Monday, May 31, 2010
From EFF - "Anti-Counterfeiting Treaty Is a Sham"
What is counterfeiting? In my humble estimation, it is knowingly making large quantities of exact copies of a trademarked, patented, or copyrighted good with the intention of selling such large quantities to defraud consumers and the rights holders.
Thus, any anti-counterfeiting treaty would have the elements:
1. exact copies or copies intended to be so similar that a consumer could not tell the difference;
2. protected goods;
3. large quantities (500?) (2,000?);
4. intent to defraud consumers and rights holders.
Some kid copying stuff to his Ipod is not counterfeiting. Even 2,000 songs.
So anyone labeling a treaty "anti-counterfeiting" and that does not have the foregoing elements is trying to pull a scam on me.
So when I finally got around to reading the text of ACTA, I thought that I would find the concerns I'd seen floating around the internet to be a little overblown.
In fact, I think that the concerns of the EFF are understated. I am not so concerned about confidential negotiations to give trade representatives some time to brainstorm. But the text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don't think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.
I am surprised that ISP's and technology users seem to have had so little input into the process.
A treaty that really is focused on anti-counterfeiting would have my support, if it is really necessary (Art 41 of TRIPS looks sufficient to me). I really also don't see why we need to set up a new international bureaucracy to oversee this, the current institutions appear to be sufficient.
For a thoughtful, colorful analysis from the Canadian perspective, check out Canadian law professor Michael Geist's blog, particularly his audio powerpoint "The ACTA Threat".
A good discussion on the RIAA's wishlist at arstechnica here.
And if foreign Limewires are the concern, why not address that concern directly?
The text of EFF's action letter (reprinted in full below), together with an automated template for you to email a letter to your representatives in Congress can be found here.
As a matter of Capitol Hill etiquette, your letter should be cc'd to the USTR, or your concerns addressed to him in the first place.
EFF seems to be pretty much spot on in its analysis - it appears that US copyright holders are seeking to shift onto ISPs basically unlimited liability and the burdens for policing copyrights, subjecting US ISPs and intermediaries to liabilities in foreign jurisdictions for actions that federal judges have not held them liable for in the US. The debate is difficult to follow, but wading through the January 18 draft I saw that the US Representative was advocating insertion of the words "substantially similar" in a particular provision.
What the hell is "inciting" copyright infringement? Shouting "copy" in a crowded movie theater?
ACTA appears to be an attempt to tie Congress's hands in terms of domestic copyright legislation, rather than a legitmate attempt to pursue counterfeiting.
Before accepting the EFF's analysis whole hog, check out the USTR's website with a fact sheet here. The USTR is Ron Kirk, whose website states:
•The ACTA is not about raising substantive standards of intellectual property protection (IPR) or specifying or dictating how countries should define infringement of those rights.
•The ACTA does not focus on private, non-commercial activities of individuals, nor will it result in the monitoring of individuals or intrude in their private sphere.
- Civil liberties would not be curtailed by the ACTA.
- There is no proposal to oblige ACTA Parties to require their border authorities to search travelers' baggage for IPR infringing goods or their personal electronic devices for IPR infringing downloads.
- There is no proposal to oblige ACTA Parties to require internet service providers (ISPs) to terminate users' connections on the basis of accumulated allegations of online IPR infringement (the so-called "three strikes" rule).
A tidbit from the Official Text (full text found here)
ARTICLE 2.X: INJUNCTIONS
[1. ]In civil judicial proceedings concerning the enforcement of [copyright or related rights and trademarks] [intellectual property rights], each Party shall provide that its judicial authorities shall have the authority [subject to any statutory limitations under its domestic law] to issue [against the infringer an injunction aimed at prohibiting the continuation of the] [an order to a party to desist from an] infringement, including an order to prevent infringing goods from entering into the channels of commerce [and to law].14]
[5. Each Party shall provide that its judicial authorities, [in appropriate cases], shall have the authority to order, at the conclusion of civil judicial proceedings [[at least in cases] concerning copyright or related rights infringement, [patent infringement,] or trademark counterfeiting] that the prevailing party be awarded payment by the losing party of court costs or fees and reasonable [and proportionate] attorney’s fees [, and any other expenses as provided for under that Party’s domestic law].15]
ARTICLE 2.2: DAMAGES
1. Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer [who knowingly or with reasonable grounds to know, engaged in [infringing activity] of [copyright or related rights and trademarks] [intellectual property rights] to pay the right holder
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or
(ii) [at least in the case of copyright or related rights infringement and trademark counterfeiting,] [in the case of IPR infringements] the profits of the infringer that are attributable to the infringement, [which may be presumed to be the amount of damages] [and that are not taken into account in computing the amount of damages] [referred to in clause (i)]10
[which may be presumed to be the amount of damages referred to in clause (i)]; and
(b) in determining the amount of damages for [copyright or related rights infringement and trademark counterfeiting] [infringement of intellectual property rights], its judicial authorities shall consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price, or [the profits of the infringer that are attributable to the infringement].
So if I understand correctly, if some Dutch kid emailed ONE copyrighted song to a Japanese kid, both the Dutch and Japanese ISPs would be shut down and each have to pay the RIAA for the injury plus the RIAA's attorneys fees?
The EFF letter:
EFF: Action Center
View Current Action Alerts
Tell A Friend
Tell Your Lawmakers: "Anti-Counterfeiting" Treaty Is a Sham
The U.S. Trade Representative has spent the past two years working with other developed nations on a secret agreement allegedly designed to reduce the flow of fake physical goods across borders. However, the Anti-Counterfeiting Trade Agreement (ACTA) is really a ruse that gives the entertainment industry its wishlist of Internet copyright regulations and enforcement power.
Just look at some of the "anti-counterfeiting" measures included in ACTA. ACTA would set up a global framework that could:
Require Internet service providers (ISPs) to disconnect individuals accused (not convicted) of repeated copyright infringement;
Require ISPs to hand over their subscribers’ identities to copyright owners without any due process or judicial oversight;
Require ISPs to make potentially expensive modifications to their networks in an effort to prevent copyright infringement;
Prohibit the U.S. Congress from reforming the Digital Millennium Copyright Act (DMCA), which makes it a crime to defeat copy protection even when making a copy is perfectly legal;
Require all countries to implement DMCA-like laws for their own populations, without the benefit of fair use or other legal exceptions that provide a modicum of protection for speech;
Threaten potential innovators with outrageous financial penalties for copyright infringement; and
Criminalize even non-commercial uses of copyrighted materials.
Sounds a lot like a copyright law, not an "anti-counterfeiting" agreement, doesn't it?
ACTA is being negotiated by a handful of countries behind closed doors and is on track to be finished by the end of this year. Despite its potentially far-reaching impact for consumers and the future of the open Internet, the U.S. Trade Representative has claimed that it can shut out Congressional oversight by treating ACTA as a "sole executive agreement" under the President's executive power, rather than a treaty.
We can't sit back and let this fake "anti-counterfeiting" agreement become law! If your congressional representative is on one of the committees below that has oversight over the U.S. Trade Representative, tell your lawmaker not to be fooled by this chicanery and demand that ACTA be limited to addressing international counterfeiting.
Senate Finance Committee
Max Baucus, Montana
Jay Rockefeller, West Virginia
Kent Conrad, North Dakota
Jeff Bingaman, New Mexico
John Kerry, Massachusetts
Blanche Lincoln, Arkansas
Ron Wyden, Oregon
Charles Schumer, New York
Debbie Stabenow, Michigan
Maria Cantwell, Washington
Bill Nelson, Florida
Robert Menendez, New Jersey
Thomas Carper, Delaware
Chuck Grassley, Iowa
Orrin Hatch, Utah
Olympia Snowe, Maine
Jon Kyl, Arizona
Jim Bunning, Kentucky
Mike Crapo, Idaho
Pat Roberts, Kansas
John Ensign, Nevada
Mike Enzi, Wyoming
John Cornyn, Texas
House Ways and Means Trade Subcommittee
John S. Tanner, 8th Tennessee
Sander M. Levin, 12th Michigan
Chris Van Hollen, 8th Maryland
Jim McDermott, 7th Washington
Richard E. Neal, 2nd Massachusetts
Lloyd Doggett, 25th Texas
Earl Pomeroy, 1st North Dakota
Bob Etheridge, 2nd North Carolina
Linda T. Sanchez, 39th California
Kevin Brady, 8th Texas
Geoff Davis, 4th Kentucky
Dave G. Reichert, 8th Washington
Wally Herger, 2nd California
Devin Nunes, 21st California
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Dear [Decision Maker],
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As a consumer and constituent, I am very concerned about the Anti-Counterfeiting Trade Agreement (ACTA) being negotiated by the Office of the United States Trade Representative. The agreement's stated purpose was to coordinate a global effort to fight counterfeit products, but the language recently released by the U.S. Trade Representative -- after two years of secrecy vocally opposed by countless individuals like myself -- shows clearly that ACTA is really a copyright bill in disguise. This "wolf in sheep's clothing" could do serious harm to Americans' right to free speech and innovation on the Internet.
Just look at some of the "anti-counterfeiting" measures included in ACTA. ACTA would set up a global framework that could:
* Require Internet service providers (ISPs) to disconnect individuals accused (not convicted) of repeated copyright infringement;
* Require ISPs to hand over their subscribers' identities to copyright owners without any due process or judicial oversight;
* Require ISPs to make potentially expensive modifications to their networks in an effort to prevent copyright infringement;
* Prohibit the U.S. Congress from reforming the Digital Millennium Copyright Act (DMCA), which makes it a crime to defeat copy protection even when making a copy is perfectly legal;
* Require all countries to implement DMCA-like laws for their own populations, without the benefit of fair use or other legal exceptions that provide a modicum of protection for speech;
* Threaten potential innovators with outrageous financial penalties for copyright infringement; and
* Criminalize even non-commercial uses of copyrighted materials.
ACTA is being negotiated by a handful of countries behind closed doors and is on track to be finished by the end of this year. Despite its potentially far-reaching impact for consumers and the future of the open Internet, the U.S. Trade Representative has claimed that it can shut out Congressional oversight by negotiating ACTA as a "sole executive agreement" under the President's executive power, rather than a treaty.
Please don't be fooled by ACTA's dishonest name. ACTA is not about trade, and it is certainly not limited to counterfeiting. ACTA goes far beyond its original mandate of fighting counterfeit products, and it should not be allowed to damage the growth and development of American innovation. I urge you to protect the American public and insist that ACTA be limited to its purported purpose -- addressing counterfeit goods that pose serious health and safety concerns for consumers.
[City, State ZIP]
Labels: acta, anti-counterfeiting measures, copyright infringement, copyright law, DMCA, injunctions, Intellectual Property, ip, Law, ron kirk, trademark infringement, trademark law, trips, ustr
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2019-2020). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.