Today with the first public release of ACTA, the effects the international agreement will have on Free Software appear to be dangerous for its development and its distribution. First, by extending infringements proceedings and criminal offences to a broad scope of “intellectual property” including software patents. Second, by destabilizing the most important means of distribution for Free Software, which relies on an open and neutral platform on which online services are not meant to control whether “intellectual property rights” (including patents) are infringed. Third, by strengthening the protection of Digital Restrictions Managements (DRMs) against Free Software and fair competition.
Earlier today, the European Commission’s Directorate-General for Trade published the first public version of the Anti-Counterfeiting Trade Agreement, aka ACTA (PDF). However this document does not give the details on the negotiations, which began secretly in October 2007. I will not speak here about the political damages ACTA inflicts to the respect of democracy, nor about the disastrous effects ACTA will have directly on free speech, privacy, and the internet ecosystem’s sustainability as an open, neutral and innovative platform.
Instead, I want to focus here on the direct and indirect threats ACTA represents for Free Software, on its development, its legal viability and on its business and trade related aspects.
First, let’s set things straight. ACTA is not just about counterfeiting, it is broader than copyright. The scope of ACTA is, as defined in the public release:
intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
This includes copyright, trademark, industrial design and patent. If this definition is clear, all along the text paragraphs refers sometimes only to copyright and trademark, and sometimes to a broader scope, depending on how the negotiations will evolve over time. In this case, we know that the threats to Free Software are multiple because of the software patents granted every year by the US Patent and Trademark Office (USPTO) and the licensing schemes tied with patents that are incompatible with Free Software (To know more about software patents in ACTA, read End Software Patents).
Second, ACTA is not a trade agreement. Whatever the EU negotiators claim, the fact is that ACTA goes beyond current legislations and aims at creating internationally harmonized legislations on how “intellectual property rights” should be enforced. This is one of the reason why ACTA is creating its own body (the Committee) with its own executives (the Secretariat), independently from the World Trade Organization within which international trade agreements should be negotiated, and independently from World Intellectual Property Organization within which international treaties dealing with copyright, trademark and patents are usually negotiated (and open to NGOs like FSFE). The threat to Free Software is that there is absolutely no safeguards as to how the principles of freedom and sharing software would be kept intact.
What ACTA does is creating civil enforcement procedures harming Free Software development and distribution. Indeed, this is the other side effect of the changes in judicial authorities and civil proceedings regarding “intellectual property rights.” Free Software is an important milestone of an open and neutral Internet, and the Internet itself is a core tool of how Free Software is developed (by allowing developers to contribute to code and create programs around the world) and how Free Software is distributed (with online services, including multiple protocols such as peer to peer protocols among others). All this system is threatened by ACTA with such measures and propositions as:
prevent infringing goods [infringing any intellectual property right, including patent] from entering the channels of commerce [...]
injunction against intermediaries whose services are used by third party to infringe an intellectual property right [...]
These measures create a risk for online service providers and web services, because it makes them responsible for infringements and so encourages them to monitor, filter, control and censor their services — which has always been proved to diminish the incentive for innovation, tinkering and hacking; possibilities required to develop Free Software. Also, ACTA
promotes the development of mutually supportive relationships between online services providers and right holders to deal effectively with patents, industrial design, trademark and copyright or related rights infringement which takes place by means of the Internet [...]
Which itself is a danger to network neutrality because it creates more concentration between ISPs, operators and rights holders, but also it is a direct threat to Free Software because the major means of distribution are controlled, supportively by rights holders including software patents holders.
Above these procedures, ACTA goes where the EU Directive IPRED2 attempted to: criminal enforcement, which includes “Inciting, Aidind and Abetting”. Of course, this concerns “Technological Enforcement of Intellectual Property in the Digital Environment”, extending the scope of IPRED.
What’s more, Free Software itself, and not only the means of its distribution, is targeted:
These shall apply to:] [...] the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]
Finally, ACTA endangers Free Software by protecting Digital Restrictions Management and proposing civil remedies against removing or altering DRMs, or
distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, knowing that electronic rights management information has been removed or altered without authority
Not only ACTA is a direct and indrect threat to Free Software, it is also an important step backward to less freedom and towards a dogmatic approach of “intellectual property” that will harm the sharing of knowledge and the Free Software values, by
Promoting the culture of intellectual property [...]
To support, developing countries efforts, for the implementation of the Agreement and the integration of anti-counterfeiting and anti-hacking actions in national development strategies.