Text: Small Text  Normal Text  Large Text  Larger Text
  • Blog
  • ACTA Text Leaks: U.S. Concedes on Secondary Liability, Wants To Go Beyond DMCA on Digital Locks

Blog Archive

PrevPrevApril 2014NextNext
SMTWTFS
  12345
6789101112
13141516171819
20212223242526
27282930

ACTA Text Leaks: U.S. Concedes on Secondary Liability, Wants To Go Beyond DMCA on Digital Locks

PDF  | Print |  E-mail
Monday September 06, 2010
Given the history of ACTA leaks, to no one's surprise, the latest version of the draft agreement was leaked last night on KEI's website.  The new version - which reflects changes made during an intense week of negotiations last month in Washington - shows a draft agreement that is much closer to becoming reality.  Square brackets have been removed from many sections, leaving the core issue of scope of the agreement as the biggest issue to be resolved when the next round of negotiations begins in a few weeks in Japan.

Perhaps the most important story of the latest draft is how the countries are close to agreement on the Internet enforcement chapter.  The Internet enforcement chapter has been among the most contentious since the U.S. first proposed draft language that would have globalized the DMCA and raised the prospect of three strikes and you're out.  In the face of opposition, the U.S. has dropped its demands on secondary liability but is still holding out hope of establishing digital lock rules that go beyond the WIPO Internet treaties and were even rejected by its own courts.

The key takeaways from the Internet chapter, noting that Canada has reserved the right to revisit elements of this chapter at a later date:

1.   There is still disagreement on scope - the EU wants it to apply to all intellectual property, while the U.S. would limit to copyright and trademark. This disagreement occurs throughout the ACTA text.

2.   Each party is now required to provide the means to address infringement in the digital environment, including unlawful file sharing and streaming. There are no specific requirements and the provision notes that these procedures must preserve principles related to freedom of expression, fair process, and privacy.

3.   The secondary liability provisions that focused on ISP liability have been dropped entirely.  Instead, the chapter requires countries to promote cooperative efforts with the business community to address infringement and says that countries may provide that authorities have the power to order ISPs to disclose subscriber information.  Note that the disclosure power is not a requirement but rather something a country "may" do.

4.   The anti-circumvention provisions remain somewhat in play.  There is general agreement on a broad provision that largely mirrors the WIPO Internet treaties in calling for "adequate legal protection and effective legal remedies against the circumvention of effective technological measures."  If the obligation were to end there, the provision would simply ensure that all ACTA countries establish anti-circumvention rules, with all the flexibility that WIPO allows. 

However, the U.S. is still pushing for two additional provisions that would define adequate legal protection and effective legal remedies in an effort to limit the flexibility that all countries agreed to with the WIPO Internet treaties in the 1990s.  The U.S. approach would mandate protection against circumvention of access controls as well as include several prohibitions against devices that can be used to circumvention, potentially even including marketing circumvention devices. The EU has reserved its position on the entire additional provision, Japan opposes parts of it, and (as mentioned) Canada has reserved on the entire chapter (presumably with this section in mind).  Moreover, the U.S. also supports a second provision that makes it clear that circumvention does not even require infringement of copyright.  This appears to contradict recent U.S. caselaw and would raise constitutional issues in Canada. The EU has proposed deleting the entire provision.

There is one further provision of note which would open the door to exceptions and limitations to the digital lock rules, provided they do not significantly impair the adequacy of the protection.  This provision is consistent with the U.S. exception approach that led this year to new exceptions for jailbreaking iPhones and unlocking DVDs in some circumstances. The EU is also opposed to this provision. 

This chapter is far better than the initial U.S. proposal, but other countries - particularly Canada - should hold out for anti-circumvention rules that mirror the WIPO Internet treaties.  The U.S. demands would currently have a significant impact on the debate on C-32, effectively constraining the House of Commons' ability to tinker with portions of the digital lock rules.  Moreover, the attempt to de-link circumvention from copyright infringement runs counter to a growing body of U.S. jurisprudence and appears to be a USTR attempt to re-write elements of the DMCA as interpreted by U.S. courts.  I'll post more on the rest of the leaked agreement shortly.

Update 9/7: New post on the final four chapters in ACTA: enforcement practices, international cooperation, institutional arrangements, and final provisions.

Comments (22)add comment

Tux said:

...
The ACTA treaty is purely sickening.
September 06, 2010

ultrunip said:

...
I don't care what kind of idiotic provisions the ACTA contains, we don't need any more ineffective and worthless pro-copyright treaties/laws that will fail to do their intended job and strip away more of our freedoms. I'm against no matter how much they are able to "better" it, because it's absolutely worthless.
September 06, 2010

jv said:

...
I couldn't agree more Tux. How does this stuff pass constitutional muster in most countries? I am surprised that they haven't tried to push to make is mandatory to allow companies to sue tens of thousands of people in one law suite like in the US. If I wanted US laws I would move to the US. Harper may hate Canada but I don't.
September 06, 2010

Crockett said:

...
"Moreover, the U.S. also supports a second provision that makes it clear that circumvention does not even require infringement of copyright."

Well, that is essentially what C-32 does already, giving shifting/backup/parody provisions then trumping them with any digital lock. So nothing new here.

Sort of removes any doubt where direction on C-32 comes from 0_o

www.youtube.com/watch?v=cYEpJb8F4Uk
September 06, 2010

Crockett said:

...
And furthermore, where do the Americans get off pushing for scope greater than the EU parliament has already ruled against and even their OWN COURTS have said are overreaching.

Is the US ACTA team living in a dream world or taking orders from Biden and his contributors? If it's the latter then it speaks volumes for the state of democracy and respect for the judicial system in the "land of the free". [not that Canada has been a poster boy either]
September 06, 2010

ateva said:

Sign Visibility Specialist
Looks like the distant positions of the EU and US might make it hard to pass the treaty this year. Unless they resolve their differences soon, we may have more time to get the word and try to stop this.

WRITE TO YOUR ELECTED OFFICIALS.
September 06, 2010

Anonymous said:

Some Links
For those who live in the US:

https://www.eff.org/action/tell-your-lawmakers-anti-counterfeiting-treaty

For those who live in the EU:

https://www.eff.org/action/eu-action-alert-urge-your-mep-take-stand-internet-acta

http://www.laquadrature.net/wiki/Written_Declaration_12/2010_signatories_list

http://www.laquadrature.net/wiki/Written_Declaration_12/2010_signatories_list#List_of_the_non-signatories

Besure to type "ACTA" on this search engine below.

http://www.europarl.europa.eu/activities/plenary/writtenDecl/wdSidesSearch.do
September 06, 2010

Laurel L. Russwurm said:

not enough are aware of the cold breath of Big Brother breathing down our necks
@Crockett asks "where do the Americans get off pushing for scope greater than the EU parliament has already ruled against and even their OWN COURTS have said are overreaching"

The sad answer seems to be that the United States government will get off AHEAD of Canada and the rest of the world. If the rest of the world is radically constrained by this treaty and the resulting laws our 'sovereign' nations are forced to enact because of it, we will be at a serious economic disadvantage. Isn't that the entire point of the ACTA exercise?

@jv I don't think ACTA has 'passed constitutional muster' in ANY country. That's why they have worked so hard to try to keep it a secret treaty. As I understand it the constraints placed on participation were heavy duty non-disclosure provisions, which is why most elected representatives in most democratic governments of the countries participating in ACTA were not informed of what was happening.

It's why Charlie Angus tried very hard to get Tony Clement to put Canada's ACTA negotiations on the record. Most of our government is not even privy to the secret treaty negotiation that our government is engaging in.

Most Americans are also unaware, as are their elected representatives. In the same way that the DMCA is bad for most Americans, ACTA will be bad for most Americans. The reason for maintaining the secrecy is to keep it that way. Of the relatively few Americans who are aware that there is an unsavory secret treaty called ACTA, most are likely unaware that American passage of the ACTA treaty will not need congressional scrutiny; it will only require President Obama's signature to pass.

Laws like the UK Digital Economy Act and our own misguided Bill C-32 will make it easier for the respective negotiators to sign on the ACTA dotted line. This is why the lobbyists have leaned so very hard on our governments. Even if the AMericans also sign, well hey, it isn't the USTR's fault that the courts have eased up on the DMCA.

Canada is miraculously in the best possible position to fight Bill C-32 with a minority government. The Conservatives cannot pass Bill C-32 by themselves. It is important to both keep the pressure on and to make sure that Canadians are aware of this.

Most of the people here know something about it... and if you're new there is a wealth of "ACTA threat" information just over there in the left sidebar. Most Canadians still don't know about this. Tell people.

Today we celebrate "Labour Day". As we stand shivering around our barbeques, tell your friends and family about Bill C-32 and ACTA.

Spread the word. And as ateva suggested:
WRITE TO YOUR ELECTED OFFICIALS.

Especially the ones in opposition.
September 06, 2010

MrktMind said:

...
@ateva "WRITE TO YOUR ELECTED OFFICIALS"

Sorry but our elected officials are owned by the corps pushing for this treaty. It won't matter how many people write to them. The only way to get them to act is to offer more $ than the corps. Seeing as how the corps have some very deep pockets that is highly unlikely.
September 06, 2010

Crockett said:

...
MrktMind, I'm almost that jaded, but I think opposition parties could have some incentive to oppose this bill if it embarrasses the CPC enough. Sometimes that is worth more than money to a politician.
September 06, 2010

Laurel L. Russwurm said:

Think again, write again.
They LIKE being elected officials. They REALLY like being the government. Elected officials LIKE being lobbied by Hollywood. Of course they do. Wouldn't you?

We have one compelling thing in our favour: we can pull the plug. But more people must be made aware of the issue.

They are not going to listen to your letter, or my letter. The most compelling argument in the world won't sway them. But if there are enough letters it will give them pause.

Think about the climactic scene in that great old Hollywood movie from a simpler time as bag after bag of mail is dumped on the judge's desk in the Natalie Wood version of "Miracle on 34th Street". The judge wants to be re-elected so he does the right thing.

Tell people. Write letters.
September 06, 2010

Kis said:

Pro/Anti-copyright movements
In a perfect world, people would respect the authors of the material and not steal it. We're not in a perfect world.

That said, it's very clear the motives behind the media companies, material is not to be owned, it's to be licensed (eg rented.) So if things keep siding with the media corps, then eventually you will only be able to watch movies, in-tact in theaters, and if you want to watch the movies with their original sound track, that will be extra, and every time you want to listen to the sound track, pay up. You need to look no further than the destruction of internet radio to see that license schemes are designed to blackmail all future use of the content.

I recently bought a DVD of a TV series from the 80's (Adventures of Super Mario 3) every single licensed song was replaced with a generic 80's beat. My thinking is that when the original TV series was aired, it was only licensed for broadcast, not VHS/DVD/etc. So instead of trying to procure a new license for these songs, they just went the cheap route and cut them out. I've also seen this on Youtube, where the audio was muted every time a licensed song was used on a show that originally was broadcast on PBS.

See this is the big picture, is that instead of releasing content as it was intended, the media corps will just edit it to save money and not have to pay the artist a thing.

Everytime you see a trademark on TV? Or in the Movies? What if that company refuses to license it when the next media shift happens, oh no, more edits.

Where's the demand for releasing uncut as-seen-on-tv/in-theaters content? Oh no, maybe the UK or AU might deep the content inappropriate, and have violence or naughty bits cut out. Then we have MMO games where in 10 years the game will be shutdown and nobody will ever be able to play it again.

The big picture is that all these pro-copyright policies do is make more targets for media companies to sue.

But on the other end of the spectrum we have people who won't pay for anything, they borrow, or steal DVD's from their friends, workplace, etc rip them to their media center, and then, maybe return them. They might never even watch it. There are people who have the gall to rent movies(or games,) rip them and then return it. And for the lazy types there are 110-in-1 box sets of every movie (the big mouse company) ever made, made in china, saving them the effort of paying 25$ for each movie and instead getting the entire set for the price of 1 disc.

The big lawsuit targets, should, rightfully be the people making money from piracy. As more media move to online-sales/rentals only, the ability to trace physical piracy goes away, and the media corps panic as people now pay Russian or Chinese pirates for perfect copies (with additional languages) for pennies on the dollar for the otherwise exact same content.

People don't want to rent anything, they want to buy once, watch as many times as needed. They don't want to re-buy everytime there is a media shift, or a new super deluxe HD format comes out.
September 06, 2010

Crockett said:

Avarice and Indifference
"They don't want to re-buy everytime there is a media shift, or a new super deluxe HD format comes out."

But the media companies do, and that is the crux of the problem. I don't see how the avarice of the media companies and the indifference of the media 'pirate' can ever find common ground. It's the honest consumer in the middle who continually gets the shaft. Until that consumer speaks up and says "HEY! wait a gon-darn minute, stop punishing me for your losses" then it will always be a battle between the other two.

The media companies better get the message real soon, that they need to treat their customers right or there will be less of them and more of the 'pirates' every day.
September 06, 2010

Jason K said:

...
Well there goes my vote for Mr. Van Loan.

September 06, 2010

James said:

...
Shameless policy laundering by our gutless politicians fellating the content industries.

Makes me so angry I want to break things.

This is not why my grandfather fought in WW2.
September 07, 2010

Herman Christ said:

ACTA, doing busines the funny way
Dear Mr Geist,
I have strong feelings that there is more under ACTA than it apears. Lets assume the people on top of big enterprises have solid knoledge on marketing, both teoretical and pratical. There are hundred thousands (probably more) consumers seeking their products, its a hudge potential market and it is needed only to find the right price. People ho bought counterfeit goods are consuming the brands just like people buying the original products the diference is on price. Instead of developing new marketing and manufactoring process to reach those consumers they choose to put then in jail and they are putting a lot of energy on that. Don't get me wrong, i'm not using irony here, the hole thing just don't make any sense under the marketing body of knoledge, there must be some other hide agenda ruling this issue.
September 07, 2010

Cinsel uyarici damla said:

http://www.goldenlovita.com
Thank you for your efforts and useful information ..
September 07, 2010

Mikhail said:

-
@Laurel L. Russwurm - "They LIKE being elected officials. They REALLY like being the government. Elected officials LIKE being lobbied by Hollywood. Of course they do. Wouldn't you?

We have one compelling thing in our favour: we can pull the plug. But more people must be made aware of the issue.

They are not going to listen to your letter, or my letter. The most compelling argument in the world won't sway them. But if there are enough letters it will give them pause."

Don't just write to your MLA. Write to their opposition in your zone as well. My favourite approach is to write the email to the MLA, but cc: the opposition. Make sure you phrase your email so that it is understood that you're undecided on how you want to vote next time and that this very important issue may well help you decide.
September 07, 2010

Blaze said:

wow
"...potentially even including marketing circumvention devices."

That's insane. I have EVERY right to block advertisements. Its a modification of my property.
September 07, 2010

Crockett said:

A thoughtful article
This is a good read, basically saying what many of us have been arguing here.

Media distributors need to either change with the times, quit or fail. Efforts outside of this are a waste and ultimately pointless.

http://arstechnica.com/tech-policy/news/2010/09/content-industries-not-doomed-yet.ars
September 13, 2010

mall said:

mall
http://www.fakejewelrymall.com
More and more young girl adored by the GeYa (Goyard), to the more successfully captured all the beauty of a heart, in earlier introduced a Goyard Life in Pink series, the white powder for summer comes, design more to you don't believe, pretty girls, walk not to drop!
October 22, 2011

Geciktirici Sprey said:

Geciktirici Sprey
http://www.stagdelay.info/
See this is the big picture, is that instead of releasing content as it was intended, the media corps will just edit it to save money and not have to pay the artist a thing.
August 15, 2013

Write comment
smaller | bigger

busy
Tags:
, , , , ,
Share: Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterEmailPrintPDF
Related Items: