proclus: #ACTA notes - #drm #dmca #coica #music #downloads #technology

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October 8, 2010

 

proclus: #ACTA notes - #drm #dmca #coica #music #downloads #technology

Activists may wish to go straight to Section 5, which deals with digital enforcement and explicitly stipulates that the provisions preserve fundamental principles, such as free speech rights.  A caveat would be that these stipulations are not present in the first part of the document, which deals primarily with non-digital property.  Section 5 is about the restriction of access to knowledge.
The treaty uses a peculiar term which I have not encountered before, fair process.  This principle appears to be similar to fair use, but it is best thought of in another way.  For example, If I put your logo on the top of a document, I am free to list the reasons why I don't like your organization under the logo as long as I don't say the communication is from you.  That is my understanding of fair process, which is essentially the clear right to use your logo as a designator to make comments, comparisons to competitors and so forth.  If this is not a correct conception of fair process, then someone please clue me.
As I noted previously with respect to the onerous COICA legistlation, it is far too tempting for corporations to use trademark enforcement to quell unfavorable expression, and they should NOT be encouraged to do so.  This is a MAJOR problem with ACTA as well, and the trademark provisions are among the most controversial perhaps for this reason.
It is no surprise to see such stipulations of basic rights spelled out explicitly in the digital enforcement section, because such provisions are often so problematic.  For example, ACTA says effectively in this section that governments shall promote the adoption of DRM by corporations. It is simply a contradiction in terms to promote DRM at the same time as free speech, fair use, and privacy rights, which are basic principles and protected liberties.   The fact that people don't seem to see this contradiction is a huge problem which transcends the ACTA treaty.
The fallacy that DRM is compatible with fundamental rights is what makes ACTA so onerous, and this fallacy blooms full in the anti-circumvention provisions.  They are legal sophistry and an offence to basic liberties, while at the same time claiming to support such liberties.  It is the same problem with the DMCA.  Saying that you support free speech, fair use, and privacy is different than actually supporting them, and neglect of this fact has led to many problems.  There will be more and more problems until the DRM fallacy is recognized.  DRM and liberty are incompatible, and the anti-circumvention provisions of ACTA make this OBVIOUS.  Attempts to enforce such provisions constitute an illegitimate authority.
In the case of ACTA, sections subsequent to section 5 are tainted with this fallacy and illegitimate notion of authority which violates the very basic principles that it claims to uphold.  It is really quite a power grab.  As such, the document is very troubling indeed, and will no doubt continue to receive vociferous opposition.  Although the problems with trademark infringement are troubling, in actuality, the document is deeply flawed. If the ACTA treaty is ratified, I am predicting that many parties will withdraw from it. 
Regards,
proclus
http://www.gnu-darwin.org/