ACTA Draft: DRM Bypassing, Thought-Crime are Illegal, P2P Engine Development is Criminal

For nearly two years now, Global Tech News has been covering the Anti-Counterfeiting Trade Agreement (ACTA), a secret treaty masterminded by the U.S. government at the behest of media copyright protection organization.  

The treaty has many alarming terms — warrantless border search and seizures of suspected infringed content, government internet monitoring, and more.  More alarming is the fact that the U.S. government, of the nations involved, was perhaps the most vocal in demanding that the treaty be kept secret from citizens worldwide.

That secrecy is finally over with the official release of the consolidated draft text [PDF] of the ACTA.  The treaty will be finalized by the participants — Australia, Canada, the European Union countries, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America — after this brief public review.

The new draft of ACTA has some interesting changes.  First, while it drops mention of a “Three Strikes” plan for kicking filesharers off the internet, it now mentions that government can enact legislation to “terminate or prevent an infringement” — kick users off the internet.  Thus this in essence covers “three strikes” plans and a variety of other plans.  

It also provides support for legislation “governing the removal or disabling of access to information” — essentially pushing for countries to drop website takedown laws similar to the provisions in the Digital Millennium Copyright Act in the U.S.

The draft also outlaws “the unauthorized circumvention of an effective technological measure” — essentially making it illegal to circumvent Digital Rights Management technology, even on technology you own.  The only loophole is that the draft states that member nations “may provide for measures which would safeguard the benefit of certain exceptions and limitations to copyright and related rights, in accordance with its legislation.”  This may allow more progressive nations to allow DRM-overriding, though it will likely not apply to the DRM-friendly U.S. government.

One good piece of news is that the draft has a “de minimis” provision on border searches, excluding from enforcement, “Small quantities of goods of a noncommercial nature contained in travelers’ personal luggage.”  This means that fears of border search and seizures of iPads or laptops will likely not be realized.  What it does mean is that people visiting countries with lax restrictions like China may be searched for bootlegs.

The draft enacts harsher punishments for recording new movies with a camcorder.  The draft mandates member nations to make camcording a criminal offense, but it was noted that “at least one delegation has asked for the deletion” of the demand.

One of the more alarming portions of the draft is its provision of “imminent infringement”.  According to the draft, copyright holders can demand legal action, claiming infringement is “imminent” — even if it hasn’t occurred yet.  In essence this is creating the infringement form of thought-crime.

The bill also may in effect criminalize non-profit distribution of P2P engines or hosting of P2P sites.  It states that “willful copyright infringement” mandates criminal penalties when conducted “on a commercial scale”, even if infringements “have no direct or indirect motivation of financial gain.”  This means that The Pirate Bay folks may be the first of many rebel pirates to serve prison time.

All of these provisions will be effectively funded by taxpayer dollars of the member states.

As mentioned, the bill will be finalized later this year, so this is the one and only time for citizens to voice their opinions on it before it becomes law in the U.S., Europe, and elsewhere.

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