Full ACTA Draft Leaked… EU Wants Injunctions Against The Possibility You Might Infringe
from the well,-look-at-that dept
As a whole bunch of folks have been submitting, the text of a recent draft of ACTA has been leaked (pdf). It didn’t take long for some to convert the entire document to text, so that it can be analyzed and discussed more easily. Lots of folks are digging through the details, and turning up various gems. Michael Geist explores the different proposals concerning border searches of your iPod or other electronic devices. One of our readers, Robin, highlighted some specifically troubling points in the document. For example, on page 4, option 2 (submitted by the EU) includes:
The Parties shall also ensure that right holders are in a position to apply for an injuction against intermediaries whose services are used by a third party to infringe an intellectual property right.
Talk about a massive increase in secondary liability — something that negotiators have insisted was not in ACTA and that we were all crazy to suggest it. Note that there are no caveats here. No limitation if there are substantial non-infringing uses. And, it even goes beyond direct liability to allowing an injunction against third parties. This clause would outlaw Google. Thankfully, New Zealand specifically has come out against this proposal and Canada questions the statutory limitations.
Then on page 7, in Article 2.5 (Provisional Measures), we’ve got a whopper of a suggestion from the EU:
Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.
Yup, you got that right. They want to let anyone block the possibility of future infringement. That goes way beyond the law today, and reaches into “pre-crime” scenarios out of Minority Report.
And yes, both of those proposals came from the EU, whose chief negotiator just this week insisted that no such things were in the document, and that it was all exaggeration by people on the internet. He also claimed that the EU had nothing to hide, but now that the document is out, we can see why they were very much hiding it. Anyway, I’m sure additional troubling parts of the document will be highlighted pretty quickly.
Filed Under: acta, eu, imminent infringement, infringement, leaks
Comments on “Full ACTA Draft Leaked… EU Wants Injunctions Against The Possibility You Might Infringe”
Wow
I really can’t believe they think anyone would adobt this crap.
Re: Wow
They don’t think anyone would accept it as is, why do you think it is being done as part of a highly secret process?
The light just came on ....
the cockroaches are frozen for the moment … but soon … something will happen I wonder what it will be … big Ole GRIN
I need a list of e-mail addresses for the people doing the negotiations.
"This clause would outlaw Google"
I’m confused by your statement that the availability of injunctive relief against intermediary third parties would have the effect of “outlaw[ing] Google.” Wouldn’t it just mean that someone could join Google in an infringement lawsuit in order to seek an injunction that would require Google not to provide links to the underlying infringing content? I think it is reasonable to oppose this sort of provision, but it seems a bit alarmist to say this would “outlaw Google.” Perhaps I am missing something, though…
Re: "This clause would outlaw Google"
I’m confused by your statement that the availability of injunctive relief against intermediary third parties would have the effect of “outlaw[ing] Google.” Wouldn’t it just mean that someone could join Google in an infringement lawsuit in order to seek an injunction that would require Google not to provide links to the underlying infringing content? I think it is reasonable to oppose this sort of provision, but it seems a bit alarmist to say this would “outlaw Google.” Perhaps I am missing something, though..
The phrasing is broad enough: saying that judges could issue an injunction against the overall service itself — not just the links to the underlying infringing content…
Re: Re: "This clause would outlaw Google"
The prior sentence provides context to the scope of the injunctions that must be made available — injunctions “aimed at prohibiting the continuation of the infringement” must be made available. The Article clearly doesn’t mandate the broad sort of injunctions that you are intimating (i.e. injunctions that are not narrowly tailored to the infringement in dispute).
Again…I do not doubt that there are reasons to be concerned about ACTA, but it just seems that most of the assertions made about how outlandish it is ring pretty hollow upon inspection.
Re: Re: Re: "This clause would outlaw Google"
Admittedly, I don’t have the time or expertise to peruse the document However, the following phrase, ALONE, is reason enough to make said assertions.
“Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.”
Re: "This clause would outlaw Google"
The clause seems to be saying that absolutely anyone and their mother can get an injunction against Google because it’s possible to infringe via their search engine. You are apparently reading it as specific to the links, but that’s not what it says here. I’m not sure how a judge can place an injunction on a specific link anyways. Like that’ll stop anyone…
I don’t know if that qualifies as being outlawed, but it does effectively ban Google and just about everything else with a hint of user-created content.
Re: Re: "This clause would outlaw Google"
“I don’t know if that qualifies as being outlawed, but it does effectively ban Google and just about everything else with a hint of user-created content.”
If Viacom employees … I mean … users stopped uploading infringing content, then we wouldn’t have this problem.
Re: "This clause would outlaw Google"
“Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.”
So, if there was a lawsuit against Google for having been a gateway to infringement, then because their service can be used that way, there can also be an injunction to shut them down completely so that no future possible infringements can occur until the legal dust settles… Basically, if there’s even ONE single way that a new technology or something can be used for infringement, regardless of how useful it might be, rights holders can (and WILL) shut it down.
Re: Re: "This clause would outlaw Google"
Yeah, but what this is really talking about is a “Quia Timet” interlocutory injunction, a concept that already exists in most common law countries (eg USA, UK, Canada, NZ, Australia, etc…). Quia Timets are hard to get at the best of time because you need to prove not just that offending might occur, but that offending is imminent, that is that it is going to happen. You can’t just walk into a court and say “Bob is going to steal my money” grant me an injunction. You have to prove that on the balance of evidence Bob IS going to steal your money.
Interlocutory injunctions are generally even harder to get as they can in many scenarios decide a case before its arguments are heard. So most courts only hand them out when on the balance of the evidence presented the plaintiff has a very strong case and is likely to win. In some cases they are granted Ex Parte but those have even higher standards.
So you combine the Quia Timet and Interlocutory together and I imagine its going to be a mountainous task to get one granted for anything other than a serious and very, very well proven case. (as far as I am aware most countries already allow these injunctions so its nothing new, its just that they are so hard to get no one even bothers trying).
The other thing you need to remember is the maxim relating to injunctions (which are part of traditional equitable law) that a decision is made on the balance of convenience. This roughly means that by granting an injunction you cause more harm to the defendant than is ‘reasonable’ then an injunction would not be granted.
So given an understanding of how injunctions work and are applied I am less concerned about this. I think the remedies it proposes actually already exist in most places, just they aren’t as easy to get as some people here think. I cannot see how it would be possible under the jurisdictions I am familiar with for a court to “shut down google” because they “might be somewhere in the chain of offending”. The law in this area just isnt as black and white as Boston Legal led us all to believe 🙂
Re: Re: Re: "This clause would outlaw Google"
delighted to cede to you years of experience in law practice.
what concerns us outside the gates is the law of unintended consequence to your “…cannot see how it would be possible…”.
loosening the quotidien restrictions you’ve seen, at an international level, is playing with fire, again to those of us outside the bar (who do believe that when presented with an additional opportunity to increase billable hours, lawyers will not hesitate to do so).
Re: Re: Re:2 "This clause would outlaw Google"
Yup… unintended consequences… I believe technically called “Doh!’s” by those who create laws.
I’m really just saying that all those provisions suggested already exist in the laws in most (western) countries. So unintended consequences are really irrelevent (because nothing new is being proposed).
BUT!!!! What I really fear is that some bribed up politician would then take the covenants in the treaty and decide to turn them into draconian law, something that Chariman Mao would be proud of. And use that law to screw up the internet. Thats a very real fear and pressure needs to go on the politico’s so they know thats not going to happen.
Re: Re: Re: "This clause would outlaw Google"
“you need to prove not just that offending might occur, but that offending is imminent, that is that it is going to happen.”
Yeah, and people are going to use knives as weapons, it’s GOING to happen, but that’s no reason to outlaw knives. The post office is going to be used to deliver illegal goods including infringing material, but we don’t shut the post office down as a result. Same thing with Google. I think it’s impossible to ensure that zero infringement occurs but perhaps we can put in place a system that removes most infringing material in a timely manner.
Then again, Google shouldn’t have to face such an unnecessary burden in the first place, no one’s privilege to an unowed monopoly should require that anyone put in place an expensive system to stop infringement.
Re: Re: Re:2 "This clause would outlaw Google"
You miss the point. With the knife example you’d have to prove that someone was actually going to use it on someone. Your argument that “all knives get used as weapons and therefore that person will use their knife on someone” is weak at best. It wouldnt be hard for me to show plenty of cases where people have knives and dont use them as weapons. Even if the judge was high and agreed with you then at best he could just injunct me not to use the knife, if I did I’d get a fine for being in contempt of court. Whats the point (of course that would be in addition to the criminal conviction I would face). Certainly no argument there to ban knives. Also the laws around injunctions cant ban anything, they can only tell people to do something (which is a technical distinction only I know).
As for the post office, you couldnt injunct the post office to stop serving all mail. You’d have to specify which piece of mail they had to stop delivering. Injunctions are not as broad as you assume, they are quite specific. As it stands the law can force the bank to freeze an account and could (I believe) stop the post office from delivering a piece of mail (although maybe not in the US where you have certain entrenched constitutional rights which would override such an injunction).
I agree that Google shouldnt be forced to spend squillions of dollars stopping other people from doing illegal things. Thats not their job. I’m just pointing out that the argument in the article that these clauses would place that burden on Google are incorrect.
Re: Re: Re: "This clause would outlaw Google"
Just because something already exists does not mean it makes sense. In a justice system that is supposed to assume innocence until proof of guilt, a law like this does not make any sense.
We already have some corporations misusing the existing laws. Introducing something vague enough that the interpretations we have seen in the comments here alone can come up seems too risky.
Re: Re: Re:2 "This clause would outlaw Google"
Actually the “innocent until proven guilty” thing only relates to criminal proceedings. All above are actually civil provisions. In civil cases you just need to prove “on the balance of probabilities”, which is a much lower standard of proof. Courts will usually err on the side of the defendant, but it doesnt change the fact the level of proof required is lower than in criminal cases.
Re: Re: Re: "This clause would outlaw Google"
Favors can be bought and judges are human ?’
Obviously, it’s not about infringement or right holders, it is all about the governments taking control of the Internet. And the scary part is that it is the one thing on which they all agree.
Re: Re:
Don’t worry, I’m sure everyone will magically resume buying overpriced plastic discs.
Re: Re: Re:
oh, i wouldn’t be so sure that governments taking over the Internet isn’t in the ‘added bonus’ column…
but it seems more like ‘corporations bypassing the government’ than anything…
Re: Re: Re: Re:
err, manipulating governments on a global scale, even…
wow
communism thrives
Re: wow
Totalitarianism thrives.
There corrected that for you.
😉
Re: wow
In communist countries the artist receives a salary from the state, and it’s not influenced directly by sales of his works. As the art is “for the people” (as well as already paid for), there’s no notion of copyright or “intellectual property”, therefore no copying is illegal.
Re: Re: wow
“In communist countries everyone receives a salary from the state, and it’s not influenced directly your performance/ability.”
Fixed That For You
Sadly, the UK Govt's DE Bill has both of these in
http://bit.ly/ChinaBPI
That is some scary sh!t right there!
This one bill could define what the next 10 to 20 years of the internet will be like…will it grow and thrive as a free communications platform, or will be shackled and chained down by those who don’t (want) understand?
Welcome to the end of the internet free lunch. you stuffed your faces for too long and thumbed your noses at owners rights, and now you get to pay.
Re: Re:
And so do you.
Re: Re:
Only owners have rights. The public?
Guess not.
Re: Re:
No, it’s the fact that copyprivilege holders have stuffed their face too long with ridiculous privileges that last ridiculously long periods of time and have ridiculous consequences for breaking (and little consequence for falsely claiming such privileges) for too long. Welcome to the public awakening, where the public is waking up to this scam and is starting to form resistance to the point where governments will eventually have no choice but to listen.
Re: Re: Re:
To the bribing, sorry, lobbying of interests that run counter to the public, right?
This is it
I’m through with this bullshit.
I think it’s about time people who propose such laws get prosecuted.
I think a new law should be made that any one proposing laws that limit the internet and the free flow of information between citizens around the world should be cut off from their corporate sponsors and sent to Guantamo indefinitely – without any internet access.
And just to make sure – anyone even thinking about proposing such a law, or anyone suspected of thinking about proposing such laws or anyone suspected of knowing anyone who may be suspected of thinking about proposing such laws should also be imprisoned indefinitely.
Really, that’s the only way the internet, our freedom and democracy (what’s left of it) will be safe from these maniacs.
Re: This is it
The scary thing is that is is not a bill that will be voted on by our duly elected representatives. This is a trade agreement that is being negotiated by some politically appointed cronies the general electorate did not hire. No need to vote on this baby…just get each of the national negotiators to agree and it is a done deal. Who needs all the fuss of voters to get things done…regular citizens just get in the way of good government.
Re: Re: This is it
Yeah but remember that in most states (by this I mean countries, not the USA states) international treaties and agreements are not binding in Judicial decisions. So the executive government can sign an agreement and the courts are free to ignore it, unless that agreement is then made into law.
In practice most courts do take into account agreed international obligations when considering a case. But you couldnt initiate litigation against someone based on an international treaty, there would have to be something in the existing states laws or codes to do that.
Re: Re: Re: This is it
That is something they will do in the future ?’
Re: This is it
I’m almost there with you. But I would limit the prosecutions to anyone who proposes a law because “it’s on the Internets!”
I realize that this clause, “The Parties shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.”, is taken out of context, but my understanding of English would lead me to believe that this is not limited to Google.
If I use Time Warner cable to connect to the internet and upload infringing content to You-Tube, then Time Warner becomes the intermediary, and the IP rights holder apply for an injunction against them.
If I use my Verizon cell phone service to call a friend and ask them to send me some infringing content, then Verizon is the intermediary facilitating and could have an injunction filed against them.
Where is the limitation that this only applies to Google?
Re: Re:
it is not limited to google it means that someone running p2p with illegal movies can be shut down by action against the isp. it is the short way to get your service turned off. think of it as a world with fewer safe harbors and easy dodges.
Re: Re: Re:
What if you’re running P2P with legal movies and a few illegal ones, you know, because you don’t control your users?
That’s what the world needs! Less safety. More control!
Re: Re: Re: Re:
you were only going 100 mph for part of the trip. if it is the part with a radar gun you get a ticket. welcome to the real world.
Re: Re: Re:2 Re:
How is speeding like copyright infringement?
That’s right! It isn’t.
What about radar detectors? Also a part of the real world. Does this mean we set up a system that enables the police to install cameras in every vehicle? To make sure they don’t speed?
Less safety, more control!
Re: Re: Re:2 Re:
Better yet! Let’s make manufacturers of vehicles responsible for the action of their users!
Welcome to the real world. By the way, the offline world is nothing like the online world.
But you already know all of this, don’t you?
Re: Re: Re:2 Re:
bad analogy. A better analogy would be, one person went 100 Mph so everyone gets their cars taken away.
> on page 4, option 2 (submitted by the EU) includes
> something that negotiators have insisted was not in ACTA
There’s only one way to reconcile the two:
NEGOTIATORS CAN’T READ!!!
ThinkSpeak?
What?… you’re even thinking about the possibility of becoming acquainted with someone who might be thinking about the possibility of infringing on rights that possibly belong to someone we do business with? To the guillotine!
Again Thinking Outside The Box ...
Has anyone thought to forward this document off to the Tea Party and pirate party along with its history.
—————————
Dear member of the Tea party
Let me introduce you to ACTA the Anti Counterfeit Trade Agreement. An agreement being negotiated in secret on behalf of Intellectual property holder in the united states. Not only will ACTA trample the rights of the american people but the people of the world also.
List off how it violates the us constitution and US law.
– due process
– wire tap laws
– etc
– etc
List off how it will violate EU law
–
–
List off who is saying what
-USTR says it wont alter the law
-USTR says consumers and privacy advocates should have limited say in the new global agency
-French guy says it wont alter the law (not that I have much hope for the french standing up for this when the light gets shined on them, they always surrender)
-List all the trade reps that say that this wont alter the law in their respective countries
List how they are skirting the truth.
– US law will be altered in this way
– Canadian law will be altered in this way
– EU law will be altered in this way
ACTA text goes here.
List of representatives and contact info goes here.
Thank you for your time please feel free to forward this to any of your members ONLY after you do research to determine its validity.
Scincerely
———————————-
The line
“ONLY after you do research to determine its validity”
would be the kicker
Re: Again Thinking Outside The Box ...
Also forward this to every republican senator, congressman, and governor. They need more ammo to come up against the democrats. ACTA exposed and spun with the health care bill will win them the midterm election.
Re: Re: Again Thinking Outside The Box ...
And then they’ll do nothing about ACTA either.
Re: Re: Re: Again Thinking Outside The Box ...
or continue supporting it. it’s not like their set of vote buying lobbyists’ interests diverge from the democrats’ set of vote buying lobbyists’ interests.
two party systems are inherently made of fail
Any party system isn’t much better.
the very function of a political party is to subvert or remove democratic elements of the system it is within. (note that function is different from goals)
Re: Again Thinking Outside The Box ...
Also Forward this to Glen Beck … there is at least one great show in there about ACTA.
Re: Re: Again Thinking Outside The Box ...
I don’t think Glenn Beck’s media masters will let him speak ill of all their hard work.
Then again, Beck is insane. Or craven. Same shit, different pile.
Re: Re: Re: Again Thinking Outside The Box ...
“I don’t think Glenn Beck’s media masters will let him speak ill of all their hard work.”
Agreed but on the off chance ….
Re: Again Thinking Outside The Box ... and the finishing touch
The RNC wants the Tea Party to become part of it ….
Personally I do not believe that is going to happen.
Email all the heads of the Tea Party and CC every RNC and elected republican with the above letter. Talk about lighting a fire under the Republicans asses.
Just a thought …
Re: Re: Again Thinking Outside The Box ... and the finishing touch
Oh and one last thought BCC everyone thats a libertarian.
Re: Again Thinking Outside The Box ...
That won’t work.
Re: Re: Again Thinking Outside The Box ...
Explain why it wont work
But is it legal?
I was under the impression that Congress was given power to regulate commerce. Is this changed hands? Can it be circumvented by an Executive Order or Trade Agreement?
Pretty sure this power is granted to Congress in Article I, Section 8, Clause 3 of the US Constitution.
As for the text,
Page 4 says that “lost profits at market price” can be recovered by the rights holders. Based on the fuzzy and bloated math we’ve all seen from rights holders, and existing case law such as the Jammie Thomas case, it only invites lawsuits as a way for these companies to meet or exceed market analysts expectations for many of these publicly traded companies.
Page 5 talks about establishing a system for determining “pre-established damages”. How are these “pre-established damages” determined? Who sets them? Do they vary from fiscal quarter-to-quarter? Month-to-month?
Page 5 also requires each country to delegate (or more likely, create) an authority to oversee and investigate ACTA specific issues. This will probably mean creation of a new International Copyright Enforcement team for each Country. The wording is inconclusive, but for the US, it could be like creating a new DHS or FBI. This will probably in turn require additional legal-based headcount at your ISP resulting in higher ISP costs.
In continuing skimming of the article, did I not see any mention of Consumer Rights being protected. It seems to It seems to escalate the current Supply-Side Economic approach without considering potential opportunities if these companies took a Demand-Side (or more Keynesian) approach. This is a big issue.
In conclusion, should this pass in the dead of night, I anticipate the market taking a dynamic move away from the current commercial-copyright marketplace in favor for alternatives such as Lessig’s Creative Commons.
Re: But is it legal?
” I anticipate the market taking a dynamic move away from the current commercial-copyright marketplace in favor for alternatives such as Lessig’s Creative Commons.”
I agree with you analysis. Its one of the big unintended consequences of an agreement of this sort. It will come back to bite the media companies and the intelligence community in the ass. The media companies as people start following the australians example and find alternatives under CC, Orphan, and OOC for music, as people start creating high end movies using low cost tools, as college and high school radio stations stop playing big media music and start playing CC and this slowly moves main stream.
The intelligence community as will begin having problems as more and more internet traffic becomes encrypted and it does nothing to curb infringement. When the entire internet is encrypted and anonomyzed the intelligence community will be at a disadvantage.
But is it legal?
Adding to previous comment:
Oh wow. On Page 5, it says “Each Party shall provide that it’s judicial [competent] authorities except in exceptional circumstances, shall have the authority to order. at the conclusion of civil judicial proceedings…
What is an exceptional circumstance? How is it applied? What happens in an exceptional circumstance? Could a multi-national company request the case be heard outside of the juristiction which the supposed infringement took place? Could a Rights-Holder get a PO Box in East Texas and then request to move the case from Stockholm to East Texas?
What is an “Exceptional Circumstance”?
This is getting laughable.
So what are you going to do about it?
Shake your fist in indignant and impotent rage on the internet?
Re: So what are you going to do about it?
I’ve written to my representatives. I’ve told others what ACTA is and how it might affect them. And yes, I’ve bitched about it on the interent. What have you done?
I wonder what would happen if a cyberattack hit all known sources of ACTA?
I think chaos would ensue. Also, kill all negotiators of ACTA, for crimes against humanity.
It’s really time to start talking prosecuting those negotiators for conspiracy.
“Crimes against humanity”?
What the hell are you speaking of? You’re way too easily excitable. I could hold a marshmallow in front of my dog and it seems you’d have the same response.
And especially you, who eejit who wants to “kil all negotiators of the ACTA”
Good Lord! Take a breather!
Re: Re:
I agree. They just need to be metaphorically kicked in the nuts.
goodbye due process, it was fun
some more whoppers:
section 4, Para 29(Option 3ter) wherein the u.s. states that any service provider of any sort’s safe harbor is conditioned upon:
and
section 2, para 28(option1):
goodbye due process, guilty until proven innocent.
Section 4, Para 28-III wherein the u.s. states it’s belief that rogue service providers are those who:
which as mike mentioned, is outlawing google.
well maybe
If google had blocked those dirty jokes in brazil in the first place, none of this would be happening.
Here’s a thought. Everyone print up flyers detailing info about ACTA and how it would affect us, then go to the nearest major movie theater and start handing them out, encouraging the people there not to see movies and thus, not support the industries behind the bill. Do this long enough and widespread enough and you’ll get attention. ACTA depends on secrecy, so deny it that. And deny the industries behind it their revenue. Starve it into submission.
The Rich Guys Will Never Stop
ACTA is only to protect capitalists and capitalism.