Another ACTA leak: Will the USTR Ever Listen to Public Interest Concerns?
Another ACTA leak: Will the USTR Ever Listen to Public Interest Concerns?
Another ACTA leak: Will the USTR Ever Listen to Public Interest Concerns?

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    The drip, drip of leaked versions of the Anti-counterfeiting Trade Agreement (ACTA) almost burst a pipe earlier this week. Rather than the chapter-here, sub-point there leak as in past weeks, a consolidated text of the whole secret agreement bubbled up. The latest leak, a complete version of the agreement dated January 18, 2010, is the most comprehensive so far. The leak confirms that ACTA would contain six chapters, some of which include several sections. In addition to the much-discussed elements on transmission of copyrighted material online, there is a chapter on civil, criminal, and border measures.

    The latest leak confirms that provisions in ACTA’s Internet chapter could be interpreted as supporting a “three strikes” policy allowing Internet Service Providers (ISPs) to throw off of the Internet those customers accused of infringement. That language has been in previous drafts, despite the claims of Administration officials that they don’t plan to support anything in the secret treaty that is outside of U.S. law.

    In our view, the Internet chapter essentially seems to be exporting the U.S.'s Digital Millennium Copyright Act (DMCA) to other countries. However, the wording of these provisions might lead to interpretations even worse than the provisions of the DMCA. For instance, as copyright attorney Jonathan Band points out, ACTA’s ISP safe harbor provisions are not really “safe harbors.” While the DMCA’s safe harbors exempt ISPs from monetary liability, ACTA merely calls for a limitation on liability, without specifying what that limitation would be. As Band puts it, even a 5% reduction in damages could quality as a “limitation on the scope of liability.”

    Although the Internet chapter has received most of the attention, ACTA’s civil and criminal enforcement provisions are also disturbing and have been largely overlooked. Through these chapters, the United States seems to be pushing for the adoption of provisions similar to the Prioritizing Resources and Organization of Intellectual Property (PRO IP) Act in other ACTA countries. We wrote extensively about the dangers of the PRO IP Act when Congress was still considering adoption of the bill. Many of these concerns continue with the Act as adopted, and yet now we are exporting these provisions to other countries. As with the PRO IP Act, the U.S. position in ACTA lacks safeguards that ensure that penalties for infringement are proportionate. For instance, ACTA provisions call for seizure, forfeiture, and destruction of certain IP infringing goods, and implements used in infringement. While some countries have suggested balancing these provisions with requirements that only goods predominantly used in infringement be subject to seizure, forfeiture, and destruction or that courts be required to consider the seriousness of the infringement in ordering such measures, the U.S does not advocate for any such tempering provisions. Moves to codify the provisions of the PRO IP Act in international instruments, when its working has not been tested domestically, is bad policy because it entrenches untested provisions in international law and makes domestic reform extremely difficult.

    As I mentioned before, the USTR has asserted repeatedly that ACTA would not require changes to US law. The accuracy of that assertion can only be judged after a thorough examination of the ACTA provisions. Even if ACTA may not require changes to the text of laws passed by Congress, as Profs. Lawrence Lessig and Jack Goldsmith point out, it may cause changes in the law's interpretation or changes in practice. For instance, under current practice, knock off items of clothing are often donated to charity. Would ACTA’s provisions requiring destruction of infringing goods change this practice?

    So far, the USTR refuses to either confirm or deny the validity of the leaked texts. One wonders if the USTR will ever put the ACTA text out for public comment. And if they do, will it be early enough in the process for such input to actually influence ACTA’s provisions? After all, these are difficult negotiations, with each of the more than 30 countries likely to have different positions. If public input is sought after a text is finalized, will such input make a different? Do the ACTA parties really want it to make a difference?