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Before the
OFFICE OF THE UNITED STATE TRADE REPRESENTATIVE
WASHINGTON, D.C. 20508
In the matter of:
Anti-Counterfeiting Trade Agreement (ACTA)
COMMENTS OF PUBLIC KNOWLEDGE
Rashmi Rangnath
Sherwin Siy
Michael Weinberg, Law Clerk
Public Knowledge
1875 Connecticut Ave., NW
Suite 650
Washington, D.C. 20009
(202) 518-0020
Dated: March 21, 2008
COMMENTS OF PUBLIC KNOWLEDGE
Public Knowledge submits these comments in response to the request for
written submissions published in the Federal Register of February 15,
2008.[1]
Public Knowledge is a Washington D.C. based non-profit organization
dedicated to promoting innovation and citizens’ rights in the
emerging digital culture.
Introduction
In pursuing the worthy goals of protecting consumers, enforcing
copyrights, and combating counterfeiting, the USTR should ensure that the
proposed Anti-Counterfeiting Trade Agreement (ACTA) is narrowly tailored
against bad actors. An overbroad set of enforcement laws and mechanisms
would detrimentally affect legitimate users of copyrighted works, as well
as technological innovators whose new creations might not be adequately
accounted for in current law.
We appreciate the opportunity to comment on ACTA at this preliminary
stage of the proceedings, and would hope that the process moving forward
will be an open one, allowing interested parties and the general public
the ability to comment on the agreement when its actual draft text is
available. At present, the lack of anything more than a sparse outline
prevents a more detailed discussion of the many complex issues that can
and will be encompassed by such an agreement.
These comments therefore will address several broad themes discussed in
the USTR’s Fact Sheet, as well as more specific proposals that,
while not mentioned in the Fact Sheet, have been recently discussed in
the context of copyright and trademark enforcement.
Ensuring Targeted Enforcement
An extremely wide and disparate range of activities can be encompassed by
the terms “counterfeiting and piracy.” While each represents
a type of offense related to intellectual property, the particular risks
to the public created by each are distinct, and therefore the enforcement
response should be tailored to the type of infringement as well as to the
severity of the threat to the public.
For instance, the public harm posed by counterfeit pharmaceuticals or
tainted food products is clear and considerable. On the other hand,
counterfeit designer clothing or pirated music and movies, while
representing non-trivial losses to rightsholders, do not threaten the
public health and safety in the same way. It is critical for any
policymaking in this realm to draw these distinctions between different
violations, and recognize the relative priority that enforcement
authorities with finite resources will logically give them.
Even within the smaller scope of copyright alone, myriad fact patterns
and situations can all be classified under the terms of
“infringement” or “piracy.” An industrial optical
disc manufacturer, a single P2P downloader, and a student burning a mix
CD can all be liable for copyright infringement, and classified as
“pirates,” even though each of their activities stems from a
different motivation and can be addressed with differing levels and
methods of enforcement.
Aside from the general themes outlined in the USTR Fact Sheet, several
specific proposals for copyright enforcement have been much-discussed in
the press and in international enforcement circles of late.[2] Public Knowledge urges the
USTR to resist attempts to enshrine such technology-specific enforcement
mechanisms in the requirements of a multilateral agreement. Enforcement
efforts in affected countries must account for a wide variety of
variables, including the state of national intellectual property laws,
the cultural and economic needs of individual and institutional users,
and the resources available to local law enforcement.
For instance, in countries lacking a robust and flexible regime of
limitations and exceptions, many legitimate uses remain unlawful, but are
permitted through non-enforcement. Requiring specific enforcement
practices in such a situation, before legitimate uses can be recognized
and codified into local limitations and exceptions, will frustrate the
balance of intellectual property required to ensure creativity and
innovation.
We discuss some of these specific proposals below.
Technological Mandates for Internet Service Providers
One of the legal measures being considered under ACTA is the creation of
a legal framework to deal with piracy via the Internet. In doing so, the
framers of ACTA should exercise caution in the scope of the agreement,
given that binding multilateral agreements such as the so-called WIPO
Internet Treaties[3]
already create a system of requirements for governing intellectual
property and secondary liability on the Internet. The United
States’ implementation of the WIPO Internet Treaties already
accounts for Internet Service Provider (ISP) liability via the safe
harbor provisions of the Digital Millennium Copyright Act
(DMCA).[4]
Furthermore, the diplomatic conference adopting the WIPO Internet
Treaties adopted an “agreed statement” noting that ISPs
should not be held liable when acting as a mere conduit for
communication.[5]
Therefore, in assessing the legal framework of preventing Internet
piracy, ACTA should not oblige countries to impose further requirements
on ISPs that would compromise consumer privacy, create new
responsibilities to monitor content, and impose unfair penalties on
consumers. In particular, ISPs should not be required to reveal the
identities of their customers accused of copyright infringement without
adequate procedural safeguards. Nor should ISPs be required to enact
experimental measures such as filtering content for copyright
infringement, automatically terminating access, or blacklisting accused
infringers from the Internet.
Disclosure of user identity
In order to safeguard the essential values of privacy and trusted
communication on the Internet, ISPs must have strong legal grounds before
disclosing the identities of their users. There is a significant history
in the United States of false or groundless claims intended to reveal a
user’s personal information.[6] Any provisions regarding disclosure should contain
adequate procedural safeguards to protect privacy and prevent harassment.
Rightsholder requests for information about the identity of customers
should be subject to judicial scrutiny. The targeted ISP should be
required to notify its customer of the request, and the customer in turn
should have the opportunity to object to the request. Such safeguards are
necessary to prevent the unwarranted erosion of Internet users’
privacy and anonymity and to promote the free exchange of
information.[7]
Network filtering
ACTA should not oblige member countries to require ISPs to filter their
networks in order to prevent copyright infringement. Such a filtering
mandate could seriously invade users’ privacy, would be unworkably
burdensome and expensive for ISPs, and would have an adverse impact on
lawful uses of copyrighted content. In addition, such measures would be
ineffective in preventing piracy.
Implementing a filtering technology based on content inspection would
require ISPs to inspect every bit of information passing over their
networks, giving rise to serious privacy concerns. Apart from the
question of legality, ISPs required to institute content inspection would
have to fundamentally reconfigure their networks. This would not only
increase the costs of operation, it would slow traffic dramatically. In
an era of increasing demand for the critical services provided by the
Internet, it is unfair and unjustified for all consumers to pay more for
poorer service in order to protect private rights against the occasional
infringer.
In addition, all filtering technologies are by design unable to
distinguish between infringements and lawful uses. While network filters
may be able to recognize copyrighted content, they would be unable to
distinguish the context in which the work was being used. Copyrighted
content may be lawfully transmitted over a network for the purpose of
fair use or other lawful uses. Meanwhile, determined infringers could
circumvent network filters by encrypting content. Thus filters would on
the one hand prevent lawful uses and on the other be ineffective against
piracy.[8]
Termination of Internet access
Recently, proposals have been put forward in some nations mandating ISPs
to terminate customer access to the Internet in response to alleged
infringement. While abuse of an account may subject a customer to
termination, the critical importance of an Internet connection requires
that any such action be procedurally sound, allowing the accusation of
infringement to be contested by the customer and reviewed judicially.
Some proposals go further, requiring ISPs to penalize infringement by the
“blacklisting” of infringing users, permanently terminating
their Internet access. Such a measure would be a completely
disproportionate response to alleged infringement. It would ignore the
fact that Internet is not merely a conduit through which consumers access
copyrighted content, but also a vital means of communication for millions
who otherwise would be unable to speak to a global audience, or to
participate in a global exchange of ideas. Internet access therefore is a
vital outlet for citizens to both provide and receive civic and political
information.
Given the myriad ways in which the Internet is of crucial importance to
individuals, terminating access should not be a penalty for individuals
merely because they are liable for infringement via the Internet. While
it is entirely appropriate that infringers compensate copyright holders
for their losses, depriving users of a forum for speech and expression is
a uniquely disproportionate penalty divorced from any relationship to the
losses suffered by the copyright holder or the unjust enrichment of the
infringer.
It should also be noted that proposals like network filtering and access
termination are still in their infancy. Absent any evidence of their
comparative efficacy or efficiency in the countries in which they have
been proposed, mandating such systems multilaterally would be at best
premature, and at worst require a uniformly poor and onerous solution to
be implemented worldwide.
Additional protections for technological protection measures
In addressing the intersection of copyright infringement and evolving
information technologies, ACTA should not contain any provisions relating
to Technological Protection Measures (TPMs) and remedies against
circumvention. Any TPM provision in ACTA would, at a minimum, be
duplicative. The WCT already obliges member countries to provide adequate
legal protection measures and effective legal remedies against the
circumvention of TPMs used by copyright owners[9]. As a signatory to the WCT, the United
States has already passed domestic legislation to give effect to these
provisions. Any ACTA provision requiring such measures would thus be
redundant, and could potentially conflict with existing agreements.
Furthermore, any ACTA-required protection for TPMs would reinforce a
system that, at least in the United States, has failed to adequately
account for a range of lawful uses. The DMCA, which implements the
WCT,[10] imposes
a blanket ban against circumvention of technological protection measures
with extremely narrow exceptions that do not account for fair use and
other lawful uses.[11] It also prohibits trafficking in devices that
would permit such legitimate circumvention[12]. As a result, a person who desires to
circumvent a TPM for a lawful use is prevented from doing so.
Additionally, the law has been used in ways Congress never intended: in
attempts to prevent free expression and security research, as an
anticompetitive measure, and as a method of frustrating fair
use.[13] The
range of problems associated with TPMs has even been recognized by large
segments of the various content industries, who are in growing numbers
removing copy restrictions from digital media such as
e-books[14] and
digital music.[15]
Discretion in assessing penalties for copyright infringement
The USTR Fact Sheet notes the importance of “strengthening
enforcement measures.” This, we assume, would include increasing
minimum penalties for infringement.
An obligation to increase penalties in U.S. law would create further
imbalances in an already imbalanced copyright remedies regime. Currently,
civil damages for copyright infringement in the U.S. are tilted heavily
in favor of copyright owners. For example, a district court ordered a
Minnesota woman to pay statutory damages of $222,000 for sharing 24 songs
on a peer-to-peer network.[16] Similarly, a piece by Utah law professor John
Tehranian highlights the disproportionate nature of damages.[17] Cataloguing the ordinary
activities of a hypothetical person—forwarding emails,
passing out news articles, reciting a poem—Tehranian
finds that these mundane acts of a single day can expose this imaginary
person to $12.45 million in damages, all without a single act of P2P file
sharing or other commonly recognized “bad acts.”
Increasing penalties also creates problems in evolving areas of copyright
law. For instance, a number of copyright questions remain unsettled in
the United States regarding the nature of incidental copies, the
distinction between digital distributions and digital performances, and
many other issues. Other nations involved in ACTA may likewise have
unsettled areas of law that will be affected by these measures. As the
balances between users, rightsholders, and the public are calibrated in
each jurisdiction, each country should be free to decide the measure of
remedy for violation of law based on its social structure and legal
culture.
Therefore, any provisions that contemplate increasing or instituting new
criminal penalties such as increased fines, prison terms or forfeiture of
property for copyright infringement should be mindful of the differences
between large-scale commercial pirates and individual infringers. The
provisions should also allow for maximum legislative flexibility in
accounting for these differences as well as the evolution of technology.
Conclusion
We anticipate that a number of submissions will indicate areas of
counterfeiting and piracy that might benefit from a multilateral
enforcement agreement. In lieu of repeating the benefits of enforcement
against violations of intellectual property rights, Public Knowledge
submits the above comments in the interest of ensuring that measures
taken to protect intellectual property do not also prejudice the rights
of consumers or the creativity of technological innovators.
[1] Anti-Counterfeiting Trade
Agreement (ACTA): Request for Public Comments, 72 Fed. Reg. 8910 (Feb.
15, 2008).
[2] Tim Wu, Has AT&T
Lost its Mind? a Baffling Proposal to Filter the Internet, Slate,
Jan. 16, 2008, http://www.slate.com/id/2182152 ;
Brad Stone, AT&T and Other I.S.P.s May Be Getting Ready to
Filter, Bits, N.Y. Times Blogs, Jan. 8, 2008,
http://bits.blogs.nytimes.com/2008/01/08/att-and-other-isps-may-be-getting-ready-to-filter/;
Bobbie Johnson, Pirates face crackdown over movie downloads, The
Guardian, Nov. 24, 2007, at International 30, available at
http://www.guardian.co.uk/technology/2007/nov/24/crime.france;
Danny O’Brien, Three Strikes, Three Countries: France, Japan,
and Sweden, EFF Deeplinks Blog, Mar. 18, 2008, http://www.eff.org/deeplinks/2008/03/three-strikes-three-countries.
[3] Specifically, the WIPO
Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65 (1997)
(hereinafter “WCT”); WIPO Performances and
Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 (1997).
[4] 17 U.S.C. § 512; U.S.
Senate Executive Report 105-25 (105th Cong., 2d Sess.).
[5] See WIPO Copyright
Treaty, Agreed statements concerning Article 8, Dec. 20 1996, 36 I.L.M.
65 (1997).
[6] See,
e.g., Shaun B Spencer, CyberSLAPP Suits and John Doe
Subpoenas: Balancing Anonymity and Accountability in Cyberspace, 19
J. Marshall J. Computer & Info. L. 493 (2001).
[7]See Brief of Amici
in Support of Verizon’s Opposition to RIAA’s Motion to
Enforce, Recording Industry Association of America, Inc. v. Verizon
Internet Services Inc., Civ.No. 1:02MS00323 (D.C. August 30, 2002).
[8] For additional explication
of these arguments, see Reply Comments of Public Knowledge, et
al., on Broadband Industry Practices, FCC 07-52, July 16, 2007,
available at
http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519558072.
[9] WIPO Copyright Treaty,
Article 11, Dec. 20 1996, 36 I.L.M. 65 (1997).
[10] The DMCA, in fact, goes
beyond the requirements of the WCT. Pamela Samuelson, Intellectual
Property and the Digital Economy: Why the Anti-Circumvention Regulations
Need to be Revised, 14 Berkeley Tech. L.J. 519, 521 (1999).
[11] See 17 U.S.C.
§ 1201(a).
[12] 17 U.S.C §
1201(b).
[13] Electronic Frontier
Foundation, Unintended Consequences: Seven Years under the DMCA, (Apr.
2006), http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca.
[14] Rachael Deal, DRM
Decision Renews Debate, Publishers Weekly, Mar. 3, 2008,
available at
http://www.publishersweekly.com/article/CA6536974.html?industryid=47152;
Richard Wray, Penguin audiobooks to be free of copyright
protection, The Guardian, Mar. 4, 2008, at Financial 24,
available at
http://www.guardian.co.uk/technology/2008/mar/04/digitalmusic.booksnews.
[15] See,
e.g., Erik Schonfeld, Amazon Completes DRM-Free Roster With
Sony-BMG, TechCrunch, Jan. 10, 2008,
http://www.techcrunch.com/2008/01/10/amazon-completes-drm-free-roster-with-sony-bmg/;
Catherine Holahan, Sony BMG Plans to Drop DRM, BusinessWeek,
Jan. 4, 2008, available at
http://www.businessweek.com/technology/content/jan2008/tc2008013_398775.htm;
Nate Anderson, Three down, one to go: Warner Music Group drops
DRM, Ars Technica, Dec. 27, 2007,
http://arstechnica.com/news.ars/post/20071227-3down-1-to-go-warner-music-group-drops-drm.html.
[16] See Jeff
Leeds, Labels Win Suit Against Song Sharer, N.Y. Times, October
5, 2007, available at http://www.nytimes.com/2007/10/05/business/media/05music.html.
[17] John Tehranian,
Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007
Utah L.Rev. 537 (2007).
