ACTA Internet Chapter Leaks

[Winehole23]

The ACTA Internet Chapter: Putting the Pieces Together (http://www.michaelgeist.ca/content/view/4510/125/)




Tuesday November 03, 2009



Tuesday November 03, 2009
The Anti-Counterfeiting Trade Agreement negotations continue in a few hours as Seoul, Korea plays host to the latest round of talks. The governments have posted the meeting agenda (http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/seoul-seoul.aspx), which unsurprisingly focuses on the issue of Internet enforcement. The United States has drafted the chapter under enormous secrecy, with selected groups granted access (http://keionline.org/node/660) under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty (http://www.michaelgeist.ca/content/view/3786/125/)). Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs (http://www.wto.org/english/docs_e/legal_e/27-trips_05_e.htm) which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30 (http://www.ustr.gov/sites/default/files/uploads/agreements/fta/korus/asset_upload_file273_12717.pdf). They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

If accurate (and these provisions are consistent with the U.S. approach for the past few years in bilateral trade negotations) the combined effect of these provisions would to be to dramatically reshape Canadian copyright law and to eliminate sovereign choice on domestic copyright policy. Having just concluded a national copyright consultation, these issues were at the heart of thousands of submissions. If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely (https://twitter.com/mei0023/status/4317439056) what U.S. lobbyists have said they would like to see happen). In other words, the very notion of a made-in-Canada approach to copyright would be gone.

The Internet chapter raises two additional issues. On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions. On the domestic front, it raises serious questions about the Canadian negotiation mandate.



Negotations from Foreign Affairs are typically constrained by either domestic law, a bill before the House of Commons, or the negotiation mandate letter. Since these provisions dramatically exceed current Canadian law and are not found in any bill presently before the House, Canadians should be asking whether the negotiation mandate letter has envisioned such dramatic changes to domestic copyright law. When combined with the other chapters that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and mandatory disclosure of personal information requirements, it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.


Update: Further coverage from IDG (http://www.pcworld.com/article/181312/trade_talks_hone_in_on_internet_abuse_and_isp_liab ility.html) and Numerama (http://www.numerama.com/magazine/14410-acta-le-traite-secret-impose-riposte-graduee-et-filtrage.html?utm_campaign=BackType&utm_medium=bt.io-twitter&utm_source=&utm_content=backtype-tweetcount).



Update II: InternetNZ issues a press release (http://internetnz.net.nz/media/media-releases-2009/internetnz-alarmed-by-latest-acta-leaks) expressing alarm, while EFF says (http://www.eff.org/deeplinks/2009/11/leaked-acta-internet-provisions-three-strikes-and-) the leaks "confirm everything that we feared about the secret ACTA negotiations." Electronic Frontiers Australia provides an Australian perspective (http://www.efa.org.au/2009/11/04/acta-copyright-negotiations-underway-still-secret-still-worrying/) on the ACTA dangers.

[Winehole23]

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama's administration refused to disclose due to "national security" concerns, has leaked. It's bad. It says:

* That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.
* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet -- and hence to civic participation, health information, education, communications, and their means of earning a living -- if one member is accused of copyright infringement, without access to a trial or counsel.
* That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
* Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

http://www.boingboing.net/2009/11/03/secret-copyright-tre.html

[MannyIsGod]

Wow they're fucking insane.

[ElNono]

This is going to be the next 'War on drugs'... but at a much higher scale...
And I think they're going to lose it...

[spurster]

It's another sign of our corrupt system, which will continue into the foreseeable future because it takes lots of money to get elected or have any influence in our system.

[spurster]

Ah, well, I guess no one else really cares about freedom of speech and privacy. They want corporations to own all our information and culture.

[EmptyMan]

I never get worried about this stuff.

The internet's #1 Natural Law: Somewhere a basement nerd is coming up with a solution. God bless them.

[Winehole23]

http://www.michaelgeist.ca/content/view/5352/125/

[Winehole23]

Other links, via Wired:


La Quadrature Du Net (http://www.laquadrature.net/en/near-final-acta-text-is-a-counterfeit-of-democracy)
Public Knowledge (http://www.publicknowledge.org/blog/near-final-acta-text-released)
Knowledge Ecology (http://keionline.org/node/962)


http://www.wired.com/threatlevel/2010/10/act-internet-freedom/#ixzz12EzxOSeb

[ElNono]

I wonder if the toned-down version is there to appease these guys:

Mexican Senate Unanimously Votes To Remove Mexico From ACTA Negotations (http://www.techdirt.com/articles/20101005/17320811304/mexican-senate-unanimously-votes-to-remove-mexico-from-acta-negotations.shtml)

[Winehole23]

t is important to understand that the way that ACTA was negotiated and subsequently signed by the USTR raises fundamental questions about the separation of powers set out in the U.S. Constitution. ACTA deals with powers over subject matter – intellectual property and foreign trade –that the Constitution’s Article I gives exclusively to Congress. Specifically, there are three ways that the U.S. can bind itself to international agreements dealing with Article 1 subject matter. First, an agreement can be ratified under the Treaty Clause, which requires a vote by two-thirds of the Senate. Second, Congress can pass a law that authorizes the negotiation of an international agreement (ex ante authorization). Third, Congress can approve an agreement that has been negotiated by the Executive Branch after the fact, or “ex post”, by passing the agreement, subject to amendment, through both houses of Congress and having the President sign it into law. These agreements are known as ex-post Congressional-Executive Agreements.

As we’ve reported before (https://www.eff.org/deeplinks/2012/04/acta-state-play-us), during the ACTA negotiations, the USTR consistently maintained that it was a Sole Executive Agreement dealing with matters delegated to the President and, on that basis, did not need Congressional review and approval. Then, in a surprising about-face, the Executive changed its explanation of the constitutional basis for ACTA in March 2012. In a letter (http://www.scribd.com/doc/84365507/State-Department-Response-to-Wyden-on-ACTA) responding to a request from the Chair of the Senate Finance Committee's Trade Subcommittee, Senator Wyden, on March 6, the Legal Advisor to the State Department, Howard Koh, implied that Congress had authorized the Executive to negotiate ACTA in response to the 2008 Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act). On March 7, the U.S. Trade Ambassador followed that line, and testified in a Senate hearing that ACTA was negotiated with the authorization of Congress, quoting directly from Koh’s letter.


As we noted (https://www.eff.org/deeplinks/2012/04/acta-state-play-us) at the time, it seemed implausible that Congressional authorization was granted in legislation that was enacted the year after ACTA negotiations were announced, on October 23, 2007. In addition, as the legal scholars’ letter notes, the provision cited in the State Department Legal Advisor’s letter – section 8113(a)(6) of the PRO-IP Act – does not actually direct the USTR to negotiate an international agreement, let alone one with ACTA’s far-reaching characteristics. ACTA requires creation of an unelected ACTA Committee that has the final say on ACTA implementation in U.S. law, ousting any role for Congress. If Congress had intended to grant ex ante authorization to the USTR to negotiate an international agreement that would limit Congress’ role and impede its ability to legislate, it seems more likely that it would have chosen to do so expressly.


The legal scholars conclude that:

“..the Administration currently lacks a means to constitutionally enter ACTA without ex post Congressional approval. The present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers. If Congress allows the executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the executive."
We agree.
https://www.eff.org/deeplinks/2012/05/acta-unconstitutional-without-congressional-approval

[Winehole23]

The legal scholars also call on the members of the Senate Finance Committee to act, noting that:

“Remedying this state of affairs is uniquely within Congress’s province. Congress, and specifically the Senate as the Constitutionally recognized chamber with responsibilities for the approval of treaties, should secure from the administration a public pledge to send ACTA to the Senate as a treaty, or to the Congress as an ex-post Congressional-executive Agreement. Absent a pledge to this effect, we encourage the Committee to hold hearings and to pass legislation that would prevent the United States from binding itself to ACTA without express Congressional consent.”
same

[Winehole23]

There is a major problem with the Anti-Counterfeiting Trade Agreement (ACTA) that has little to do with IP or the internet: how does international law get made—by the President alone, or with Congress's involvement? ACTA's key problem in the United States is a Constitutional question that turns on the separation of powers. The President, or an office of the executive branch like USTR, can negotiate treaties that fall within presidential powers. But for topics that fall within Congressional powers, like IP law, the Constitution requires that Congress be involved in the process.

The most obvious and difficult way to involve Congress is through Article II of the Constitution. Under Article II, a treaty negotiated by the executive branch is presented to the Senate for ratification. The process is notoriously difficult, because it requires two-thirds of the Senate to approve. So USTR, almost understandably, wants to avoid the Article II process if at all possible.

A number of years ago, this wouldn't have been a problem, or at least not a Constitutional one. Congress gave USTR "fast track" authority to negotiate trade agreements, subject to an up-or-down vote at the end of the negotiating process. This authority, however, expired in July 2007. ACTA wasn't announced until October of that same year. Fast track wasn't great, because it didn't allow for amendments, but at least it allowed final oversight over the executive branch by Congress. It also allowed international law to be made, because the hurdle of Senate ratification for Article II treaties can make that process come to a standstill.

USTR knew, then, when it began negotiating ACTA, that it no longer had Congress's authorization to negotiate these kinds of trade agreements. This doesn't mean that USTR had to drop its activities, but at the end of the negotiating process, it would have to seek Congress's approval anew. If Congress decided not to do an up-or-down vote or amend the agreement, the agreement would need to go to the Senate for ratification, or it would fail.

So USTR tried to avoid the process, and Congress, entirely. USTR initially explained that it planned to negotiate ACTA under the President's powers, alone. This made no sense, as prominent legal scholars noted (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html). The President's inherent powers do not involve IP. That’s Congress's purview.

In March 2012, USTR switched gears. After Senator Ron Wyden publicly questioned the way in which ACTA had been negotiated, the Legal Advisor to the Department of State, Harold Hongju Koh (disclosure: also formerly the dean of my law school and my professor of transnational law), explained (http://infojustice.org/wp-content/uploads/2012/03/84365507-State-Department-Response-to-Wyden-on-ACTA.pdf) that ACTA wasn't being negotiated just by the President. Koh explained that--surprise!--Congress actually had been involved in ACTA, authorizing the negotiation of ACTA beforehand in the 2008 PRO-IP Act.

There's a major problem with this argument. First, the part of the PRO-IP Act Koh cited describes the creation of a plan (http://infojustice.org/archives/9072) for US agencies to generally coordinate on IP enforcement, under the IP Czarina Espinel. It isn't addressed to USTR, and it doesn't authorize USTR to negotiate an agreement (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2043605). http://www.techdirt.com/articles/20120508/17174518835/time-to-realize-that-obama-administration-doesnt-even-have-authority-to-commit-us-to-acta-tpp.shtml

[Winehole23]

And the problem continues. Last week, the USTR and other countries met to continue negotiating the Trans-Pacific Partnership Agreement (TPP) in Dallas. The TPP also contains an unreleased IP chapter of dubious substance. As of now, USTR still doesn't have fast-track authority (http://thehill.com/blogs/on-the-money/1005-trade/213349-kirk-white-house-will-send-fast-track-authority-bill-to-congress-this-year.) from Congress to negotiate agreements like the TPP. USTR also can't claim that the PRO-IP Act authorizes negotiations this time, because unlike ACTA, TPP is broader than just IP. So once again, USTR is negotiating an international agreement without a clear plan of how Congress or the Senate will be involved. If USTR does not get the desired fast-track authority for TPP, it will have to try to get after-the-fact approval from Congress or ratify TPP as an Article II treaty. So where ACTA is facing a Constitutional crisis where the executive branch is claiming it can go it alone, TPP is an example of an overactive agency not thinking through how it will Constitutionally accomplish its goals.

What we have right now is an overactive executive branch accustomed to a lack of supervision, and a Congress that has failed to assert its Constitutional responsibility in this sphere. If we want public input on international law-making at any point in the future, this is a dynamic that we're really going to have to work hard to change.same

[ElNono]

disgusting... thanks for posting

[boutons_deux]

"What we have right now is an overactive executive branch accustomed to a lack of supervision"

aka, dickhead's "royal" Unitary Executive.

[Winehole23]

aka, dickhead's "royal" Unitary Executive.don't you mean Barack Obama's royal unitary executive?




(turn the page, boutons. it's not 2004 anymore.)

[greyforest]

they keep pushing SOPA through with different names on different bills over and over; sooner or later one is going to pass, because the people writing the bills are ruling our lives and we have no control or say over it whatsoever

[Winehole23]

it does look that way