Secret copyright treaty participants demand less security, more border-searches of iPods

Michael Geist reports in from the latest round of secret negotiations on the Anti-Counterfeiting Trade Agreement, a radical copyright treaty being negotiated without public oversight or participation:

The International Trademark Association (INTA) and International Chamber of Commerce have issued a release on ACTA urging countries to drop the de minimis provision that is designed to allay fears of iPod searching border guards. The two associations argue that the exception "sends the wrong message to consumers."
Their demands come just as the consensus on transparency for ACTA has broken down. Following the New Zealand meeting in April, there was consensus achieved on the need to release a draft version of the text. It is now clear that the overwhelming majority of countries favoured continuing this approach by releasing updated versions at the conclusion of subsequent meetings. That did not happen after the Lucerne meeting, however, with both the Swiss and European Commission delegations indicating that they favoured releasing the text but that one delegation did not. It is a safe bet that the U.S. is once again the key holdout on the transparency issue.

INTA, ICC Oppose De Minimis Provision in ACTA

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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orwellian

I’m not understanding this. Australia is going to search every laptop/ipod/flash device at Customs for illegal porn, I understand that, and they are looking to emulate the justly famous Chinese love of internet freedom and intellectual property rights. That’s to protect the children from child porn because there’s no children or cameras in Australia. There’s also a secret treaty that will basically demand the death penalty for not genuflecting before you touch a DVD. And now there’s a group in the secret treaty that wants every Customs agent to determine if your ipod was made by Apple and wants any government to be able to seize a fake designer bag or an ePod/iPed. And a government employee getting 8.00/hr is going to be able to judge this as well as determine whether your travel documents are legit. I’m sure I’m wrong about a few things there, so please, enlighten me.
MadRat

“sends the wrong message to consumers”

What does the ICC and INTA mean by that? What wrong message are they talking about?

Have the ACTA delegates seriously considered what border searches will mean? If I’m on a trip and get a Louis Vuitton purse at the official Louis Vuitton store, how will a border guard know it’s not a fake? Will I have to show a receipt? How will they know the receipt isn’t fake? Will all my credit card purchases have to be checked and wouldn’t that be a violation of my privacy? What if I paid with cash because that’s all the vendor would accept? How will they be able to determine the purse is a forgery or the real thing? Will we have to hire armies of appraisers to sit, with a loupe in one eye all day, checking for microscopic differences in purses? Will we have to wait while someone snips off a piece of everything we own and does gas chromatograph testing on each sample to determine if it matches the official item? If a guard takes something away from us how will we appeal the decision? Won’t they just help themselves to anything they like and we’d better get on the plane before our flight leaves us behind?
SlowX

I know it’s “secret,” but why are so few people talking about this?

And, is it just me, or is “anti-counterfeiting” just an excuse to know what we’re all up to? Either way, it scares me.
- Anonymous
  
  Most people get their news from the MSM.
  The MSM is owned by the big media companies.
  The big media companies want ACTA to pass.
  So it doesn’t talk about it at all, so nobody knows and it can pass with minimal interferance
Anonymous

How are they going to decide that the MP3 on your iPod is “legal” or not? Who’s law do you have to follow; the country you live in, the country you’re traveling to, or the country you might transiting through?

What will you be expected to carry with you during a border inspection to “prove” the music on your iPod legally is allowed to reside on that iPod?
tim

But there’s no way to tell with certainty from looking at my iPod whether the music I have on it was legally obtained or not. And how would they presume to judge the legality of my content? In Canada, I can legally download music (or rip my friends’ CDs) and put it on my iPod.

Well, there will have to be a provable chain of custody for both the file and the device it is stored on – oh and for the device(s) used to play/display said content.

So the file will have to have been downloaded from an approved and licensed (cha-ching) site along with watermarks that prove that you properly paid for it (you’ll have to pay – cha-ching – for a license as well).

The device upon which it resides will have to have been manufactured in a licensed (cha-ching) factory and have a suitable watermarking bit of software so that the combination of the file and device prove you paid for that file.

The earbuds or small display (since speakers & large displays will be unlawful as they broadcast licensed material to many people, some of whom might not be licensed to hear it!) will have to be licensed (cha-ching!) to you and able to detect you personally via DNA or other suitable personal watermarking so that they will only play to you, and of course only then for properly licensed content.

Of course, all countries will have to sign up to the same laws in order to make a proper legal playing field. Perhaps a world-wide police body might be needed to implement this in an efficient manner. They could also ensure that no un-approved material is distributed.

Only then will it be safe for our precious Artists to produce great works of Art. You know it makes sense. Only thieves could possibly object to this reasonable, measured, honest law that will ensure safety, decency, proper payment for artists and a decent respect for Law.
Anonymous

Can someone explain how border gestapo would be able to possible to determine whether media on an iPod was legitimately purchased or not?
ian71

the exception “sends the wrong message to consumers.”
Yeah, the message they really want to send is “WE OWN YOU, PEASANTS.”
freetard

What I can’t figure out for the life of me is, what good will it do a border guard to search my iPod? Perhaps he’ll find my stash of porn (legal in MY jurisdiction, not in his)? Fair enough. But there’s no way to tell with certainty from looking at my iPod whether the music I have on it was legally obtained or not. And how would they presume to judge the legality of my content? In Canada, I can legally download music (or rip my friends’ CDs) and put it on my iPod. Not so much in other countries- but in order to prosecute me for infringement, they’d have to prove I broke the law in America, not just an American law. Most Canadians have broken American laws on a regular basis- but if those activities are not illegal in Canada, where they were conducted, it doesn’t automatically make them criminals as soon as they cross the border. Personally, I don’t travel to or through the States purely on principle. I’d love to see a big fence put up around that country…oh, wait. /irony

I know what they want to accomplish (stop people ‘stealing’ music), but border searches of portable media players is not a logical or feasible way to do so.
- jere7my
  
  This particular release is more concerned with counterfeiting than copyright â€” it doesn’t mention iPods at all. I suspect that what they’re after are bootleg DVDs that people are bringing on vacation.
- S2
  
  Freetard, I also read the BB headline as implying that INTA wants Customs to scan the bytes in Jane or Duane Plain’s iPod for infringing content. But then I read the article Geist is blogging about (and the actual press release) and things became clearer.
  
  INTA recommends “3. Removing the de minimis provision, which excludes small quantities of counterfeits of non-commercial nature contained in personal luggage or in small consignments from customs seizures….” I take this to mean that Customs should be able to seize the knock-off Louis Vuitton bags you’re bringing back for your friends (i.e. looking for bogus iPods.) This is wrong is many ways, but it doesn’t seem to advise subjecting your Nexus One’s flash memory to a cavity search.
  
  What really caught my eye was INTA’s first recommendation, which looks like a call to kick a few riders off the ACTA bandwagon, by: “1. Maintaining the original, narrow scope of ACTA to trademark counterfeiting and copyright piracy for ACTAâ€™s effective implementation in different countries….” Or, as Nokia’s Lucy Nichols is quoted: “The agreement should focus exclusively on trademark counterfeiting and avoid the temptation to be ‘all things to all IP owners’…limiting the agreement to the rights associated with existing trademark laws could arguably garner widespread support and avoid much of the predictable – and arguably justified – opposition to the agreement.” Scrapping ACTA altogether would be Best Case, but trying to scale it down seems like a welcome step back from the brink….
  - bersl2
    
    Or, as Nokia’s Lucy Nichols is quoted: “The agreement should focus exclusively on trademark counterfeiting and avoid the temptation to be ‘all things to all IP owners’…limiting the agreement to the rights associated with existing trademark laws could arguably garner widespread support and avoid much of the predictable – and arguably justified – opposition to the agreement.”
    
    Actually, if that were the entirety of ACTA, I don’t think too many people would have a problem with that. It surely must be the least controversial portion. But obviously, somebody with the ear of one of the powerful delegations wants it to have the copyright tripe in it. And if it has the copyright tripe, the patent people want it to have the patent tripe too.
sum.zero

it’s all right there in how they refer to you: not customer or citizen, but consumer.
Anonymous

This post is a little misleading. It appears that INTA wants customs agents to “search ipods” not for the content on them, but for the device itself. The agreement concerns trademarks â€” they want border agents to steal your fake ipod from you, NOT to arrest you for your pirated movies. Still part of an evil police state, just a different form than suggested here.
Anonymous

Protect The Buggy Whips!
millrick

“sends the wrong message to consumers.”

i’m getting really bored with being thought of as a consumer and not an active participant in the revision of laws that affect my life
- turn_self_off
  
  glad i am not alone in finding the increasing use of “consume” offensive.
  
  tho i found a new high/low (take you pick) point when i encountered a passage of text related to kids and 3D glasses.
  
  it was words something like “kids consuming 3D content”. Err, what happened to good old “kids viewing 3D content”? Heck, the whole thing makes it sound as if little timmy is sitting in front of the screen, glasses on, slurping up 3D video as if it was soda. Makes me think of those old scifi’s where one would see the images on the screen streak through space and into the eyes of the viewer.
  - Ugly Canuck
    
    Consumers consume.
    
    Consumers, consume!
    Consumers consume?
    - turn_self_off
      
      consume you filthy consumers!
InsertFingerHere

The biggest problem is that airline security screening is a convenient funnel to subject people to searches that they would not normally get using other means of border entry.

Hey, my personal items are in a tray, my shoes are off, pants almost falling down, perfect time to add another layer of questioning and searches.
Anonymous

Yay! More knockoff purses and watches, and free movies for border guards!

That’s the effect, regardless of the intent.

And I say this as a first-order relative of a border guard who feels like a second-rate cop, and has a large gun collection. He even extorted some swag from Miley Cyrus’ tour bus for his Hannah-Montana-crazy 8-yr-old daughter.

Don’t get me wrong, he’s a nice guy, but this plays right into law-enforcement power fantasies. But only when they feel like it.

My prediction for the future: technically illegal but widespread payola-type bounties for border and customs officials from copyright cartels.

After all, large bootleg imports are already illegal.
dfornika

God, as the copyfight drags on it gets hard to stay motivated. I applaud people like Cory and Dr. Geist for being so committed to fighting this in a loud, open and confident way.

But when I see reports like this, it just reminds me of the ‘banality of evil.’ Sure, the stormtroopers show up once in a while like they did recently in Toronto, but these guys are just grinding away at our rights day in and day out in a sad, boring march of bureaucracy.
pidg

I don’t get it. Do people regularly load up on illegal content when they go abroad?
andreinla

Look, the position of the middlemen-type companies is quite understandable. For decades they were making lots and lots of money off of other people’s work. And with the extensions of copyright, that cashflow is perpetual.

Just imagine, checks for millions in your mailbox. Without really working for them. Just putting new artists in the machine and getting bigger checks.

Who wouldn’t want financial independence and lots of free time?

And then, you get the news that people are not buying your product but sharing it with each other. Wait, this is money off my checks! How am I going to afford another Mazeratti, or send my mistress’ kids to an Ivy league school or get that mansion in France that I like?! This is outrageous!

“We need laws to prevent that kind of thing. And, to prevent anything similar from happening again. And by the way, every time someone is using MY product, they ought to pay. Nothing is free in this world.”

So, the middlemen who feel genuinely threatened and have a quite expanded sense of ownership (these are MY songs, MY movies) want to control what they perceive as their property. Very much in the same way you and I would want to control what we perceive as ours.

The issue is in the fact that this is not their property, that the only thing that makes it valuable (vs. obscure) is our attention and willingness to pay for experiencing it.

However, in the current distribution structure, most of our money/appreciation goes not to the creators responsible for our enjoyment, but to the middlemen who exploit the creators and their creations.

Until we, the public, go on the offense and return copyright laws to their original intention to support creators and inventors, we keep supporting entities and forces that are against creativity, against sharing and focus on exploitation.

The corporate entities are constantly on the offense, rewriting laws in their interest. If ACTA fails this year, there will be new talks next year, with better campaigns, more lobbying, more pressure.

I am wondering, what would be a good legal approach to change the copyright law in the U.S.?