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ACTA and software patents

Can you help? This needs to be reviewed in light of the November 2010 publication of the proposed-final text

ACTA is an international treaty which could create new patent liability for software distributors (including ISPs and other intermediaries) and gives new powers for patent holders.

The versions of the text after October 2010 create much fewer problems regarding patents. Can you help? Are their any liability problems left in the text which might make an ISP afraid to distribute software due to fear of patents?

ACTA creates many other problems via copyright and DRM laws, but these are not within the scope of ESP Wiki.

ACTA does not make software patentable

Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not. The text states this explicitly:

1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law.
2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party.[1]

ACTA does modify patent law

Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law. While it is true that the treaty may not require changes to the text of a country's patent law, it does change issues of liability and enforcement which will greatly change how patent law applies to developers.

Main worry: liability leading to fear of distributing software

Note: This problem existed in previous texts. It has been greatly reduced in the November 2010 text. A detailed reading is still necessary to see if any of this problem remains.

The main worry has been that everyone, including ISPs, would become liable for patent infringement if they participated in the distribution of software. Due to the uncertainty of patent infringement, and that Infringement might even be unavoidable, this would lead to ISPs and websites ceasing to distribute software.

However, versions of the ACTA text since October 2010 have limited the distribution liability "in the Digital Environment" to copyright and trademarks, so the problem may not exist any more for patents.

Potential problems to look for when reviewing the text

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

Leaks (no longer current):

External links


  1. Page 3 of the 15 Nov 2010 text