ACTA Treaty

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If pressed, I would name the ACTA treaty and Network Neutrality as the two most threatening issues of the day with regard to the Internet. The ACTA treaty has, until recently, been under super secret negotiations hidden from public scrutiny. There have been a number of leaks, and finally an official release of a treaty draft a few days ago. The treaty is titled as an “Anti-Counterfeiting Trade Agreement” , but it, at minimum, shares equal space with combating so-called Internet ‘piracy’. Section 2.18(3) is particularly interesting and pertinent in the same context as DMCA and Network Neutrality issues.

 

Section 4: [Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment]

ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT] 45

[…]

  1. Without prejudice to the rights, limitations, exceptions, or defenses to [[ patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [confirms that] [shall provide for] [civil remedies as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability[ 47 ][or liability for those who authorize infringement, or both] for [[patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement. 48

[…]

Each Party recognizes that some persons 49 use the services of third parties, including online service providers,[ 50 ] for engaging in [ patent, industrial design and trademark,] copyright or related rights infringement.

 

[…]

50

[For purposes of this Article, online service provider and provider mean a provider of online services or network access, or the operators of facilities therefore, and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.]

 

The Electronic Frontier Foundation released a preliminary legal analysis of the treaty draft, noting:

ACTA contains various provisions requiring countries to impose liability on intermediaries for their users’ behavior (Article 2.18(3)). This would apply to Internet intermediaries, but also to intermediaries such as libraries and educational institutions, which frequently provide Internet access to their customers and users.” – eff.org

Holding ISPs / “Internet intermediaries” liable for content traveling over their wires is a dangerous idea. The Internet, by design, is a decentralized network with no single authority. The peering nature of various ISPs at the Tier-1 / backbone / core router level makes the Internet resilient to being choked off as is appropriate for what originally was Intended to survive military attacks in the ARPAnet days.

 

The current Internet’s state as a platform for innovation is derived directly from its resiliency coupled with the neutral nature of Internet traffic. It is a little cliché to compare the Internet to a highway both because of the circa 1990s meme “Information Super Highway” and the infamous “series of tubes” comment. That being said, the Internet really is comparable to the US interstate system, and to road systems in general. When I say Internet, to be specific, I am referring to layers 1-3 of the OSI model (http://en.wikipedia.org/wiki/OSI_model). In this context the “Internet” is the road we travel on. What we travel in (car, bike, bus, etc) corresponds to layer 4. Layers 5-7 correspond to what we are doing (going to school, work, the beach, etc.)

 

To explain what holding “Internet intermediaries” really means I present the following “thought experiment”:

 

Imagine a money counterfeiting ring (layers 5-7) sending their illprinted gains from the east to west coast in a truck (layer 4) over local roads, then the interstate, then local roads again (layers 1-3). The activity taking place at layers 5-7 is clearly unlawful. The truck at layer 4 is simply transporting an unmarked cargo, and the roads (layers 1-3) are simply infrastructure. In this scenario the “Internet intermediaries” are the roads with the Interstate being Tier-1 type ISPs, and the local roads being representative of the end-user connection. In such a case, does it make any sense for the local municipality which provides the roads to be held liable because someone drives a truck filled with counterfeit money over it?

 

Let us expand this thought. Instead of counterfeit money, let us consider counterfeit widgets made by the Marvin, Inc widget manufacturing company. If Carl the counterfeiter is counterfeiting Marvin’s widgets and shipping them from the east to the west coast, Carl is clearly acting unlawfully. Marvin would, naturally, seek to interdict Carl’s activities.

 

How is this accomplished? In the real world Marvin would go to the authorities, find out who Carl is and stop him though various legal processes. The conflict would be between Marvin, Carl, and the law. In the digital equivalent the real problem is that finding Carl is hard for Marvin. Enter the ACTA treaty. By making the “Internet intermediaries” liable as a third party Marvin is effectively forcing the local municipalities, whose roads are being incidentally being used by Carl, to expend resources to combat Carl’s actions. Further, the actions taken to combat Carl also affect other users of the roads in question – innocent bystanders who have nothing to do with Carl and Marvin’s disagreement.

 

The above is a very simplistic view, the reality gets even more convoluted. Suppose Carl disagrees that his widgets are counterfeit, but instead believes the ideas behind widgets are public domain making him free to produce them legally. Now not only are the users of the roads affected, but Carl, if he is right, is also forced to defend against the intervention of the municipalities and other authorities who have placed roadblocks in his way at the prompting of Marvin.

 

The Internet is a unique resource, and quite possibly the most important thing ever created. It is the vehicle driving scientific collaboration and innovation like never before in human history. If legislation and regulation reach too far into it we risk stifling this precious resource, weighting it down until it sinks. The Internet is too important a resource for business, research, collaboration, communication, and a myriad of other activities. To damage the Internet with politics would be akin to setting fire to the Library of Alexandria out of spite.

 

I will continue keeping a close eye on this issue as it unfolds. One of my colleagues and I are contemplating a more in-depth analysis on this and the Network Neutrality fronts which I hope will be fruitful.

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