After 2 years of secrecy the countries behind ACTA finally released a consolidated draft of the agreement. Though billed as a trade agreement about counterfeiting, ACTA is much more than that: it's an intellectual property treaty in disguise.

ISP immunity/three strikes

Under ACTA, ISPs are protected from copyright lawsuits as long as they have no direct responsibility for infringement. If infringement merely happens over their networks, the infringers are responsible but the ISPs are not.

New to this draft is an option, clearly targeting European law, that would explicitly allow Internet disconnections. Countries will be allowed to force ISPs to terminate or prevent an infringement and they can pass laws governing the removal or disabling of access to information. So, basically, Internet disconnection and website blocking.

ISP immunity is conditioned on the existence of takedown process. In the US, this is the (in)famous DMCA takedown dance that starts with a letter from a rightsholder. Once received, an ISP or Web storage site (think YouTube) must take down the content listed in order to maintain its immunity, but may repost it if the uploader responds with a counter-notification asserting that no infringement has taken place.

Anti-circumvention/DRM

ACTA would ban the unauthorized circumvention of an effective technological measure. It also bans circumvention devices, even those with a limited commercially significant purpose. Countries can set limits to the ban, but only insofar as they do not impair the adequacy of legal protection of those measures. This is ambiguous, but allowing circumvention in cases where the final use is fair would appear to be outlawed.

iPod-scanning border guards?

Early ACTA commentators often complained that the agreement might give customs officials the right to rifle through your bags and search your iPod, confiscating it if they determined that it contained any infringing songs. Border guards might become copyright cops, turning out the bags of anyone who has visited China, say, to see if they might be bringing home any illicit copies of movies or software. The draft text contains a de minimis provision that allows countries to exclude from ACTA enforcement Small quantities of goods of a noncommercial nature contained in travelers' personal luggage.

The real copyright cops

ACTA contains ex officio language that allows customs officials and border agents to hold infringing shipments of goods without needing a rightsholder to complain first. Several options are still being considered in the draft, but all give the authorities the right to act upon their own initiative in releasing suspected goods at customs checkpoints.

Proportionate penalties

At least one enterprising ACTA country has managed to insert this interesting line into the section on enforcement procedures in the digital environment: Those measures, procedures, and remedies shall also be fair and proportionate.

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Thousands of demonstrators have taken to the streets of Polish cities, some of them hurling stones at police, in protest at an international copyright treaty criticized as a clampdown on freedom of speech on the internet.

In the city of Kielce around 700 people protested. Some of them threw bottles and stones at police, damaged cars and partially blocked traffic.

In the largest demonstration, in Cracow, 15,000 people took to the streets in a largely peaceful protest. Demonstrators chanted Down with censorship while some had a piece of tape inscribed with ACTA glued over their lips.

ACTA is the acronym for the international Anti-Counterfeiting Trade Agreement, which Poland was to sign in Tokyo on Thursday.

The European Union and 22 Member States have officially signed the Anti-Counterfeiting Trade Agreement (ACTA). The UK was among the signatories who gathered in Japan to sign the controversial intellectual property treaty.

The signatories commit to a raft of controversial intellectual property enforcement measures, including rules outlawing DRM circumvention, introducing criminal enforcement of intellectual property rights, and passages which have been interpreted as turning ISPs into an unofficial copyright police force.

The treaty still requires ratification by the European Parliament. The final vote is scheduled for June.

The European Parliament rapporteur for ACTA, Kader Arif, resigned just hours after the EU signed the controversial intellectual property treaty.

In a translated statement, Arif denounced the process leading up to the ACTA signings as a masquerade.

I denounce in the strongest possible manner the entire process which has led to the signature of this agreement: failure to address civil society, lack of transparency since the beginning of the negotiations, successive reports of the signature of the text without any explanation, sweeping aside of the views of the European Parliament expressed in several different resolutions.

Arif said that he had come under pressure to rush through the ratification process so as to keep ACTA out of the public eye.

As rapporteur on this matter, I was contronted by unprecedented manoeuvres by the right of the Parliament to impose an accelerated timetable with a goal of passing the agreement quickly before public opinion could be alerted.

The rapporteur closed his statement by expressing the hope that his resignation would lead to greater public awareness of the treaty.

This agreement could have major consequences on the lives of our citizens, and yet it seems that everything is being done to ensure that the European Parliament will have no voice in this chapter. Thus, today, in handing back the report that I have been in charge of, I hope to send a strong signal to alert public opinion to this unacceptable situation. I will not participate in this masquerade.

The Anti-Counterfeiting Trade Agreement (ACTA) treaty, signed by most European countries last week, has generated considerable protest. This has sparked at least one signatory to have a deeper  think about what they actually signed up for.

The Slovenian ambassador to Japan, Helena Drnovsek Zorko, has issued an unprecedented public apology for signing the treaty, saying she was only obeying orders and was now supporting the public protests against the treaty. She sdmitted:

I signed ACTA out of civic carelessness, because I did not pay enough attention, she said, in a most undiplomatic display of honesty. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children.

The Polish government has announced it is to suspend the ratification of the ACTA treaty, in light of public concern. Polish prime minister Donald Tusk said:.

The issue of signing of the ACTA accord did not involve sufficient consultation with everyone who is part of the process. The ACTA ratification process will be frozen as long as we haven't overcome all the doubts. This will probably require a review of Polish law. We can't rule out that, at the end of the day, this accord will not be approved.

French European Parliament member Kader Arif, who resigned in protest the day the treaty was signed, urged his fellow parliamentarians to reject ACTA.

I see a great risk concerning checks at borders, and the agreement foresees criminal sanctions against people using counterfeited products as a commercial activity, he told The Guardian. This is relevant for the trade of fake shoes or bags, but what about data downloaded from the internet? If a customs officer considers that you may set up a commercial activity just by having one movie or one song on your computer, which is true in theory, you could face criminal sanctions.

I don't want people to have their laptops or MP3 players searched at borders, Arif said. There needs to be a clearer distinction between normal citizens and counterfeiters which trade fake products as a commercial activity.

[And if you doubt what Arif is saying you only have to look to Britain for an example of EXACTLY what Arif fears. The British Parliament deliberately targeted its anti porn laws at commercial suppliers rather than customers. Yet the British authorities corrupted the law and deemed that giving a dodgy video to your mate was in fact commercial supply. They argued that commercial 'gain' could be as minimal as just the satisfaction of doing your mate a good turn].

Protest

See article from openrightsgroup.org

The Open Rights Group are supporting a demonstration against ACTA, which will take place in central London on Saturday, on 11th February. It has been planned to coincide with demonstrations across Europe, when a chorus of thousands of discontented voices will speak as one against over-reaching Internet laws.

The aim will be to tell as many people as possible what's going on by distributing leaflets and asking those who are worried to contact their MEPs.

People will be meeting at UK Music's offices, 27 Berners St, Paddington, central London at 2pm. The Open Rights Group will help supply what can only be described as brilliant leaflets and fabulous t-shirts. Then the idea is to split up into small teams and head off to spread the word.

Amnesty International has urged EU governments not to join the Anti-Counterfeiting Trade Agreement (ACTA), branding it a Pandora's box of potential human rights violations.

Starting this Saturday, 11 February, a range of civil society groups and individual citizens have planned protests in many European cities to voice opposition to ACTA before the European Parliament decides whether to formally ratify the pact later this year.

Amnesty International believes the pact's content, process, and institutional structure impact in a number of ways on human rights -- especially the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.

The EU should reject ACTA in its current form -- implementing the agreement could open a Pandora's box of potential human rights violations by doing away with due process and front-loading the requirement to enforce its provisions, said Widney Brown, Senior Director of International Law and Policy at Amnesty International: While Amnesty believes that creators should be compensated for their work, the protection of intellectual property should never come at the expense of basic human rights.

Amnesty International is concerned about ACTA's broad coverage, vague language, and tendency to value private law enforcement over judicial review. Rather than allowing the courts to resolve how infractions of the ACTA should be treated, the pact obliges states to encourage third parties to enforce its provisions.

This would incentivize Internet Service Providers (ISPs) to impose repressive measures to avoid infringements, such as blocking, deleting, or even suspending services without recourse to judicial review.

Companies may be threatened with criminal sanctions if they derive indirect economic benefit from infringements or if they are deemed to have aided and abetted one or more acts of infringement. This is likely to have a chilling effect on free speech and access to information.

As these private companies would also be incentivized to implement intrusive surveillance technologies in order to avoid being liable for the actions of their users, this would also lead to gross violations of user privacy.

Access to generic medicines and other essential products could also be affected, as the ACTA would give customs officials the authority to seize products with labels suspected of being confusingly similar to trademark brands. Giving generic medicines similar labels helps to communicate medical equivalence and supports public health policy goals.

Amnesty International is also gravely concerned about the ACTA's vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as fundamental principles and even invents a concept of fair process, which currently has no definition in international law.

Only a small number of states including EU members, Japan, Australia and the USA, have negotiated the Agreement since 2007. The negotiation process has lacked transparency and democratic credibility, as it has taken place outside of recognized institutions, such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

The public was kept out of the process, and civil society, despite its demands, has not yet had access to all documents relating to the ACTA negotiations. US industry was kept up to speed with the negotiations, on condition that the industry partners signed a non-disclosure agreement.

The resulting standards are tremendously skewed towards protecting commercial interests over human rights.

Germany and Latvia delay ratification

See article from bbc.co.uk

Germany has halted signing a controversial anti-piracy accord, the Anti-Counterfeiting Trade Agreement (Acta), after the justice ministry voiced concerns.

A foreign ministry spokesperson told AFP that the delay was to give us time to carry out further discussions.

Latvia put off ratification on Friday. Poland, the Czech Republic and Slovakia have already delayed the process.

The Associated Press reports Germany's that Justice ministry believes the legislation is unnecessary in Germany and that the European Parliament should vote on Acta before the country considers it for ratification.

Anti-Acta websites currently list more than 50 protests scheduled to take place across Germany on Saturday.

Thousands of people have taken part in co-ordinated protests across Europe in opposition to a controversial anti-piracy agreement.

Significant marches were held in Germany, Poland and the Netherlands against the Anti-Counterfeiting Trade Agreement (Acta).

Around 200 protesters gathered in central London outside the offices of several major rights holders.

Saturday's London demonstration was supported by the Open Rights Group, a vocal opponent to the treaty. The group's executive director, Jim Killock, argued that Germany's stance shows Acta negotiations were carried out in secret by EU bureaucrats.  Three member states in Europe are now looking like they don't want to sign, he told the BBC: That shows that politicians are only really starting to look at this now. All of a sudden, the whole thing is breaking down.

Speaking at the London protest Loz Kaye said: What we've seen is a whole wave of people coming out on the streets right across Europe, he told the BBC.  Some people have been called extreme, but equally, Amnesty International, Medecins Sans Frontieres have spoken out. Even The Economist, which is hardly radical, has described the treaty as potentially draconian.

More demonstrations were held in other UK cities, including Edinburgh and Glasgow. .

The recently elected president of the European Parliament, Martin Schulz, has criticized the current ACTA treaty, saying it provides little protection for the rights of individual users.

I don't find it good in its current form, Schultz said in an interview with Germany's ARD television station on Sunday. The current treaty swings too heavily in favor of copyright holders, he said, and an individual's internet freedoms is only very inadequately anchored in this agreement.

Schultz's own party, the Progressive Alliance of Socialists and Democrats, has come out against ACTA, and the German government announced on Friday that it was going to hold off on ratifying ACTA until after the European Parliament has voted on the issue. That vote is scheduled in June, after the European Parliament's trade committee has scrutinized it.

European disquiet about the terms of the ACTA anti-piracy treaty is gaining momentum. The Netherlands and Bulgaria are the latest to question the treaty.

A majority of the Dutch Parliament is said to be against the ratification of ACTA. They only intend to change this position if there's irrefutable evidence that it doesn't violate basic human rights.

Right now this is certainly not the case, as professors Douwe Korff and Ian Brown examined ACTA's compatibility with human rights and concluded:

Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others.

It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.

This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards.

Meanwhile in Bulgaria, more than 10,000 people took the streets in Sofia last Saturday to protest the treaty, Economy Minister Traicho Traikov then announced that the country will not ratify ACTA before other EU countries have made up their minds.

The European Union's highest court has been asked to rule on the legality of a controversial anti-piracy agreement.

The Anti-Counterfeiting Trade Agreement (Acta) has been criticised by rights campaigners who argue it could stifle free expression on the internet.

EU trade head Karel De Gucht said the court will be asked to clarify whether the treaty complied with the EU's fundamental rights and freedoms.

The European Commission said it decided today to ask the European Court of Justice for a legal opinion to clarify that the Acta agreement and its implementation must be fully compatible with freedom of expression and freedom of the internet.

Several key countries, including Germany and Denmark, have backed away from the treaty amid protests in several European cities. Acta is set to be debated by the European Parliament in June.

Update: Court move welcomed by Viviane Reding

26th February 2012. See article from bigbrotherwatch.org.uk

In a statement, Viviane Reding, Vice-President of the European Commission and EU Commissioner for Justice, Fundamental Rights and Citizenship, has outlined a robust position on internet freedom.

In it, she states for me, blocking the Internet is never an option and goes onto argue the current situation can and must not be changed by the ACTA agreement.

Reding concludes by saying I therefore welcome the intention of several members of the European Parliament to ask the European Court of Justice for a legal opinion to clarify that the ACTA agreement cannot limit freedom of expression and freedom of the Internet.

Update: EU Parliament also asks for European Court guidance

5th March 2012. See article from publicaffairs.linx.net

he European Parliament has followed the Commission in referring the Anti-Counterfeiting Trade Agreement (ACTA) to the European Court, for a view on its compatibility with EU law.

The decision to refer this question to the European Court is a manoeuvre designed to limit the impact of ACTA whatever the answer: if the Court decides ACTA does require European law to change, the Parliament is more likely to veto the treaty; if it rules that no changes are necessary, that will weaken the hand of those that seek later to invoke ACTA as justification for creating new enforcement powers.

The European Parliament's international trade committee has rejected a proposal by David Martin, an MEP who is drafting the Parliament's position on ACTA. Martin wanted to ask the European Court of Justice for its opinion on the controversial anti-piracy treaty, but the committee decided that wasn't needed and will now vote in June on whether to approve ACTA. Opponents of the treaty see the development as a victory.

In a February announcement, EU trade chief Karel De Gucht said that following discussion with fellow Commissioners, the Anti-Counterfeiting Trade Agreement (ACTA) would be referred to the European Court of Justice (ECJ).

The treaty, which is aimed at harmonizing global copyright enforcement globally, has largely been formulated behind closed doors and its critics fear it will only lead to censorship and surveillance of Internet users.

The plan was to ask the ECJ to look at ACTA and decide if it conflicts with the EU's fundamental rights and freedoms, including freedom of expression and right to privacy.

ACTA will now be pushed through committees in the European Parliament during April and May and then to a final full Parliament vote at its June plenary session.

If ACTA dies in European Parliament, then it's a permakill, and the monopoly lobbies will have to start fighting uphill, said Pirate Party founder Rick Falkvinge in a comment. If ACTA passes, the same monopolists get tons of new powers to use, and close the door for the foreseeable future behind the legislators for a very necessary reform of the copyright and patent monopolies.

After its existence was first discovered by the public in 2008 after documents were uploaded to Wikileaks, ACTA's opponents now have just 10 weeks to pull out the stops.

David Martin, the European Parliament's rapporteur on the Anti-Counterfeiting Trade Agreement (ACTA), has announced that he will recommend that Parliament votes against this controversial trade agreement because it does not provide enough guarantees for citizens.

Martin made this announcement at the end of a public debate organised by the Socialist & Democrats (S&D) Group in the European Parliament with representatives of industry, NGOs, unions, internet groups and citizens concerned about the effects of implementing ACTA. David Martin said:

Today's conference has confirmed my suspicion that ACTA raises more fears than hopes.

What it delivers in terms of important intellectual property rights is diminished by potential threats to civil liberties and internet freedom.

When the European Parliament rejects ACTA, the Commission must work to find other ways to defend European intellectual property in the global marketplace.

The president of the S&D Group, Euro MP Hannes Swoboda, fully supported Martin's decision. He said:

Next week, at our upcoming group meeting, I will recommend to all Socialists and Democrats to reject ACTA.

It will be important to find a way to solve standing problems through a transparent process and in a way whereby freedoms of Internet users will not be further restricted.

S&D vice-president Sylvie Guillaume said:

This conference has once again confirmed our fears about the potential risks of a text like this for the fundamental liberties of European citizens. It's not a question of whether we should fight counterfeiting and piracy, but in this case, and given the legal uncertainty and doubts surrounding this Agreement, it is not acceptable.

Update: Liberals and Democrats reject ACTA

26th April 2012. See article from torrentfreak.com

The Alliance of Liberals and Democrats (ALDE) in the European Parliament have just confirmed that they will reject ACTA, the Anti-Counterfeiting Trade Agreement. Leader of the Alliance, Guy Verhofstadt, said that while supporting the protection of intellectual property rights, ALDE believes that ACTA falls short on a number of counts.

Although we unambiguously support the protection of intellectual property rights, we also champion fundamental rights and freedoms. We have serious concerns that ACTA does not strike the right balance, announced Guy Verhofstadt, ALDE group leader.

Civil society has been extremely vocal in recent months in raising their legitimate concerns on the ACTA agreement which we share. There are too many provisions lacking clarity and certainty as to the way they would be implemented in practice, Verhofstadt noted.

Update: European Commissioner for the Digital Agenda speaks against ACTA

5th May 2012. See article from business.avn.com

The whole idea behind the Anti-Counterfeiting Trade Agreement (ACTA), which late last year and earlier this year was signed (though not ratified) by a number of countries, including the US and EU members, was to bring the world together to address the global fight against digital piracy, such as it is. But, as with so many things political, it appears that the process behind ACTA as much as the provisions contained within it have all but doomed the law to the dustbin of history. At least that is what Neelie Kroes, the European Commissioner for the Digital Agenda, has said is the likely outcome.

We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the internet, Kroes said Friday during a conference in Berlin: This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject.

We are now likely to be in a world without SOPA and without ACTA.

According to web site Geneva Lunch, the Anti-Counterfeiting Trade Agreement (ACTA) quietly suffered another setback in Switzerland where the Swiss Federal Council said it would not sign the agreement.

The Federal Council noted that since negotiations for the treaty concluded criticism of ACTA has continued to grow in a number of countries. The Federal Council went on to say that they are taking fears expressed about ACTA seriously because they concern fundamental liberties and important legal provisions.

Update: Judicial Review

18th May 2012. See article from gamepolitics.com

The Anti-Counterfeiting Trade Agreement (ACTA) will get a judicial review in Europe's highest court, according to the Wall Street Journal. The European Commission has asked the European Court of Justice - the highest court in Europe, to review the treaty and make sure that it is compatible with current European treaties and the Charter of Fundamental Rights of the European Union.

The Court's opinion is vital to respond to the wide-ranging concerns voiced by people across Europe on whether ACTA harms our fundamental rights in any way, said John Clancy, the spokesman for EU trade commissioner Karel de Gucht.