ACTA for piracy AND file sharers
It is easy to dismiss this proposal as only being intended to fight large scale piracy. However, piracy is to be dealt with through criminal proceedings, it is the other bits that can potentially be applied to us. The interesting bits come at the end, the first two under the heading of Civil enforcement:
- Authority to order ex parte searches and other preliminary measures.
- Damages adequate to compensate, including measures designed to overcome the problem of rights holders not being able to get sufficient compensation due to the difficulty in establishing the full extent of damage.
And the third bit comes under Internet:
- Legal regime, including safeguards for ISPs from liability, to encourage ISPs to co-operate with right holders in the removal of infringing material.
The first means that the criminal justice system will be able to grant warrants to the police to search your possessions solely for the purpose of finding copyright infringing materials. At the moment, the police need to demonstrate reasonable suspicion that you are engaged in criminal piracy to obtain such a warrant.
The second relates to the fact that at the moment the BMI can only sue you to cover the losses from what copyright it can PROVE you have infringed. If you have a collection of The Beatles' back catalogue on your PC, they can only sue you to reclaim the costs of what you should have paid for on CD. Here it suggests that compensation should be paid for a hypothetical amount of copies of those files that you have given other people through P2P. Essentially, the new laws would encourage governments to set minimum levels of 'compensation' for the act of file sharing in general rather than specific acts of file sharing. The BMI would only have to prove that you have used P2P to download a single mp3, and you would count as a file-sharer and so be subject to what is effectively a fine of several thousand pounds. The proposal is designed to criminalise file sharing without actually making file sharing a criminal offence.
The final point is the big one, because it demonstrates that ACTA is not just about large scale piracy, but about civilian file sharing too. At the moment, ISPs could be taken to court themselves for allowing people to file share via their internet service. This proposal protects ISPs from being sued, but only if they comply with the demands of the BMI, RIAA etc. And as we all know, piracy is not the big issue with internet copyright infringement; it's the behaviour of Average Joes they are targeting.
So, the papers are wrong about border searches of your mp3 player – but El Reg is wrong to suggest that individual infringers have nothing to worry about from ACTA.