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?

[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.

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.

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!

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: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.

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

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?