Friday, November 19, 2010

Some thoughts on COICA and ACTA

S. 3804: Combating Online Infringements and Counterfeits Act ("COICA") is on its way to the full Senate after breezing through Committee 19-0.  It provides procedures for the U.S. Attorney General ("AG") to shut down a web site that is "primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator..." to violate copyright or trademark rights.  The provisions are slightly more detailed in terms of what the AG must show in order to temporarily or permanently shut down a site (not much!), jurisdictional (in rem proceedings) and appeal issues, and other fun stuff found in a piece of legislation (except this one's got a distinct "guilty until proven innocent" ring to it), but that's the gist of it.  See here for a rundown of the threats to free speech, innovation and internet architecture contained in the bill as currently written.  My focus is on any potential relationship with ACTA, public disclosure requirements in both ACTA and COICA, and scratching the surface of the constitutional law issues related to separation of powers.

I'm glad to see a provision requiring reporting of the infringing domain names to the IP Enforcement Coordinator, who must publish them.  The AG also must publish a procedure for members of the public to submit information about infringing sites to pursue, ways for rightsholders to identify such sites to the DOJ, and ways for rightsholders to supplement ongoing investigations, among other things.  This section should be pried open further by requiring consideration of comments from any interested stakeholders before formulating these rules.

Also, depending on what happens with ACTA in the US, what role will COICA then play?  There may be important issues addressed by parts of ACTA, but the whole process has seemed like a bit of a sham from the start.  The constant calls for public participation in the U.S. and abroad have led to (very) modest progress on that front.  I'm not sure what was such a big secret about re-writing the DMCA into ACTA.  Supporters would argue that the language of ACTA Section 5, the digital enforcement section, and the DMCA itself, are merely implementations of the WIPO Copyright Treaty.  This is true with respect to the latter, although the scope of the implementation has been questioned plenty.  Either way, there are other concerns, such as the troubling border control measures made possible by ACTA.  I also agree with the constitutional issues raised about ACTA.  If it moves forward, a lawsuit seems inevitable.  A related concern is that COICA is a sort of backdoor implementation of ACTA into domestic law.  An argument can probably be made that the TRIPs enforcement provisions encompass COICA too, but that's another can of worms that I'm too tired to open.

The COICA requirements of seizure of a domain name attached to an infringing site is suggested by a few parts in ACTA, such as Section 2.3.2 (assuming a broad definition of "goods" and "materials and implements" to infringe, neither of which ACTA's definitions appear to prohibit), Section 2.5.3 (requiring judicial "seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement"), and Article 2.16 "Seizure, Forfeiture and Destruction."  COICA, as it currently stands, suggests that the AG may pursue infringing sites on its own or after notification by members of the public or rightsholders.  Compare ACTA 2.17, "Ex Officio Criminal Enforcement".  It is also an amendment to Title 18, federal criminal law.  As the EFF points out, copyright holders already have powerful tools to remove infringing content.  Their effectiveness is another matter.  Still, I agree that any actual or perceived lack of effectiveness in existing options should not continue to be addressed legislatively.  After all, passing more laws will not lead to more cultural and financial value creation unless maybe there's a TARP-style bailout of copyright-based industries.  Doubtful.

The primary constitutional objection to ACTA is that because it invokes IP, and IP is exclusively the domain of Congress under the Constitution (and the loads of case law reminding us of this), that it is a treaty requiring the advice and consent of the Senate.  The proponents claim that it's an "Executive Agreement" not subject to such scrutiny.  It's an interesting dance here: if ACTA is signed as an Executive Agreement, and Congress enacts COICA under Title 18, has Congress arguably consented to ACTA's terms by changing remedies for Title 17 violations through the backdoor of Title 18 in addition to its prior passage of the DMCA directly into Title 17?  Maybe, just without all that public disclosure, open debate and procedural hurdles.  Factual distinctions aside, would it be enough implicit authorization to give the president authority to sign ACTA under the Youngstown Sheet standard?  See 343 U.S. 579, 635 (1952) (Jackson, J., concurring).  Of course, these arguments would need to be tested against all the other sections of ACTA too, not to mention lots of other case law.  While browsing sites discussing these issues, I found this interesting tidbit: "The United States is currently a party to nearly nine hundred treaties and more than five thousand executive agreements."  I guess one more couldn't hurt.

Another point in ACTA that needs clarification is the scope of "appropriate limitations or exceptions to measures implementing" the DMCA-like sections.  Would a tribunal look to the triennial DMCA rulemakings in the US?  The TRIPs three step test?  Other than peer pressure, how will members make sure other members are in compliance?  ACTA establishes "The ACTA Committee" but it's unclear where it gets its teeth, compared to TRIPs and WTO panels, for example.  This part of ACTA also includes a phrase only a lawyer could love: "All decisions of the Committee shall be taken by consensus, except as the Committee may otherwise decide by consensus."  Isn't the latter included in the former?  I think the consensus is that the disclosure of the ACTA text and the slight public disclosure/involvement requirements in COICA are some "progress," but not exactly a step toward the type of progress envisioned by the Framers.