let’s just recall a small list of sites and technologies the industry has insisted were all about infringement in the past: the player piano, the radio, the television, the photocopier, the phonograph, cable tv, the vcr, the mp3 player, the DVR, online video hosting sites like YouTube and more.
The negotiating parties have finally released an official draft of the Anti-Counterfeiting Trade Agreement into the open for all the world to see and judge. Those of us who have been critical of the leaked versions of the secret text have found very little in the official release that changes our concerns.
ARL has endorsed a new, consolidated analysis (PDF), prepared by the Library Copyright Alliance’s counsel Jonathan Band, which discusses the key problems that persist in the released ACTA text. A summary of those problems is below the jump.
Unbalanced Export of U.S. Law. This is the key overarching concern that many of us have with ACTA. U.S. law is a careful balance between the rightsholder’s limited monopoly over creative expression and the right of the public to use and share that expression. The Supreme Court has said explicitly that if not for exceptions and limitations, the copyright monopoly would be incompatible with the First Amendment. Because ACTA weighs heavily in favor of censorship and control, it betrays core Constitutional values.
Statutory Damages. ACTA may require signatories to provide for statutory damages. The provision in ACTA is inconsistent with U.S. law because it does not include the exceptions and limitations to damages that exist in our law. Committing to the provisions in ACTA would make it harder for Congress to reform our domestic statutory damages regime, which judges have decried as leading to “monstrous and shocking” awards. Finally, because of its lack of exceptions and mitigating provisions, ACTA’s statutory damages requirement could expose American companies to excessive liability abroad.
Third-Party Liability. ACTA’s requirement of third-party liability is the first of its kind in an international agreement. It is also inconsistent with U.S. law, especially in the way it requires liability but makes exceptions merely optional.
ISP Safe Harbors. The “safe harbors” in ACTA fall short of that description and do not provide protection equivalent to U.S. law.
Anti-circumvention. Once again, ACTA requires signatories to enact penalties for hacking digital locks, but important exceptions for things like research and teaching are merely optional. In fact, ACTA’s narrow view of permissible exceptions may actually be inconsistent with U.S. law.
Misleading labels. Commentators have argued for over a year that the Anti-Counterfeiting Trade Agreement is badly misnamed. Trade in counterfeit goods—i.e. cross-border trafficking in goods such as pharmaceuticals or microchips designed to fraudulently imitate valuable brands or designs—is a serious threat to public health and safety as well as to the legitimate makers of those products. Rather than address these threats, ACTA drafts have mostly focused on increasing the rights and remedies of the entertainment industry in the online environment. The policy implications of international counterfeiting and those of domestic online copyright infringement are almost completely distinct. A treaty to change the scope of copyright online should be named appropriately.
The draft treaty also uses the word “piracy” repeatedly to refer to copyright infringement, despite the fact that the term does not exist in U.S. copyright law. That kind of charged, spun language has no place in a legal document.
In sum, the official release of the ACTA draft text has addressed (to some extent) only one criticism, namely the extreme secrecy of the process. On substance, there is still plenty to be concerned about. Going public should be the first step, not the last, in a legitimate ACTA negotiation process.
We don’t have the staff to do that, or the inclination—it’s not our philosophy.
image courtesy Mr. T in DC via CC license.
The Internet we know and love—the one that lets anybody use any device to browse any site and send or receive any information they want—is under near-constant threat these days. The problems are familiar: ACTA, attacks on neutrality, and efforts to ratchet up IP enforcement to the exclusion of free expression and access are just the ones that come immediately to mind. But the greatest existential threat to the Internet today may well be the case made by Viacom in its lawsuit against YouTube.
The Digital Millenium Copyright Act did some serious damage to digital freedom when it added legal protection to digital locks (i.e. DRM, “technical protection measures,” etc.), but it also established a vital safe harbor for online service providers like YouTube, Craigslist, and any other service that allows normal people to publish and transmit things on the Internet. In a nutshell, the DMCA says that service providers are not responsible for what their users do online in most ordinary circumstances. Without this rule, no one would create the sites (like Facebook, YouTube, Flickr, Twitter, and on and on) that make the Web a place where we can all contribute, rather than a place where we passively consume what’s been posted by big conglomerates. Perhaps that vision of life without the safe harbors explains Viacom’s willingness to dismantle them.
Viacom has sued YouTube over some of the user-posted content on its site, and it claims that YouTube cannot seek shelter under the DMCA’s protection unless it implements intrusive filtering technology to police their networks on behalf of content owners. If the court endorses Viacom’s arguments, there will be almost nothing left of the DMCA safe harbors—nowhere for service providers to hide from angry rightsholders looking for deeper pockets than those of most ordinary users. The Net as we know it simply could not exist in such a legal environment.
To help the judge understand these grave consequences, ARL (together with ALA, ACRL, CDT, CCIA, and several others) joined the Electonic Frontier Foundation’s excellent amicus brief defending the Internet and the safe harbors that make the Net an interesting and democratic platform. Many thanks to the very talented folks at EFF for drafting an excellent set of arguments.
Comments of ARL, ALA, ACRL to the IP Enforcement Coordinator (PDF) — 24 March 2010
Last Wednesday afternoon ARL, ALA, and ACRL submitted our comments to the newly-created office of the IP Enforcement Coordinator (or IP Czar). The IP Czar was created by the PRO-IP Act to help coordinate the efforts of all the disparate U.S. government agencies with IP enforcement responsibilities. Plans are all the rage in DC, and the IP Czar is tasked with a plan, too: the “Joint Strategic Plan” for IP enforcement, which is due to Congress ASAP. So in February, the IP Czar issued a request for comments from the public on the costs of infringement and specific recommendations for improving IP enforcement for inclusion in the Plan.
In our comments, the library associations emphasize the complex balance between incentives for creators and access for the public that is embodied in copyright law:
A body of law that represents such a careful balance of interests cannot be justly enforced or improved by a process that is responsive to only one group of stakeholders.
We ask that the IPEC keep in mind that enlarging the control of rightsholders necessarily
diminishes the rights of the public and of intermediaries, including libraries.
Libraries are in many ways the fulcrum in this balanced system: we invest heavily in content (over $1.36 billion for ARL members alone last year) and support many publishing outlets, while at the same time we take advantage of fair use, the right to lend, the right to preserve, and so on to facilitate the widest possible access for our users. Any effort to ratchet up IP protection necessarily erodes access, and we ask the IP Czar to consider whether that is a worthwhile trade off at a time when users are increasingly relying on libraries and other intermediaries for access to scarce informational resources.
As you might expect, content industry groups could not resist the siren call to roll out the usual industry-funded “studies” to back up the usual draconian policy recommendations. TechDirt lays out the industry asks here. Despite the Czar’s request that filers explain the sources and methodology that support any data they submit, it doesn’t look like anyone took the opportunity to defend or revise these notoriously flawed and incomplete studies. Patrick Ross summarizes and links to all the content industry filings here.
It can be difficult to make sense of pleas for help from booming industries, not to mention praise for “creators” from corporations who routinely fight to avoid paying them. Luckily, CCIA and the Net Coalition filed an epic rebuttal explaining all the ways industry arguments fall short. In their 50+ pages of comments (and another 50-ish pages of attachments) CCIA and Net Coalition lay out a laundry list of the fallacies embodied in the industry studies and arguments. Again, TechDirt does a great job breaking down the filing into digestible bullets, but if you care about these issues it’s worth your time to at least read the first part of the comments yourself.
Perhaps the most striking thing that CCIA and Net Coalition point out (see Section III, page 39 of the PDF) is that somewhere between the passage of the PRO-IP Act (which describes what should be in the Czar’s Joint Strategic Plan) and the Czar’s request for comments, counterfeiting and criminal enforcement disappeared almost completely from the agenda. The word “counterfeit” appears repeatedly in the PRO-IP Act — in almost every context where “infringement” is mentioned, counterfeit is also there. But in the Czar’s request for comments? It shows up only twice, in passing. Very strange.
On the consumer/access side, several groups submitted comments warning the IP Czar against aggressive moves that would undermine privacy and openness on the web. EFF and Public Knowledge filed joint comments from the public interest perspective.
We’ll be keeping a close watch on the office of the IP Czar. While her statutory mandate is to coordinate enforcement efforts, she may well decide to make substantive policy recommendations in her Plan.