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Major ACTA Leak: Internet and Civil Enforcement Chapters With Country Positions

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Monday March 01, 2010
On the heels of the leak of various country positions on ACTA transparency, today an even bigger leak has hit the Internet.  A new European Union document prepared several weeks ago canvasses the Internet and Civil Enforcement chapters, disclosing in complete detail the proposals from the U.S., the counter-proposals from the EU, Japan, and other ACTA participants.  The 44-page document also highlights specific concerns of individual countries on a wide range of issues including ISP liability, anti-circumvention rules, and the scope of the treaty.  This is probably the most significant leak to-date since it goes even beyond the transparency debate by including specific country positions and proposals.

The document highlights significant disagreement on a range of issues.  For example, on the issue of anti-circumvention legislation and access controls, the U.S. wants it included per the DCMA, but many other countries, including the EU, Japan, and New Zealand do not, noting that the WIPO Internet treaties do not require it.

A brief summary of the key findings are posted below, but much more study is needed.

Internet Enforcement Chapter


  • Canada has expressed concern with the title of the chapter ("Special Measures Related to Technological Enforcement Means and the Internet") and the substance of the chapter
  • On the ISP safe harbour chapter, the leak identifies three proposals (consistent with an earlier NZ comment).  In addition to the U.S. proposal that was leaked earlier, there is a Japanese proposal and one from the EU.  Moreover, many countries have raised specific issues about the U.S. language.  For example, New Zealand notes that the safe harbour appears to cover Information Location Tool providers (ie. search engines), but that it wonders why there is a concern of liability to begin with.
  • Japan's alternative proposal calls for ISP liability based on knowledge of infringement.  It states that there may be liability if it is technically possible to prevent the infringement and the provider "knows or there is reasonable ground to know" that infringement is occurring.  There are additional provisions on the inclusion of a notice system and industry cooperation.
  • With respect to the requirement of an ISP policy that could include three strikes as a pre-requisite for qualifying for the safe harbour, New Zealand is opposed to the condition altogether.  Meanwhile, Japan notes that its law does not contain a policy requirement and it would have to consider whether it can agree to that requirement.
  • On the implementation of notice-and-takedown, Canada has noted that the relationship between third party liability and ISP limitation of liability is unclear.
  • On the anti-circumvention rules, which involves a U.S. attempt to implement a global DMCA, the EU would like to exclude access controls from the ambit of the provision.  They are not alone - New Zealand opposes their inclusion and Japan also takes the position that access controls are not required by the WIPO Internet treaties and is apparently concerned about the implications for its domestic law.  There is no reference to a Canadian position, despite the fact that this goes beyond current Canadian law.
Civil Enforcement Chapter
  • the U.S., Japan, and the European Union want the civil enforcement powers to extend to any intellectual property right.  Canada, Singapore, and New Zealand seek a more limited treaty that covers only copyright and trademarks.
  • the EU is seeking injunctive relief powers against intermediaries whose services are used by a third party to infringe an IP right.  The EU is alone in focusing on intermediary injunctions.
  • on statutory damages, the EU seeks to limit damages to actual damages, while the U.S. is proposing statutory damages.   There is also dispute on the scope of the IP rights (all vs. just copyright and trademark).  Canada and NZ also want to limit or exclude damages in certain special cass.
  • on the disclosure of information related to investigations, the U.S. is pushing for very broad language, while the E.U. wants to limit with specific kinds of information (and Canada has proposed further limiting language).
Comments (40)add comment

Laurel L. Russwurm said:

ACTA is still Bad
What ever happened to our status as a sovereign nation?
March 01, 2010

AlB said:

...
I am surprised that the US hasn't requested the right to invade countries and haul the perpetrators to Gitmo.

Sounds more and more facist to me.
March 01, 2010

Stewart said:

So much for Democracy
How can this be allowed to continue? Us technically adept citizens know and fear that nothing good can come from this.

There is no such thing as a 'free' trade agreement. In the end it will cost the people so much! The DMCA has already trampled down free speech many times, why can these politicians negotiating this not see that?

Our future generations will hate us for being so naive and stupid and rightly so if we were to allow this to continue and shape our laws. New Zealand is my country and I'll be damned if I'm going to let the United States dictate what I can and can't do.

For the record: I have no issues with Americans, just their overreaching government.
March 01, 2010

J Story said:

Canada should walk away
America's fascist vision is at odds with its self-proclaimed claim to the "home of the free". It's time for Canada to make a statement against such over-reaching by publicly walking away from this so-called negotiation.
March 01, 2010

jv said:

...
"For the record: I have no issues with Americans, just their overreaching government."

Who keeps voting in those governments? The people are responsible for the actions of their governments. The same applies to us.
March 01, 2010

Matthew Skala said:

...
AlB: "I am surprised that the US hasn't requested the right to invade countries and haul the perpetrators to Gitmo."

You forget, they think they already have that one.
March 01, 2010

Jake said:

Baffling
There's no sensible reason why any of these rules are even remotely in the purview of international treaties. Has nothing to do with trade, or counterfeiting. If this ever sees the light of day, I'll flood my Senator with calls incessantly.
March 01, 2010

CM said:

...
The people are definitly not responsible for the actions of the government...we have no control over what they do. Are we voting for this shit? No, we're not. We won't get a choice in the matter. The Americans aren't the issue here, the gov't is.
March 01, 2010

jrep said:

Flood early, flood often
Jake: Why wait?
March 01, 2010

Quentin said:

Patent search at the border
I can imagine crossing a border with a GNU/Linux laptop:

"I am sorry Sir, but this laptop contains software which allegedly violates patents, you will have to forfeit it."
March 01, 2010

anonymous said:

Talking about it will do nothing...
...the US government isn't for the people anymore, it's for the big corporations that fund it. If you want change, it certainly won't be found at the end of a pen.
March 01, 2010

CM said:

...
@anonymous

You nailed it.
March 01, 2010

A. Rebentisch said:

Restreint Use
It seems quite outrageous that a German political party provides European restricted documents via their party website. They claim it was already leaked via http://euro-police.noblogs.org/ before. That blog looks like an false flag operation, security-paranoid persons with articulated brevity, just seems wrong to me. In other words maybe that it the mode of operations, as a matter of reason of state, because the procedure is actually outrageous, or as a means to explore the scene government agencies leak it to whom it may concern.

I actually want legal access because that is my right. I don't want anyone to get unauthorised access to such documents and I am not interested to study such documents, want to abide to the rules. Sounds pretty German, right?

I may add that "restreint" is the lowest classification level. Meaning, this is no real confidential document. The EU scale is harmonised with NATO. "CONFIDENTIEL UE, SECRET UE,TRES SECRET UE" would be "real" classifications, in Germany we call it "amtlich geheim". But as these documents are just "restraint"/restricted it is quite a surprise that they are not made public by the governments involved.
March 01, 2010

anonymous except for the falsie IP address I am using said:

I'm, as mad as hell...
... and I am not going to take it any more. For the technically astute this is not an issue. For the majority this is about the ability to express yourself without concern for a person deeming this (self-expression) 'inappropriate' due to their specific viewpoint or financial interest.
March 01, 2010

anonymous said:

One voice?
As a Suede, I am surprised the EU seems to speak with one voice in this document. We are often told in the media that there is conflict among EU member countries in the ACTA negotiations. Are the Norwegian and Swiss governments contributing to the negotiations at all?
March 01, 2010

Ciaran O'Riordan said:

I'm typing a plain text version of the PDF scans
http://en.swpat.org/wiki/ACTA-6437-10.pdf_as_text
March 01, 2010

A said:

Thank you New Zealand
Thank you New Zealand for opposing the ludicrous and harmful laws proposed by the U.S. government. Replying to Stewart above: I'm all in favor of free trade, but you're absolutely right that U.S. copyright laws have become dangerously unbalanced, harmful to the causes that copyright is supposed to promote according to the U.S. Constitution, and generally harmful to the public. An extension of those laws internationally would be a grave disservice to the future of humanity.

I was born an American, in a family that has been American for almost 400 years, but I'm seriously considering moving to a civilized country, and New Zealand is near the top of that list. A century of government schooling has managed to reduce America from having the best-educated citizenry in the world to having one of the least-educated citizenry in the world, and it's beginning to show.
March 01, 2010

Michael Wyres said:

Dear United States...
...it has come to our attention that those of you in "power" in your country believe that the perceived "pre-eminence" of your nation in the world scene, gives them the right to enforce their laws and beliefs on the rest of the world. Guess what? The United States is NOT the entire world. The internet does not "start or stop" at your borders. You would be well advised that the people in your country who REALLY hold power are those who can vote you in and out of office - the people. ISPs worldwide, and foreign governments should not be responsible for cleaning up the mess that the MPAA, RIAA, and other similar bodies have gotten themselves into by being too lazy to protect their own content themselves. If I write a book, it is the responsibility of myself and my publisher to protect the copyight - not anyone else. If someone sets fire to a house in Canada, and I made the matches here in Australia, does this fire suddenly become my responsibility? Of course it doesn't!
March 01, 2010

damph said:

Yay for multilaterals
The good news in all this is that with ACTA being negotiated as a multi-lateral, hopefully some of these objections will actually see results.

They're very similar to the objections raised during Australia's USFTA negotiations (particularly the access control issue), but in those bilateral negotiations the US just walked all over us.

Pity it seems unlikely that we'll be able to go back and 'ramp-down' the USFTA in line with ACTA.
March 01, 2010

ACTA UP said:

Didja notice
Did you notice that the countries pushing this garbage are the SAME countries that are rapidly drowning in public debt? They're saying, hey, our countries are going bankrupt and we're going to turn into despotic backwaters and banana republics. Is there anything WE, the governing class, can do to hasten the collapse of our economies and strangle any chance of economic revival? There is? Oh yes, I like it. Let's wrap our citizens and businesses into so much intellectual property law - with accompanying spying and police powers - that nobody will raise finger to earn, save or invest ANY money in our countries FOR DECADES at least, maybe until we become colonies of other countries which are less infected with legalistic megalomania.

Face da facts, all you EUros, NorAmericanoids, Japanese and Ozkiwis. ACTA represents a final, self-inflicted kick in the groin to a bunch of countries which were formerly free and wealthy but which are now in the late stages of acute, terminal governmentosis.
March 01, 2010

Viq said:

ACTA!!! Africa is nowhere to be seen
Funny thing about all this ACTA business is that Africa is nowhere to be seen
March 02, 2010

anon said:

...
revolution now
March 02, 2010

Graham B said:

...
Please refrain from labeling the EU as a country - it is a bureaucratic superstate.
March 02, 2010

James said:

Home of the free equals facism?
Look up corporativism and facism on Wikipedia (or your favorite dictionary). I will tell you that one of the founders of modern facism was Moussolini (you know, the guy who worked topgether with Hitler) and it essentially consists of a government running working together with the big corporations to run over its citizens. Just how did the home of the free come into this state???
March 02, 2010

Andre said:

Contradiction
I just would like to add that a few days ago Luc Devigne from the European Commission told the European Parliament oversight committee it was not about internet access and that it was not about consumers.

http://bit.ly/bMNhU1
March 02, 2010

Eric L. said:

RE: Andre
Indeed. So much for those involved who publicly belched the "ACTA isn't this: / because we say so and we're not backing it up" B.S.

Yeah... transparency is TOTALLY not necessary in this situation.
March 02, 2010

Andre said:

...
"I will tell you that one of the founders of modern facism was Moussolini (you know, the guy who worked topgether with Hitler) and it essentially consists of a government running working together with the big corporations to run over its citizens."

No. Mussolini was the idol of the fascist movement, a popular movement of violent youth gangs who fought against communist gangs. Fascism is a result of civil war and post-WWI order. Of course movement was supported by the capitalists and followed the third way paradigm.

What we see here is different, we have a group of people in trade administrations who have strong opinions about what is best for us, and they conspire with each other to make that happen. Parliament and legal constraints, even the IP lobby is not taken serious. While you wonder about ACTA they negotiate bilaterally in parallel.
March 02, 2010

SmilesT said:

Court jester
Many of you complain about what government is doing, yet none of you will do anything about it. As far as I am concerned, you are part of the problem.
March 02, 2010

Luis said:

Why don't people just realize this is all about lobby?
This is all about lobby from giant companies which are afraid of loosing their monopoly and have several people dedicated to lobby on each american senator.
More and more the Internet has shown that open culture is possible and is the tendency, without giant recording industries or such as intermediates. This intermediate industry should DIE!
Anyone in the world can rent a studio, record an album and sell it over the Internet, without giving a cent to those guys.
I wish it would be possible to know how much money has been paid for DMCA.

I'm from Brazil and hope such absurd laws are never ever created here.
March 02, 2010

janin said:

If there is one thing countries of the world agree about ...
... it is how to oppress more their populations. They're not arguing whether to do it or not, just the specifics.
What can the individual citizen do about it ? Nothing, it's done entirely outside of the democratic process. Oh, I can think of a few ways citizens can act out of the democratic process too, but it seems the public opinion is not there yet.
March 02, 2010

Vaudevillian said:

I have done
@ SmilesT

I have already met with my MP and passed on all the info I had on the ACTA. I also proposed a more canadian version of the ACTA. I am still in contact with my MP regarding the ACTA. I have also notified other parties of government about the ACTA. I have gotten a letter and info and my proposal out to The Minister of Foreign Affairs International Trade, Mr. Peter Van Loan (the guy the ACTA negotiating team answers too).

I am doing my best to get my part done.
March 02, 2010

Prefers to remain anonymous said:

I have issues with Americans, Stewart - and I am one.
The US Government no longer represents the people, but rather it is a government of the people, by the Corporation, for the Corporation. I am ashamed of my government, and I deeply regret having wasted more than 2 decades defending this government in the Armed Forces. I should have spent that time learning to commit white collar crimes so that I could be wealthy and "above the law" now, as so many who can afford to incorporate are.
March 02, 2010

Tomk said:

Doing your Bit.
@Vaudevillian

I also have written to the Minister (in Australia).
So that's two of us +Michael that are doing their bit.

March 02, 2010

James said:

Great
Let's all get together and write angry letters to our representatives in government, which they will ignore as they gorge themselves while trampling over our freedoms.

That's going to work out well.

No, what's needed is a more concrete "message".

Still got the right to bear arms, don't ya?

March 03, 2010

Alex said:

Canadians, write to your representatives
If you care, write to your MPs: http://tinyurl.com/ydqhka6

Tell them that you are willing to spend your effort and even donate money to the political party that will combat ACTA.

Also tell them that if ACTA gets signed and/or ratified on their watch, you would do anything legal within your means to ensure they will never get elected in your riding again.

This is war. Time to choose sides.
March 03, 2010

exploder said:

Doing something about it?
Only one option left, but it's something to NOT DO. Pay taxes or buy media. Why fund your only real enemies?

Your neighbor is not your enemy, and neither is his, not on an individual level. The enemy is these organizations collectively. We MUST STOP FUNDING THEM. They are systems run amok, that have devolved from useful productive bodies into behemoth money machines that intend to devour and enslave us.

I know it's hard not to give them your money, but it can be done. Even if we can't all avoid paying 100% of the time, we can progressively de-fund them, one tax dodge at a time, one rip at a time. Donate instead, buy local under the table, work and trade off the books, and pirate online but pay the artists directly. Give to your neighbor, and make some music together while you're at it. The people in our communities need us (each other), not somebody hired with stolen money to hold a title or wear a badge, who then becomes just another asshole constrained by bureaucratic BS and bribes. Neither do we need untouchable plastic stars bigger than life and mass marketed.

Our rights are on the firing line. It's time to opt out. We need to replace these systems become predatory with honest connected humanity.
March 16, 2010

Doesn't matter said:

...
Very soon will need to ask for permission to breathe!Everybody is talking,and some more talking and.......that's it!!! Reality is that is not much we can do!!!
March 27, 2010

SysAdminPgh said:

...
You all better watch out! You say bad things about 0bozo and you become a RACIST... It's all about money. The workers have too much and those that don't work don't have enough so 0bozo has to take care of this. Guess there isn't enough money here in the States so why not take from the rest of the world. As for me... I worked on what became the Internet and was able to become part of the massive 'backbone'. I WILL take a hammer to my equipment before I turn them over to his scum & crew. As for how he got in office... Those who suck off everyone voted for him. Sometimes voted 3 to 10 times in some cases. Then a bunch of Independants wanted "Change" and Conservatives knew that McShame was just a joke and didn't vote. Now we have a huge mess that keeps getting worse as each day goes by. 0bozo hates that he can't stop talk radio and the internet so soon these media markets will be 'regulated' so only his view will be allowed.
May 10, 2010

Yet another pirate said:

...
I do not think many people know about what is going on, how it affects them or know about your site. Can you please get volunteers to spread the word to all the universities and schools so that the youth and their parents know about this and come to the rally.
May 10, 2010

JOHN said:

CANADA
Obama is a filthy lier. I wish I had never voted for him.
He says he is not for the rich yet he wants to make the music and movie industry richer even though their profits grow every year already.

I'll just get my family in a lawless third world country to borrow their it and fuck you obama

November 21, 2010

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