Drop that mouse! It’s the copyright cops

(Note: This is cross-posted from my Globe and Mail blog)

Are you sure that all of the songs on your iPod were legally acquired? What about the music or movies or other digital content on your laptop? You could be subjected to some nasty questioning next time you cross the border, if a new international trade body has its way — and your ISP might decide to rat you out to the government as well.

According to a leaked document (available at Wikileaks and also at IP Justice), Canada and a number of other countries are planning to create a NAFTA-style body that would police copyright, and would be empowered to seize and/or destroy property without a court order. This agency — whose creation wouldn’t have to be approved by the legislature, according to some reports, because it deals with international trade matters — would also have the power to force Internet service providers to divulge information about their customers without requiring a warrant.

Past attempts by the Canadian record industry to compel ISPs to produce such information failed when the courts ruled that the Canadian Recording Industry Association didn’t have the authority to request that kind of private personal data.

The proposed multi-country agreement (which reportedly involves the U.S., Canada, the European Union, Japan, Mexico and South Korea) is called the Anti-Counterfeiting Trade Agreement, or ACTA. In addition to the ability to force ISPs to provide customer info, the agreement would also give border guards the right to inspect laptops, cameras, iPods and other devices for any illegal digital content, and would allow them to take action without requiring a complaint from a rights-holder. The agreement would permit guards and others to conduct “ex parte” searches of property or individuals, meaning a lawyer would not have to be present.

The agreement contains a clause allowing governments to shut down even non-commercial infringing sites, a clause which has become known as “the Pirate Bay killer,” after the popular file-sharing service based in Sweden, which is currently being sued by the major record companies and movie studios for copyright infringement. According to at least one analysis, many of the assumptions on which the ACTA is based are flawed. Others have argued that copyright law itself needs to be re-engineered to take account of the spread of digital content.

Michael Geist, who holds the Canada Research Chair in Internet and e-commerce law at the University of Ottawa, says that the proposed agreement would “strike at the very heart of every day activities for millions of Canadians.” He has written on his blog about the problems with the ACTA proposal, including posts here, here and here. The Canadian Internet Policy and Public Interest Clinic made a submission to the federal government with its criticisms of the proposed agreement, which can be found online (PDF document).

The ACTA agreement is separate from new federal copyright legislation, which Geist says could be coming as early as next week, and is also expected to clamp down on a wide range of behaviour involving digital content — in much the same way that the U.S. Digital Millennium Copyright Act or DMCA does. The bill was originally supposed to be tabled last fall, but was withdrawn by the government after a storm of protest, including a prominent Facebook group set up by Prof. Geist that eventually gathered more than 40,000 members.

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