In the United States, discussions of copyright protection and infringement inevitably revolve around the Digital Millennium Copyright Act, or DMCA
. Since it passed twelve years ago, the DMCA has become the weapon of choice for US companies seeking to fairly protect their property as well as institutions attempting to unfairly silence criticism by alleging infringement. For several years now, a draft treaty that would regulate copyright internationally has been making the rounds. ACTA—the Anti-Counterfeiting Trade Agreement—is meant to take the most draconian provisions of the DMCA, "improve" them, and apply them worldwide. New documents that have leaked from the treaty negotiations have shed new light on the specific positions of various countries, including the US. (An FAQ about the treaty is available here
Such leaks, unfortunately, are our only sources of information. To date, the ACTA negotiation process has been deliberately conducted outside of public view. Negotiations have been conducted entirely behind closed doors, with at least one person having been ejected from a meeting about the elusive treaty just for daring to tweet about what she heard. A Canadian access to information request about the treaty received a document containing the title of the agreement, with everything else blacked out. An American FOIA request was denied wholesale because it referred to material "properly classified in the interest of national security." According to the new records the complete opaqueness of the treaty negotiation process has been a matter of significant disagreement to date. Instead of leading the fight to open proceedings to the citizens of the affected nations, the United States has been fighting hard to keep ACTA dark. Sunlight Is The Best Disinfectant, But Don't Shine On Us
ACTA, if ratified, would reshape European copyright law. It would effectively mandate that ISPs adopt a "three strikes" policy when dealing with copyright infringers and would extend the DMCA's takedown provisions internationally. Copyright infringement would be punished under new, supplementary (and harsher) laws that would exist outside current EU regulations. Based on the new leaks, we now know that the US remains unconvinced that there's a need for transparency and favors the implementation of a global DMCA. In keeping with this, the United States favors broad language and extensive enforcement powers, while other nations, including Canada and New Zealand, seek a more limited treaty that would not have the scope of the DMCA.
It's important to understand that the legal provisions of the DMCA are the tools groups like the RIAA have used to prosecute file sharers for tens of thousands in alleged damages per song. Were Apple ever to take legal action against jailbreakers or modders the DMCA is precisely what would give the company the legal right to claim the individuals in question had broken federal law, even if no apps were stolen.
Bypassing the copy protection on a device, even if it's only to legally
access content you own, is illegal under the DMCA. Groups like the RIAA, BSA, and MPAA are responsible for pushing ACTA just as they pushed the DMCA ten years ago. It's heartening to see other nations shoving back against implementing international "three strikes" policies for cutting off infringers and opting for limited damage recover rather than statutory damages (as is the case in the US).
As for the United States' position, the assistant United States Trade Representative, Stan McCoy, insists America is being entirely open about the whole process. McCoy (pictured left) is on record saying: "The ACTA negotiations are one of many international efforts to fight
counterfeiting and piracy -- not to "transform" already strong US and
European Union copyright laws. Far from keeping them secret, governments
participating in these negotiations have sought public comments,
released a summary of issues under discussion, and enhanced public
You can read the text of the leaked EU documents here
(as well as notes from a February meeting
); additional supplementary analysis from Michael Geist is available here