Talk about a cave-in. The Anti-Counterfeiting Trade Agreement (ACTA) has been three years in the making, and at one point included language advocating "three strikes" regimes, ordering ISPs to develop anti-piracy plans, promoting tough DRM anticircumvention language, setting up a "takedown" notification system, and "secondary liability" for device makers. Europeans were demanding protection for their geographic marks (Champagne, etc). Other countries wanted patents in the mix.

That's all gone in today's release of the "near-final" ACTA text (PDF). US Trade Representative Ron Kirk, whose office negotiated the US side of the deal, issued a statement this morning about the "tremendous progress in the fight against counterfeiting and piracy," but the real story here is the tremendous climbdown by US negotiators, who have largely failed in their attempts to push the Digital Millenium Copyright Act (DMCA) onto the rest of the world.

Apparently, a face-saving agreement is better than no agreement at all—but even the neutered ACTA we see today could run into problems. Mexico's Senate yesterday approved a nonbinding resolution asking for the country to suspend participation in ACTA, while key members of the European Parliament have also expressed skepticism about the deal.

Even Public Knowledge, a DC advocacy group that has long opposed ACTA, said today that the new text is "a qualified victory for those who want to protect the digital rights of consumers around the world. Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet Service Providers and search engines."

Let's see what's left.

Internet piracy. In earlier drafts, ISPs were told that they must have a policy for disconnecting repeat infringers (something already in the DMCA) in order to steer clear of liability, and disconnecting users after "three strikes" was held up as a model. All of this is gone, reduced to a mere footnote saying that countries can do what they want to limit ISP liability.

French group La Quadrature du Net remains unhappy about wording that "seeks to extend the scope of the 'digital chapter' to criminalize 'unlawful uses of means of widespread distribution.'" But that wording says nothing about "criminalizing" anything (the "enforcement" here refers to both civil and criminal enforcement, as the previous paragraph in the text makes clear). And the specific phrase "including the unlawful use of means of widespread distribution for infringing purposes" is one of the few in the document set off by a highlight and italics, which is to say that it has not been agreed upon.

Cooperation. Instead, ACTA signatories agree to "promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy." This has the potential to be worrying—will governments push ISPs to start disconnecting users without any judicial oversight? But it's also remarkably vague in what it requires, a far cry from the detailed ISP provisions in previous ACTA drafts.

The RIAA has already sent out a statement confirming that it likes this bit a lot, since "it is estimated that as much as 95 percent of global Internet traffic in music is illegal."

IP lookups. Each country does need to provide some way for rightsholders to turn an IP address into a name. Many countries have this already; in the US, it's a subpoena, while a "Norwich Pharmacal Order" in the UK accomplishes the same thing.

DRM. The tough rules against DRM have been watered down. ACTA signatories have to outlaw DRM circumvention, but there's a huge caveat; this only applies to DRM which restricts acts not authorized by rightsholders "or permitted by law." That last caveat is huge, and aligns ACTA more with the older WIPO Internet Treaties than with the DMCA. This language would appear to allow DRM circumvention when the resulting use is a legal one.

Sadly, when it comes to tools for doing the circumventing, these are broadly banned, even where some limited uses might be legal. This appears to set up a situation in which an ACTA signatory could allow people to bypass DRM to make backups or exercise fair use rights, but could not allow distribution of the tools to help them do it.

Patents. Patents appear to be gone from much of the treaty (with the US pushing hard to keep them out of the "civil enforcement" section as well, though this remains contentious).

Geographic indicators. Europe has already indicated that it may not support ACTA if its precious food marks are not protected worldwide (something that would force Wisconsin-produced "Parmesan" to change its name, for instance, since Parmiggiano-Reggiano is a protected geographic mark.) The new text does not mention such marks specifically, though Sean Flynn of American University worries that they could be snuck in through an ambiguous phrase in the border seizure section.

iPod searches at the border? The "de minimis" provision remains. ACTA countries can "exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage."

Green destruction. When customs officials do seize loads of counterfeit T-shirts, say, they can't just remove the labels and let the items enter the commerce stream. Instead, the good should be destroyed. When that happens, the bonfire must be a "green" one, as "the destruction of goods infringing intellectual property rights shall be done consistently with each Party’s laws and regulations on environmental matters."

Camcording. Even the MPAA's beloved camcording rule, which has been in ACTA drafts for a long while, could be in trouble. The draft text makes clear that some countries still believe that criminalizing theater cammers should be optional, and the parties have yet to reach an agreement.

Cave-in



As Canadian law professor Michael Geist puts it, "one of the biggest stories over the three year negotiation of ACTA has been the willingness of the US to cave on the Internet provisions... The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the [existing] WIPO Internet treaty model.

"Taken together, the Internet chapter must be seen as failure by the US, which clearly envisioned using ACTA to export its DMCA-style approach."

But there are plenty of other opportunities for mischief, especially when it comes to technical details or to items like statutory damages and how they might be calculated. This is especially true since ACTA negotiators have shown the usual preference for exporting intellectual property protections while leaving limitations and fair uses up for grabs.

With no more negotiating sessions scheduled, this is close to a final draft, and something like it will probably be adopted unless countries start pulling out of the agreement altogether.