By Michael A. Carrier
The Anti-Counterfeiting Trade Agreement (ACTA) has caused concern for many reasons, such as secret negotiations and controversial provisions. Today, more than 70 law professors sent a letter to President Obama asking that he “direct the [U.S. Trade Representative] to halt its public endorsement of ACTA and subject the text to a meaningful participation process that can influence the shape of the agreement going forward.”
Despite this beneficial attention, one clause has slipped under the radar. Article 2.14 of ACTA would require participating nations to “ensure that criminal liability for aiding and abetting is available.”
This liability would apply to parties that assist others in engaging in “willful . . . copyright . . . piracy on a commercial scale.” Such scale includes “commercial activities for direct or indirect economic or commercial advantage.” These terms are not defined in the agreement. As a result, it would appear that any activity that would give an “indirect” commercial advantage (including the downloading of a single copyrighted song) could lead to criminal liability.
While such a consequence would appear severe, it is not even the most concerning part of Article 2.14. That distinction is reserved for the “aiding and abetting” basis for liability. 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.
In 2004, Congress considered adding “aiding and abetting” liability to copyright law. Its attempt, the Induce Act, failed. The secretive ACTA is not an appropriate vehicle to circumvent this failure and dramatically expand secondary liability.
Michael A. Carrier is a Professor of Law at Rutgers Law School-Camden who teaches and writes in the areas of antitrust, intellectual property, and property law. He is the author of Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law and editor of the forthcoming volume, Critical Concepts in Intellectual Property Law: Competition.