Eric Goldman points us to yet another example of ridiculous statutory damages rules around copyright creating awards in court cases that have no connection to any real harm. And, this time, it involves the violation of the highly questionable (and controversial) anti-circumvention clause of the DMCA. The case involves an online game, MapleStory, and some people who set up an alternate server, UMaple, allowing users to play the game with the official game client, but without logging into the official MapleStory servers. This kind of thing happens all the time.
In this case, the people behind UMaple apparently ignored the lawsuit, leading to a default judgment. However, even there, it appears that MapleStory went too far, and the judge is clearly annoyed with them at times. Even though judges often side entirely with winners in default judgments, in this case, the judge repeatedly expresses skepticism about arguments made for determining "damages" to be awarded. Thus on most of the claims, the judge seems to look for ways to avoid giving MapleStory much, if any, money. For example, in determining profits made by UMaple, the judge repeatedly knocks MapleStory for failing to show what profits were specific to UMaple's infringement, telling it that it can't just assume all money made by UMaple belongs to MapleStory. So the judge dumps a request for $68,764.23 in profits made by UMaple down to just $398.98.
But... then we get to the anti-circumvention stuff. Here, the ridiculous statutory rates set a minimum of $200 per infringement. Multiply that by 17,938 users of UMaple... and you get $3.6 million. MapleStory, of course, asked for the statutory maximum of $44,845,000, which the court refuses to grant. In fact, the judge chides MapleStory for its request for the maximum -- even to the point of noting that the arguments by MapleStory make it "question very seriously whether Plaintiff intended to actively mislead the Court or whether these oversights were merely the result of poor legal research."
The court then notes that the minimum statutory amount -- the $3.6 million -- is already "a significant windfall to Plaintiff far in excess of any amount necessary to deter future infringing conduct," and also that the "award here likely bears little plausible relationship to Plaintiff’s actual damages." In fact, it sounds like the court would very much like to decrease the amount, but notes that "nevertheless, the court is powerless to deviate from the DMCA's statutory minimum."
As Goldman says, this is "guffaw-inducing", because the minimum award seems to have no bearing on the actual seriousness of the infringement. As he points out:
this case does provide an excellent example of the ridiculousness of anti-circumvention statutory damages. $3.4M can't be the right damages award in this case, and it's so guffaw-inducing that it further erodes the legitimacy of our copyright rules.
Indeed. And yet no one seems interested in exploring just how disconnected statutory damages are from reality.
We're so inured to hearing about unjustified claims of copyright infringement going unpunished that's it's good to come across a case where extensive damages were awarded for the harm caused. It concerns a film that the Australian artist Richard Bell made in New York, with the help of an assistant called Tanya Steele:
Between June 2009 and September 2011, while on a fellowship in New York, Mr Bell produced and directed approximately 18 hours of raw footage for a film “The Blackfella’s Guide to New York”. He engaged Ms Steele to help him make the film, and paid her for these services.
Mr Bell made a trailer from the raw footage, which his agent posted on the Vimeo website.
Then things started to turn unpleasant:
Ms Steele, through her American lawyers, sent letters to Mr Bell and his agent claiming that she owned the copyright in the footage and demanding that the trailer be removed from the Internet. She also caused the Vimeo website to remove the trailer.
Mr Bell’s agent did not display the footage on the Internet, postponed a showing of Mr Bell’s artworks, and delayed the sale of a catalogue of Mr Bell’s artworks that included a still from the trailer.
In response, Bell went to the (Australian) courts, which declared him the owner of the copyright in the film, and deemed Steele's threats "unjustifiable". Bell then asked for damages. These were granted in the latest judgment because Bell had lost the opportunity to sell some of his works, which typically cost tens of thousands of dollars, as a result of Steels' threats. The Australian judge awarded over $150,000 in damages plus another $23,000 costs against her.
The decision sets an important precedent. As far as we are aware, this is the first time damages have been awarded where a third party had content removed from the Internet without legal justification. In light of this decision, if a person falsely tells a file-sharing or social media website that they own copyright in an image or movie to have it taken down, and in fact that is not the case, it could be actionable as an unjustifiable threat.
That's obviously good news in terms of deterring future unjustified claims of copyright infringment, at least in the Australian jurisdiction. But there are a couple of curious features about this case that are worth noting.
One is that Tanya Steele not only didn't turn up for the court case in Australia -- perhaps understandable, given the distance of Brisbane from New York -- but didn't even file a submission explaining her actions, so we don't really know her side of the story.
This video is no longer available due to a copyright claim by Tanya Steele.
The original problem was over a posting of the trailer to Vimeo (and to the agent's Web site), not YouTube, which is nowhere mentioned in any of the documents, so this seems to be a new takedown. Maybe the case isn't over yet...
This one is hardly a surprise. We've been arguing for a while now that the choices by Joel Tenenbaum and his lawyers in his file sharing case haven't made much sense. They've been arguing the case in a manner that basically begs the court to go against them. I really don't understand the legal strategy here at all. Back in September, you may recall, the appeals court reinstated the $675,000 award against him for file sharing 30 songs. That had been the original jury award, that had been unilaterally reduced by the judge in the district court. However, the appeals court noted that the judge basically used the wrong procedure to do this, and had to first give Sony Music the option to redo the case. In other words, the entire issue at this point was a procedural issue. Thus, I can't fathom why Tenenbaum and his legal team again tried to argue on the merits at this stage. It's not the right time for that argument... but they still went ahead and asked to rehear the issue with the full slate of judges on the appeals court. That request has been rejected, as pretty much everyone expected. Even worse, it sounds like Tenenbaum's didn't just not focus on the procedural issue at hand, but also sought to talk about larger issues, like how statutory rates were a way to go after a "generation of kids." Whether or not we agree with that general sentiment, there's a time and place to bring that up... and this wasn't it. What's really dumb here is that this seems to undermine whatever small chance he might have had if the case was argued in good faith.
Back in April, we went through the entire appeals court hearing concerning the appeal of Judge Nancy Gertner's reduction of the jury award in the Joel Tenenbaum case as "constitutionally excessive." The jury had awarded $675,000 or $22,500 per song. Gertner reduced it to $67,500, or $2,250, and argued that the higher rate was just ridiculous. Unlike Judge Michael Davis, who did something similar in the Jammie Thomas case, Gertner did not use the "remittitur" process.
As happens often enough in such things, almost nothing that was heard during the oral hearings really mattered in the decision. The question of due process and remittitur didn't even make it into the hearing -- or if it did, it was a very minor part that didn't make an impact. And yet, that issue was central to the court reinstating the original $675,000 award.
The key points here are really procedural. The court notes that Gertner jumped to the constitutional question, which judges are supposed to avoid if they can. The court also suggests that Gertner should have used the remittitur process, like Judge Davis, allowing the record labels to (as they would have) reject the lower amount and redo the trial. Of course, as we've seen in the Jammie Thomas situation, that seems to lead to a series of wasteful cases.
To summarize: the court here basically avoided the big questions and sent the ruling back, and reinstating the jury award because Judge Gertner jumped the gun, and went straight to the Constitutional questions, when there were still other steps in the process that needed to be taken. This seems disappointing and wasteful in terms of resources, but such are the rules.
Separately, the court, as pretty much everyone not named Tenenbaum or Nesson suspected, didn't give any weight at all to Tenenbaum's separate appeal arguing that the Copyright Act itself was unconstitutional. These arguments were never going to persuade the court, and seemed more like (wasteful) academic exercises all along. In particular, the court eviscerates the idea that mere "consumers" should be treated differently by copyright law than those who are doing more than consuming. It notes that such a distinction is not mentioned by Congress anywhere, and if it wanted to amend copyright law to fix that, it's had plenty of time.
So, for the most part, this ruling is procedural... though it does go out of its way to note that "this case raises concerns about application of the Copyright Act which Congress may wish to examine." Of course, by now we know that if Congress opened up the Copyright Act to tinker, the end result would almost certainly be worse.
Either way, I'm assuming this case is far from over, and Tenenbaum, Nesson and some other Harvard Law students will keep banging the drum -- though, to date, it hasn't been all that successful. This is definitely a disappointing ruling, but hardly a surprising one.
The latest in the ongoing trial of Joel Tenenbaum, the student who was found guilty of sharing 30 songs online, and told to pay $675,000 for it, until the judge unilaterraly reduced the amount to $67,500. As we noted at the time, it really seemed like Tenenbaum had horrifically bad legal counsel, in the form of Harvard law professor Charlie Nesson, who still seems more focused on making the case a circus, rather than focusing in on the key issues. That does not, however, mean there aren't key issues here, with the big one being the appropriate standards for determining how much one should have to pay if found guilty of file sharing.
The appeal was just heard on Monday, and you can listen to the oral arguments (mp3) from the court's website. It's definitely an interesting hearing and worth listening to. As with most appeals court situations, the bulk of the work is done in the briefs that were filed prior to the hearing, and which everyone is familiar with. The oral hearings get right to the point and drill down on where the panel of judges has questions.
The hearing opens with a representative of the US Department of Justice, which stepped in on the case, because it was concerned that the court might rule that the statutory rates for copyright infringement (which, of course, can go up to $150,000 per infringement in cases of willful infringement) were not meant for cases like a person sharing copyrighted music for their own pleasure, rather than any commercial purpose. The Justice Department sides with the RIAA (of course), in saying that it's just fine to apply copyright law -- which really was designed for commercial cases of infringement -- to kids sharing files. At least one of the judges appears skeptical of this, asking directly:
Was file sharing in existence at the time the statute was passed?
The Justice Department tries to get around this by pointing to the legislative record from the last time the statutory damage rates were changed, but the judge is not buying it. He immediately points out that if this is what Congress intended, it's quite odd that no such cases (or perhaps one other case -- by which they're referring to the Jammie Thomas case) have been tried, involving file sharing for non-commercial means. The judge clearly seems skeptical that copyright law was intended for such cases. While the lawyer tries to explain all of this away, with some claim about how everyone makes choices in who they sue, another judge chimes in and points out that for all the claims that Congress meant for these damages to cover non-commercial file sharing, wouldn't Congress also know that the law had never been used that way.
The lawyer again goes on to insist that since file sharing "greatly multiplies the harm" to the copyright holder (um... citation needed on that one...), Congress must have meant for such ridiculous statutory rates to cover file sharing as well. Again, the judges seem skeptical, pointing out that in this particular case, the only evidence was that Joel Tenenbaum downloaded 30 songs, and the RIAA presented no evidence that anyone else copied from him. In other words, they immediately push back on the claims of "harm." The lawyer, again says that there's lots of other evidence, even though the labels chose not to bring it.
Once again, the court is skeptical. They ask the DoJ lawyer: if Tenenbaum had sat down in a single setting and downloaded 1,000 songs, would it be appropriate under the law to claim he owed $75,000 for each download. And the lawyer says, effectively, yes, after going through the specific statutory rates ($750 to $30,000 for non-willful, and up to $150,000 for willful). Realizing how ridiculous this sounds, the lawyer tries to focus on the fact that the judge can tell the jury about mitigating factors and be specific in the jury instructions.
From there, the lawyer for the record labels, Paul Clement, steps in, and claims that the ridiculously high damages are fine because Congress wanted to send a message about the harm of "willful" infringement. He then goes on to rail about how Tenenbaum's downloading destroyed "the value of the copyright," and complains about how the district court judge likened downloading to public performance rights. At that point, another judge interrupts, and says that he basically doesn't understand "the mechanics" of infringement, and would like more specific info.
After explaining (somewhat misleadingly, but carefully) how file sharing works, Clement goes on to rail against file sharing as being incredibly damaging, because it pushes people who download to also upload... and immediately a judge cuts to the heart of one of the key legal questions:
Is "making available" the same as distribution?
Clement sidesteps this, by noting that while the RIAA obviously thinks it is, that's "not an issue in this case." The judge doesn't want to give up, though, and asks him if the record labels "have the technological capacity to determine if distribution was actually effectuated?" Again, Clement tries to get around this, by saying it doesn't matter in this case.
Another judge asks a pertinent question about damages, wondering if the actual damage to the record labels was just "the lost sales" from people not buying the music, and Clement, quite ridiculously, then tries to pin the entire demise of copyright law on Tenenbaum:
"It's more than that, your honor. It's really the complete undermining of the copyright. What I mean by that is you can't just isolate what's going on here as if it's an individual's, by copying it, has not gone and bought the work on iTunes or not bought the work in a record store when we used to have record stores. What happens is, by distributing it to others, there are... the viral nature of this technology, really has a substantial impact on the value of the work. And the way I'd ask you to think about it is this: one, I think, relevant question in a statutory damages case is, what would it cost to get a license for what the defendant has done. And, if all the defendant had done was making a copy and that was it, then maybe an analogy to just getting a copy off of iTunes would be appropriate. But here, by distributing it... if someone wanted to go to one of the record companies and say 'we'd like to do what the defendant did in this case,' the value of that license would be essentially the value of the entire copyrighted work. Because the effect of putting this work up on peer-to-peer technology is essentially you take a copyrighted work, and put it in the public domain."
He goes on to blame the poor financial state of the record labels on file sharing, and seems to indicate that we should blame Tenenbaum for this.
After a brief, and somewhat inconsequential, discussion by Julie Ahrens, representing the EFF (which the judges clearly didn't have much interest in, pointing out that any of the issues raised should have been raised to the jury, not to them -- even though that would have raised questions by the RIAA folks of an attempt at jury nullification...), we move on to Tenenbaum's own defense, which was handled (with permission) by a Harvard Law student, Jason Harrow. He kicks off his talk by pointing out that the Justice Department's claim that companies didn't bring such lawsuits for non-commercial infringement in the past because it wasn't cost effective, is on its face ridiculous. After all, if you can get $150,000 per infringement for someone infringing on a $1 work, how is it not cost effective to bring that lawsuit over and over again (just ask the various mass file sharing lawsuit filers...). Instead, he notes that the better explanation is that "no one thought that the statute would apply to such consumer usage."
One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense. The judges' questioning of Harrow seems focused on the specific standards and jury instructions, rather than on the larger issue.
Finally, Charlie Nesson presents, and goes through the history of copyright law, and how statutory damages were clearly, originally intended for commercial infringement, not non-commercial. One of the judges points out that the RIAA began these lawsuits in 2003, and if Congress was upset about them, it's had eight years to amend the statute to specify that statutory damages don't apply to non-commercial use. Of course, that ignores the reality, which is that it's effectively impossible for Congress to change copyright law in a manner that benefits consumers, since the entertainment industry would go ballistic. The court also chides Nesson a bit for "pushing the bubble" very far in some of his arguments.
Clement then comes back for a brief rebuttal, trying to claim that the very first Congress put in place statutory damages for copyright... which is immediately shot down by one of the judges, who notes that the Congress felt that statutory damages should not be punitive, which Clement tries to sidestep around (not very successfully, in my opinion).
And that's about it. If you had asked me prior to the oral hearing, I would have said that the court would almost certainly uphold the statutory damage rates as being perfectly reasonable. It just seems like the sort of question that the courts don't want to touch -- especially (as mentioned by one of the judges in the case) noting that Congress has said nothing on the issue in the last decade. However, I have to admit that I was surprised at how (I believe) two of the judges really seemed to dig in against both the Justice Department lawyer and the RIAA/labels lawyer, on the big key questions, and suggested, repeatedly, that they're not buying the overall claim. I'm still guessing that the court won't say that the award was unconstitutionally excessive, but I'm not nearly as certain after listening to the hearing as I was before it...
"Plaintiffs are suggesting an award that is more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877," Wood wrote, citing a Lime Group court filing referring to the inventor Thomas Edison. She called this an "absurd result."
In the past, we've mocked the popular "25% rule," which many patent system supporters have used in legal cases going back decades. The basic gist of this rule is that, in calculating "damages" for infringement, the patent holder should be entitled to 25% of the profits as an approximation of what a "reasonable license fee" would have been, while the company, who actually took on all the risk, should get the remaining amount. Patent system supporters have often pointed to this as being a generous solution, since it leaves 75% of the profits to the company who supposedly infringed. Of course, it leaves out the fact that any modern technology product today probably involves hundreds, or even thousands, of things that someone else will claim patents on. Still, the 25% rule is brought up regularly,and is rarely questioned by courts... until now.
In a ruling in a patent infringement lawsuit between Uniloc and Microsoft, the appeals court for the Federal Circuit (CAFC) finally pointed out just how ridiculous the 25% rule really is and suggested that it should die a quick death. The court noted how the 25% rule is widely used, and even how the district court was troubled by such a "rule of thumb" rather than any actual look into damages, but that since it was so widely used, the lower court effectively shrugged its shoulders, and let the 25% rule remain. The appeals court rejected this commonly used tool, however, noting serious problems with it. CAFC admits that it has been just as guilty in accepting the 25% rule in the past and many other courts have simply used it just because everyone else is using it -- but no one's ever really asked a court if it's legitimate. But, no longer:
This court now holds as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. Evidence relying on the 25 percent rule of thumb is thus inadmissible under Daubert and the Federal Rules of Evidence, because it fails to tie a reasonable royalty base to the facts of the case at issue.
The court then points out that the patent holder has the responsibility for demonstrating what the actual damages are and they must sufficiently tie the damages estimates to the facts of the case -- without doing that, and just using a rule of thumb, means that "the testimony must be excluded." The court doesn't beat around the bush here:
The meaning of these cases is clear: there must be a basis in fact to associate the royalty rates used in prior licenses to the particular hypothetical negotiation at issue in the case. The 25 percent rule of thumb as an abstract and largely theoretical construct fails to satisfy this fundamental requirement. The rule does not say any-thing about a particular hypothetical negotiation or reasonable royalty involving any particular technology, industry, or party. Relying on the 25 percent rule of thumb in a reasonable royalty calculation is far more unreliable and irrelevant than reliance on parties’ unre-lated licenses, which we rejected in ResQNet and Lucent Technologies....
.... Beginning from a fundamentally flawed premise and adjusting it based on legitimate considerations spe-cific to the facts of the case nevertheless results in a fundamentally flawed conclusion....
Separately, CAFC also rejected the idea of using the "entire market value rule," in determining a reasonable royalty rate. Again, the court dismisses this commonly used rule as not being tied to the specifics of the situation. This rule involves a patent holder trying to determine the reasonable royalty rate on the overall market value of a product, rather than figuring out the actual market value of the invention in question. This trick is useful for patent holders because they can toss out some huge number, to make any (otherwise huge) number sound reasonable. For example, in this case, the patent holder pointed out that Microsoft had made "approximately $20 billion" selling "the infringing product." When you use an amount that large, then a few hundred million dollars seems "small." The full market value is misleading, and CAFC makes that clear:
This case provides a good example of the danger of admitting consideration of the entire market value of the accused where the patented component does not create the basis for customer demand.... The disclosure that a company has made $19 billion dollars in revenue from an infringing product cannot help but skew the damages horizon for the jury, regardless of the contribution of the patented component to this revenue.
The court highlights how the patent holder's lawyers played up the "approximately $20 billion," and mocked a proposed $7 million royalty as only being "an effective royalty of approximately .000035%," which ignored, of course, that the patent in question was a very, very, very minor part of the larger product. In fact, Uniloc's lawyer specifically asked a witness:
And at the end of the day, the in-fringer, Microsoft, who violated the patent law, they get to keep 99.9999% of the box and the inventor, whose patent they in-fringed, he gets the privilege of keeping .00003%?
It's not hard to see how that clearly biases the jury. But CAFC is thankfully rejecting that too. While I often find that CAFC sides too strongly with patent holders, it's nice to see it pushing back a bit on some of the more ridiculous "rules of thumb" used for damages that are way out of scale with reality.
With Limewire officially shutting down following its (totally expected) legal loss earlier this year, you might have though the case was totally over. However, the record labels quickly claimed that with the loss, Limewire should have to pay a billion dollars, which seemed a bit extreme. In typical RIAA fashion, the labels didn't feel like they should have to prove any damages at all, but that the judge should just order statutory rates. However, Limewire asked the judge to have the record labels actually prove their losses -- and, somewhat stunningly -- it appears the judge has agreed, despite the record labels' claim that trying to prove damages would represent a "crushing burden":
On Tuesday, Judge Freeman said tough noogies, with some interesting language written in the margins of a court-endorsed memo to the parties. She scribbled -- barely legible -- that Lime Wire should enjoy enough discovery to mount a defense on the damages issue. Both Lime Wire and the labels must pick 100 works -- 80 songs and 20 albums -- that each believes to be representative of the damage (real or not) that file-sharing has on the record companies. In addition, 100 more works -- another 80 songs and 20 albums -- will be selected at random.
It's not entirely clear, from there, how each side will go about showing damages, but it is interesting that the plan seems to be to look for empirical evidence to determine actual damages. I'm really surprised by this -- since my understanding was that with statutory rates, the whole idea was that the copyright holder never had to bother proving any actual damage (something I disagree with -- but it's what I thought the law said...). Either way, it certainly would be nice if there were some reasonable data to work with, so this should be worth following.
The farce that is the Jammie Thomas-Rasset legal battle with the RIAA continues. In the third in a series of jury decisions, Thomas-Rasset has been hit with a $1.5 million verdict for sharing the same 24 songs, or $62,500 for each song. That is just slightly less than the last time around. From very early on, we had believed that Jammie Thomas' case was always a bad test case, and one where she likely would have been better off settling. There are important legal questions in these fights, but Thomas-Rasset's own actions greatly weakened her own case and served to distract from the important issues. However, she pushed forward. In the first trial, the jury awarded the RIAA (technically Capitol Records) $222,000, or $9,250 per song.
The judge then realized that he had made a mistake in issuing instructions to the jury and declared a mistrial. The second trial, apparently with proper jury instructions but lots more problems for Thomas-Rasset, resulted in a whopping $1.92 million verdict, or $80,000 per song. The judge then made the somewhat surprising move of unilaterally lowering the verdict down to (a still extreme) $2,250 per song. Neither side was particularly happy about this, and now the third trial is over and the jury has come close to that last award anyway. So, now what? One assumes the judge will reduce the award for the same reason he did last time and the case will finally move up a level for appeal.
The RIAA will, once again, gloat about this ruling, falsely implying that this is more evidence that "ordinary people" find such actions reprehensible, but that, again, is pure spin and ignores the reality of the situation. To be honest, this particular trial has become such a farce, that it's really not worth paying much attention to it until we get to dig into the real issues at the appeals court.
Well, as was expected, the latest draft text of ACTA has been released (pdf). Let's bulletpoint a few things up top, and then we'll discuss things in more detail down below:
This version is not final, and despite suggestions to the press to the contrary, there are still some pretty substantial differences between negotiating parties. Some of those differences are pretty big deals, as they could require changes to laws (if the countries want to be seen as complying) from countries who have insisted, repeatedly and publicly, that ACTA will require no such law changes.
While much of the worst of the document has been removed, the process by which this happened was hardly reasonable and open. Instead, it involved secrecy, misleading statements, ignoring important stakeholders until copies were leaked and concerned stakeholders shouted loud enough to be heard. As La Quadrature Du Net points out, this whole process was a counterfeit of democracy. Furthermore, this shows why all of the ACTA supporters, who insisted that people were making too big a deal about this, were flat-out wrong. There were some really, really bad things in ACTA initially, that appear to have only been removed due to loud protests from people who, otherwise, weren't supposed to even know what was in ACTA.
The document still has many, many problems. It's way too broad at points. It still would require changes to US law (contrary to claims by the negotiators). It also includes exports enforcement without consumer rights or protections and some troubling language with no legal basis. It's better than what was in the initial documents, but it's still pretty bad in some places, as detailed below.
So... what's in the actual document? We'll go through a few different reviews that highlight some of the differences in the document, and where many of the problem areas are. Michael Geist points out that the anti-circumvention stuff that sought to effectively export the US's draconian DMCA anti-circumvention clause has been greatly watered down and provides much more flexibility in how countries set their anti-circumvention plans. It's still ridiculous that anti-circumvention is in this thing, but at least it's not as bad as it was, and it leaves open the possibility of setting up anti-circumvention rules that recognize fair use (unlike the DMCA currently). This seems like a clear case where the US caved to other parties.
On injunctions and damages, there still appear to be serious problems with the text, and seem to go beyond current TRIPS requirements, and at certain points appear contrary to US law (despite claims from US officials that no changes to US law will be required). Once again, it's a case where ACTA tries to export the enforcement side but ignores the safe harbors and consumer protections. On injunctions, for example, TRIPS has some key protections for those who infringe unknowingly or for totally non-commercial use. Those are missing in ACTA. As KEI notes:
The ACTA does not permit the elimination of injunctive relief in cases where there is no remuneration paid. This is contrary to the provisions in U.S. law eliminating injunctions and damages against certain health care workers, or for manufacturers of biosimiliar drugs, in cases involving patents not previously disclosed by the incumbent drug company. ACTA seems to eliminate the limitation on the TRIPS, which concerns injunctions in cases where a person does not have prior "reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right." This makes the ACTA contrary to current U.S. laws concerning infringement of trademarks by newspapers and online publications, among other things.
On damages, the situation appears even worse. KEI highlights the following extremely troubling text:
In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.
This is, frankly, ridiculous. As has been discussed for years, the various industries have a long history of totally making up these numbers of "lost profits" that have absolutely nothing to do with reality. And, I'm still waiting for someone to show me how one "loses" profits. In the real world, you don't "lose" profits -- there is no such line on your income statement. You lose to competition and it's your responsibility to fix your business model when you do. As KEI says, this setup is "not based upon national laws in any country," and "clearly contrary to laws in several countries."
Sean Flynn's analysis notes that there are still substantial differences in what's actually covered by ACTA. The US has been fighting hard to remove patents from ACTA entirely, because it knows that it would have to change US patent laws to be in compliance (and it has said publicly many times that ACTA won't require changes to US laws). Unfortunately, everyone else seems to want to include patents:
The US has proposed that patents should be clearly carved out of the Civil Enforcement Chapter (fn 2). But as of now there are no other countries indicated as supporting this position. This is a major advocacy point for access to medicines groups. If the US does not carry the day, the claims of negotiators that the agreement will not limit important TRIPS tools to promote access to medicines will ring hallow.
Along those lines, there are still serious concerns that ACTA will allow border seizure of legitimate drugs in transit (something that has been a big problem). Legitimate generic drugs are seized in transit because a country that it ships through may have a pharmaceutical-lobbied law that blocks the sale of such drugs. Even if the drugs are not intended for that country (i.e., drugs made in India that ship via Europe to South America), European border guards are confiscating and destroying them. It appears that whether or not ACTA will deal with this is still in dispute:
As currently worded, and in contradiction to many public statements by the negotiators, the border measures section still extends to patents and to in-transit seizures. In fn 6 on page 9, there is proposed language carving out patents. But that language is proposed by the US and is not joined by any other party according to the text as released.
As for copyright issues... again, there are problems with the document:
The damages section contains many provisions that will encourage the over-enforcement and excessive punishment of copyright infringers. The text requires that countries to maintain a system of "pre-established" damages, as well as "additional damages," which means damages not based on any actual proof of harm. Such a system will over-deter the making of copies of copyrighted works where the copyright owner does not adequately serve the market on reasonable terms and conditions, and therefore does not actually suffer significant damage from the copy.
And, despite rumors to the contrary, this could apply to individual users:
The ACTA language is not limited to commercial scale infringement. So individual downloaders and copiers for personal non-commercial purposes could be subject to massive "deterrent" fines without proof of any market harm to the copyright owner.
As for fair use? What fair use?
The negotiators have failed to adequately protect the most important "fair use" and other rights of users with respect to copyright. The definition of copyright piracy does not include the reasonable suggestion to add language making clear that it "does not extend to copies that are lawfully made, without the permission of the right owners."
All in all, what we have here is a travesty of process. You had a bunch of industry stakeholders, who drove the process from the beginning, putting in extreme language and extreme ideas. Rather than having an open and honest discussion about these issues, and looking for consensus, negotiators chose to obfuscate, obscure and abstain from discussion. In the end, thanks to widespread public pressure and outcry -- including from elected officials around the world, negotiators clearly backed off many of the absolutely worst aspects of ACTA. But, remember, they started at one extreme, basically granting everything the industry stakeholders wanted, and then caved on pieces there, moving slowly back. So, the document still is based on the stakeholder's positions, with the changes being an attempt to appease everyone else. At no point was there an effort to build a document that actually recognized the rather legitimate interests of the public. And this is a shame.