get to the hospital? so, wanna re-think it? right now we are in the hands of our government. if there are some up there who really believe in our American way of life, they will find a way to fix it from within. if we don't keep after them, they won't even try. even if we do OUR part, they still may not do theirs. o well. kiss yer bloomin' arse bubye! but i, for one, am still hopefull, just not very optimistic. thanks fer lis'nin' seekertom

this is a declaration of war

[circletimessquare]

on your rights, on your freedoms, and on the richness of your culture

not by artists, but by an entrenched oligopoly of a dying distribution network (replaced by the internet)

the proper response to this declaration of war is not via legal means. all legal means have been corrupted bought and sold by entrenched corporate interests

the proper response is complete subversion of all media on the internet

we can't beat them in the legal arena. not because our legal arguments are inferior. indeed, they are superior. but we can't compete on the same playing field in terms of financial influence over our legislative bodies

so we will instead starve these assholes to death by destroying all of their sources of income: complete ubiquity of their media on the internet, free and higher quality (no DRM) than their locked up bullshit that only punishes the common man (it certainly doesn't punish pirates)

let the war being: tens of millions of poor, technological sophisticated, and media hungry teenagers versus a couple thousand lawyers

it's going to be a rout and we're going to win this war, by destroying these corporate interest that impoverish our culture and imperil our rights and freedoms by draining their finances

it is no longer good enough to merely ignore this bullshit. it is incumbent upon anyone with a sense of morality to outright destroy media corporations for the crimes they are inflicting on our cultures

Re:this is a declaration of war

[cdrguru]

If you believe the "right to consume" overrules all, then yes, this is a declaration of war.

The fact that it is now possible to make sure that one copy of any work release digitally (software, movie, book, music, etc.) is sold and everyone on the planet with an Internet connection has it for free. No Internet today clearly equals no right to pirate, no right to consume.

Personally, I think the only solution for this to not have ACTA, not have any copyright enforcement and push everyone to the model where it is all free now. We will still have "entertainment" but it will be either ad-driven or user-generated.

The ad-driven stuff will be truely vile. AM radio in the US is pretty much 55 minutes of ads per hour of programming. You can expect corporate sponsors of entertainment media to pretty much go down that road in order to get compensated for production costs. Then "piracy" will be irrelevent - you will actually be doing the corporate masters bidding by downloading, collecting, and redistributing.

User generated seems to be the absurd hope of people. I suggest Darwin (Misha) Reedy as a good example of what user-generated content can be. Search for her on YouTube and you will see a really good example. User generated content is created because the user has a huge ego and likely as not all out of proportion to their talent. But negative reviews never affect people like that - they know they are the greatest gift to humankind ever and to deprive humankind of their talent would be a crime.

But with more people in jail then less tax money t

[Joe The Dragon]

But with more people in jail then less tax money to pay for it.

Will things get so bad that we will have to be like rome and have people on death row killing each other in a coliseum on PPV?

Re:Imminent Infringement?

[TheVelvetFlamebait]

1. Create any work (it's automatically copyrighted)
2. Sue EVERYONE for imminent infringement
3. Judge wonders what kind of proof you'd have of imminent infringement by everybody
4. Judge further considers the kind of damages you'd be entitled to for a work that's not being sold anywhere, that nobody has heard about, and of which only you have access to a copy
5. ????
6. Profit!

Re:Stop being a criminal.

[wiredlogic]

Look on the bright side. It's a great way to clean out Congress.

Re: kiss your fair use goodbye, US Citizens

[Errol backfiring]

"the unauthorized circumvention of an effective technological measure."

Common sense: If the measure can be circumvented, it is not effective. If it enforces something else than copyright (for instance, by disallowing fair use), it is not effective. In other words: this rule never applies.

Too bad there is so little logic, realism or common sense in USA law.

I just can't wait...

[bistromath007]

I give it two weeks before we start seeing junk all over the net, possibly even here, along the lines of "ACTA not as bad as previously thought" or "why ACTA could actually save OSS" or other completely ripe horseshit like that. Hopefully everyone is smart enough to realize that's just the shills outing themselves, but they won't be.

Hate this fuckin' planet so hard. Let me off.

Re:I just can't wait...

[mounthood]

I give it two weeks before we start seeing junk all over the net, possibly even here, along the lines of "ACTA not as bad as previously thought" or "why ACTA could actually save OSS" or other completely ripe horseshit like that.

I'll give it 2 months before all the US politicians start abandoning it. They've collected their back-room bribes for supporting what industry wanted, but now they have an election to face. Let the online media make some scare stories, then the politicians will tell industry that "the timing's wrong" just now.

Hopefully everyone is smart enough to realize that's just the shills outing themselves, but they won't be. Hate this fuckin' planet so hard. Let me off.

Hate the game not the player.

Re:I just can't wait...

[frank_adrian314159]

Hate this fuckin' planet so hard. Let me off.

You're free to leave any time you wish - you just may not like the life (or lack thereof) afterward.

So no 1th, 4th, 5th, 6th, 7th, 8th, Amendment unde

[Joe The Dragon]

So no 1th, 4th, 5th, 6th, 7th, 8th, Amendment under this.

As this lets them cut you off with out a trail by jury and can be used to stop free speech.

If some where to make a web page get it shut down take it all the way to the supreme court as there is not way that this law will be able to stand with all the Amendments that is takes away.

Suspicious...

[wtbname]

I am very suspicious of the iPad. I expect that it will be used to infringe on several important rights holders in the music and movie industry. We need to seize all iPads before they can be used to commit this treasonous act.

To the CopyRightMobile, ACTAman!

Re:It's precrime + Nazi laws that can lead to lock

[Yvanhoe]

In my opinion, the primary goal is to forbid Linux. Free speech will be an unintentional victim.

The whole treaty smells of desperation

[qwerty8ytrewq]

The whole treaty smells of desperation and fear. The Trad whiteshirts must be seeing their careers in copyright law dissolving in the next 5 years. Copyright law is going to end up as a red flag career http://en.wikipedia.org/wiki/Red_flag_laws unless IP is engaged with in modern frameworks. Not that I will cry any tears for the copyright crocodiles.

do you know that many set top boxes use Linux

[Joe The Dragon]

do you know that many set top boxes and other stuff that is in the back round use Linux

so what will killing off linux do? Kill mac os x as well?

I think the bigest problem with anticircumvention

[mark-t]

... is the notion that unless the publisher of a work explicitly sanctions a particular copying method, in particular for something like private use, then it is essentially illegal to do (bear in mind that "effective technological measure" does not require that the copy protection mechanism literally *BE* effective at preventing copies from being made, it only has to have been some measure put there by the copyright holder for the purposes of preventing copies, whether or not is is still otherwise easy or convenient to do).

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).

A Completely One Sided Law

[gink1]

"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"

This is exactly what you would expect when only one party (Big Media) has any true input into a law. It seems the rightsholders get an injunction if they make a argument that infringement might happen.

Could this injunction end up as one of the 3 strikes the poor consumers have? If so a consumer who had downloaded something before could get another "strike" without even downloading a thing. Especially since everything is handled without the Justice System being involved (railroaded).

About right for the new world of American Big Media internet. New Zealand anyone?

Re:A Completely One Sided Law

[calmofthestorm]

Could this end up as an effective ban on bittorrent or other protocols? Or does it need to be less vague than that.

Re:A Completely One Sided Law

[plasmacutter]

It is not a "law", it's a draft treaty. It must still be ratified/implemented before it becomes law. I'd like to note that canada has yet to implement the wipo treaty which calls for the DMCA.

Perhaps this "Pre-crime" garbage can be used to get the dingbat-libertarian-right teamed up with the far-socialist-left to kill it on the legislative floor.

No worries

[The Shootist]

Nothing to worry about. Not much to discuss either. No Treaty signed by Obama will ever achieve Senate approval.

Re:No worries

[Devoidoid]

"ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval."

pRIOr restrainT

[tepples]

Wait... you are a patriot, aren't you?

You can't spell "patriot" or "prior restraint" without "riot".

Protip:

[Hurricane78]

You can use that document, you get your “representative” into pound-me-in-the-ass prison for treason. And the fact that the whole thing was kept secret shows that it was (...how do you call that in English?...) wanton treason (?).

At least in Germany, you get the maximum punishment for this, similar to murder, rape, etc.

Now remember: If you are not doing anything against this, you show that you are OK with it, and let them continue on that path. Especially if you use the invalid (because of circular reasoning) excuse of “But what can a single person do alone?”. (People are only alone, if everyone is using this excuse. So it’s fulfilling its own prophecy, and wouldn’t be the case otherwise. It is also the only reason dictators stay alive that long when a population of millions wants to see them dead.)

Everyone I know should be restrained then...

[thijsh]

Absolutely everyone I know should be restrained because they are guilty of this "imminent copyright infringement". At least over 90% of the people i've ever known has at least once in their lives done any of the following:
- Downloaded copyrighted material
- Watched copyrighted material on Youtube
- Heard a copyrighted song 'performance'
- Got a copied CD (or tape) from a friend

Anyone who has not done any of the above (or equivalent) is either well over 80 and only has a record player, or they *will* infringe directly or indirectly in the next couple of years... Instead of finding "imminent infringers" they might as well restrain all people under 80.

This is why

[future assassin]

after debating whether I should go legal and pay SOCAN the licensing fees for restarting my non commercial shoutcast station I decided to switch to all Creative Commons licensed music. Its taken a while to download enough quality music and listen through it and weed out the "experimental" stuff. I've also had to change my music format but in doing so I also discovered other genres that I never bothered looking at. So far its been a win win situation and I've already donated some money to a netlabel, except for my wife rolling her eye at my yet another "hobby" which involves computers.

Footnote 47 and "fair use"

[yuna49]

I searched the entire document for "fair use" and came up with only one entry, footnote 47:

"[For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another. Further, the Parties also understand that the application of third party liability may include consideration of exceptions or limitations to exclusive rights that are confined to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder, including fair use, fair dealing, or their equivalents.] At least one delegation opposes this footnote."

I wonder which delegation(s) that is (are)? If footnote 47, or some equivalent, does not appear in the final version, would we have a conflict between ACTA and 17 USC?

Re:Footnote 47 and "fair use"

[cdrguru]

I think the concept of "fair use" and its exceptions to copyright law are pretty much a US concept alone. Other countries have things somewhat similar but with different specifics.

This would (of course) be implemented as a treaty which would be considered to override any existing law in the US. Pretty much the same as WTO overrides any "protectionism" that might benefit US workers.

I love collective responsibility

[dkleinsc]

It differs from the earlier leaks in that the negotiating stance of each country has been scrubbed.

That way, each country's leader could blame the more draconian provisions on the other countries, and thus no one is to blame. You see this in organizational politics too: when it's unpleasant, make it from the committee rather than from the people in the committee.

television was supposed to kill the cinema house

[circletimessquare]

in the 1950s

in the 1980s, the vcr was supposed to kill the cinema house

now, in the 2010s, the internet is suppose to kill the cinema house

oh sure, the internet killed the dvd, but from the 1950s through the 2010s, people have been going to the movies to constantly growing profits

watching iron man 2 on your 17 inch monitor in your basement by yourself just doesn't compare, even with all the crying babies and cellphones. and even on your 60 inch hd lcd with 5.1 dolby: you're by yourself. oh you have your firend sover? they want to watch what you want to watch when you want to watch it and are always available on a moment's notice?

there's something about an audience that oos when you oo, aahs when you aah, and shrieks when you shriek, that heightens your movie going experience

meaning: hollywood, even if they gave away their content for free, will always have cinema house revenue: there's no need to control digital content to make money, ever

music: live gigs

books: movie tie-ins, personalized content, readings, endorsements, etc

no one, NO ONE needs to control digital distribution to make cash

Criminalization is mainly aimed at the poor

[Burz]

...people who pay little in taxes.

Re:But with more people in jail then less tax mone

[chihowa]

increasingly trivial non-white collar crime

But with more people in jail then less tax money to pay for it.

That's why you make the crimes of the poor carry the stiffest penalties. Their contributions are small as free taxpayers but substantially larger as supported prisoners.

Re:Imminent Infringement?

[c-reus]

Steps 3 and beyond are irrelevant. Unless the judge tosses the lawsuit right away, there are going to be ways to stall and delay the process enough to run anyone into bankruptcy.
A corporation suing someone is effectively similar to saying that that someone will sooner or later submit to the will of the corporation. If that someone fights back, they'd be bankrupted and made an example of (see the Tenenbaum case, for example).

How long did it take for the SCO case to go from step 3 to step 4?

quantify it

[circletimessquare]

tell me how many people would watch a movie for free at home rather than pay at a cinema (versus how many watch it for free at home... and would never pay at a cinema, that's the twist ain't it matey?)

is it 90%? is it 10%? give me a number

well whatever it is, i say this: no % gives hollywood the right to rape our rights and freedoms, to try and control the internet (which it can't anyways), just so they can squeeze a few more drops of blood out of us. and the % is SMALL anyways! probably single digits. my whole point is, even if it's 99%, that gives hollywood no right to make a business model out of the impossible (controlling the internet)

this is the new (aka, old, 1920-1980) financial universe hollywood needs to function within: cinema house only. excuse me while i play the world's smallest violin: that's an extremely lucrative universe

the golden age of hollywood: it was all cinema houses. before the vcr/ dvd, it was all cinema houses. gone with the wind? jaws? avatar is just about to come out on dvd, but it has already made a massive profit, ON TOP OF A MASSIVE PRODUCTION COST, all in the cinema house

so i think hollywood will do just fine darling, and your entire argument has been rendered defeated

Do we have an alternative network protocol?

[KgRaves]

A network the government cannot block? Things will eventually come to one being needed. If one doesn't exist yet, the IT wizards should start creating one now.

Re:Stop being a criminal.

[KgRaves]

The law breaking the law: first paragraph of Laws, morals and flowers .

Re:FalconDOUCHE = insult to telecom techs everywhe

[Falconhell]

It sems Ac does not speak english as first language.

The best bit he thinks I look like a fool!

But by all means keep trying, if you waste your time here you are not bothering other people and frankly I am enjoying the fun of watching you make yourself look like a bigger tool with each post.

Later kindy boy!

Re:Tell us more about email, won't you (LMAO)

[Falconhell]

I'm just trollin the troll.

Its going well!

Re:Going well? Are you HIGH again, FalconDOUCHE??

[Falconhell]

Another poor effort, your copy pastas really just dont cut it any more. Do try and do better.

Re:A lecture from "Prof. FalconDOUCHE" email class

[Falconhell]

(Man - Please, falconDOUCHE - do you think ANYONE believes that which I quote of you above, after reading the URL below it? LOL, not.)

Can you make that a coherent sentence that makes sense? Amusing though!

There was no email in Australia outside of universities in 1979 kindy boy.

The first internet link to the US was not established until the mid 1980's.

So there was no public email in 1979 in Australia.

Re:LOL now he says "public email" (you didn't befo

[Falconhell]

The fac that there was no public availability or even knowledge of the existance of email at that time neans that simply it was unheard of.

To all intents and purpises there was no email in Australia, so despite ypur laughably pathetic atempts at scorn, you as always FAIL.

I guees it is your constant failiure that left you a bitter, strident person. I feel sorry for you.

But dont stop, I have not had so many laughs for ages!