Strongest condemnation yet of anti-counterfeiting, 'three strikes' from EU

The European Parliament today overwhelmingly voted in favor of a resolution compelling participants in multi-national negotiations over the proposed Anti-Counterfeiting Trade Agreement (ACTA) to report on the status and substance of those negotiations, first to Parliament and eventually to the general public. This after a groundswell of public concern arose in the wake of documents purporting to be official ACTA material, the latest leaked by Wired last November (PDF available here from Wired), spoke of US negotiators' requests to include terms in the final Agreement that would force Internet service providers to police the content trafficked over their pipelines, or else face penalties.

A statement issued from Parliament this afternoon records the final vote as 633-13-16 in favor of the resolution, the motion for which (DOC available here) was drafted just yesterday on behalf of six of the continent's political parties and alliances, including Greens/EFA. That motion referred to the leaked documents by name, effectively confirming their legitimacy.

The motion warned that those documents referred to the institution of measures among ACTA members, including the EU, of criminal penalties for those accused of violating, or assisting in the violation of, intellectual property rights. The leaked Wired document, dated August 30, 2009, entitled simply "ACTA negotiations," indicated that US negotiators were not in a position to discuss even among other trade negotiators the substance of consultations with "a number of private stakeholders (bound to strict confidentiality clauses)" -- a group which presumably includes publishing and recording associations.

Rather than provide colleagues with written documents, the August 30 document stated, US representatives were free to give an oral summary of their requested proposal, which would be an abbreviated version of the existing US-Korea Free Trade Agreement. Clauses of the ACTA as US representatives proposed would narrow the legal definition of "safe harbor" as it pertains to ISPs, which today are protected from liability for IP violations under laws recognized as high up the chain as the Supreme Court. The ACTA, as discussed at the time, would only provide safe harbor to ISPs that instituted policies and installed technologies to deter IP violations, including the illicit trading of unauthorized files.

Later clauses would clearly classify the stripping of rights management provisions from any software as an IP violation, punishable with both civil and criminal penalties. And in a telling bit of legalese whose economy of phraseology speaks volumes as to its intent, the leaked August 30 document included this provision: "'Fair use' will not be circumscribed."

Last year, in an effort to diffuse growing public criticism (before legislators caught wind of it), the Office of the US Trade Representative issued a brief (PDF available here) discussing what it said could be discussed in public about ACTA negotiations. As to the matter of publicly revealing little things about, say, overriding the Supreme Court, the Office diplomatically gave credence to objections, while at the same time attempting to place them in a little box over to the side somewhere.

"A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed," the USTR document reads, referring indirectly to groups including the Electronic Frontier Foundation and Public Knowledge. "However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist."

The USTR paper went on to mention the need to empower judges to impose stricter penalties for IP violations, though by its authors' own admission, it leaves a gaping hole with respect to the broadening of the definition of what an IP violation is. Trade negotiations throughout history have been, by definition, confidential, and their secrecy has been mutually observed for centuries. However, the EP took issue today with the whole notion not only that certain elements of the negotiation should be kept secret from lawmakers, but that negotiators should continue -- as the leaked August 30 document and the USTR brief indicate -- to keep certain elements secret from themselves.

According to this morning's EP statement, the resolution as adopted takes a strong stand specifically against the adoption of "three strikes" rules against IP violators, such as those being tested now in France; and also against the enablement, perhaps through deliberate imprecision (see "circumscribed"), of restrictions on access to media. Parliament now says the final ACTA "should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products," according to the resolution.

The USTR brief also refers to negotiations for a clause that would empower customs agents patrolling borders to seize any material believed to infringe upon intellectual property. Without being specific, "any material" could include a hard disk drive...or the computer or MP3 player containing a hard disk drive.

The EP resolution took a stand against that as well, calling upon trade negotiators to provide "full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices such as laptops, cell phones, and MP3 players by border and customs authorities."

The problem with today's resolution is that it may not be legally binding. While it takes a very public stand, trade negotiators may very well continue to argue that it's their duty to continue to safeguard the intellectual property of the private stakeholders who developed that IP...to protect the IP of the private stakeholders. While the resolution reminds European representatives of their duty to uphold the terms of the Lisbon Treaty, which include keeping Parliament abreast of negotiations, that treaty was only fully enforced last December 1. Since the ACTA negotiations began earlier, participants could argue that they've been "grandfathered in," for reasons which, to borrow a phrase, may not be circumscribed.