The Daily Swarm

Anti-Counterfeiting Trade Agreement Threatens To Destroy Internet As We Know It; Buh-Bye YouTube, Flickr, Blogger, Et. AL. Update: Wired Publishes Leaked ACTA Doc. Obama Administration Needs To Step-Up It’s Copyright Game Plan…

Wired:

The secret Anti-Counterfeiting Trade Agreement document we wrote about on Wednesday appeared on Wikileaks today, and our source has cleared us to publish it here as well….We wrote that the document, [Excerpted Below. ed] if true, amounted to policy laundering at its finest -– that the United States was pushing the world to require ISPs to adopt “graduated response” policies that amounted to terminating internet service of repeat, copyright offenders. We refrained from publishing the three-page leaked document in its entirety at the request of our source…On Friday, ACTA participating nations concluded a sixth-round of top-secret negotiations….The countries are to meet again in January, Sweden announced.

LEAKED DOCUMENT PDF:

EUROPEAN COMMISSION
Directorate-General for Trade
Brussels, 30.09.2009
Ref. 588/09

ACTA negotiations
Attached: ACTA – Internet Chapter
This is to inform MS about the state-of-play of the internet enforcement chapter that
should be discussed at the next ACTA negotiating round in Seoul, Korea.

On 22–24 September, DG Trade participated in the EU-US IPR Working Group,
which took place in Washington. In a side meeting with the USTR (US lead
negotiators on ACTA), at their request, the US colleagues informed us about the
progress in the preparation of a draft text of the future Internet Chapter of ACTA.

US reported that they have been working on a draft text since the end of the 5th round
(end of July) and that this was basically finalised. However, they are still involved in
internal consultations with other government agencies and a number of private
stakeholders (bound to strict confidentiality clauses), therefore they were not willing
to share with COM (or even to show us) the text at this stage.

USTR indicated that these internal discussions were sensitive due to different points
of view regarding the internet chapter both within the Administration, with Congress
and among stakeholders (content providers on one side, supporters of internet
“freedom” on the other). Consequently, they have to delay the release of the initial
text longer than initially expected. US expects the text to be circulated within the next
2 weeks. COM noted that if the text is received only 4 weeks before the next round,
this will not be sufficient to conclude internal EU discussions and therefore to present
written counterproposals (if any) in Seoul. US acknowledged the issue.

This being said, the US nevertheless provided a detailed oral description of the text.
Below is a report of such description. It is stressed that this report is provided as an
advance-warning and a preliminary indication of the content of US proposal, but since
it results from an oral presentation it may not fully reflect the final draft and should be
analysed accordingly.

The draft internet text is around 3 pages long and it was generally modelled on the
respective section of the recently concluded US-Korea Free Trade Agreement
(KORUS)1 (Chapter 18), however, in a “simpler” and “shorter” manner. It consists of
the following sections:

Section 1: Baseline obligations inspired by article 41 TRIPs, imposing adequate
and effective legal remedies, as provided in relevant sections of ACTA (civil, penal),
for internet infringements.

Section 2: ACTA members have to provide for third-party liability.

Section 3: Safe-harbours for liability regarding ISPs, based on Section 512 of the
Digital Millennium Copyright Act (DMCA)2, including a preamble about the balance

1 Available at
http://www.ustr.gov/sites/default/files/uploads/agreements/fta/korus/asset_upload_file273_12717.pdf

2 The DMCA is the US domestic law implementing the WIPO internet treaties and regulating, inter alia, copyright issues on the internet. Available at: http://thomas.loc.gov/cgi-bin/query/D?c105:6:./temp/~c105fgUiNi::
between the interests of internet service providers (ISPs) and right-holders. See also
KORUS Chapter 18.10.30. According to US, the language proposed is somewhere in
the “middle” between the WIPO internet treaties, KORUS and the DMCA, which
probably means that it is more detailed than the first but not as specific as the latter.
ISPs are defined as in Section 512 (k) of DMCA3

On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to
put in place policies to deter unauthorised storage and transmission of IP infringing
content (ex: clauses in customers’ contracts allowing, inter alia, a graduated
response). From what we understood, the US will not propose that authorities need to
create such systems. Instead they require some self-regulation by ISPs.

This Section 3 should also contain “broad” provisions regarding notice-and-takedown
mechanisms.

Section 4: Will focus on technical protection measures (TPMs). Language
inspired by US-Jordan Free-Trade Agreement (article 4.13)4, as well as by the WIPO
Internet Treaties (articles 11 WCT and 18 WPPT):
– Parties to provide adequate civil and criminal remedies that are specific to
TPM infringements, i.e. treat these as separate offenses form “general”
copyright infringements.
– TPM infringements would be: (i) prohibition of circumvention of access
controls and; (ii) prohibition of manufacture and trafficking of circumventing
DRM devices.
– There will be exceptions to these prohibitions available to ACTA members.
– “Fair use” will not be circumscribed.
– There will be no obligation for hardware manufacturers to ensure
interoperability of TPMs.

Section 5: Will focus on Rights’ Management. Language inspired by US-Jordan
Free-Trade Agreement (article 4.13)5, as well as by the WIPO Internet Treaties
(articles 11 WCT and 18 WPPT):
– Parties to provide adequate civil and criminal remedies for rights’ management
infringements.
– Right’ management infringements would be stripping (works?) of rights’
management information
As agreed among ACTA participants, the negotiating papers are not public documents
and therefore should be treated with reserve.

Boing Boing:

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama’s administration refused to disclose due to “national security” concerns, has leaked. It’s bad. It says:

* That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.

* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet—and hence to civic participation, health information, education, communications, and their means of earning a living—if one member is accused of copyright infringement, without access to a trial or counsel.

* That the whole world must adopt US-style “notice-and-takedown” rules that require ISPs to remove any material that is accused—again, without evidence or trial—of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

* Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

Huffington Post:

This week 40 or so countries are meeting in South Korea to consider text for a new international agreement on the enforcement of intellectual property rights. It is called the Anti-Counterfeiting Trade Agreement (ACTA). The term “counterfeiting” is designed to demonize the agreement critics as friends of organized crime, much like the name of the Patriot Act seemed better than the “Elimination of Civil Liberties Act.” It is really an agreement that addresses a wide range of intellectual property enforcement issues—involving patents, copyrights, trademarks and other IPR.

If you are a lowly member of the public, the text is secret. The names of persons who attend the meetings are secret. The titles of the documents are secret. If you represent a big firm or law firm—pretty much any big firm it seems, the U.S. government will show you documents after you sign a non-disclosure agreement – curbing your right to speak out on the contents of the documents you see.

Some details of the negotiation have leaked out, most recently from a memo by Euopean Union describing the Obama Administration proposal for a new global system of Internet controls and liabilities. Michael Geist, Gwen Hienz of EFF, and a few journalists—most living outside of the U.S., have written about ACTA.

The entire U.S. tech sector has been publicly silent, as the Obama administration has co-oped them into trading silence for access to the secret documents.

At this point, Congress needs to stand up and put an end to this appalling spectacle of secret legislation on a global scale. How can politicians claim to be all for transparency, and allow this indefensible violation of the public right to know proceed?

A large number of organizations and people have written President Obama asking that he end the secrecy of the negotiation. It is doubtful this will happen unless newspapers write about the issue (aren’t they big advocates of the right to know?), members of Congress weigh in, or if the critics of the secret negotiation can mobilize public opinion.

Electronic Frontier Foundation:

…The leaks confirm everything that we feared about the secret ACTA negotiations. The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws….As expected, the Internet provisions will go beyond existing international treaty obligations and follow the language of Article 18.10.30 of the recent U.S. – South Korea Free Trade Agreement.