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ACTA Ultra-Lite: The U.S. Cave on the Internet Chapter Complete

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Wednesday October 06, 2010

One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions.  When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you're out used as an example of an appropriate policy as well as language that attempted to create a global DMCA.  The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the WIPO Internet treaty model. In its place, is a chapter that is best viewed as ACTA Ultra-Lite. For Canadians, this is crucial since it now leaves an ACTA that is far more flexible than even Bill C-32.  In fact, the Canadian copyright bill now exceeds the requirements under ACTA and could be amended in a manner that will allow for greater balance on digital locks and still be ACTA compliant.

It should also be noted that this chapter is still not concluded.  The inclusion of trademarks in some provisions would seemingly require changes to U.S. law and has not acheived consensus.  Further, a provision on enforcement procedures " including the unlawful use of means of widespread distribution for infringing purposes" has not received consensus support. With respect to what has been concluded:

ISP Liability

The approach on ISP liability is largely unchanged from the last leaked draft and involve two provisions.  First:

Each Party shall endeavor to promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

Second:

Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of    copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing copyright or related rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.

Note that neither of these provisions create new substantive obligations.  The first provision requires an effort to promote cooperative efforts, not new laws.  The second provision is permissive - a party may provide new laws, but is not required to do so.

Digital Locks/Anti-Circumvention

The anti-circumvention rules have also undergone significant change from the initial proposal and have even changed from the last leaked draft from the August round of negotiations in Washington.  The primary requirement is a mirror of the WIPO Internet treaty provision, which features considerable flexibility in implementation:

Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law.

The other provisions attempt to define "adequate legal protection and effective legal remedies" but still leave considerable flexibility in doing so.  The language is such that you can picture the U.S. delegation slowly caving on its demands in order to achieve consensus.  For example, in the last draft the U.S. wanted to include circumvention of access controls:

the unauthorized circumvention of an effective technological measure [US/Sing/Aus: that controls access to a protected work, performance or phonogram and is] carried out knowingly [US: or with reasonable grounds to know

This language is now gone - there is no requirement in ACTA for a prohibition on access controls. This is notable from a Canadian perspective, since Bill C-32 specifically targets access controls in some of its provisions.

There are now two sets of additional requirements.  First:

to the extent provided by its law:
(i)    the unauthorized circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and
(ii)    the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and

Note that this requirement now come with a caveat of "to the extent provided by its law."  This was demanded by the Japanese delegation and it appears to effectively make the additional definitions optional, since it is only to the extent found in a country's domestic law.  In other words, if it is not found in the domestic law, there is no requirement to implement these requirements.

Second:

the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:
(i)    is primarily designed or produced for the purpose of circumventing an effective technological measure; or
(ii)    has only a limited commercially significant purpose other than circumventing an effective technological measure.

These specific requirements are all subject to appropriate limitations and exceptions.  The final paragraph in the Internet chapter provides:

In providing adequate legal protection and effective legal remedies pursuant to paragraphs 5 and 7, each Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraphs 5, 6 and 7. Further, the obligations in paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement under a Party’s law.

This is crucial, since it means that any anti-circumvention protection can still be made subject to fair dealing or fair use as well as any consumer exceptions. Moreover, it represents another major cave by the U.S.  The earlier drafts included the following critical limitation on the inclusion of exceptions:

so long as they do not significantly impair the adequacy of legal protection of technological measures or electronic rights management information or the effectiveness of legal remedies for violations of those implementation measures. 

With those limitations dropped, there is no limiting language on the scope of exceptions to digital locks.

Taken together, the Internet chapter must be seen as failure by the U.S., which clearly envisioned using ACTA to export its DMCA-style approach (in fact, the failure extends to the anti-camcording provision, which is now merely something a country may do, but is not required to do).  Instead, the treaty leaves much the same flexibility as exists under the WIPO Internet treaties and opens the door to Canadian reforms to the digital lock provisions in Bill C-32.

Comments (30)add comment

Russell McOrmond said:

Not a failure for the USA
Just like the 1996 WIPO treaties, the USA will be pressuring all trade partners to implement ACTA in the way they wanted the treaty to have concluded, not the way it actually did. I think with C-32 it is clear how little parliamentarians are actually following any of these critical policy issues!
October 06, 2010

IamME said:

Failure?
With Mexico being the first and, I suspect, not the last to withdraw from ACTA, how can this not be considered a failure? Yes, the US will pressure all trade partners to implement ACTA in the way they wanted, but how is this any different than before ACTA? They've been doing the same thing since they first implemented the DMCA. They've all but succeeded here in Canada with the culmination of C-32.

I'm one who buys a vast majority of my entertainment, with many hundreds of CDs, tons of (Purchased) downloaded music and over 1100 DVD/BD movies. My movie collection alone would carry a replacement value well over $30000, but has many rare and limited editions which could not easily be replaced. C-32 in it's current form would make it illegal for me to make backups to protect this investment. This is NOT "balance"...this is greed pure and simple!!!

I see the "failure" of ACTA to achieve the American agenda is a ray of hope that some assemblance of actual "balance" can be introduced in to C-32.
October 06, 2010

Napalm said:

...
Alternatively they will redefine the meaning of words. "May" means "must" and so on.

Don't forget that this is corporate US at work.

Nap.
October 06, 2010

Napalm said:

...
@IanME: "With Mexico being the first ..."

I've read the article and I found it interesting that while the Mexican senator decries the poor condition of their telecoms infrastructure when compared to US, he doesn't also mention that the owner of the Mexican telecoms (Mr. Slim) is in no way poorer than his US peers.

Nap. :-)
October 06, 2010

Anonymous said:

...
Mexico already pulled out the ACTA negotiations and the EU has adopted written declaration 12 I think ACTA will fail and collapse from there anyways.
October 06, 2010

Napalm said:

...
@IanME: "I'm one who buys a vast majority of my entertainment, with many hundreds of CDs, tons of (Purchased) downloaded music and over 1100 DVD/BD movies."

Well I must confess I'm somehow in a better position than you as my main interest is music. At this time I am contemplating replacing my CD player with a "Hard Disk player". A device like this:

http://www.naimaudio.com/hifi-products/type/2

However I'm waiting first to see what the format shifting provisions in C-32 would be. I don't want to be importing a $4000 illegal to use device, eh?

As for movies... rent baby rent. After the Avatar antics, ever-updating HDMI/HDCP specs and the Cinavia destruction of audio fidelity it's obvious that you cannot actually "own" anything in Blu-Ray format (which actually isn't a format but a moving target maneuvered by $ony's DRM freaks).

Nap.
October 06, 2010

Jason K said:

...
Hold on your horses, the EU Parliment still has to weigh in on this. A lot going on with respect to the EU Parliment in the days leading up to today on this.

EU Parliamentarians Move to Block Anti-counterfeiting Pact

This treaty still may end up on the cutting room floor.
October 06, 2010

Jason K said:

Link
HTML code didn't work:

EU Parliamentarians Move to Block Anti-counterfeiting Pact:

http://www.pcworld.com/businesscenter/article/206977/ eu_parliamentarians_move_to_block_anticounterfeiting_pa
ct.html
October 06, 2010

IamME said:

@Nap
That is a beautiful machine, but why not do it with a small-form PC and an external HD. You can get wonderful remote control hardware these days and several companies produce high end audiophile grade sound cards. It's A LOT cheaper with infinately more flexibility. Mind you, that wouldn't be nearly as pretty as the Naim machine. :D

Like you, I'm waiting to see what the provisions are going to be. I'd like to get a region-free BluRay player, but I'm afraid it'll get trapped at the boarder.

We'll see HDMI/HDCP calm down a lot now that the master key has been cracked. They can't change the keys since they have too much hardware and content already on the market, so it'll go the way of Macrovision and CSS and be no more than an annoyance.
October 06, 2010

Napalm said:

...
@IanME: "I'd like to get a region-free BluRay player, but I'm afraid it'll get trapped at the boarder."

If ACTA gets signed, not only will the device get confiscated by customs, but you'll also get thrown in jail :-) possibly some US federal one as you'll get extradited :-) so they might prescribe a good dose of waterboarding to go with it too :-)

As for the PC solution - general use PCs are not really designed for real time operation which is required for high end audio, they have latency / clock jitter issues so I would like to go for a dedicated solution.

There's a Canadian company here in Toronto that's specializing in high end / professional audio and they promised to come up this fall with a HD player for around $2000, I'll check that one too - and I strongly hope that it won't get outlawed even before it's ready :-(

Nap.
October 06, 2010

IamME said:

This is harsh!! No more Kiss albums for me.
"Gene Simmons had a message for aspiring entertainers everywhere: sue first, think later.

"Make sure your brand is protected," Simmons warned during a panel discussion. "Make sure there are no incursions. Be litigious. Sue everybody. Take their homes, their cars. Don't let anybody cross that line.""

http://arstechnica.com/tech-policy/news/2010/10/kiss-frontman-we-should-have-sued-them-all.ars

Inherantly flawed, short-sighted thinking since many, admittedly not all, of those "cute little foxes" grow up to be paying customers. Sue them now and those bridges may likely be burned forever!! I guess he's learned nothing from Metallica and other artists who admitted sueing their fans was not the smarted business decision.
October 06, 2010

Laurel L. Russwurm said:

the danger
Just because it is not as bad as it might have been since they Americans have caved, and consensus was not reached by negotiators, and the Mexican Senate has said "No" and the UK may well say "No", there us nothing stopping any of the parties from signing the thing.

After all, they were willing to enter the negotiations secretly in the first place. Still, participating governments probably experienced a great deal of American pressure right from the start.

Are governments willing to sell out their citizens, vulture and sovereignty in an attempt to curry favor with a foreign power?

All I can say is that Canada is fortunate to have a minority government.
October 06, 2010

Chris A said:

...
As much as it's nice we have a minority government, I don't think that the Liberals think different enough from the Conservatives on issues like this for them to vote against it if we decided to sign on.
October 06, 2010

IamME said:

At Least
Atleast it's not all fire and brimstone like the US was pushing it to be. One big improvement is that we could remove anti-cicumvention from C-32 AND be compliant with both WIPO AND ACTA in that regard. I'm not saying ACTA is all fowers and butterflies but, at least for the Internet provisions, it's better than C-32. Hopefully, if the EU pulls the plug on ACTA, we follow suit. Probably not though, we have too many "wannabe" US politicians sitting in our government office. Our last vestage of hope is that the opposition kills the anti-circumvention portion of C-32.
October 06, 2010

IamME said:

...ammendment...
"at least for the Internet provisions, it's better than C-32." Should have read...

at least for the Internet and TPM provisions, it's better than C-32.
October 06, 2010

Crockett said:

Forgive me if I'm an optimist ...
ACTA is either going to be a shadow of it's former self or, if more parties pull out, a ghost.

Attempts by the **IA's of the world to maintain their onerous control will continue to be diluted by the general displeasure and growing awareness of the global consumer. Don't think that if people [voters] had not been speaking out that the behind the door deals would not have gone differently. It is going to be a long and utterly pointless fight, but a business model will eventually emerge that will be beneficial to both artists and consumers.

I applaud Professor Geist and the people who take the time to blog. Not saying that it was the efforts here that made the difference but I think the narrative reflects the general view of informed people and the growing awareness of people everywhere.

I can only hope that James Moore, or even his puppet masters, can see the writing on the wall. It would be foolhardy to put C-32 through in it's current form as the worldwide landscape has moved on significantly on many of it's issues this Summer alone. Combine that with the sad optics of the ACS law debacle, CRIA's trip to Washington and Mexico's withdrawal and you would think that some new attitudes, or political acumen, would start to dawn in Ottawa.
October 06, 2010

Helena Handbag said:

WTF does it all mean for Joe Sixpack??
Forgive me for being late to the party and policy ignorant, but could someone PLEASE explain what all this means to regular Internet users who trade music mp3s every now and then and may occasionally patronize The Pirate Bay (using language and terms one does not need a law degree to understand). Many thanks!
October 06, 2010

Crockett said:

Try a new way ..
HH. I, nor many of the bloggers here, are advocating file sharing. Rather we are arguing for fair use rights for consumers and better models for artists to be compensated for their works. As far as ACTA's impact on file sharing, nothing has really changed from what it is now. Attempts to come down harder on this issue did not seem to make it into the final draft. Regardless of the arguments for/against the impact of file sharing on industry profits, I would encourage you to seek out ways to reward artists directly for their art by direct purchases, concerts or sharing open licence works to expand their exposure.
October 06, 2010

Napalm said:

...
@Helena:

It means that people that legally bought their CD /DVDs will be also criminalized. At least for transferring them to iPods /laptops / network attached storage and so on.

So it won't matter that you downloaded your mp3 file via Bittorent from a shady site while I bought a CD from Futureshop that I "ripped" to my iPod. We'll both be criminals.

At which point one may ask what's the added value in paying for that CD.

Nap.
October 06, 2010

Crockett said:

James has made a new blog entry ...
http://fakejamesmoore.blogspot.com/
October 06, 2010

Napalm said:

...
@Crocket: ROFL!

Nap.
October 06, 2010

IamME said:

Backups / Format Shifting / Time Shifting (i.e. VCR / PVR)
ACTA doesn't criminalize this does it? If so, I read something wrong and retract my previous statement about fire and brimstone because this would present substantial problems. C-32 in the presence of digital locks does criminalize such activities and pretty much trumps ALL user rights.

@Helena
No one here is advocating piracy. Only fair use of content we purchase. But not everyone is perfect, I've fully admitted a number of times on this blog that I download TV shows I miss. It's wrong and I don't try to justify it. I don't have a PVR and don't consider any different that time shift...many would disagree. We all pick our battles and know our weaknesses. While I personally believe The Pirate Bay itself should be no more liable than Google or ISPs (Internet Service Prividers) for the content it's users post, on the other hand the service is widely abused. What does ACTA mean for file sharers? Very little...for the time being. It pretty much leaves the enforcement up to the individual countries, which is how it should be. This brings me to C-32, which introduces extremely strict digital lock provisions which literally strip away all user rights when locks are used. This includes pretty much ALL commercially produced DVDs and BluRay disks. Downloading a movie is illegal now as will continue to be illegal after both ACTA and C-32. With the private copying levy, MP3s are a more grey area and I'll leave it up to someone more knowledgable than I to explain this.

If you've ever received a notice from your ISP that you've been caught illegally downloading something, this is called "notice in notice". This will continue and will become mandatory in C-32. C-32 also limits statutory damages to a total of $5000 for non-commercial infringement, so if passed we won't see the million dollar law suits like in the US. All I can say is be careful. The corporate bloodhounds are ever closer to going after file sharers in Canada...even $5000 is not an unsubstantial amount.

October 06, 2010

Jason K said:

...
Anything that hints of attacking constitutional freedoms of democratic citizens such as the graduated response should be shunned out entirely. Just because the words have changed from "Shall" to "may" doesn't in my mind water down, or cause failure to these policies.

We have a constitution for a reason. I wonder if the Nazi propaganda of WW2 changed a "shall" to "may" would have changed the entire war, and saved the Jews from persecution. Probably not.

It's a change in mind we need here. Our constitutional freedoms are still very much at risk by this treaty. Nothing should be threatening constitutional rights no matter what the cause, or we set ourselves up for civil injustice if we pursue this mindset. I'm concerned that history will repeat itself. I don’t see how the rights of citizens can be protected, when the very principle of this treaty goes against civil liberties, and constitutional rights as it is? How can we enforce such policies with due process? Are our constitutional freedoms going to be suspended now on the basis civil law? Lots of questions still need to be answered. Wondering why this was not brought up in QP today.
October 06, 2010

ANNM said:

So what will happen in the EU?
The EU parliament has adopted a written declaration that demands that ACTA does not contain any wording about copyright infringement, which it clearly does. Is the parliament going to cave in on this like they did with the SWIFT treaty, or might it actually make a difference?
October 06, 2010

Jason K said:

@ANNM
Some quotes here from the EU here:

http://www.zdnet.co.uk/news/regulation/2010/10/06/eu-promises-no-law-change-as-full-acta-text-released-40090432/
October 06, 2010

Dharmendra said:

transform@colonialmed.com
I love reading these blogs. It makes me extremely knowledgeable.
October 06, 2010

Napalm said:

...
Interesting reading:

http://yro.slashdot.org/story/...Powerhouse

I'm curious which treaties will US adhere to once all the interesting patents will be owned by Chinese companies.

Nap.
October 06, 2010

Eric L. said:

RE: Crockett
"HH. I, nor many of the bloggers here, are advocating file sharing"

Just to point out: there are completely legitimate usages of file sharing. I think it is necessary to distinguish between those and the file sharing that we are referring to. Although, I should add that the bad file sharing has been largely indicated to be a benefit to music/movie sales rather than a detraction.
October 09, 2010

Crockett said:

...
@Eric "there are completely legitimate usages of file sharing."

Yes, your're right, I should have been more specific. I also agree that that in some circumstances that file sharing of copyrighted works can have a net positive effect. And, of course, the 'losses' claimed by the **IA's are nothing but delusional. But, my hope is that if people are going to file share that they use CC works as the Artists openly encourage it. It will also have the effect of not supporting the efforts of the **IA's who are very anti-consumer and not very pro-artist.

On, another topic. I am pleased to see that the Irish courts have turned down an effort by the big labels (RIAA) to pass 3-strike legislation. This along with the failure to enshrine such practices in ACTA leads me to hope that, as I have said before, that the public will continue to not tolerate such nonsensical efforts by industry. As a matter of fact, I think these efforts are only heightening the awareness of the general public to the inequity of the current copyright regimes and the limits that big business is trying to push them to.

The **IA's do not seem to have the sharpest sticks in the bunch.
October 11, 2010

Crockett said:

Typo
LOL, that should have been **AA's not the sharpest sticks in the bunch. Yes, I see the irony ;)
October 11, 2010

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