[p2p-research] Fwd: [fcf_discussion] "Final" Version of ACTA Must be Rejected as a Whole

[Michel Bauwens]

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From: La Quadrature du Net <jz at laquadrature.net>
Date: Tue, Oct 12, 2010 at 12:40 AM
Subject: [fcf_discussion] "Final" Version of ACTA Must be Rejected as a
Whole
To: fcforum_discussion at list.fcforum.net


 La Quadrature du Net - For immediate release

Permanent link:
http://www.laquadrature.net/en/final-version-of-acta-must-be-rejected-as-a-whole


"Final" Version of ACTA Must be Rejected as a Whole



*** ACTA AS A BULLYING WEAPON FOR THE ENTERTAINMENT INDUSTRIES ***

By putting legal and monetary pressure on Internet service providers (in a
most subtler way than in previous versions of the text), ACTA will give the
music and movie industries a weapon to force them to police their networks
and users themselves. Such a private police and justice of the Net is
incompatible with democratic imperatives and represent a real threat for
fundamental freedoms.

In its article. 2.18.3 [1] the ACTA agreement calls for "cooperation"
between rights-holders and the Internet service providers. The very same
mechanisms are called by the European Commission as "extra-judicial
measures" and "alternative to courts". It could mean that police
(surveillance and collection of evidences) and justice missions (penalties)
could be handed out to private actors, bypassing judicial authority and the
right to a fair trial.

In article 2.18.4 [2], ACTA will allow rights-holders to obtain private data
regarding the users of Internet service providers, without a decision of a
judge. This is a dangerous breach to privacy. The article is non-binding
(using the "may" verb), but this could be changed further, by way of
amendment (see below). This would generalize a much criticized procedure
included in the 2004 IPR enforcement directive. [3].

Civil sanctions [4] could also weight on technical intermediates and be used
to pressure them to accept "cooperation". The "damages" section of the civil
chapter [5] validates the "lost-sale myth" whereby the industry claims
enormous profit losses using biased methodologies. The text requires
"pre-established" damages, as well as "additional damages," which means
damages not based on any actual proof of harm and akin to a criminal
sanction.

Article 2.14.4 [6]: Criminal sanctions for "aiding and abetting"
infringement (it sounds exactly like IPRED2 [7], which is not part of the EU
acquis). These could also be used against Internet technical intermediaries
and technology providers as a way to force them into accepting "cooperation"
with rightsholders.

Article 2.18.2 [8]: The entirely new -though not definitive- reference to
the enforcement of "means of widespread distribution for infringing
purposes" is very worrying. It could be interpreted as justifying the
implementation of provisions indirectly criminalizing blogging platforms,
P2P networks, free software, and other technologies that contribute to
dissemination of culture and knowledge on the Internet.


*** ACTA BRINGS BROAD AND DANGEROUS CRIMINAL SANCTIONS ***

ACTA imposes new criminal sanctions, bypassing the EU and Member States'
standard democratic process. The wording is so broad that many not
for-profit actions could be criminalized.

Article 2.14.4 [9]: Criminal sanctions for "aiding and abetting"
infringement. It is intolerable that criminal sanctions are included in a
"trade agreement". Such measures should only be debated in democratic
arenas. Moreover, the limit between "aiding" and political speech is blurry.

Article 2.14.1 [10]: ACTA provides that criminal sanctions must be applied
for cases of infringement on a "commercial scale". This term is vague, open
to interpretation, and just plainly wrong when it comes to determining the
scope of proportionate enforcement. Widespread social practices, like
not-for-profit filesharing betweens individuals, could be interpreted as
"commercial scale". The only acceptable limitation of the scope of
enforcement should be "commercial intent" or "for profit".


*** ACTA WILL ALLOW FOR DURABLY BYPASSING OF DEMOCRACY ***


An "ACTA committee" will be able to modify the agreement after it has been
accepted. Such a parallel legislative process, accounting to a blank check
to ACTA, is incompatible with democracy. This justifies that the whole ACTA
be rejected.

Articles 5 and 6 [11]: These articles create the "ACTA committee", and grant
it the competence to review amendments to ACTA (art 6.412). This paves the
way for a durable bypassing of democracy, even after ACTA is voted. No
elected representative should tolerate this in a democracy as it opens the
door for such processes to be generalized.




* Références *


1. Each Party shall endeavor to promote cooperative efforts within the
business community to effectively address at least trademark and 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.

2. Each Party may provide, in accordance with its laws and regulations, its
competent authorities with the authority to order an online service provider
to disclose expeditiously to a right holder information sufficient to
identify a subscriber whose account was allegedly used for infringement,
where that right holder has filed a legally sufficient claim of infringement
of at least trademark and copyrights or related rights and where such
information is being sought for the purpose of protecting or enforcing at
least the right holder's trademark and copyright or related rights. These
procedures shall be implemented in a manner that avoids the creation of
barriers to legitimate activity, including electronic commerce, and,
consistent with each Party's law, preserves fundamental principles such as
freedom of expression, fair process, and privacy.

3. The directive created an obligation for Internet Service Providers to
disclose personal information regarding their customers to recording
industry executives during civil prosecution of persons suspected of sharing
copyrighted works over the Internet. This has led to much controversies in
Member States regarding the respect of people's privacy and, again, the
proportionality of such measures in the case of non-commercial
infringements. See, for instance, the case of Sweden
http://www.thelocal.se/19556/20090520/

4. Article 2.X: Injunctions:
 1. Each Party shall provide that, in civil judicial proceedings concerning
the
 enforcement of intellectual property rights, its judicial authorities shall
have the
 authority to issue an order against a party to desist from an infringement,
and inter alia, an order to that party or, where appropriate, to a third
party over whom the relevant judicial authority exercises jurisdiction, to
prevent infringing goods from entering into the channels of commerce.
 2. Notwithstanding the other provisions of this Section, a Party may limit
the
 remedies available against use by government, or by third parties
authorized by a government, without the authorization of the right holders
to the payment of
 remuneration provided that the Party complies with the provisions of Part
II of the TRIPS Agreement specifically addressing such use. In other cases,
the remedies under this Section shall apply or, where these remedies are
inconsistent with a Party's law, declaratory judgments and adequate
compensation shall be available

5. Article 2.2.3: In determining the amount of damages for infringement of
intellectual property rights, its judicial authorities shall have the
authority to consider, inter alia, any legitimate measure of value submitted
by the right holder, which may include the lost profits, the value of the
infringed good or service, measured by the market price, the suggested
retail price.

6. With respect to the offenses specified in this Section, each Party shall
ensure that criminal liability for aiding and abetting is available under
its law.

7. After the Directive on the civil enforcement of intellectual property
rights1 was passed in 2004, another proposal (IPRED 2) was introduced in
2005 with the aim of harmonizing criminal sanctions among Member States.
IPRED 2 was eventually dropped after much criticisms from Members of the
European Parliament, civil society groups and even Member States who pointed
out the EU's lack of legal competence in the field of criminal law:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005PC0276%2801%29:EN:NOT

8. Each Party's enforcement procedures shall apply to infringement of at
least trademark and copyright or related rights over digital networks,
including the unlawful use of means of widespread distribution for
infringing purposes. These procedures shall be implemented in a manner that
avoids the creation of barriers to legitimate activity, including electronic
commerce, and, consistent with each Party's law, preserves fundamental
principles such as freedom of expression, fair process, and privacy.

9. With respect to the offenses specified in this Section, each Party shall
ensure that criminal liability for aiding and abetting is available under
its law.

10. Each Party shall provide for criminal procedures and penalties to be
applied at least in cases of willful trademark counterfeiting or copyright
or related rights piracy on a comm



** About la Quadrature du Net **


La Quadrature du Net is an advocacy group that promotes the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.

In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
digital age.

La Quadrature du Net is supported by French, European and international NGOs
including the Electronic Frontier Foundation, the Open Society Institute and
Privacy International.

List of supporting organisations :
http://www.laquadrature.net/en/they-support-squaring-net-la-quadrature-du-net


** Press contact and press room **

Jérémie Zimmermann, jz at laquadrature.net, +33 (0)615 940 675

http://www.laquadrature.net/en/press-room




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