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

by Mike Masnick
Techdirt
Oct. 30, 2010

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.

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.