[A2k] The ACTA Leak is useful, but there are still plenty of secrets

[Manon Ress]

http://keionline.org/node/682

This is a note about the leaked ACTA documents, that have been
reported now by several news organizations and bloggers.*

On September 30, 2009, the EU wrote a three page memo on the Internet
chapter of ACTA. This is about a week after the USTR held a secret
meeting with selected corporate lobbyists and lawyers to debate the
ACTA Internet under terms of a tough non-disclosure agreement.

The EU memo is based upon a briefing they received from USTR, and it
provides the best insight yet into what is being discussed this week
in Seoul, South Korea. The ACTA Internet section only covers one
chapter, and needs to be read in connection with other still secret or
unwritten parts of the agreement.

The big problem for USTR is not so much the public interest (they made
that clear), but the conflicting interests of content providers and
Internet Service Providers (ISPs).

The EU says the U.S. has modeled the Internet chapter after the Korea-
US FTA (Korus) [1], which is not a surprise. Eric Smith (International
Intellectual Property Alliance) said this would be case in the Spring
of 2008 in a seminar at Fordham University. There are elements about
DRM, TPM, third party liability and safe harbors for ISPs.

In order to benefit from the safe harbors, ISPs may have to provide
new clauses in consumer contracts, to stop non authorized uses. The EU
believes there some space for a "graduated response" (which goes
further than the DMCA), sometimes better known as =93three strikes and
you're out=94. Yes, the EU is referring to, three strikes and they pull
the plug, you're not on the Internet... Details? No. That's still a
secret.

Apparently the ISPs will be required to undertake some type of "self
regulation," under the supervision of governments. This raises all
sorts of civil rights and free speech issues, but since the details
remain secret, it is hard to evaluate.

The technological protection measures (TPMs) are supposed to be
modeled after the US - Jordan FTA (4.13) and the WIPO Internet
treaties (WCT and WPPT+). The actual text is still secret.

Interestingly enough, the EU says the US text says there are "no
obligation for hardware manufacturers to ensure interoperability of
TPMs." It is not clear what this means. It's a secret, of course.

The Chamber of Commerce has told the Obama Administration to keep the
text secret, and USTR is apparently very responsive to the Chamber on
this point. Participants in the negotiations say that the draft is not
for public comments.

As KEI has indicated previously [2], all the big insiders in
Washington, DC, have seen the Internet chapter, and so far, they are
not commenting anywhere.

But while they cannot disclose what they have seen under the non
disclosure agreement, certainly they can express view on what has been
leaked, outside of the NDA.

* See Michael Geist [3] and Gwen Hinze [4]'s blogs

***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673