Latest Version of ACTA Leaks

An anonymous reader writes "Drew Wilson of ZeroPaid points to a freshly leaked version of ACTA available on La Quadrature Du Net. While the text will need further analysis, the most recent look at the text suggests that there is no Three Strikes law, but anti-circumvention laws have a new twist to them with regard to exceptions in that 'they do not significantly impair the adequacy of legal protection [...] or the effectiveness of legal remedies for violations of those measures.' Overall, the text still hints at a global DMCA with notice-and-takedown."

Comments

I hope

[jgagnon]

All of this crap explodes soon so we can possibly return to an era of reason. I'm dreaming, I know, but if we can just bottom out we stand a chance of bouncing back. As it stands now we are on full descent with no bottom in sight.

Re:I hope

[PopeRatzo]

but if we can just bottom out we stand a chance of bouncing back.

I don't think you realize just how low the "bottom" is.

Further, the Internet may be the kind of thing for which once it becomes a completely corporatized, monotized entity, there may not be any going back.

Once cable television was going to represent the "democratization of media" with all sorts of public access and interactivity and localization. But once the cable business became monopolized it became nothing but "Pay TV", where you pay for basically the same product you used to get for free. Now that's the new normal, where people just expect to pay for television, even when it's got advertising.

If ACTA becomes international law, there's a very good chance that the Internet many of us love will be gone forever and it will become more "Pay TV". But even worse, Fair Use and public libraries will probably become a thing of the past. Even open source itself will be threatened by ACTA. Think about that all you people who love Linux.

"Democracy"

[Anonymous Coward]

Of the people,
By the people,
And for the people*.

(*except when the issue involves people.)

Re:"Democracy"

[$RANDOMLUSER]

You misspelled "money". Four times.

Re:"Democracy"

[The name is Dave. Ja]

Money

(formerly "Whoosh")

Software patent problem: ISP liability=C&D let

[ciaran_o_riordan]

Software patent problems are also worsened by ACTA, but this problem's getting lost among the discussion of problems of transporting pharmaceuticals via Europe. The pharmaceuticals issue is bigger, but the software patents issue still exists (and the DRM issues, which is even worse).

• ACTA and software patents
• Anti-Counterfeiting Trade Agreement overview
• 201001 acta.pdf as text - the previous leak, for comparison

swpat.org is a publicly editable wiki, help welcome.

Further Reading

[somaTh]

Ars Technica recently ran a story on how non-transparent they've been since they gave out their official release in April, along with further links.

Constitutional challenge?

[dpilot]

I'd like to hear how ACTA could survive some sort of Constitutional challenge. From what I hear, it's not a treaty, but an "executive agreement," and being able to skip ratification by the Senate was one reason mentioned when I heard that. (Don't know if there's a connection...) The Constitution talks about Treaties, ratified by the senate. The Constitution talks about Laws, passed by both houses of Congress and signed by the President.

What the heck is an "Executive Agreement" and what sort of force does it have. Moreover, what would its resistance be to any sort of serious legal challenge, given its rather odd legal status in the first place. This sounds shakier than Bush's use of signing statements.

Re:Constitutional challenge?

[Lunix Nutcase]

An Executive agreement still requires majority support from both Houses to be implemented. But since the DMCA was passed with unanimous support in the Senate and with little to no opposition in the House there is no chance in hell that ACTA is going to face any real opposition from Congress.

Re:Constitutional challenge?

[bsDaemon]

I would expect an Executive Agreement has the force of an Executive Order to his underlings in the Justice Department to put forth certain arguments in court until a judge agrees and they become binding precedent thanks to that oh-so-brilliant principle of Common Law. In the countries where they have Prime Ministers they can just go straight to the "this is now the law" phase.

Re:Constitutional challenge?

[gstoddart]

I'd like to hear how ACTA could survive some sort of Constitutional challenge.

I'd like to know how the rest of the world can stop this.

From my perspective, this is basically an export of a law the US already has -- the DMCA.

I feel that far too many things that are already legal for many of us (fair use for example) is being stripped to cater to the interests of the MPAA and RIAA -- who are largely formed of multinationals who have a vested interest in getting every country to settle on the most draconian of laws.

As to the legalities, who knows. We're talking about a treaty being done in secret with no room for public input. For reasons I've never understood, all of the information about the content and process of this needs to be kept secret -- likely because people would realize how badly they're getting railroaded all in the name of protecting US movies from being copied.

Re:Constitutional challenge?

[Nidi62]

What the heck is an "Executive Agreement" and what sort of force does it have.

PoliSci grad student here. An Executive Agreement is exactly the same as an Executive Order (as in it has the full force of law) with one major difference: it is only in effect so long as the President that signs it is still in office. However, it can be extended by the next president through an executive order or another agreement. It seems to me that the whole point of this is to push it through by the easiest means possible, then when the government tried to push the terms of the agreement to a more permanent status, they are hoping we either won't complain, or won't pay attention.

Re:Constitutional challenge?

[Bigjeff5]

An Executive Agreement has the same force as an executive order, namely none.

http://en.wikipedia.org/wiki/Executive_order_(United_States)

Executive orders have the full force of law unless an act of Congress specifically denies the power (Exec Orders are assumed to be based on acts of Congress), or the POTUS is not given such power in the Constitution.

Also: http://en.wikipedia.org/wiki/Treaty_Clause

Executive Agreements (there are three types, we're talking about sole-executive agreements here) have exactly the same force as standard treaties, and as far as international law is concerned is just a treaty.

The real difference between them is how easily they are enacted and repealed, and what has to be done after they are signed. Most treaties are executive agreements of one type or another. If the treaty falls in line with US law, nothing has to be done. Occasionally, new laws need to be enacted or current laws need to be changed to comply with a treaty. In this way Congress can essentially repeal a treaty they don't like, as well, because domestic laws take precedence over treaties.

A sole executive-agreement is extremely easy for a President to enact, and just as easy for a president to remove. They are the weakest form of treaty, but unless there is something that contradicts US law or they are unconstitutional, they automatically carry the force of law - just like executive orders.

textual transcription

[mmu_man]

Many volunteers from La Quadrature du Net did an amazing job at transcripting the ugly PDF scan, the result is available here:
http://www.laquadrature.net/wiki/ACTA_20100713_version_consolidated_text

thanks ACTA

[circletimessquare]

for breeding the most industrial strength bomb proof P2P possible

oh, you had some other goal in mind? you really thought draconian legislation would somehow stop filesharing? you're that fucking stupid?

here's some intellectual charity for you assholes: making a fancy law is meaningless without enforceability. i will gladly make a bet on who wins this contest-

1. your legion of lawyer diplomats

versus

2. tens of millions of media hungry, technically skilled, and most importantly, POOR teenagers

ding, ding, ding!

round 1, place your bets

Re:thanks ACTA

[mandelbr0t]

Don't forget the tens of thousands of media hungry, 1337 skilled and most importantly, CYNICAL, 30-somethings who have been through all of this before.

Re:thanks ACTA

[selven]

Sometimes I think the whole draconian copyright thing is a trick by the EFF to get people to develop darknets which will then also be used for human rights purposes by third world dissidents. It has to be - there's just no way anyone can actually be this stupid.

you get it half assedly

[unity100]

the document was meant to be that secretive as geist makes it sound. but, all countries do not agree on this acta thing, leave aside its secrecy. the ones which are vying for that are united states of america, which houses the private interests who got that treaty prepared in the first place to push their own interests, and uk, due to their lesser counterparts being in the same boat. all the others are less than positive to this thing, but they dont want to go without say in it, hence, participating. some are probably actively trying to sabotage the talks, as all should do. some, like india, are openly against it.

you owe the leakouts to sources that do not agree with american hollywood and media.

Re:you get it half assedly

[unity100]

there is an uprising against acta already. eu doesnt like it. eu parliament banned various potential implementations of it. india openly opposes it.

all it needs more encouragement, for it to become a full fledged uprising.

Re:"Leaks"

[interkin3tic]

I'm beginning this document isn't meant to be as secretive as Geist makes it sound. I'm beginning this document isn't meant to be as secretive as Geist makes it sound.

The fact that they've failed to keep it secret doesn't change their goals of keeping it secret, nor does it change the fact that there should be no pretense of secrecy. There's no valid reason for the attempt at secrecy. The meetings should be available streaming online.

No, seriously, they should if they were smart. The fact that this is being drafted in secret is what will make more people pay attention to this even if there weren't leaks this big. I think far fewer people would be paying attention if the meetings were open.

Notice and takedown

[Anonymous Brave Guy]

Overall, the text still hints at a global DMCA with notice-and-takedown

The safe harbour and takedown notice system in the DMCA is one of the few sensible aspects. There has to be some practical mechanism for copyright holders to enforce their legal rights, but it shouldn't be powerful enough for vested interests to abuse the system and suppress legitimate distribution. The takedown notice and counter-notice system is as fair a balance as anything I've seen suggested.

Re:Notice and takedown

[Dorkmaster Flek]

Uh, I think you might want to actually read the DMCA. It uses a notice and takedown system, not notice and counter-notice. That's the major problem with it; it's easily abused just by sending takedown notices in a dragnet approach, even if the content is being used under fair use.

Re:Notice and takedown

[Bigjeff5]

Apparently, you need to read it as well.

The counter notice is sent to the company who took down the post, and under the safe harbor provisions as long as the poster sends them a counter notice the service provider can re-post the material.

It is then up to the two individuals to solve the issue in court.

This means illegal distribution of copyrighted material is easily removed with force of law, with only a slight and temporary inconvenience to fair use materials or otherwise legal distributions of copyrighted materials.

The only change I would make is to add a consequence for an illegitimate takedown notice. A legitimate poster should have the ability to recoup any losses caused by a frivolous takedown notice. I wouldn't go as far as a fine for frivolous notices, but some sort of consequence to make sure copyright holders only go after those that are obviously infringing copyright.

Re:Notice and takedown

[jonwil]

I would change the DMCA take down provisions in 5 ways:
1.Penalties for anyone who sends bogus take down notices
2.100% protection for any service provider for content that passes over their network (but is not hosted by them) including protection that gives ISPs 100% immunity for copyright violations carried out by their users (and without any legal requirement for the ISP to cooperate with copyright holders in order to maintain the immunity)
3.Protection for providers like YouTube where copyright holders cant argue that "YouTube isn't doing enough to deal with copyright violations" even though YouTube IS complying with the take down notices they get sent.
4.A requirement for anyone who wants safe harbor protection to respond to counter notices within a reasonable period of time ("reasonable period of time" to be defined in the law). This for example would mean that if Apple wants to maintain safe harbor protection for the App Store, then they need to restore Apps that have been taken down because of bogus take down notices (like all the times when Apps that copy the gameplay of another game but not the artwork or trademarked names and then get shutdown for it, the Tetris people are most known for this)
and 5.A ban on automated take down notice sending, i.e. it has to be sent by a human instead of computers (like the way some media companies are now doing to YouTube with automatic notices for content they own)

DMCA

[NonSequor]

Overall, the text still hints at a global DMCA with notice-and-takedown.

I hate the DMCA anti-circumvention provisions, but isn't "notice-and-takedown" an improvement over what we had before the DMCA when we called the notices "cease and desist letters" and there were no safe harbor provisions for ISPs and sites like YouTube?

They don't represent us.

[elucido]

The reason those ACTA people have to act in secret is because they don't represent any of us. This is like the oil cartel, and we see what kind of problem big oil has caused once we let them take complete control over energy.

When you let people make law in secret without debate, but they want to tax you and force you to follow laws which aren't debated, isn't that a dictatorship?