from the third-party-criminality dept
KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."Of course, definitions matter here. In this case, the question is what constitutes "rights piracy on a commercial scale." Beyond the troubling notion that these negotiators are using such an inaccurate and imprecise word as "piracy" in such a big agreement, the commercial scale definition is quite broad:
"significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain"Consider this the "let's criminalize The Pirate Bay" clause. Of course, it could also be read as the "let's criminalize the VCR clause" as well -- which is why this is so troubling. It's one thing to add civil penalties and liability to third parties through some sort of misguided secondary liability policy -- but it's really pushing to dangerous extremes to add criminal liability to that as well.
Now, let's look at the potential unintended consequences of such language. It effectively could outlaw Google. Google, without a doubt, can be used to "aid" or "abet" "copyright... piracy on a commercial scale... that have no direct or indirect motivation of financial gain. Now, those in support of this bill will quickly insist that no one is going to use it to shut down Google. And they're probably right, given Google's brand recognition. But the fear is that they would almost certainly use this to shut down the next Google-like company before it had a chance to get very big. This is what happens when you have technologically, economically clueless bureaucrats trying to protect a dying industry. You get bad regulations that have massively dangerous unintended consequences.