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Difference between revisions of "ACTA and software patents"

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(Broader liability: ==Potential problems to look for when reviewing the text==)
 
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:{{help|This needs to be reviewed in light of [http://www.ustr.gov/webfm_send/2379 the November 2010 publication of the proposed-final text]}}
 
:{{help|This needs to be reviewed in light of [http://www.ustr.gov/webfm_send/2379 the November 2010 publication of the proposed-final text]}}
  
[[ACTA]] creates new liability for software distributors and new powers for patent holders.
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[[ACTA]] is an international treaty which ''could'' create new patent liability for software distributors (including ISPs and other intermediaries) and gives new powers for patent holders.
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The versions of the text after October 2010 create much fewer problems regarding patents.  {{help|Are their any liability problems left in the text which might make an ISP afraid to distribute software due to fear of patents?}}
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ACTA creates many ''other'' problems via copyright and DRM laws, but these are not within the scope of {{SITENAME}}.
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==ACTA does ''not'' make software patentable==
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Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not.  The text states this explicitly:
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<blockquote>
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ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS<br />
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1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law.<br />
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2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party.<ref>Page 3 of the 15 Nov 2010 text</ref>
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</blockquote>
  
 
==ACTA ''does'' modify patent law==
 
==ACTA ''does'' modify patent law==
  
Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law.  While it is true that the text may not require changes to the text of a country's patent law, it does change issues of liability and enforcement which will greatly change how patent law applies to developers.
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Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law.  While it is true that the treaty may not require changes to the text of a country's patent law, it does change issues of liability and enforcement which will greatly change how patent law applies to developers.
  
==Broader liability==
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==Main worry: liability leading to fear of distributing software==
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:''Note: This problem existed in previous texts.  It has been greatly reduced in [http://www.ustr.gov/webfm_send/2379 the November 2010 text].  A detailed reading is still necessary to see if any of this problem remains.''
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The main worry has been that everyone, including ISPs, would become liable for patent infringement if they participated in the distribution of software.  Due to the [[uncertainty]] of patent infringement, and that [[Infringement is unavoidable|Infringement might even be unavoidable]], this would lead to ISPs and websites ceasing to distribute software.
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However, versions of the ACTA text since October 2010 have limited the distribution liability "''in the Digital Environment''" to copyright and trademarks, so the problem may not exist any more for patents.
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==Potential problems to look for when reviewing the text==
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===Broader liability===
  
 
ACTA creates liability for Internet service providers, for websites that provide support, and for distributors of anything that could violate a patent.  This means that patent holders can choose to target software developers directly (as is possible today) or, with ACTA, to target the other entities in the distribution chain.
 
ACTA creates liability for Internet service providers, for websites that provide support, and for distributors of anything that could violate a patent.  This means that patent holders can choose to target software developers directly (as is possible today) or, with ACTA, to target the other entities in the distribution chain.
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This doesn't increase the danger for the software developer, but it increases the chances that the patent holder will be able to block the software from achieving its goal: being used.
 
This doesn't increase the danger for the software developer, but it increases the chances that the patent holder will be able to block the software from achieving its goal: being used.
  
==Inducing self-censorship==
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===Inducing self-censorship===
  
 
By making the penalties severe, ISPs and other software distributors will consider policing their networks.  You could thus find that the ISPs would remove a project for patent infringement, even if the patent holder hadn't signalled a problem.
 
By making the penalties severe, ISPs and other software distributors will consider policing their networks.  You could thus find that the ISPs would remove a project for patent infringement, even if the patent holder hadn't signalled a problem.
  
==Cease-and-desist letters==
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===Cease-and-desist letters===
  
 
ACTA contains a lot of language about harsher punishment for ''"knowingly infringing"''.  This is an idea copied from the [[USA]], by which a patent holder has the power to change the potential punishment from normal to harsher by sending a notification "cease-and-desist" letter.  Thus, if "infringement" is ever proven, the act becomes "knowingly infringing".  Many ISPs in the USA obey these letters without any investigation because they don't want to leave themselves open to the harsher punishment.  With this, patent holders could remove software packages from circulation even without going to court.
 
ACTA contains a lot of language about harsher punishment for ''"knowingly infringing"''.  This is an idea copied from the [[USA]], by which a patent holder has the power to change the potential punishment from normal to harsher by sending a notification "cease-and-desist" letter.  Thus, if "infringement" is ever proven, the act becomes "knowingly infringing".  Many ISPs in the USA obey these letters without any investigation because they don't want to leave themselves open to the harsher punishment.  With this, patent holders could remove software packages from circulation even without going to court.
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==Related pages on {{SITENAME}}==
 
==Related pages on {{SITENAME}}==
  
The two big leaks so far are both of the January 18th, 2010 text:
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* [[Anti-Counterfeiting Trade Agreement overview]]
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* [[Criminalising patent infringement is draconian]]
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Leaks (no longer current):
 
* [[201001 acta.pdf as text]] - complete
 
* [[201001 acta.pdf as text]] - complete
 
* [[ACTA-6437-10.pdf as text]] - incomplete but includes the [[EU]] negotiator's comments
 
* [[ACTA-6437-10.pdf as text]] - incomplete but includes the [[EU]] negotiator's comments
* [[Criminalising patent infringement is draconian]]
 
  
 
==External links==
 
==External links==
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* [http://www.digitalmajority.org/forum/t-101919/acta-isp-liabilities-criminal-sanctions-for-file-sharing-and-cheap-guns-for-patent-trolls ACTA = ISP liabilities, Criminal sanctions for file sharing, and cheap guns for Patent Trolls], July 2010
 
* [http://www.digitalmajority.org/forum/t-101919/acta-isp-liabilities-criminal-sanctions-for-file-sharing-and-cheap-guns-for-patent-trolls ACTA = ISP liabilities, Criminal sanctions for file sharing, and cheap guns for Patent Trolls], July 2010
 
* [http://www.laquadrature.net/wiki/ACTA_20100713_version_consolidated_text July 1<sup>st</sup> leaked text]
 
* [http://www.laquadrature.net/wiki/ACTA_20100713_version_consolidated_text July 1<sup>st</sup> leaked text]
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==References==
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{{reflist}}
  
  
 
{{footer}}
 
{{footer}}
 
[[Category:ACTA]]
 
[[Category:ACTA]]

Latest revision as of 18:30, 16 November 2010

Can you help? This needs to be reviewed in light of the November 2010 publication of the proposed-final text


ACTA is an international treaty which could create new patent liability for software distributors (including ISPs and other intermediaries) and gives new powers for patent holders.

The versions of the text after October 2010 create much fewer problems regarding patents. Can you help? Are their any liability problems left in the text which might make an ISP afraid to distribute software due to fear of patents?


ACTA creates many other problems via copyright and DRM laws, but these are not within the scope of ESP Wiki.

ACTA does not make software patentable

Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not. The text states this explicitly:

ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS
1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law.
2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party.[1]

ACTA does modify patent law

Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law. While it is true that the treaty may not require changes to the text of a country's patent law, it does change issues of liability and enforcement which will greatly change how patent law applies to developers.

Main worry: liability leading to fear of distributing software

Note: This problem existed in previous texts. It has been greatly reduced in the November 2010 text. A detailed reading is still necessary to see if any of this problem remains.

The main worry has been that everyone, including ISPs, would become liable for patent infringement if they participated in the distribution of software. Due to the uncertainty of patent infringement, and that Infringement might even be unavoidable, this would lead to ISPs and websites ceasing to distribute software.

However, versions of the ACTA text since October 2010 have limited the distribution liability "in the Digital Environment" to copyright and trademarks, so the problem may not exist any more for patents.

Potential problems to look for when reviewing the text

Broader liability

ACTA creates liability for Internet service providers, for websites that provide support, and for distributors of anything that could violate a patent. This means that patent holders can choose to target software developers directly (as is possible today) or, with ACTA, to target the other entities in the distribution chain.

This doesn't increase the danger for the software developer, but it increases the chances that the patent holder will be able to block the software from achieving its goal: being used.

Inducing self-censorship

By making the penalties severe, ISPs and other software distributors will consider policing their networks. You could thus find that the ISPs would remove a project for patent infringement, even if the patent holder hadn't signalled a problem.

Cease-and-desist letters

ACTA contains a lot of language about harsher punishment for "knowingly infringing". This is an idea copied from the USA, by which a patent holder has the power to change the potential punishment from normal to harsher by sending a notification "cease-and-desist" letter. Thus, if "infringement" is ever proven, the act becomes "knowingly infringing". Many ISPs in the USA obey these letters without any investigation because they don't want to leave themselves open to the harsher punishment. With this, patent holders could remove software packages from circulation even without going to court.

Related pages on ESP Wiki

Leaks (no longer current):

External links

References

  1. Page 3 of the 15 Nov 2010 text