[tt] NS: Global treaty promises hard times for file sharers

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Global treaty promises hard times for file sharers
http://technology.newscientist.com/article.ns?id=mg19926636.100&print=true
8.7.3

IT SOUNDS much like any other yawn-inducing cross-border treaty. But
the nascent Anti-Counterfeiting Trade Agreement (ACTA) that's on the
table at this week's G8 meeting in Japan may have far-reaching
consequences. If it becomes international law, anyone who offers
copyrighted files over the internet or downloads them may be
labelled a criminal and forcibly disconnected from the net.

ACTA aims to make it easier to penalise and prosecute people running
websites or networks that aid and abet the sharing of copyrighted
content, including music, movies, TV shows and books. While
copyright infringement is already illegal, policing it across
multiple borders has been difficult, especially as fleet-of-foot
file-sharers can shift their operations from one jurisdiction to
another at the click of a mouse. By enshrining ACTA principles in
national laws, the G8 hopes to make flight pointless.

The proposed treaty has progressed with remarkable speed by the
standards of international law. Quietly proposed by the Bush
administration in September 2007, it quickly gathered support from
the European Union, Australia, New Zealand, Canada, Japan,
Switzerland and Mexico.

The alacrity with which ACTA is being introduced, and the lack of
public debate, has alarmed watchdogs. "Given the speed with which
this treaty is being negotiated, and its potentially significant
impact, the lack of transparency in the negotiation process and
failure to provide citizens with an opportunity for informed
consultation is extremely concerning," says a statement from
California-based pressure group, the Electronic Frontier Foundation.

So swift and secretive have deliberations been that ACTA might
easily have slipped under the radar altogether had it not been for a
discussion paper that leaked from a source close to the Canadian
government this May. ACTA is ostensibly designed to create a global
coalition against the counterfeiting of goods - ranging from
medicines to aircraft spares and designer underpants - all currently
covered by a confusing array of international laws.

The treaty also assumes that copying digital content amounts to
counterfeiting and proposes cross-border powers to combat it. The
leaked paper reveals that ACTA-based laws would make it a criminal
offence to provide services that help people breach copyright.

This is important because under current legislation it is not always
clear when someone has broken the law, says Marc Temin, a lawyer
based in Boston, Massachusetts, who specialises in intellectual
property law. "When somebody makes a copyrighted file available to
the public, it's not clear whether that constitutes a direct
infringement, as actually copying and sending the copy to somebody
would do."

This is where ACTA comes in. ACTA would make it illegal not just to
share copyrighted material, but to operate websites that index the
locations of such material that people can download. It would also
outlaw systems like BitTorrent or Gnutella that help users find
files on "peer-to-peer" (P2P) networks of computers.

"ACTA is a Pirate Bay killer," says the team behind the
whistle-blowing website Wikileaks, referring to the Swedish website
that claims to be the world's largest BitTorrent site. Pirate Bay
has so far defied prosecution under Swedish law, but ACTA could open
the door to legal claims similar to the US actions that shut down
TorrentSpy, another popular BitTorrent site, in May.

Wikileaks, which first hosted the leaked ACTA discussion paper,
itself has a stake in the outcome: its stance that it publishes
sensitive, often copyrighted documents in the public interest may
not be tenable if ACTA becomes law. When Wikileaks' US-hosted site
was closed by a court earlier this year, its Belgian and Australian
sites stayed online. But ACTA's international scope could allow
disgruntled companies or governments to shut down its mirror sites
around the world.

Others are also worried about ACTA's consequences. The Free Software
Foundation believes ACTA will induce internet service providers
(ISPs) to block P2P file-sharing communications - killing off the
legitimate applications of such systems. "Without file-sharing and
P2P technologies like BitTorrent, distributing large amounts of free
software will become much harder, and more expensive," the
foundation says.

ACTA will also apply "border measures" that allow "copyright
infringing shipments" to be detected - prompting speculation that
everything from USB drives to iPods and laptops will become
searchable at border crossings. And ISPs would be subject to a legal
regime that safeguards them from liability for copyright
infringement as long as they "co-operate with rights holders in the
removal of infringing material".

This last provision will raise hackles at some ISPs, many of whom
have previously argued that they shouldn't be responsible for the
content carried by their networks. That makes sound business sense:
they don't want to alienate customers who don't like the idea of
their activity being policed, or lose customers who fall foul of
rules on downloading. But they're coming under pressure to change
their stance from governments that view copyright enforcement as
critical for protecting creative industries - and would like ISPs to
act as "copyright cops".

Some of ACTA's would-be signatories have already taken action
towards this end. As of January next year, France will impose a
"three-strikes-and-you're-out" measure on persistent downloaders of
copyrighted content. Users downloading pirated music will initially
be warned by email, then receive a second warning in writing. If
they persist, they'll forfeit their broadband connection for a year.
When the move was first mooted last November, French president
Nicolas Sarkozy dubbed it "a decisive moment for the future of a
civilised internet".

The UK government, for its part, has issued an ultimatum: if ISPs
and rights-holders cannot hammer out a mutually agreeable approach
to the online protection of intellectual property rights, the
government will impose one. Some ISPs are co-operating: Virgin Media
is working with the BPI, the trade body for the UK recorded music
industry, in issuing warning letters to homes whose IP addresses
appear to be involved in downloading copyrighted music. When the BPI
- which routinely monitors file-sharing networks - notifies Virgin
of illegal activity, the ISP sends a warning letter to the customer.

The letter is carefully worded to acknowledge that the person who
pays the bill may not be the one who is downloading the illicit
files - an ambiguity that critics of this approach have seized upon.
But it makes it clear that Virgin holds the paying customer to be
ultimately responsible. "Some families have thanked us," says Virgin
spokesman Asam Ahmed, defending the move. "They were not aware of
what their kids were doing online or what neighbours were
downloading through their unsecured Wi-Fi routers."

Other ISPs are defiant. "I cannot foresee any circumstances in which
we would voluntarily disconnect a customer's account on the basis of
a third party alleging a wrongdoing," says a statement from Charles
Dunstone, CEO of The Carphone Warehouse Group, which runs ISP
TalkTalk. "We believe that a fundamental part of our role as an ISP
is to protect the rights of our users to use the internet as they
choose."

Copy protection no match for teenage kicks

"Was digital rights management ever going to solve the music
industry's problems? Absolutely not." So says Feargal Sharkey,
former frontman of legendary punk band The Undertones.

Sharkey is now chief executive of British Music Rights, which
represents music performers and publishers. He says DRM - software
that restricts the copying and playback of files - is "a complete
nonsense of a concept" that can't possibly provide robust security
against copyright violation. "You'd have to put a DRM decoder in
every single audio speaker on the planet. And even then I could work
out a way to get around it that would take five minutes to
implement."

The music industry seems to be coming round to his way of thinking.
Big music companies, initially keen to stop users from swapping
files by locking them with DRM, have found copy-protection
ineffective and unpopular. Music can increasingly be downloaded
without DRM from sites like iTunes, Amazon MP3 and eMusic.

But they're still keen to shut down websites and networks that
facilitate copying. Are they being short-sighted? Perhaps.
Legalising such sites, rather than criminalising their users, could
yield dividends.

"Sixty-three per cent of 14 to 24-year-olds are downloading and not
paying for music," says Sharkey. "Eighty per cent of them told us
they would subscribe to a legitimate P2P service, and when we asked
them what they would be prepared to pay, it was an interesting
number. And when I say 'interesting', I mean the kind of number that
should give the music industry incredible optimism about its
future."

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Weblinks

Leaked ACTA outline document
https://secure.wikileaks.org/leak/acta-proposal-2007.pdf
Electronic Frontier Foundation on ACTA
https://secure.eff.org/site/Advocacy?JServSessionIdr009=p8cs51y7u2.app8a&cmd=display&page=UserAction&id=383
ACTA's effect on the free software movement
http://www.fsf.org/campaigns/acta/