Reading the media coverage of the Polish anti-ACTA marches, and Kader Arif's resignation, there’s a lot of confusion about ACTA (Anti-counterfeiting Trade Agreement) and SOPA (Stop Online Piracy Act). For example, I’ve read that ACTA is going to impose “SOPA-like blocking”. That ACTA is “Big Brother to” SOPA or “even worse than” SOPA. Is this the case?
Well, yes and no. Both SOPA and ACTA have the same objective. That is to act against alleged copyright infringing material by blocking elements of the Internet. But legally, the two work quite differently. They have a different legal basis.
ACTA, legally a ‘trade agreement’, sets up an international framework. As such, it is non-specific, and subject to interpretation by individual countries. SOPA is a law under the United States legal code, and it gives instructions to US law enforcers, administrative and judicial bodies. .
SOPA is about theft of United States property. It concerns websites and services located outside the United States, which may get visitors or traffic from within the US. That means millions of websites worldwide. Media and e-commerce sites will be hard hit. Small businesses (SMEs) in Europe, as well as large social media sites, will be affected.
SOPA is about stopping websites being visible or trading in the United States. And it’s about stopping American citizens from getting access to websites and services which are hosted outside the United States.
SOPA would punish websites which avoid confirming that they are not copyright infringing.
SOPA would appear to give the US authorities carte blanche to police copyright worldwide.
SOPA measures would be applied in the United States, administered by the US authorities, and judged against US intellectual property and copyright law. An injunction would be applied in the United States. The foreign website owner seeking to fight the injunction or mount a defence would have to do so under American law.
SOPA provides substantively for a range of new anti-copyright measures targeting Internet intermediaries. It appears to be primarily targeting hosting sites, and search or linking sites. Broadly, the measures fall into three categories: domain seizures, stopping payment services and stopping advertising services.
It would follow that websites outside the US would have to comply with US copyright and intellectual property law in order to retain their audiences or their customers.
SOPA would ride roughshod over the laws of the European Union and all other countries.
SOPA is a law placed before a legislature, and has for the moment been put on hold.
The Protect IP Act, or PIPA has similar measures, but seems to avoid the language of ‘theft’.
ACTA is about any Internet content in any country.
ACTA is a framework only. It does not mandate any specific web blocking measures, although such an intention may be interpreted from the text. Any measures must be implemented under local laws. In the EU, it would be have to implemented by the Member States. It is down to the individual Member State to interpret ACTA in whatever way it chooses.
ACTA is targeting Internet intermediaries too. It use the expression ‘third parties’. That means ISPs too. ACTA’s intention is that ISPs can be asked to block web content using a variety of technical methods. ACTA could imply measures targetted against hosting services, domain registrars, payments and advertising services.
Under ACTA, there is room for a court to adjudicate, although the likely intention of the drafters is that there is no court involved. People would be able to defend themselves in their own country, under their own laws. Websites and services would have to comply with the law of the country in which they are based.
ACTA implies the possibility for 3-strikes measures, although it does not say so specifically. It does contain provisions which would enable 3-strikes.
So ACTA will have broader scope in terms of measures, in particular because its measures would block ISPs as well as hosting and search services, but a narrower scope in terms of the legal jurisdiction which will apply.
What’s important is that compliance is at a local level. ACTA does not force global compliance with American intellectual property and copyright law, as SOPA does. Countries will still be able to have their own versions of copyright law. In spite of the efforts of the copyright industries, to the contrary.
That doesn’t mean ACTA won’t create enormous havoc for the Internet. It will.
ACTA does intend the blocking of web content by ISPs, and that is where the danger lies. Defence rights will almost certainly be eroded. If persued in anger, ACTA risks turning the European Internet into a blocked and restricted pseudo-interactive facility controlled by a few dominant corporations.
ACTA was drafted by unelected civil servants in secrecy.
It is critical for policy-makers to understand the intention of ACTA, and forget about the literal interpretations which are being used by its defenders.
You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, ACTA v SOPA: what’s the difference? www.iptegrity.com 29 January 2012 . Commercial users - please contact me.