Leaked ACTA Treaty to Outlaw P2P?

miowpurr writes to tell us that a draft of the ACTA (Anti-Counterfeiting Trade Agreement) has been posted on Wikileaks. Among others, Boing Boing's Cory Doctorow has weighed in on the possible ramifications of this treaty. "Among other things, ACTA will outlaw P2P (even when used to share works that are legally available, like my books), and crack down on things like region-free DVD players. All of this is taking place out of the public eye, presumably with the intention of presenting it as a fait accompli just as the ink is drying on the treaty."

Just as with anything...

[nexuspal]

People will substitute away into another technology that will get around the requirements of the treaty if enacted. It's a nice thought though, isn't it ;-)

If your congress critter is on this list

[merchant_x]

Tell them to stop selling out their constituents.

From TFA
Thank you also to the Members present, who have done so much to advance
    the cause of IP protection, including:
            - Rep. Mary Bono (R-CA)
            - Rep. Bob Goodlatte (R-VA)
            - Rep. Howard Berman (D-CA)
            - Rep. Adam Schiff (D-CA)
            - Rep. Marsha Blackburn (R-TN)

Re:Just as with anything...

[oahazmatt]

It goes further. From the Wikipedia article [wikipedia.org]:

The proposed agreement would allow border officials to search laptops, MP3 players, and cellular phones for copyright-infringing content. It would also impose new cooperation requirements upon internet service providers (ISPs), including perfunctory disclosure of customer information, and restrict the use of online privacy tools. The proposal specifies a plan to encourage developing nations to accept the legal regime.

Re:Guess they don't play WoW...

[Zironic]

They already do, their bittorrent client downloads from peers and an HTTP source at the same time, they might need to upgrade the main server though.

Bad summary.

[kesuki]

I went to wikileaks, read their summary, dled the PDF and read as much of it as i understood, and this document does nothing to 'criminalize' p2p activity. What it does criminalize is...

"For example page three, paragraph one is a "Pirate Bay killer" clause designed to criminalize the non-profit facilitation of unauthorized information exchange on the internet. This clause would also negatively affect transparency and primary source journalism sites such as Wikileaks. "

Basically, not just a pirate bay killer, but a wikileaks killer all rolled in one. Legitimate P2P is completely unaffected. except that there will never be 'open' trackers after this law goes through, in member nations. it's really easy to have a closed tracker, as WOW uses for distributing patches... now if WOW or say, SC2 uses P2P for 'user created content' (custom maps, sprites etc) then they might have to 'kill' those features in a patch, after all you can easily infringe on copyright (especially with custom sprites)

Re:The First Amendment to the Constitution

[sqlrob]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

Problem is, the Constitution doesn't give a ranking for treaties when they're unconstitutional, and it's been treated that they supersede it.

p2p == !DNS

[swm]

Yes, all IP packets are sent from one peer to another.

The defining characteristic of what people call peer-to-peer systems is that the peers find each other without relying on the Domain Name System. A service that relies on the DNS--like a web server--can be shut down by removing its address from the DNS. Wikileaks had a problem like that recently. If you can force everyone to go through the DNS, then the DNS become a single point of control for the entire internet, and you can easily shut down anyone you don't like.

The tricky part is establishing the legal principle that forces everyone to go through the DNS. You have to make it illegal to send a packet to an IP address unless you have obtained that IP address through a DNS lookup. Or something like that...

Re:Canada

[WebCowboy]

I think the implications are not as bad as all that. If it looks like enforcing the treaty would cause undue harm or expense, Canada won't ratify it under such onerous terms.

Remember that though treaties are used by lobbyists to do end-runs around the laws of various countries, treaties cannot escape ratification by signing nations. Ratification still has to be voted on in the commons and given Royal Assent to be put into law before they can be enforced in Canada.

Sometimes that isn't even enough. The Kyoto treaty was ratified, then pretty much ignored by the Liberal government of the time, the Liberal government following it and the present Conservative government.

I don't even think a draconian copyright treaty would even get as far as Kyoto. Canada has been under some degree of pressure for a decade to "update" its copyright law to include DMCA-like provisions. It isn't an issue that resonates with the electorate like the environment, the Industry and Heritage committees have reviewed copyright law ad-nauseum, and copyright reform bills have died on the order paper.

With it being a minority government run by a Conservative party that can only claim to live up to the name by the slimmest of margins as it tries to lure voters with policies scattershot all over the centre and right of the ideological spectrum, and a Liberal party with no principles to speak of and an ineffectual leader yet very eager to dig up all the dirt it can, I cannot see the government stepping up and pushing through a contentious copyright bill that would outlaw all forms of P2P (something even legitimate content providers are toying with, including the CBC--so such a law would even make criminals out of government-owned institutions).

Re:The First Amendment to the Constitution

[Astro Dr Dave]

Article VI, the Supremacy Clause of the Constitution, declares:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [p17] War, would remain in effect. [n31] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. [n32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.

-- Supreme Court majority opinion, Reid v. Covert, 354 U.S. 1, 17 (1956)

Re:If P2P is outlaws

[digitrev]

If P2P is outlaws, then we've got bigger problems on our hands than copyright.

Treaties do NOT trump federal law or Constitution.

[Ungrounded Lightning]

Typical ... Sneak it in the back door via treaties that trump sovereign laws.

Treaties do NOT trump federal law or the Constitution.

When a treaty requires some internal law change to implement its provisions, that can only happen if congress passes such laws. Congress is not obligated to pass such laws or refrain from repealing them. Laws implementing a treaty are just as subject to being struck down as unconstitutional as any other law.

The idea that treaties are a way to effectively amend the Constitution by an easier procedure comes from a common misreading of the "supremacy clause" of the Constitution. What the clause ACTUALLY means is that the Constitution, federal law, and treaties, each trump state/county/local law when they conflict (and the laws or treaties are constitutional).

The supremacy clause from article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.

But see also article III Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

Note how, in both, the treaties are subordinated to the Constitution and how in article III they're also clearly subordinated to federal law.

Re:Typical

[Dragonslicer]

You seem to be under the impression that "terrorists" are a real problem. Why?

Maybe because they kill people and try to intimidate and control through fear those that they don't kill? Just because many politicians have used the term "terrorist" in the same way "communist" was used 50 years ago, with the same anything-goes, mostly ineffective solution, that doesn't mean that terrorism isn't a legitimate problem that needs to be addressed.

Re:Guess they don't play WoW...

[Kjella]

Just to throw up a few numbers I found on that:

From 1960 to 1970 the number of Americans who had tried marijuana had increased from a few hundred thousand to 8,000,000.

US Census 1970: 203,302,031 inhabitants

So a total of less than 4% of the population tried it through the golden hippie years, ever. It's freaking hard to find good data on P2P users, but the pirate bay has over 10 million simultanious users alone. Never mind all the other public BT trackers, private BT trackers and all the other P2P networks. With all due respect, the P2P movement is far bigger than the marijuana movement ever was.