European Commission Paints Itself Into ACTA Corner

Halo1 writes "Last week, the European Commission published a rebuttal to an extensive and strongly condemning opinion document about ACTA by prominent European academics. Ante Wessels from the FFII went through the Commission's reply and discovered that after correcting the mistakes they made, they actually confirm the opinion they were trying to refute. The Commission primarily appears to suffer from a lack of reading comprehension, amnesia regarding what it said earlier, and not being fully aware of its competences."

Comments

here's the text

[ciaran_o_riordan]

The EU Commission lacks basic reading skills

May 1, 2011

By Ante

In January 2011, prominent European academics issued an âoeOpinion of European Academics on Anti-Counterfeiting Trade Agreementâ (ACTA). The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, âoeâ¦as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressedâ.

In April 2011, the European Commissionâ(TM)s services put on-line comments to the European Academicsâ(TM) Opinion on ACTA. The Commission denies ACTA is incompatible with EU law.

The Commission fails to make its point in a convincing way. The Commission shows a lack of basic reading skills, does not address points raised by the academics and fails to reason in a logical way. Regarding the border measures, the Commission actually agrees with the academics. The Parliament should ask the European Court of Justice an opinion on ACTA.

It is too much work to address all the flaws in the Commissionâ(TM)s notes. I will give some examples.

ACTAâ(TM)s damages are higher than EU lawâ(TM)s damages

The academics wrote: âoeSome of the factors mentioned at the end of the provision are not provided for in art. 13.1 Directive 2004/48. These factors should not be adopted in European law since they are not appropriate to measure the damage. âoeThe value of the infringed good or service, measured by the market price, [or] the suggested retail priceâ, as indicated in art. 9.1 ACTA, does not reflect the economic loss suffered by the right holder.â

The Commission states: âoeThere is no conflict between article 9 of ACTA and article 13 of Directive 2004/48/EC. Both provisions refer to ways in which courts can come to the determination of fair damages for the injured party.â

Damages in EU law are based on economic loss suffered by the right holder. The academics show that ACTA goes beyond that. The Commission just calls them both âoefairâ, and sees no difference. This is like saying: âoebig cars and small cars are both nice cars, so there is no difference.â But with cars and with damages, it is not only important both are cars or damages, the size is relevant as well. ACTA exceeds the level of damages in EU law. The Commission does not address the size aspect raised by the academics.

Bringing different things under the same category does not make them the same. Fines and death penalty are both deterrent, they are not the same.

Going beyond economic loss suffered by the right holder is not âoefairâ. It disproportionally hurts for instance startup companies in conflict with major patent holders. The Commission and ACTA advocate seeing damages based on retail price as âoefairâ. Unbalanced enforcement measures may heighten market entrance risks for innovators. Startup companies are often confronted with patent minefields. Even a mere allegation of infringement may easily lead to market exclusion. Startup companies often do not have enough resources to litigate. ACTA is biased against startup companies, the heightened damages hurt innovation.

The Commission states: âoeThe examples given in article 9.1 of ACTA and highlighted by the authors of the Opinion are not mandatory for the ACTA Parties (cf. the provision says âoemay includeâ).â

But this âoemayâ in article 9.1, is permissive towards the rights holders, it refers to âoeany legitimate measure of value the right holder submitsâ. Article 9.1 is not permissive towards the ACTA parti

Re:here's the text

[Halo1]

so let's see. you are not a subscriber so no early views...

Every registered user can, after logging in, look at http://slashdot.org/firehose.pl (not the static page you get redirected to in case you're not logged in) and see all stories that are submitted.

yet you wrote up all of this complete with links in the 4 minutes that elapsed between the story's posting and the submission of your own post.

Actually, he simply posted the contents of the main article referred to in the post, because the server hosting it has been slashdotted (I should have used an nyud.net link). And the reason he had a local copy is probably because he's on the same mailing lists as I am where the article was first announced.

And he didn't submit the article, I did.

Bullying.

[unity100]

No wondering whether they were bullied like spanish government to that end by the whores in u.s.. i wonder if that will came out in wikileaks cables too, like it happened for spain.

Re:Bullying.

[Weezul]

There was a nice Frenchman named Joseph-Ignace Guillotine who helped invent kinda the European analog of the U.S.'s 2nd Amendment. There are always issues with what constitutes civil society, but people proposing intellectual slavery should be reminded that less seemingly civil resolutions exist.

Brazil saved aids patients all over the world by breaking the patents on anti-retrovirals. If no country had been willing, then extra-legal lethal force could've very quickly become a civilized response.

Re:Bullying.

[Surt]

Poor sad little drug companies. Sniffle. Profits reduced from potentially twenties of billions, to merely tens.

http://en.wikipedia.org/wiki/List_of_pharmaceutical_companies

Re:Bullying.

[flaming error]

As I understand it, the problem was Brazilians couldn't pay the price requested, and the supplier didn't lower prices. So the Brazilians just copied it for themselves.

This seems sort of like the MPAA/RIAA thing - cd/dvd publishers charge prices people can't afford or are unwilling to pay, so people just copy it themselves. And the **AA wrings its hands and blames pirates for their demise, just as you are shilling for the pharmaceuticals.

Markets only work when there is competition. "Intellectual Property" is by definition a legal monopoly. And you won't find me crying for any business with a legal monopoly that can't break even. They deserve to die, both for their own ineptitude and for the sake of having a free (as in liberty) marketplace.

Re:Bullying.

[jd]

It's ok. Once the corporations take over, people will mutate into orcs, elves and the like. The shadowrunner novels are actually IBM field guides for when the takeover is complete.

Re:Bullying.

[sjames]

No matter how effective a medication might be in theory, if sick people can't afford it, it is useless. Not breaking the patents deprives sick people of access to current drugs in order to make sure there will be more magic drugs they also have no access to later. The net result is more suffering. Socking it to poor people with outrageous prices is like trying to squeeze blood from a stone.

I notice the pharmaceutical companies aren't exactly suffering in poverty.

Re:Bullying.

[TheTurtlesMoves]

Depriving you of a song because you can't afford it, is not the same as letting you suffer because you can't afford the treatment.

And as someone who as worked with these companies, I assure you there are plenty of folks who don't give a rats arse about curing people.

And are you sure that this new medicine is really is effective...

Re:Bullying.

[rtb61]

Profits, let's not forget they also spend more on advertising the drugs then they do on developing the drugs. Hey, hmm, that advertising also pays for the production of much copyrighted content, TV, Radio, Newspaper, Magazine and even internet content.

Somehow I think it would be a whole lot cheaper to open source all drug development research and provide the details free.

As for other copyrighted content, when is enough, enough, there is already more out there that anybody in ten life times can watch, listen and read. Why should any taxpayer funds be spent on protecting. Maybe, just maybe, if the content is reviewed and is deemed to be of actually beneficial value to society it should get a limited period of protection maybe like 10 years.

Re:Bullying.

[Elldallan]

Brazil didn't break patents, they used a paragraph of Brazilian copyright law that under certain circumstances allows the government to grant a production permission to a local company without the consent of the rights holder.
Such an exception "to protect public health, including medicine for all" is specifically allowed in TRIPS and the UN has several times reaffirmed that access to AIDS medication is an essential human right, the latest vote was unanimous with the exception of the United States which abstained.

Re:Typical.. What is ACTA?

[JonySuede]

by now you should know what it is....
http://lmgtfy.com/?q=acta

Uh, no.

[Black Parrot]

The Commission primarily appears to suffer from a lack of reading comprehension, amnesia regarding what it said earlier, and not being fully aware of its competences.

No, they suffer from wanting to justify something they're not actually able to justify.

But we see politicians in the same straits every day in the news. "Nothing to see here, folks."

I think I see the problem

[93 Escort Wagon]

The Commission primarily appears to suffer from a lack of reading comprehension, amnesia regarding what it said earlier, and not being fully aware of its competences.

In other words, they'd fit right in here on Slashdot.

Re:I think I see the problem

[jd]

Only if their next reply contains dupes and starts with "First Post!"

Re:Thanks for the food, yammy...

[GameboyRMH]

A troll's filthy stash of lulz. Where regular men's fap folders are full of porn, a troll's is full of mementos of their victims...what a disturbing insight into a warped mind.

Wessels

[StikyPad]

Wessels from the FFII went through the Commission's reply

The fact checking around here is just atrocious. Where to begin? First of all, they're nuclear wessels, which is an important distinction I think, and second, they're from the Star Trek, not the Final Fantasy 2.