ACTA Text Released, Risks ISPs Becoming Copyright Police

[DaBees-Knees]

http://www.zeropaid.com/news/90972/acta-text-released-risks-isps-becoming-copyright-police/

Latest draft of the Anti-Counterfeiting Trade Agreement (ACTA) has been released, and although most of the controversial items like “three-strikes” have been removed, many still remain.

The Anti-Counterfeiting Trade Agreement (ACTA) negotiations have been ongoing for some time now, culminating in a supposedly final round that concluded last week in Tokyo, Japan. The text of the near final agreement has now been released, and although it lacks the more unpalatable requirements like mandatory “three-strikes” and scaled back “safe harbor” protections for ISPs, it nonetheless still contains many troubling provisions that will require, in some case, substantial legislation action in most of the signatories’ countries.

“This text reflects tremendous progress in the fight against counterfeiting and piracy – a global crime wave that robs workers in the United States and around the world of good-paying jobs and exposes consumers to dangerous products,” said US Trade Representative Ron Kirk in a press statement.

Part of the problem is the way the treaty starts out, all parties agreeing that the “proliferation of services that distribute infringing material” – i.e. P2P – somehow “undermines legitimate trade and the sustainable development of the world economy.” P2P hardly does either, and according to some studies, does exactly the opposite.

This would not matter in an ACTA world. In fact, when it comes to calculating the damages copyright holders have allegedly suffered at the hands of an accused file-sharer “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.”

If the Government Accountability Office, Congress’ investigative arm, wasn’t even able to come up with a reasonable figure, why should we assume that an obviously biased party would be able to do any better? How exactly does one measure lost profits? There’s no such thing. You either make a sale or you don’t.

The text adds that with respect to copyright infringement of works, movies, and music each Party shall establish or maintain a system that provides for one or more of the following penalties:
pre-established damages, or
presumptions for determining the amount of damages sufficient to
compensate the right holder for the harm caused by the infringement, or
at least for copyright, additional damages.

Note that it allows for additional damages on top of the damages already awarded to compensate for the harm suffered by the infringement.

Non-commercial file-sharing seems to be of a lesser concern, the text calling for criminal procedures and penalties to be applied “at least in cases” of willful copyright infringement on a “commercial scale,” but you can rest assured they’ll still be prosecuted under the guidelines in order to establish a “deterrent” effect.

As for CAMs, it says that each Party “may” establish criminal procedures and punishment for the accused.

It appears as though ISPs could become unofficial copyright police, each Party obligated to enforcement procedures that include the “unlawful use of means of widespread distribution for infringing purposes.” It also asks that each Party “may provide” that govt has the authority to order ISPs to “disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement.”

The RIAA calls the latest ACTA draft a “blueprint” that it likely thinks establishes a baseline for a global copyright treaty that could be ratcheted up in the future.
Critics however, abound.

“The release of this near-final version of ACTA does not satisfy the transparency requirement of democracy, since citizens and their elected representatives are put before a ‘fait accompli’,” says Jérémie Zimmermann, spokesperson of the citizen advocacy group La Quadrature du Net. ” If this agreement were to be implemented, the rights and freedoms of citizens across the world as well as democratic processes would be severely undermined. Ratification of ACTA must be opposed by all means.”

If that wasn’t enough, the Mexican Senate has already taken steps to withdraw from the ongoing ACTA negotiations unless steps are taken to conduct future negotiations in public. Being that they are designed to create measures that will regulate the Internet, and “therefore knowledge and information,” Senator Carlos Carcia Sotelo (PRD) thinks it’s important that the govt “safeguard fundamental rights” and it can’t do so if it has no part in the negotiations.

"Note that it allows for additional damages on top of the damages already awarded to compensate for the harm suffered by the infringement"

It seems that the industry has managed to get unreasonable levels of compensation built in to the ACTA agreement.  We can only hope that governments will see the injustice of this and will get it removed before the final draft.