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Nobody knows yet what the Anti-Counterfeiting Trade Agreement (ACTA) will consist of, but the few available indications are so ominous that the Free Software Foundation (FSF) has started a campaign to raise public awareness of the possibilities. According to Matt Lee, an FSF campaign manager, ACTA threatens to "create a culture of fear and suspicion," and, in the worst-case scenario, undermine and demonize free software.
ACTA is a treaty being negotiated by Australia, Canada, the European Union, Japan, Mexico, New Zealand, South Korea, and the United States. Despite the name, the treaty's main concern is not just the protection of brand names against generic knock-offs, but also the protection of so-called intellectual property, and would therefore probably include both computer hardware or software.
The trouble is that, because negotiations are secret, exactly what ACTA will cover and its proposed provisions are mostly unknown. However, a document entitled "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement," written in October 2007 and uploaded to WikiLeaks on 22 May, 2008 seems ample reason for alarm.
The anonymous discussion paper talks in the most conservative terms possible about "infringement of intellectual property rights." By conflating the ideas of counterfeiting and so-called Internet piracy, the paper claims that infringement results in loss of corporate income, discourages innovation, threatens consumer health and safety, funds organized crime, and reduces tax revenue. In order to combat these supposed ills, the paper proposes that signatory countries not only cooperate with each other, but standardize their laws and enforcement policies.
Among the suggested policies is enforcement of such laws without waiting for complaints from by rights holders; the seizure and destruction of "goods and equipment" involved in infringement, both internally and at a country's borders; searches at the request of a single party, and the disclosure of supposed infringers to rights holders.
Of special interest to the free software community is the development of "remedies against circumvention of technological protection measure by copyright owners and the trafficking of circumvention devices." In other words, ACTA might legalize digital rights management (DRM), and criminalize efforts to disable it.
These proposals sound very much like a shopping list from groups such as the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), both of which have been lobbying governments in the United States and other countries for similar measures for years. And, in fact, the RIAA has been actively lobbying for for such provisions in ACTA. Those outside the United States might wonder why American corporations are helping to write their laws, bypassing international organizations that already deal in such matters, such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and the United Nations.
"A lot of the work we're doing on ACTA is somewhat speculative," Lee admits. "Because of the way [the discussion paper] is written, it's hard to produce an exact assessment. Potentially, ACTA could harm free software, and, potentially, it couldn't. But, either way, I think it does spell out some potential dangers for users of free software."
Some of these dangers are from the possible legislation that results from the discussion paper. The legal enshrinement of DRM alone could be an insurmountable obstacle to the survival of free software.
But even if ACTA is less Draconian than the discussion paper, the consequences could still be severe. Given the language of the discussion paper, it is by no means certain that the treaty or any laws based upon it will distinguish between uncontentious examples of file-sharing, such as downloading a DVD image of a GNU/Linux distribution, and illegal downloading of proprietary software or music. The same is also true of circumventing DRM for legitimate purposes such as making a backup. If such distinctions are not made, then even having a BitTorrent client installed could be grounds for confiscating your computer.
Just as serious, in Lee's view, is the likelihood that ACTA-inspired laws will be enforced by people with limited knowledge. Using free software and free formats -- or even a non-standard piece of hardware, such as a non-iPod music player -- could conceivably cause trouble for you, especially when going through a signatory country's customs.
"There's the danger of having your computer searched and having someone say, 'Hey, this person doesn't have Windows or OS X. What the hell is this GNU operating system you're running?' Or if you're running it without a graphical interface, or you're running a slightly alternative system, they may panic," Lee suggests. "You could even be pulled aside for having a Dvorak keyboard. You'd be putting these kinds of decisions into the hands of people who don't have the technical skill to judge whether a device is a problem or not. They're going to be working on what they've seen before."
"At the moment, the campaign's mostly information," Lee says. "What we want to do is get more people involved who can help us build public awareness and also build up the information on ACTA."
Other ways that free software users can help the FSF campaign, Lee suggests, include local campaigns that contact your elected representatives and starting grass root organizations to help create a world-wide action network. Lee also stresses the importance of translating information from English to help resistance to ACTA in non-English speaking countries.
"It's early days for the campaign," Lee says. "It's an ongoing battle, but ultimately we're going to ride this through and see ACTA defeated. But we need people to get involved to help us do this."
Those wishing to help can contact the FSF at campaigns (at) fsf.org .