ACTA : « une forme douce de terrorisme » / “A kind of soft terrorism”

Nous sommes censés représenter les citoyens, mais comme ils sont occupés à autre chose, nous sommes censés réfléchir à leur place !

We are supposed to represent citizens, however since they are busy with other things, we are supposed to think for them!

— Marielle Gallo, députée du parlement européen favorable à ACTA, à propos du vote des commissions du parlement européen contre le texte.
pro-ACTA MEP, about the vote against the treaty from the European Parliament commissions

(source pcINpact)

ACTA: this is the kind of nonsense we’re dealing with.

The ACTA has thrown a lot of nonsense at us, citizens, for the last four years now. Not only the policies the agreement wants to impose are absurd from economic, social and cultural standpoints (if you’re aiming at any kind of progress or well-being); but also the whole process that we’ve been trying to deal with is made of such non-sense that it’s hard to make the citizens’ voice heard (and even less to make the citizen’s voice count — you know: free speech and democracy).

Lately, the European Parliament legal service has refused to provide a public analysis on ACTA, although it was aksed to do so by the European Parliament (people we elected to represent us at the EU level). The reason?

“Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

(source, the excellent Ante on FFII ACTA’s blog)

So, let’s sum up.

The legal service won’t publish their analysis because it might influence the ratification process of other parties to the agreement; that means other than the EU.

So the EU Parliament will vote on ratification on a treaty without public analysis, because such an analysis would have influenced the US. Brilliant, if not sad.

For a quick analysis on how ACTA endangers Free Software growth, please read ACTA: threats to Free Software. Your comments on that are strongly welcome.

ACTA: threats to Free Software

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.

(If you want to help, spread the word about ACTA and contribute to the comments of the public release).

L’ACTA et la Société de l’Information, lutte de pouvoir et défi pour notre génération

Mise à jour 23/03 : Une version consolidée de l’ACTA datant du 18 janvier vient d’être révélée par la Quadrature du Net. Retrouvez le document complet en téléchargement (pdf) ici.

J’aime penser que parmi les éléments qui forgent une génération, les luttes politiques sont au premier plan. Chaque génération a ses luttes politiques, ses nouveaux enjeux, de même que chaque jeunesse a ses différends avec les générations précédentes, et ces différends ont également beaucoup à voir avec la façon dont chacun s’exprime. Ainsi, certains problèmes, formulés de façons totalement différentes, peuvent apparaître sous des angles inédits, et parfois même être surpassés. Continue reading