ACTA text shows US caved in on Internet provisions/Kiss says "Sue EVERYBODY!" (3 articles)

By Nate Anderson | Ars Technica

Talk about a cave-in. The Anti-Counterfeiting Trade Agreement (ACTA) has been three years in the making, and at one point included language advocating "three strikes" regimes, ordering ISPs to develop anti-piracy plans, promoting tough DRM anticircumvention language, setting up a "takedown" notification system, and "secondary liability" for device makers. Europeans were demanding protection for their geographic marks (Champagne, etc). Other countries wanted patents in the mix.


That's all gone in today's release of the "near-final" ACTA text (PDF). US Trade Representative Ron Kirk, whose office negotiated the US side of the deal, issued astatement this morning about the "tremendous progress in the fight against counterfeiting and piracy," but the real story here is the tremendous climbdown by US negotiators, who have largely failed in their attempts to push the Digital Millenium Copyright Act (DMCA) onto the rest of the world.

Apparently, a face-saving agreement is better than no agreement at all—but even the neutered ACTA we see today could run into problems. Mexico's Senate yesterday approved a nonbinding resolution asking for the country to suspend participation in ACTA, while key members of the European Parliament have also expressed skepticism about the deal.

Even Public Knowledge, a DC advocacy group that has long opposed ACTA, said today that the new text is "a qualified victory for those who want to protect the digital rights of consumers around the world. Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet Service Providers and search engines."

Let's see what's left.

Internet piracy. In earlier drafts, ISPs were told that they must have a policy for disconnecting repeat infringers (something already in the DMCA) in order to steer clear of liability, and disconnecting users after "three strikes" was held up as a model. All of this is gone, reduced to a mere footnote saying that countries can do what they want to limit ISP liability.

French group La Quadrature du Net remains unhappy about wording that "seeks to extend the scope of the 'digital chapter' to criminalize 'unlawful uses of means of widespread distribution.'" But that wording says nothing about "criminalizing" anything (the "enforcement" here refers to both civil and criminal enforcement, as the previous paragraph in the text makes clear). And the specific phrase "including the unlawful use of means of widespread distribution for infringing purposes" is one of the few in the document set off by a highlight and italics, which is to say that it has not been agreed upon.

Cooperation. Instead, ACTA signatories agree 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." This has the potential to be worrying—will governments push ISPs to start disconnecting users without any judicial oversight? But it's also remarkably vague in what it requires, a far cry from the detailed ISP provisions in previous ACTA drafts.

The RIAA has already sent out a statement confirming that it likes this bit a lot, since "it is estimated that as much as 95 percent of global Internet traffic in music is illegal."

IP lookups. Each country does need to provide some way for rightsholders to turn an IP address into a name. Many countries have this already; in the US, it's a subpoena, while a "Norwich Pharmacal Order" in the UK accomplishes the same thing.

DRM. The tough rules against DRM have been watered down. ACTA signatories have to outlaw DRM circumvention, but there's a huge caveat; this only applies to DRM which restricts acts not authorized by rightsholders "or permitted by law." That last caveat is huge, and aligns ACTA more with the older WIPO Internet Treaties than with the DMCA. This language would appear to allow DRM circumvention when the resulting use is a legal one.

Sadly, when it comes to tools for doing the circumventing, these are broadly banned, even where some limited uses might be legal. This appears to set up a situation in which an ACTA signatory could allow people to bypass DRM to make backups or exercise fair use rights, but could not allow distribution of the tools to help them do it.

Patents. Patents appear to be gone from much of the treaty (with the US pushing hard to keep them out of the "civil enforcement" section as well, though this remains contentious).

Geographic indicators. Europe has already indicated that it may not support ACTA if its precious food marks are not protected worldwide (something that would force Wisconsin-produced "Parmesan" to change its name, for instance, since Parmiggiano-Reggiano is a protected geographic mark.) The new text does not mention such marks specifically, though Sean Flynn of American University worries that they could be snuck in through an ambiguous phrase in the border seizure section.

iPod searches at the border? The "de minimis" provision remains. ACTA countries can "exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage."

Green destruction. When customs officials do seize loads of counterfeit T-shirts, say, they can't just remove the labels and let the items enter the commerce stream. Instead, the good should be destroyed. When that happens, the bonfire must be a "green" one, as "the destruction of goods infringing intellectual property rights shall be done consistently with each Party’s laws and regulations on environmental matters."

Camcording. Even the MPAA's beloved camcording rule, which has been in ACTA drafts for a long while, could be in trouble. The draft text makes clear that some countries still believe that criminalizing theater cammers should be optional, and the parties have yet to reach an agreement.

Cave-in

As Canadian law professor Michael Geist puts it, "one of the biggest stories over the three year negotiation of ACTA has been the willingness of the US to cave on the Internet provisions... 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 [existing] WIPO Internet treaty model.

"Taken together, the Internet chapter must be seen as failure by the US, which clearly envisioned using ACTA to export its DMCA-style approach."

But there are plenty of other opportunities for mischief, especially when it comes to technical details or to items like statutory damages and how they might be calculated. This is especially true since ACTA negotiators have shown the usual preference for exporting intellectual property protections while leaving limitations and fair uses up for grabs.

With no more negotiating sessions scheduled, this is close to a final draft, and something like it will probably be adopted unless countries start pulling out of the agreement altogether.

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MPAA loves ACTA, but European Parliament "alarmed" by it

By Nate Anderson

The motion picture business likes (PDF) the Anti-Counterfeiting Trade Agreement (ACTA). After a few tough years of record-setting box office receipts, the industry welcomes new legal enforcement tools that will "protect the jobs of the millions of men and women working in film and other creative industries."

But the European Parliament isn't convinced yet. After all, there's not even a text to view. And despite official statements expressing peace, love, and harmony, it's clear that ACTA hasn't actually been finalized and that some real issues still remain.

So the news that negotiators have packed it in and will host no more meetings didn't sit very well with Parliament, which worries that an incomplete deal is being passed off as final and will soon be shoved down its throat. To keep its collective throat clear of ACTA-sized obstructions, key members of Parliament have taken preemptive measures.

According to Euractiv, MEPs including Parliamentary Vice President Stavros Lambrinidis, are "alarmed" and have drafted a letter to the European Commission, which handled the negotiations.

"If the agreement is indeed concluded, we demand from the Commission to present the final text of the negotiation to the European Parliament as soon as it is procedurally possible," said the letter, which also called on the EU not to apply anything in ACTA "before the European Parliament has the chance to express its informed opinion on the issue."

That opinion could be a cantankerous one. Parliament has shown repeated irritation at being kept in the dark about ACTA negotiations. A group of MEPs asked ACTA negotiators to meet with them last month in Tokyo, but the Japanese government declined to arrange the meeting, citing scheduling concerns. And MEPs have shown concern over the Internet portions of ACTA, along with patent issues that could create problems for access to medicines.

We'll know more about ACTA, and its reception, on October 7, when both US and EU negotiators will provide briefings and (apparently) the text of the deal.

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KISS frontman on P2P: "Sue everybody. Take their homes, their cars."

By Matthew Lasar | Last updated about 16 hours ago

The bassist and businessman behind the legendary rock band KISS was on hand at the MIPCOM convention in Cannes, France on Tuesday. And 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."

And that includes all those naughty girls and boys with their BitTorrent and Limewire kits. Double for them, in fact.

"The music industry was asleep at the wheel," Simmons complained, "and didn't have the balls to sue every fresh-faced, freckle-faced college kid who downloaded material. And so now we're left with hundreds of thousands of people without jobs. There's no industry."

"No industry" hasn't stopped Simmons from cashing in big; he was at the Cannes event to promote his TV show, Gene Simmons' Family Jewels, now celebrating its 100th episode. From KISS and the TV series, Simmons' enterprise has managed to spin off three thousand products, he bragged.

"Everything from KISS condoms to KISS caskets," Simmons disclosed. "We'll get you coming and we'll get you going. We literally have everything from KISS Hi-Def television sets that are about to come on the market to KISS Motorcycles. Well, it's Planet KISS. Oh, I've already trademarked that, I forgot that."

Business is my crack

But back to that "sue every fresh faced, freckle faced" college kid business. We're talking about something close to 60 million P2P downloaders of all ages by the middle of the last decade. And during the height of the Recording Industry Association of America's file-sharing lawsuits, the trade association admitted that these actions were a total money pit. One estimate suggests that RIAA paid its lawyers more than $16 million in 2008 and recouped a paltry $391,000 in infringement settlements (the RIAA pointed out later that its bills for legal work included all sorts of non-P2P work, however).

The RIAA filed 18,000 to 20,000 legal actions; multiply that by every last American P2P user and the bill would be astonishing. The only two cases to proceed through a trial to a verdict have now been tied up in retrials and appeals, a ferociously expensive and laborious process that simply doesn't scale well.

No worries, says Simmons, who obviously sees himself as quite the wheeler-dealer. "Business is my crack," he declared. "That's what motivates me. Getting up every day and doing deals." And so he offered parables to back his logic.

The captain and the fox

"There's a ship that goes across the water," Simmons explained. "The captain is up there and some guy comes up in a sailor suit and says 'Captain! Captain! We have a hole'."

"Well, how big is the hole?" the captain asks.

"Well it's only yea big," the 'guy in the sailor suit' (presumably a sailor) replies. "We'll probably only get in a whole day a glass of water."

"Well," Simmons concluded, "this moron is either going to say don't worry about it, or he's going to plug up that hole then and there." Otherwise: "By the end of that journey that ship will sink."

In case this story didn't clinch the point for Simmons' audience, he rolled out the sad tale of the farmer and the fox.

Once upon a time, he explained, there was a farmer, who noticed that a baby fox was taking an egg from the chicken coop.

The farmer couldn't kill it; the fox was too cute.

"But that little fox went back with a free egg," Simmons warned, "and told all the other little foxes about it, and then the foxes overran the farm, killed all the chickens, took all the eggs, and didn't pay for it."

"Now the farmer lost his farm. His wife divorced him and went with another farmer who was smarter. The kids ran off because the spineless farmer didn't have enough sense to kill the fox. The trucks that delivered the chickens—they're all out of business. The stores that sold them—they're out of business."

"Why?" Simmons declared. "Because of one goddamn cute little fox. So don't let any cute little foxes get near your henhouse!"

And if they do, sue the bastards.

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(Yeah, screw you, Gene! Asshole! When was the last time you were even reloevant?--jef)