ACTA and software patents

(This needs to be reviewed in light of the official text being published)

The ACTA creates new liability for software distributors and new powers for patent holders.

Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law. The statement is true, but the explanations below show how ACTA will affect patent law - not "substantively" not in a real world way that affects the general public.

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

The two big leaks so far are both of the January 18th, 2010 text:

• 201001 acta.pdf as text - complete
• ACTA-6437-10.pdf as text - incomplete but includes the EU negotiator's comments