What is ACTA? Why Should You Care?

Mashable

The technology community came out in force against SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) before those two bills were shelved last week. With them gone, we can expect tech experts and Internet users to step away from politics. The battle has been won, right? Wrong. There's another fight heating up, and this time it's global.

Meet the Anti-Counterfeiting Trade Agreement, or ACTA.

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ACTA is an international treaty designed to protect intellectual property rights. The agreement was first created by the U.S. and Japan in 2006, and Australia, Canada, Morocco, New Zealand, Singapore and South Korea signed on last year. Whereas SOPA and PIPA were proposed bills in the U.S. House and Senate respectively, ACTA is a plurilateral treaty between the countries that sign on to the agreement.

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One of ACTA's primary goals is the prevention of copyright theft on the Internet. The treaty operates outside already existing international bodies, such as the Union Nations (UN) or World Trade Organization (WTO). By signing on to the agreement, countries are agreeing to work with one another on issues of counterfeiting and copyright theft.

While SOPA and PIPA have been relegated to the dustbins of the U.S. Congress, ACTA is gaining life.

Thursday, the European Union (and 22 of its member states) signed on to ACTA. More EU states are expected to sign ACTA once such the treaty clears those countries' own internal political systems.

In the U.S. ACTA is being considered an "executive agreement," not a "treaty." When signing a treaty, the president must get at least two-thirds of the Senate's approval. With executive agreements, the president is allowed to bypass the Senate completely.

Some, including Sen. Ron Wyden (D-OR), have raised questions about that decision's constitutionality.

"It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law," wrote Wyden in October of last year. "But regardless of whether the agreement requires changes in U.S. law, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval."

And once again, the tech community has been coalescing around its opposition to what it views as a threat to a free and open Internet.

Controversy began even before the treaty started gaining signatories. The treaty only gained public notoriety after Wikileaks published a leaked discussion paper. After repeated failed attempts by numerous groups to request the text of the treaty, the countries negotiating ACTA released a working draft in 2010. Many accused the ACTA negotiation process of being too shady and closed-off to the public.

After Poland announced last week that it would be signing ACTA, a handful of official Polish government websites were disrupted by Distributed Denial of Service (DDoS) attacks. And as happened last week in the U.S. with regards to SOPA, Polish citizens unhappy with ACTA took to the streets to protest the treaty.

According to the Electronic Frontier Foundation, a non-profit organization that aims to protect free speech online, "ACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties for innovation and the free flow of information on the Internet legitimate commerce and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development."

What are those "several features," exactly? First, ACTA would call for Internet Service Providers (ISPs) to provide copyright holders with information about users accused of illegally hosting protected content. Second, the treaty would set up an international body that could make amendments to the treaty. Neither the public nor domestic court systems can review that body, although representatives from relevant industries can make "consolatory inputs."

Beyond that, the treaty's language gets more vague. For example:

"5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law."

What does "adequate legal protection and effective legal remedies" mean? That's up to the countries that sign the treaty to decide.

Some are calling ACTA a way for copyright holders to get around the legislative process after failing to pass SOPA and PIPA:

"ACTA should not be a back door to the legislative process to enact the same requirements US citizens just overwhelmingly opposed," says Harvey Anderson, general counsel for software company Mozilla. "We expect that the principles outlined by the White House related to combatting online piracy by foreign websites extend to any future efforts to ratify ACTA. We call on the Administration and Congress to release the full details of ACTA to ensure it won't censor lawful activity, inhibit innovation, create new cybersecurity risks nor disrupt the underlying architecture of the Internet."

The treaty does, however, include language designed to protect legitimate online commerce and free speech:

. . .These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.

If you'd like to dig into ACTA yourself, you can find the full text of the treaty here.

Do you think ACTA is a fair approach to protecting intellectual property, or are you worried about its impact on free speech and innovation on the Internet? Sound off in the comments below.

Image courtesy of iStockphoto, PashaIgnatov

This story originally published on Mashable here.

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