Archive for March, 2010
Anti-Counterfeiting Trade Agreement: Analysis
Posted by Margot in Blogosphere, Privacy, Surveillance, first amendment, lamp on March 25, 2010
I’ve written up in detail my comments on the new acta text.
The text reads like a debate between countries. Most of the more salient issues are still up in the air; I’ve tried to pinpoint those issues along with the varying takes on them by different negotiators.
Recurring themes include: 1) regulatory capture by private industries of government resources such as courts and border officials; 2) significant privacy concerns sparked by “sharing” information with rights holders and other countries during investigations; 3) expansion of US law internationally despite contradicting decisions in other jurisdictions; and 4) blatant disregard for existing international IP institutions and norms.
These, in shorter form, are some of the important features to note:
1. ACTA imposes mandatory statutory damages in civil copyright law. Australia, Mexico, and New Zealand do not want this provision, as their law does not include statutory damages (which have been shown in the US to often be grossly disproportionate to the harm done).
2. Privacy in civil cases: accused infringers must produce evidence of the “means of production and distribution” during civil proceedings. The EU proposes that this mandate be subject to data privacy protections.
3. Smaller de minimis exception in border measures: TRIPS provides an exception for the import of “small quantities of goods of a non-commercial nature”. ACTA would further limit this exception to quantities “reasonably attributable to personal use of the traveler”, exempting gifts for other people rather than tying de minimis to non-commerciality as TRIPS does.
4. Ex officio action at the border: Under TRIPS, countries may optionally mandate ex officio action (customs-official-initiated action, rather than by a party) only once a prima facie case of infringement has been shown. ACTA as proposed by the US mandates such ex officio action by all countries (”shall” instead of “may”), and refers to “suspected” counterfeit goods rather than goods for which a prima facie case of infringement has been shown. The government is doing the work of private parties before a substantial case has been established.
5. Privacy: Releasing personally identifying information of border crossers to rights holders without process: TRIPS stated that identifying information be disclosed to rights holders only after a determination that goods were infringing “on the merits of a case”. ACTA as proposed by the US allows release of such information as part of an investigation, once the goods have been confiscated rather than once guilt has been at least initially established.
6. Demands on the court and on border officials: ACTA proposes a fast turn around by the courts in these cases, and encourages governments to absorb storage and application fees to avoid burdening rights holders.
7. Expanding the definition of criminal copyright infringement internationally. TRIPS had a “commercial scale” requirement for criminal copyright infringement. The United States understands “commercial scale” in its domestic law to include acts done for “private financial gain”- which rights holders argue includes downloading pirated music for no cost. The US wants “private financial gain” included in ACTA, and also wants a category of “significant willful infringements that have no direct or indirect motivation of financial gain”- again targeting music and movie filesharing.
8. ACTA enlarges the scope of international criminal law sanctions to mandate imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and set no minimum standards for either. ACTA mandates “penalties that include actual sentences of imprisonment” and includes a negotiator’s note requiring countries to “encourage competent authorities” to “impose penalties… including imposition of actual terms of imprisonment.”
9. ACTA exports the Digital Millenium Copyright ACT (DMCA), which includes the US’s understanding of third party liability for copyright infringement, inconsistent with other jurisdictions. New Zealand, for example, notes that it does not find search engine activity to be copyright infringing, and therefore questions why this provision regarding third party liability exists in reference to search engines. Mexico notes that takedown must be requested “by a competent authority”, not a party. Japan also notes that these provisions are not currently consistent with its jurisdiction.
10. Exceptions and limitations, and fair use: The US asks for a note including reference to exceptions and limitations (at the discretion of countries according to the Berne Convention and TRIPs) and fair use (a US concept); the EU wishes to include exceptions and limitations in the actual text of the agreement.
11. DMCA technological circumvention measures. The US wants to expand DMCA criminalization of technological circumvention (”hacking” digital rights management (DRM)). The EU wants to striek the criminalization aspect of this, limiting to civil remedies. Japan explicitly notes that its laws currently allow for circumvention in certain cases; New Zealand notes that circumvention of noncopyrighted works is not a crime, and access control is not a right given to copyright holders.
12. International cooperation: ACTA mandates cooperation between countries in criminal IP infringement cases. The EU proposes “particular attention… to infringing goods detrimental to… health and safetly.” This potentially targets the distribution of generic medicines.
13. Information sharing between countries: parties are debating whether countries “may” or “shall” share information during investigations. This could be extremely problematic for countries with different standards of privacy norms and laws.
14. Paternalistic crafting of domestic legislation: Countries must work with countries not party to ACTA to craft domestic legislation that brings them in line with ACTA. Canada wishes to strike this provision.
15. Officially fostering dialogue with private party righs holders: The US wants to establish formal mechanisms for authorities to hear the view of rights holders. Again, this looks like the government doing work on behalf of private entities.
16. Transparency of process- with major discretional exceptions: Exceptions to transparency of ACTA-mandated investigations include whether they would be “contrary to … domestic laws or policy” or “the public interest”- extremely vague, governmentally discretionary terms.
17. A new IP institution to Preserve ACTA? The ACTA “Committee” would oversee disputes, amendments to ACTA, and supervise implimentation. This disadvantages those devleoping countries who are not original signatories to the agreement.
18. Only five states are required for ratification. Effectively, the five most powerful can rush to sign on to terms everybody else will have to take on later.
Anti-Counterfeiting Trade Agreement draft released
The new biggest set of international laws to hit copyright is the Anti-Counterfeiting Trade Agreement, a plurilateral agreement negotiated outside of the WTO’s processes and protections. Many organizations have had serious concerns about the potential civil liberty and economic impact of ACTA. A draft text of ACTA has been leaked here. (Searchable version available here.)
Many of these issues are clearly still up for debate. The biggest three may be the scope of criminal copyright infringement, the expansion of the US Digital Millienium Copyright Act internationally (DMCA), and the creation of a new international institution (an ACTA “Committee”) to deal with enforcement of ACTA.
In short, ACTA is geared up to do pretty much exactly what I predicted in a “Recent Development” in YJIL last year. It amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries.
Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees.
What’s at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn’t the ideal.
Privacy interests (versus data sharing with both other countries and rights’ holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake.
I will be posting responses to specific provisions of ACTA later.
Data mining
On a similar note to Betsy’s post on associations, this oped by two specialists in bioinformatics (Mark Gerstein, Michael Seringhaus) makes the same point that “in abundance, innocuous, everyday data can divulge sensitive information”.
Can Your Facebook Friend List Out You?
A new study suggests a computer program can predict your sexual orientation based on that of your friends. Does this mean we should be concerned about what inferences can be drawn about the information put online, in addition to the information we put online itself?
MFIA Amicus in Illinois First Amendment case- with EFF
Posted by Margot in Newspapers, Privacy, first amendment, lamp, news on March 23, 2010
The Media Freedom and Information Practicum is proud to announce that, along with EFF, it has filed a friend-of-the-court brief urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate in the comments section of a local newspaper’s website.
Battle Over Message Board Flame War Must Not Circumvent the First Amendment
The First Amendment provides qualified protection for anonymous speakers. MFIA and EFF encourage the court to recognize such protection by instituting the same process established by other courts across the country (see, eg, Dendrite).
The viability of newspaper websites as forums for such political discussion and whistleblowing is at stake, along with fundamental First Amendment values inherent in the protection of political speech.
For the full brief, click here.
In honor of sunshine week
Yesterday marked the end of Sunshine Week, which hoped to, well, shine some light on efforts around the country to encourage open access to government records. I wanted to flag a unique, if bland, interview of Miriam Nisbet, who directs the Office of Government Information Services, a body that helps deal with Freedom of Information Act concerns.
Nisbet says that talking about FOIA and its limitations – funding issues, the inordinate lenght of time it takes those requesting information to actually get a response – misses the larger and more essential point of trying to change the government’s general “culture” of openness: “You have to have people at the very top, people in leadership positions who not only are believing it and saying it and doing it but who are themselves accountable and who are willing to be accountable if it doesn’t work.”
While this may seem obvious, it is certainly worth thinking about as an organization as we bang our head against the judicial wall trying to pry out information from agencies that see no upside in disclosure. How do you go about convincing the higher ups that greater personal vulnerability from more open records is actually good for their business and job prospects? Nisbet suggests, perhaps naively, that a lot of the barrier results from the fact that agencies and the general public really don’t understand each other very well. People call their Congressman all the time demanding action, but who has had a friendly conversation with a staffer at HUD? “If people can really interact with government personnel just like they have no hesitation, it seems, to going to their members of Congress. Why? Because they think that when they go to their member of Congress they are going to get an answer. Somebody’s going to help them get the answer they want, the information they want, the service they want. They need to be doing the same thing with any agency that affects what they do.”
Maybe Nisbet’s right. We’ll be there to litigate when the time comes, but in honor of the end of Sunshine Week, take a few moments to get to know your friendly neighborhood bureaucrat. It might just save you a FOIA administrative appeal.
New 10th Circuit Amici Brief on Access and FOIA
As you know, the Media Freedom and Information Access Practicum is all about access. So perhaps you won’t be surprised to learn that we had a hand in a big-name amici brief to the 10th Circuit in support of Prison Legal News’ effort to obtain the release of audio and video documents showing the behavior of two convicted killers. The District Court had declined to release the documents, requested under FOIA by PLN, even though they had already been shown in open court during the killers’ criminal trials.
The case is particularly interesting because the documents only became subject to FOIA because the prosecutor in the criminal trials held onto the documents. So the brief argues that because they were trial exhibits aired in open court, the audiovisual materials are judicial records. If the government wanted to prevent them from being disclosed publicly, they should have applied to seal the documents. To do otherwise allows the government to obtain a de facto sealing of the documents without meeting the burden for sealing.
The brief also argues that, regardless of the custody of the documents, the press and public’s right of access should apply to the court exhibits in question. It notes a strong, presumptive common law right of access to judicial documents which can only be overriden in extraordinary circumstances not present in this case. It also argues that a qualified first amendment right to court documents also favors their release.
Supervised by Scott Schuchart of the Jerome N. Frank Legal Services Organization at Yale Law, Adri, Nabiha and myself worked on a very tight timeline to produce the raw materials for this brief. And it was a great success: Amici include 60 Minutes, the Associated Press, Westword, The American Society of News Editors, The Association of Capitol Reporters and Editors, the Society of Professional Journalists, and the ACLU of Colorado.
The case is Prison Legal News v. Executive Office of United States Attorneys (cases 09-1511 and 09-1531), and the amici brief will be made available soon, so watch this space!