ACTA

As reported in “Meet SOPA’s Evil Twin, ACTA,” SOPA’s demise has brought the Anti-Counterfeiting Trade Agreement–ACTA–into focus. (The Office of the U.S. Trade Representative has posted ACTA’s text.)  The U.S. was among the group of nations that signed ACTA last October; 22 European countries signed it last Thursday, prompting protests throughout Europe (ars technica, “Opponents protest signing of ACTA without adequate debate“). The U.S. signed ACTA as an Executive Agreement that (the Obama administration claims) does not change U.S. law and thus need not be submitted to Congress, limiting public commentary on its provisions.  Jack Goldsmith and Larry Lessig challenged the Constitutionality of the administration’s secret ACTA negotiations in a  March 2010 Washington Post Op-Ed.

[ACTA’s] proposals [contained in a leaked January 2010 draft] might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis . . .

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president’s express constitutional powers (such as the power to recognize foreign governments) . . .

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

Obscured by SOPA, ACTA managed to fly under the radar to multi-national ratification. The question is whether it’s too late.

Rep. Darrell Issa (R-CA) joined the chorus of criticism this week when he called ACTA “more dangerous than SOPA” at a panel at the World Economic Forum in Davos, Switzerland. “It’s not coming to me for a vote,” he said. “It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

Treaty Draft Makes ISPs Liable for Illegal Content

PC World reports that a draft treaty leaked from the Anti-Counterfeiting Trade Agreement talks would make ISPs liable for civil damages for user-generated uploads and downloads of copyrighted content.  According to PC World, the draft treaty would require ISPs to take affirmative steps, such as terminating violators’ accounts, to avoid being liable for their users’ copyright infringement.  France last year enacted a “three-strikes” law requiring ISPs to terminate an account after a user’s second warning for copyright violations.  Participating in the ACTA talks are the U.S., the E.U., Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Singapore, South Korea, and the United Arab Emirates.  If adopted by the U.S the draft proposal would change current law. Under the Digital Millennium Copyright Act U.S. based ISPs can avoid liability for users’ copyright infringement by adhering to the DMCA’s notice and take-down procedures.  A U.S. ISP has no duty to monitor its site for user-posted copyright-infringing material, but if a copyright holder notifies the ISP of the presence of its copyrighted material on the site then the ISP must “expeditiously remove or disable access to” the targeted content to maintain the liability safe harbor.  (See DMCA §512 for the complete text of the safe harbor requirements and procedures.)