"I find your lack of copyright enforcement disturbing"

If you follow technology news services and blogs that are vaguely interested in digital rights issues, you must already have heard about ACTA, the Anti-Counterfeiting Trade Agreement. This is a multilateral trade agreement between the EU, the US, Mexico, Canada, Australia, South Korea, New Zealand and a few others, currently negotiated in secret that is set to tackle copyright infringement issues. As the name indicates, the aim of the agreement is to tackle counterfeiting. However, the most controversial aspect is that various sources have disclosed that the agreement is set to export some of the worst maximalist legislation out there, particularly in an attempt to curb illegal file-sharing. For the most detailed in-depth analysis of what has been happening so far, Michael Geist’s blog is the place to be. Nonetheless, I have been meaning to take stock and write a synopsis of what has happened so far for my own benefit. If you are confused about the various claims and counter-claims, I hope you find this useful.

The main problem with ACTA is that the negotiations have been closed. Secrecy leads to fear, fear leads to hate, hate leads to anger, anger leads to the Dark Side. One problem that I have noticed, and which has already been picked up by some defenders of the agreement, is that some of the language attacking ACTA seems to be rather overboard. This is an agreement that will end Web 2.0 services, it will eradicate the Internet as we know it and replace it with an alien reptilian replicant. So I have decided to go through what we know about the agreement so far. It must be pointed out that this is the perfect time to take stock, the next round of negotiations is coming up in April, so if there is something to be worried about, we should make a fuss right now.

So what do we really know about the agreement? Relatively little. Because of the secret negotiations, we only have had some leaks here and there. I will not recount the history of the talks (for that, again, I refer you to Michael Geist), but I will only mention that the agreement has been in negotiation since 2008, and that, as mentioned, the process has been shrouded in secrecy. Had it not been for some whistleblowers like Geist, ACTA would now be in an almost final stage with little or no public oversight whatsoever. Whatever one may think about some of the more colourful and fanciful speculation out there, the spotlight cannot hurt, ad we will not be taken by surprise.

So, what does the text say? The most important leak so far came in mid-February, and it was precisely what we had hoping to see, namely Article 2.17: Enforcement procedures in the digital environment (pdf here). The text starts out in a seemingly innocuous manner:

“Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of, trademark, copyright or related rights infringement which takes place by means of the Internet, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.”

This is frustrating, as we do not have the current civil and criminal enforcement sections. There are some earlier proposals out there (here and here), and a European leak with country positions  regarding civil enforcement here, but we do not have a clear idea of what the final text will look like. Two things are worrying however. As EU representatives have mentioned, current European copyright obligations do not mention specifically criminal and civil liabilities, but “adequate legal protection…” Another worrying aspect from the existing civil liability section is that ACTA exports the DMCA’s infamous statutory damage provisions, as it asks other countries to calculate damages in the following manner:

“[I]n determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the market price, the suggested retail price, or other legitimate measure of value submitted by the right holder.”

This means that we might see some of the most outrageous American copyright enforcement damages, such as the Jammie Thomas-Rasset and Joel Tenenbaum cases, exported to jurisdictions where damages are nowhere near what is proposed. The other concern is that the civil enforcement section could contain a three-strikes clause. We just do not know yet.

Paragraph 2 is a bit odd. It requires the enactment of third party liability, but this is surely already part of most agreements, so why include it here? My guess is that this is setting up the stage for continuing the war against intermediaries that is being waged at the moment. The language is broad enough as to include almost anything.

Paragraph 3 creates rules that will allow service providers, intermediaries and third parties to operate despite what has been mentioned in paragraph 2. In other words, Paragraph 3 will export American safe harbours and notice and take-down regimes. What bothers me is that Paragraphs 2 and 3 create a noxious environment in which third party liability is the rule, not the exception. Intermediaries will be liable with two exceptions. The first one reads:

“[Each party shall] (a) provide limitations on the scope of civil remedies available against an online service provider for infringing activities that occur by:
(I) automatic technical processes and
(II) the actions of the provider’s users that are not directed or initiated by that provider when the provider does not select the material, and
(III) the provider referring or linking users to an online location when, in cases of subparagraphs (II) and (III), the provider does not have actual knowledge of the infringement and is not aware of the facts or circumstances from which infringing activity is apparent [...]“

So, if you are an intermediary, you have to make sure that all of your processes are automated, that you do not exercise any editorial and selection process whatsoever, and you make your best effort not to know anything that happens with your providers. Otherwise you might be liable. The second exception is:

“(b) condition the applicantion of the provisions of subparagraph (a) on meeting the following requirements:
(I) an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider’s monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring; and
(II) an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification. Except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.”

As stated, this pretty much exports DMCA notice-and take down. You must have a policy to take down content as soon as you’re told, and must make sure to take down the content ASAP.

Paragraphs 4-6 are also DMCA export provisions, as they make it an obligation to export the DMCA’s anti-circumvention provisions, particularly criminal liability for breaking DRMs. Paragraph 6 specifically talks about rights management information (mostly metadata integrity).

So, what’s the verdict? It’s too early to tell. I will reserve full comment until I get to see a reliable draft of the civil and criminal enforcement sections. So far, I do not particularly like what I have seen. I agree with people like Ben Sheffner and Nate Anderson who comment that what we have seen of ACTA does not affect the United States that much, they already have the mother of all maximalist copyright protection. However, their comments seem rather short-sighted, and tend to forget that there are lots of other countries who will sign the agreement. The provisions are already in US law, so don’t worry, they would come to you anyway in some shape or another.

The problem that I have with exporting DMCA-level of protection is that Americans have a huge counterbalance to those provisions in the shape of Fair Use dcotrine. We do not. We have fair dealing, an exhaustive list of exceptions and defences. We get the DMCA, but without any balance. Why is it that the American copyright system seems keen to export maximalism, but not fair use?

Hopefully, there seems to be some opposition building up this side of the Atlantic. Stay tuned.

Update: The European Parliament has voted in favour of opening up the ACTA negotiation 633-13. Things are getting interesting.