Tuesday, May 25, 2010

U.S. Involved in Under-the-Radar Negotiations for Draconian Internet Law

U.S. Involved in Under-the-Radar Negotiations for Draconian Internet Law

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It didn’t make much news on this side of the pond, but one of the most significant pieces of legislation in the digital era was passed in the United Kingdom just prior to the recent national election. It is called the Digital Economy Act, pushed by a powerful coalition of media interests. It is a sweeping piece of legislation. Notably, its odious provisions are headed for America and the world.

The Electronic Frontier Foundation recently noted:

The Digital Economy Bill has been the subject of heavy entertainment industry lobbying and widespread concern amongst U.K. citizens and telecommunications companies because it included provisions that would allow the U.K. government to censor websites considered “likely to be used for or in connection with an activity that infringes copyright,” and disconnect the Internet connection of any household in the U.K. with an IP address alleged to have engaged in copyright infringement.

That means YOU, Wikileaks.

Other powers granted by the new law include:

* Although proof is required before disconnection, the evidence does not have to relate to you: you can be punished for the actions of a friend or even a neighbour who has used your Internet connection.
* Rights holders could have the power to demand that sites they believe to contravene copyright law be blocked by ISPs.Right now, we don’t know what the govrnment will propose, as they have yet to draft their new proposal.
* As it is not the perpetrator that is punished, as you might expect, but the owner of the connection, and others using it, caf├ęs and bars may have to stop providing wifi.

You could go to your local coffeeshop tea room and use their WiFi. Some other user at that shop is using BitTorrent or some other P2P software to download music or a movie. Under the DEA, that WiFi network can be disconnected from the internet. Permanently. More ominously, if a right holder, such as News Corp. or Halliburton believes that certain websites are likely to be used to publish copywritten materials, that website can be blocked from the internet. Whoa. Not an actual incident of copyright infringement, but the likeliness of it happening allows the holder of that copyright to request that website’s ISP block it.

For more analysis of the law and its implications, read this.

Similar provisions included in the DEA are being negotiated, in secret, by a consortium of nations in a new trade agreement called the Anti-Counterfeiting Trade Agreement. The United States is part of the negotiations which recently concluded their eighth round in New Zealand. Thanks to pressure from civil society and privacy activists, the first public draft of the new law is available.The draft provisions look remarkably like the DEA:

In civil judicial proceedings concerning the enforcement of [copyright or related rights and trademarks] [intellectual property rights], each Party shall provide that its judicial authorities shall have the authority [subject to any statutory limitations under its domestic law] to issue [against the infringer an injunction aimed at prohibiting the continuation of the] [an order to a party to desist from an] infringement, including an order to prevent infringing goods from entering into the channels of commerce [and to prevent their exportation].

[2. The Parties [may] shall also ensure that right holders are in a position to apply for an injunction against [infringing] intermediaries whose services are used by a third party to infringe an intellectual property right.8]9

What this legalese means is every party to the trade agreement must adopt policies that give “judicial authorities” the authority to not only go after the person who infringes on the copyright at the behest of the right holder, but also against “intermediaries.” That could mean ISPs. That could mean your unsecured WiFi network. That could mean sites that act as publishing platforms for the general public.

And then there is this:

[X. Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right.Each Party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods.]

  1. Each Party shall [provide][ensure] that its judicial authorities [shall ]act [expeditiously][ on requests] forprovisional measures inaudita altera parte, and shall endeavor to make a decision[ on such requests] without undue delay, except in exceptional cases.

Emphasis mine. Now, it seems reasonable to me that courts should have the power to issue injunctions to prevent imminent infringement by a copyright abuser. But to also grant the power to disconnect intermediaries, seize evidence inter alia of said intermediaries, and to do it all ex parte is beyond odious. This is all being done in the name of ending online software and content piracy, which is certainly a reasonable goal. This response, however, is draconian. Since it is expensive to go after each and every person who downloads a music file for free, the media conglomerates must slowdown or shutdown any network where it is or might possibly take place. This will have the effect of forcing ISPs to police what their users are doing and that is where the Internet experience start to feel like watching cable: lots of stuff on but nothing worth seeing.

The EFF strongly opposes ACTA much as it opposed the awful Digital Economy Act in Britian. Liberal Democrat leader, now Deputy Prime Minister Nick Clegg promised to repeal it if elected. However, the new Conservative minister responsible for the law has made it clear it is here to stay.

You can take action against ACTA by first fighting for sunlight.

Oh…almost forgot:

Because ACTA is being negotiated as anExecutive Agreement, it will not be subject to the Congressional oversight mechanisms that have applied to recent bilateral free trade agreements, even though it appears likely to have a far greater impact on the global knowledge economy than any of those.

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