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.