[A2k] ACTA, Counterfeiting, Identity Theft and "Trusted Computing"

[Seth Johnson]

1) ACTA =3D Legal Backing for Palladiated Computers? . . .

So I'm reading up on ACTA a bit (lots of links below), and am I wrong
in thinking people are missing the boat?  I don't think that
counterfeiting is just a weasel word that makes it hard to argue
against it, and I don't think the audacity and expansiveness of the
bits and pieces we see so far are simply attributable to the influence
of corporate players on the negotiations.  When I read this stuff I
get the distinct impression that the reason for the audacity and
arrogance is that it's an enabling framework for a global
technological solution for content control.  It seems to me to be
about providing legal backing for "trusted computing" by regulating
the counterfeiting of encryption/authentication keys.  Does this makes
sense to anyone?

We need to anticipate this and put out significantly new kinds of
messages if this is the case.  It's going to be easier to start
priming the Senate with the right messages before ACTA comes out, than
it will be once we get hit with it.  "Trusted computing" could be very
compelling and hard to counter -- so it seems to me that ownership of
real computers that are under the control of their owners is
important.  I would also say we need to stress more the freedom of
factual elements within expressive works and perhaps a "right to
parse" that correlates with that.  The fact/expression analysis is
more effective these days now that the maximalist view of copyright
has been rejoindered for many years and we do see significant inroads
in that respect.


2) Identity Theft hearing tomorrow . . .

Tomorrow, Marc Rotenberg will be testifying at the following hearing.
It seems to me it would be quite good if those testifying could make a
point of raising concerns about "identity theft" in connection with
the notion of anti-counterfeiting.

"Identity Theft: A Victims Bill of Rights."
this Wednesday at 2:00, Rayburn 2154

> http://oversight.house.gov/documents/20090612130759.pdf

(House Committee on Oversight and Government Reform,
Information Policy, Census and National Archives Subcommittee)


One could warn that this issue should not be confused with copyright,
which relates to public interest concerns and cannot be reduced to a
private interest calculus, and legislation in the areas of identity
theft or counterfeiting can be misused to provided legal backing for
technological measures that create computers that are not under the
control of their owners.


3) Anti-Counterfeiting Bills and "Trusted Computing?" . . .

Here's an article by Declan McCullagh from 2002 about an
anti-counterfeiting bill introduced by Biden.  It seems quite clear
that the counterfeiting in question is counterfeiting of keys, not of
works.  Perhaps this would include the "outsiders' keys" that would be
baked into the motherboards of palladiated computers and used to
monitor and validate everything you do, as well as watermarks and
holographic authentication keys.

Declan McCullagh on Biden Anti-Counterfeiting Bill (2002):
> http://news.cnet.com/2010-1071-946732.html


Why would we not figure that the Anti-Counterfeiting Trade Agreement
would be taking up the same thrust?


4) Suggestive ACTA Language? . . .

Aside from the consistent combining of the terms counterfeiting and
piracy, these phrases from the US Trade Representative's documents
seem to me to particularly signal a counterfeiting policy relating to
encryption/authentication keys:

"The objective of the ACTA negotiations is to negotiate a new,
state-of-the art agreement to combat counterfeiting and piracy."

"measures to ensure that infringing goods are not released into free
circulation without the right holder=92s permission, and possible
exceptions;"

"capacity of competent authorities to require right holders to provide
a reasonable security or equivalent assurance sufficient to protect
the defendant and to prevent abuse"

Similar cues seem to me to be apparent throughout the various released
or leaked documents.


Seth

(Many links below)

---

Pirate This, Go to Jail:
> http://news.cnet.com/2010-1071-946732.html


By Declan McCullagh

July 29, 2002 4:00 AM PDT


WASHINGTON--Sen. Joseph Biden has become one of the newest field
marshals in Congress' intellectual property wars.

After the 59-year old Delaware Democrat took over the Foreign
Relations committee last year, the software and entertainment
industries enlisted him in their anti-piracy struggles. That prompted
Biden to convene a hearing where he denounced copyright thievery in
stentorian tones. "Windows XP was available for illegal use on the
streets of Moscow two months before it was released in the U.S. by
Microsoft," Biden said. "Every episode of "Seinfeld" is now available
to download free to anyone with access to the Internet."

At the hearing in February, Biden released a 52-page report written by
his aides and titled: "Theft of American Intellectual Property:
Fighting Crime Abroad and At Home." One section devoted to counterfeit
products expressed the worry that "counterfeiters flood markets with
their underpriced products and steal a great deal of revenue."

A few weeks later, Biden introduced a bill titled the
"Anticounterfeiting Amendments of 2002." It originally targeted the
kind of large-scale pirates who manufacture fake Windows holograms,
but in a little-noticed move this month before being sent to the
Senate floor, the proposed legislation was rewritten to encompass
technology used in digital rights management.

Biden's new bill would make it a federal felony to try and trick
certain types of devices into playing your music or running your
computer program. Breaking this law--even if it's to share music by
your own garage band--could land you in prison for up to five years.
And that's not counting the civil penalties of up to $25,000 per
offense.

Biden's new bill would make it a federal felony to try and trick
certain types of devices into playing your music or running your
computer program.

"Say I've got an MP3 collection and I buy a new nifty player from
Microsoft that only plays watermarked content, and I forge the
watermark to allow my legal MP3 collection to play," says Jessica
Litman, who teaches intellectual property law at Wayne State
University. "It is certainly the case that if I pass that around, I
could be trafficking (in violation of the law)."

Biden's proposed additions to copyright law come as Congress is under
increasing pressure. In the last few weeks, Hollywood and the music
industry have stepped up their demands for more authority to curtail
digital piracy, backing a new bill to allow hacking of peer-to-peer
networks, trying to limit Americans' rights to record TV and radio
broadcasts, and predicting even more legislation in the next few
months.

Then there's Microsoft's Palladium approach and the separate Trusted
Computing Platform Alliance (TCPA) project, both of which anticipate
the embedding of special security chips in PCs. Since Biden's bill
prohibits "illicit authentication features" attached to software, it
could become unlawful to distribute software that would run on a
Palladium-outfitted computer without Microsoft's permission.

It's not clear why Biden made the changes during the July 18 vote in
the Senate Judiciary committee, and a spokesman did not respond to a
request for comment on Friday. Biden's original bill covered only
"physical features" such as holograms or special boxes used to certify
software, CDs, or DVDs as authentic. The revised version, however,
covers "any feature" used to guarantee authenticity.

Merely creating a fake watermark or digital signature would not be
illegal, but "trafficking" in it or redistributing the file would. In
addition to criminal penalties, the bill permits a company whose
watermark or digital signature was used to sue for damages "of not
less than $2,500 or not more than $25,000, as the court considers
appropriate."

Biden's anti-counterfeiting bill has broad support in the Senate,
where it now awaits what's expected to be an overwhelmingly positive
floor vote. Its sponsors include key Democrats and Republicans,
including Senate Commerce chairman Fritz Hollings, D-S.C., Senate
Judiciary chairman Patrick Leahy, D-Vt., and Orrin Hatch, R-Utah, the
top GOPer on the Judiciary committee.

"The bill has been put on a fast track to enactment, and there
currently appears to be little likelihood of a public debate similar
to the one surrounding Senator Hollings' digital rights management
proposal," says Stewart Baker, an attorney at Steptoe and Johnson who
specializes in technology law. Baker is talking about Hollings' plan
to forcibly implant copy-protection technology into nearly every PC
and electronics device, an idea that's backed by Walt Disney but has
been savaged by programmers and technology firms.

"It is possible, for example, that the bill allows criminal
prosecutions as well as private suits against anyone who uses a black
Magic Marker to disable copy protection features built into some
recent music CDs," Baker says. "At $25,000 a CD, that could be a very
expensive experiment."

There is a similar bill in the House of Representatives, titled the
Intellectual Property Protection Act of 2002. But that version is akin
to Biden's original bill and covers only "physical authentication
features."

Some lawyers who specialize in copyright law say they have no problem
even with Biden's revised legislation.

"I think this is filling in the gaps for intellectual property owners
and keeping pace with technological change," says Megan Gray, a
litigator in Washington DC who represents trademark and copyright
owners. "It's entirely appropriate."

Consumers soon will be offered more and more hardware devices that
rely on electronic watermarks, digital signatures, or other
cryptographic means to thwart piracy and improve security.

Gray believes that forging a digital watermark or signature should be
just as unlawful as forging a physical watermark or signature. "It's
like taking a T-shirt that you've put a design on and then attaching a
Disney hologram or the NBA championship hologram, distributing it, and
giving people the impression that it's an authorized apparel item from
the NBA or Disney," Gray says. "That's a deceptive practice that we
have a long history of banning."

While it's unclear what Biden hopes to accomplish with his new bill,
it is clear that it's forward-looking: Consumers soon will be offered
more and more hardware devices that rely on electronic watermarks,
digital signatures, or other cryptographic means to thwart piracy and
improve security.

"The world is moving toward closed digital rights management systems
where you may need approval to run programs," says David Wagner, an
assistant professor of computer science at the University of
California at Berkeley. "Both Palladium and TCPA incorporate features
that would restrict what applications you could run."

Microsoft originally applauded Biden's bill when it covered only
physical counterfeiting, saying in a press release in April that it
closes "a significant gap in federal protection of copyrighted works
including software." Current federal law covers only "counterfeit
labels," not physical holograms or other packaging material.

But Microsoft indicated on Friday that it had problems with Biden's
revisions. "Those issues, from our perspective, highlight the reason
why we support the legislation as it was originally written," said
spokesman Jon Murchinson.

Filling a gap in the DMCA?

Dan Burk, who teaches intellectual property law at the University of
Minnesota, says that Biden may have revised his bill to pick up where
the controversial 1998 Digital Millennium Copyright Act (DMCA) left
off.

Burk says that if Biden's proposal were to become law, it would be "a
real problem" for researchers working on steganography, a technique
used to conceal information in computer files. "This bill doesn't say
'digital watermark' but the language about numbers, codes, and symbols
may be broad enough to cover steganography, which suggests that it was
altered in an attempt to plug a hole left in the original DMCA," Burk
says.

Biden might revise his proposal before it's sent to the Senate floor
for a vote, and the bill is not guaranteed to be enacted into law this
year. There's a simple reason for that: Congress only has about four
or five weeks left before it's scheduled to adjourn so politicians can
go home and campaign before the November elections.

But in an environment where politicos are more worried about
campaigning against copyright thieves than about carefully weighing
the impact that new laws have on technology, don't expect caution to
prevail. "Copyrights mean nothing if government authorities fail to
enforce the protections they provide intellectual property owners,"
Biden said in April. "The criminal code has not kept up with the
counterfeiting operations of today's high-tech pirates, and it's time
to make sure that it does."

Biography

Declan McCullagh is CNET News.com's chief political correspondent. He
spent more than a decade in Washington, D.C., chronicling the busy
intersection between technology and politics. Previously, he was the
Washington bureau chief for Wired News, and a reporter for Time.com,
Time magazine and HotWired. McCullagh has taught journalism at
American University and been an adjunct professor at Case Western
University.

---

James Love/KEI, June 15: Damages, Injunctions and Transparency key
issues in ACTA negotiations
> http://www.keionline.org/blogs/2009/06/15/thoughts-acta-negotiations/

June 12: Joint Statement: Anti-Counterfeiting Trade Agreement
Continuing
> http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/pr=
ess-release-communique.aspx

June 12: Ambassador Ron Kirk Announces Plan to Move Forward With the
Negotiation of the Anti-Counterfeiting Trade Agreement (ACTA)
> http://www.ustr.gov/about-us/press-office/press-releases/2009/june/ambass=
ador-ron-kirk-announces-plan-move-forward-negot

Michael Geist: U.S. Report Says ACTA Deal Gaining Steam
> http://www.michaelgeist.ca/content/view/2978/125/

Michael Geist: Is ACTA the New WIPO?
> http://www.michaelgeist.ca/content/view/2318/125/

---

Some Released/Leaked/Discovered Documents:

US Trade Representative on ACTA

> http://www.ustr.gov/trade-topics/intellectual-property/anti-counterfeitin=
g-trade-agreement-acta
> http://www.ustr.gov/about-us/press-office/press-releases/2009/april/-offi=
ce-us-trade-representative-releases-summary-an-0

Summary of Key Elements Under Discussion
> http://www.ustr.gov/sites/default/files/uploads/factsheets/2009/asset_upl=
oad_file917_15546.pdf

Intellectual Property Rights Experts Group
> http://www.apec.org/apec/apec_groups/committee_on_trade/intellectual_prop=
erty.html

---

Proposed US ACTA multi-lateral intellectual property trade agreement
(2007)
> http://wikileaks.org/wiki/G-8_plurilateral_intellectual_property_trade_ag=
reement_discussion_paper

Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement
> http://file.sunshinepress.org:54445/acta-proposal-2007.pdf

Business Perspective on Border Measures and Civil Enforcement
> http://www.ipjustice.org/wp/wp-content/uploads/acta-brief-enforcement-200=
8.pdf

---

Information/Action Pages on ACTA:

> http://ipjustice.org/wp/campaigns/acta/
> http://www.eff.org/issues/acta
> http://www.fsf.org/campaigns/acta/

EFF Statement
> http://www.eff.org/files/filenode/acta/EFF_ACTA_submission_032108_0.pdf

IP Justice White Paper
> http://ipjustice.org/wp/2008/03/25/ipj-white-paper-acta-2008/

Coalition Statement
> http://www.ipjustice.org/wp/wp-content/uploads/Coalition_ACTA_Comments_US=
TR_Sept2008.pdf

DFAIT's Consultation
> http://www.michaelgeist.ca/content/view/2898/125/

CIPPIC Statement
> http://www.cippic.ca/uploads/CIPPIC_LT_DFAIT-ACTA-30%20April%2008.pdf