Friday, November 27, 2009

RE: Anti-Counterfeiting Trade Agreement

This is in response to two of Alan Cross's articles, which you can read here:
Part 1

You would be wise to go off and read them now, as much of what I will be saying herein will make just about no sense without having done so. I'm a patient man. I'll wait here.

Finished? Good.

First of all, it should be noted that I have a substantial degree of respect for Alan Cross, and just about everything he does. Accordingly, no one should view this response as me talking shit about him, but merely a critical response to his post. Alan and the Two Assholes have always had quite a good working relationship (We even have a good interview of him
here.), and I don't want anyone to think that this article is in any way an attempt to stifle that.

Second, I'm going to revert to somewhat of an intellectual, legal speaking tone, as this isn't me ranting about how awesome the Ninja Turtles or Mega Man are. This is, after all, a serious topic.

Alan has cited a number of blogs and other online postings which seem to mirror his concerns about the Anti-Counterfeiting Trade Agreement (hereinafter "ACTA"), but I always find it more helpful to go straight to the source documentation. This is a practice bred not only out of my time served in academic facilities, but also due to the fact that I am a practicing lawyer. Review of legal texbooks are useful at times, but really tend to give you more of a gloss-over of the real factors to be considered, and are of very little utility before a judge or other judicial officer. In short, you need to go straight to the case law, statutes, and whatever other source documentation is applicable.

Here is the wikileaks article containing the leaked document that is being referred to by a great deal of the cited sources. The download link is near the bottom. You'll note that this is a Discussion Paper that was "reportedly provided to select lobbyists in the intellectual property industry". What this really is is a layout of some of the types of things that the U.S. government may want to see put into the ACTA. You'll note that even the most specific of potential provisions aren't that specific.

Here is the Government of Canada's official policy on Tabling of Treaties in Parliament. This is the mechanism by which all treaties are adopted in Canada. Given the scope of new enforcement regimes that Alan and a number of other people on the internet are concerned with, ratification of the treaty will be required by the passing of domestic legislation, in addition to the fact that treaties have to be tabled in the House of Commons (which gives MPs an opportunity to respond or attempt to defeat the acceptance of the treaty by a parliamentary motion).

Here is the government's official page providing all of the documentation that it has made available at present with regard to the ACTA. You'll note that the government has sought, and is constantly seeking, public input with regard to the ACTA, and they have even published a number of the submissions made to them thus far.

Now that all of the source documentation has been pointed out, let's move directly to deal with Alan's assertions with regard to the ACTA.

First of all, treaties are always drafted to some degree "in secret", primarily because the entire process would be exceptionally bogged down if the negotiating parties had to seek public approval at every single step of drafting. This would be the same as if lawyers engaging in a negotiation on the part of a client had to stop every single time a term was being discussed, to go off and consult the client. It's far more efficient, and makes infinitely more sense to have an initial consultation, negotiate the agreement amongst the lawyers, and then return with a finished draft for approval or rejection by the client. That's precisely what is ongoing in this case amongst the negotiating parties to the ACTA. They will hammer out specific terms, and then return home and put the finished draft treaty before their respective governments for approval or rejection. If enough countries reject the draft, then it will likely go back for renegotiation. If only a few reject it, then the treaty stands, but only among those who choose to be bound by it.

Bullet 1 - Firstly, if sites are perfectly legal, then they will not, and cannot by definition, run afoul of the enforcement of copyright. Secondly, by looking at the discussion paper referred to above, the only portion dealing with ISPs is a section near the end where it proposes measures to protect ISPs from any liability should they cooperate with rights holders. There is no suggestion, as there is for other groups, that ISPs should be entitled to some powers to filter or determine copyright infringement on an
ex officio basis. Rather, the suggestion is that other laws (presumably privacy legislation) be relaxed where ISPs are requested to cooperate with rights holders. For reference, Rogers, one of Canada's largest ISPs already is in the routine of monitoring certain traffic, and sending out correspondence to its subscribers where such has been requested by rights holders. In short, what is actually proposed is only a small step above what already goes on in Canada, and is about the same as what already goes on in the U.S.

Bullet 2 - The sort of rule that Alan is talking about here seems to be based upon the UK's "Three Strikes" rule which was intended to go into effect. The UK, however, has scaled the plan back, and no longer intends to simply cut off internet access, but only send warnings at first. You can read about it
here. This proposed law came as a result of an EU decision that member countries are now permitted to use technical measures such as cutting off internet access, in order to reduce piracy.

Bullet 3 - Eliminating the ability to make a back-up copy of any media would require substantial changes to the Copyright Act, and will likely attract some measure of Charter scrutiny, as the law would effectively involve the government controlling individual, private use of wholly-owned property.

Bullet 4 - Based upon the discussion paper above, this seems like it may be a misstatement. The discussion paper deals with the seizure of infringing "goods". Electronic data is not a "good", but the media that it is on may be. However, and iPod, or any other digital audio player is unlikely to infringe on a copyright in and of itself. In short, while such a rule may impact upon pirated CDs or DVDs (and in fact, the discussion paper does specifically mention optical media), or counterfeit music players themselves, it isn't going to impact upon media files on a perfectly legal device such as an iPod. Even if such a measure somehow managed to make its way into a treaty that Canada both signed, and ratified, it's unlikely to survive Charter scrutiny, as it would become wholly impossible to mount a defence to the accusations.

The ACTA won't even be at a final draft stage until sometime in 2010, and the government will then have to jump through the hoops of approval and ratification of the terms of the treaty. This will take a significant amount of time, and a considerable amount of effort on behalf of the government based upon two factors:
A) We have a minority government in place. This means that the government can't make moves that all of the opposition parties are going to oppose.
B) Since Bill C-61 was proposed by the Conservative government, Canadians have been pretty up in arms about the possibility of more radical steps being taken to enforce copyright. Bill C-61 was left to die for a reason. The country is not yet Conservative enough to accept it.

What's my point, through all of this?

It's two-fold.

Firstly, everyone should educate themselves. In the internet age we have a tendency to rely very heavily on secondary and tertiary sources such as blogs, online news sites, and wikipedia. The problem with this is that levels of summary can often obscure the actual fact with interpretation. The fact itself is what you need to know, not what someone else might think that it implies.

Secondly, the ACTA isn't something to fear at this stage, and it would be imprudent to begin to fear the adoption of a law, or laws, the substance of which is based upon rumour, conjecture, and leaked documents. Should you be somewhat concerned about possible ramifications? Yes, but there's no sense being worried, or being "very afraid", until we have some solid, actual sense of what this treaty will entail.

By all means, however, make your voices heard to the government, and let them know what you're not willing to tolerate. You do elect these people, after all, and if enough of you will only vote for the political party that will oppose such measures, then the government will either listen, or be voted out of office.

Disclaimer - Adam is a lawyer, but he's not your lawyer. None of the foregoing is legal advice, nor should it be construed that way. If you need legal advice, go find your own lawyer.

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