ACTA AS A BULLYING WEAPON FOR THE ENTERTAINMENT INDUSTRIES

By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.

In its article. 2.18.3 the ACTA agreement calls for “cooperation” between rights-holders and the Internet service providers. The very same mechanisms are called by the European Commission as “extra-judicial measures” and “alternative to courts”. It could mean that police (surveillance and collection of evidences) and justice missions (penalties) could be handed out to private actors, bypassing judicial authority and the right to a fair trial.

In article 2.18.4 , ACTA will allow rights-holders to obtain private data regarding the users of Internet service providers, without a decision of a judge. This is a dangerous breach to privacy. The article is non-binding (using the “may” verb), but this could be changed further, by way of amendment (see below). This would generalize a much criticized procedure included in the 2004 IPR enforcement directive. .

Civil sanctions could also weight on technical intermediates and be used to pressure them to accept “cooperation”. The “damages” section of the civil chapter validates the “lost-sale myth” whereby the industry claims enormous profit losses using biased methodologies. The text requires “pre-established” damages, as well as “additional damages,” which means damages not based on any actual proof of harm and akin to a criminal sanction.

Article 2.14.4 : Criminal sanctions for “aiding and abetting” infringement (it sounds exactly like IPRED2 , which is not part of the EU acquis). These could also be used against Internet technical intermediaries and technology providers as a way to force them into accepting “cooperation” with rightsholders.

Article 2.18.2 : The entirely new -though not definitive- reference to the enforcement of “means of widespread distribution for infringing purposes” is very worrying. It could be interpreted as justifying the implementation of provisions indirectly criminalizing blogging platforms, P2P networks, free software, and other technologies that contribute to dissemination of culture and knowledge on the Internet.

ACTA BRINGS BROAD AND DANGEROUS CRIMINAL SANCTIONS

ACTA imposes new criminal sanctions, bypassing the EU and Member States’ standard democratic process. The wording is so broad that many not for-profit actions could be criminalized.

Article 2.14.4 : Criminal sanctions for “aiding and abetting” infringement. It is intolerable that criminal sanctions are included in a “trade agreement”. Such measures should only be debated in democratic arenas. Moreover, the limit between “aiding” and political speech is blurry.

Article 2.14.1 : ACTA provides that criminal sanctions must be applied for cases of infringement on a “commercial scale”. This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement. Widespread social practices, like not-for-profit filesharing betweens individuals, could be interpreted as “commercial scale”. The only acceptable limitation of the scope of enforcement should be “commercial intent” or “for profit”.

ACTA WILL ALLOW FOR A DURABLE BYPASS OF DEMOCRACY

An “ACTA committee” will be able to modify the agreement after it has been accepted. Such a parallel legislative process, accounting to a blank check to ACTA, is incompatible with democracy. This justifies that the whole ACTA be rejected.

Articles 5 and 6 : These articles create the “ACTA committee”, and grant it the competence to review amendments to ACTA (art 6.4 ). This paves the way for a durable bypassing of democracy, even after ACTA is voted. No elected representative should tolerate this in a democracy as it opens the door for such processes to be generalized.