EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google

from the third-party-criminality dept

While the EU Parliament has decisively denounced ACTA — both in terms of the process and the substance of the (still secret) draft agreement, it appears that the EU negotiators are still pushing to include draconian provisions in ACTA. KEI has discovered that the EU is proposing to make inducement a criminal offense, rather than just a civil one:

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.

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Comments on “EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google”

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Trevor says:

someone forgot to take their medication...

This is, pretty much, the worst they could do. What could top third party criminal liability?

Don’t get me wrong, I consider that third party civil liability and first party criminal liability are insane proposals in their own right, but third party criminal liability is completely off the charts insane.

The problem is that under these conditions, I am seriously considering emigrating to South America or Africa or some fucking island in the middle of the ocean, because there’s no way you could survive as an entrepreneur doing anything technology-related in an ACTA country under these terms.

It is probably one of those “let’s ask for ridiculous terms and they’ll settle for third party civil liability” ploys, but that doesn’t make it any better. Who are they kidding? Let’s play the following game: How many of the people who can actually grow these countries’ economies are going to stay and how many are going to emigrate to some saner pastures? Do they actually think that the US or the EU are such wondrous places than nobody even considers emigrating and just giving them the finger on the way out? I’d like to see who is going to pay their salaries, pensions and bonuses when most of the people who aren’t just plain sheep without any capability of independent thought have emigrated to Brazil, Uruguay, Chile, Argentina, South Africa, or, heck, even New Guinea or Fiji or something like that?

A Dan (profile) says:

Re: someone forgot to take their medication...

Ever read Atlas Shrugged? Because that’s what you’re talking about. All people capable of being successful are bound with red tape by a clueless or malicious government, until they get frustrated and leave. The issue in the real world is that there’s no hidden valley for people to run to that they won’t be found. We’re all stuck on this planet, especially in the probable future of more global government and laws so that nowhere allows innovation.

Sorry about the slightly offtopic response, everyone.

Trevor says:

Re: Re: someone forgot to take their medication...

Yup, that’s quite Atlas Shrugged-ish and not at all off topic.

But I disagree with the fact that there’s nowhere to go. Fortunately, there are countries that aren’t a part of this charade, and they’re looking more and more appetizing.

You know, you can sense something’s not right when you start thinking that Russia, South America or Africa might be a better place for business than the US, UK or France.

Most sheeple will say “B…bb..but you can get kidnapped or stuff in these places… You don’t have safety and security and Big Brother to take care of you…” and my answer is “I’d rather have to sleep with a shotgun under my pillow but be free to conduct my own business than live in a gilded cage so that I don’t get a boo-boo.”

Trevor says:

Re: Re: Re: someone forgot to take their medication...

I would love it if we could establish self-sufficient off-world habitats. Unfortunately, we don’t have the necessary technology for that… yet.

There is a less technologically demanding alternative, though: seasteading ( and Not there yet either, but I think it has promise and it is definitely easier to achieve than off-world habitats.

Anonymous Coward says:

the problem is that the real pirates are trying to hide amongst the legal and straight companies. so what happens is that any law designed to hit the pirates does collateral damage.

it is silly though to compare google to the pirate bay as google is very good about addressing dmca style complaints and the pirate bay gives everyone the finger. i dont think that google has much to worry about as long as they remain responsive.

Trevor says:

Re: Re:

Instead of changing the existing laws, which are a basketcase and are almost entirely disconnected from the realities of a world in which the Internet has been invented, people try to “design laws to hit pirates”. What part of that makes sense to you? Especially when those laws create collateral damage!

“i dont think that google has much to worry about as long as they remain responsive.”

The point Mike was making, which I agree with entirely, isn’t that Google would have to worry about (even though they should, because things can change quite rapidly if something like this comes into effect), but that there won’t be another Google-like company coming up as long as this king of law is in effect because any company getting big enough to challenge the status-qvo would be clobbered into the ground. Clobbered into prison, to be more precise… But, then again, the US seems to be very big on using inmates as slave labor, so I can one direction in which this thing might be going.

Anonymous Coward says:

Re: Re: Re:

and the mainstream media and how the laws have evolved outside the Internet is strong evidence of this. The mainstream media is completely corrupt and industry owned and controlled and free speech does not exist and it’s the laws in place, granting unearned monopoly power to the status quo, that provides for this.

PaulT (profile) says:

Re: Re:

“google is very good about addressing dmca style complaints and the pirate bay gives everyone the finger”

…which makes ZERO difference to whether they commit the crime of “inducement”.

“i dont think that google has much to worry about as long as they remain responsive.”

So, The Pirate Bay (or any other service that “enables” infringement) can continue their activities legally as long as they respond to takedown notices? So, what’s the point of the law?

Flakey says:

Law in the making

When DMCA was being considered, it was the statement by the RIAA that it would only be used by them to address the current problem of digital unlocking.

I made a point at that time in comments (not here) that it was a federal law being made which meant anyone could use it, not just the RIAA.

We’ve now seen what a quagmire that has become with the latest method to do takedowns. No one can really figure out which is infringing and which is not but everyone has to jump through their butt to make sure it gets off line or be responsible if it is actually infringement. Even the IP holders aren’t really sure and the latest case of Viacom, suing Utube for infringement, still having to remove some of the titles claimed after three years is a good example of just how bad things are in figuring that out.

This is the same sort of setup on global scale that will lead to such a mess that ten years after it goes into effect, it will make a total disaster of the internet, it will supply the fodder to kill innovation and startup companies that actually do supply jobs, and will lower the economical standards for all countries involved.

It’s yet another example of how governments (especially the US) is not serving the needs of it’s citizenry and instead is serving the needs of those that will pay the most.

Flakey says:

Re: Photocopy machines inducing copyright infringement

Why stop with just photocopy machines?

Every time you look at an internet page, you downloaded the page to view it. To do so, you made a copy. Without seeing the page, how would you get the author’s name to obtain permission?

There is also in all this one little dark secret no one is talking about and happens everyday and has for a long time. Do you think for one minute that anytime a lawyer makes a copy of his written evidence for court, that he first gets permission from the author of the text involved? Not a chance. Yet no one bothers the methods that have been used in courts over the ages to pass information pertaining to courtroom needs.

Christopher Gizzi (profile) says:

Where does it begin? Where does it end?

With such broad language, this outlaws the entire Internet.

Google is the search engine, but what about the hardware makers like Cisco? Are they obligated to abide by the law and prevent file sharing? Are they to make their product less valuable because their routers could be used to abetting violating copyright? They can include deep packet inspection, after all; would not having it in their products could expose them to criminal charges?

Twitter and Facebook fall under Google’s category. What about URL shorteners? What about software as a service like (there is a difference)? Web hosting companies could be held liable. What about Microsoft, Apple, and the open source OS makers? If they don’t include protections against unauthorized backups, distribution, and publishing in their software, could they be held liable? I’d argue, yes, they can under such broad language. The Internet would crumble and we’d be sent back to the cultural and informational dark ages.

And for the naysayers who think it would never come to that, I say take a look at the recent Google decision in Italy where, effectively, a 3rd person is liable for the actions of its users without knowing the video’s contents. Look at the filtering régimes and the oppressive laws which make it a crime to own or play a violent video game.

Why would they agree to this stuff? says:

I can understand why the US would want something like ACTA – they have pretty much exhausted their own natural resources and have priced themselves out of the manufacturing business. Yet their citizens still want to have the highest living standards in the world.

So what can they sell? Ephemeral stuff like entertainment and IP.

But what I don’t understand is why any other country would buy into such a lop-sided deal. How can the US ‘persuade’ everybody else to do something that only benefits the US.

Oh, yes, I forgot they do have a rather large military.

Anonymous Coward says:

the over-broad way is the safe way, dudes!

See, when a law’s scope is excessively broad (even though “everyone knows” it’s only intended to target one specific thing *wink*) that means you don’t have the headache of singling out the thing you’re ostensibly trying to stop (and risk the public’s crying foul over singling out one thing while other, similar things remain unaffected). Plus! Then you get the joy of being able to apply enforcement arbitrarily–and that, my friends, is better than gold for those who hold power (psh, had plenty of gold anyway, thanks). When everything the people do is wrong, they can be punished at any time for any reason. What power, public or private, wouldn’t want that shit?

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