Secret copyright treaty: USA caves on border laptop/phone/MP3 player searches for copyright infringement

Michael Geist writes in with more analysis of the recently leaked draft of ACTA, the Anti-Counterfeiting Trade Agreement, a secret treaty being negotiated among rich countries whose entertainment lobbyists have decided that the United Nations is too open and balanced to be used for future copyright negotiations.

I posted yesterday on the updated Internet chapter in the latest version of ACTA, which features a major change on secondary liability [ed: e.g., holding ISPs and web-sites liable for copyright infringement if they don’t surveil and censor their users] and the U.S. attempt to clawback on recent domestic DMCA changes by arguing against linking circumvention and copyright infringement [ed: that is, the attempt to broaden the reach of the US law that prohibits breaking “copy-protection” even if you’re doing so for reasons that don’t violate copyright, such as loading unauthorized software onto locked mobile devices like iPads].

While there remains a number of issues to be determined in that chapter (and a great deal to be addressed in the other IP enforcement chapters on criminal provisions, civil enforcement, and border measures), the rest of ACTA has largely been decided. As in the Internet chapter, where compromise was needed it was the U.S. that did most of it, as it becomes increasingly apparent that the USTR is willing to agree to almost anything in order to bring home an agreement before the next round of elections in November.

Most interesting is the U.S. decision to cave on border issues. The U.S. had sought a provision requiring that each party shall adopt and maintain appropriate measures that facilitate activities of custom authorities for better identifying and targeting for inspection at its border shipments that could contain pirated goods. The article then specified a range of activities including consultation, information exchange, and a mandatory audit power. Moreover, there was an additional article on information exchange between customs authorities. All of that has been dropped, leaving only a provision where a party may consult with stakeholders or share information.

ACTA’s Enforcement Practices Chapter: Countries Reach Deal as U.S. Caves Again