Tuesday, 31 January 2012

Move over SOPA & PIPA, now there's OPEN & ACTA

OPEN: "Online Protection and ENforcement of digital trade"
not open as in 'source', or open as in 'out in the', or open as in '____-door policy' but rather OPEN as in 'a locked door you do not have a key for'
synonyms: see CLOSED
antonyms: see OPEN
ACTA: "Anti-Counterfeiting Trade Agreement"
as in 'the guy with who's only skill is feigning emotions and remembering when and what he's been told to say who will have to sell his million dollar cliff-side manor with 30 acres of private beach because you gave away his movie'
BEWILDERED: "Bureaucrats Enacting Wickedly Illegal Laws Designed to End our Rights Entirely under media Darkness"
as in 'what the hell?! and I can't actually think of anything more meaningful to say than that...'

Acta 1: Darkness

How is it, that even with my reading between 5000 and 8000 headlines and stories per month, I know nothing bout two horrible 'international agreements' that my own government has already signed months ago? Of Course... They announced they would participate in ACTA back in October 2007, although, I can't find any 'media' source that there was a public announcement. In 2007 I probably thought that sounds like a bad idea... But I no longer remember doing this...

They also appear to claim to have a press release the day before signing it... But damned if I can't find anything about it in the Canadian press, in fact, the only English results that aren't about 'the Cleveland Indians acquisition of "Manny Acta"' came from the first place most Canadians turn to for news: "Channel News Asia"... Wait, 9 related:
  1. Managing IP - your source for Managing Trademarks...
  2. Channel News Asia - Headline = Singapore signs ACTA
  3. Farm Chemicals International Headline = Japan signs ACTA
  4. Straits Times - Headline = Singapore signs ACTA
  5. Reuters Canada Headline = Anti-counterfeiting agreement signed in Tokyo
  6. ChicagoNow - Not related... "Manny Acta" 
  7. BusinessGhana - Headline = S. Korea signs anti-counterfeiting agreement
  8. Buffalo News - not related...more "Manny Acta"
  9. Wired News - Headline = US Signs International Anti-Piracy Accord
One single mention of Canada, but not in the headline, in the subdomain ca.reuters.com...
worse still, here is the 1st paragraph, which was supposed to grab my attention:
TOKYO (Reuters) - Governments of eight nations including Japan and the United Stated signed an agreement on Saturday aiming to cut costly copyright and trademark theft.
Canada does not get mentioned for several paragraphs... Was this the fanfare public release statement we were all supposed to catch? Even worse still of the 7 articles mentioning this 'major fanfare' event, one actually mentions 'piracy' everything else says 'counterfeit'.

Acta 2: Shakespearean lingo was always concise and could not be misrepresented, right?

pi·ra·cy   [pahy-ruh-see]
noun, plural -cies.
1. practice of a pirate;  robbery or illegal violence at sea.
2. the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc.: The record industry is beset with piracy.
3. Also called stream capture. Geology . diversion of the upper part of one stream by the headward growth of another.
coun·ter·feit    [koun-ter-fit]
1.made in imitation so as to be passed off fraudulently or deceptively as genuine; not genuine; forged: counterfeit dollar bills.
2. pretended; unreal: counterfeit grief.
3. an imitation intended to be passed off fraudulently or deceptively as genuine; forgery.
4. Archaic . a copy.
5. Archaic . a close likeness; portrait.
6. Obsolete . impostor; pretender.
Notice 'Archaic' ((of a linguistic form) commonly used in an earlier time but rare in present-day usage except to suggest the older time, as in religious rituals or historical novels. Examples: thou; wast; methinks; forsooth. ) which implies that the terminology for 'a copy' should only be used to suggest the action occurring in the time frame when it was a commonly accepted term... Therefore it can not be used to imply making a digital copy as that etymology ended before the most recent 'digital age'.

When I hear 'counterfeit' that either implies something tangible, something I can touch or drop on the floor by accident, or it implies fake money (given my present understanding of money, maybe I should rephrase that to money not printed and endorsed by the ruling government... Which is still fake). When I hear 'piracy' I think either 'rum drinking peg leg pillager who's ship flies the jolly-roger' or cracked software / decrypted DVD materials, etc. Yet ACTA is about Counterfeiting according to it's name, and according to all but one of the headlines I could find. The DMCA was about piracy, this is about counterfeiting, because international treaties should use precise language so as to not be mis-interpreted, right?

While I'd like to believe that to be true, it appears to be self-evidently false. And to answer the section title's question: Shakespeare sometimes misspelled his own name and may already have been misrepresented by every publisher to release his material since it was written due to 'words' more closely resembling 'sword'.

So, they slip this under the radar using an 'archaic' linguistic definition which to the common man represents photo-copied money, or fake Gucci purses which is not what this is even about. And we aren't appalled because we did not see the harmful words usually associated with such an agreement nor were we actually told about the agreement to begin with. Where was the press for this multinational agreement? They were not invited. Negotiations were held privately between trade representatives on a government to government basis.

ACTA 3: Fade to Black

So what is the ACTA agreement about then?
note: I have no law degree, but I am at least aware that many terms even as represented under commonly accepted linguistics of a particular era are given a definition when their placement allows a law to be abused or it's scope misinterpreted to cast too wide a net over would be innocent parties.
Article 2.2.1 contains:
In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.
I read that as whatever the plaintiff considers fair, is what the defendant should pay.

Article 2.2.3 is:
At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:
(a) pre-established damages, or
(b) presumptions for determining the amount of damages3 sufficient to compensate the right holder for the harm caused by the infringement, or
(c) at least for copyright, additional damages
I can only find one definition for phonogram
noun /ˈfōnəˌgram/ 
phonograms, plural

    A symbol representing a vocal sound
OK, that makes little sense to me so I do not even know if this is bad... But additional damages already sounds bad, especially since there is no definition as to what is implied under such a vague term. Does 'additional damages' allow the copyright owner's dog to request 'pain-and-suffering' over having to eat 'no-name brand' treats for a month?

Article 2.3.2
Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of such goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.
Authority to destroy or dispose of? 'implements' and 'materials'? Materials makes some sense, the fake DVDs I was selling on ebay though I would still consider it vague... But implements under this scenario could imply:
  • my dvd burner
  • my hard drive
  • my computer
  • my modem
  • my internet connection 
  • ebay
  • the internet
And in the case of ebay, they are both an accomplice and profiteer in my criminal act. And the internet is listed because I could always switch ISPs easily enough... Even if they went so far as creating a 'do not sell internet to' blacklist, there are plenty of available wifi hotspots that are wide open.

Article 2.3.3
The remedies under this article may be carried out at the expense of the infringer.
Without mentioning verdict I am left to believe that my 'stuff' is to be destroyed before a trial has ended and that I am to receive a bill for the cost of destroying my 'stuff' while also attempting to pay legal fees.

Article 2.5.1
1. Each Party shall provide that its judicial authorities shall have the authority to order prompt and effective provisional measures:
(a) against a party, or where appropriate, against a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property rights from occurring, and in particular to prevent infringing goods from entering into the channels of commerce;
(b) to preserve relevant evidence in regard to the alleged infringement.
A - Could somebody elaborate on who this 'third party' (where appropriate) is going to be? Could somebody elaborate on where 'where appropriate' is? Do you mean 'to prevent a future infringement of the intellectual property rights in question from occurring' because what you said is really vague.
B - Yay, my 'stuff' doesn't get immediately vanished at my expense

Article 2.5.2
The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures inaudita altera parte, and to make a decision without undue delay.
Since the definition of inaudita altera parte as per google translate latin --> english is 'unheard-of on the other side', I assume this means the plaintiffs right to a closed proceeding with the judge to determine whether to warn you they are about to bust down the door or not. But I do not know latin, nor legalese so I do not have much I can say to this, sounds scary, but it may not differ much from other standard legal practices... Except that, I am assuming these cases are intended for the Civil courts and not the Criminal courts in which case there should be no reason to bust down the door at all for the 'public good' because my act is not 'harming the general public' and I am not 'a menace to the public safety'

Why do I assume this is meant for Civil court?

Article 2.5.3
In civil judicial proceedings concerning at least copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement and, at least for trademark counterfeiting, documentary evidence, either originals or copies thereof, relevant to the infringement.
???! 'either originals or copies thereof' ????!!!!! Pardon me? Did I really just read that? Aren't copies of originals the very thing that is on trial here... Maybe I am misrepresenting that... It sounds too funny and I have been looking at legalese too long for my brain to work anymore.

Acta 4: Finalé

I have long thought copyright law needed to be rewritten from the ground up. It takes the assumption that words on pages or paint on canvas last an almost indefinite period of time. This is not true of digital media, new formats are released that replace the old, floppy disks used to be the de facto medium for digital data, which have since migrated to CD, DVD, Blue Ray, and Flash Memory. Presently, I do not even own a 3.5" floppy drive and haven't owned a 5 1/4" floppy drive in decades. Top that off with the fact that floppy disks degrade in a decade or in minutes with the proper magnetic field. Much of those 'older' games and software are still protected under copyright law, and as such cannot be 'liberated' from their deteriorating storage medium, lost forever to future generations. The companies that own those will only convert what they see as 'commercially viable' leaving a great void in our digital history which 'piracy' is actually preserving.

Do the media owners care about history? No. Whether or not they sell a product they own under copyright law is irrelevant, it's still piracy. The same is true not only of software, the music, film, and television industries own way more material than we can actually buy. Albums go completely 'out of press'. Movies once available on VHS have never been converted to DVD, and there are plenty of TV Shows that have not become 'syndicated' and relegated to some 'retro' specialty station that are also not available in a box set. This is THE point where I believe something should become 'public domain': if I can't buy it, then how could I possibly be 'stealing' it?

The software industry is not as bad as the movie and music industry in that they can and do joke about it to a degree.
And as long as they're going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.
-- Bill Gates @ a lecture at the University of Washington
Notch (Creator of Minecraft) once tweeted: Just pirate it. If you still like it when you can afford it in the future, buy it then. Also, don't forget to feel bad. ;)
So it's really the music and movie people that don't get it. They have been refusing to adapt to a changing world where consumers can get things without leaving the house and in fairly short time frames. Instead they rely on monopolistic strong arming and mafia-like political ties to try reverting our technological progress back to the 30's through legislation.

The music industry misunderstood this new technology so badly that they sold the entire industry to Apple , it is too late for them now, all they can hope for is that Apple finds some way to bankrupt itself. Keep in mind, this isn't killing music... If anything it opens a new direct sales model directly to artists with a cost far below creating a distribution network for CDs. I don't blame Apple in the least; they capitalized in legal agreement with an industry that wanted to cut off it's nose to spite it's face, they created a legal download vehicle and reduced the consumers cost to a buck a song instead of 15 for 8 songs, 6 of which suck anyway...

One of the biggest points in the Napster revolution was the very fact that now you could download it today for free, realize that the Album is horrible, then if you still felt like supporting the artist at all, you could buy the single. How was that seen by the industry? As theft ...And Lawsuits for All.

SOPA, ACTA, PIPA, OPEN, are all extensions of the same philosophy: we can sue them, we can legislate them away, we can censor them, but we can never learn, grow, or adapt to a 'new technology' because technology is evil... I have no objections to people making money from their works, but those who refuse to adapt to their environment are usually not meant to survive it.


Imitation is the sincerest form of flattery
-- Charles Caleb Colton


  1. All this and I still haven't looked @ OPEN yet...

  2. OK, Maybe I don't need to target OPEN too hard "The OPEN draft was strongly opposed by the Motion Picture Association of America (MPAA)." which suggests that it might not allow the Greedia™ Fat Cats to film and sell my prison raping without my consent...