Act 2 of the ACTA controversy

When I last wrote about the Anti-Counterfeiting Trade Agreement, or ACTA, it was primarily to complain about the secrecy in which the negotiations were taking place.  Earlier this month, however, the US Trade Representative (who had opposed release) finally caved in to pressure from at home and overseas and agreed to the release of a draft of the proposed agreement.  Much of the released text is in square brackets, indicating that full agreement has not been reached, and there are several points where different options on a particular matter are outlined.  Nevertheless, enough is now clear about ACTA to be quite sure that the complaints raised before the release were fully justified.  Now the issue is not simply that we do not know what is in ACTA, it is that what is in ACTA is a series of very bad ideas.

One of the most reliable guides to ACTA continues to be Canadian law profess Michael Geist, who discusses some of the provisions and the problems with ACTA in this blog post and in a video which can be found here.  Geist points out very effectively that, in spite of assurances, ACTA is not just about enforcement of existing IP law but would mandate substantive changes in national IP laws.  Also, as he explains, it is not just about commercial infringement, regardless of what we have been told.  More about that in a minute.

One of the frequent claims about ACTA is that it would mandate a “three strikes” regime that would require ISPs to “terminate” subscribers after repeated accusations from the content industries that that user had committed infringement.  Such termination would occur without judicial process.  Defenders of ACTA have insisted that these claims are not true, and now we can see what they meant.  The released text does not require termination, but it does offer a safe harbor for ISPs, such as we have in the US, only if the ISP implements security measures.  The only example given of an acceptable security measure, of course, is a three strikes termination procedure.

To organize a summary of the issues raised by the draft ACTA text, I want to look at two groups of problems, one procedural and one substantive.

Procedurally, ACTA is a blatant attempt to remake IP law without having to involve either the World Intellectual Property Organization (WIPO) or the United States Congress.  It appears that the WIPO does not please the IP industries because of it’s transparency and because of the attention it pays to the needs of developing nations, for whom high and impenetrable IP barriers are not conducive to growth.  These industries pull the strings of the U.S. Trade Representative, and an international agreement is born that is negotiated in secret and would set up an oversight structure independent of the WIPO.  As two law professors point out in this editorial from the Washington Post, the agreement, with it’s substantive changes in national copyright law, would also seem to violate the US Constitution if it is approved here as an executive agreement without the involvement of Congress.

It is constitutional concerns that also frame my substantive objections to ACTA, since many of the things it would require signatories to enact in their national laws seemed to conflict with the Fourth, Fifth and Sixth Amendments to the U.S. Constitution.  By agreeing to ACTA, the U.S. would derogate due process and substantive civil rights in regard to this one area of law.  The best analysis of these problems can be found in a two part post by Margot Kaminski, here and here on the Balkinization blog, but I will offer a brief catalog here.

In the first place, the three strikes termination provision discussed above would result in citizens being disconnected from the Internet on the basis of mere accusation.  This is a significant reduction in the usual standard of evidence for a claim of infringement.  And ACTA has provisions that would increase the level of remedies available a great deal; termination would only be the beginning.  When there is a court proceeding, the damages could be based on any “reasonable” valuation suggested by the rights holder.

In addition, rights holders could seek injunctions without involving the other party; so-called ex parte injunctions would be available.  Finally, there would be several provisions allowing seizures of allegedly infringing property, including authorization for border agents to seize material at the request of rights holders.  This provision would make the U.S. Border Patrol into a sort of private police force working for the content industries, but at taxpayer expense.

The most troubling provision, I think, is where ACTA would require the U.S., and other signatories, to increase the criminal penalties for willful infringement.  The U.S. already has such penalties, but the ACTA standard would expand the definition of “willful” to explicitly include private, non-commercial copying if done on a large scale.  And ACTA says that criminal penalties “shall include” the possibility of prison.  Not satisfied with million dollar judgments against private citizens who share unauthorized movie and music files, the content industries now want to send them to prison.

Many of the enforcement provisions of ACTA would substantively alter U.S. law and would provide a heavy advantage to plaintiffs, one that is not available to those bringing other types of claims.  We are being asked to change our law in a way highly advantageous to one special interest based on an agreement negotiated in secret and without any of the legislative checks and balances that would normally be in play. If the office of the U.S. Trade Representative thought that releasing this draft text would put an end to controversy, they were badly mistaken.

Pre-publication update:  After this post was written, the Library Copyright Alliance released this analysis of ACTA by Jonathan Band.  It is well worth reading for those who would like a sustained analysis of the continuing problems with ACTA.