tag:blogger.com,1999:blog-5574479.post7509293831123015906..comments2024-03-29T06:00:27.896+00:00Comments on The IPKat: Time to party, as ACTA hits townVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-1044439048777355452010-04-21T23:13:59.864+01:002010-04-21T23:13:59.864+01:00Annsley - I see your problem. I don't think &q...Annsley - I see your problem. I don't think "the same conditions" can meant that, because of the tense of what follows. "whose services are being used by a third party" is in the present tense and implies present infringement (that would explain also the use of the present participle "infringing" though that is only an option). Perhaps "the same conditions" means the same conditions as whatever conditions are imposed for anticipatory injunctions.<br /><br />It is perhaps a shame we don't have a future participle in English.<br /><br />Mind you the first limb (anticipatory injunctions) does not define who the subject of such an injunction might be and in many cases an ISP may also be an infringer (albeit usually not liable for damages).<br /><br />Who can say? The draft is so "pick-and-mix" at the moment, any serious analysis is very difficult.Francis Daveyhttps://www.blogger.com/profile/10228026893626221724noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-85421147893203427132010-04-21T20:29:29.942+01:002010-04-21T20:29:29.942+01:00Ha, ha, ha, ha, ha. You can't fool me. There ...Ha, ha, ha, ha, ha. You can't fool me. There ain't no Anti-Counterfeiting Trade Agreement.Fiorellonoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-20577758996985519232010-04-21T18:25:51.639+01:002010-04-21T18:25:51.639+01:00I find the concept of an infringing intermediary [...I find the concept of an infringing intermediary [with or without square brackets] intriguing. Article 11 of the Enforcement Directive does not require an intermediary to be infringing. It says: <i>Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right</i>.<br /><br />Surely an infringing intermediary is just a joint tortfeasor?Niel Ackermannhttps://www.blogger.com/profile/13561154281077944034noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-86685798079024543752010-04-21T14:41:50.925+01:002010-04-21T14:41:50.925+01:00I am concerned about Article 2.5 regarding Provisi...I am concerned about Article 2.5 regarding Provisional Measures that states that:<br /><br />* each Party shall provide that its judicial authorities shall have the authority at the request of an applicant to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right. <br /><br />* An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right.<br /><br />The first part is nothing new, but the second part needs further consideration. It says that "under the same conditions", so I assume that implies those conditions are "to prevent any imminent infringement", i.e. the infringement has not happened but assumingly its threatened. Therefore, this means that the Parties must ensure there is judicial authority for granting an interim injunction against an ISP to stop an event caused by a third party from occurring - an event, which in most cases, the time, place etc may not be known. This would essentially require the ISP to police the entirety of their service in a stakeout to ensure this infringing event does not occur to ensure it complies with the terms of the injunction. It is not as simple as arguing "well, if the ISP has a IP address then they can easily police activity from this address and prevent an infringing activity." The main subject of the injunction will be in reference to an individual (one would think) and not an IP address and everyone knows individuals can conduct infringing activities over a variety of IP addresses! <br /><br />In addition the use of "[infringing]" is confusing. An ISP cannot be said to be infringing prior to the actual "imminent infringement" actually taken place, surely?<br /><br />Or does the phrase "under the same conditions" mean something other than in relation to the foregoing sentence? <br /><br />And what does "imminent mean"? One would assume that it is greater than showing a mere "threat" but how does one even show "imminent"?<br /><br />Questions galore!Annsley Merelle Wardhttps://www.blogger.com/profile/09184706067469338128noreply@blogger.com