ACTA: the US and the European Commission launch an attack on Free Software

Through its adoption on Wednesday, September 8th, 2010 of the Written Declaration 12/2010, the European Parliament has taken a stand against ACTA, the "anti-counterfeiting" trade agreement. This agreement, negotiated in secret by the European Commission, is an attack against Free Software. As the debate in plenary session with president Barroso is about to take place, April calls for the MEPs to act by asking for the UE to leave the negotiation table in the name of freedom and democracy. Indeed, a leaked version of the text, dated August 25th indicates that the agreement that is currently being finalized would still threaten Free Software users and authors: by strengthening the part on DRM, the agreement would impose and lock some kind of "super-DADVSI" regulation.

Contrary to what has been claimed by European negotiators, the ACTA agreement is backtracking on many of the most essential rights of the Free Software users in Europe. The text transposes on the international scale the most restrictive view of US copyright law, which restricts freedom and endorses monopolies at the expense of interoperability and users' freedom of choice.

Among other things, the text promotes in its article 2.18 a general ban on the circumvention of digital locks. It grants authors and/or producers the right to impose any restriction of use, which does not only includes those covered by copyright law (such as copying restrictions) but also does not put any boundary on the restrictions that might be imposed: this allows to put requirements on a specific player, platform, an Internet access, and so on. In other words, this text would give a free hand to digital content producers to regulate the whole digital works ecosystem. "The legal protection of DRM means that the legislator assigns to Apple, Microsoft, and the entertainment industries, not only the task to enforce the law, but also to decide which law shall be enforced, without any check and balance or any kind of appeal", underlines François Poulain, board member at April.

It amounts to the protection by law of treacherous computing1 and to the criminalization of the circumvention of DRM for interoperability purposes. Moreover, although France recognizes the importance of reverse engineering2, the current text of the ACTA prohibits any circumvention3, including those for legal uses; there is a risk that Free Software users will not be allowed to use the software of their choice, regardless of the laws voted in France and in Europe.

All in all, what ACTA offers is nothing else than the exportation of the US model in the rest of the world. Although the DMCA4 curbs innovation and consumers' rights to such an extent that exemptions are provided for in the law itself5, the United States hopes to impose a similar system at the international level, at the expense of the freedom of digital technology users in general and of Free Software users in particular.

"The negotiations on the US DMCA had ultimately imposed the EUCD directive in 2001 and the French DADVSI law in 2006. If the European Union had done an impact assessment on the directive, it would have realized it has only fostered unenforceable and ill-adapted legislation. Instead of analyzing mistakes from the past, the EU prefers repeating them with the ACTA, even if it directly threatens interoperability and the "decompilation exception", albeit both are essential for innovation and competition", analyzed Jeanne Tadeusz, Public Affairs officer at April. "Moreover, the talks are ongoing outside of any kind of democratic control6. The European Commission consistently ignores transparency demands from the EU Parliament and from civil society, minimizing the impact of the treaty. And yet, the European Ombudsman openly said that ACTA could have a direct legislative impact.7"

"As Declaration 12 was just adopted by the European Parliament, it is not possible anymore for the European Commission to ignore the legitimate demands of the citizens and of their representatives", concludes Tangui Morlier President of April. "April is calling for the EU Commission to leave the ACTA negotiation table: the freedom to use digital tools or interoperability shall not be discussed in secret, by circumventing democracy, but needs to be debated/discussed democratically".

On the same topic, you can also read the press release from la Quadrature du Net

About April

Founded in 1996, April is the main French advocacy association devoted to promote and protect Free/Libre Software. With its 5476 members (5004 individuals, 472 businesses, associations and organizations), April is a pioneer of Free Software in France. Since 1996, it is a major player in the democratization and the spread of free software and open standards to the general public, professionals and institutions in the French-speaking world. It also acts as a watchdog on digital freedoms, warning the public about the dangers of private interests keeping an exclusive stranglehold on information and knowledge.

Press contacts:

Frédéric Couchet, Executive Director, fcouchet@april.org +33 6 60 68 89 31
Jeanne Tadeusz, Public Affairs officer, jtadeusz@april.org +33 1 78 76 92 82

• 1. Treacherous Computing primarily refers to "trusted computing". It is also used for other topics such as DRMs and any project aiming, under the pretense of security and the fight against counterfeiting, to threaten computer users
• 2. Reverse engineering, and the exception de décompilation (decompilation exception, are protected by article L122-661 of the French intellectual property code, which authorizes the search of the information required for interoperability without asking for the author's consent when the technical specifications are not effectively published.
• 3. In article 2.18 - 5 of the currently discussed text
• 4. The DMCA or Digital Millenium Copyright Act, is the US law regulating copyright issues
• 5. On this topic, please read our analysis (in French): Révision de l'interdiction de contournement des DRM aux États-Unis : une avancée, vraiment ?
• 6. Read for instance: "European Parliament wants more transparency on ACTA"
• 7. Read for instance: the Electronic Frontier Fondation press release.