After SOPA and PIPA, Is the Next Battle ACTA?

The Anti-Counterfeiting Trade Agreement ("ACTA") is a treaty described by the authors as an effort "to strengthen the international legal framework for effectively combating global proliferation of commercial-scale counterfeiting and piracy."

The trading partners who have been working on ACTA include the United States, Australia, Canada, Korea, Japan, New Zealand and Morocco. Representatives from these countries have negotiated a "final version" of ACTA - which their reps signed on Oct. 11th, 2011 in Tokyo. The next step, that would bring the provisions of ACTA into force, is ratification, acceptance, or approval from each of the signatories.

On January 24th, 2012 demonstrators gathered outside the European Union offices in Warsaw to protest the Polish government's plan to sign ACTA on January 26th, 2012 (see photo above). At the same time, several key Polish websites announced that they would go dark on Tuesday evening January 24th to protest ACTA.

Around the world, many advocates for internet freedom see ACTA as a threat. For example, the EFF says: "ACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties for innovation and the free flow of information on the Internet legitimate commerce and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development."

Under the ACTA treaty, Internet Service Providers ("ISP") will police all data passing through them, making them legally responsible for what their users do online.

Should a user do something considered a "breach of copyright" the ISP would be responsible for monitoring that activity and providing information to government authorities that could then (depending on local law) disconnect that user from the Internet, and/ or result in a fine or even jail time for that user.

Although many of the local laws that could impose such penalties are already in place, ACTA removes the legal safeguards that currently protect Internet Service Providers from liability - shifting the entire system of enforcement of Old World copyright into a new high gear that will have many (intended and unintended) consequences on innovation and freedom of expression.

For example, according to an analysis by the Free Software Foundation, ACTA would require that existing ISPs no longer host free software that can access copyrighted media. This effectively means that software that is capable of legal use would be banned from the internet because it might also be used for illegal purposes. In other words, a free app that allows users to find your film online - even when you have given people permission to download your film for free, because you want to sell them merchandise or because free downloads publicize an upcoming live event - would be banned, just because such apps also might enable illegal downloading of copyright content.

In trying to protect the legitimate interests of content creators and owners, lawmakers must be very careful about creating new rules that criminalize behaviors that could (instead) be monetized. This is a disruptive time, but Old Media must adapt - and the regulations that invade privacy or unduly stifle innovation must be avoided.

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