JetLib News

In a move ostensibly to confirm the European Parliament’s opinion that the international Anti-Counterfeiting Trade Agreement is above board – but perhaps also to alleviate its own suspicions – E.U. Trade Commissioner Karel de Gucht has opted to refer the treaty to the Court of Justice (ECJ). While Comm. de Gucht expects his support of ACTA to be ratified, the Court’s decision could end up blocking enforcement of the treaty throughout the continent.

This even though 22 of the E.U.’s 27 member nations have already signed on to the treaty. Under the terms of the Treaty of Lisbon with which the E.U. was formed, the European Parliament must give consent to any treaty becoming law among its member nations. It will be holding public hearings on that very question next week.

“We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property,” reads a statement from Comm. de Gucht this morning from Brussels. “I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement.”

At issue is whether enforcement of the treaty would put Internet service providers in the uncomfortable (and, as far as Europe is concerned, illegal) position of providing back-channel access to suspected IP thieves and pirates to content rights holders, especially in the entertainment industry. Also, the treaty may be interpreted as compelling governments to enforce means to block infringing users from accessing the Internet, or similarly to block ISPs from enabling themselves to be accessed by them. The European Commission had already endorsed ACTA.

But the treaty had not always been negotiated in the public light. As a result, citizens who are only just now becoming aware of its existence are skeptical why the treaty wasn’t made subject to judicial review prior to the endorsement.

In the wake of the historic SOPA/PIPA defeat in the U.S., European lawmakers are eager to stay on the right side of public opinion. At the same time, they can’t exactly be seen as backtracking on their existing stance. While the E.C. was on record in opposition to ACTA’s being negotiated in secret, it did not put up much of a fuss after negotiated drafts were made public, and the most potentially offending parts were stricken.

One of those removed parts would have facilitated so-called “three strikes laws,” which would bar individuals’ access to the Internet after three intellectual property-related offenses. In a statement last week, E.C. Vice President Viviane Reding reminded Europeans that she had a hand not only in getting that provision removed, but with inserting in its place a provision that would ensure it never re-emerge elsewhere.

“In spite of significant political pressure, I instead supported – in the name of the European Commission and in close alliance with the European Parliament – the inclusion of an Internet freedom provision in the final text of this legislation,” stated Comm. Reding. “Under this provision, ‘three-strikes laws,’ which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law. This situation can and must not be changed by the ACTA agreement.”

The E.C. is the upper house of the E.U. legislature; Parliament is the lower house. According to Parliament, now that the E.C. has consented to ACTA, it cannot make changes to it. But it can decline its consent, the effect of which would be to nullify its enforcement, even among those member nations that have already signed.

Leading the ACTA debate in Parliament is MEP David Martin (U.K.), who issued this statement earlier today: “We will wait for the ECJ ruling before we draw conclusions, but an open political debate in the European Parliament is also necessary on the measures foreseen by ACTA. We must guarantee a good balance between intellectual property rights, which are fundamental for the European economy and job creation, and individual freedoms.”

In a move ostensibly to confirm the European Parliament’s opinion that the international Anti-Counterfeiting Trade Agreement is above board – but perhaps also to alleviate its own suspicions – E.U. Trade Commissioner Karel de Gucht has opted to refer the treaty to the Court of Justice (ECJ). While Comm. de Gucht expects his support of ACTA to be ratified, the Court’s decision could end up blocking enforcement of the treaty throughout the continent.

This even though 22 of the E.U.’s 27 member nations have already signed on to the treaty. Under the terms of the Treaty of Lisbon with which the E.U. was formed, the European Parliament must give consent to any treaty becoming law among its member nations. It will be holding public hearings on that very question next week.

“We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property,” reads a statement from Comm. de Gucht this morning from Brussels. “I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement.”

At issue is whether enforcement of the treaty would put Internet service providers in the uncomfortable (and, as far as Europe is concerned, illegal) position of providing back-channel access to suspected IP thieves and pirates to content rights holders, especially in the entertainment industry. Also, the treaty may be interpreted as compelling governments to enforce means to block infringing users from accessing the Internet, or similarly to block ISPs from enabling themselves to be accessed by them. The European Commission had already endorsed ACTA.

But the treaty had not always been negotiated in the public light. As a result, citizens who are only just now becoming aware of its existence are skeptical why the treaty wasn’t made subject to judicial review prior to the endorsement.

In the wake of the historic SOPA/PIPA defeat in the U.S., European lawmakers are eager to stay on the right side of public opinion. At the same time, they can’t exactly be seen as backtracking on their existing stance. While the E.C. was on record in opposition to ACTA’s being negotiated in secret, it did not put up much of a fuss after negotiated drafts were made public, and the most potentially offending parts were stricken.

One of those removed parts would have facilitated so-called “three strikes laws,” which would bar individuals’ access to the Internet after three intellectual property-related offenses. In a statement last week, E.C. Vice President Viviane Reding reminded Europeans that she had a hand not only in getting that provision removed, but with inserting in its place a provision that would ensure it never re-emerge elsewhere.

“In spite of significant political pressure, I instead supported – in the name of the European Commission and in close alliance with the European Parliament – the inclusion of an Internet freedom provision in the final text of this legislation,” stated Comm. Reding. “Under this provision, ‘three-strikes laws,’ which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law. This situation can and must not be changed by the ACTA agreement.”

The E.C. is the upper house of the E.U. legislature; Parliament is the lower house. According to Parliament, now that the E.C. has consented to ACTA, it cannot make changes to it. But it can decline its consent, the effect of which would be to nullify its enforcement, even among those member nations that have already signed.

Leading the ACTA debate in Parliament is MEP David Martin (U.K.), who issued this statement earlier today: “We will wait for the ECJ ruling before we draw conclusions, but an open political debate in the European Parliament is also necessary on the measures foreseen by ACTA. We must guarantee a good balance between intellectual property rights, which are fundamental for the European economy and job creation, and individual freedoms.”

So, we’ve shot down SOPA and PIPA. Congratulations Internets for a job well done. Mission accomplished, right? Not so much. While that’s two bad pieces of legislation pushed back, there’s much more where that came from. Leaving aside existing nastiness like the DMCA, we also have the even nastier Anti-Counterfeiting Trade Agreement (ACTA) (PDF). How bad is it? Bad enough that the European Parliament’s rapporteur for ACTA (Kader Arif) resigned over it today (January 27, 2012). Unfortunately for those of us in the United States, President Obama has already ratified ACTA on behalf of the United States.

If you haven’t heard much about ACTA, don’t be surprised. You see, you really weren’t supposed to hear anything about ACTA until well after it was ratified and far too late for the rabble to do anything about it. That’s what, in large part, led to Arif’s resignation.

As Wayne Rash wrote earlier this week, “ACTA is, in effect, a treaty, negotiated in secret by the U.S. Trade Representative, Ron Kirk… Until recently, the actual text of ACTA was so secret that only a few lawyers outside of the White House and the USTR offices had actually seen it. And those people were required to sign non-disclosure agreements.”

What ACTA Is

The goal of ACTA, says the Electronic Frontier Foundation (EFF) is “to create a new standard of intellectual property enforcement above the current internationally-agreed standards in the TRIPs Agreement and increased international cooperation including sharing of information between signatory countries’ law enforcement agencies.”

The EFF backgrounder also provides some insight to ACTA. While President Obama is carrying the torch for ACTA right now, the treaty goes back to October 2007 (or farther) when the U.S., Japan, Switzerland and the European Community said they’d be working on a new intellectual property enforcement treaty.

ACTA isn’t the only area where (as the EFF puts it) “copyright industry rightsholder groups have sought stronger powers to enforce their intellectual property rights… to preserve their business models.” But it is getting closer to reality.

Note that our own Scott Fulton observes that some of the protests against ACTA object to provisions that have been removed from the treaty. What this doesn’t note is that many other objectionable provisions remain. Fulton also says “you can’t be arrested for an ACTA violation.” This is true, but only half the story. People can and will be arrested for violations of laws that result from nations complying with the treaty.

The word is that ACTA probably doesn’t change U.S. law. Probably? Nobody’s entirely sure. But as Techdirt calls out “it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled.” It also, of course, serves to dictate compliance in other countries.

Why ACTA Is Unacceptable

• ACTA was negotiated in secret – for me, this is reason enough to oppose any legislation or regulation. I don’t care if it’s the “Hugs for Puppies and Kittens Act,” if people aren’t given an opportunity to engage with their lawmakers about a law, it shouldn’t be enacted.
• Ridiculous damages – ACTA specifies “presumptions for determining damages” that basically assume that all of the infringed goods had sold. To put it another way, ACTA takes the position that if a user uploads a song to a file-sharing network, damages should be calculated as if the recipients would have paid for the work in question. This is ridiculous, as has been explained any number of places. Many people who download illicit copies would simply never have purchased the work in question had it not been available for free.
• It may be unconstitutional – The Obama administration is claiming that ACTA not a treaty, but an “executive agreement” and thus not subject to legislative approval. As Rash notes in his eWeek piece, Congress does not agree.
• It’s over-broad – TK It’s worth noting that not all of ACTA is necessarily bad. Some of the agreement is targeted at countering counterfeit goods that may be actively harmful, like counterfeit prescription drugs. But ACTA goes well beyond single areas of intellectual property and essentially tries to bear-hug everything IP-related. Not good.
• The ACTA committee is not accountable – ACTA creates a body outside of national and even international bodies, called the “ACTA Committee.” (At least the name is honest.) The committee would not be accountable to the people governed by the agreement. Folks in the United States can vote out Lamar Smith and others who endorsed SOPA/PIPA, but we would have no real influence on the ACTA Committee.
• Low threshhold for violations – as the European Digital Rights group points out (PDF), ACTA’s unclear wording would make it very easy for unintentional copyright infringement to rise to the level of a criminal act.
• No fair use provisions – As this opinion on ACTA by Eddan Katz and Gwen Hinze notes, ACTA would “export one half of the complex U.S. legal regime” but “without accompanying exceptions and limitations.” In short, ACTA would not include fair use provisions and such that we expect in the U.S.
• Criminalizes what used to be a civil offense – An opinion prepared by Douwe Korff and Ian Brown notes, “ordinary companies and individuals could be criminalised for innocent activities or trivial breaches of copyright, or for technical breaches that serve a wider, overriding public interest (as in whistleblowing), without an appropriate defence.” The EFF says “If the real intent behind introducing expanded criminal sanctions is to address infringement on the Internet, this provision is not likely to do so, but is likely to cause significant collateral harm to consumers.”
• Locks In DMCA-Like Provisions – As the EFF notes (PDF) in its submission to the USTR, ACTA would “lock in” some of the controversial aspects of the DMCA that require legal enforcement against circumventing copy protection, etc. In other words, don’t get too set on the idea of jailbreaking that iPhone.
• ACTA could be used against legitimate medications – As I noted earlier, looking to crack down on counterfeit drugs is good. Going after legitimate “grey market” drugs, that’s another story. Yet as techdirt notes “there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on “grey market” drugs – generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else.”

That’s 10, but I’m sure there are more. As I wrote on January 18th sending SOPA/PIPA to the legislative trashbin for the year is great, but not enough. SOPA/PIPA are not the only laws that threaten the free and open Internet. There’s plenty of bad policy to go around at the state, national, and international levels. One round of annoyed phone calls to Congress is not going to do the trick. Even if it’s too late to stop ACTA, there’s even worse coming.