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Anti-Counterfeiting Trade Agreement (ACTA)

kat · 2 · 12591

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Offline kat

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Just done a read through of the Anti-Counterfeiting Trade Agreement. Seems quite reasonable at face value, a cooperative agreement between signatories to use the same policies and procedures to deal with counterfeit goods of all manner, especially 'hard' goods - cigarettes, toys, clothing/fashion, anything where a right holders 'brand', copyright, trademark or other IP is 'infringed' through reproduction or manufactured and sold without consent. OK, with this so far.

Then one reads the actual text... (long post warning again)

The agreement basically lays out two types of infringement; Civil and Criminal. The distinction made between the two seems to boil down to whether and infringement is "willful" and/or being done on a "commercial scale" (Article 23: 1). It applies to anything, both 'real' and 'digital' (Article 27) and grants signatory authorities the power to seize and destroy any actual counterfeit goods and/or any material used in the production thereof (Article 23).

It acknowledges a cooperative authority to stop and search persons, their personal luggage as well as business consignments by any of the signatories (Article 14). Now this is all supposed to be done on the say-so of rights holders even if local authorities have already detained material (Article16), but that say-so is supposed to be based on rights holders having "adequate evidence" to do so (Article 17: 1); local authorities can veto this if at their sole discretion they feel the "procedure" is being/has been abused - false claims being submitted against an entity. But, it doesn't provide the accused any mechanism for immediate remedy or applicable penalties against rights holders abuse. So whilst rights holders have full reign to protect their property, the other end of the stick has no-where near the same retaliatory ability.

Reading through the documentation nowhere does it state that a rights holder claim is to be backed by a court order, there is mention of an order to detain/destroy material by local authorities, but again it's not explicitly stated wither that's a court order based on an impartial assessment of the evidence provided to the court system.

With specific regards to the Internet; yes, the legislation does do what is being said about it online; enforcement is applicable to "digital networks" (Article 27), which can be interpreted to mean a simple connection between just two computers - it doesn't say that of course, but then it's doesn't not say that either, which is why the term "digital network" is there, it lays no determination of what that is.

Whilst it acknowledges that enforcement isn't supposed to be disruptive (Article 27), especially with regards to legitimate use, it again provides no remedy for those numerous instances where it is - where I.C.E. or the US DoJ have taken entire server racks offline for the sake of a single page on a single website for example.

It provides for the disclosure of PII (Personally Identifiable Information) to rights holders upon claim of infringement (Article 27: 4), whilst that is supposed to be done in pursuit of a claim it typically means it will be done before the claim is made (which came first the chicken or the egg). In other words, a persons identity could be disclosed without it necessarily leading to a claim, rights holder simply need to say that's what they are going to do because again, there is no remedy to prevent them from doing that.

Cracking DRM is specifically recognised (Article 27: 5) so to is recording movies in cinemas (Article 23: 3); removing or otherwise obfuscating right holders information to hide or disguise the fact that something is/or isn't legit (Article 27: 7) and last but no means least, knowingly doing something that will "induce, enable, facilitate, or conceal an infringement" (Article 27) is there. So yes this does mean that technically, simply linking to something that is subject to the ACTA is an infringement (a criminal one depending on its scale). So goodbye Google, Bing, Yahoo and all other search indexers/aggregators, never mind private sites that link to anything where a claim of copyright/OP/Trade can be made (cue Rupert Murdock and his battle to stop sites link/quoting content from his 'property').

It should be pointed out that ACTA was signed in Japan on the 26th Jan 2012 at the Ministry of Foreign Affairs and appears to have gone through without any significant public discussion or debate, certainly in the wider sense. Additionally it should also be pointed out that the mainstay of the legislation is to accommodate "right holders and other relevant stakeholders" (Article 28: 4), "we the people" are not party to that.