Written by J.J. King on July 10, 2008
During their annual summit meeting in Japan, the G8 members agreed to get the Anti-Counterfeiting Trade Agreement (ACTA) ready for implementation by the end of the year. The agreement, pushed by multimillion dollar companies, will open the doors to a digital police state, much to the pleasure of the MPAA and RIAA.

This May we already posted about the leaked ACTA proposal, and it now seems that the final agreement will be ready sooner than we had hoped. Fresh out of the G8 meetings ‘Declaration on the World Economy‘, passages under the heading ‘Protection of Intellectual Property Rights’ suggest member states want the international anti-piracy agreement ready for implementation sooner than some expected, as it reads:

We encourage the acceleration of negotiations to establish a new international legal framework, ACTA, and seek to complete the negotiation by the end of this year.

This date is consistent (surprise, surprise) with that which the US Trade Representative has set as its own timetable for ACTA. Together with some insider information that was obtained by TorrentFreak, this doesn’t sound promising.

How will ACTA affect P2P users?
So what does this mean for P2P users? The honest answer is that it’s hard to be sure. The degree of secrecy surrounding the ACTA negotiations is astonishing, blocking attempts at a variety of levels to develop a counter-strategy. The process is deliberately avoiding both the World Trade Organisation (WTO) and World Intellectual Property Organisation (WIPO), which now have enough member countries suspicious of the “anti-piracy maximalist” agenda to make ACTA’s progress impossible.

At a recent EU meeting following the June ACTA negotiations in Geneva, a packed room of “stakeholders” — that is, industry representatives — were desperately trying to get information on what had made it into the June draft of ACTA while revealing as little as possible, publicly, about what they themselves wanted in it. The Commission — on first-name terms with these industry reps, showing only too well how well regarded they are in this policy-forming process — has basically indicated that no-one will see the text of ACTA until it’s ready to sign.

Also at this EU meeting, it was made absolutely explicit that ACTA is in large part about updating legal frameworks to take account of P2P and developments on the Internet. The previous regime to deal with IP and piracy, TRIPS was 12 years old, officials said, and the Internet had ‘not existed in the same way’ when TRIPS was drafted. In this respect, the hints we have about what might make it into ACTA from a list of suggestions the RIAA obtained by Knowledge Ecology International (which has been double checked for veracity) are very important. More than any other lobby, of course, the RIAA is dealing with issues specifically related to the Net. This gives some pointers of where ACTA could go if the anti-piracy and IP lobbies get their way.

Getting your iPod though customs…
RIAA’s proposals for ACTA go well beyond U.S. law on the enforcement of copyrights online. As earlier reported, they want ‘competent authorities’ to be able to take action at borders over pirated copies without the need for a complaint from a rights holder. An official at the EU meeting ridiculed the ‘iPod search’ stories about ACTA, pointing to the EU’s own border measures — but given U.S. border agents are already retaining and searching large amounts of laptops at borders, this is another burden for travelers who are already harassed by ridiculous “security” measures in the Homeland and beyond. Those dismissing such ideas as ‘merely’ the wish list of the rabid anti-piracy lobbies take note: although there has only been one draft of ACTA made so far (and no one outside the secretive gang involved has been able to see it), reliable sources say there is text relating to the border measures provisions. So at least one of the RIAA’s wishes seems, in some form, to have already made it in.

The RIAA’s wish list for online enforcement of its ‘rights’ is also of great concern, not least because it implies that they would get access to private data from ISPs in order to be able to see what we’ve been sharing. As the year goes on, it’s becoming clear that the P2P / IP debate is merging with the surveillance and privacy debate in ways that I think many people hadn’t forseen. We need to understand fast that enforcement of copyright is one of the main levers being used to drive a wedge into our data privacy at the international level.

RIAA and MPAA want to police the Internet
In general, what the RIAA want is ‘harmonization’ (read: extension of US law over the whole world) of the tricky Grokster ‘inducement’ provisions that make providers of software liable if they can be seen as inducing infringing behavior in users. As I know personally from discussions with the RIAA about projects like VODO, interpretations of what constitutes contributory liability are very broad in the States. What the industry wants to do is chill the rapid innovation that led to products like Napster and BitTorrent by rendering entrepreneurs uncertain about the legal status of their activities. The fact that BitTorrent is the most efficient media reproduction and distribution system in history, used by hundreds of thousands of producers to distribute their own work outside the clutches of the corporate media cabals is, of course, not part of the picture here. This is precisely about media conglomerates’ desire to hang on to the tatters of their empire.

The RIAA’s ACTA would also continue the trend towards ISPs and search engines to weed out infringing users. RIAA expects ISPs to filter infringing materials and police offending P2Pers, cutting off their access if necessary. Again this points to mass surveillance of internet use that, in the light of the wiretapping controversy alread raging in the States, is utterly unacceptable in Europe or anywhere else.

How We Can Slam On The Brakes
So what can be done, and what hope do we have over ACTA? Well, firstly, there are internal contradictions in the process that might make its progress less than smooth. The inclusion of the ‘3 strikes’ rule for kicking P2P users from their ISP contract is a case in point — the European Parliament is actually very suspicious of the 3 strikes rule and the UK government is reportedly desperately looking for alternatives to this political hot potato, which only months ago was portrayed as a fait accompli. This raises the possibility of a showdown between ACTA and the European Parliament.

Secondly, the European Commission has no mandate to implement criminal sanctions on copyright matters – this is down to the individual member states who will be very wary about antagonizing their electorates. Since these criminal sanctions are seen by players like the RIAA as a key ‘virtue’ of ACTA – without which it would be a ‘dodo’ – the shakiness of the legal base for inclusion of criminal sanctions is a big issue.

Thirdly and relatedly, the secrecy around ACTA is a potential pitfall. A mandate should have been obtained from the Commission to negotiate the Treaty, but if it exists it has been declared too secret, or at least ‘confidential’ to bring out. Since this document would very likely have to include a rationale for allowing the Commission to negotiate beyond its power on criminal sanctions, it may be rather suspect. European TorrentFreak readers should immediately write to your MEP in your Member State and ask them to request a copy of the mandate, so that we can get a copy of it online and look at how the EU justifies negotiating an ACTA that includes criminal measures. Since the US wants ACTA to be signed before Bush leaves office, a derailing tactic like this has a good chance of working.

ACT against ACTA before it’s too late…