GeekSpazzTruth: Secret Global Copyright Treaty leaked!

Via BoingBoing
by Cory Doctorow

Secret copyright treaty leaks. It's bad. Very bad.
The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama's administration refused to disclose due to "national security" concerns, has leaked. It's bad. It says:

• * That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.
  
• * That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet -- and hence to civic participation, health information, education, communications, and their means of earning a living -- if one member is accused of copyright infringement, without access to a trial or counsel.
  
• * That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
  
• * Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

The ACTA Internet Chapter: Putting the Pieces Together

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via Michael Geist

The ACTA Internet Chapter: Putting the Pieces Together
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Tuesday November 03, 2009
The Anti-Counterfeiting Trade Agreement negotations continue in a few hours as Seoul, Korea plays host to the latest round of talks. The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement. The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

If accurate (and these provisions are consistent with the U.S. approach for the past few years in bilateral trade negotations) the combined effect of these provisions would to be to dramatically reshape Canadian copyright law and to eliminate sovereign choice on domestic copyright policy. Having just concluded a national copyright consultation, these issues were at the heart of thousands of submissions. If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely what U.S. lobbyists have said they would like to see happen). In other words, the very notion of a made-in-Canada approach to copyright would be gone.

The Internet chapter raises two additional issues. On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions. On the domestic front, it raises serious questions about the Canadian negotiation mandate. Negotations from Foreign Affairs are typically constrained by either domestic law, a bill before the House of Commons, or the negotiation mandate letter. Since these provisions dramatically exceed current Canadian law and are not found in any bill presently before the House, Canadians should be asking whether the negotiation mandate letter has envisioned such dramatic changes to domestic copyright law. When combined with the other chapters that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and mandatory disclosure of personal information requirements, it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.

Update: Further coverage from IDG and Numerama.

Update II: InternetNZ issues a press release expressing alarm, while EFF says the leaks "confirm everything that we feared about the secret ACTA negotiations." Electronic Frontiers Australia provides an Australian perspective on the ACTA dangers.

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Leaked ACTA Internet Provisions: Three Strikes and a Global DMCA
Commentary by Gwen Hinze
 

Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement start in a few hours in Seoul, South Korea. This week’s closed negotiations will focus on “enforcement in the digital environment.” Negotiators will be discussing the Internet provisions drafted by the US government. No text has been officially released but as Professor Michael Geist and IDG are reporting, leaks have surfaced. The leaks confirm everything that we feared about the secret ACTA negotiations. The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

As expected, the Internet provisions will go beyond existing international treaty obligations and follow the language of Article 18.10.30 of the recent U.S. – South Korea Free Trade Agreement. We see three points of concern.

First, according to the leaks, ACTA member countries will be required to provide for third-party (Internet Intermediary) liability. This is not required by any of the major international IP treaties – not by the 1994 Trade Related Aspects of IP agreement, nor the WIPO Copyright and WIPO Performances and Phonograms Treaty. However, US copyright owners have long sought this. (For instance, see page 19 of the Industry Functional Advisory Committee report on the 2003 US- Singapore Free Trade Agreement noting the need for introducing a system of ISP liability). (Previously available at http://www.ustr.gov/new/fta/Singapore/advisor_reports.htm.)

Second and more importantly, ACTA will include some limitations on Internet Intermediary liability. Many ACTA negotiating countries already have these regimes in place: the US, EU, Australia, Japan, South Korea. To get the benefit of the ACTA safe harbors, Internet intermediaries will need to follow notice and takedown regimes, and put in place policies to deter unauthorized storage and transmission of allegedly copyright infringing content.

However, contrary to current US law and practice, the US text apparently conditions the safe harbors on Internet intermediaries adopting a Graduated Response or Three Strikes policy. IDG reports that:
“The U.S. wants ACTA to force ISPs to "put in place policies to deter unauthorized storage and transmission of IP infringing content (for example clauses in customers' contracts allowing a graduated response)," according to the [leaked European] Commission memo.”

Let’s reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP “best practice” in 2005. Indeed, the MPAAand the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US’s major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.

How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen.

The safe harbors in the US Copyright law require ISPs to adopt and reasonably implement a policy for termination of “repeat infringers” “in appropriate circumstances”. US law currently gives ISPs considerable flexibility to determine what are “appropriate circumstances” justifying the termination of a customer’s Internet account. If the leak reports are correct, this would no longer be true. Instead, ISPs would be required to automatically terminate a customer upon a rightsholders’ repeat allegation of copyright infringement at a particular IP address. Could the USTR be relying on the somewhat specious distinction between a Three Strikes law, and its implementation by a policy adopted by ISPs as part of a gun-to-the-head self regulation regime?

According to IDG, the leaked European Commission memo also states that the US Internet chapter is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet freedom on the other)."

That’s hardly surprising, given that the ACTA text appears to leave the door open for major changes to the existing national Internet intermediary liability regimes that have been the global status quo since the mid 1990s, and which have underpinned both tremendous Internet innovation, and citizens’ online freedom of expression and the rich world of user generated content that we take for granted today.
European citizens should also be concerned and indignant. As reported, the ACTA Internet provisions would also appear to be inconsistent with the EU eCommerce Directive and existing national law, as Joe McNamee, the European Affairs Coordinator of EDRi notes:

"The Commission appears to be opening up ISPs to third party liability, even though the European Parliament has expressly said this mustn't happen," McNamee said, adding that ACTA looks likely to erode European citizens' civil liberties.”

Last, but by no means least. ACTA signatories will be required to adopt both civil and criminal legal sanctions for copyright owners’ technological protection measures, in line with the US-Korea (and previous) FTA obligations. They will also be required to include a ban on the act of circumvention of technological protection measures, and a ban on the manufacture, import and distribution of circumvention tools. This will reduce the flexibility otherwise available to countries drafting these sort of laws under the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. The majority of WIPO’s Member States rejected the circumvention device ban sought by the US delegation in the draft Basic Proposal for the 1996 WIPO Copyright Treaty. Because ACTA is intended to create new global international IP enforcement standards, including these provisions will allow US negotiators to achieve what they have not been able to do to date – ensuring that the US’s overbroad implementation of the WIPO Internet Treaty TPM obligations becomes the global standard.

This should give all citizens - and the ACTA countries negotiating in their names - pause for thought.
Also great coverage of what this means for other countries: Cory Doctorow at Boing Boing; Michael Geist (Canada); Kim Weatherall at LawFont here and here and Electronic Frontiers Australia (Australia); and InternetNZ (New Zealand).

Related Issues: Anti-Counterfeiting Trade Agreement

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GeekSpazzTruth - The U.S. Constitution and Game Development - The Framers Were Gamers

Compare and Contrast: The U.S. Constitution and Game Development
via Gamepolitics.com

Our friends over at Gamasutra have developed an Expert Blogs area of their site, whereby they host guest blogs penned by game development executives on an invitation-only basis. While many of the article are, as you might imagine, technical in nature, Eric Hardman's "The Framers Were Gamers" is a very insightful and GP-relevant piece. It explores how the Founding Fathers came to consensus much like game development teams do. There are some thought-provoking parallels and comparisons worth checking out.

The Framers Were Gamers
by Eric Hardman on Gamesutra

Today is Constitution Day here in the States, when we annually memorialize the signing of the US Constitution in 1787, and the birth date of one of my favorite game design documents.
The US Constitution is interesting as a game design document, but certain disclaimers are warranted before heading too far down that path: governance is serious business, where games are mostly entertainment; the structures of the document deal with real life and death matters, basic issues of human dignity, and the social contract while games only try to simulate life and death dramatically. Not to say that there aren't serious games and silly governments, too, but that is not our focus here.
There have been many comparisons made between the business of politics and the playing of games. In fact, some pretty good games have been made incorporating politics directly, like the Civilization series and Total War series. A real-life example would include the fierce interactions of agents and diplomats during the years leading up to the First World War, referred to then as The Great Game.
So, even real politicians and practitioners may look at their profession as a game, or competition. Conversely, who can deny that personalities and agendas form a major part of the interactions of guilds in MMOs and clans in competitive games? Politics begin with any community of 3 or more.
If there's one thing the framers of the constitution understood, it was organizing communities. If there's a second thing, it was game balancing. Overall, there are some interesting ideas that game designers might learn and resonate with in both the process of the Constitutional Convention, and the actual product they signed on this day in 1787.

The Process

In looking at the group of people assembled, and their methods of working together, it is surprisingly similar to the game development process itself. A wide variety of ages, professions, education, wealth and even intelligence were represented - this was a multidisciplinary team. They self-organized around a high level set of goals set by mostly quiet leadership in the form of George Washington and Benjamin Franklin.
One brilliant young producer, I mean political philosopher, James Madison, kick started the convention with a well thought-out creative brief. Erm, draft constitution. This was absorbed by the attendees and compared to other constitutions, counter proposed, and thoroughly disparaged. However, a working prototype soon emerged and they settled on the core mechanic almost immediately: power from the people, democracy. In short, they found their fun!
From that point there were many iterations, breakout committees, heartbreaking compromises, stands of principle, and hours of grueling detail work. Not surprisingly, there were sometimes bitter differences, walk outs, new arrivals, and genuine philosophical disagreements. Sounds like every project, right?
In the end they had a product they could live with, and were willing to sign. Now all they had to do was go sell it. But that's another story, maybe best saved for the anniversary of the Federalist Papers, if that even exists.
Ultimately, however, the process of the Constitutional Convention only confirms the way developers work, it doesn't necessarily bring new insights. Happily, the product itself does.

The Product

The Constitution itself is the shortest and oldest written constitution in the world. That it still enjoys an active player base is a testament to it's core design, and the fact that it has spawned an entire genre of similarly structured documents suggests it is, or has been, widely admired. How can something so brief, just 4 pages long, inspire such longevity and malleability?
One reason is that it is well balanced, and designed to be multiplayer from the get-go. The framers wisely set up factions that would counterbalance each other, not with simple rock-paper-scissors mechanics, but with deeply structural power separations that not only counter, but rely on each other.
For instance, the legislature creates laws, the legal interprets them, and the executive enforces them. The twist is that the executive also appoints the leadership of the courts! The legislature can impeach the executive! The courts can overturn the legislature! The lawmakers approve the court nominees! In short, the factions have more than simple countermeasures, but can also affect the powers, in the form of personalities, their adversaries are entitled to.
Did I say adversaries? Aren't we all on the same team, here?! Well, yes and no. On a very high level, this is a competitive game to serve the interests of one nation over others. So it's meta-team based PVP. But, that is accomplished through an elaborate co-op system with it's own internal PVP, the balance of powers, as mentioned above. This is something I've seen barely hinted at in most games.
One example would be guilds in MMOs. Some of them offer a primitive kind of political mechanic, the voting of officers in Star Wars Galaxies comes easily to mind. But this is the most basic kind of competition, could the structures of guilds be more competitive, while remaining essentially co-op? What types of mechanics could be developed to encourage more robust interactions?
Beyond the complex nested competitive/co-op/competitive structure, the Constitution has also been very successful at allowing emergent gameplay. On that level, it's a sandbox. For instance, it originally included no Bill of Rights, though that was quickly amended. But, you'll find no reference to political parties or the press -- two major factions we'd have a hard time imagining the country without today. Not only did certain types of new "play" emerge, but the document provides for it's own inevitible evolution; the players can change the rules!
Imagine that, giving the players structures to allow them to actually change the rules of the game while they are playing? To the framers, this was known as "the genius of the people." How many game developers believe in the genius of their players?  Can I get a Hell Ya? Anyone? Rrriiiight....

The Purpose

My purpose here is not to suggest that game development rises to the level of government development, nor to pretend to be an expert on the Constitution or law, nor to espouse any political views.
While I have done some humble research for this, please take it as an interesting (hopefully) launching point for expanded thinking about communities and their interactions in games. This is a topic that will only grow in importance to our business, and maybe there is some small good that can come of looking at how the real pros have gone about it in the past. 
Happy Birthday, Constitution! Love ya...

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