Cyberion, at Tazzu, posted a link to the Vancouver Province story on the threatened border checks (ACTA) on the legitimacy of electronic media. (Cyberion’s post)
I had some rather strong feelings, and ranted the following:
This is one of the nastiest and most frivolous pieces of legislation I’ve heard about in a long time. If it were used to gather evidence against commercial pirates or others who make their living off contraband, I could maybe (and I say that stretching my “maybe” like a yoga pose) see it as legit, but really it feels like another latex gloved finger of the RIAA/MPAA coalition. Where are the civil libertarians? ACLU, EFF, etc.? I know Prof. Geist is opposed, but is his the only loud voice? This could do to U.S. tourism what a strong $CDN has done to ours; it gives people a reason to stay home. What will be the criteria for detention? A predominance of unlicensed material, or just any possibility of an inadequate license (e.g. a shareware version of CuteFTP downloaded in the Win9x days before the trial license had an expiration built in)? Will people have to carry student cards and proof of enrolment to demonstrate the likelihood of academic use of academically licensed software? Are we to trust the border guards’ intimate knowledge of the arcane variations on licensing, the differences between fair use (U.S.A.) and fair dealing (Canada), and judgments such as BMG v John Doe? What about watching time-shifted video downloaded from a PVR to a video iPod, legal under Sony v Universal Studios?
And for all of the talk about enforcement of the DMCA, are we expecting the border guards, for whom I generally have had pretty good respect due to my many pleasant – even funny sometimes (yes, U.S. border guards crack jokes sometimes) – trips across the border, to go to law school boot camp to learn the intricacies of the DMCA exceptions (17 U.S.C. 1201(f), among others)?
I’m going to go take pictures of the Yukon and have some beers and pretend this isn’t happening.
This rant is bearing in mind that all of the music on the microSD card in my phone, with which I travel and to which I listen as an mp3 player, was put there legitimately – under the U.S. Copyright Act’s exception for interoperability (s.1201(f))and the First Sale Doctrine and the Canadian Copyright Act’s personal copying exemption (s.80) – as it was all ripped from CDs I own. So I’m not the guy they’re looking for. But how long would I have to wait at the border while explaining the legitimacy of my music to someone who has neither read the acts, nor studied them in academia and in practice, nor read the relevant cases?
Time to start carrying my records around with my record player, amp, speakers, and a small nuclear power station to give me the necessary AC current. I can get those through the border, right?
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intellectual property is not really respected in most countries in asia where piracy is so rampant.`-:
There may be a difference between “respected” and “enforced” here. Indeed unauthorized reproduction of copyrighted works is rampant in many parts of Asia, and often at a commercial or industrial scale. The point I mean to make is that many of these countries respect IP and are signatories to Berne, TRIPs, WCT, etc. (For a decent table compiling the various signatory lists see Wikipedia: List of parties to international copyright agreements)
The issue is that what these countries have signed, and to which these countries have ostensibly agreed, is subsequently not enforced. Whereas many countries such as Canada (but not the U.S. in recent years) tend to go soft on private use copying but take a hard line on commercial infringement, these countries don’t even do that.
ACTA should be used to give teeth to operations seeking to stop commercial counterfeit operations, while not turning border police into watchdogs over what you keep on your mp3 player. I fear this is not the case, and it will be used to go for low-hanging fruit (teens with mp3 players crossing through border checkpoints) while continuing to ignore the actual black market revenue centres, which as you accurately point out, are often in Asia. Many are also in Russia, bridging the Asian and European counterfeit markets.