The new anti-piracy flashpoint

SOPA and PIPA may have been derailed but the Anti-Counterfeiting Trade Agreement (ACTA) legislation currently being mulled in Europe might be just as bad, if not worse.

The recent protests against US bills PIPA and SOPA resulted in a victory for cyber-activism after the bills were shelved (for now). Now a new target is attracting controversy among the mobilised masses: ACTA.

The Anti-Counterfeiting Trade Agreement is a multilateral agreement establishing rules to tackle piracy and counterfeiting on a global level.

In secret negotiation since 2008, ACTA hit the headlines recently when 22 of the 27 EU Member States signed it. Many high profile protests have followed since.

The European Parliament's lead negotiator for ACTA, Kader Arif, left his post stating, "ACTA goes too far", Polish opposition politicians donned Anonymous-like Guy Fawkes masks in parliament, and there have been protests across Europe.

Clearly ACTA is controversial, but why is there so much resentment?

That’s not an easy question to answer; this is a pretty complex debate.

On one side the European Commission released "10 Myths about ACTA" which has been criticised by digital activist group La Quadrature du Net for masking the real dangers and being overly "pro-ACTA".

On the other side, Ars Technica reported on the myths being spread by "anti-ACTA" activists.

Waters are further muddied by the recirculation of old versions of the text. Many of ACTA's most controversial elements were removed back in 2010. These included demanding implementation of 'three strikes' disconnection regimes and digital rights management (DRM) systems.

The current incarnation of the legislation is far from harmless; it's just not as bad as it was and there are many sources doing a great job of debunking myths, like the European Digital Rights' ACTA factsheet and FAQ.

Here are just a few of the many reasons why ACTA, in its current form, is controversial.

Criminal Sanctions - ACTA asks for criminal sanctions to be applied to piracy issues at a global level, often with a low threshold for breaking the law. Two such examples are broad and unclearly drafted terms like "deriving indirect economic advantage" or "aiding and abetting" in the spread of pirated material.

Enforcement - ACTA requires countries to enforce its rules by "cooperation with companies". Wide discretion may create great variations in how heavy-handed or modest the enforcement will be.

It is global/multilateral - it applies standards negotiated by heavy lobbying in the US to all signatories. If it passes it will be international law and hard (if not impossible) to get repealed.

Negotiated in secret - ACTA's negotiation makes a mockery of accountability and democracy in multilateral law making, especially by not involving civil society.

There are also significant global impacts on public health and generic drugs, and competition rules too.

ACTA is a complicated beast but the legislation has to get past the European Parliament in June this year, so it’s not too late for public pressure to derail the process.

Plus, it's all or nothing with ACTA as no renegotiation of the text is possible at this late stage. You never know, Democracy might still win the day yet.

Lachlan Urquhart is a legal academic from Edinburgh, Scotland who has completed an LL.B at the University of Edinburgh and recently concluded a postgraduate LL.M in Information Technology and Telecommunications Law at the University of Strathclyde.

You can more read more of his articles here. This article was first published at the Sophos Naked Security blog.

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