[A2k] Google Comments regarding ACTA in response to USTR Public Notice Spetember 5, 2008 (73 FR 51860)

[Manon Ress]

Comments Submitted by Google Inc.
Regarding the Anti-Counterfeiting Trade Agreement
In Response to USTR Public Notice of September 5, 2008 (73 FR 51860)
September 17, 2008

Google Inc. appreciates the opportunity to comment on the pending
negotiations for the proposed Anti-Counterfeiting Trade Agreement
(ACTA). We have three areas of concern: (1) the scope of the issues
proposed to be covered in the agreement and the competency of an
Executive agreement to address such issues; (2) the alacrity with
which the agreement is being negotiated and the need for transparency
and openness to ensure a balanced agreement reflective of the balance
in U.S. law; (3) specific substantive provisions affecting
intermediaries, such as Internet Service Providers (ISPs) and other
innovative companies. We address these below.

I. The Scope of ACTA

The ACTA should not address issues beyond border and customs
enforcement issues. Internet companies and other intermediaries, like
Google, telecom companies and ISPs more generally, do not engage in
counterfeiting and piracy; they are legitimate businesses critical to
the U.S. economy. To impose potential liability and obligations on
them, or to dictate terms of substantive intellectual property law
that affect Internet intermediaries, is shooting at the wrong target,
potentially contrary to U.S. law, and in any event not appropriate
subject matter for an Executive agreement not submitted to the Congress.

U.S. law regarding ISP/intermediary obligations and liability is
sensitive and carefully balanced; there are ongoing legislative
debates and litigation in domestic courts that seek to balance the
interests of right holders according to the Congressional policy of
encouraging innovation. Indeed, a decision this summer from the Second
Circuit (the Cablevision case) calls into doubt what prior U.S. FTAs
had assumed was U.S. law on temporary copies. A trade agreement should
not affect or freeze these developments (especially one that will not
even be submitted to the Congress). For this reason, provisions on
obligations and liability of Internet intermediaries, such as ISP safe
harbors, technological protection measures, and statutory damages,
have no place in ACTA.

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II. Process and Transparency

If, despite the concerns of a number of intermediaries, ACTA is to
cover issues beyond border and customs enforcement issues, we believe
it will be challenging to secure a balanced agreement based on full
consultation with all stakeholders in the ambitious time frame
signaled by the Administration (the end of the year). Given the
complexity of the issues and range of U.S. economic interests at
stake, such an agreement should not be negotiated on a rushed,
artificial schedule.

Whatever the schedule, it is critical that U.S. negotiators pursue
this agreement in a transparent, consultative manner. The issues under
consideration are actively disputed and are of tremendous economic
importance to Internet intermediaries like Google. We appreciate USTR=92
and Commerce=92s invitation for comments and the September 22 public
meeting as a good first step. Given the critical economic interests at
stake and the careful balance reflected in U.S. law, the key affected
industries need an opportunity to review and comment on the specific
proposals before they are offered and with sufficient time to comment
constructively and intelligently. Consultation should be meaningful
and genuine.

We in particular want to emphasize the importance that this agreement
not tilt the balance of interests, even inadvertently, among key U.S.
economic stakeholders. Google Inc. and other Internet companies
contribute significantly to the U.S. economy and represent one of the
United States=92 strongest areas of growth. Google alone has
approximately 20,000 employees in the United States and throughout the
world. Google is the world's leading  search engine; YouTube is the
world's leading video hosting service. In addition, Google is a
leading provider of email and many other Internet services. Much of
Google=92s success is founded upon its partnerships with small
businesses, as Google last year provided $4.5 billion to its online
advertising partners. There are of course many other Internet
companies and other companies that provide products and services
related to the Internet. A 2007 study showed that these products and
services accounted for $4.5 trillion
in revenues and $2.2 billion in value added for the United States in
2006. They are directly responsible for more than 18% of US economic
growth, significant U.S. exports, and nearly 11 million American jobs.1

Indeed, the United States economy has led investment in the growing
Internet space and U.S. Internet companies are leaders in Internet e-
commerce in part because of the balance of U.S. law =96 a position that
should not be put in jeopardy through an overbroad trade agreement.

The interests of Internet and other intermediary companies therefore
need to be carefully factored in as the U.S. government formulates its
negotiating positions for ACTA. Internet intermediary companies should
have a seat at the table and receive the same consideration in
negotiating positions that right holders do.

footnote
1 Computer & Communications Industry Association, Fair Use in the U.S.
Economy.

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III. Core Issues Affecting Internet Companies

As noted above and already expressed to USTR, Google believes strongly
that Internet issues should not be addressed in ACTA. But recognizing
that U.S. officials are seeking to develop negotiating positions on
Internet issues, we outline below some particular bright lines that
should not be crossed. Whether other provisions may negatively affect
Internet companies can only be determined if Internet companies are
closely consulted about proposed ACTA text/positions. Moreover, given
the distinct U.S. legal frameworks between copyright and trademark,
for example, one must be careful not to over-generalize an
intellectual property agreement seeking to address counterfeiting and
piracy (and be sensitive to how such terms are defined).

Temporary Copies

ACTA should not address substantive issues of copyright law, including
the issue of temporary copies. U.S. law regarding temporary copies is
unsettled, and how it is resolved will have significant implications
for Internet companies, Internet users, and other intermediaries.
Indeed, in August 2008, a key U.S. court rejected a view of U.S. law
on temporary copies that had been previously considered by some to be
prevailing.2 The United States should not agree in ACTA, or in any
other trade agreement, to provisions dictating legal protection of
temporary copies.3

If, on the other hand, substantive provisions of copyright law are
ultimately included in ACTA despite the objection of a number of
intermediaries, the agreement should make clear that indexing,
buffering, caching and similar activity that is incident to the
ordinary operations of the Internet do not amount to infringing
activity.

Technological Protection Measures (TPM)

TPMs that control access to works do not relate to enforcement of
copyright and should not be included in ACTA. Instead, such TPMs are
often used towards anti-competitive ends and do little to deter
counterfeiting (in the correct use of that term).4 If trade


footnotes:
2 See Cartoon Network LP, LLLP v. CSC Holdings, Inc., --- F.3d ----,
2008 WL 2952614, (2d Cir.
August 4, 2008).
3 While some U.S. trade agreements have addressed the issue of
temporary copies (mirroring the
prior "prevailing" view that the Second Circuit recently rejected),
that was a mistake that should not be repeated. See, e.g., U.S.-Korea
FTA =A7 18.4.1; U.S.-Australia FTA =A7 17.4.1. At the time the U.S.-
Australia FTA was negotiated, there was one line of cases from the
Ninth Circuit that involved a specific set of facts: a computer
program that was fixed and that was being serviced by a third party in
alleged violation of a maintenance contract. Those facts have nothing
to do with buffering and caching on the Internet. The Ninth Circuit
line of cases has been criticized by scholars and questioned by the
Copyright Office =96 and now rejected by the Second Circuit =96 as
applying to buffering and caching.
4 The Digital Millennium Copyright Act (DMCA) prevents a wide range of
legitimate activity that has nothing to with counterfeiting (e.g.,
TPMs are the reason that you cannot: load a lawfully purchased DVD on
to your iPod; play a legitimate DVD bought in the U.K. at full-price
on your DVD at home in the U.S.; transfer songs lawfully purchased on
iTunes to a different music service; operate a device like a DVD
player on Linux, an open source program, even though there is no
question of copying a single work of authorship). Indeed, the DMCA was
used by original equipment manufacturers of printer toner cartridges
and electric garage door openers to shut out cheaper substitutes.

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agreements are generally intended to remove barriers to trade, TPMs
are just such a barrier that ought to be scrutinized carefully.

To the extent that ACTA nevertheless includes provisions on TPMs, only
those measures required by the 1996 WIPO Treaty =96 and not TPMs for
access =96 should be included.5

Safe Harbors

In addition to fair use and implied license, safe harbor regimes are
critical to the ability of Internet companies like Google to function
and for the United States to continue its global leadership in the
Internet economy. However, there are wide divergences in approaches
that evolve as the Internet evolves. In light of the diversity of
approaches, no provisions involving safe harbors should be included.
They are, at any rate, well beyond he scope of an anti-counterfeiting
enforcement initiative.

If the Administration persists in pursuing provisions on safe harbors,
at a minimum those provisions must cover passive carriers, e.g.,
Internet services that act as conduits; the ordinary operations of
search engines such as hyperlinking and other information location
tools such as indexing and caching; copying incidental to search
results that is fair use or otherwise lawful hosting sites; and blogs.
At the same time, the agreement should not address in any way
controversial issues such as the nature of the knowledge and financial
benefit that might disqualify one from safe harbors.

Filtering Mandates

Google appreciates USTR's assurances that filtering will not be
addressed in ACTA, whether cast as "voluntary" or explicitly as
mandatory. Filtering is a truly nascent area globally, fraught with
legal, technological, and commercial controversy and uncertainty, and
should not be imposed or encouraged in any Executive agreement.

Statutory Damages

Countries around the world vary in their approaches toward statutory
damages. In the United States, the House Judiciary Committee has
stated that it intends to undertake a much-needed review next year of
the entire U.S. legal regime regarding statutory damages in
intellectual property cases. Under these circumstances, the Executive
should not seek to or agree to include provisions on statutory damages
in ACTA.

If nevertheless a provision were to be included, it must do no more
than state that parties may provide a statutory damage regime without
any details on that regime.

footnote
5 The WIPO Copyright Treaty provides: "Contracting Parties shall
provide adequate legal protection and effective legal remedies against
the circumvention of effective technological measures that are used by
authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of
their works, which are not authorized by the authors concerned or
permitted by law." (Art. 11)