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ACTA Treaty Released
roju writes "The full text of the Anti-Counterfeiting Trade Agreement (ACTA) was released today. It differs from the earlier leaks in that the negotiating stance of each country has been scrubbed. Preliminary analysis is up at Ars, which warns that 'Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet.'"
Thanks for that. Some very good info on Wikipedia of all places. In case anyone wants the highlights:
Judicial view
Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart by noting:
" The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.
"A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."
Also, most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.
Think about the SCO case: Perhaps SCO should have gotten an injuction to prevent anyone from distributing any version of Linux while the courts figured it all out. After all, they were claiming copyright infringement, exactly the type that would be covered in this treaty. SCO even brought the case to full fruition. This is 100% the type of case that can be subject to being enjoined. Imagine if that happened, and the judge decided that everyone that didn't have an SCO license also needed to take their Linux servers down for infringment.
The answer is to NOT have prior restraint, and sue for damages later if that is the case.
Tequila: It's not just for breakfast anymore!
I searched the entire document for "fair use" and came up with only one entry, footnote 47:
"[For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another. Further, the Parties also understand that the application of third party liability may include consideration of exceptions or limitations to exclusive rights that are confined to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder, including fair use, fair dealing, or their equivalents.] At least one delegation opposes this footnote."
I wonder which delegation(s) that is (are)? If footnote 47, or some equivalent, does not appear in the final version, would we have a conflict between ACTA and 17 USC?