Documents have emerged from the European Commission that give a glimpse of the planned crackdown on online freedoms of speech post-ACTA. We’re seeing entirely new mechanisms and means of squelching dissent, mechanisms and means against pretty much anything online.
A European Commissioner responsible for the governing of 500 million people who refers to his constituents as “consumers” and describes complying at legal gunpoint as “cooperation” is just a small taste of the newspeak in the documents we find here, documents that are intended for the post-ACTA timeframe. Oh, and he doesn’t rule out shutting down your income streams either. It is not hard to see where this particular mindset comes from – and no, it is certainly not Locke’s ideas of a constitutional government or anything similarly responsible. It’s filled to the brim with terms we would otherwise only see in reports from the copyright industry lobby.
The first document is named “Proposal for a Revision of the Directive of Intellectual Property [sic] Rights”, and the second document is named “Notice and Takedown procedures”, refering to eroding the common carrier status of the ISPs (the European mere conduit).
Let’s take a look at what these documents say in more detail, and translate it from the dangerously newspeak legalese. Here’s what the first document outlines as policy roadmap in the post-ACTA timeframe:
The policy options being considered include: (a) rendering the rules on obtaining evidence from intermediaries more detailed thus making possible the identification of those infringing intellectual property rights on a commercial scale and of the financial circuits involved.
Yeah, this is a lock-in of what was voluntary in IPRED1: giving the copyright monopoly cartels the subscriber identities of IP addresses accused of infringing the monopolies, something the police can’t even legally get in most European countries (including Sweden).
Yes, this specifically means that the copyright industries get more far-reaching powers than the Police.
But do note the ACTA/TRIPS keyword “commercial scale” being used. Also, note that “financial circuits” are being mixed into the things that must be identified by an ISP. This can refer to any income stream.
This would be particularly important to fight IPR infringement in the on-line environment.
Yeah, the Net is a problem. Again. Everything was better the way it used to be.
This would also require a clearer definition of “commercial scale”, so as to make sure that professional counterfeiters rather than individual consumers are targeted;
Here, we note three things:
First, this small part sounds good in substance. Today, uploading of a single music track by a random teenager is deliberately seen as targetable and targeted (refer to the US Cables on the matter of IPRED1, for instance). At the end of the day, though, I would be careful to draw the conclusion that individual citizens wouldn’t be targeted – especially since the rest of this roadmap specifies the means and methods for doing exactly that (for instance, with the IP Address subscriber data we just read about).
Second, the ACTA keyword “commercial scale” is used. However, this might just as well refer to the old TRIPS definition of “commercial scale”. It is impossible to know if ACTA redefines “commercial scale” in any meaningful way, as the negotiation protocols are still secret.
Third, having said that, the overall thought pattern here is thoroughly alarming. The European Commissioner refers to his constitutents using the word consumers. That is not a mindset I want to see in any policymaking.
(b) fast-track lowcost civil procedures (including as regards the granting of injunctions, the award of damages, the use of corrective measures etc) for straightforward infringements of intellectual property rights
Whoah, whoah. A whole lot of bad things here.
Fast-track, low-cost civil procedures: Civil procedures means “lawsuits against ordinary people”. Fast-track means “without delays caused by due process of law and exercising of rights”. Low-cost means “preferably in bulk”.
Including…: Granting of injunctions means “cutting of net access before a trial takes place, one way or the other”. Award of damages, well, we know about that one all too well. Use of corrective measures can be many things, but specifically includes destroying goods used for infringement.
and (c) the possibility to act against webpages holding content that violates intellectual property rights (see in this regard the Roadmap regarding the initiative on procedures for notifying and acting on illegal online content).
Ah, so we’re talking about censoring entire websites as well. The roadmap referred is appropriately named “Notice and Takedown”.
These policy options would require the amendment of the existing directive.
Ah, so this is indeed a resurrection of the horrible but previously killed IPRED2 – only much worse than the original IPRED2.
Complementary measures in softlaw instruments designed at disrupting the business/value chain of counterfeiters and at increasing the cooperation between intellectual property rights holders and intermediaries (e.g. internet service providers, shippers and couriers, payment-service providers etc) could not be excluded
Whoah! Whoah! Hold your horses!
First, the newspeak here causes my bullshit bingo cards to spontaneously explode. To begin with, let’s highlight the word cooperation. In normal speak, cooperation is an action of mutual consent and mutual gain. Here, there is no such thing as mutual consent or reciprocity; the Commissar^H^Hioner tries to force “cooperation” where one part gains and the other loses massively at legal gunpoint – specifically, internet service providers are ordered to bend over for the copyright industry. All in the spirit of, eh, “cooperation”.
In other words, ISPs are going to be forced to police the net in some fashion, going against its users and customers – all spun in the language of the positive resulting worldview of the copyright monopoly cartel.
But there’s more. Did you notice “payment service providers”? This is the first time I’ve seen credit card companies and similar being threatened with “cooperation” with the copyright industry in a European context. If you’re thinking of SOPA, you’re drawing the right parallels here.
Other measures aiming at promoting the legal offer could also be envisaged.
“Other measures” have previously included sending political propaganda to schools promoting the copyright monopoly. It could be pretty much anything, it leaves the door wide open.
All in all, this is a completely horrible document that shows how the European Commission prepares to legislate post-ACTA. The proposals above have already entered the legislative process and will result in a real legislative proposal. We need to stay more vigilant than ever.
The second document, the one about Notice and Takedown procedures, doesn’t contain much of real substance (yet). However, it should be noted that it specifically mentions caching. Just like TPP, it may therefore try to regulate technical caching in the infrastructure with regards to the copyright monopoly, which would be… quite insane, frankly. But we don’t know yet; it just mentions caching in passing, which is cause enough for alarm.
See also La Quadrature du Net‘s press release on who’s who in this game.
You might also be interested in this: http://www.cleanitproject.eu/index.html
“Fighting the illegal use of the internet”
Deeper in the documents this transforms into “illegal and unwanted use”. What makes CleanIT interesting is that the methods and measures suggested are almost the same as you are writing about in your text, softlaw approach and the co-operation being common terms.
Guess what: they have withdrawn their first draft from last November. You’ll find the contents here: http://pastebin.com/ZnawRkVC
Fantastic article, well put together and gets the point across. Easy to read. Will definately be showing this to my friends.
Thank You Rick.
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Are these leaked documents? They seem to readily available from the EU homepage.
They’re not leaked in terms of having been secret – but I can’t for my life imagine that the Commission intended these to get any kind of attention.
“Ah, so this is indeed a resurrection of the horrible but previously killed IPRED2 – only much worse than the original IPRED2.”
I thought this was IPRED2:
http://ec.europa.eu/taxation_customs/customs/customs_controls/counterfeit_piracy/legislation/index_en.htm
In IPRED(1), criminal measures where dropped and only civil measures where eventually passed, in the above IPRED2, the dropped criminal measures have been resurrected.
Here’s another article on revisions to IPRED (ergo, IPRED2):
http://www.futureofcopyright.com/home/blog-post/2012/02/06/ec-presents-roadmap-on-the-revision-of-the-ipr-enforcement-directive-1.html
and the roadmap for the above:
http://ec.europa.eu/governance/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf
Can you confirm, or am I barking up the wrong tree?
(also, have a look at my WorldPress blog to more IPR related legislation I have found, such as the
I think that civil procedures doesnt mean procedures against ordinary people here, I think it means a type of procedure under civil law – To be distinguished from criminal procedures. (i am a lawyer, but not english though, so i may not be right after all)
While you are technically correct, that it is civil proceedings as opposed to criminal proceedings, one needs to take the background of the roadmap into account. The civil proceedings that stand in contrast with the public’s perception of justice on this topic – against who have those been aimed?
Without exception, ordinary parents and teenagers.
And en masse, at that.
The short gist is this:
In criminal law procedure you have a whole slew of legal protections and safeguards built in – you need to prove guilt, the crime must be of a certain degree, the body of evidence must be flawlessly collated and verifiable. It’s in fact very hard to prosecute someone under criminal law which is good – no one should be able to send another person to the slammer simply by pointing a finger.
Civil procedures sidestep much of this as a civil procedure only calls the state in as an arbiter. There are very few safeguards regarding what can and cannot be brought before the judge. Additionally, it is far easier to change the routines on how a civil procedure works than it is to change the routine for a criminal law procedure.
What the document basically says outright iswhat rick interprets it as – i.e. “We need to make it easier for vested interests to sue people in bulk”.
And we’ve can already surmise by the wording that one of the things which will have to go or be critically circumvented is “burden of proof”. Basically, as with IPRED1, instead of the prosecution building a case against you, you have to build a case proving you are innocent.
Unless guilt is presumed at the moment of accusation I see no real way to “expedite” civil procedures brought against individuals.
That this document was found so readily indicates that the commission still hasn’t understood – that the old ways of bureaucratic obfuscation (burying the relevant document in droves of other very dull material) doesn’t work on the internet as there will always be someone with the tenacity to find it and pull it into the open.
I really need to find a WordPress plugin that lets people +1 comments.
Hi I want to learn more about the abuse of copyright laws and particularly how the Pirate Party proposes to fix things. I’ve read a number of articles on the site but I still feel I am incredibly ill-equiped for when I have to mount an argument.
Can anyone recommend me a book that will get me a much more solid understanding?
Many thanks,
Aaeru
That depends on what sort of book you want. I would advise anyone interested in copyright to read up on Cory Doctorow. His books are mainly fiction but he’s written a great many articles on the subject and as far as I’ve know, everything he’s written is freely available under creative commons.
You might also want to check “The Long Tail” by Chris Anderson regarding how economy might look in the future.
As for copyright debates, check out the creative commons web site. There is a good deal of information there also.
The best book on this topic out there is definitely Free Culture by Lawrence Lessig. It’s available online under Creative Commons licence.
Some of us aren’t shocked by this in the sense, we didn’t see that coming, but are shocked that its even got this far. We have become complaisant and out of touch with our governments, taken our freedoms for granted (not that we shouldn’t), and quite frankly have been put in a position of “survive mode” instead of thrive. When we thrive we innovate, when we strive to survive our circle of thought is restricted to every day concerns and can rarely think out side of this little box.
I just hope the tipping point between having nothing left to loose won’t be to late. If we don’t fight the fight of our lives with these corporate giants (including government) we will have nothing left.
Please sign my petition:
http://www.change.org/petitions/united-states-trade-representatives-freedom-of-information-office-to-make-the-suporting-text-of-the-acta-public
[…] […]
[…] addition to all of this, Rick Falkvinge reports on his blog that new documents (1, 2) emerged from the European Commission that outline post-ACTA repression. These documents, once translated from the legalese, sound like something thought up in a […]
[…] of the Directive of Intellectual Property Rights” (pdf) they are already planing to bring in harsher copyright enforcement of precisely the kind that ACTA tries to establish as a benchmark. In other words, it's the usual […]
[…] why so many essential documents are still being kept secret and what is hidden in them. Perhaps the documents recently coming available from the EC website reveal a portion of what ACTA will mean should it get implemented. You are also left wondering how it is […]
[…] {5} http://falkvinge.net/2012/02/08/planned-post-acta-repression-in-european-union-the-documents/ […]
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[…] Rick Falkvinge weist in einem aktuellen Artikel darauf hin, dass die EU Kommission Umsetzung von Maßnahmen vorbereitet, die laut ACTA-Infoblatt […]