Was the Anti-Counterfeiting Trade Agreement (ACTA) a national security risk in 2008? According to one letter sent by the Department of Homeland Security, it potentially was.

The United States Trade Representative (USTR) is leading an effort, co-sponsored by the Government of Japan (GOJ), to negotiate a multilateral Anti-Counterfeiting Trade Agreement (ACTA). The U.S. Department of Homeland Security (DHS) supports this effort, but is concerned that some possible outcomes of the ACTA negotiations may harm national security and the ability of Customs and Border Protection (CBP) to exercise managerial discretion in setting priorities for intellectual property-right (IPR) enforcement.

Given these significant concerns, DHS suggests that, as ACTA is reduced to a written proposal, a preamble be included in the proposal clearly stating that ACTA does not obligate the U.S. government (or other nations) to act in any way that might infringe on national security priorities.

The 2008 DHS concerns about ACTA are relevant today, both as regards ACTA, and as regards the new proposals on the same issues presented in the proposed Trans-Pacific Partnership (TPP) trade agreement, which is designed as a binding enforceable agreement.

As if things couldn't get any worse for supporters of the secretive Anti-Counterfeiting Trade Agreement (ACTA), they have. Members of European Parliament (MEPs) have submitted a written declaration that they oppose ACTA.

A. Whereas the ongoing negotiations concerning the Anti-Counterfeiting Trade Agreement (ACTA). B. Whereas the co-decision role of the European Parliament in commercial matters and its access to negotiation documents guaranteed by the Lisbon Treaty, 1. Considers that the proposed agreement should not indirectly impose harmonisation of EU copyright, patent or trademark law. The principle of subsidiarity should be respected, 2. Declares that the Commission should immediately make all documents related to the ongoing negotiations publicly available. 3. Takes the view that the proposed agreement should not force limitations upon judicial due process nor weaken fundamental rights such as freedom of expression and the right to privacy. 4. Stresses that the evaluation of economic and innovation risks must take place prior to introducing criminal sanctions where civil measures are already in place. 5. Considers that Internet service providers should not bear liability for the data they transmit or host through their services to an extent that would imply prior surveillance or filtering of such data. 6. Points out that any measure aimed at strengthening powers for cross-border inspection and seizures of goods should not harm global access to legal, affordable and safe medicines. 7. Instructs its President to forward this declaration, together with the names of the signatories, to the Commission, the Council and the parliaments of the Member States.

The EFF points to a very interesting news release which announces that several organizations from around the world are demanding that the Anti-Counterfeiting Trade Agreement be made public. The release was made by big names. Australia’s Kimberlee Weatherall, USA’s Robert Weissman, and Canada’s Michael Geist were among the names included in the initial press release. More from the release:

More than 100 public interest organizations from around the world today called on officials from the countries negotiating Anti-Counterfeiting Trade Agreement (ACTA) — the United States, the European Union, Switzerland, Japan, South Korea, Canada, Mexico, Australia and New Zealand — to publish immediately the draft text of the agreement.

Secrecy around the treaty negotiation has fueled concerns that its terms will undermine vital consumer interests.

Organizations signing the letter include: Consumers Union, Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Public Knowledge, Global Trade Watch, U.S. Public Interest Research Group, IP Left (Korea), Australian Digital Alliance, The Canadian Library Association, Consumers Union of Japan, National Consumer Council (UK) and Doctors without Borders’ Campaign for Essential Medicines.

One of the major flash points in ACTA, based on leaked information, was that it would put pressure on governments from around the world to seize any electronic storage device (iPod’s, Laptops, USB sticks, DVDs, CDs, iPhone’s, etc.) at the borders without suspicion in an effort to block allegedly copyright infringing material from crossing the borders into other countries.

The documents were leaked early on this year. When we reported on the initial leaked document, there was also the issue of restricting privacy tools as well as extremely strict copyright laws being imposed onto the internet (dubbed “Pirate Bay Killer” treaty at the time)

Since then, another leak surfaced a month and a half ago. The leak, as we reported, clarified many of the controversial provisions being negotiated and noted how tax-payers would end up being the ones to foot any bills as the result of any ramped up security measures. Other controversial aspects are: that rights holders would be entitled to recoup any losses related to court fees and expenses related to copyright infringement cases, that damages and fines related to copyright infringement be increased, and that rights holders are entitled to any and all private information related to the infringer including who they come in contact with.

The letter (RTF) included in the press release details other controversial aspects of ACTA:

• Require Internet Service Providers to monitor all consumers’ Internet communications, terminate their customers’ Internet connections based on rights holders’ repeat allegation of copyright infringement, and divulge the identity of alleged copyright infringers possibly without judicial process, threatening Internet users’ due process and privacy rights; and potentially make ISPs liable for their end users’ alleged infringing activity
• Interfere with fair use of copyrighted materials
• Criminalize peer-to-peer file sharing
• Improperly criminalize acts not done for commercial purpose and with no public health consequences
• Improperly divert public resources into enforcement of private rights

In spite the many issues being raised by the mere glimpse into the ACTA negotiations, some governments, like Canada, have practically pretended that ACTA doesn’t even exist while other countries like Australia make brief mentions of it. We noted one such negotiations meeting two months ago. Further from the letter:

Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited.

Equally, because the treaty text and relevant discussion documents remain secret, treaty negotiators are denied the insights and perspectives that public interest organizations and individuals could offer. Public review of the texts and a meaningful ability to comment would, among other benefits, help prevent unanticipated pernicious problems arising from the treaty. Such unforeseen outcomes are not unlikely, given the complexity of the issues involved.

The lack of transparency in negotiations of an agreement that will affect the fundamental rights of citizens of the world is fundamentally undemocratic. It is made worse by the public perception that lobbyists from the music, film, software, video games, luxury goods and pharmaceutical industries have had ready access to the ACTA text and pre-text discussion documents through long-standing communication channels.

The G8′s recent Declaration on the World Economy implored negotiators to conclude ACTA negotiations this year. The speed of the negotiations makes it imperative that relevant text and documents be made available to the citizens of the world immediately.

There has been reactions from around the world – almost all of which have been unanimously negative for different aspects of it. One aspect that’s new for the US is the idea that public funds would be, by law, funneled to RIAA lawsuits. In Canada, the idea that one would have their iPod confiscated without suspicion raised a number of alarm bells (something that the minister responsible for the Canadian DMCA attempted to hide by saying that it wasn’t in Bill C-61 and therefore, not worth the worry)

Still, it’s no secret that many in the copyright industry are hoping to get this law in place in many nations from around the world. If it does, there may even be celebrations with champagne over it. Why not? That’s the same reception the DMCA got by rights holders in 2002.

Unfortunately, the likelihood of the treaty being released to the public for consultation is, at this point, slim to none. Not a surprise since it seems that only those who are going to benefit from this are the ones who can actually legally read it at this point.

Further Reading:

Press release including signatures

Wikipedia entry on ACTA

If there is anything to take away from the post, it’s the fact that the copyright industry isn’t necessarily targeting any single country in particular, but much rather, a large list of countries (if the special 301 report doesn’t give that away already)

Patry notes that more than one scholar has wondered whether or not the Special 301 report is a violation of the TRIPS agreement. He goes further with the following:

One needs to actually pore through the IIPA country reports to fully grasp what I mean: the nitpicking attacks on (translated versions) of foreign statutes which are held up to the light of U.S. law to decipher the slightest deviation – if only semantic – supports the view of the rest of the world that the IIPA is not only insensitive to the rest of the world, but has as its goal the remaking of the world in the U.S. image. This actually not quite right – it is a remaking of the world that contains only those parts of U.S. law that the corporate content owners who are members of the IIPA favor.

He then highlights an example from last year where the IIPA issued the following statement:

At the outset, we note that Section 19(a) attempts to adopt the U.S. ‘fair use’ test by stating that ‘fair dealing with the creation is allowed, among others, for the following purposes: self study, research….” Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is ‘fair.’

[...]

By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of ‘fair use.’ There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction

source (PDF)
original posting

In short, the IIPA lobbied USTR last year to prevent Fair Use to be imported into Israel.

Patry mentions Canada as being pressured and threatened if they don’t implement the WIPO treaties. Indeed, there has been threats in the past where the movie industry threatened to stop pre-screenings in Canada if Canada doesn’t implement anti-camcording laws. The camcording laws were ultimately passed, but when two people were arrested for camming a movie, as noted by Michael Geist, they were being charged under the copyright bill – the same allegedly antiquated law that copyright industry lobbyists have been lobbying tooth and nail to change how they see fit.

While discussing a fight over implementing Technical Protection Measures, Patry also lists the other countries in the list Israel and Canada are in: Austria, Bolivia, Denmark, Estonia, the European Community, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Kenya, Luxembourg, Namibia, Netherlands, Nigeria, Norway, Portugal, Spain, Switzerland, United Kingdom, Uruguay, and Venezuela.

So, do you feel alone when the US copyright industry is saying your country is either falling behind or completely disproportionate to the rest of the world by not protecting DRM or TPMs among other things related to Intellectual Property Rights? Join the club.

Bill Patry’s original post. Bill Patry is the “Senior Copyright Counsel, Google Inc.” (though he makes special note that his postings on his blog are not representing that of Google’s opinions, just his own personal comments) Wikipedia’s Page of him.

Hat tip: Howard Knopf

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But the high-tech industry and digital rights advocates see something more sinister in the fine print of a proposed international treaty being negotiated this week in Geneva. They fear it will end up restricting how people can use legally recorded shows stashed on their TiVos or computer hard drives.

“When I look at the language of the treaty, I begin to get frightened,” said Jim Burger, an attorney who specializes in intellectual property issues and represents high-tech companies, including TiVo Inc.

Pushed by U.S. and European TV networks, the treaty being considered by a World Intellectual Property Organization committee would prohibit the theft of their signals, as well as those from cable and satellite broadcasters. TV broadcasters said they were not targeting average viewers recording their favorite shows, just large-scale thieves stealing their business.