For those of you who have been living under a rock, ACTA (the Anti-Counterfeiting Trade Agreement) was destroyed yesterday by the European Union’s Parliament by an overwhelming 478 to 39. Because of this, ACTA is now in the anti-democracy graveyard playing cards with its friends SOPA and PIPA. This is good news for the industrialized world, yet many don’t understand why. Allow me to explain.
What is ACTA?
The stated purpose of ACTA was simple: prevent copyright and patent infringing products from crossing borders and damaging legitimate businesses and industries. This included everything from prescription medication to pirated software. The agreement seemed like a great idea at the time it was announced and was lauded as being the next big step in curbing infringement.
What’s Wrong with Wanting to Curb Pirating?
Nothing is wrong with wanting to stop patent and copyright infringement. It was the methods used by the negotiating parties that were initially called into question. ACTA was a prime example of what is known as policy laundering. In essence, a country’s legislature knows that since their arguments and votes are public, it would be impossible to institute certain laws without greatly upsetting their constituents. Treaty negotiations like ACTA on the other hand, are almost universally discussed and voted on behind closed doors. Once a treaty has been ratified, it then becomes a simple matter of enforcing the agreed upon treaty and bypassing traditional institutions and safeguards.
ACTA negotiations began in 2008. They took place in many locales around the world, and it was not until three years later, in April 2011 that the initial drafts of the agreement were made public. The treaty was then signed on October 1, 2011 by the United States, Canada, Australia, Japan, Morocco, New Zealand, Singapore, and South Korea while the European Union held off until a full vote could be put before their parliament.
The Treaty’s Content is Still Good Right?
Where ACTA really made a lot of people angry were Sections 2, 4, and 5 of the revised draft, which outlined the civil and criminal penalties, as well as the scope of law enforcement in regards to physical and digital crimes.
Section 2 of the law outlined the civil enforcement of the law, i.e. lawsuits. The issue with this was that the copyright/patent holder had the ability to submit a claim to (and have accepted by) the judge that would basically allow the right’s holder to determine how much they receive from the defendant, as long as they have a “legitimate” means of estimation.
Section 4 outlines criminal enforcement of the treaty. Where things went wrong here was the fact that the threshold for proof against an infringing party was extraordinarly low and purposefully vague, which could allow for abuse by both the right’s holders as well as law enforcement. On top of which, it allowed for fines and imprisonment as well as the lawsuits described in Section 2.
Section 5 involves copyright and patent infringement issues in the digital realm. The biggest issue here lies within the fact that it allows right’s holders to police, sue, and bring charges against anyone who is remotely associated with pirating (in any way, shape, or form) in a way that would circumvent standard judiciary channels. This in turn hands huge amounts of worldwide policing power to large corporations who hold the most patents and/or copyrights and it negates the rights of the average citizen in member countries.
So What Happens Now?
The dangers outlined here are just some of the many that were in ACTA. Even though the European Union has struck down the agreement, (and prevented it’s member states from being signatories) many other countries, including the United States had already signed on. Only time can tell what will happen, but we here at XDA are strongly against any form of legislation or treaty that will infringe upon our users’ rights. While we do believe in following the law, we do not believe in the destruction of individual liberties.
For those of you in Europe, rejoice and breathe easier knowing that you won’t have to deal with the insanity of this treaty… for now.___________________