ACTA Needs to Be Public, Even if It’s Just About “Enforcement”
ACTA Needs to Be Public, Even if It’s Just About “Enforcement”
ACTA Needs to Be Public, Even if It’s Just About “Enforcement”

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    Supporters of the Anti Counterfeiting Trade Agreement (ACTA) are careful to say it's all about “enforcement.”

    Ambassador Ron Kirk, the United States Trade Representative, describes ACTA as aimed at “strengthening the framework of practices that contribute to effective enforcement, and strengthening relevant [intellectual propety] enforcement measures themselves.” The MPAA supports “a sound and comprehensive ACTA that codifies best practices for copyright enforcement.”

    Because it's just “enforcement” and can't “change the law,” when groups like us, EFF and KEI, or bloggers like Mike Masnick or Cory Doctorow make a big deal over ACTA's secrecy, we can be accused of just looking for something to complain about.

    But whether the agreement is about “enforcement” or “substance,” the public has the right to know its contents.

    Substance, Procedure, and Enforcement

    One by one we have seen how categories, which at first seem sharply defined, merge into one another, and how every classification when analyzed shows that some imaginary line has been arbitrarily taken as a boundary.

    Gilbert N. Lewis

    Maybe it's possible to draw a line separating substantive law that says what behaviors are and aren't allowed, from the procedures that enforce it. Some pretty basic tenets of US law depend on drawing that line, after all.

    Professor Thomas Main traces this dichotomy back to Blackstone's Commentaries on the Laws of England. Despite that pedigree, it isn't always so clear where to draw the line. You name a law, and there's been a controversy about whether it's procedural or substantive, about whether it creates an obligation or merely enforces one. Professor Main is skeptical that the distinction holds up. In a wonderful passage in Overcoming the Substance-Procedure Dichotomy, he quotes various authorities who have described the substance/procedure categorization as

    “vague,” “unpredictable,” “imprecise,” “amorphous,” “unresolvable,” “unclear,” “chameleon-like,” “murky,” “blurry,” “hazy,” and “superbly fuzzy.”

    For a layman, it's a distinction without a difference. Does it matter if you stay out of jail, or win or lose a lawsuit, on the basis of “procedure” rather than substance? It's the same effect. Making it harder to enforce a right is the same as weakening the right. Making it easier to enforce a law is the same as strengthening the law. You can debate all the livelong day whether statutes of limitations or any other part of the law is procedural or substantive–all that matters is a law's effects. As Representative John Dingell said, “I'll let you write the substance … you let me write the procedure, and I'll screw you every time.”

    All “substantive” and some procedural laws have to be passed by the legislature. Some are issued by the courts. Still others–like the Department of Justice's ever-shifting antitrust enforcement standards–can just be called an “enforcement policy” and unilaterally announced by the executive branch.

    But it's not clear why the public should care about legal distinctions with a shaky philosophical basis. A policy change is a policy change, whatever you call it.

    Back to ACTA

    In the copyright realm, there are a few doctrines that can de described as merely relating to enforcement, or as substantive law.

    Take the issue of third-party, or “secondary” liability, which can hold someone guilty of the copyright infringement of another. Leaked ACTA documents say that all countries need to have secondary liability policies. The MPAA might argue that, if there's copyright infringement going on using an ISP's facilities, then surely asking it to put a stop to that is just enforcing the law? But from the ISP's perspective, the prospect of being held legally liable for other people's actions, and the creation of a new obligation to actively snoop on their customer's traffic, is about as substantive as you can get. Congress decided that liability for ISPs was not good policy when it passed the DMCA. The Supreme Court decided that it was a good policy for makers of peer-to-peer software when it issued its Grokster decision. But calling something substantive, procedural, or enforcement doesn't tell you whether it's good policy.

    Professor Main writes that “procedural reforms can have the effect of denying substantive rights without the transparency, safeguards and accountability that attend public and legislative decision-making.” This is a problem with ACTA. Masquerading as an enforcement agreement, it can have real consequences for real people and real businesses.

    Like Sherwin wrote yesterday, the US delegation is still stressing that it's not going to enter into any agreements that would change US law (which already has many of the provisions ACTA demands). Well, good. Maybe people in other countries might find their domestic laws changed, but it's good news for US voters. But it's easy to make a big impact on the legal climate without changing the
    “law.” Will ACTA change US “procedures”? US “policies”? We need to see the draft text of the agreement to know.