Has the U.S. Caved on Secondary Liability in ACTA?

Following the ninth round of ACTA negotiations in Lucerne, Switzerland in July, it became apparent (after the updated ACTA leaked) that the U.S. had caved on some of its demands to include DMCA-like anti-circumvention language in ACTA.  The ACTA provisions still go further than the WIPO Internet treaties by mandating the inclusion of provisions to address circumvention devices, but the treaty moved much closer to the EU approach and became more consistent with the WIPO Internet treaty flexibilities. This represented a major shift for the U.S. and was clearly a loss from what it hoped to achieve within ACTA.

With the tenth round of ACTA negotiations now complete, there is no leaked document (yet), but there are rumours that the U.S. has now caved on secondary liability.  If true, this would represent an even bigger setback for the U.S., which included references to a three strikes and you’re out approach in the initial drafts of the Internet chapter. Secondary liability has proven consistently problematic, however, since many ACTA countries deal with the issue in different ways. The rumour now is that provision will be very general in nature, leaving considerable flexibility in implementation.

The ACTA partners committed last week to trying to wrap up the negotations when they next meet in Japan late in September.  Having backtracked on many of its key Internet chapter demands, the U.S. is clearly desperate to conclude a deal. The battle over the scope of the treaty remains, however, and that issue is the one that will ultimately determine whether a final text is concluded one month from now.


  1. Repeated History
    As I have said before it is the consumer that ultimately determines the market. Established business, with their stale models of operation that have worked so well for them, will be more than reluctant to change. It is unfortunate they are so slow to accept this and even more disturbing are the governments who enable them.

  2. Programmer, author, and linux user says:

    The 301 report is the problem
    The 301 report is the problem; no matter what legal rights Canada has, the US will use the report to push for more anti-circumvention and ISP liability.

    Of course, if the gov’t (and, say, the media) actually confronted the report, to use James Moore’s language, then it could be duly ignored.

  3. @crockett
    Dude, I disagree. That may have been true in the 60′s and 50′s, but eventually most corporations began to agree on what prices should look like, and what should be commoditized.

  4. Dude, we’ll agree to disagree.
    No, it is a ongoing process. The music industry has started to change by giving up on DRM and allowing 99cent songs, while if they had their wish they would have done neither. The Movie industry is moving along slower though, keeping DRM and not allowing what the consumer sees as reasonable fair use (backups, format shifting). The ‘piracy’ they complain so much about is a symptom of those restrictions, give the consumer what they want and piracy will abate to a lower but unavoidable level (as some will always take no matter what).

    Governments are just as short sighted, with their eyes set on the next election which is not usually more than just a few years away. The loudest voices unfortunately are not the citizens but the whispers of the the moneyed representatives who finance their campaigns.

    Before you call me a paranoid conspirator let me give you a recent example. Here in BC, the liberal government during the last election campaign, said they would not implement an unpopular harmonized sales tax. TWO DAYS after being elected they did just that to cater to the business sector who are their largest financiers. A grass roots citizen campaign gathered the necessary (100′s of thousands) of signatures to force a repeal referendum. They are going on to get enough signatures to recall a significant portion of the government MPs.

    People are fed up with government and big business screwing them over and good on them for finally doing something about it. It may be a little thing in people lives but when the RIAA (or the Canadian equivalent) says backup your DVD by taping the screen with a handy-cam, piracy seems like a fair response.

    Treat people fairly and most will respond in kind. Not rocket science.

  5. Correction
    RIAA should have read MPAA or ‘MAFIA’ ;)

  6. “..that issue is the one that will ultimately determine whether a final text is concluded one month from now. ”

    As usual, Michael, you are trying to troll the narrative towards the weakest reform possible.

    You might be more credible if you weren’t so blatantly biased against copyright holders and for ISP’s and pirates.

  7. No one here advocates ‘piracy’ as you put it, but rather fair use rights for consumers. Giving/taking/trading copyrighted material without permission (eg. P2P file sharing) outside of set exemptions is wrong. No one here, especially Mr. Geist, has ever advocated that.

    Biased towards ISPs? That doesn’t even make sense.

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