Links on samedies wiki: http://samedi.collectifs.net/wiki/index.php?n=Programme.Pr%e9parationSamedieNo34

Working on a collective statement here: http://pad.constantvzw.org:8000/ACTA

Who is signing: Medialabs, digital artists, new media artists, creatives, makers with a libre-practice depending on the net.


[individuals sign? Ask other labs to sign?]

Introduction
Why, when, how this statement was produced

To who will we send this:
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We are for a free culture.
understood as a culture that promotes the freedom to distribute and modify creative works in the form of free content by using the Internet and other forms of media http://en.wikipedia.org/wiki/Free_Culture_movement .

Social and technological advances make it possible for a growing part of humanity to access, create, modify, publish and distribute various kinds of works - artworks, scientific and educational materials, software, articles - in short: anything that can be represented in digital form. Many communities have formed to exercise those new possibilities and create a wealth of collectively re-usable works. 
Most authors, whatever their field of activity, whatever their  amateur or professional status, have a genuine interest in favoring an  ecosystem where works can be spread, re-used and derived in creative  ways. The easier it is to re-use and derive works, the richer our  cultures become. http://freedomdefined.org/Definition

We use and develop free software.

Tools shape practice Contemporary creative work depends  largely on digital tools. These tools are cultural objects themselves,  and constitute a vital part of creative practice. Because digital tools  often suffer from overdetermined functionality and are full of  conventions about the way things “ought” to be done, it is important  that practitioners take part in their construction. Unavoidably shaped  by conventional models of production and distribution, tools condition  creative practice in terms of divisions of labour, vocabulary and  medium.  
Free, Libre and Open source Software The proposal of the  Free, Libre and Open Source Software movement (F/LOSS) to make source  code available under a Free license, interests us at many levels. First  of all we find important the principle that both producers and users of  software have the right to read, change, distribute and alter the code.  To us, securing free knowledge exchange is a prerequisite for any form  of innovation. Secondly, the availability of source code allows us to  both learn from and take part in the social construction of software.  Last but not least, we are inspired by the lively culture of  collaborative development that grew out of this radical proposition.
Today, free software tools and dynamics are increasingly present among European medialabs. we use them for our infrastructure of communication, diffusion, interaction and archiving. We use these softwares developed by communities or companies, and we contribute back to the effort: by reporting, debugging, and creating tools or add-ons ourselves.

Our work is recognized by our peers, cultural insitutions, national and European authorities. Why give us money to work and draft laws that makes this work impossible?
List of medals ...

Primary concerns

If the idea is to prevent relations, comments, between digital elements.

Patents, IP infringement and counterfeiting should not be confused

ACTA is an amalgame: counterfeiting is not relative to patent (idea) but to form counterfeiting: protecting from dangerous products is not equal to track down (any kind of) IP infringement.

Why this confusion, mixing is problematic?
The assimilation of all IP infringement to counterfeiting makes it difficult to respond adequately to a situation. It favors simple responses, makes it hard to be nuanced in a context where nuances make a lot of difference. In the cultural field, quotes, appropriations, mixing, parodies are key elements in many works.

Why this amalgame is dangerous? By making IP infringement an act of counterfeiting, it makes it possible to punish with higher sanctions: destruction of products, but also destruction of plants of production.
Example from FFII text:
"Ambiguous cases of trademark confusion are not counterfeiting, they are  business conflicts. Like the conflict between Apple Corps Ltd, founded  by The Beatles, and Apple Computer Inc. By addressing all infringements,  ACTA sees Apple Computer Inc. as a counterfeiter. There is no reason to  seize Apple computers, laptops and iPhones at the border or to destroy  Apple Computers Inc's production facilities. Apple Computer Inc. is a  company, not a criminal organisation. Business conflicts can be solved  by paying a reasonable sum of money." we could find examples in artistic practices: illegal art, etc.

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Notes for this chapter:
[How can it do without? How is it not essential?]

[Attention: We don't want to say: you can do counterfeiting, but keep it away from the net]
"We  are in danger of ending up with the worst of both  worlds, pushing IP  rules, which are very effective at stopping access to  life-saving drugs  but are very bad at stopping or preventing fake  drugs."    Michelle Childs of Médecins Sans Frontières, Nobel Peace Prize winners

Why patents are bad
Patents have to be fully excluded from the scope of ACTA. ACTA endangers European SMEs, innovation, technology transfer and human lives. The software field is plagued by patents, infringement is often unavoidable. Software, and products containing software, may be covered by hundreds or thousands of patents. Many of these patents are bad patents, that should never have been granted. No patent office in the world has been able to solve the bad patents problem. It is too expensive. Unavoidable infringements combined with heightened damages gives holders of huge patent portfolios the option to eliminate competition from open source projects, community projects, alternative development models on their own, or by using a proxy, a patent troll. Patent trolls acquire excessive power. Patentee overcompensation also leads to excessive transaction costs and consumer prices.

Inclusion of patents in ACTA does not only lead to problems in the ICT sector. The inclusion of patents in ACTA causes serious issues with regards to access to medicine. Not protected by the Doha Declaration, diffusion of green technology may face worse problems than access to medicine. The heightened damages invoke an accelerated patent arms race, making the problems worse.

[how to speak about the effect on cultural practice, specific effects]

http://action.ffii.org/acta/Analysis

commercial/non-commercial

Lack of a clear definition of this difference while is used all the time.
[do we mean: same law used for non-commercial and commercial use > non-proportional?]

1. How can it be beneficial for non-commercial practice; not everything is commercial. We are not all consumers

2. Splitting amateur from professional, we are not convinced by the possibility, necessity to divide commercial-non commercial. Pirates, hackers, creative use are not 

"ACTA's criminal measures criminalise ordinary companies and individuals. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders. A whistle blower or weblog author revealing a document in the public interest, may easily be prosecutable, for instance if the webpage contains advertisements. Remixers and others sharing a file are included if there is an advantage. This advantage may be "indirect", a concept too unclear to incorporate in criminal law: it may be fulfilled by others. ACTA is not limited to large scale activity, as claimed earlier by the Commission. There is no de minimis exception either."
(FFII)

ACTA is a blank check

ACTA will create an ACTA Committee, which anticipates future amendments to ACTA. Requests to include language that the ACTA would operate in an open, inclusive and transparency manner were ignored. It is a shapeshifter, a multi-headed monster.

It can touch all domains, it is not limited

It has so much effect on everyday practices. We can't imagine signing a blank cheque to people who seem to understand so little to the creativity taking place in the digital networks.


Orphan works

With  copyright and related rights now extending to millions of  orphaned  books, photographs, pamphlets, audio recordings, video,  broadcasts and  other protected works, and rapidly improving tools for  computer  translations of works into different languages, there is  growing  interest in making digital versions of such works widely  available.   The European Commission will be examining a variety of  methods to  address the orphan works issue, including extended “opt-out”  licensing  approaches, which generally involve making  payments to use  works for  which owners cannot be found, and approaches that involve  limitations  on remedies for infringement of such works.  Under the Berne   Convention, there is greater flexibility in fashioning solutions based   upon limitations on remedies than on compulsory licensing of works,   particularly if the solution involves free uses of works where owners   are never found.[4]
The  provisions in ACTA will make it much more difficult to address  the  orphan works problem, by closing off one promising avenue for policy   intervention.
http://keionline.org/node/992


Secondary concerns

There is no clear process of decisionmaking

Full disclosure of documents is only a start? Who negotiates, has mandate, ...

Lack of accountability (what do we mean by that? What do we expect from that?)
No clear way citizens can intervene, respond (What would we imagine as a way to respond?)

To discuss: what is transparency. Representation of civil organisations.
take care we look at effects outside the net, outside ACTA

Who is deciding (we know only which countries)? 

How does it keep with, overwrites national laws

To make sure that civil society is informed, is concerned, included in the process.

Innovations to stop climate change will be blocked
[This is a specific result; could affect other fields equally?]

The fight against climate change will inherit the problems in the software field. In a general way, like trivial patents, amassing of patents, patent trolls, frivolous lawsuits, hampering of follow up innovation and high transaction costs. And in direct ways, there are green software and business patents, e.g. on regulating traffic toll fees based on traffic volume/pollution. And many modern products, like hybrid cars, contain software. To win the fight against climate change, fast diffusion of green technology is needed. Not only policy makers know this, patent trolls know this too.  

ACTA also evidences a clear lack of awareness on the manner in which green technology in the energy and infrastructure sectors operate. The majority of systems (for example, wind turbines, water turbines, and solar collectors) rely on cross-border up-time-management software and systems. ACTA explicitly and adversely impacts the ability to transmit grid and local data, operate feedback mechanisms to energy suppliers, and operate security protocols across international rail, air, and shipping infrastructure applications. Once again, in an effort to be responsive to the media industry, a far larger component of the global IT infrastructure is being overlooked. This, in the short term, will create unintended liabilities and, in the long term, like we’ve seen in the flow of energy from Russia into Europe, may be the source of highly politicized controversy and impairment.

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Countries may do so, but not obliged to and in respect to their laws.

A culture of fear and suspicion

ACTA   contributes to a culture of surveillance and suspicion, in which the   freedom that is required to produce free software is seen as dangerous   and threatening rather than creative, innovative, and exciting. 
Example:
By   placing in the hands of the ISP's the responsibility  of monitoring  the  behaviour of the users, it will create an atmosphere of suspicion  where  the first concern of the ISP will be to protect itself from  damages.  Therefore, it will stimulate ISPs to take pre-emptive actions:  shutting  down websites on first notice.

ACTA would create a de facto presumption of infringement
http://www.laquadrature.net/en/three-core-reasons-for-rejecting-acta

Restrictions   on limitations to 3rd party liability (ie. limited safe  harbour rules   for ISPs).  For example, in order for ISPs to qualify for a  safe   harbour, they would be required establish policies to deter    unauthorized storage and transmission of IP infringing content.     Provisions are modeled under the U.S.-Korea Free Trade Agreement,  namely  Article 18.10.30.   They include policies to terminate  subscribers in  appropriate  circumstances.  Notice-and-takedown, which  is not currently  the law in  Canada nor a requirement under WIPO, would  also be an ACTA  requirement.

update recent version of Acta:

Note   that neither of these provisions create new substantive obligations.    The first provision requires an effort to promote cooperative efforts,   not new laws.  The second provision is permissive - a party may provide   new laws, but is not required to do so.
http://www.michaelgeist.ca/content/view/5352/125/

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ACTA threatens free software

[Why we are we concerned by Free Software being affected?]

1. Digital Rights Management

How is DRM the result of ACTA ... ACTA as a re-introduction of DRM as a standard

It will make it harder for users of free  [so ... only for free systems according to FSF?] operating systems to  play media: Consumers may no longer be able to buy media without DRM --  and DRMed media cannot be played with free software. 
This  increases the chances of getting your devices taken away: Portable  media players that support free formats are less common than devices  which support DRM, such as the iPod. Will this make them suspicious to  border guards?

DRM and installing your own system? DRM in chips? Free hardware? Internet of things ... discussion on RFID

notes:

Collecting thoughts on DRM & Free Software/GPL3:
http://samedi.collectifs.net/wiki/index.php?n=Programme.DRM?action=edit

Anti-circumvention  legislation that establishes a WIPO+ model by  adopting both the WIPO  Internet Treaties and the language currently  found in U.S. free trade  agreements that go beyond the WIPO treaty  requirements.  For example,  the U.S.-South Korea free trade agreement  specifies the permitted  exceptions to anti-circumvention rules.  These  follow the DMCA model  (reverse engineering, computer testing, privacy,  etc.) and do not  include a fair use/fair dealing exception.  Moreover,  the free trade  agreement clauses also include a requirement to ban the  distribution of  circumvention devices.  The current draft does not  include any  obligation to ensure interoperability of DRM.
http://www.michaelgeist.ca/content/view/4510/99999/

2. Distribution

It makes it more difficult to distribute  free software: Without file sharing and P2P technologies like  BitTorrent, distributing large amounts of free software becomes much  harder, and more expensive. BitTorrent is a grassroots protocol that  allows everyone to contribute to legally distributing free software.

[How is p2p under threat: why, how will ACTA effect p2p]

"ACTA  would require that existing ISP no longer host free software that can  access copyrighted media; this would substantially affect many sites  that offer free software or host software projects such as SourceForge.  Specifically the FSF argues that ACTA will make it more difficult and  expensive to distribute free software via file sharing and P2P  technologies like BitTorrent, which are currently used to distribute  large amounts of free software."
http://en.wikibooks.org/wiki/The_World_of_Peer-to-Peer_%28P2P%29/What_is_Peer-to-Peer_%28P2P%29/Shadow_play

3. Patents

Same situation as innovations counter climate change?

http://en.wikipedia.org/wiki/Digital_rights_management
http://www.fsf.org/campaigns/acta


More?

commercialization vs. file-sharing, knowledge sharing
how it blocks research, creation, cultural production
empowerment not enforcement
collaboration, exchange is essential. Blocking it is counterproductive

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How to express the concern that it is an arrangement between many countries, but not all.

debat externe au texte
quesion de stephanie position stallman et copyright : 
http://www.gnu.org/philosophy/misinterpreting-copyright.html

voir aussi Vandana Shiva  

http://trade.ec.europa.eu/doclib/html/147079.htm