ACTA: time to calm down, and look at the facts

I'm no expert on international trade negotiations, so I've been reluctant to wade into the (entirely one-sided) "debate" over the Anti-Counterfeiting Trade Agreement, which has recently come under heavy criticism from the copyleft on both procedural and substantive grounds. But I can read, and what I've been reading from copyright critics about the negotiations simply doesn't square with the known facts and law. So here goes...

ACTA, critics say, is being negotiated under unduly strict conditions, and threatens radical changes in US law. Canadian activist Cory Doctorow makes the stunning claim that if ACTA is enacted, "it will be impossible to run a service like Flickr or YouTube or Blogger." Techdirt, never one to let facts get in the way of an opportunity to bash copyright owners, says that "claims by US trade reps that ACTA did not represent any kind of major change in copyright law, and thus didn't require public scrutiny, are nothing more than a myth" and asserts (without citation) that ACTA "wouldn't include current DMCA-style safe harbors."

Much of the recent attention has been the result of a leaked September 30 EU memo that is, as aptly described by Ars Technica's Nate Anderson, "a written account of an oral report on a draft document that was itself still being altered." As Anderson points out, the actual language of the EU memo bears virtually no resemblance to the hysterical claims by ACTA critics. Nowhere does the memo say that ACTA will impose a French-style three-strikes law on signatory nations. It merely says that "ACTA members have to provide for third-party liability" and must provide "Safe-harbours for liability regarding ISPs, based on Section 512 of the Digital Millennium Copyright Act (DMCA)." Third-party liability (e.g., contributory and vicarious infringement) and the DMCA Section 512 safe harbors are of course existing features of US copyright law, and nothing I've seen indicates that ACTA would change US law in the slightest. (Techdirt's claim that ACTA (or at least the draft described in the EU memo) "wouldn't include current DMCA-style safe harbors" is thus flatly contradicted by the memo.) It's also worth noting that Section 512(i)(1)(A) of the DMCA already provides that, to stay within any of the four safe harbors from infringement claims, ISPs or UGC sites (e.g., YouTube) must "terminat[e] repeat infringers" in "appropriate circumstances."

Moreover, the EU memo says that the Internet provisions are "inspired" by TRIPS and existing US agreements with South Korea and Jordan. In other words, ACTA will likely closely resemble agreements to which the US is already a party -- again, no change from the current state of affairs. And furthermore, ACTA is an "executive agreement" as opposed to a treaty, and thus does not require Senate approval. I'm not an expert in this area, but it's my understanding that an executive agreement cannot by itself alter existing US law. So the notion that ACTA will impose a mandatory three-strikes requirement or repeal the DMCA safe harbors isn't just false; it's a legal impossibility.

Lastly, to the "secrecy" issue. It's true that ACTA negotiations don't take place in public. But from what I've learned in talking to international trade experts, this is how all similar negotiations take place; ACTA is no different. As USTR chief Ron Kirk has explained:

As is customary during negotiations among representatives of sovereign states, the negotiators agreed that they would not disclose proposals or negotiating texts to the public at large, particularly at earlier stages of the negotiation. This is done to allow participants to exchange views in confidence, facilitating the negotiation and compromise that are necessary to reach agreement on complex issues.

And (subject to NDAs), USTR has made information about ACTA available to a number of outsiders, including representatives from such IP-enforcement skeptics as Google, eBay, Public Knowledge, the Consumer Electronics Association, and the Center for Democracy and Technology. I understand the arguments of those who would prefer complete transparency, but, again, it's my understanding that the level of confidentiality here is par for the course in international trade negotiations.

One thing bears repeating: there is no agreement yet; negotiations over ACTA may well last another year or more, and each round will likely produce more drafts, more revisions, and more leaks. And one thing is clear: whatever emerges from the negotiation process will not represent the radical change in US law that the more irresponsible among the ACTA critics are claiming will result.