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Print - Preliminary Analysis of the Officially Released ACTA Text _ Electronic Frontier Foundation

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Preliminary Analysis of the Officially Released ACTA Text I Electronic Frontier Foundation

APRIL 22, 2010


t I] 9i.hO FJ 121

Preliminary Analysis of the Officially Released ACTA Text
The text of the draft Anti-Counterfeiting yesterday. lives. If the previous leaks (here, here, here and here) left any doubt, as a modest effort at increasing physical goods. The officially it covers copyright, and citizens' the officially coordination potentially released text between patents, customs and all We welcome the official can now have a serious Trade Agreement its content was finally released to the public We impact on citizens' release of the ACTA text after two years of negotiations. and far-reaching public debate about

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makes it crystal clear that ACTA is not just about counterfeiting. two years ago, it was portrayed agencies tracking broader. Internet requiring counterfeit

When ACTA was announced

I Email Address I Zip Code (optional)

released text shows that it's far It's all about the

First, it is not just about trademarks; property. which it targets very specifically and create. ACTA contains them to police the Internet privacy, freedom -

other forms of intellectual collaborate for citizens'

Second, it's not just about physical goods. new potential obligations for Internet

ability to use it to communicate, intermediaries, concerns

Follow EFF
A new bill would requi cigarette-style WARNI labels on video games Congress that games, speech too https:j jeff.orgjr.3VP
MAR 22 @ 7:31 PM

and their users, which in turn pose significant and fair use rights. issues. ACTA text does not contain the official

of expression

Read on for our preliminary Unlike previously negotiating documents. originator negotiating is enclosed whether lobbying

analysis on copyright

leaked ACTA documents,

the official

countries' the @EFF'spost on the fak YouTube site tarqeting activists with malware Arabic: https:j jeff.org #Syria
MAR 22 @ 5:54PM

stances, so it actually contains However we presume 201 0 annotated of particular countries

less information

than the most recent leaked text alongside

ACTA followers

will be reading

leaked 18January

text, and in many places will be able to work out the that there is still quite a bit of disagreement whether features. it extends As expected, between as much text about to patents,

text. It's obvious

about the scope of ACTA (in particular, and some of its fundamental indicating proposals.

Japan and the EU have sought) by square brackets should




that it has not been approved There are recurrent legislatures. or discretionary, national

by all countries-

and in several places there are multiple obligations


be mandatory

which will lead to heated future

battles in the various ACTA countries' text raises several concerns: contains a number claim of provisions of the

HTTPS Everywhere Bloggers' Rights

The official First, despite US law". For instance, abetting" recognize copyright ACTA


are inconsistent ACTA will "color

with within

US law, the lines of Coders' Rights FOIA Project

the oft-repeated

USTR that

the text includes property

a EU proposal, infringement criminal copyright

for criminal (Article directive.


for "inciting,



Follow EFF Free Speech Weak Lin Global Chokepoints Patent Busting

intellectual the concept liability


That language US copyright

is taken from the

draft 2007 EU IPR enforcement when it would


law does not the scope of secondary and software

of "inciting"

infringement, consumer

so it is unclear what this means and device manufacturers

apply. This raises the concern for Internet intermediaries,

that ACTA could expand



PreliminaryAnalysis of the Officially ReleasedACTA Text I ElectronicFrontier Foundation developers, beyond the boundaries of the doctrines enunciated by US courts. Next, ACTA's of Intellectual Property in to by Japan, based on the Surveillance Self-Deft Takedown Hall of Sha Teaching Copyright Ways To Help chapter on "Special Measures Related to Technological the Digital Environment" leaked 18January expeditiously notification"(Articie a court injunction not common proposals contains a proposal (apparently 201 0 draft) requiring 2.18 (3ter)(Option oversight. Enforcement put forward

ACTA signatories

to enable IP rightsholders

obtain subscriber

identity information US copyright

from ISPs after giving "effective with US standards of file a lawsuit and seek that is In

2). This appears to be inconsistent holders must currently

due process and judicial

to force ISPs to disclose such information. for UK-style loser-pays

Further, ACTA's civil enforcement

chapter includes two proposals

attorney fee awards, something countries.

practice in US civil litigation proposal,

(Article 2.2.5). In each of these examples the 39 notes that "At least one delegation has asked

are in square brackets and have not been agreed by all negotiating footnote of paragraph 3" (sic). Hence, there's no guarantee have claimed?

relation to the "inciting" for the deletion

that this language will be in

the final ACTA, but the key question

is how will this be resolved in a way that does not involve

changes to US law, or to EU law, as EU negotiators

The official text also contains a number of provisions copyright law, but are either incomplete protection instance, ACTA requires countries owners' technological particular, the triennial flexibility. exceptions

that appear to be based on parts of US of US law. For of copyright Copyright Act, nor to create with a nexus circumvention

or inaccurate characterizations

to adopt laws prohibiting

measures modeled on the US Digital Millennium

Act (discussed in more detail below). But ACTA does not precisely mirror the DMCA; in it does not includes the seven exceptions rulemaking in section 1201 of the Copyright process in section 1201 (a)(1 )(C), which provide a small measure of as currently framed, particularly if read in conjunction are inconsistent which required

ACTA contains two proposals that would permit (but not require) countries to these bans. In addition, Article 2.18(5) or (4.2), the ACTA provisions on the scope of the US provisions, and legal protection prohibitions

with square-bracketted between copyright

recent US Circuit court judgments infringement would require signatories proposals

for TPMs. As a result, the ACTA text that are even broader than but several on on the liability of to adopt third party liability, to create limitations

to adopt anti-circumvention

those in U.S. law. Similarly, ACTA requires countries only permit, and do not require, countries and contain vague limitations Internet intermediaries,

that are weaker than the limitations

monetary damages against Internet intermediaries Second, Congress ACTA contains to engage provisions that reform mandating knowledge, could

found in the US safe harbor provisions. constrain the ability public of the US policy needs.

in legislative

to meet changing countries

The ACTA text contains a proposal copyright innocent law contains a statutory infringement done without

to adopt statutory

damages. While US limitation for

damages regime, it is subject to an important ACTA includes a limitation to transpose limitation, the US statutory provision,

allowing judges to reduce or remit statutory but it is discretionary, law (Article context, by with far it in their national in the file-sharing

damages in certain circumstances. leaving it up to ACTA countries 2.2(3)). Even with this important disproportionately exceeding statutory

to decide whether

damages regime has led to chilling effect on innovation

large awards of damages against individuals and technology

the actual harm caused, and has had a significant damages for engaging

Internet intermediaries

creators, who cannot afford to be threatened statutory sector. in ACTA could act as a constraint

in activity that might be found to be fair use, or infringement. reform in this area, (for instance in the existing regime, to

For that reason, Congress has been considering the detriment of US citizens and the technology

H.R. 1201 before the 11 Oth Congress). ACTA would appear to lock-in

Similarly, the inclusion

of the DMCA TPM provisions provisions,


Congress' ability to amend the DMCA to clarify the scope or address other concerns with the current anti-circumvention proposals of Representatives such as those contained in the respective reform Boucher and Lofgren.

https:/Iwww.eff.org/deeplinks/201 O/04/eff-analysis-officially-released-acta-text


3/25/12 Third, ACTA will Treaty Agreement Copyright new norms

PreliminaryAnalysis of the Officially ReleasedACTA Text I ElectronicFrontier Foundation create new international Aspects -norms, beyond those agreed from in the 1996 1994 a on Trade Related of Intellectual and Phonograms Property Treaty. Committee and the Aside -WIPO create

and Performances institution areas.


new international

the ACTA Oversight

ACTA will

in the following Liability

(a) Internet Intermediary Internet intermediaries intermediaries'

are the chokepoints

for the Internet. Creating or increasing


liability for their users' behavior and content on their networks creates to police their users and platforms. of expression, that Internet intermediaries if the Internet was to flourish. infringement, communities, tailored freedom This in turn has a direct Policy and ability to create and collaborate. had to be shielded from That is why many countries and defamation. Now, as more

incentives for intermediaries

impact on citizens' privacy, freedom makers in the 1990s understood potentially adopted limiting unbounded liability

special legal regimes for Internet Service Providers and other Internet intermediaries, their potential legal liability for copyright

and more of our cultural and civic life depends on the existence of content hosting platforms, discussion forums, wikis and social networking In short, appropriately of liability are key to individuals' limitation these rules have come to have of liability regimes for and user generated even greater significance. Internet intermediaries content. The existing international limitation

of expression

regimes are under attack in a range of national and

venues, but ACTA is the most troubling. requiring countries to impose liability on intermediaries which frequently for

ACTA contains various provisions intermediaries

their users' behavior (Article 2.18(3)). This would apply to Internet intermediaries, such as libraries and educational institutions, access to their customers and users. This is not required and Phonograms

but also to

provide Internet

by any of the major internationallP nor the WIPO Copyright

treaties - not by the 1994 Trade Related Aspects of IP Agreement, Treaty or WIPO Performances norm. Previous ACTA leaks disclosed that the US was proposing third party liability based on the secondary copyright including for "inducement" of copyright infringement.

Treaty, and so would establish a new global

that signatory

countries developed

recognize by US courts, Footnote

liability doctrines (Apparently


by New Zealand,

Canada, the EU and perhaps Japan). The official text shows that this is still proposed. 47 states that:

"[For greater clarity, the Parties understand any person who authorizes of copyright conduct directed to promoting infringement,

that third party liability means liability for benefit, induces through or by or knowingly by another .... ]" and materially aids any act

for a direct financial

or related rights infringement

As others have noted, the language here and in previously interpretation pre-litigation

leaked texts does not accurately debate about the a proposal for

reflect US case law in this area, and effectively takes one side in an ongoing contains other potential injunctions new sources of liability for intermediaries, against intermediaries (Article 2.5 X). including

of the 2005 Supreme Court decision in MGM v. Grokster. The official text also

ACTA allows, but does not require, countries liability (Article 2.18(3), Options provisions,

to create limitations

on intermediaries'


1 and 2 and Footnote 47). However, unlike the US safe harbor of liability can be created, language between the in the laws of

the ACTA text does not specify what types of limitations

and for what activities. This may reflect an effort to find compromise safe harbor regime in section 512 of the US Copyright US Free Trade Agreement partners, the European Union's eCommerce

Act and similar provisions implementation

Directive framework, and judicial

and Japanese law. Much would then depend on the national https:/Iwww.eff.org/deeplinks/201 O/04/eff-analysis-officially-released-acta-text

3/25/12 interpretations countries countries. (b) Three Strikes "Graduated subscribers' inclusion

PreliminaryAnalysis of the Officially ReleasedACTA Text I ElectronicFrontier Foundation of these provisions in ACTA countries. requirements This creates the potential for US Internet in other companies to be subject to more onerous citizens' freedom of expression, and higher levels of liability

in which they operate. And this in turn, is likely to have an adverse impact on and ability to access content hosted on platforms in different

response" or "three strikes" regimes which require ISPs to disconnect Internet access for alleged copyright infringement adopting are extremely exist in only three countries



Three strikes laws currently

- South Korea, France and Taiwan - so such regimes. This has rightly been has categorically the European Commission

in ACTA might result in more countries

the subject of much debate in Europe, where the European Parliament rejected three strikes regimes on several occasions. Accordingly, went to considerable require countries to adopt three strikes laws:

lengths in their press release yesterday to emphasize that ACTA does not

The negotiation governments

draft shows that specific concerns, raised in particular No party in the ACTA negotiation a compulsory "3 strikes" piracy. infringements and internet is proposing or "gradual

by the civil that

society, are unfounded. rule to fight copyright

should introduce

response" [sic]

We agree that ACTA does not require countries interesting question ACTA contains three proposals those proposals. Here's why.

to adopt a three strikes law, but the more that facilitates that? Article 2.18(3) of

is: does it create a legal framework

in this area. In our view, the answer is yes under at least two of

The words "graduated infringement. of limitation

response" and "three strikes" do not appear in the official ACTA text. is taking place in the context of intermediary put forward liability for copyright by the US, in Option 1 of Article 2.18.3 (on page might enact. The US proposes that online implement a policy "to address by copyright". had explained

The three strikes discussion 21), sets out conditions of liability service providers the unauthorized A previously

The first proposal, provisions

that intermediaries

will need to comply with in order to get the benefit

that countries

should be required

to adopt and reasonably

storage or transmission

of materials protected

leaked European Commission

memo describes how US negotiators

the intent of this provision:

"On the limitations

from 3rd party liability: to benefit from safe harbors, storage and transmission contracts allowing,

ISPs need to

put in place policies to deter unauthorised content (ex: clauses in customers' response). From what we understood,

of IP infringing need

inter alia, a graduated by ISPs."

the US will not propose that authorities

to create such systems. Instead they require some self-regulation

And footnote

29 in the leaked 18January

201 0 consolidated

text stated that:

"An example of such a policy is providing circumstances of subscriptions system or network of repeat infringers."

for the termination

in appropriate

[US: andj[AUS:or]

accounts on the service provider's

That footnote

has now disappeared.

If the US proposal

is adopted

in the final ACTA language, 4/7

https:/Iwww.eff.org/deeplinks/201 O/04/eff-analysis-officially-released-acta-text

3/25/12 what constitutes interpretation

Preliminary Analysis of the Officially Released ACTA Text I Electronic Frontier Foundation appropriate by national policies for this purpose and perhaps whether will therefore be a question for which policymakers and evaluating by the ACTA Oversight Committee,

is tasked with monitoring The EU has tabled permit countries


laws comply with ACTA. 2 on page 21). It would subscribers upon to do so - as

its own proposal

(in square brackets or administrative disconnection

in Option

to create a system requiring internet

ISPs to terminate regime.


receipt of an order from ajudicial in the French HADOPllaw's

body should they be inclined

"[Paragraph authority terminate establishing information."

3(a) shall not affect the possibility or prevent an infringement, procedures governing

for a judicial

or admin istrative the service provider of the parties to

in accordance

with the Parties legal system, requiring the removal or disabling

nor does it affect the possibility

of access to

While this might framework

be consistent

with one EU Member States' national obligations for citizens. 2.18 (3 quater),

law, creating

the global body

for ISP termination

on the basis of a non-judicial


order poses significant A third japan. proposal

due process concerns in Article

is in square brackets


put forward


It states that:

"Each Party shall promote between industrial guidelines online design, trademart

the development and copyright including

of mutually


relationships with patent, which takes

service providers

and right holders

to deal effectively

or related rights the encouragement


place by means of the Internet,

of establishing

for the actions which should

be taken."

This language


also leave room for a Three Strikes policy. the EU proposal administrative permitting regimes requiring ISPs to terminate proposals Internet

If ACTA incorporates access by non-judicial global

order, or the US or japanese of a limitation

for conditions

that ISPs must comply with to obtain the benefit norm - facilitating holder copyright allegations Protection of copyright

on liability,

it will create a new

an ISP practice of Internet

user disconnection

on the basis of


(c) Technological

Measures - a Global DMCA make the US DMCA TPM legal framework the more open-ended and Phonograms language the de in the the

As we have previously facto global contains 1996 WIPO Copyright

noted ACTA would displacing

norm, effectively

finally adopted to implement

Treaty and Performances

Treaty. The US TPM regime even where for (To a it are works.

at least three characteristics

that are broader purposes.

than what is required

WIPO Treaty obligations. TPMs that control which japan requires broad prohibition criminal silent on this point. Other countries with different contains

First, it creates an absolute infringing

ban on TPM circumvention, Second, it requires protected

done for lawful non-copyright strenuously

legal protection copyrighted it includes

access (and not just use) of technologically objected in the leaked 18january and distribution on the manufacture penalties for flouting

201 0 text.) Third, bans,while

of circumvention

devices. Fourth,

the TPM circumvention

the WIPO treaties

have chosen to implement features

the WIPO treaties damage

by creating

TPM legal regimes in the US. If ACTA

to avoid some of the collateral


an obligation

to adopt the DMCA TPM framework,

the US will be able to achieve what


3/25/12 do on a piecemeal (d) Criminalization

Preliminary Analysis of the Officially Released ACTA Text I Electronic Frontier Foundation it was not able to do by international agreement in Geneva in 1996, and has only been able to free trade agreements. Behavior agreed standards would for criminal was in the language for penalties basis since then via its bilateral of Individuals' Non-Commercial internationally penalties

Finally, ACTA could rewrite the current for copyright negotiated willful, of Article individuals' contains indirect appears and trademark it was understood

infringement. that criminal

At the time that the TRIPS Agreement This is reflected criminal of "commercial activities

be reserved for the worst cases of sanctions

commercial-scale non-commercial


piracy and counterfeiting. via a broad definition

61 of TRIPs. However, ACTA could expand activities a US proposal motivation consistent to define "commercial gain (Article

this, imposing

scale". ACTA While that re-

scale" to include

that have no direct or to a wholesale

of financial

2.14 (1 )(a) and (b) (in square brackets)). this in ACTA would amount

with US law, incorporating

write of the internationally

agreed TRIPs standard. P2P file-sharing. But no matter what views you hold agreed to by the more than

This clearly reflects a desire to penalize about file-sharing, countries negotiating countries 150 member no one should

lose sight of the larger impact of this: some of the 37 the standards

ACTA are seeking to overturn

of the World Trade Organization. ACTA text. We'll be doing further analysis in

There is much more to digest in the official coming days.




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