ACTA threats to Free Software

Wed Apr 21 15:49:44 UTC 2010

Hi,

Today ACTA was published. For those of you who haven't read the text
yet, here is an overview of the situation regarding Free Software. For
those of you who have already read the text, feel free to contact me if
you see anything I forgot or misunderstood.

Link: http://blogs.fsfe.org/hugo/2010/04/acta-threats-to-free-software/

Today with the first public release of ACTA, the effects the
international agreement will have on Free Software appear to be
dangerous for its development and its distribution. First, by extending
infringements proceedings and criminal offences to a broad scope of
“intellectual property” including software patents. Second, by
destabilizing the most important means of distribution for Free
Software, which relies on an open and neutral platform on which online
services are not meant to control whether “intellectual property
rights” (including patents) are infringed. Third, by strengthening the
protection of Digital Restrictions Managements (DRMs) against Free
Software and fair competition. 

Earlier today, the European Commission’s Directorate-General for Trade
published the first public version of the Anti-Counterfeiting Trade
Agreement, aka ACTA (PDF). However this document does not give the
details on the negotiations, which began secretly in October 2007. I
will not speak here about the political damages ACTA inflicts to the
respect of democracy, nor about the disastrous effects ACTA will have
directly on free speech, privacy, and the internet ecosystem’s
sustainability as an open, neutral and innovative platform.

Instead, I want to focus here on the direct and indirect threats ACTA
represents for Free Software, on its development, its legal viability
and on its business and trade related aspects.

First, let’s set things straight. ACTA is not just about counterfeiting,
it is broader than copyright. The scope of ACTA is, as defined in the
public release:

        intellectual property refers to all categories of intellectual
        property that are the subject of Sections 1 through 7 of Part II
        of the Agreement on Trade-Related Aspects of Intellectual
        Property Rights.

This includes copyright, trademark, industrial design and patent. If
this definition is clear, all along the text paragraphs refers sometimes
only to copyright and trademark, and sometimes to a broader scope,
depending on how the negotiations will evolve over time. In this case,
we know that the threats to Free Software are multiple because of the
software patents granted every year by the US Patent and Trademark
Office (USPTO) and the licensing schemes tied with patents that are
incompatible with Free Software (To know more about software patents in
ACTA, read End Software Patents).

Second, ACTA is not a trade agreement. Whatever the EU negotiators
claim, the fact is that ACTA goes beyond current legislations and aims
at creating internationally harmonized legislations on how “intellectual
property rights” should be enforced. This is one of the reason why ACTA
is creating its own body (the Committee) with its own executives (the
Secretariat), independently from the World Trade Organization within
which international trade agreements should be negotiated, and
independently from World Intellectual Property Organization within which
international treaties dealing with copyright, trademark and patents are
usually negotiated (and open to NGOs like FSFE). The threat to Free
Software is that there is absolutely no safeguards as to how the
principles of freedom and sharing software would be kept intact.

What ACTA does is creating civil enforcement procedures harming Free
Software development and distribution. Indeed, this is the other side
effect of the changes in judicial authorities and civil proceedings
regarding “intellectual property rights.” Free Software is an important
milestone of an open and neutral Internet, and the Internet itself is a
core tool of how Free Software is developed (by allowing developers to
contribute to code and create programs around the world) and how Free
Software is distributed (with online services, including multiple
protocols such as peer to peer protocols among others). All this system
is threatened by ACTA with such measures and propositions as:

        prevent infringing goods [infringing any intellectual property
        right, including patent] from entering the channels of commerce
        [...]

        injunction against intermediaries whose services are used by
        third party to infringe an intellectual property right [...]

These measures create a risk for online service providers and web
services, because it makes them responsible for infringements and so
encourages them to monitor, filter, control and censor their services —
which has always been proved to diminish the incentive for innovation,
tinkering and hacking; possibilities required to develop Free Software.
Also, ACTA

        promotes the development of mutually supportive relationships
        between online services providers and right holders to deal
        effectively with patents, industrial design, trademark and
        copyright or related rights infringement which takes place by
        means of the Internet [...]

Which itself is a danger to network neutrality because it creates more
concentration between ISPs, operators and rights holders, but also it is
a direct threat to Free Software because the major means of distribution
are controlled, supportively by rights holders including software
patents holders.

Above these procedures, ACTA goes where the EU Directive IPRED2
attempted to: criminal enforcement, which includes “Inciting, Aidind and
Abetting”. Of course, this concerns “Technological Enforcement of
Intellectual Property in the Digital Environment”, extending the scope
of IPRED.

What’s more, Free Software itself, and not only the means of its
distribution, is targeted:

        These shall apply to:] [...] the manufacture, importation, or
        circulation of a [technology], service, device, product,
        [component, or part thereof, that is: [marketed] or primarily
        designed or produced for the purpose of circumventing an
        effective technological measure; or that has only a limited
        commercially significant purpose or use other than circumventing
        an effective technological measure.]

Finally, ACTA endangers Free Software by protecting Digital Restrictions
Management and proposing civil remedies against removing or altering
DRMs, or

        distribute, import for distribution, broadcast, communicate, or
        make available to the public copies of works, knowing that
        electronic rights management information has been removed or
        altered without authority

Not only ACTA is a direct and indrect threat to Free Software, it is
also an important step backward to less freedom and towards a dogmatic
approach of “intellectual property” that will harm the sharing of
knowledge and the Free Software values, by

        Promoting the culture of intellectual property [...]

        To support, developing countries efforts, for the implementation
        of the Agreement and the integration of anti-counterfeiting and
        anti-hacking actions in national development strategies.

(If you want to help, spread the word about ACTA and contribute to the
comments of the public release).

-- 
  Hugo Roy                           im: hugo at jabber.fsfe.org 
  French Coordinator            http://www.fsfe.org/about/roy 

Free Software Foundation Europe works to create general understanding
and support for software freedom in politics, law and society-at-large.
For more information, see http://www.fsfe.org
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