Even If ACTA Doesn't Include Filtering Or Three Strikes, There Are Things To Worry About

from the let's-take-a-look... dept

So after months and months of people asking the USTR to reveal what's in ACTA, Public Knowledge finally got Stan McCoy to confirm that it won't include three strikes or mandatory ISP filtering. While some of the other leaks had indicated that both were on the table at some point, it's good to see the USTR confirm that they're not, though it's still not clear why they won't reveal what is in the document.

Still, that doesn't mean it won't impact US law in potentially dangerous ways. In particular, a lot of what it will try to do is lock in US case law that hasn't been established by Congress, and which other countries have differing opinions on. So, for example, if it locks in contributory liability (something the courts have ruled on, but Congress never included in the law), it will massively hinder Congress' ability to fix this mistake by the courts. As Sherwin Siy, from Public Knowledge noted:
That analysis hints at changes to international norms on "third party liability"--such as contributory infringement, vicarious liability, or inducement of infringement.

These are areas of law that, in the U.S., are defined almost entirely by court decisions, which build in nuances and balance to the application and enforcement of the law. One of the dangers of trying to codify these doctrines into an international agreement is that it can freeze the law as it is currently, preventing the courts from adapting case law to adjust for new developments in business, technology, and culture. There’s also the risk that binding the United States to an international set of standards will actually hamper Congress from enacting needed reforms to our copyright system.

Nor can we so quickly dismiss concerns about filtering and 3 strikes policies--even if the U.S. isn't pushing for legal obligations or mandates, there has been a constant, concerted effort by the largest record labels and movie studios over the past year or more to negotiate their own private 3 strikes agreements with ISPs. Filtering also remains a big topic for content industry lobbyists. Both of these measures, even if not mandated by laws, are often pressed upon ISPs and their customers as "voluntary" agreements, with threats of expensive lawsuits waiting in the margins if they don't comply. Even without mandating these procedures, laws, treaties, and executive agreements like ACTA can give them a great deal of cover by endorsing such "private agreements," adding a veneer of legitimacy to practices that otherwise would raise greater alarm at their impact on privacy, or simply their false positive rate. ACTA's focus on penalties can also incentivize potential plaintiffs to push harder, and for potential defendants to cave.
Indeed, what many people have pointed out is that the really pernicious part of ACTA is in reading between the lines. There are already international agreements on intellectual property that include clear safe harbors and consumer protection. What's notable in the leaked drafts of ACTA is that such things are missing. So even if it doesn't force the US to change the law, it could very much hinder attempts by US to come to its senses and fix the broken parts of the law.

Just as we were discussing problems with the DMCA today, the drafts of ACTA suggest that they will lock in some of the DMCA's worst features, such that the US would be hindered in correcting those mistakes, and, even worse, other countries would be prevented from putting in place better solutions as well, which could be useful in convincing US politicians that the more draconian parts of the DMCA are a mistake. ACTA doesn't need to explicitly change US law today to have a serious impact on US law in constraining Congress from fixing its broken parts. Things like secondary liability, which were entirely decided by the courts, despite not appearing anywhere in the law, are quite problematic -- and ACTA is looking to lock them in, so that Congress couldn't even fix that mistake by the courts. That's a serious problem.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Hephaestus (profile), Feb 11th, 2010 @ 2:32pm

    The one that has me most worried recently is ...

    "Things like secondary liability, which were entirely decided by the courts, despite not appearing anywhere in the law, are quite problematic -- and ACTA is looking to lock them in"

    I noticed that about a week ago. Very scary because once used in one law it will be used in others.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    :Lobo Santo (profile), Feb 11th, 2010 @ 2:43pm

    Mountain Man!

    Seriously, sometimes shit like this makes me want to move away from all civilization... Wander the Pacific or build a moon-rocket or something!

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Hephaestus (profile), Feb 11th, 2010 @ 2:56pm

    Re: Mountain Man!

    Fight or Flee my advice fight ... a quoke from Edmund Burke comes to mind ... 'All that is necessary for the triumph of evil is that good men do nothing'

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Feb 11th, 2010 @ 7:18pm

    OFF TOPIC alert

    i just caught chrome updating itself wihtout permission
    UNINSTALL TIME

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    bob, Feb 11th, 2010 @ 10:26pm

    That's The Problem

    Still, that doesn't mean it won't impact US law in potentially dangerous ways. In particular, a lot of what it will try to do is lock in US case law that hasn't been established by Congress, and which other countries have differing opinions on. So, for example, if it locks in contributory liability (something the courts have ruled on, but Congress never included in the law), it will massively hinder Congress' ability to fix this mistake by the courts. As Sherwin Siy, from Public Knowledge noted:

    The change from Constitutional law to case law.
    If it's not in the Constitution and no law was made by Congress, then it's not a law.

    When Congress makes a law they put down in that law what the laws intent is, then a bunch of Judges mess that all up.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Chris Brand, Feb 12th, 2010 @ 11:42am

    Be careful not to read what you want to hear

    The quote is "Mandatory filtering by ISPs would go beyond existing U.S. law, as would a mandatory “three strikes” approach to termination of repeat infringers. The U.S. Government is not seeking these or any other obligations that would go beyond U.S. law in the ACTA. ".

    that doesn't say that three strikes a mandatory filtering aren't in ACTA, just that the US govt isn't trying to get them in there. Most likely they asked their EU pals to put them in there. After all, isn't that how you ended up with the DMCA ? It was rejected domestically, so put into the WIPO treaties, and then presented to Congress as "now we have to ratify these treaties".

    "not seeking" is a long way from "is opposing".

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Hamish MacEwan, Feb 16th, 2010 @ 2:34pm

    Coloring Inside The Lines

    Nice to see this point being recognised. At the Google panel discussion on ACTA the IPA shill was insisting there would be no change to US law required, that ACTA would "color inside the lines."

    What no-one pointed out was that once you have done that, it is very difficult to move the lines which may become necessary. But ratcheting is what copyright law is all about so it shouldn't come as any surprise.

     

    reply to this | link to this | view in thread ]


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