A pair of Electronic Frontier Foundation (EFF) Directors penned an article which delves into some of the issues surrounding the Anti-Counterfeiting Trade Agreement (ACTA) negotiations.

The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy (PDF) was published in the Yale Journal of International Law. Authors Eddan Katz, EFF International Affairs Director, and Gwen Hinze, EFF International Policy Director, call the secret ACTA negotiations a threat “to undermine the balance of IP at the foundation of sustainable innovation and creativity.”

The EFF is concerned as well with the “unprecedented” secrecy around ACTA negotiations. The organization attempted to gain information using freedom of information laws, but only received 159 pages of information, while 1,362 were withheld due to national security concerns.

The U.S. is negotiating ACTA as a sole executive agreement, meaning that agreements “are concluded on the basis of the President’s independent constitutional authority alone.” The authors note that such agreements are not subjected to congressional vote, thus removing “the inter-branch accountability mechanisms essential to balanced policymaking.”

Circumventing the involvement of organizations such as World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), who typically account for “a range of interests” also removes “checks and balances” from ACTA negotiations.

Why should you and I be concerned about ACTA? The EFF has three responses for that question:

…though it was originally portrayed as an agreement to coordinate best practices on border enforcement of physical goods, ACTA will extend to regulation of global Internet traffic.

...implementation of ACTA may require amending U.S. law and upsetting developments in controversial areas of public policy.

…using trade agreements to set global norms for intellectual property enforcement risks distorting national information regulation.

The EFF authors offer the following proposals as ways to improve the transparency and accountability of ACTA:

• Reform trade advisory committees for more diverse representation;
• Strengthen congressional oversight and negotiating objectives;
• Institutionalize transparency guidelines for trade negotiations;
• Implement the State Department’s solicitation of public comments under the Circular 175 procedure

ACTA negotiations are scheduled to resume in January.

A few details regarding Britain’s Digital Economy Bill were touched on this morning as part of the Queen’s Speech to Parliament, in which the monarch outlines the coming legislative agenda.

Among the forthcoming actions will be a mandatory age rating on all videogames aimed at children ages 12 and above, reports the Guardian. The Bill calls for the adoption of the Pan-European Game Information (PEGI) system as the method of classifying games in the UK, replacing the current practice of using both PEGI and British Board of Film Classification (BBFC) ratings.

The Digital Economy Bill would also tackle piracy, proposing a tough policy much like France’s three-strike Hadopi Law. Those caught committing piracy will receive a warning letter, followed by a second, more stern letter that will caution the user that “technical measures” could be implemented in order to stop them from stealing files.

Failing the second warning, a pirate would be placed on a “serious infringers list” which would allow ISPs to disconnect them from the Internet. Those about to be disconnected will have 20 days to appeal their case before an independent body. They will also be able to appeal the case if they lose, again within 20 days. The Guardian has a flow chart that illustrates the full process (PDF).

First Secretary Lord Mandelson does not expect widespread disconnections as a result of the pending legislation:

Technical measures will be a last resort and I have no expectation of mass suspensions resulting. The British government's view is that taking people's work without due payment is wrong and that, as an economy based on creativity, we cannot sit back and do nothing as this happens.

The government hopes to cut piracy by 70% before April 2011.

The Open Rights Group believes the proposed disconnect laws to be illegal, adding that “Evidence cannot show who may have infringed copyright, only what connection was used.” They urge people to contact their MP to oppose “these draconian proposals.”

The Entertainment and Leisure Software Publishers Association (ELSPA) applauded the outline of the Bill, stating:

ELSPA believes the proposed UK adoption of the Pan-European Games Information (PEGI) classification system to be an important step in ensuring child safety when gaming. The video games industry offers its full support to the Government in this.

On the other side of the fence, while noting that the Digital Britain report was announced with “grand ambition,” the Guardian calls the Digital Economy Bill “more plumbing than poetry, in many places little more than a series of disconnected tweaks to existing legislation.”

As the 6th round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations get underway in Seoul, Korea, a dispatch has been sent to President Obama expressing concern over the “lack of transparency and openness” surrounding the initiative.

The letter notes that “Unlike nearly all other multilateral and plurilateral discussions about intellectual property norms, the ACTA negotiations have been held in deep secrecy.”

While a curious mix of entities have been allowed to see ACTA documents, after signing a non-disclosure agreement, the letter states that “there were no opportunities for academic experts or the general public to review the documents,” adding that “very few” public interest or consumer groups were included as well.

Among the signees of the letter were The Entertainment Consumers Association (ECA), Electronic Frontier Foundation (EFF), Knowledge Ecology International (KEI), Students for Free Culture and the Egyptian Initiative for Personal Rights.

Countries negotiating the agreement include the U.S., Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland.

BoingBoing (thanks Torven) sums up a few leaked bullet points from ACTA, among them:

•    That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

•    That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

•    Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

The EFF tears into the leaked material in a post on its website, saying that, “The leaks confirm everything that we feared about the secret ACTA negotiations.”

They continued:

The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

Disclosure: GamePolitics is a publication of The ECA

A research article penned by a Michigan State University College of Law Professor examines video game related legislation and asks if prompts can be gleaned from the environmental law and ethics movement in order for such legislation to have a better chance of being passed in the future.

From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations was written by Renee Newman Knake.

The heart of the matter, writes Knake, is “the disconnect between law and social science,” or the reluctance of U.S. courts to recognize (what she terms) the consequences mass media has on children.

Knake writes:

Environmentalists successfully established a regulatory framework for evaluating empirical science in the face of uncertainty and arguments questions about the validity of research. The movement to protect children from media harm can do so as well.

Knake’s paper relies heavily on the research of Barbara Bennett Woodhouse, who coined the term “ecogenerism,” or someone who thinks about child welfare as well as a wide range of other problems confronting children and society.

Thus, Woodhouse concludes that research “clearly establish[ing] but fall[ing] short of conclusively proving a causal connection between harm to children and exposure to media violence” could be relied upon by legislators in adopting regulations so long as it is rooted in science, not popular opinion.

She concludes:

The law’s continued refusal to recognize mass media and marketing harm to children has left researchers and regulators in a strange position, waiting until science might sufficiently advance to satisfy a court’s causality requirements and in the meantime engaging in a seemingly fruitless exercise of tweaking statutory language in an effort to survive First Amendment strict scrutiny.

The full paper can be downloaded here.

Byteside has a video interview up with Australian film critic Margaret Pomeranz discussing the state of Australia’s classification system.

Pomeranz specifically calls out South Australia Attorney General Michael Atkinson, who is against adding an R18+ rating, as GP discussed earlier this week. She states:

You have one AG calling the shots for all of Australia. It must be very frustrating for videogame players who do want to play R rated games.

Pomeranz thinks that governments should act in an advisory role only when it comes to rating media:

“It’s the start of danger, where you have a government effectively saying this is what we will allow you to see. Fortunately, they have very little power these days because we can see anything we want, as long as we are prepared to break the law. What you are doing is turning middle class people into criminals.”

Computerworld speculates that the raging battle over health-care reform taking place in the United States Congress could push out any technology-related bills until 2010.

Some of the bills scheduled to be addressed this year that could be delayed to 2010 include:

• The Cybersecurity Act – A bill introduced by Senators Jay Rockefeller (D-WV) and Olympia Snowe (R-ME) that would allow the President to cut off or limit Internet traffic during cyber emergencies. A sticking point of this bill is that the President’s power over private networks is still undefined.

• Data-Breach Notification – These proposed bills would require companies or government agencies that suffer a cyber-related breach of security to notify people affected.  As 45 states already have breach notification laws, some experts are questioning the need for a national one.

• Internet Freedom Preservation Act – A bill introduced by Representative Ed Markley (D-MA) that seeks to require the Federal Communications Commission to create net neutrality rules. The bill notes that, “The national economy would be severely harmed if the ability of Internet content, service, and application providers to reach consumers was frustrated by interference from broadband telecommunications network operators.”

A pair of Connecticut legislators were embarrassed when an Associated Press photographer snapped them playing Windows Solitaire during recent deliberations on the state budget.

The Hartford Courant reports that one of the game-playing pols, Rep. Jack Hennessy (D, left) has issued a rather profuse apology in a letter to constituents:

It was certainly bad judgment for me to play a computer game even for just a few minutes during the final House session on the budget. I am embarrassed, and I apologize to each and every person in the North End and to people across the state.

My actions were inexcusable. I do want my constituents to know that my poor judgment for a few moments on Monday in no way means I ignored your interests in representing you on this very serious matter...

I sincerely apologize to each of you. I look forward to having the continued privilege of representing you and your interests in Hartford. I thank you in advance for your understanding and have been humbled by those of you who have already expressed your understanding and forgiveness.

Hennessy maintains a photo gallery on his official website. The solitaire-playing picture is not included, however. The other Solitaire player was Rep. Barbara Lambert, also a Democrat.

Via: GameCulture

The Federal Communications Commission will evaluate the potential for a single content rating system that would span various forms of media, including video games, movies, TV and music.

Bloomberg reports that the FCC will study the issue at the direction of Congress:

The FCC action follows congressional queries into whether children are harmed by inappropriate content, such as sex, violence and obscenity. Senators want to know whether revisions are needed to the law to protect children, said Senator Jay Rockefeller...

FCC Chairman Julius Genachowski told Congress in July he was “hopeful that the evolving media landscape” will enhance parents’ power “to pick and choose” what their child sees and hears.

Not surprisingly, game publishers lobbying group ESA is opposed to the idea. Kotaku has comment from ESA VP RichTaylor:

The ESA appreciates the FCC and its important role. However, the ESRB rating system is considered by parents, family advocates, the Federal Trade Commission, and elected officials as the gold standard in providing caregivers with the information they need to make the right choices for their families. Universal ratings will, in the end, only serve to confuse consumers, violate the Constitution's first amendment, and are a solution in search of a problem.

Video game publishers group ESA has released its annual report for the 2009 fiscal year, which concluded at the end of March.

As noted by Venture Beat,

The ESA fought 43 bills aimed at regulating content or controlling access to video games and none became law... Meanwhile, five states enacted tax incentives for the creation of game development jobs. Another 17 states are considering enacting the incentives.

The group said that it will be hard to get the attention of the federal government and Congress, which is preoccupied with issues such as climate change and healthcare. The ESA wants more done to stop piracy of games...

While Venezuela has been the (unwilling) setting for at least one violent video game (Mercenaries 2: World in Flames), lawmakers there are moving ahead with plans to ban violent games and toys.

The effort, reports Reuters, is aimed at reducing an unprecedented wave of crime and violence. According to Reuters, dozens of people are murdered in the Venezuelan capital of Caracas every week.

A measure detailing the proposed ban passed Venezuela's National Assembly this week. In order to become law, the game ban bill would need to be voted on a second time and then signed into law by President Hugo Chavez.

If passed, the video game ban would not be the first time that the Venezuelan government has targeted a form of media in response to social issues. In 2008 the government banned The Simpsons as unsuitable for children.

The Associated Press reports that the Entertainment Software Association, which represents the interests of U.S. video game publishers, spent $1.2 million on government lobbying efforts during the period April-June, 2009.

Looking beneath the surface, GamePolitics has obtained an actual copy of the ESA's latest federal lobbying report. The document shows that Big Gaming has its fingers in a surprising number of legislative and governmental pies. The following are issues which the ESA reports that it lobbied on in Q2:

• Media regulation
• First Amendment protection
• Entertainment industry ratings
• Parental control technology
• Content/video game sale regulation
• Retailer enforcement of ratings
• Piracy
• Copyright Act (believed to be the DMCA)
• Anti-circumvention
• Patent modernization
• Intellectual property enforcement
• Customs reauthorization
• PRO-IP Act appropriations
• Dept. of Justice appropriations
• Dept. of State reauthorization
• Free Trade Agreements
• Special 301 Designated Countries
• Trade Policy Reform
• Domestic regulatory & administrative issues
• Trade enforcement
• Doha Round Proceedings (trade talks)
• Trade Promotion Authority
• Internet Governance
• Virtual worlds
• Online gaming
• Highly skilled workforce
• H1-B visas
• Green cards
• Immigration reform
• ISP management
• Copyright Enforcement
• Broadband deployment
• Broadband policy
• Consumer Product Safety Improvement Act implementation

Agencies lobbied by the ESA include some surprising entities. Here's the list:

• U.S. House of Representatives
• U.S. Senate
• Federal Communications Commission
• Federal Trade Commission
• National Telecommunications & Information Administration
• U.S. Copyright Office
• U.S. Customs & Border Protection
• U.S. Trade Representative
• Department of Commerce
• Department of Homeland Security
• Department of Justice
• Patent & Trademark Office
• FBI
• National Security Council

DOCUMENT DUMP: Grab your own copy of the ESA's lobbying report... (9-page PDF)

Vietnamese legislators openly criticized a government minister for failing to act to regulate online games, reports the Thanh Nien News.

Minister of Information and Communications Le Doan Hop (left) addressed the National Assembly last week to discuss plans to manage online gaming. However, representative Nguyen Ngoc Dao claimed that online games caused "moral and mental erosion" and argued that Hop's strategy was insufficient.

Hop told legislators that online games could not be banned and began to speak of their advantages and disadvantages. Those comments were cut short by another representative, Nguyen Van Thuan, who wanted to hear more about enforcement of regulations directed at online games:

The representatives were not asking about the pros and cons of online games but they wanted to know if the ministry was responsible for the current situation.

Management is supposed to include the issuing of regulations and the enforcement of them but the minister hasn’t talked about enforcement.

Mid-year documents filed with the Federal Elections Commission indicate that the video game industry is currently leaning to the Democratic side of the aisle when it comes to Congressional campaign donations.

ESA PAC, the political action committee of game publishers group the Entertainment Software Association, has disbursed $12,400 to Congressional candidates so far in 2009. All but $1,000 of those funds went to Democrats or Democratic PACs. Here's the breakdown:

• Rep. Bobby Rush (D-IL) - $3,000
• Rep. Kendrick Meek (D-FL) - $1,000  (Meek is running for a vacant Senate seat)
• New Democratic Coalition PAC - $2,000
• Sen. Pat Leahy (D-VT) - $2,400
• Sen. John Thune (R-SD) - $1,000
• Rep. Adam Smith (D-WA) - $1,000
• Sen. Byron Dorgan (D-ND) - $1,000
• Sen. Blanche Lincoln (D-AR) - $1,000

The contributions will be used by recipients for the 2010 mid-term elections. South Dakota's Thune is the only Republican among those receiving ESA PAC money so far in 2009.

DOCUMENT DUMP: Grab a copy of the ESA PAC mid-year report here...

The digital era has permanently altered the way media is controlled and distributed, resulting in a relationship between rights holders and the public that is often contentious. Against that backdrop, so-called Pirate Parties have sprung up recently on the European political scene.

Andrew Robinson, who heads the UK Pirate Party, spoke to PC Pro about his organization, its vision, and why the party's name is a problem:

There's approximately 7 million file sharers in this country - you're branding a huge percentage of this population criminals for doing something that doesn't have any proven implications. It's a ridiculous state of affairs... People who copy a movie are lumped in with people who steal cars.

 

Our copyright law is horribly outdated and its skewed one way because all the lobbying is on the side of big businesses...

Competing with the Conservatives while wearing an eye patch isn't going to do us any favours. We've had the [Pirate Party] name foisted on us by the Swedish party, but it's difficult. We need to point out that we're saying very sensible things, while the industry lobby is labelling us as pirates... We're trying to have a proper debate and when people actually listen to what we've got to say they'll realise we're being serious...

New anti-piracy regulations implemented by the Swedish government triggered a 30% drop in web traffic on the day they came into effect, reports AFP.

Some Swedish experts maintain that illegal downloading accounts for 50-75% of all web traffic and the slump indicates that would-be file-sharers were deterred by the tougher laws, which became effective on April 1st.

Under the new regulations, copyright holders may forces ISPs to give up user data on file-sharers. This information could then form the basis for legal action against individual Swedes.

Swedish Games Industry Association spokesman Per Stroemback praised the new law:

[It is] a historic example of effective legislation... No one could predict such a dramatic decrease in illegal traffic and not only that there's also been a huge increase in the legal [download] services.

However, Christian Engstroem (left), who serves as deputy leader of Sweden's Pirate Party as well as a member of the European Parliament, argued that Internet users will be unjustly punished by the new regulations:

This is a completely unequal law, where ordinary people will become scapegoats and will be asked for hundreds of thousands or millions of (Swedish) crowns by the industry. I don't think it will be efficient in the long run. I believe the traffic is going to climb up again after some months.

-Doug Buffone, ECA Intern

New World Notes reports that the Federal Communications Commission will provide the Second Life community with an interactive simulcast of today's workshop on open government and civic engagement.

SL users will have a special channel to forward questions and responses to workshop attendees in Washington, D.C. NWN notes that the event is part of the National Broadband Plan and will help government officials understand how high-speed Internet access "can improve transparency and citizen participation in government..."

FCC spokeswoman Jen Howard commented on the SL simulcast:

In developing our nation’s National Broadband Plan, we are committed to finding innovative, cutting-edge ways -– both online and offline -- to reach out to the public and elicit suggestions, questions, and insight regarding our nation’s broadband future. We are delighted that this first workshop will have an aperture into Second Life and that staff is experimenting in such ways to reach all stakeholders.

The Entertainment Consumers Association is urging gamers to stand up and be counted for Net Neutrality.

In an e-mail circulated yesterday, the ECA issued a call to action:

Now is the time for you to stand up for your rights and join millions of Americans of every political persuasion in the fight for Net Neutrality. Net Neutrality is the principle that ensures that gamers are free to go where they want, do what they like, and connect with whom they choose onlin. Congressmen Ed Markey (D-MA) and Anna Eshoo (D-CA) have introduced H.R. 3458, the Internet Freedom Preservation Act of 2009.

Take action now and tell Congress to make Net Neutrality the law of the land. Without Net Neutrality, your Internet Service Provider is free to: charge you extra for playing World of Warcraft, to interfere with Xbox Live, or to completely shut off your ability to access for favorite web sites. Net Neutrality effects your entire online experience...

This is our best chance yet in making sure that Net Neutrality is passed by Congress. The head of the FCC supports it, the President of the United States supports it, and we're asking you to make sure to tell Congress you support it. Take a moment to send them the message to make Net Neutrality the law.

A suggested letter to Congressional representatives is available from the ECA website.

GP: Gamers, this issue may not inflame passions in the same way that the censorship debate does, but it's just as important in the long run.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

Far Cry and Crysis developer Crytek has renewed threats to leave Germany if a proposed ban on violent video games is passed. As GamePolitics noted in June, the recommendation by German interior ministers would impose a total ban on the production and distribution of violent games.

Edge Online has comment from Crytek CEO Cevat Yerli (left) on what the unprecedented government action would mean for his company:

A ban on action games in Germany is concerning us because it is essentially like banning the German artists that create them. If the German creative community can't effectively participate in one of the most important cultural mediums of our future, we will be forced to relocate to other countries.

The current political discussion will deprive German talent of its place on the global game development stage, and deprive German consumers of entertainment that is considered safe and fun around the world.

How extreme is the anti-game sentiment in certain quarters of the German government? So extreme that in 2004, a SWAT team raided Crytek's offices. Crytek developer Tim Partlett described the scene:

In 2004 the Bavarian authorities sent in the state troopers... When the small tech team appeared to inspect our computers, they were accompanied by over one hundred flak-jacketed riot police, all armed with Heckler and Koch sub-machine guns.

It was a total overreaction... They arrived first thing in the morning, and kicked down our doors. They even raided the nearby private residences...

I was caught just outside the office...  We were all shepherded into our Mo-Cap room, and there we were forced to remain until questioned, prevented from leaving by dozens of armed guards...

More than 60,000 Germans have signed a petition against the ban, triggering a mandatory government review of the proposal.

So far, every single law seeking to restrict the sale of violent video games has been struck down by the federal courts; it would seem that such legislation is a losing proposition.  So how else might the government try to regulate our favorite pastime?  Writing for Joystiq, lawyer and gamer Mark Methenitis offers two possible scenarios which censorcrats might seek to employ.

The first is to impose content restrictions - not on the type of violence that can be shown but on the type of stories that can be told or the types of characters presented. The idea here would be to ensure that games are politically correct so as not to offend anyone and prevent flaps over perceived racism in games like Resident Evil 5, Left 4 Dead 2, or Call of Juarez: Bound in Blood.  Of course, this still boils down to regulating speech so it’s not likely to be any more successful in the courts than restricting violent content has been.

The second is an idea presented by Jack Thompson during his debate with Methenitis at SGC09 earlier this month. Thompson speculated that the Obama administration might address America’s obesity issues by regulating our play time. But how? The government can’t just march into your home and turn off your Xbox. While there is no indication that Obama is planning any such thing, Methenitis explains how such a scenario might work:

When the government wants you to stop doing something, they tax it. Alcohol is taxed. Tobacco is taxed. Certain kinds of less-fuel efficient cars are taxed. In short, the theory is "fewer people buy things at a higher cost." And it's something that can be levied against both retail sales and digital downloads.

Taxing games is not a new idea but with the economy the way it is, now seems like the absolute worst time to try it.  Still, you never know. Methenitis:

It's always difficult to predict what the government may or may not do, or how the courts may or may not rule. The system, however, relies on the vigilance of the public to ensure that our rights are not infringed....

-Reporting from San Diego, GamePolitics Correspondent Andrew Eisen...

Who says online petitions are a waste of bandwidth?

Earlier this month, GamePolitics reported on a petition posted to the official internet forum of the Bundestag (the German Parliament) opposing a plan by Interior Ministers to ban video games "where the main part is to realistically play the killing of people or other cruel or un-human acts of violence against humans or manlike characters."

The petition passed 50,000 signatures about two weeks ago meaning the German government will be required to review and discuss its requests.  Granted, this does not mean that the ban will  ultimately be reversed, but it is a step in the right direction. The petition itself reads:

The German Bundestag should decide against the decision of the interior minister conference from the 5th of June, that aims for a ban of action computer games. As an adult citizen and a person eligible to vote, I beg you firmly;

To erase the irritating and discriminating term of 'killerspiele' [killer game] from political discussion.

To strengthen the trust of the public in existing national youth protection mechanics.

To improve and warrant the execution of existing laws, that ensure kids and the youth only get access to video games and computer games rating according the USK.

To support parents and educationally responsible persons in the advancement of media competence.

To promote the computer games and video games industry in Germany and especially the training of these promising professions.

Via: GameZine

Reporting from San Diego, GamePolitics Correspondent Andrew Eisen...