Google has submitted an interesting set of views to the US trade representative's call for comments on the Anti-counterfeiting trade alliance, ACTA.
"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."
Unsurprisingly they don't want to get caught in the mass IP sweep up. They go on to say that the ACTA negotiations should be transparent, that they contribute to the economy and it would be a mistake to upset that contribution. They also draw a line in the sand on temporary copies and drm (or tpm) warning the trade negotiators to stay away from them.