04 February 2010

EU Official Caught in the ACTA

As more and more people write about the global scandal that is ACTA, a question naturally forms itself: is it worth it? After all, however many times people ask for more transparency, or attempt to probe what exactly is going on and going into ACTA, all we get are the usual fob-offs: maybe it's time to give up?

I don't think so.

In what seems to be a case of constant dripping wearing away the stone, more and more tiny informational breakthroughs are occurring that together are beginning to reveal the bigger picture. Here's the latest one:

An upcoming global trade agreement on copyright and counterfeiting, known as ACTA, will not rewrite EU rules on the liability of internet service providers, a leading European Commission official told EurActiv, denying media reports that suggest otherwise.

Oh, no? So why have we got the wrong impression?

The leading Commission official said media reports were oversimplifying the Anti-Counterfeiting Trade Agreement (ACTA), which wrapped up one stage of a series of negotiations in Mexico last week.

Oh, I *see*: those naughty journalists have been "oversimplifying* things. Mind you, that's quite an achievement, since they are essentially "oversimplifying" nothing, which is more or less what the ACTA negotiators have so far deigned to distribute to hoi polloi.

But then we get a little more detail on why ACTA will not "rewrite EU rules" on ISP liability:

A leaked Commission paper on ACTA in October allegedly showed that negotiators at the global talks were attempting to rewrite current EU rules on the liability of internet service providers (ISPs) for pirated content on their networks.

The official denied those allegations and added that under the EU's eCommerce laws, ISPs can already be held liable for content on their network if they do not meet certain requirements.

For example, if an ISP is defined as a "mere conduit," a carrier of content, then it is not responsible for pirated content if it does not "initiate or modify" it and has no say on where it ends up, the official explained.

Ah-ha: what this reveals is that the reason ACTA won't "rewrite" the rules is because the rules are *already there*, according to this interpretation: ACTA will simply foreground them. It's tacitly admitting that there are latent ACTA-like provisions in the eCommerce laws; the big difference is that ACTA will activate them, so to speak.

In which case we need to look carefully at what exactly those laws say to find out whether that "mere conduit" definition is quite so, er, water-tight as the EU official would have us believe. [Added: more specifically, as Rui Seabra points out on Twitter, "ISPs technically initiate [and] modify many connections."]

If this is new information, as it seems to me, it shows the virtue of pressing ACTA officials again and again, because they often let slip what seem to them to be insignificant information that is actually more important than they realise.

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