Dear supporter of the FFII,
over the past 10 years we have been at the forefront of many policy initiatives to prevent more risks for software professionals: Software Patents, IPRED1+2, Data Retention, European Interoperability Framework and many others. Since 2008 we have been following the Anti-Counterfeiting Trade Agreement (ACTA) and sought to bring transparency in the process. Our involvement was partly successful, for instance criminal enforcement was not extended to patents and the Commission released the text of the agreement. However, both process and content are still deeply flawed.
Now ACTA enters a crucial stage. The European Parliament has to decide whether to consent or not. If it does not consent the agreement is void.
Next the Industry, Research and Energy Committee (ITRE) would deliver its opinion on ACTA. On 28 February 2012, 15.00 – 18.30, they will hold an exchange of views:
We invite you to get in touch with ITRE Members:
ITRE Members are quite sensitive to arguments related to industrial policy, research and innovation - and very insensitive to other arguments. Professional media and the Internet spread many claims against ACTA. Unfortunately, not all of them are factual. The FFII has a sound analysis (http://action.ffii.org/acta/Analysis), just like EDRi (http://edri.org/stopacta) and La Quadrature du Net (http://www.laquadrature.net/en/ACTA).
For software innovators the main concerns are:
- damages based on retail price may turn out extremely high,
- intrusive injunctions and provisional measures, including third parties, like software suppliers,
- criminal risks for unspectacular computer use, including "aiding" and "abetting".
We explained that in our Note on the Legal Service’s Opinion on ACTA and our general analysis:
ACTA does not contain a direct obligation to monitor and/or filter Internet use. But the heightened measures do create a political slippery slope for Internet service providers (ISPs) to voluntary monitor and/or filter Internet usage just to stay on the safe side.
Furthermore ACTA Article 27(3) reads: "Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy."
Such "cooperative measures" may appear harmless. On the other hand, businesses have to "effectively address trademark and copyright or related rights infringement". Since their efforts never stop infringements, the measures escalate. While ACTA mentions fundamental rights, it induces privatised enforcement outside the rule of law. Such enforcement services won't safeguard fundamental rights.
Using the existing exceptions on copyright is often essential for digital innovators. These exceptions are not harmonised in the EU yet. Make a fundamental mistake and as an entrepreneur you face heightened civil measures, or even the criminal sanctions intended against organised criminals. An EDRi one pager gets into more details on this:
Governments are not forced to apply ACTA civil sanctions against patent infringements: "A Party may exclude patents and protection of undisclosed information from the scope of this Section." However, the inclusion of patents remains a default position. The European Commission argued it does not want to make a distinction between rights. In that case ACTA's engraved civil measures such as damages based on retail price would extend to patent infringements.
We know it is hardly possible to write code without infringing patents. Stronger measures would give owners of large patent portfolios and patent trolls extra powers while the injustices of software patenting remain unresolved.
How would ACTA add risk to your business or project? What are you working on? Please share your concerns with the Members of the Parliament. Also consider LQDN's recommendation to visit your MEPs office while they are in their home districts this week:
Many of you are capable of sending an email to all Members of Parliament in one go. Please do not try this anymore. MEP assistants get blocked in their work by thousands of uninformative mass mails on ACTA, often in languages not their own. MEPs receive unfriendly emails - please stay polite.
We recommend you to send personalized letters with your professional letter head to MEPs from your own country. Our colleagues from EDRi offer practical advise: http://edri.org/stopacta
ante (at) ffii.org
Foundation for a Free Information Infrastructure e.V.
Malmöer Str. 6
Fax Service: +49-721-509663769
Email: office (at) ffii.org