Taiwan Sorta, But Not Really, Approves Three Strikes Law

from the not-quite dept

Billboard is noting that Taiwan has passed a “three strikes” law for ISPs to kick file sharers off the net — except it’s not clear that’s really true. While that’s what the headline says, the details sound a bit different. Taiwan did approve an amendment to copyright law, oddly “based on the 2005 U.S. Supreme Court decision against Grokster.” Again, from the details provided, it sounds like it’s based a lot more on the DMCA than the Grokster decision — and nowhere is it explained why Taiwan would update its copyright law based on a US court case… The law sets up a notice-and-takedown provision (again, this is like the DMCA, not the Grokster case, which was about secondary liability), requiring ISPs to pass warnings on to users. Users are then able to file counter-notices.

What’s not entirely clear, however, is how an ISP is supposed to “take down” content that is hosted on a user’s own computer, or even how/why it should be responsible for what’s on a user’s computer. Instead, it seems more like the law just requires ISPs to pass on notices from copyright holders, and then has a three strikes provision where ISPs can restrict internet access. That doesn’t sound mandatory, and it’s not clear what the definition of “restrict” includes. It still doesn’t make sense why ISPs would want to restrict their customers, but as long as the law isn’t mandatory, then it hardly seems like a problem. ISPs have always had the ability to cut off users if they wanted to, so this hardly seems like a change.

The other interesting element of the new amendment is that:

ISPs are not automatically permitted to disclose the identity of individual copyright abusers. Only if an individual user submits a counter-request to restore content previously removed can their personal information be furnished to the rights holder.

At first, that may seem like a good thing. ISPs don’t have to hand over private info on a mere accusation. It would be great if plenty of other countries followed that. But, what’s troubling is the second part, whereby if a user files a counter-notice, their info can be given to the rights holder. That puts a massive liability on anyone if they wish to file a counter-notice, and will almost certainly create a massive chilling effect scaring most people in Taiwan from ever submitting a counter-notice, for fear of having their private info handed out. That means that copyright holders can have pretty free reign in demanding takedowns, knowing that most people won’t bother filing counter-notices in order to protect their identity.

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