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Tech companies fear effects of trade pact

Skeptics warn it could chill online expression

By Joelle Tessler
Associated Press / April 21, 2010

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WASHINGTON — Companies across the technology industry — from Internet access providers to social networking sites to video-sharing services — are bracing for this week’s release of a draft of a trade agreement that they fear could undermine all sorts of online activities.

The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations, and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.

“If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,’’ said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. “They will have to exercise really tight control.’’

The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement in fall 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.

Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft — such as China and Indonesia — are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland, and Australia.

The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won’t be released until today — even though last week’s talks in New Zealand marked the eighth round of negotiations.

The next round will take place in Switzerland in June.

Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. Its negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.

“Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,’’ Geist said.

Many technology companies fear that the Anti-Counterfeiting Trade Agreement could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act.