How ACTA Turns Limited Secondary Liability In Copyright Into Broad Criminal Aiding & Abettingby Mike MasnickTechdirt Oct. 30, 2010 |
'We Own This Country': Mark Levin Says Pro-Palestine Protesters Should be 'Rounded Up and Deported'
Trump Meets With DeSantis in 'Quest for Donors,' Calls for Protests to be Shut Down One Day Later
Israel-Ukraine $95B Aid Bill Includes Provision to 'Supercharge Mass Migration From the Middle East'
Rep. Thomas Massie Warns Congress is Trying to Pass Hate Speech Laws to Outlaw Criticism of Israel
Journalism Professors Call on NY Times to Launch Independent Review of 'Hamas Mass Rapes' Story
How ACTA Turns Limited Secondary Liability In Copyright Into Broad Criminal Aiding & Abettingfrom the uh-ohs deptWe'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.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. |