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ACTA - making a crime out of copyright infringement 
Sunday, 28 March 2010 | 01:45 am
couch potato
The Anti-Counterfeiting Trade Agreement (ACTA) is an international treaty under negotiation that will have far-reaching ramifications for how millions of internet users share copyrighted material online. It is a US-led initiative, with strong support from Japan. Other countries involved in the negotiations include the EU, South Korea, Canada, Singapore, Mexico, NZ and Australia. It has been estimated that this treaty will be made public by 2011 - and pressure will be placed on other countries to sign as part of future trade agreements.

Negotiations are top-secret for 'national security reasons' - yet the US trade representative has allowed certain interest groups to view the document. These include people from Google, eBay, Intel, Time Warner, Sony, News Corporation, the MPAA and RIAA. Members of the public have largely been kept in the dark, apart from leaks online.

But what has been leaked is scary enough. This treaty is going to give the copyright holders the teeth to enforce copyright law, and internet service providers are going to be the watchdogs. To be considered a 'safe harbour' from prosecution, ISPs will be obliged to operate a three-strikes policy for alleged copyright infringement (no evidence required): two warnings, and then a ban for one year for that household. There is some speculation that ISPs will share lists of banned households, preventing people from subscribing to another ISP in the meantime.

One year is a pretty long time to go without the internet.

Michael Geist, a Canadian law professor at the University of Ottawa, provides a great summary of the dangers of ACTA in an interview on CBC's As It Happens.

He also has a 20min slide presentation that outlines the origins of ACTA, and where it is heading:

If ACTA is implemented, the internet will not be the same. Forget about watching music videos and film segments on YouTube. Forget about making fanvids and fanmixes. Forget about fansubs and scanlations. Forget about making screencaps for icons, website layouts, and lulz on image-hosting comms such as 4chan and fandomsecrets.

No more bittorrenting your favourite films, TV shows, anime. No more sharing of manga raws. And don't think you can hide on USEnet or IRC either. The groups providing these services will be subject to the same 'safe harbour' requirements too. When your country gets into bed with the US or other signatory states over trade, you too will have to comply with ACTA.

As for the grey area of fanfic and fanart, they may very well clamp down on that too. ACTA has redefined criminal copyright infringement to include significant wilful infringements that have no direct or indirect motivation of financial gain. So it no longer matters if your activities are not-for-profit. As far as ACTA is concerned, you are still committing a criminal offence - which means the government can come after you. (Actually, copyright infringement is already a criminal offence here - people have served jail time for sharing music online).

If ACTA does make it through to my country in 2011-2012, my fannish activities are over. I'll have to pull down my websites and all the copyright-infringing content on them. I'll have to remove my profiles on various forums and archives. I simply can't risk being an active online fan any longer.

Which, in the end, is what the major US media corporations, who have no doubt lobbied hard for the copyright provisions in ACTA, want of us all. They don't want fans who question and dissect and remix and rewrite without showing 'respect' for the original work. They prefer consumers who passively digest the prepackaged content that's tossed their way, and come back for seconds afterwards.

ETA 29 Mar: ravensilver has more links with information about ACTA. I've also come across an ACTA rant by CNET's Molly Woods: Dear President Obama: Get ACTA out in the open.

If you like talkfests, CNET has several podcasts about ACTA:
- 5 Nov 2009: Leaked ACTA internet provisions
- 22 Feb 2010: ACTA must be stopped
- 9 Mar 2010: ACTA - It's bad for the brand
Saturday, 27 March 2010 | 02:53 pm (UTC)
Thanks for the info, I guess I can say, I saw this coming, copyright laws are finally catching up with the internet, so I guess people go back to the old things, such as publishing their own fic in fan anothologies and getting together at cons, fanwork (like fic and pics) will still go on, just not to the extent it has.

But I will be sorry to miss the content I can't find any other way, as the music, shows, films, tv I like is from another country and aren't featured on my accessible networks.
Saturday, 27 March 2010 | 03:14 pm (UTC)
I'm really disappointed this is in the works. This is a backward step for internet users as a whole. I still hope that public opinion can derail ACTA, but I don't know if the negotiators even care what we think.
Saturday, 27 March 2010 | 03:17 pm (UTC)
Thanks for this, though I must confess, I'm not surprised.

I've been saying for some time now that we're in a golden age of the internet that cannot endure. The history of early radio runs parallel. I even wrote an LJ entry some time ago about how the railroad will come through eventually, dispossesing us early homesteaders.

Someday, we will look back on the freedom of creativity and expression we had in this decade and our children and grandchildren will find it hard to believe.
Saturday, 27 March 2010 | 03:29 pm (UTC)
Saturday, 27 March 2010 | 03:23 pm (UTC)
Thanks for the info.

I must say that it's nice that they're trying to stop copyright infringement, but this is extreme D: The chance of getting arrested for just drawing fanart? There is no freedom, it feels oppresive to me. This secretive manner of how they're discussing the contents is pretty fishy as well =/

I wonder if they can really get this passed though, I'm pretty sure quite a number of the public will object. I wonder if the negotiators even care about what the public think though, seeing as how they're handling this.

Edited at 2010-03-27 03:24 pm (UTC)
Sunday, 28 March 2010 | 04:04 pm (UTC)
I'm hoping it doesn't get through. Apparently the EU are unhappy about the 3-strikes provision and want greater transparency.

But I think Australia - where I live - would happily rubber-stamp ACTA, since they're busy trying to censor internet access anyway ;__;
Saturday, 27 March 2010 | 03:30 pm (UTC)
Thank you for the info. But if this gets implemented, then it's nightmare (T_T)
Sunday, 28 March 2010 | 04:08 pm (UTC)
Yeah. In the meantime, we all have to download everything while we still can and scanlate a lot faster :P

Saturday, 27 March 2010 | 05:07 pm (UTC)
Not to mention that DeviantArt will be heavily affected by this when it comes to fanart.

If/when this copyright law gets through, then there's no point in going online anymore. I've been dling raws, scans, BL CDs, reading fanfics, looking at fanart, and all the wonderful things the internet provided us. I wonder, if this copyright law is passed, will it be like living in China, what with the whole fiasco with Google and all?

I'm not looking forward to this at all. It's like, soon my internet days will be over. I know that sounds a little dramatic, but still...
Sunday, 28 March 2010 | 04:11 pm (UTC)
I feel the same. The internet is going to be very corporate-looking place if ACTA gets through. It will be a very different place. I'm sure that there will still be pockets of fannish activity, but the profile will be a lot lower than it is now.
Saturday, 27 March 2010 | 05:21 pm (UTC)
I'm sure it's because I'm old fashioned, but I believe the creators of art have a right to secure their rights in a way they see fit, and especially if they believe they should be receiving some kind of return when people use their stuff. If I stole a CD from a store, it's theft. Part of the reason it's theft is the artist who created it deserves to be paid for their work if that's what they wish. I don't discount corporate greed - not at all - but the poor schmuck who wants to make a living writing songs or books or whatever will get the shaft if the philosophy of "I want it so, it should be given to me for nothing" continues to take over the world.
Saturday, 27 March 2010 | 06:47 pm (UTC)
creators of art have a right to secure their rights in a way they see fit,

Well, but up to what point?

I agree with you about what I think are your basic points: artists should indeed be paid for their work, and should have reasonable levels of control over derivative work made from their originals. Which is to say, I'm all for paying for music if I download it, et cetera.

But if these details reflect the final treaty, it goes well beyond that basic and reasonable set of standards -- and far beyond what's authorized by current U.S. law, at least. One of the things media companies (and sometimes individual artists/writers) routinely try to do is shut down any use at all of copyrighted material, including quoted material in reviews, use in or as a form of social commentary, and so on. And one of the points the Supreme Court made in one of its foundational cases on fair use is that creators naturally have strong feelings about their creations: they aren't going to embrace harsh criticism, or parody, for example. Under our traditional rules, though, those uses are protected by law. The creators' feelings are legally irrelevant: in the U.S., unlike some other parts of the world, copyright law doesn't protect an artist's ability to preserve his or her vision as embodied in the work. We have had no legal equivalent to Europe's droit morale. Indeed, this is true even though criticism and parody may well affect the commercial value of the work: in our legal system speech is more important than the protection of the value of a copyright holder's intellectual property against criticism.

And it gets worse. This particular idea of copyright is written into our constitution: the Congress is given the power to grant patents and copyrights for a period of time only -- not in perpetuity -- and the power is specifically intended to promote the progress of the arts and sciences, and not to promote the interests or welfare of intellectual property owners. The latter is only a means to the former. A copyright rule that restricts society's ability to use new work in transformative ways, as this threatens to do, is explicitly at odds with the very purpose behind the grant of authority to Congress.

What's scary to me, hypothetically (I keep reminding myself that we don't actually know what's in this thing yet; I'll panic more when I see something from an IP lawyer who's seen the language), is that a treaty can do an end-run around constitutional limitations in a way that mere domestic legislation can't. That is, if the draft is as bad as reported it's not unlikely that the American courts would strike it down if it were passed as domestic legislation. But treaties have higher standing: together with the Constitution itself, they constitute the "supreme law of the land." And I fear that it's too much to hope that the senate would not, in a brief and maddening moment of temporary bipartisanship, ratify this goddamned thing.
Saturday, 27 March 2010 | 05:22 pm (UTC)
Crap. There is much meaning in a misplaced comma: "I want it, so it should be given to me for nothing" was my intent there.
Saturday, 27 March 2010 | 07:30 pm (UTC)
thanks for the heads up. i'm not sure i can see it happening... it's not like they manage to catch all the pedos and terrorists who use the internets, so idk how this can be truly enforced for "normal" internet users.
Sunday, 28 March 2010 | 04:15 pm (UTC)
Yeah, that's true. To enforce the laws, countries would need a setup similar to China - ISPs actively monitoring everything. And they'd probably argue it's for our own good as well.
Sunday, 28 March 2010 | 04:05 am (UTC)
...I hate my country so much sometimes. -_-*
Sunday, 28 March 2010 | 04:16 pm (UTC)
If it's any consolation, my country is worse than yours on this issue :P
Sunday, 28 March 2010 | 05:48 am (UTC)
so kinda like what they have in Italy?
funny how china is not on that list...

it still wouldnt help them much if anything it would help indie artist more since more and more are putting their stuff up on the internet for free with other merch to sell.

so major corps still wouldn't get my money.

(honestly, pirating takes more time then I could care for. they need to spend more time putting down stupid region codes... better get me one of them regionless dvds)

wonder how this will effect imports
Sunday, 28 March 2010 | 04:34 pm (UTC)
So Italy have a system like this already? Wow, I had no idea.

Yeah, China isn't included because there is so much counterfeiting and piracy going on that their government has trouble cracking down on it. So they weren't too keen about negotiating on a treaty with even tighter regulations. But according to that slideshow by Geist, when ACTA is written up, non-compliant countries like China will be pressured to comply.

Imports will be affected a lot. Customs will be responsible for checking for materials that breach copyright: counterfeit luxury and fashion items, fake cosmetics and perfumes, bootleg DVDs and CDs...and there is some speculation that MP3 players and laptops may be checked for illegal files. Not sure if importing DVDs from another region will be affected. Region coding is a huge pain.
Sunday, 28 March 2010 | 05:57 am (UTC)
-_- I don't even know what to say to this. I'm going to agree though that there will be very little point in even going on the freaking internet anymore.
Sunday, 28 March 2010 | 06:14 am (UTC)
It's ridiculous. What do they think we are? Just object for marketing? Don't they know Comiket at all?
No way! We must fight.
Similar things recently happened in my country. The government tried to control internet content by made minister's regulation (only minister's regulation!) that mentioned the ISP have to control internet content though they're not the one who made them.
Obviously, that resulted in severe reaction from the internet users community. We're suspicious that was meant to control public opinion and prevent people from criticizing the government (the government deserves that though). Moreover, the Constitutional Court Head Judge gave the statement that the minister's regualtion is inconstitutional.
So, people in my country safe so far.
Actually, I can't understand why US government try to make similar mistake like my government did.
And again, is making TatsumixTsuzuki and TsuzukixHisoka fanfictions and fanarts disrespectful to Yoko Matsushita? She hinted at those a lot, and fanarts and fanfictions are no subtitution for the original works, we just want to share our imagination. Even Hisoka's not a kid anymore, he's almost 30 now.
Monday, 29 March 2010 | 01:28 am (UTC)
Hmm. In my country, there is similar concern over internet censorship. It seems that many countries now want to control what people view online. It's good that your Constitutional court overturned such regulations.

I think the US government are listening to media organisations who are upset about widespread copyright infringement online - film and music industries want to control this by introducing more punitive measures for offenders :(
Sunday, 28 March 2010 | 08:40 am (UTC)
creative commons will end up being all the more important. the people releasing stuff under creative commons licenses will end up being the ones who's media is all the more promoted by the average internet user.

that could be a good or bad thing but in the end it will still be a drastic change.
Monday, 29 March 2010 | 01:32 am (UTC)
Yeah, that's a good point. Maybe Creative Commons will flourish, and show up the disadvantages of current copyright law.
Sunday, 28 March 2010 | 11:42 am (UTC)
This is ridiculous. I'm moving to France.
Normally Canada doesn't have these silly policies (like the Orphan law) but if this seriously passes, I don't know what I'll do anymore. It's a good thing I started worrying about what might happen to my scanlations if there wasn't an internet any longer, so I've been buying a ton of manga.

I'll miss the old Internet. With this new law, there won't be anything FUN to do on the Internet, at all.

I really dislike those American Lawmakers. And knowing the Conservative government (in Canada), it will definitely pass because they don't care about us.

Besides, this really scary, if you think about it. Almost like Big Brother is watching us...
Monday, 29 March 2010 | 01:44 am (UTC)
The internet will have to become something similar to what exists in China - ISPs watching whatever we upload or download.

If it's any consolation, Canadians have been protesting loudly about copyright laws and ACTA - they are some of the most active individuals online about this issue.

France tried to introduce a 3-strikes rule last year, but thankfully it was ruled unconstitutional. Unfortunately, it hasn't stopped ACTA from resurrecting it up again. The EU wants greater transparency and opposes 3-strikes - I hope they can persuade the other countries involved to drop it.
Sunday, 28 March 2010 | 05:51 pm (UTC)
i don't get it? i mean, ok i understand about fanart done for sale and all, but the stuff done just for FUN?! and fanfiction too!? that is so stupid!

what about the series long gone that fandoms are keeping alive through fanfiction and/or fanart?

look at Buffy the Vampire Slayer for example. Buffy has been over for years but the fandom is still active out there. and Joss approves of Buffy fanart and fanfiction! heck, he encourages it!

I seriously hope that the creators have a say in this. why can't they just do what does and allow the creator to decide if they want fanfiction for their work or not? this is so stupid.
Sunday, 28 March 2010 | 05:54 pm (UTC)
"I seriously hope that the creators have a say in this. why can't they just do what does and allow the creator to decide if they want fanfiction for their work or not? this is so stupid."

My thoughts exactly.
(Deleted comment)
Monday, 29 March 2010 | 02:34 am (UTC)
English manga publishers are starting to introduce online reading, which is a promising sign e.g. Viz's SigIKKI (free), DMP's emanga (subscription). So there are companies trying to bring manga online now.

But like you said, it would be great if Japanese publishers could do a simultaneous digital release of manga in multiple languages, because that would make scanlations of new titles redundant. What would be the point in scanlating if a professionally translated version exists online?

Some mangaka are even looking at ways to bypass publishers and sell direct to readers e.g. seinen mangaka Satou Shuuhou has had modest success with selling online manga, but it's unclear if he'll generate enough income to fund his operations at the moment.

I think a low-cost subscription system could work if it could closely follow the Japanese release schedule. Instead of waiting months for a book, how about a few weeks for a legal digital version? Beat the scanlators at their own game.

The technology is there, but I guess some creators and publishers are reluctant to embrace it because they fear losing control of distribution. Which is ironic really, because they already have.
(Deleted comment)
Monday, 29 March 2010 | 09:29 am (UTC)
You can find more information here:

and EFF gives Americans the opportunity to write to their Senators about this:

If you want to make the effort, you can read through the entire proposition here:

At the bottom of the Wikipedia article there are links to the official websites of the countries participating.

If we can manage to set up petitions for the whales, why not against this?
Monday, 29 March 2010 | 11:04 am (UTC)
Thanks for the links. I'll link to your comment so people can read more about ACTA, and find out what they can do about it.
Monday, 17 May 2010 | 04:13 am (UTC) - It impossible to enforce
Sorry guys, it won't work at all. Why? Encryption.

All they gotta do is... just encrypt the content and put out the private key out in the open in several different sources. What happen is that... Internet Service Provider will have a bloody hard time to catch illegal download or upload when all they see are encrypted data being moving about.

Second of all, what will happen if your "friend" goes on your computer and download illegal stuff so many times that it locked up your internet for a year while your "friend" go home with all of his content to enjoy in his flash drive.

This fail policy is fail. :)
Friday, 21 May 2010 | 04:48 am (UTC) - Re: It impossible to enforce
I've heard that encryption is how file-sharing will be done in the future. It'll be slower and more difficult to access, but it'll still go on.

Let's hope that ACTA does get watered down when it's finally complete.
Saturday, 18 February 2012 | 11:23 am (UTC)
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