Sunday, February 21, 2010

Leaked ACTA draft: How exactly would this change US law?

Via Canadian law professor Michael Geist comes word that a draft of the ACTA Internet chapter has now leaked. Once again, this document (which, it bears emphasizing, is only a draft) only confirms what I (and, much more importantly, USTR) have been saying for months now: Nothing in ACTA would impose a "three strikes" requirement or otherwise alter US law. Indeed, what's most striking about the leaked document (whose provenance I haven't independently verified) is how closely it resembles the DMCA -- which of course is existing US law.
Acta Digital Chapter Draft

The meat of this draft is in Paragraphs 2, 3, and 4. Paragraph 2 says that signatory nations must insure that "civil remedies, as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability for copyright and related rights infringement." Third-party liability (such as contributory and vicarious infringement, as well as inducement liability) has long been part of US intellectual property law. See, e.g., Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911) and cases collected in MGM v. Grokster, 545 U.S. 913 (2005). A vague requirement that the US recognize third-party liability in copyright ("and related rights") wouldn't change existing law one iota.

Paragraph 3 provides for limitations on liability against "online service provider[s]" for infringements by their users. To benefit from such limitations, service providers (including ISPs and hosts) must "adopt[] and reasonably implement[] a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" by, for example, "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." In addition, to obtain the limitation on liability, service providers must "expeditiously remov[e] or disabl[e] access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification." Sound familiar? It should; this language is taken almost verbatim from Section 512 of the DMCA, which, of course, provides safe harbors from liability for service providers that have a notice-and-takedown (and counter-notice) procedure and terminate repeat infringers.

And Paragraph 4 of the ACTA draft would require signatories to prohibit "the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram," as well as "the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure." Again, this language should be familiar to anyone who has ever read Section 1201 of the DMCA, which similarly bans circumvention of DRM, as well as trafficking in devices that do just that.

ACTA opponent Prof. Geist allows that the draft "
may not specifically require three-strikes," but says that it "clearly encourages it as the model to qualify as a safe harbour from liability." He goes on to say that "This leaks [sic] shows how deceptive the USTR has been on this issue - on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model." Huh? How is USTR deceiving anyone? Nowhere does this draft "specifically cit[e] three strikes as [USTR's] proposed policy model." Rather, it merely says that one "example" of a "policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" would be "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." And again, a requirement to terminate repeat infringers in appropriate circumstances as a condition for a limitation on liability is already in US law. See 17 USC § 512(i)(1)(A). If such a provision counts as "three strikes" provision, well, then the US already has a "three strikes" law.

I realize there are people out there who don't like copyright enforcement; they don't like secondary liability, or Sections 512 and 1201 of the DMCA. So it makes sense that these people won't like an international agreement that mirrors these pre-existing laws. And they're obviously entitled to their views. But if they're going to argue that ACTA would change existing US law, they're not going to find evidence of that in this leaked draft -- or, as far as I can tell, anywhere else.

Update: Read Nate Anderson's piece in Ars Technica, which similarly concludes that the draft "simply reflects existing US law."


  1. Hey Ben

    Do you think if the public was fully made aware of the talks behind ACTA, there wouldn't be as much dissonance? Because reading this, I agree that I don't see much added that isn't already there for copyright violators to shake in their boots about. Generally, people tend to disagree with laws they have no input about, though.

  2. @Nate:

    I do agree that the lack of publicly available information has given room to the copyleft to engage in wild speculation about what might actually be in there. But I also don't think the lack of public information should let them off the hook for their falsehoods; a lot of the rhetoric about what ACTA would supposedly do has been reckless and irresponsible. See, e.g., Cory Doctorow's hysterical (and false) rant about how ACTA "means that it will be impossible to run a service like Flickr or YouTube or Blogger" and that "ISPs [would] have to proactively police copyright on user-contributed material."

  3. I agree. It would have been better, in hindsight, if the ACTA had been perhaps put negotiated in a slightly more open way. But the hysteria about it is really over the top. It will not change existing law in any significant way, but will give IP owwners and law enforcement a slight leg up internationally over what they have today.

  4. The mini-1201 portion of this draft has a weird, nested definition of "effective technological measure" that makes it unclear whether this draft tracks our Section 1201 distinction between protecting "access" and protecting "a right of a copyright owner." It also lacks a triennial rulemaking that would grant exceptions for, e.g., professors and the print disabled, which our 1201 has. Parties "may" elect to make these exceptions, but then again, they may not.

    So U.S. law may be consistent with the requirements of ACTA, but ACTA is not co-extensive with the requirements of US law. Specifically, it includes all the enforcement, but only some of the exceptions.

    Also, while the U.S. can say it complies with these requirements in virtue of existing case law on 3rd party liability, ACTA could mean that other parties are pressured to codify that liability in a less flexible, and perhaps more draconian, form. Case law can evolve over time, and domestic 3rd party liability is hardly settled and well-defined. Again, the danger of ACTA seems to be mostly for the other countries, as they may be obliged to subject their populations to more onerous copyright enforcement than exists in the US. Hence Geist (a citizen of that pirate nation, Canada) is more worried than you are.

  5. Ben,

    But changes to US Law are required. The United States has signed the Berne and WIPO Treaties, and is not yet in compliance with them. Therefore changes are required.

    In case you don't believe me, do a careful read of the WIPO Treaties, and then read the DMCA. The DMCA has requirements that the WIPO Treaties do not have, and is missing requirements that the WIPO Treaties do have.

  6. @The Mad Hatter:

    I don't understand your comment. My post was about ACTA -- not Berne or WIPO. And I was responding to claims that ACTA would require changes in US law. Now that we've seen the draft Internet chapter, it's clear that it mirrors US law. Thus I fail to see how ACTA would require changes in US law. Feel free to respond, with specifics, about how this draft Internet chapter is supposedly different from current US law.

  7. Ben,

    Agreed - you post was about ACTA. I was just pointing out that you are currently not in compliance with treaties that you have signed, and that to come into compliance, you will have to change the law.

    If you read what I wrote, I did not say that ACTA would require changes to US Law. It might, or it might not. Since I haven't read it, I don't know. I do know that if you wish to bring your laws into compliance with treaties that you have already signed, you need to make changes.

  8. Predictably, the text reveals new attempts to export the DMCA to other countries. While to date this has been done mainly in bilateral FTAs this represents the broadest approach. Just like the Special 301 reports, other countries will push back on this imposition of the US approach on the rest of the world.

  9. Ben,

    I always appreciate your analysis, even (and especially) when I disagree.

    I think the comment above about ACTA not being co-extensive with US secondary liability law has it right, and I elaborate on that issue in a post here:


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