April 22, 2010
More on ACTA
The ACTA provisions that generate the most criticisms are those dealing with the potential for three strikes laws and circumventing digital rights management implementations. The secretive nature of the earlier drafts suggested imposing a three strikes requirement as the bits and pieces of those texts found their way to the Internet. That has been removed, though one of the options provides that the treaty would not interfere with a signatory to impose such a regime under their local laws. Forcing an ISP to spy on its users in actively policing infringing activities also defers to the same principles under the U.S. DMCA. The content holders would request the user information for suspected infringers to which the ISPs would respond. The optional provision as written does not seem to require a court order of any type. The text also encourages signatories to forge a a supportive relationship between copyright holders and ISPs. The attitude seems to be "We're all in this together, after all." See the options beginning at page 21 of the April 2010 draft for more details.
The draft would require signatories to impose civil and criminal penalties for removing digital rights management controls from protected works. Different countries can adopt limitations or exceptions provided they do not impair the legal effectiveness of the no-breaking provision. This is very much in line with provisions of the U.S. DMCA, except imposed globally. Now, I grant that there are a number of parties who consider provisions such as these as precluding any type of fair use that may have been valid simply because a content holder places an electronic lock on their content. Some go even further. The RIAA refuses to acknowledge that copying unprotected CDs for personal use (ripping to use on the owner's MP3 player, for example) is authorized under the law. Then again, it's difficult to catch one in the act for purposes of a suit.
As a practical matter, there are free tools available on the Internet that accomplish DRM stripping for a variety of formats and purposes. I'm not going to name any, lest I encourage illegal activities, which I do not. I will question, however, that despite the imposition of such a regime in U.S. law, that even current commercial products (which I will also not identify) seem to exist that are promoted on the basis of their ability to "back up" or "clone" protected media. The point of all this is that the treaty and domestic law may make the conduct illegal, but it won't necessarily stop it. I suppose this is one of the ironies in the treaty and enforcement process.
One of the signatories likely won't be India. Lobbying seems to have failed there as Boing Boing is reporting that the new India copyright law declares personal copying to be fair use, and breaking DRM is ok provided that the person who does the breaking isn't violating copyright. Quick, somebody tell the U.S. Trade Representative. [MG]