ACTA: the Big Deal

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ACTA (the Anti Counterfeiting Trade Agreement) is making a lot of news these days, with lots of people comparing it unfavorably to PIPA and SOPA. A lot of that coverage has been focused on Europe and particularly Poland, where the Polish government's signing of the agreement has sparked considerable protest.

So is this a big deal, and if so, why is domestic coverage of it so muted in comparison to SOPA and PIPA?

The answers have to do with how far along ACTA is here versus in Europe. Longtime readers of this blog will know that the US signed on to ACTA back in October. This effectively commits the United States to the agreement, while a number of other countries, including the members of the European Union, didn't sign on until just the other day. People in those countries are clearly going to be more exercised about recent events than we would be about last fall.

But that raises the question of why there wasn't so much noise over here in October. The explanation for that lies in a couple of legal limits placed on ACTA as it's proceeded. One is the Constitution; the other is the current state of US copyright law.

A lot of the upset in Europe and elsewhere about ACTA is over the threat that it might require SOPA-like laws to be instituted. In the US, though, it'd be unconstitutional for ACTA to change the law. That's because, for the US to agree to a treaty, it has to not only be signed by the president, but also approved by two-thirds of the Senate. ACTA's route around this is to call itself a "sole executive agreement," which the President can sign without any additional authority. Of course, with that added procedural streamlining comes limits—sole executive agreements can't alter the law or make the US change its laws; they can only bind the country to do things that the president has the power to do already. (Whether ACTA can proceed as a sole executive agreement or needs to be a treaty is also not a given.) These details and complications are particularly American ones, though, and the processes in other places differ. That's why many of them are requiring votes in their national legislatures, and why the European Union needs the European Parliament to agree to ACTA. It's also not a given that ACTA won't alter their laws, either.

This can be particularly daunting to most countries because, frankly, the United States has a lot of provisions in its copyright laws that aren't in other countries' laws and can create a lot of headaches. For instance, ACTA requires countries to implement statutory damages for infringement—something we've had for a long time (and that leads to insane damages awards). It requires countries to pass laws giving law enforcement the authority to seize "any related materials and implements" used in infringement—the sort of thing ICE has been doing (not always well) with websites here.

But ACTA's limited effects on our statutes isn't a reason for us to ignore its implications. Even if it can't change the laws on the books here, it can sway judges in their thinking about how those laws are interpreted. But more importantly, it's one of several tools that powerful lobbies in the US use to push our own flawed copyright system on the rest of the world. Another one of those is the Special 301 process, by which the US Trade Representative generates an annual IP "naughty list" with which it threatens countries with trade penalties. Watch this space for more on that soon.

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