IP Laws and the Games Industry: What Next?
With SOPA and PIPA temporarily shelved, Jas Purewal asks what threats do we face from ACTA?
The games industry has an uneasy history when it comes to intellectual property law reform and piracy. Despite the industry's rapid growth over the last few years, it has tended to stay out of the limelight compared to the film and music industries when it comes to debates about these difficult topics. As a result, previous waves of laws on or around this subject, from the US Digital Millennium Copyright Act in the early Noughties to the UK Digital Economy Act in 2010, were passed with relatively little (organised) input from the games industry.
However, IP reform and piracy have risen to near the top of the agenda for the games industry in the space of just a few months, following the rise and (partial) fall of three acronyms: SOPA, PIPA and now ACTA.
There was a torrent of discussion about these proposed laws at all levels of the industry: consumers, developers, publishers and the industry bodies. Clearly, it was in part influenced by the perception that these are draconian laws that would harm the industry's future prospects or very existence. But more than that, they arrive at a time when the industry is just beginning to become aware of its legislative muscle, while the other creative industries have been using theirs for years.
The problems with SOPA and PIPA
But was all the sound and fury about these laws justified? Let's look at the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) first - although it started out in a different part of the US legislature and has some differences, PIPA is essentially similar to SOPA so I'll bundle them together for our purposes.
The stated objective of these draft US laws is to tackle websites that are "dedicated to illegal or infringing activity," but that are outside the USA's legal reach (i.e. they're based outside the USA geographically). Basically, they would work by giving rights holders - a movie studio or games publisher, for example - and/or the US government the power to target the support network around a website: its ad network, payment provider or possibly even its domain provider.
The rights holder/US government would be able to force that network to withdraw its support from a site, initially by a legal letter but ultimately by court action if necessary (subject to some relatively weak defences for the website). Previously, they were even going to have the power to get court orders against DNS registries to effectively block the website from being visible on the web.
However, there were at least three legal problems with SOPA and PIPA. The first is that they would circumvent due process, by enabling the rights holder to put demands on the support network that would only be put before a judge if the website or support network put up a fight. Secondly, the actual wording of the legislation was far wider than its stated objective; in theory, SOPA could have been used to tackle any website that involved IP infringing content. Thirdly, there are already mechanisms to tackle content piracy (look at what has happened since with Megaupload) and no evidence was put forward that new powers were needed.
We could go on about the problems with SOPA - whether it restricts free speech, whether legal action is even a legitimate solution to piracy and so forth. Anyway, following a wide range of protests, in mid-January it was announced that SOPA would be put on ice until a "consensus" could be reached - and frozen it currently sits. Similarly, PIPA seems to be in temporary political limbo.
Were SOPA and PIPA really that bad? Yes, and maybe no. Yes, because, given their problems, they really needed to be stopped before they became law. But maybe no because, based on my reading of the draft legislation, I don't think they were quite as bad as some suggested. The drafters didn't seem to want some kind of Wild West scenario where they can take aim at any website they like - they were trying, at least initially, to focus upon sites which are built for content piracy.
But still, it was too dangerous as it stood. Maybe we'll see a second attempt with a more moderate SOPA or PIPA sometime in the future.
How about ACTA?
Let's move on to ACTA, the Anti-Counterfeiting Trade Agreement. Although it has existed since at least 2008, it only entered the limelight following the furore over SOPA and PIPA and, as a result, it has been much maligned and misunderstood. It is undeniably concerned in part with copyright infringement, and to that extent is related to SOPA and PIPA, but beyond that there is relatively little resemblance.
The first difference is that ACTA is a treaty between various sovereign countries and is subject to their existing laws. The second difference is that ACTA applies to much more than just online content piracy; it also applies to counterfeit goods and IP infringement generally. For example, the pharmaceutical industry has been just as, if not more, keen on ACTA than any of the creative industries.
The third difference is that ACTA is trying to do something different to SOPA and PIPA: it is trying to harmonise how the major Western countries approach counterfeit and pirated products, not to impose new standards on them. For example, this is what the UK's Intellectual Property Office says about ACTA:
"ACTA is a plurilateral treaty that seeks to improve the global enforcement of intellectual property rights through the creation of common enforcement standards and practices and more effective international cooperation... ACTA will not create new intellectual property rights, laws, or criminal offences in the UK and EU but will provide an international framework that strengthens international enforcement in areas of intellectual property."
And, by and large, that's what ACTA will do. It is careful to be respectful of the existing laws of signatory countries and tries to ensure that they all have certain minimum standards in place, which, in practice, most if not all the Western countries already comply with.
It also recognises the importance of the balance between protecting IP rights while not restricting freedom of expression or speech. For example, its section regarding IP protection online says "...procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party's law, preserves fundamental principles such as freedom of expression, fair process, and privacy."
Sounds fair enough to me.
Some commentators have pointed out that what this actually means is that the Western economies want to toe the same line on these issues in a bid to encourage emerging world economies, such as China and India, to do the same. Or put it another way: ACTA isn't about piracy in the USA or the EU; it's about piracy everywhere else. Make of that what you will, depending on your geopolitical outlook.
But that doesn't mean ACTA is squeaky clean. It does have some provisions that are potentially concerning, in particular its encouragement of minimum/statutory damages for copyright infringement, which are standard in the USA but foreign to the UK - it's how the USA gets to its impressive copyright damages awards. It also has a SOPA-lite strategy of permitting action against a support network to a website, although it must be done under judicial scrutiny under ACTA.
As any lawyer will tell you, half the struggle in a legal matter is getting the right words down, but the other half of the struggle is getting both sides to respect those words. ACTA looks like a relatively reasonable document at the moment, but it always comes down to what the signatories actually do rather than what they say.
What harms ACTA the most in that respect is how it was negotiated until recently. Critics have argued that ACTA started as a much more draconian set of proposals and that it was negotiated in extreme secrecy. In the EU, for example, successive requests for information by interested parties were rebuffed. A few recently high-profile kicks against ACTA haven't helped dispel this concern either, such as the surprise resignation of the European Parliament's rapporteur on ACTA, who described the process as a "masquerade".
So, while ACTA is clearly not even in the same ballpark as SOPA or PIPA, there are a few legitimate questions about it.
Where does ACTA stand legally?
It's a bit of a mixed bag. Member countries have to both sign and 'ratify' ACTA, meaning they have to pass a domestic law to implement it. But that ratification process is suffering some bumps along the way - above all in the EU.
For ACTA to become law in the EU, it would need to be approved by the EU itself (which has now happened) and ratified by every EU Member State. Normally, this triggers either reasonably swift national implementation for uncontroversial laws, or a period of navel-gazing for controversial laws while each Member State tries to find out if everyone else is going to ratify the law.
For ACTA, expect navel-gazing aplenty since Poland has already announced it needs to go through more "consultations." This may or may not have been influenced by the news of thousands protesting against ACTA in Polish streets. In the meantime, ACTA is in limbo in the EU, and probably elsewhere too.
So there we have it: three laws all in their own way dedicated to tackling IP infringement and piracy, all brought low to differing degrees. What can we take away from all this? First is that, like it or not, there will be further attempts to tackle IP infringement and piracy by legal means. That might come via a resurrected SOPA, another new law, or possibly using just existing laws. The UK's Digital Economy Act 2010, for example has already given the UK government the power to enact a SOPA-lite mechanism; it just hasn't activated it yet.
The key for the games industry is to make sure it understands early enough exactly what the proposals would actually do - rather than just trusting the hype - so that it can respond accordingly. We also need to be involved in the discussion about whether there is a factual requirement, and legal justification, for any change in the law.
On that front, opinions differ as to what harm piracy actually does to creative industries, and whether legal solutions can be an appropriate, cost-effective way of tackling it. Or whether, for example, piracy is just a service issue that will ebb away as we get better at delivering content to consumers.
The games industry has an important part to play in that debate - but it needs to make its voice heard.
Jas Purewal is a games lawyer and writer of Gamer/Law.
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