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?

[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?

[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?

[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?

[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?

[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.

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,"

[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,"

[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: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.

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.

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"

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.

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

[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.

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.

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?

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

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.

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.

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.

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?

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.