Tuesday, December 12

Current State of Internet Piracy Policy

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The Anti-Counterfeiting Trade Agreement (ACTA) began negotiations in 2008 as a plurilateral agreement between the United States, the European Community, Switzerland and Japan. The purpose of this agreement was to create an international governing body outside of the already established World Trade Organization that would focus on enforcing copyright and intellectual property right violations.[1] This concept caught the attention of several other nations, including Australia, Mexico, and Canada[2], who would join the fight against copyright violations. In order for government officials to properly control the spread of piracy, there needs to be international laws set forth to fight it in many different countries.

The current policy on intellectual property rights is defined by the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) set forth by the World Trade Organization. In order for a country to be part of the World Trade Organization it must enact the strict intellectual property laws mandated by the TRIPS Agreement.[3] Internet piracy was in its infancy state when this agreement rolled around and it is obvious that the TRIPS Agreement is out of date when you look at the growth of technology today. The TRIPS Agreement defines copyrights, trademarks, and patents along with how long they last.[4] It also discusses the legal procedures for intellectual property right violations as well as how to acquire and maintain intellectual property rights.[5] Surprisingly several of the policies found in the TRIPS Agreement are almost identical to those found in the October 6th, 2010 draft of the ACTA.

The content of the ACTA was maintained as secret up until the official release of a draft in April 2010 and again in October 2010. However during 2009 there were several leaked copies of the draft that made it clear that the ACTA was not just about physical goods as previously suspected, but also it was about handling counterfeit goods in the digital world.[6] Within these early drafts there were several areas that would seem to cause conflict. When the ACTA was being negotiated, the United States Trade Representative stated that the regulations found in the ACTA will fall within already defined US law and not require any changes to the laws that are already in place. In Article 2.15 of the April draft of the ACTA, it stated criminal punishments for inciting intellectual property right violations.[7] Currently the US copyright law does not include inciting copyright infringement so if this draft of the ACTA were enforced, there would have to be some changes to the law which would oppose what the Trade Representative stated.

                Another popular subject in the early drafts of the ACTA was the idea of requiring internet service providers to monitor and police the content that their users were downloading and uploading. One section of the April 2010 draft of the ACTA would grant immunity from lawsuits to ISPs who blocked access to websites that distributed pirated material. Any ISP that didn’t follow this would be subject to legal liability.[8] Not only would this create a virtual police state on the internet, but it would also bring about huge conflicts with proponents of net neutrality. This notion would later be dropped from the ACTA in the July 2010 draft.[9]

                As of today, the latest draft of the ACTA is the October 2010 draft which was made public several days after negotiations that took place in Japan. This draft is being considered a win for piracy by many people across the internet. This once feared document has been watered down into several pages of widely interpretable recommendations.[10] Much of the extreme control that several leaders of their industry, such as the RIAA, and the U.S. government have been pushing for has been removed from this draft of the ACTA. The idea of holding ISPs liable for what their users do was removed in the previous draft and shows no sign of returning with the release of the October draft. When it comes to internet piracy, there is not much change from the already established regulations set forth by the TRIPS Agreement in 1994. For example the consequence for intellectual property rights infringement includes paying damages to the owner of the copyright rather than possible jail time as seen in much earlier drafts.[11] With almost no changes to the currently established regulations, piracy is assumed to continue to flourish with or without the implementation of the ACTA.

                The recent draft of the ACTA has caused some commotion within the members of the ACTA negotiation committee. On October 5, 2010 the Mexican Senate unanimously voted to pull Mexico out of the ACTA. The main point for leaving is that the ACTA was just too secretive. Mexico believes that the process of developing this document needs to be more open and involve more stakeholders.[12] This resolution was originally proposed by Senator Carlos Sotelo who rejected any type if international policy that was discussed by only a select few.[13] Sotelo believed that in order to build a modern nation there had to be an access to information available to the citizens. He felt that the ACTA was removing access to this knowledge and information.[14] Mexico will remain out of the ACTA until they will be able to analysis the final draft of the document to make sure it still protects the rights of the citizens.

                Another slightly more influential group that is skeptical about the new ACTA draft is the European Parliament. The European Parliament has been in conflict with the European Commission, who is negotiating the ACTA, regarding whether or not the Commission is considering the input of the Parliament. In September of 2010 EU Parliament made it clear to the EU Commission about what they wanted by passing the Written Declaration 12/2010. This declaration was created to protect the rights of the citizens and to make the all further drafts of the ACTA available to the public.  Several other aspects of the Written Declaration stresses that ISPs should not be liable for what their users do, strengthening the border inspection should not harm access to legal medication, and any regulations in the ACTA should fall within the already defined EU copyright laws.[15] The EU Parliament hopes this will send an important political signal to EU ACTA negotiators since the ACTA needs to be approved by the UE Parliament before it can be adopted.

                The pot continues to boil as the October 2 negotiations in Japan end. Members of the European Parliament have requested the European Commission to halt all negotiations of the ACTA after the negotiations were ended without the consent of the Parliament.[16] On October 2, 2010 when the negotiations were concluded, Vice-President of the Parliament Stavros Lambrinidis demanded to see the final draft of the ACTA so that they could review it. However the European Commission never released a copy of the document until several days later when it was made public to everyone. The European Parliament has threatened many times that they will vote down the ACTA unless the Commission starts listening to them. The members of the Parliament believe that the Commission will put pressure on them to approve the ACTA without properly understanding the full implications of it.[17]

                Unlike the European government which requires approval of the ACTA by the Parliament, the Obama administration has suggested it will adopt the ACTA as a “sole executive agreement”.[18] This means that it will bypass the Congress, and thus denying citizens of any input, and require only the consent of the President before it is adopted. The Supreme Court has never made the limits on the power of the sole executive agreement clear and it is almost certain that if the ACTA is adopted this way it will be tried in the courts over whether or not the powers of the executive branch can do such a thing.

                The most recent draft of the ACTA is being seen as a win for internet piracy by users all across the internet. Most sites and communities that were previously targeted by ACTA are now out of its line of site, and these communities have moved onto to more pressing issues that could threaten their livelihood. One of these issues is a newly introduced bill titled The Combating Online Infringement and Counterfeits Act (COICA). The COICA was introduced into the Senate by Senator Patrick Leahy of Vermont. The bill was recently passed to the Senate Judiciary Committee, but was postponed thanks to the EFF and those who supported them. The COICA states that any site that is for the purpose of spreading copyright material will be placed on a blacklist. The bill gives large legal incentives for the ISPs to block all websites on this blacklist.[19] All file-sharing sites have been targeted, even the ones that don’t focus on copyrighted material such as RapidShare or MediaFire. However, the supporters of the COICA will be fighting a war on two fronts. Not only does this bill target people who violate copyrights, but it also pushes into the realms of net neutrality. Supports of both piracy and net neutrality will be fighting this bill head on, but only time will tell as to what the outcome will be.

                It was a relief off my mind when the ACTA was changed so dramatically in the favor of those pirating copyright material. When it comes to pirating software I don’t feel that the responsibility should be place on the government to prevent it from happening. Rather I believe that it is the responsibility of the copyright owners to protect their property. Focusing on video games and software, the digital rights management technology that is supposed to protect the files is so easily broken. If these companies don’t want their software to be pirated, they should invest more time in security rather than having the government jump in with things like the ACTA or worse the COICA. It seems to me the software owners aren’t learning from their mistakes when their security is bypassed, but rather they keep putting out the same protection that people are still able to get around. Instead of making laws preventing users from sharing the data, it should be made impossible for users other then the one it was licensed to use that data.

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[1] http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement

[2] http://www.eff.org/issues/acta

[3] http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights

[4] Agreement on Trade-Related Aspects of Intellectual Property Rights. WTO. 1994.

[5] Agreement on Trade-Related Aspects of Intellectual Property Rights. WTO. 1994.

[6] Anti-Counterfeiting Trade Agreement. Wellington, New Zealand. April 16, 2010.

[7] http://www.eff.org/deeplinks/2010/04/eff-analysis-officially-released-acta-text

[8] Anti-Counterfeiting Trade Agreement. Wellington, New Zealand. April 16, 2010.

[9] Anti-Counterfeiting Trade Agreement. Lucerne, Switzerland. July 1, 2010.

[10] http://torrentfreak.com/acta-anti-piracy-treaty-not-as-horrible-as-feared-101006/

[11] Anti-Counterfeiting Trade Agreement. Tokyo, Japan. October 2, 2010.

[12] http://www.techdirt.com/articles/20101005/17320811304/mexican-senate-unanimously-votes-to-remove-mexico-from-acta-negotations.shtml

[13] http://www.openacta.org/?p=539

[14] http://www.techdirt.com/articles/20101005/17320811304/mexican-senate-unanimously-votes-to-remove-mexico-from-acta-negotations.shtml

[15] Written Declaration 12/2010. European Parliament. September 17, 2010.

[16] http://www.euractiv.com/en/infosociety/lawmakers-call-halt-acta-deal-news-498442

[17] http://www.euractiv.com/en/infosociety/lawmakers-call-halt-acta-deal-news-498442

[18] http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html

[19] http://www.eff.org/issues/coica-internet-censorship-and-copyright-bill

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