When you put a music producer, a lawyer, an ISP representative and a game developer in a panel and ask them to discuss ACTA –the Anti-Counterfeiting Trade Agreement- you’d expect a heated debate. A fundamental clash between content creators who’d welcome ACTA as a means to fight off piracy and technologists who fear the treaty will end the free flow of information.

But not in Amsterdam.

In a discussion hosted by the Institute of Information Law, University of Amsterdam and the SAE Institute the verdict was unanimous: Stop ACTA.

ACTA is a multinational treaty intended to effectively enforce Intellectual Property Rights (IPR) across borders. The treaty was signed by some 30 countries including the USA, the EU and 22 of its member states, Japan and South Korea. For the treaty to come into force it has to be ratified by at least six of the signatories which none have done so far.


As an introductory question to the discussion about the anti-piracy agreement moderator Ana Ramalho asks the panelists what a pirate actually is.

‘The strict legal definition of a pirate’, says Bindu de Knock, a lawyer at the firm Nautha Dulith, ‘is somebody who infringes IP rights. But the term is used more broadly’.

Samual Colak, former NASA/ESA programmer and currently owner of I'm At Home and Jobbawok, agrees: ‘Originally it referred to an individual who distributed content but in the court case against The Pirate Bay in Sweden the term was extended to anyone who assists in acquiring copyrighted content. Effectively criminalizing the distribution of information.

Douwe Schmidt, a representative of the Internet Service Provider (ISP) Green Host: ‘For us as a hosting provider this question is very annoying. We enable people to up- and download data, to us it’s just bits and bytes. We shouldn’t be able to inspect that data and it is not up to us to judge whether somebody is a pirate’.

Record producer Tom Pearce: ‘Piracy is a music industry term. We always knew how to deal with it. The industry needs to get its act together and make stuff that people actually would like to buy. We’re clinging to the CD age but people don’t want CD’s anymore. The industry still has to figure out how to enter the future. And that’s the problem with ACTA. They want to turn something into a law that doesn’t even exist yet.’

Rami Ismail, owner of Vlambeer Game Studio: ‘A lot of our games get pirated. In some ways that’s not a bad thing. People talk about our games and that adds value. And we profit from the free flow of information as well. Open Software is extremely important to a business like ours. We tinker with stuff that’s already out there. Sometimes that takes us to the edges of what’s legal. But our industry would make a lot less cool stuff if we were all confined to our own little islands again.


De Knock is worried about ACTA because it’s provisions are extremely vague. The treaty itself is not a law and it’s implementation will be through the national laws of the signatories. But there is no way of knowing what these laws will look like because of the document’s inherent vagueness. However, one thing is clear: ACTA will introduce the criminalization of copyright infringement.

‘When you deal with IPR’s you need to strike a balance between civil liberties like freedom of speech and the rights of the copyright holders’, says De Knock. ‘But ACTA does not provide safe guards to keep that balance in place.’

Schmidt: ‘Article 27 sections 1 and 3 [PDF] of the agreement make aiding and abetting an infringement an offense and explicitly state that the business community should be made to effectively address infringements. This could be interpreted in such a way that we as an ISP are responsible and punishable for any infringement occurring on our servers. We would have to inspect all the data on our servers. It would be as if a hotel owner could be held responsible for anything that happened in the hotel rooms. As a protection against liability he'd have to hang camera’s in every room and and have an employee check what the guests are doing. We don’t have the means to monitor our data like that. And we don’t want to. Our clients would leave. Who would check into a hotel like that? We’d go out of business.’

De Knock: ‘ACTA does not guarantee ISP’s do not get this role. It worries me.’

Pearce: ‘It would mean an active monitoring system of all digital communications. It would be impossible to guarantee the people’s right to privacy.’


Pearce: ‘Of course there is a problem with piracy which needs to be addressed.’

Colak: ‘In the past both the consumption of goods and IP laws were national. Now consumption is global but the laws are still national.’

De Knock: ‘There is a need to harmonize IP laws globally. It might be the intention to use ACTA as a roadmap toward that goal but I don’t think it will work. Criminalizing copyright infringement is not the answer. It’s a business problem and you shouldn’t use the law to solve it.’

Pearce: The music industry doesn't need somebody interfering with its business. If we can’t get it together ourselves we don’t have a viable business model.’


De Knock: ‘IP laws were originally created to stimulate innovation. It enabled creators to have a monopoly for a short period of time so they could make some profit. In that sense IP laws don’t work anymore.’

Ismail: ‘That’s blatantly clear if you look at the patent wars. Companies used to innovate to make a profit. Now they just buy up vast sweeps of patents and take each other to court for license fees. They’ve shifted their energy from Research & Development to the legal department.’

Colak: ‘Information technology may be to the detriment of certain business models but they enable others. Artists can communicate directly to their audience. Android enabled creators to be in direct contact with consumers.’

De Knock: ‘ACTA narrows the possibilities for authors to explore new ways of monetizing their work.’

Ismail: ‘What if the monks in the 15th century would have said: “shit, they invented the printing press, we’ll be out of a job. Let’s kill this before it grows.” These laws are used to stifle innovation.’

Schmidt: ‘Acta is dead in the water [read below] but there will be another attempt at regulation. What worries me is the way these people are thinking. They insist on imposing old methods on a new era and they’re destroying the Open Web with their stubbornness. We must look at solutions. The creative commons license, Wikipedia and Kickstarter where people give money before there is even a product.’

ACTA is under heavy fire. In the United States a group of legal scholars have written an open letter to the US Senate arguing that ratification without Congressional approval would be unconstitutional. While in the European Parliament MEP David Martin officially advised against ratifying ACTA causing Commissioner for Digital Agenda Neelie Kroes to suggest that ACTA was dead in the water.

Image: Danielstechblog.wordpress.com