In February, when French digital rights group La Quadrature du Net published the working draft of the Anti-Counterfeiting Trade Agreement being negotiated by the United States and several other countries, I wasn't really clear why tech companies were so concerned about the proposed treaty. A couple of weeks ago, however, I had the chance to speak with Jim Burger, an intellectual property attorney and member of the law firm of Dow Lohnes, who was able to add much-needed perspective.
First, there's much more to the treaty than the segment dealing with copyrighted digital content, Burger noted, and there are portions of the treaty that can do a lot of good. However, he indicated that the proposed provisions addressing secondary liability are not developed as fully as they should be to address the wide range of laws participating countries currently have on those issues.
For instance, ACTA simply says a copyright owner can sue you if you induce, contribute to or are involved in copyright infringement, and if the country in which the offense happens has limitations or exceptions, those should apply. But the United States currently has no secondary liability statute. The law on that issue is judge-made, Burger told me. That means it's more complicated and subtle than the single sentence in the treaty. He explained:
There's a whole bunch of learning in the case law that explains the extent of that law in the United States, and it's still being developed. It's developed every time there's a case addressing the issue.
Moreover, the fair-use limitation on the rights of copyright owners is set out in the Copyright Act (section 107), but examples of fair use are also developed in the case law. In one case involving Sony, the Supreme Court said that even though some people probably used Sony's video recorders for infringing purposes, because those video recorders also have legitimate non-infringing purposes, Sony was not on the hook for secondary liability.
The United Kingdom's requirements and limitations, on the other hand, are different. Like many commonwealth countries, the UK addresses secondary liability with the concept of "authorization," Berger told me.
So if the treaty is adopted, it would require the United States, the UK, and perhaps other signatory countries, to change their copyright laws to conform to the terms of the treaty. "It could get ugly," Burger said, "or even dangerous."
Not that the entirety of the Anti-Counterfeiting Trade Agreement is bad. Burger was quick to say several parts of the treaty are very much needed and would do a lot of good. Stay tuned for the next part of our conversation, where he discusses those things.