Sometimes a story is so insane that you can’t help but wonder if someone has slipped you some crazy pills. See, for example, the Google prosecution in Italy. I honestly thought that story could not be topped. But lo and behold, it appears that the EU has proposed to add third-party CRIMINAL liability to the Anti-Counterfeit Trade Agreement (ACTA). This essentially outlaws the entire Internet. Insanity.
Background: Third party civil liability for copyright infringement is an emerging, but still controversial, doctrine as applied to the Internet. A site may be liable if it has incited and/or facilitated the violation of copyright, see Grokster. The limits of this doctrine are still being tested: it is not clear what level of hosting or facilitating actually triggers liability. For an example of this endemic uncertainty, the § 512 of the DMCA creates a safe harbor for ISPs, provided that the ISP expeditiously removes infringing content after the ISP is put on notice. However, it is unclear what material is so obviously infringing that its very presence should put the ISP on notice (this is the controversial “red flag” test).
Commentators have argued for and against third party civil liability. And it may turn out that civil liability will actually be codified in US law (previous attempts to do exactly that have failed, see the failure of the INDUCE act.) But the EU has taken it up a notch by not only attempting to codify third party liability for copyright infringement but also asking that criminal penalties be imposed.
[EU: ARTICLE 1. OFFENCE/CRIMINAL INFRINGEMENTS
1a. TRADEMARK COUNTERFEITING, COPYRIGHT AND RELATED RIGHTS PIRACY ON A COMMERCIAL SCALE
Each party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark infringement and copyright or related rights piracy on a commercial scale.
[EU: ARTICLE 2. LIABILITY, PENALTIES AND SANCTIONS
2B. INCITING, AIDING AND ABETTING
The provisions of this section shall apply to inciting, aiding and abetting the offences referred to in Article 1. (source)
WOW. I dare this provision to make less sense. No really, this may be the worst idea of all time (sorry AP, looks like you are going to lose your Bozo Crown).
First off, this seems to criminalize most Internet . . . everything. This would sweep in not only torrent trackers but also search engines and aggregators. It seems pretty clear that this provision is the “Kill PirateBay” part of ACTA and so supporters will say “No one will use this to shut down search engines.” But let's not forget that this was the exact same argument used by the RIAA it helped cook up the DMCA and we all know how that turned out.
Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. While the agreement itself may not have the power to change the law, the very fact that the Executive agreed to ACTA would place an enormous amount of pressure on Congress to “honor our international obligations.”
Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster. The law has to adapt to new media, new markets, and and evolving concepts of fairness and public interest. We certainly do not want to thrust our crude, relatively static criminal law into this dynamic environment.
(Andrew Moshirnia is a second year law student at Harvard Law School and a CMLP blogger. He thinks you should have a healthy fear of us because too much of us is dangerous.)