Tuesday, 6 March 2012

ACTA: IP Trolls' License To Bully

ACTA, the controversial IP enforcement treaty, is on life support at the moment, but behind the scenes, its supporters are rallying and trying to sneak it in through the back door. Meanwhile, they've persuaded governments all over the world to usher in a surveillance regime that threatens to rival those of the Soviet satellites states during the Cold War to protect and promote their interests.

Impact on medicines

As a treatment provider, Médecins Sans Frontières (MSF) is deeply concerned about the impact of the enforcement agenda on the production and supply of affordable, legitimate medicines. We urge contracting States not to sign or ratify ACTA unless all concerns related to access to medicines are fully addressed.

In a PDF they published on their website, MSF outline their concerns, which include:

  • MSF relies primarily on generic medicines procured internationally.

  • It is a public health necessity that the trade in affordable and legitimate medicines functions smoothly and without undue burdens.

  • MSF has been increasingly concerned by the proliferation of enforcement measures that harm access to medicines.

  • Overbroad enforcement measures can threaten access to medicines.

  • While it is claimed that ACTA will protect against falsified medicines by allowing countries and companies to take strong measures in trademark disputes, this may in fact impede access to genuine generic medicines.

You really need to read the PDF to see why they think this, but there's no doubt in my mind that they're right.

Impact on the internet

The rights holders are increasingly being assisted in their efforts to take over the internet — and force our internet service providers to police it for them when the actual police aren't policing it for them. Increased costs for surveillance and data retention will of course push broadband and phone bills up for the rest of us. The recent judgement against BT and TalkTalk's challenge to the Digital Economy Act is a giant step backwards in legislation and a shot in the arm for IP trolls.

What it means:

  • Identification of alleged infringers will be the responsibility of the rights holders, who will tell ISPs which of their customers are suspected of unlawfully downloading copyrighted material.

  • ISPs have to pay 25 per cent of the cost of enforcing this system.

  • ISPs will have to send warning letters to alleged illegal file downloaders, as well as potentially cutting users off.

  • Invasion of privacy and disproportionate costs for both ISPs and consumers.

  • Keep lists of repeat infringers which can be requested under established legal procedures.

  • Whatever happens, those accused of piracy will have to pay a £20 fee to defend themselves — TalkTalk has previously suggested that this is a 'guilty-until-proven-innocent' policy.

  • “Threats to chuck entire households off the web will be bad for the economy, bad for society - and bad for us as a creative nation too.” - Loz Kaye, leader of the Pirate Party UK.

See the judgement itself, discovered on the SRoC website, an increasingly important source of tech news for me. The only ray of light is that trying to implement legislation intended to benefit a small special interests group is proving problematic. On balance it seems it's more likely to be that than anything else, that kills the Digital Economy Act, which is supposed to be supplementary to ACTA — which was not supposed to change existing laws or anything. The idea of putting the copyrights holders, who are a hypocritical bunch of IP trolls, in charge of deciding who is or isn't an infringer, when they have been caught out abusing the USA's DMCA system, is outrageous, and as Peter Bradwell of the Open Rights Group pointed out in an interview on tech blog ZNet,

"The Department for Culture, Media and Sport had no evidence when they wrote this Act, except for the numbers they were given by a couple of industry trade bodies," Peter Bradwell of the Open Rights Group said. "This is a policy made on hearsay and assumptions, not proper facts or analysis."

"Significant problems remain," Bradwell added. "Publicly available Wi-Fi will be put at risk. Weak evidence could be used to penalise people accused of copyright infringement. And people will have to pay £20 for the privilege of defending themselves against these accusations."

Data Retention

Currently the Commission is assessing whether to revise or abandon the Data Retention Directive 2006/24/EC. The Directive was adopted in 2006 as a reaction to, amongst others, the London Bombings in 2005. It makes blanket retention of all citizens’ communications data mandatory. Several EU member states have not implemented the directive due to constitutional concerns, in particular with regards to the right to private life. - Christian Engström, Member of the European Parliament for the Pirate Party, Sweden

The Commission's evaluation report, presented in April 2011, concluded that the EU should continue to support and regulate the storage of, access to and use of telecommunications data. However, EU rules in this area need to be improved to prevent the different types of operators from facing unfair obstacles in the Internal Market and to ensure that high levels of respect for privacy and the protection of personal data are applied consistently.

The Commission has been consulting the judiciary, law enforcement authorities, data protection authorities, industry, civil society organizations and consumers on the options for reforming the current framework. Emerging themes can be found here. The consultation will feed into an impact assessment and a new legislative proposal in 2012. - European Commission Home Affairs

This is ostensibly about fighting crime, but with the criminalization of copyright infringement being pushed to the max and beyond by ACTA-vists, it will of course be used to identify infringers and bring them to injustice.

Impact on creativity and innovation

Louis Vuitton are massive IP trolls who bully anyone whom they see as remotely infringing their trademark. The advent of ACTA would see a marked increase both in the run-up and the aftermath of the treaty being ratified of lawsuits being brought against anyone and everyone. The world is shrinking and with US IP trolls bringing the weight of its moneyed IP machine into a Europe that is already struggling to keep its head above water financially harder and faster than ever, it seems likely that they'd sue us all into the stone age in an attempt to keep themselves on top and our politicians wouldn't realise it until it's too late. Perhaps I'm being too generous in my assessment and they already know. The point is, they're trying to export their litigation culture to us and we don't need it. Here are some cases to refer to:

Louis Vuitton V Pennsylvania IP Group

Judge orders Google, Motorola to hand over Android data to Apple

Apple sued by company in patent deal with Microsoft

Yahoo turns patent troll, aims to shake down Facebook for fees in run up to IPO

IPCom Will Seek to Block HTC 3G Smartphone Sales in Germany

Expect to see a massive increase in that kind of thing, with our own big brand companies going tit for tat to judo the trolls, creating a massive price hike as they either litigate successfully and win or give up and pay license fees and feed the trolls. Laws and treaties like ACTA, TPP, PIPA, and SOPA stifle free expression and the effective operation of the internet as well as having a chilling effect on innovation. They're only good for the IP trolls and disastrous for us.

Impact on government and society

The European Parliament’s International Trade Agreement Committee held a two-day hearing into ACTA last week. MEPs and academics outlined their concerns about the controversial deal while the EU’s trade commissioner defended the Commission’s negotiating position explained the economic imperatives behind it.

At the end of the hearing, the trade committee’s rapporteur, UK MEP David Martin, said he plans to produce an interim report into ACTA.

“We have critical interest in defending EU intellectual property and we need to act,” said Martin in a European Parliament statement following the Parliament’s first hearing on the issue on 29 February and 1 March. He added that “it is not the intentions of ACTA that raise concerns but its possible unintentional consequences. ACTA lacks detail. The main concern is how the text might be read”. - Managing IP

The powers that be are locked in a war of attrition with the digital rights groups and their supporters on one side and powerful IP lobby groups on the other. The pro-ACTA groups are trying to sneak ACTA in through the back door and if that doesn't work, persuade our governments to pass other laws that enact their desire to enslave us via our ISPs and our own police force in the name of tackling flammable exploding terrorist child pornographers or something. And protecting the jobs of creatives who are being screwed out of their rights by the IP trolls. You've got to love them. Anyway, they think the resistance is a flash in the pan and we'll all go along with it in the end because it's inevitable — or so they think. Resistance is actually building; the fear they have struck into our hearts has not made us more compliant, but more resistant. Previously apolitical people like me are now gearing up for a protracted war against the IP trolls and we'll win because we're not relying on money and power but on mutual cooperation for the common good. There simply aren't enough of them to make their plans work so sooner or later they'll have to admit defeat.

Meanwhile, politicians and government figures are busily trying to find a way forward as they come to the realisation that, in a democracy, people have to actually vote for them or they'll lose their jobs. In a war of the people V Big Content, they've got the campaign donation money but we've got the numbers and the right to vote. That's why we'll win.

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