Another reason for ACTA caution: U.S. rightsholders as government pawns

Summary:ACTA negotiations are coming to a close, but even without it, nothing prevents repressive governments from seizing dissident computers on the pretext of infringement on U.S. copyrights. Do we really need to amplify opportunities for abuse?

Will ACTA lead to more computer seizures?

Last Sunday, Clifford Levy in the New York Times published a disturbing and eye-opening account of selective crackdowns by the Russian government against alleged pirates of Microsoft products who also happened to be vocal environmental activists. The day after the story's publication, Microsoft changed its policy, stating (as reported again by Mr. Levy) that it will now "provid[e] a blanket software license to advocacy groups and media outlets," so that there will be no question about whether certain computers are running licensed software or not. Though they will "be automatically covered by it, without having to apply," I'm wondering what exactly will qualify as an "advocacy group" or "media outlet," and how and when those determinations will be made -- e.g., before, or after, a seizure has occurred?

This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner. Participation in ACTA is voluntary, and not tied to membership in the WTO, WIPO, G8, etc. As Canadian law professor Michael Geist points out, ACTA will effectively

export tougher enforcement measures -- often to countries where free speech is not a given -- without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.

As if ACTA weren't already objectionable enough, Mr. Levy's reporting demonstrates how governments may turn an invitation to help rightsholders into an opportunity to help themselves.

Further reading:

David Gewirtz, Are Microsoft lawyers partying with Putin to harass Russian rebels?

Darren Pauli, ISPs could be freed from liability over user copyright abuses

Nate Anderson, European Parliament passes anti-ACTA declaration

Mike Masnick, And, Of Course, ACTA Leaks: Some Good, Plenty Of Bad, and How Can Border Patrol Know Whether Music On Your iPod Is Infringing?

(Image by speedesign, CC Attribution-2.0)

Topics: Microsoft

About

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. For further details please see her professional background and speaking schedule. Denise's career is characterized by her passionate engagement in intell... Full Bio

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