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Censorship Your Rights Online

ACTA Treaty Released 205

Posted by CmdrTaco
from the shrouded-in-mystery dept.
roju writes "The full text of the Anti-Counterfeiting Trade Agreement (ACTA) was released today. It differs from the earlier leaks in that the negotiating stance of each country has been scrubbed. Preliminary analysis is up at Ars, which warns that 'Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet.'"
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ACTA Treaty Released

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  • by ciaran_o_riordan (662132) on Wednesday April 21, 2010 @09:43AM (#31922078) Homepage

    I've read the text and made a summary of how this affects software patents:

    For introductory info, here's other info I've gathered over the past months:

  • Fair Use? (Score:5, Informative)

    by PolyDwarf (156355) on Wednesday April 21, 2010 @09:57AM (#31922256)

    How does this blurb towards the end of the article:

    ACTA doesn't export all of US law in this area, though; the world doesn't get huge principles like fair use (which many countries don't have) and key judicial decisions (like the Sony Betamax case which found that a device with "substantial non-infringing uses" could be sold so long as the manufacturer was not inducing infringement). Countries could adopt these, but they aren't requirements.

    square with this blurb towards the beginning of the article:

    ACTA would ban "the unauthorized circumvention of an effective technological measure." It also bans circumvention devices, even those with a "limited commercially significant purpose." Countries can set limits to the ban, but only insofar as they do not "impair the adequacy of legal protection of those measures." This is ambiguous, but allowing circumvention in cases where the final use is fair would appear to be outlawed.

    To me, the second blurb is pretty much saying "kiss your fair use goodbye, US Citizens"

  • by bigrockpeltr (1752472) on Wednesday April 21, 2010 @09:58AM (#31922262)
    Content producers will then be arrested for their own good work. If they create good enough content then they cause (imminent) copyright infringement.
  • Re:Prior restraint? (Score:4, Informative)

    by Mindcontrolled (1388007) on Wednesday April 21, 2010 @10:15AM (#31922502)
    Imminent infringement clauses are nothing new, and are mostly used in the commercial realm. Say, for example, that A holds a patent on stuff X, B advertises product Y which clearly infringes on that patent. A does not need to wait until B actually starts production and therefore infringes on the patent, but can slap B with an injunction right away. Nothing new here, folks.
  • Not a big change (Score:3, Informative)

    by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Wednesday April 21, 2010 @10:18AM (#31922562) Homepage Journal

    "Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet."

    Isn't that called "prior restraint"?

    This already exists in trademark law. There are even things called Anton Piller orders (after a famous case) that allow you to seize infringing goods before you even file suit, to prevent the other side from destroying all the evidence once they get your complaint letter.

    Note, in many countries, getting a preliminary injunction or a Piller order requires the plaintiff to post a pretty substantial bond. And if it turns out that the other side is doing nothing wrong, they get that bond. This prevents you from using the process to destroy someone's business.

  • Re:Prior restraint? (Score:5, Informative)

    by DJRumpy (1345787) on Wednesday April 21, 2010 @10:20AM (#31922582)

    Thanks for that. Some very good info on Wikipedia [wikipedia.org] of all places. In case anyone wants the highlights:

    Judicial view
    Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart by noting:
    " The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.
    "A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."
    Also, most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.

  • Re:Translation? (Score:3, Informative)

    by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Wednesday April 21, 2010 @10:42AM (#31922982) Homepage Journal

    "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."

    Um...What?

    "Each party" - each signatory country to the treaty
    "shall" - must
    "provide that its judicial authorities shall have the authority at the request of the applicant, to issue an interlocutory injunction" - give its judges the power to, at a copyright/trademark/patent owner's request, issue a preliminary injunction. The judges do not have to issue the injunction, but they must have the power to do so.
    "to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]" - the applicant must show a strong likelihood of imminent infringement. Note the bracketed part - this may end up only applying to copyright and trademark infringement.
    "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." - The owner of the rights at issue can also ask the judge to stop a third-party distributor, like Youtube, from distributing their copyrighted work. Again, this just requires that countries give judges the power to issue these injunctions, but doesn't require the judge to go along with it.
    "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." - This is called an 'Anton Piller order' and has existed in trademark law for about 40 years. It stems from a case by the same name in which a German electronics design company contracted with an English manufacturer to build their designs. The German company send them plans, blueprints, schematics, etc., and things seemed fine... until the German company suddenly discovered (from two whistleblowers in the English company) that the manufacturer was selling the plans to another German company! The design company knew, from the whistleblowers, that if they filed suit, the manufacturer would just destroy all of their records. So, they went to court and got an order to go with police to the manufacturer and seize records, schematics, and blueprints with their name on them.
    Anton Piller orders have also been used in trademark cases - Coach finds out that a factory is producing counterfeit Coach bags, for example, and they know that if they file suit, the counterfeiter will simply destroy all the evidence and records. So, they get a Piller order to go, with the police, to the factory and seize the evidence. They don't get to keep it - it's retained by the court or the police, to be preserved for trial.
    To prevent abuse of the system, Piller orders frequently require that the plaintiff put up a cash bond. If you're going to seize someone's records, which may put them out of business, you have to put up a bunch of money. If you're wrong about the counterfeiting, you owe them the money.

    So, in summary, this paragraph is simply a restatement of the current law.

  • by mark-t (151149) <markt@@@lynx...bc...ca> on Wednesday April 21, 2010 @10:52AM (#31923176) Journal

    ... is the notion that unless the publisher of a work explicitly sanctions a particular copying method, in particular for something like private use, then it is essentially illegal to do (bear in mind that "effective technological measure" does not require that the copy protection mechanism literally *BE* effective at preventing copies from being made, it only has to have been some measure put there by the copyright holder for the purposes of preventing copies, whether or not is is still otherwise easy or convenient to do).

    Now while some supporters of the notion might not see any particular reason for a person to need to circumvent copy protection for their own private use, when a publisher might choose to actively support it anyways, it actually ends up creating a situation where, for example, the publisher might be perfectly okay with you copying that movie to your iPad (presumably for your own private use), but when new technology comes out in a few years that doesn't happen to be all that compatible with the iPad, unless the company has had the resources to invest in keeping up with changes in technology for the purposes of utilizing their older material, a person is left being locked into only dealing with Apple stuff -- they cannot legally transfer their already purchased material to any entirely new device of a similar purpose that they might happen to acquire over time. In addition to almost openly serving the agenda of big businesses while strangle-holding the little guy, it creates a situation that, however inadvertent, ends up directing what sort of technologies can be legally developed in the future. It is my contention that ANY law that does this sort of thing is, regardless of how it might be intended to be used, a bad law, and should be stricken or completely redrafted so that this situation does not ever arise. At the very least, devices themselves that can circumvent copy protection without requiring sanctioning of the copyright holder should not be illegal. At most all that should be illegal is the act of a person that uses such a device to infringe on copyright (but here's the funny thing, with that provision, then they are already breaking a law, so outlawing circumvention serves no real purpose).

  • by CrimsonAvenger (580665) on Wednesday April 21, 2010 @01:27PM (#31926454)

    As I understand it, you can only get an ASBO *after* you've engaged in delinquency. So if you keep doing lots of stupid little things that won't always result in prosecution, they can sort of lump them all together and then slap you with an ASBO. It's retroactive punishment for minor offenses, with the intent of reducing further offenses. More like probation than pre-crime.

    From Wikipedia:

    An Anti-Social Behaviour Order ASBO (pronounced /æzbo/) is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour in the United Kingdom and in the Republic of Ireland [1]. The orders, designed originally by Tony Blair in 1998[2], were designed to be imposed after minor incidents that would not ordinarily warrant prosecution[3]. The orders then restrict behavior in some way, by prohibiting a return to a certain area or shop, or by restricting public behavior such as swearing or drinking. As the ASBO is a civil order, the defendant has no right to evidence that might disprove the assertions of the plaintiff, though violating an ASBO can incur up to five years imprisonment.

    So, you can't present evidence in your defense, and you can get 5 years for a violation. And the original offense didn't warrant prosecution.

    Sounds more like pre-crime than probation to me....

  • Re:Prior restraint? (Score:3, Informative)

    by Smauler (915644) on Wednesday April 21, 2010 @03:58PM (#31930012)

    Freedom of speech doesn't imply the freedom to publish - or threaten to publish - someone else's work without their permission.

    Freedom of speech does not only imply that, it expressly allows that, by its very name. If there are restrictions on freedom of speech, it is not freedom of speech. Freedom of speech is nonexistant in any current society, and for good reason IMO. This weird definition of "freedom of speech" that some people have that has loads of caveats is not freedom of speech, it's purely demarcation of allowed speech in certain areas. The sooner people get used to the fact that speech is restricted _all the time_, the faster society will get better.

The sooner you fall behind, the more time you have to catch up.

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