ACTA treaty aims to deputize ISPs on copyrights

http://i.i.com.com/cnwk.1d/i/tim//20...tMusicFilm.jpg

ACTA treaty aims to deputize ISPs on copyrights
April 21, 2010 1:59 AM PDT

" Internet service providers could become copyright cops encouraged to block access to suspected pirate Web sites, according to a previously secret draft treaty made public on Wednesday.

One section of the proposed digital copyright treaty says that immunity from lawsuits would be granted to Internet providers "disabling access" to pirated material and adopting a policy dealing with unauthorized "transmission of materials protected by copyright." If the ISPs choose not to do so, they could face legal liability.

Both the Obama administration and the Bush administration had rejected requests from civil libertarians and technologists for copies of the Anti-Counterfeiting Trade Agreement, or ACTA. Last year, the White House went so far as to invoke an executive order saying disclosure would do "damage to the national security."

But after the European Parliament voted last month by a 633-to-13 margin to demand the release of ACTA's text, keeping it secret became too politically problematic for the countries represented in the closed-door negotiations. Besides the United States, the European Commission, Australia, Canada, Japan, and New Zealand are among the nations participating. They've been egged on by copyright lobby groups.

Much of the language in ACTA has been anonymously proposed by one nation or another but is not final, and it's not clear whether the "disabling access" section will remain. Another nearby paragraph does say, in a nod to privacy concerns, that governments should not "impose a general monitoring requirement" on broadband providers. The language does appear to go further than U.S. laws governing broadband providers and copyright.

The wording is slightly different from an earlier draft, which talked about yanking the accounts of "repeat infringers" and was leaked last month by a French digital rights group.

The European Union published the draft text of ACTA on its Web site on Wednesday, along with a statement from EU Trade Commissioner Karel de Gucht saying concerns about the document's sweep were "unfounded."

De Gucht noted, for instance, that suspected language such as a "three strikes" rule for broadband customers and a "gradual response" for suspected infringement was not in the ACTA draft.

In general, ACTA's proposals seek to export controversial chunks of U.S. copyright law to the rest of the world. The Digital Millennium Copyright Act's "anti-circumvention" section, which makes it illegal to bypass copy protection even to back up a Blu-Ray disc, is in there. So is the No Electronic Theft Act's concept of making it a crime to copy a sufficient quantity of software, music, or videos -- even if no money changes hands.

While the public draft version of ACTA wouldn't prohibit border guards from searching travelers' gadgetry for infringing files, nor would it appear to require that action. That has been one of the concerns of groups like the Electronic Frontier Foundation and Public Knowledge, which have criticized the draft treaty.

The U.S. Trade Representative said in a statement last week that recent ACTA negotiations in New Zealand were "constructive." The next meeting is in Switzerland in June.

Update late Wednesday: By now, there has been a flurry of responses to the release of the ACTA draft, including the Motion Picture Association of America saying it is an "important step forward" and deserves to be adopted. The Copyright Alliance likes it too. Public Knowledge, on the other hand, remains concerned that ACTA attempts "to export a regulatory regime that favors big media companies at the expense of consumers and innovators." The Computer and Communications Industry, which has often cast a skeptical eye toward laws expanding copyright, says the release confirms "fears that the agreement will unreasonably increase the legal exposure of U.S. technology and Internet businesses operating abroad." "

:source: Source: ACTA treaty aims to deputize ISPs on copyrights:view: Homepage: cnet

Heard about this on the radio, I thought they were waffling about something different considering they were reporting on a field they didn't know about.

They started the topic as ISP Providers....

The ABC (AU) actually suck, ISP = Internet Service Provider.

If half the web sites are blocked do I pay less for the internet service? lol

You shouldn't be on them 'inappropriate' websites in the first place ;).

Phew. It'll be soooo much easier when The State decides what's good for me.

The ACTA treaty is bad news.just hope this sort of thing never makes it to india

http://www.anti-acta.com/

Quote:

---

Originally Posted by v47

The ACTA treaty is bad news.just hope this sort of thing never makes it to india

---

Actually, courtesy of the US, we export all our Intellectual Property laws. Usually, it's an abuse of Free Trade Agreements that affords us this ability; we exported the DMCA via said agreements because few countries can afford the consequences of extreme import tariffs or even being denied the ability to export to the US. In fact, the way these agreements are structured, opting-out usually isolates you from the world. In this case, ACTA isn't beginning as a series of US IP codes, it's beginning life as a bonafide trade agreement.

In many ways, this is far worse news than if it had been the other way around. Why? Well, basically, here in the US and likely the case in many applicable jurisdictions, they're assuming this approach to sneak legislation in through the back door. As well people should know by now, many of the proposals surrounding ACTA, including the existence of ACTA itself are being kept as secret as possible. As I am from the US, I can explain some details pertaining to this issue from an American vantage and this can be particularly elucidating, since, lamentably, so much of this is driven and fueled by US factions where this includes, but is not limited to, the Copyright Cartel: Hollywood, represented by the MPAA in the US and the MPA abroad (this naming is neither accidental nor coincidental--the MPA is quite literally the international organ and instrument of the MPAA and is quite transparently controlled by them), the RIAA in the US, RIA abroad (again, not an accident), to a lesser extent, the ESA (Entertainment Software Association, an analogous IP organization for Entertainment Software, viz., Video Games), and a number of independent Copyright heavy-hitters, like Microsoft. The ball got rolling with ACTA during the previous Presidential Administration, that of George W. Bush (our King George the Second) who was widely known to pander to Corporate special-interests. Many hoped that with the end of his admin. so too would the ACTA proceedings, or at least their secrecy. In fact, technically speaking, documents pertaining to ACTA weren't designated, in the US, as classified or confidential documents at the time. They were definitely being kept a secret, but not an acknowledged state secret. It was under Obama's admin. that all gov't. documents pertaining to ACTA were declared as classified...for the purposes of National Security. Basically, the ACTA proceedings are entirely the agenda of IP factions and whatever they are, they must be hugely corrupt considering the level of secrecy surrounding them. Since when was it that Corporations instigated international trade agreements? They certainly all have stakes in such proceedings and are often allowed to voice these stakes, but no matter what the official word is, this agreement is clearly being hosted at the behest of these concerns.

ACTA itself is very dangerous in a number of ways, but at its current phase, what makes it so dangerous is the dense secrecy. Few trade agreements have been afforded this level of secrecy as well as being so all-inclusive and important. There are definitely some dodgy provisions and aspects of things like NAFTA, for example, but compared to this, NAFTA's proceedings are transparent, especially with how radically ACTA proposes to alter standing IP Law in such a large number of International Jurisdictions. Worse still, signing treaties, in the US, is the province of the Executive Branch, requiring a two-thirds approval by the Senate. About a month back, we had confirmation of a major domestic push for ACTA, presented in a p(r)etty photo-op against pyracie! When you combine this with Obama's outspoken support and advocacy of ACTA (despite opting to keep ACTA's proceedings secret) with how many of our Legislators are bought-and-paid-for or the simple fact that it's tantamount to political suicide to vote against this, it paints a bleak picture. Additionally, there is a fear, unfounded I believe, but a fear nonetheless that this may be implemented by way of Executive Order. Sadly, I don't think it'll even be necessary to issue an Executive Order. By keeping things so low-key, these impactive measures may be implemented with a minimum of political strife and ruffled-feathers, apropos the general public, at least.

In this equation, there is yet one major variable to be weighed, and this variable would be the response of Telecommunications companies (far more important than the general public, actually). Just as the Entertainment Industry and major IP concerns are significant campaign contributors, so too are those who back ISPs and ACTA is not going to make them happy. In fact, one thing I believe is often overlooked in the frenzied despairing of the Internet Generation is that it's probably ACTA's goal to open up ISPs to law-suits for the trespasses and transgressions of their customers. They have set an impossible problem before ISPs and this is, namely, to be able to sort legal traffic from illegal traffic across their entire consumer-base. It's basically impossible as there are too many potential permutations of any single copyrighted content and it would be too difficult to analyze and detect these in real-time, not to mention the fact that, at least here in the US, copyright is an opt-out system, not opt-in. So, an individual doesn't have to register their content with any central authority (although they can and do, so that they can document their creation of content for legal purposes) for it to be covered under copyright. This means that, for example, this forum post itself is under my personal copyright and e-mails I might send are the same thing. If I upload a video of myself to youtube or some other service, same thing. This makes it impossible to effectively police copyright. There are just too many potential claims to cover and no realistic way to cover them. There probably never will be, even if some day we develop a purpose-driven AI to suit the task, there's just too much data involved.

So, why set such an impossible task before ISPs? Well, for starters, it certainly saves the industry a lot of money. Major copyright owners will often shell-out big-bucks to content-tracking services, like (the now-defunct) MediaDefender or it's contemporary incarnation, Peer Media Technologies, so that they can have an accurate assessment of the illicit dissemination of their content within P2P groups. Truthfully, even the content companies understand, after the public release of work product, that these groups aren't very good at what they do but that they certainly charge a fortune to do it. There's also been trial experience to indicate that the evidence such companies turn-over to the court in infringement cases can be easily contested and thrown out (mostly because, in order to obtain their evidence, they are often found to be in violation of jurisdictional codes on ethical evidence gathering; ie. they are found to have broken the law in order to obtain their evidence). The other major thrust here is that copyright interests are clearly demonstrating a desire to monetize the legal system as a revenue stream. It's certainly true that the Entertainment Industry is struggling in this regard, since they are investing far more capital than they recoup in legal proceedings. This isn't a universal trend across all copyright concerns; Patent Trolls, for example, are quite effectively gaming our legal system--it's a high-risk, high-reward venture, but when your company doesn't actually do or make anything save for cheaply acquiring the Intellectual Property of others, an outright legal defeat won't be so damaging, whereas a win nets a lot of potential rewards even outside the money (often received through legal settlement).

Returning to the Entertainment Industry, their real struggle isn't getting money out of individual citizens, but rather, making enough money via legal proceedings. It is generally a facile task to coerce a private citizen into settling as the industry initiates legal proceedings and then threatens said citizen with the continuation of the proceedings, lest the individual pay-up via a settlement process. The process is actually an entirely dedicated, standardized process setup specifically for this coercion and it gets a lot of people to go in and pay a standard settlement of about $10,000(USD). Even if an individual opts to go through trial proceedings, the Entertainment Industry has high-powered legal teams who now have extensive experience gaming the legal system in just this manner--your chances of success in the absence of certain factors is poor. If this were truly about simply scaring the public into submission, there would be a couple of publicized cases a year that the industry would take a hit on, financially, but would serve to deter individuals and scare them into a settlement agreement. If a citizen opted for a trial, the company in question would simply drop legal proceedings and almost any potential defendant would walk away happy. Since there are so many suits a year, it's truly clear that the Entertainment Industry is moronically blundering about, attempting to leverage the legal system as a profit-generating mechanism. This is why the profile of defendants in these cases has changed over the years; the Entertainment Industry started out by picking on the little-guy, people of a sufficiently low economic bracket that they had little liquidity to leverage in a drawn out fight but enough potential credit so as to be able to pay a number drawn-up specifically for that defendant. This gave the industry a number of bloody noses in the press as you had defendants who were easy to sympathize with (hard-working single mothers, grandparents, etc.), which made the industry look disgustingly predatory, which is what they, in fact, are. It barely netted them any legal victories they would have liked to broadcast. What's more, this model wasn't stable enough to ever truly generate revenue. So, they then moved on to college-faring students, generally people in the upper-middle-to-high income brackets. Usually, their burden fell to the parents to pay (often in settlements) and what cases there were could be suitable to advertise. You can paint these college file-swappers as being inveterate pyrates who are either ignorant of the gravity of their actions and don't ever wish to be aware of same, or open scofflaws (an industry favorite). There were some inroads made into filing proceedings against entire institutions (colleges or universities, in this case) but the only significant effect of this was to make educational institutions wary or angry. Institutions made significant alterations to their policies concerning campus internet which were often draconian in nature (a number of universities I personally attended banned IRC outright--I'm not ignorant of IRC's use, by some, for filesharing but there are far easier ways and I love IRC ;___;). Some universities made it clear that the industry would face an uphill struggle if proceedings were initiated against their students or the university itself--Harvard, for example, made it abundantly clear that if proceedings were initiated against one of their students, that student would have the support of Harvard's Law School.

The Entertainment Industry was only slowly realizing just how hard it would be for them to monetize the legal system; their attorney's fees were quite steep and if a defendant refused to settle outright, there could be trial costs and ultimately, at the end of the day, they simply could not make enough money prosecuting private individuals for infringement. What they really needed was the ability to hit a major legal entity, and hit it hard. They needed a very wealthy entity, one that could afford to pay excessive fees and from whom they could realistically extract such fees (this means beaucoup counts of multiple-infringement). Unless somebody was really stupid and got really out-of-line by overtly violating their rights as a safe-harbor, there was no way they would ever see such a whale. Thus, I believe that they proposed these changes to the legislation to really open-up ISPs as a target for potential law suits. The industry may be pretty stupid, but even they know they've set an impossible task before ISPs, and without the coverage afforded them as a safe-harbor, it would be legally-feasible to open them up to major infringement suits.

Additionally, ACTA would, in the US, create an entirely new police organization at the Federal Level, that is, under the purview of the Department of Justice, and whose raison d’être is to enforce copyright. Additionally, it would create a new cabinet-level position of so-called Copyright Czar, presumably, it'd be this person's responsibility to act as a liaison between the President and this new IP Enforcement Agency (or perhaps Agency of Intellectual Property Enforcement is more appropriate). Currently, policing of Intellectual Property-related issues is left to standard law-enforcement authorities, and in particular, the FBI. So, we're in a supposedly huge financial recession, and we need to get government-spending under control, so we'll create an entirely new law-enforcement authority, whose sole duty is to deal with tracking down pyrates...and then what? Other Federal law-enforcement agencies, such as the FBI, DEA, and ATF have federal codes under which the guilty may be prosecuted. What would happen to people tracked down by this new agency? They'd basically be offered up the Entertainment Industry. Justice in action! Not to mention, I have the eeriest feeling that this is all just a ploy to sneak-in companies, such as Peer Media Technologies, through the back-door and launder its staff into becoming Federal officers and elevating the company to a Federal Agency. This could make it so that the evidence provided by such companies can become far more reliable and damning, since it would now appear to be evidence coming from a Federal Agency, legitimizing many of their activities. In other words, this would greatly aid in the industry's attempt to not only prosecute individuals, but larger legal entities, such as ISPs.

As previously mentioned, we have yet to know how telcos will respond to these measures, other than we can expect them to be unhappy. In the very least, establishing these measures as being the legal foundation upon which ISPs are built will mean serious upgrades and thus significant downtime and costs for an ISP, without any established measure by which the ISP may be reimbursed after making the applicable changes to their network architecture. Furthermore, there's unlikely to be any such measure, considering that these laws would view this as the legal responsibility of the ISP, that it should be able to operate. This is very unlikely to go unopposed. A similar attempt was made during the drafting process for the DMCA and it was met with such furious opposition by telecommunications giants, like ATT, that the safe-harbor provision was created within DMCA. Not only does it help that massive companies will be seriously opposed to these measures, but it also helps that this is a seriously daft legal demand, and those opposed will make that case. The sickly, stupid, and loathsome race known as politicians (including Obama, in this case) are quick to jump on bandwagons that will make them popular and in a country like the US, where it's certainly true that we don't make things anymore, but rather, churn out an obscene amount of imaginary property, laws concerning those property rights will be a major cause held important to all business-types. So, ACTA proclaims that ISPs will be held accountable for their users' actions and people who make its case will often phrase it in such a way as to make it sound like ISPs both live and profit by the trespasses of their customers, which really isn't true.* People in favor of ACTA will often make it sound like their provisions are a simple fix applied to an industry which erstwhile did run amok with intellectual property. Advocates will exploit people's ignorance (particularly politicians' collective ignorance, as a species) of the true workings of the internet and the daily terms that they do know to make it sound like this kind of filtering is easy to achieve. In particular, they'll say that all an ISP need do to achieve conformance under the law is agree to block certain sockets, services, websites, and search-terms. That's all.

On a final note, there are many other horrors to be brought about via ACTA and I fear that it's simply an eventuality. ISPs may oppose becoming police task-forces but after they take out what's objectionable to them, they'll probably leave the rest alone. Not only is our President heavily in-favor of ACTA (though I suspect he knows fuckall about it, like the rest of us [and yes, despite the various leaks]) but also our legislature. There are some voices of dissent, but I suspect that these are merely voices clamoring for a bribe as much as anything else. When ACTA becomes a reality in the US, probably within the next two years, it'll then become a nightmare for the rest of the world. I am continually disappointed with my country and countrymen. :\

*PURE ASIDE ON THE OVERSELLING OF BANDWIDTH (PARTICULARLY IN THE US):
At least in the US, it is genuinely untrue that an ISP will directly profit from the pyratic behaviors of its customers. ISPs here in the US and in some other places massively oversell their available bandwidth. Basically, overselling bandwidth is the practice of selling a customer on a certain level of service, usually a maximum bitrate, but then failing to deliver on that by not installing the networking equipment in an area (often a neighborhood) to scale. This means that when an area's networking equipment is at peak traffic such that it saturates the available bandwidth of the networking equipment used to connect that area to the ISP's larger routing facility, there isn't enough networking capacity for all users in that area to be able to access the network in a given instant and users will be shut-out. This might sound like an acceptable business practice, but when bandwidth is as oversold as it can be here in the US, with ratios of up to 3:1 (meaning that there are three times as many customers using the network as the network can minimally service), an area can very easily become supersaturated and congested. Basically, what this means is, during peak-operating hours, users can see their connection slow to a crawl and be highly unstable. The basic business theory behind such vast overselling is this: for most users, for most of the time, the level of service they are provided in their area is sufficient such that they will be satisfied with the latencies they will experience. It presumes that, firstly, most users have no real way of knowing how fast their connection is at any given point in time or that it can be deduced, but since it's not directly on display, they don't care. So, someone's watching a youtube video and despite not having the network speeds they were sold on, they see most videos buffer quickly enough that they don't really care. Secondly, most people have no way of knowing whether the slowdowns they're experiencing are due to local latencies or those of the remote host, so they won't have a clear target to focus their rage on, lol. Lastly, ISPs have lots of data concerning how most people use their connections, what applications they run, etc., and can thus approximate how much bandwidth a typical user will need to remain happy (surprisingly, it turns out that it's not so much, but the amount is growing). Using these statistics, ISPs will arrange for an area's network architecture to provide the cheapest optimal bandwidth for that area's average network-load. Where one runs into trouble is that the more oversold an area is, the more unstable the network's load will be, since it will be very sensitive to fluctuation. Most ISPs want to maintain their image, so they'll often have the broadband modem's firmware limits set according to the level of service sold (it'll automatically limit its output to the maximum bitrate promised, and this will be further attenuated by networking latencies). This creates trouble, because a person who then runs an application that truly can saturate their connection can put a real strain on an oversold network. Since there will more than likely be more than one person running something that can saturate their connection, you can have a fairly small population burning through most of the bandwidth allocated to a heavily oversold area. To be thoroughly honest, most of the time, people who are saturating their connection are people who are engaged in filesharing, legal or illegal. I definitely mean no disrespect, but it does illustrate how the claims of those who are for ACTA can often run quite contrary to reality, since filesharing has its impact on ISPs and is the primary cause for most ISPs to upgrade their networking equipment and thus add additional capacity. This isn't an ISP profiting, this is them unwillingly spending money to maintain their image; the entire point of overselling bandwidth is to rake in much more money for much less service, in upgrading, one is cutting into the (vast) revenues provided by overselling. If users weren't engaging in this activity to begin with, an ISP could get away with providing even less service for the same price, thus increasing their profits. Aside from video, filesharing is probably the largest factor in the growth of the average required bandwidth for a single user.