How ACTA Turns Limited Secondary Liability In Copyright Into Broad Criminal Aiding & Abetting

from the uh-ohs dept

Fri, Oct 29th 2010 2:02pm — Mike Masnick

We've noted that one of the serious problems with ACTA is the fact that it locks in this idea of secondary liability in copyright law, making it such that third parties can be liable for actions of their users' infringement in certain cases. Secondary liability in copryight law is caselaw driven. Congress had a chance a few years back to put "inducement" into copyright law with the INDUCE Act, but chose not to. So I find it strange that the courts have simply interpreted copyright law to include such an inducement standard anyway. One of the problems with ACTA is that it takes this highly dynamic part of the law, and effectively locks it in, such that Congress cannot tell the courts it made a mistake, should it decide to do so.

However, some are noticing that it's actually even worse than that. While I already disagree with the court's interpretation of various forms of secondary liability, at least they've included some safeguards in terms of what standards need to be met before secondary liability might apply by looking at things like whether or not there are substantial non-infringing uses and whether or not there's intent or knowledge. Unfortunately, it looks like ACTA partly seeks to wipe these out by changing these more nuanced standards into a simple "aiding and abetting" standard, which could lead to criminal infringement claims. As we've already noted, ACTA has already broadened the definition of "commercial scale" in order to increase criminal liability for infringement, but law professor Michael Carrier's analysis suggests the "aiding and abetting" language also greatly broadens the liability for secondary liability as well:

Any party that plays a role in assisting infringement could be liable for criminal liability. The identity of such parties is worrisome: Personal computer manufacturers. Electronic device makers. Search engine operators. Each of these entities could play a role, however indirect, in contributing to copyright infringement.

Although copyright's secondary liability law is not a model of clarity, courts have sought to ground its elements in balanced policies. Judicial tests have asked if devices have noninfringing uses (Sony). If the party has knowledge and materially contributed to the activity (contributory infringement). If it has a financial interest and the right to control (vicarious liability). If it has an intent to induce infringement (Grokster).

Aiding-and-abetting liability lacks such nuance. It is borrowed from criminal law. And it is used to punish those who assisted in the crime. The getaway driver. The fraudulent check presenter. The cocaine distributor. In the criminal law arena, such liability reaches broadly to deter true criminal conduct.

In the context of secondary copyright liability, in contrast, such a standard is not appropriate. Not when copyright is subject to competing public policies. Not when technologies could be held criminally liable for allowing search, performance, or retrieval. Not when these monumentally significant issues--which would dramatically expand U.S. liability--were never even debated.

Yet another reason why ACTA is so troubling. And, of course, if there had been any serious public consultation on the document before it hit its "near final version," these are the sorts of gross mistakes the USTR could have avoided.

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Filed Under: acta, aiding and abetting, copyright, secondary liability

20 Comments

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Anonymous Coward, 29 Oct 2010 @ 2:16pm

The only acceptable course of action when it comes to any new copyright legislation right now is to repeal our current laws. Repeal the DMCA, repeal the insane length and fines associated with copyright, and add international safe harbors and duration limitations that any country who wants to implement copyright laws within their countries and agreements with other countries must abide by.
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Anonymous Coward, 29 Oct 2010 @ 2:46pm

I wonder if in 50 years those laws will still be around.

I'm sure some companies will not :)
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out_of_the_blue, 29 Oct 2010 @ 3:13pm

"gross mistakes the USTR could have avoided"?
Do you *really* think at this point that those are *mistakes*?
And have you not grasped that whatever reasonableness happens to be coming out of the courts lately, it's going to be irrelevant when ACTA is enforced?
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Silicon Valley's Gonna Burn, 29 Oct 2010 @ 3:23pm

Welcome to the new Internet, Please enter you IID number and press enter. I'm sorry you have entered a number that is not yet registered with the Department of Personal Computers, please try again. Pay close attention as some of our options have changed. This session may be recorded for quality assurance purposes.
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- Anonymous Coward, 29 Oct 2010 @ 4:12pm
  
  Re:
  Agendas transcend politics, endgame is project global village (1998), the whole thing is slipping away, the undernet is eminent.
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Anonymous Coward, 29 Oct 2010 @ 3:40pm

"Congress had a chance a few years back to put "inducement" into copyright law with the INDUCE Act, but chose not to."

If I recall correctly Grokster rendered the perceived need for any such legislation moot.

This is certainly not an issue where Congress specifically rejected an idea, only to have the Supreme Court disagree and add it anyway to caselaw.
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b, 29 Oct 2010 @ 5:38pm

Ummm
One of the problems with ACTA is that it takes this highly dynamic part of the law, and effectively locks it in, such that Congress cannot tell the courts it made a mistake, should it decide to do so.

As this is not a treaty ratified by the senate, this is not true.

Now I know that those pushing for ACTA want this to be true it is not.
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- Anonymous Coward, 29 Oct 2010 @ 9:07pm
  
  Re: Ummm
  It does not lock Congress in at all, as would be immediately apparent from considering for a moment one of the basic principles enshrined in our Constitution...the Separation of Powers.
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  - The eejit (profile), 30 Oct 2010 @ 2:59am
    
    Re: Re: Ummm
    I'd argue that it locks Congress in to being a puppet for major corporate interests, rather than the interests of the people. Aiding and abetting allows criminal punishments, as opposed to civil damages.
    
    MAyse you should shoot anyone who thinks this will be a money earner.
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    - Anonymous Coward, 30 Oct 2010 @ 7:53am
      
      Re: Re: Re: Ummm
      Re your first point, Congress has always sucked at the teat of money givers.
      
      Re your second point, US law currently provides for criminal prosecution of copyright infringers, including conspirators, aiders and abettors, etc.
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      - Any Mouse, 30 Oct 2010 @ 9:39am
        
        Re: Re: Re: Re: Ummm
        There are very strict rules governing criminal prosecution for copyright infringement. This would remove many of those rules, and charge people who were not even aware of the issue with criminal aiding and abetting. If you think that's a good idea, you're an idiot.
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        Anonymous Coward, 30 Oct 2010 @ 11:53am
        
        Re: Re: Re: Re: Re: Ummm
        I will resist the temptation to respond with a pejorative comment. Instead, let me simply say that on this issue you are plainly wrong as a matter of US criminal law.
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  - Mike Masnick (profile), 1 Nov 2010 @ 3:53am
    
    Re: Re: Ummm
    It does not lock Congress in at all, as would be immediately apparent from considering for a moment one of the basic principles enshrined in our Constitution...the Separation of Powers.
    
    You keep saying that. Will you come out from your cloak of anonymity and admit you are wrong when Congress claims "international obligations" that prevent it from making changes under ACTA?
    
    I doubt it.
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    - Anonymous Coward, 1 Nov 2010 @ 7:30am
      
      Re: Re: Re: Ummm
      The points I make are predicated upon basic and well-known principles of law. They are not based upon anything else.
      
      An executive agreement does not, and in fact can not, legally limit Congress' power to craft legislation. The most that can be said is that certain proponents on certain issues that may bear some relationship to whatever is eventually contained in ACTA may try and use it as a talking point (perhaps even a "moral" imperative), but that in and of itself is a quite separate matter from Congress' legislative powers under Article I of the US Constitution.
      
      This point is important from a practical point of view. Whereas ACTA is proceeding in what is continually being referred to as "non-transparent/secret" such that only a select few are involved in the actual negotiations, such is decidedly not the case in matters of legislation before Congress. There stakeholders on all sides of an issue are afforded the opportunity for involvement.
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    - Anonymous Coward, 1 Nov 2010 @ 12:31pm
      
      Re: Re: Re: Ummm
      Anonymous and Mike seem to be talking past each other a bit, but I'm with Mike on this one. It's true that as an executive agreement not ratified by the Senate, Congress's hands are not literally tied. (Of course, they're not *literally* tied, but what I mean is Congress is not literally without authority to change the law in a way that conflicts with ACTA.) But, as Mike and others have argued, enactment of ACTA sets up a situation where deviating from ACTA could result in the loss of benefits (real or perceived) from the agreement, thus making it even more difficult to modify US law in the future, and providing additional rhetorical ammunition to those proposing stricter US laws.
      
      But as for the main substance of this post, I don't get it. What is it about ACTA that's supposed to modify aiding and abetting liability? The US already has it for copyright crimes (incluindg the dreaded "inducement" liability). The author Mike quotes in his post seems to suggest that aiding and abetting lacks the "nuances" of civil secondary liability law. That may be true, but isn't that sort of a good thing?
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      - Anonymous Coward, 1 Nov 2010 @ 5:17pm
        
        Re: Re: Re: Re: Ummm
        ...which is why my comments have been limited solely to "law". These were in response to several articles and comments here that keep stating enactment of ACTA would preclude Congress from future amendments to copyright law.
        
        These concerns re ACTA may have persuasive force as a practical/political/etc. matter, but as a matter of law they do not.
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Dohn Joe, 30 Oct 2010 @ 9:39pm

Not So Worrisome
The use of "Aiding and Abetting" implies an active, deliberate role in infringement. Just as no car manufacturer has been locked up for "Aiding and Abetting" a bank robbery, by case law then should no manufacturer of computers or search engine.
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Dr. Science, 31 Oct 2010 @ 5:57pm

ACTA is an effort by lawyers to define "music and movies" as
intellectual property, but it's not. "Patents" are
intellectual property. Music and movies are "artistic
property" and as such are only entertainment. If lawyers are
allowed to succeed, every transmission or reception
through the Internet will be scanned for any possible
violation of "copyrights". Patent's expire in 17 years in
the U.S., but copyrights can be inherited and live for many
decades. Based on the actual "contribution to the world",
copyrights should be limited to at least as long as patents.
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tehowe, 1 Nov 2010 @ 12:06pm

This would effectively wipe out DMCA safe harbour provisions, right?
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- Anonymous Coward, 1 Nov 2010 @ 12:23pm
  
  Re:
  No, it would not.
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