The Anti-Counterfeiting Trade Agreement (ACTA) has been getting some attention here and there, mainly for the potential for file sharers to get disconnected. Turns out there's a lot more on the horizon; quite apart from the agreement's potential to ban fairly innocuous practises such as deep linking (boy Google, are you in trouble), the European Commission's Directorate-General for Trade has been soliciting. (pause) Ahem, that was worth the sentence fragmentation. To resume, the DG has been soliciting input and commentary from various stakeholders.

The Global Intellectual Property Center under the U.S. Chamber of Commerce (the wold's largest lobbyist organization) has responded with this letter (that's a pdf link). It's a really good read, and I commiserate unequivocally. With the mothers who raised these slimeballs.

Reading through this together, it contains suggestions like this:

”Criminal penalties for IP crimes, including online infringements”

Yes, a prison sentence is an appropriate response to downloading something you would not have paid for anyhow. Hollywood sleeps better at night knowing that they are ten dollars poorer but you are in prison.

This following one is probably a subtle attempt to make convicted heroin dealers feel less like they are being singled out:

”Provisions mandating that physical and financial assets of violators may be seized”

How about this one?

”Provisions to make trademark counterfeiting an extraditable offense”

Does the US really need more Pakistani nationals in its prisons (come on, they've been making the same Adidas football knock-off for 35 years now)? No, but really. The direct effect here is really simple: I can be shipped off to be tried by foreign nationals on their soil under their legal system if said same nationals think I made home-brew Coca Cola. So I really got to stop that, making home-brew Coca Cola. Come to think of it, I wonder if by merely mentioning one of their brands here I have become an offender.

And let's say the Germans found out that some American petrol head had sold a Porsche 356 replica he painstakingly built. What are the odds he'd get extradited? Gee, let's ask Nicola Calipari.

The U.S. Chamber of Commerce has the following suggestion also:

”Enhanced measures to allow rights holders and law enforcement agencies to identify and take action against proceeds of crimes.”

Here's a tip: when legislation includes the phrase ”Enhanced measures to allow”, someone's getting the short end and it isn't George Lucas. Or maybe you've been bored enough to read your spam.

”Commitment of all parties to criminalize unauthorized camcordling of motion pictures in theaters.”

There's that word again, ”criminal”. Rapists are criminals. Some dumb Belgian kid with a phone camera isn't, but it's only the latter the US wants extradited and tried.

Here's the good news, IP holders of the Western World: you don't need to do anything at all. You don't even have to complain:

”Broader search orders, without formal complaint by a rights holder, that facilitate seizures of all counterfeit and pirated material found at a raid site; the seizure of implements of the violators used in committing the offense; and the seizure of assets and documentary evidence without qualification.”

Seizure. Without formal complaint. Without qualification.

In a study of British 14-24 year old ipod owners, 95% of the iPods contained material which has been copied in some way or another which is in violation of the terms under which the music is distributed. Don't get me wrong, if you're going to throw 95% of any age segment in jail for a rotten reason, 14-24 sounds about right to my cantankerous 32 year old ears.

Oh wait no, they would be extradited. Good, the American prison industry can probably scale better.

Here's a bit more of the ”don't have to do anything” magic:

”Commitment by all parties to expand the powers of national customs authorities (ex-officio authority) to interdict shipments entering or exiting their jurisdiction, in transit or in free trade zones based on legally accepted and recognized terms of probable cause and acting on reliable information. Without prejudice to right holders’ ability to initiate and terminate legal action against infringers, customs officials and prosecutors must have the authority to bring IP enforcement action without a formal complaint from rights holders.”

I'll say this: if no one can fly with their ipods any longer, the airlines had better rustle up something better than Cheaper by the Dozen XV for the in-flight entertainment system.

Remember also, the Iraq War was embarked upon "acting upon reliable information".

And what is with the ”must” up there? ”Customs officials and prosecutors must have the authority to bring IP enforcement action”. Is that a hard ”must” like ”I must pee” or something more like ”I must have some Italian truffles or I will simply die”? Why the urgency? I bet earlier drafts of that sentence had ”taser” in there somewhere.

And now the human rights violation:

”Abolish rules against self-incrimination in civil IP cases.”

No thought crimes. We'll beat you until you confess, and we can do that because our legal system considers self-incrimination admissible. Oh, wait... it doesn't. We know anything written on wikipedia is patently false, mainly because it wasn't written by a lawyer on a Disney retainer. Especially this snippet therefrom: ”Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions”.

So there.

”Ensure that interpretation of data privacy rules appropriately balances the fundamental rights of privacy and property, including intellectual property, to ensure they do not create undue impediments to the enforcement of rights.”

Here's a picture which illustrates the concept of appropriate balance:

appropriate balance

On what basis should the U.S. Chamber of Commerce advise on how Europe balances fundamental rights of privacy and property? Shall we see if the FIFA has time to oversee the Bolivian Secret Service?

”In particular, ACTA should ensure that overly strict interpretations of national data privacy rules do not impede legitimate online enforcement efforts, including the graduated response mechanism, or leave right holders with the sole recourse of pressing criminal charges against online copyright infringers as the only avenue to enforce their rights.”

”Overly strict”? By the standards of the secret councils wherein this agreement has been drafted? And what is a legitimate online enforcement effort? So far that has meant sitting in p2p networks harvesting IP addresses, inter alia. This is equivalent to presuming guilt, but that is alright because a sufficiently imaginative legal team should be able to convince the European Commission and the Supreme Court that Article 11 of the Universal Declaration of Human Rights is old hat.

But hey, they said ”online copyright infringers”. ”Online”. You know how cheap USB drives are nowadays. Think we can make them trot out that old Don't Copy that Floppy ad again?

”Measures to ensure that government agencies do not infringe copyright and only use copies of works that have been lawfully licensed or acquired.”

Ah, there goes eminent domain. Who needed that anyway? National security used to be a reasonable explanation for expropriation, but thanks to _NSAKEY national security has been outsourced. Eminent domain or expropriation used to serve the public interest, but the public interest is not what ACTA is about.