While the public is denied access to drafts of the controversial agreement, lawmakers continue to receive input from anti-piracy lobbyists such as the RIAA and MPAA. Today, the 6th round of ACTA negotiations have started in Seoul, South Korea, where representatives from the U.S, the European Union, Canada, Australia and several other countries will discuss the treaty’s content.

As happened previously, parts of the document have leaked out to the public and they reveal that the agreement’s scope is even more far-reaching than previously expected. The Internet chapter of ACTA has very little to do with counterfeiting, but adopts many of the same policies that anti-piracy lobbyists have been calling for.

Among other things, the ACTA draft calls for a global three-strikes policy to disconnect alleged file-sharers from the Internet, without solid evidence or a court order. If ISPs won’t do so, they will be held liable for the copyright infringements of their customers.

Similarly, all participating countries have to adopt a ‘notice and takedown’ policy where copyright holders can request ISPs to remove infringing materials, again without having to provide solid evidence or proof that they actually own the copyrights. When ISPs don’t comply with the requests they will be held liable, which means that they will be seen as pirates themselves.

Unfortunately, all parties involved in the negotiations refuse to make the ACTA plans public, effectively preventing any constructive input from the public. Yesterday, Knowledge Ecology International (KEI) petitioned President Obama to change this situation and be transparent about the agreement that will affect millions of people. Until that happens we can only fear the worst.

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It almost seems they are actively blocking the public from having their say, while in contrast they continue to receive input from anti-piracy lobbyists such as the RIAA and MPAA. However, as time progresses more details about ACTA become public, largely thanks to Wikileaks.

With the most recent draft that leaked a few days ago, another piece of the puzzle is completed. The leaked draft covers a wide range of issues which are impossible to cover in one article, so here we focus on the damages section. In this section, it is explained how copyright infringers should be compensated by those who share copyrighted content.

It starts as follows:

1. Each Party shall provide that:

(a) In civil proceedings, its judicial authorities shall have the authority to order the infringer of intellectual property rights to pay the right holder.

(b) In determining the amount of damages of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed goods or service, measured by the market price, suggested retail price, or other legitimate measure of value submitted by the rights holder.

This basically means that the courts should be allowed to make those who share copyrighted content pay compensation to the rights holders. By itself this is not that groundbreaking, but combined with point (b) it means that the RIAA, MPAA and others pretty much have a carte blanche for the amount of damages they want to request.

But it gets even worse.

2. At least with respect to works, phonograms, and performance protected by copyright or related rights, and in the case of trademark counterfeiting, in civil proceedings, each party shall establish or maintain a system that provides:

(a) pre-established damages
(b) presumptions for determining the amount of damages

In the footnote of paragraph 2b it is detailed that the damages should be equal to the number of infringed goods, multiplied by the profit that would have been made if the infringement had not taken place. The “would have been sold” part is crucial here. Is every copyrighted file shared to be considered a lost sale or will there be another formula to calculate the claimed loss in sales?

If this paragraph ends up in the final version of the agreement the participating countries are encouraged to come up with a standardized fine for copyright infringers based on lost profit. The way we see it this could easily lead to a situation where file-sharers face thousands of dollars in fines if their IP-address is found sharing a popular movie or music album.

The damages section of the ACTA draft continues with the following paragraph that suggests giving rights holders full control over how they want to be compensated.

3. Each party shall provide that the rights holders shall have the right to choose the system in paragraph 2 as an alternative to the damages in paragraph 1.

This is even more absurd. It basically means that the RIAA and MPAA will have the right to come up with their own damages formula, where they will probably cite one of their own studies to legitimize asking for exorbitant amounts of damages.

Even though this leaked ACTA text is just a draft, and many member states have suggested it should become less extreme, it is crystal clear that the legislation is heavily skewed towards the rights holders. The rights of the public, their privacy and the general criticism on the claimed “loss in profit” because of illegal downloading are all completely ignored.

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At this stage, little is known about ACTA, but what we do know is that the RIAA has put forward some radical proposals. One of their suggestions was to force ISPs to become ‘copyright cops’, ordering them to filter out pirated files on their networks, and making the ISPs liable if they fail to respond to the demands of copyright holders. That, in addition to the request for an official crime unit to track down and bust alleged pirates.

Most governments that have commented on the ACTA negotiations have refused to reveal any information about its contents, but were quick to refute rumors. According to the New Zealand government (ppt), ACTA is aimed at commercial piracy only, and no one has to be worried about getting their iPod through customs. Nevertheless, they also stress that “draft versions of the text will not be made available.”

According to the FFII, all this secrecy goes against EU regulations, and in response they have filed a complaint with the Ombudsman against the EU Council for concealing ACTA documents. “Making agreements to keep texts secret goes much further than allowed. The Council deliberately obstructs access to ACTA documents,” FFII analyst Ante Wessels commented. FFII requests that the documents should be made public. Alternatively, the EU could withdraw from the negotiations, they say.

Bottom line is this: we don’t know what the plans for ACTA are, and it is impossible to remedy this since requests for information are denied at all levels. There is no good reason to keep them secret either, other than to prevent the public and other institutions voicing their opinion on the proposal before it is signed. Convenient perhaps, but not very democratic.

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One of the crucial questions is how “bad” the agreement will turn out to be. We reported earlier that ACTA might allow “competent authorities” to “search iPods” without the need for a complaint from a rights holder. The most absurd ACTA suggestions we’ve seen so far come from the RIAA, with a strong focus on the liability of ISPs.

The RIAA’s wishlist was published several weeks ago, but hasn’t received much press (thanks Brokep). There are several scary suggestions in there though, and if the RIAA could have its way, the Internet would be turned into a virtual police state immediately.

Let’s highlight some of the RIAA’s suggestions regarding online copyright infringement, mostly targeted at ISPs. You can read the document in full at Keionline.

Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials…

The RIAA wants Internet providers to spy on the files that are transferred by their customers and check them against a reference database of “fingerprints” to check whether the files are infringing copyright. The IFPI, RIAA’s international counterpart tried to convince European lawmakers to do the same a few months ago.

Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.

Many countries have looked into the possibility of disconnecting file-sharers from the Internet, often gently pushed by anti-piracy lobbyists. France was the first to present their idiotic “3-strikes” law earlier this year, allowing anti-piracy outfits to police the Internet. The RIAA wants to see such legislation implemented worldwide of course.

“Establish, adequately fund and provide training for a computer crimes investigatory unit.”

A crime unit to track down and bust pirates, sounds like a great idea. The RIAA is vague about what such a unit is supposed to do as they already send thousands of takedown notices a year themselves, even to network printers. Perhaps they will use the funding and education to come up with harvesting techniques that actually work?

Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e­mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content…

It gets even worse for ISPs. The RIAA wants to hold them responsible for the alleged copyright infringements of their customers. They even came up with a 24hour deadline. It’s interesting to see that they focus on pre-release material, the same strategy the IFPI and BPI used to take down OiNK.

…in the absence of proof to the contrary, an Internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement…

Guilty until proven innocent, that makes sense. Of course, ISPs should know what files their customers store. The RIAA wants to ditch the “safe harbor” the DCMA created, making them responsible for the copyright infringement of their customers.

There is much more, but we suggest everyone reads the entire list of suggestions, it is entertaining and scary at the same time. Let’s hope that the politicians who are drafting the agreement will use their brains, instead of blindly accepting such proposals.

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“ACTA” is basically an attempt to criminalize the Internet, thus allowing a virtual police state to occur by the selective prosecuting of crimes. In short, it’s an international treaty, or hopes to be, that will greatly increase already draconian copyright measures, in a poor attempt to appease the copyright and patent industries.

The proposal is based on the assumption that ‘intellectual property rights’ (a term used nine times on the first page of the proposal, and 24 times over the entire 3 ½ page document) trump personal privacy, data protection, probable cause, and lots of other important principles in western democracies.

The measure which has received wider publicity is the so-called ‘Pirate Bay killer’. At the end of page two, there is a list of things that should be included in a signee’s legal framework, and in the section about criminal sanctions it states “significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright holder (e.g., Internet piracy)”. Think non-profit, personal use file-sharing.

Of course, this could go two ways, as the MPAA, for instance, has been guilty of ‘Internet piracy’ in the past, with it’s university toolkit.

Worst of all though, are the following two points speaking of “establishment and imposition of deterrent-level penalties” and “ex-officio authority to take action against infringers”. It is argued that the current level of penalties aren’t harsh enough (”people are still doing it, so they’re no deterrent”), so there should be room for harsher punishments. Combine this with the ability to prosecute without a rights holder complaint, which means that people could be liable for millions, or imprisoned (they are talking about CRIMINAL enforcement) for sharing Steal this Film, or Paulo Coelho’s books. So, these people actively want you to share would have no say in any such prosecution.

There are some other pure gems proposed, such as “ex officio authority for customs authorities to suspend import, export and trans-shipment of suspected IPR infringing goods”. Given that copyright law is so complex and convoluted, and that judges make mistakes in the cases they hear, this is worrying.

Unsurprisingly, the US patent office is backed up beyond belief and dominated by patent trolls that wait until a successful business is established, before pouncing to clean up. This would mean the death for any new and innovative products, or art. If that wasn’t bad enough, there is a further provision for rights holders to prod customs officials into suspension. Thus, a company can make an allegation, forcing a competitors products to be held in limbo until sorted.

Protest has been swift. TorrentFreak occasional contributor Jamie King wrote on his own blog: “In the form that it currently appears to exist, ACTA would ratchet-up further the rights of Hollywood and Recording Industry Association of America (RIAA) at the expense of all of our civil liberties. It provisions to criminalize information use practices currently allowed under U.S., European, and international law are completely disproportionate to the ‘problems’ it claims to address.”

Andrew Norton, chairman of the American Pirate Party was much less restrained: “The very existence of the Anti-Counterfeiting Trade Agreement (ACTA) , be it in policy or just planning, sends one definite message to people around the world; Corruption is rife in the interested countries. There can be no other reason for yet another ‘intellectual property’ (itself a misnomer) law aimed at protecting business interests and expanding government intrusion into the private affairs of it’s citizens, in the name of ‘protection’.”

Of course, the other area most affected by this would be whistle-blower sites like Wikileaks itself. The owner of any leaked document can claim copyright infringement on its publication, and have it pulled. In this, ACTA is a very effective censorship tool. For some reason, though, this aspect has not been widely reported, or even mentioned.

Article from: TorrentFreak, check out our new blog at FreakBits.