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The inaccurate anti-ACTA arguments


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After the Internet's decisive victory over the Stop Online Piracy Act earlier this month, online activists have been looking for their next target, and a growing number of them have chosen the Anti-Counterfeiting Trade Agreement (ACTA), which was signed by the EU last week. Indeed, the renewed focus on ACTA even led a group of Polish politicians to hold paper Guy Fawkes masks—the symbol of Anonymous—over their faces in protest at the way ACTA has been pushed through. In the US, over 35,000 people have signed a petition urging the White House to "end ACTA," despite the fact that it has already been signed by the US.

At Ars Technica, we're as committed as anyone to defending free speech, fair use, and the open Internet against draconian new copyright laws. But it's important for the debate to be informed by accurate information. Unfortunately, many of the claims about ACTA that are circulating among the treaty's opponents are highly misleading or outright inaccurate. We've been covering ACTA for over four years, and hopefully we can shed some light on a tricky subject.

Much of the misinformation seems to come from the fact that the final text proved to be much less dangerous to Internet freedom than early drafts had suggested. Any number of controversial proposals were included, or rumored to be included, in early drafts of the treaty. But thanks in part to an intense public backlash, most of these provisions were stripped out, or at least watered down, in the final version of ACTA.

That final version has been publicly available for months, but many ACTA opponents continue to focus on these deleted provisions in their arguments against the treaty. We'll examine four of the most trenchant claims about ACTA that have been circulating on the Internet in the last week, then compare them to what ACTA actually says.


Polish parliamentarians protest ACTA

Four dubious claims about ACTA

Claim: "ACTA gives [iSPs] the power—or more accurately forces them—to monitor all your packets, all the time."

Reality: This is the most-repeated claim, and it's simply inaccurate. Nothing in the treaty appears to require ISPs to monitor their customers' traffic. While earlier versions of the treaty had proposed French-style "three strikes" measures, these proposals were dropped from the final version of the treaty. The closest ACTA comes to mandating ISP surveillance is section 27.3, which requires participating nations to "promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's law, preserving fundamental principles such as freedom of expression, fair process, and privacy."

Forcing ISPs to actively monitoring their customers' traffic might be one way to comply with this requirement. Implementing a "three strikes" regime might be another. But there are also innocuous ways a country could comply, like holding conferences on copyright enforcement, sending literature to businesses encouraging them to respect copyright, and setting up an anonymous tipline for suspected copyright or trademark infringement.

Claim: "Can you imagine generic drugs that could save lives being banned? Can you imagine seeds that could feed thousands being controlled and withheld in the name of patents? This will become a reality with ACTA."

Reality: Section 3 of ACTA deals with the flow of infringing products across borders. It requires countries to allow customs officials to seize goods suspected of infringement. Such seizures would be allowed not only in the origin and destination nations, but also while the goods are in transit through third countries.

Critics argue that drug companies could use this provision to get generic drugs seized as they pass through third countries, even if the drugs would be legal under the patent system of the destination country. Similarly, they worry that genetically-modified, and patent-encumbered, seeds would be seized as they were shipped across borders. But footnote 6 of the treaty states that "patents and protection of undisclosed information do not fall within the scope" of section 3.

There have been isolated cases of generics being seized on trademark grounds because they too closely mimicked the appearance of the corresponding name-brand drug. (Think of Nexium, for example, which is marketed as the "purple pill.") But at worst that would require the manufacturers of generics to tweak the appearance of their drugs to avoid infringing on trademarks.

An in-depth report on the impact of ACTA on generic medicines found that the treaty "makes enforcement of intellectual property rights in courts, at borders, by the government and by private parties easier, less costly, and more 'deterrent' in the level of penalties. In doing so, it increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions against legitimate suppliers of generic medicines." So at the margin, ACTA might be bad for the flow of generic drugs to poor countries, but it's a huge exaggeration to say that generic drugs would be "banned."

Claim: ACTA "obliges its signatories to take on many of the worst features of SOPA and PIPA." It's "the European version of the US SOPA and PIPA rolled into one and cranked up to 11."

Reality: The provisions of SOPA and PIPA that generated the most outrage were those that would have blacklisted sites from DNS, search engines, payment networks, and ad networks. None of these proposals were included in ACTA. Perhaps this is a reference to the provisions requiring signatories to "promote cooperative efforts within the business community," but as we've seen, there are any number of ways to comply with this requirement that are less draconian than the SOPA provisions that generated so much controversy.

As respected Canadian copyright scholar (and longtime ACTA critic) Michael Geist has put it, "from a substantive perspective, ACTA's Internet provisions are plainly not as bad as those contemplated by SOPA. Over the course of several years of public protest and pressure, the Internet provisions were gradually watered down with the removal of three strikes and you're out language. Other controversial provisions on statutory damages and anti-camcording rules were made optional rather than mandatory."

Claim: "ISPs will be required to constantly check that no copyrighted material, or links to copyrighted material, are found on their servers... Even parts of sentences could be protected and made prescripted by copyright."

Reality: These claims come from a video that was produced by Anonymous; while the group's many "members" are concerned about censorship and copyright maximalism, the video itself is full of erroneous claims. The video has been embedded by outlets that should know better, like The Atlantic, and it has been viewed half a million times.

For the record, nothing in ACTA appears to require sites to constantly monitor user-generated material for infringing material. And we have no idea how ACTA could be interpreted as bringing "parts of sentences" under copyright protection.

ACTA is a bad agreement

None of this is to say ACTA is positive. It isn't. It has both procedural and substantive problems—and critics need to attack it on the right grounds.

ACTA was negotiated in extreme secrecy by a small group of wealthy nations. As leaked documents make clear, the explicit goal of this approach was to bypass existing international instituions like WIPO where other countries might object to even stricter IP enforcement. Instead, ACTA was a "coalition of the willing" which "would aim to set a 'gold standard' for IPR [intellectual property rights] enforcement among a small number of like-minded countries, and which other countries might aspire to join."

As for the secrecy, even some participants found it unsettling. The EU's top negotiator on ACTA even told US embassy official in Sweden that "the secrecy issue has been very damaging to the negotiating climate in Sweden… The secrecy around the negotiations has led to the legitimacy of the whole process being questioned."

In the US, ACTA was dubbed an "executive agreement" rather than a "treaty," which allowed negotiators to skip the ordinary Senate ratification process. If ACTA becomes a binding part of international law, it will create a precedent for future treaties that avoid basic principles of transparency and democratic accountability.

On the merits, the problem with ACTA is less that it would require changes to American or European law as that it would become another mechanism for Western governments to force poorer countries to adopt bad copyright policies. For example, the treaty requires signatories to adopt anti-circumvention rules similar to those in the American DMCA, and a regime of statutory damages like the one that produced a $1.5 million judgment against Jammie Thomas-Rasset for infringing 24 songs. Once ACTA is adopted by wealthy countries, the US government is likely to make its adoption a factor in its Special 301 report, which lists countries Washington regards as having insufficiently strong copyright laws. Thanks to this kind of arm-twisting, copyright treaties that are adopted in the US and Europe are eventually foisted on the rest of the world.

More generally, the treaty continues the one-way ratchet toward ever-stronger copyright protections. ACTA establishes a new, higher minimum of copyright protections and enforcement that countries must provide, but it doesn't require countries to preserve mechanisms like fair use and intermediary immunity that protect intellectual freedom.

If Congress ever decides that IP rights have swung too far in one direction, it can always rebalance them by changing the law, right? Not exactly. International agreements like ACTA bind the hands of legislators unless the US is willing to withdraw from them first.

That's why Rep. Darrell Issa (R-CA) last week called ACTA "more dangerous than SOPA." He added, "It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it."

Unfortunately, these arguments are hard to explain to the general public. So too many ACTA opponents are, perhaps unknowingly, attacking ACTA for provisions that aren't in the treaty. We're not going to shed too many tears if this misinformation helps to kill a bad treaty, but we'd rather win the debate honestly—and prepare people for the upcoming ACTA sequel.

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