ACTA's Internet Chapter Leaks; And, Now We See How Sneaky The Negotiators Have Been

from the sneak-that-right-in-there... dept

Reports spread this weekend that the ACTA's all-important internet enforcement chapter had leaked. You can download the PDF from that link, or check it out below:
From here, you can see why this is still quite a dangerous document -- and why there's been so much misinformation from its supporters, insisting that it "can't change US law," or even (as stated by the USTR) that it won't include three strikes. It doesn't. Sort of. But it does make it very very difficult for any online service provider to get safe harbors without doing something along those lines. Let's explore deeper...

Sections 2 and 3 are the key ones to be concerned about here. First, they talk up the importance of making sure that third party liability is in the law. Now, technically, they are right that this wouldn't change US law -- as current case law does have a third party liability standard. But the actual text of the legislation does not. Now it is entirely possible that Congress could decide the courts were mistaken in their decision to blame third party service providers for actions of their users, and clarify the law to get rid of third party liability. After all, Congress did look at a bill to add third party liability to copyright law a few years back (the so-called INDUCE Act) and did not pass it. Thus, it could come to pass that Congress feels an inducement standard does not make sense, and goes ahead and corrects the courts for interpreting current copyright law to include such a standard.

But if ACTA passes, that won't be possible. The first thing you'll see is that the same copyright defenders who are saying ACTA is no big deal and we're worrying about nothing, will immediately start screaming at the top of their lungs about our "international obligations" such as ACTA, which prevent us from removing third party liability from our copyright law.

This is a big deal, because third party liability is a mess, and a perversion of justice. It's a way to blame a third party for actions they did not commit, just because it's easier. From a pure position of properly placing liability on the party who did the "wrong," third party liability is a perversion.

However, ACTA then gets worse. In section 3, it tries to set up the "safe harbors" by which a service provider might avoid liability. In the US, we already have this, with the DMCA's notice-and-takedown provision, which is widely abused. Yet, to qualify for the safe harbors in ACTA, the bar is set much higher. This is hidden pretty deep, and you might miss it (this is done on purpose) if you're not reading carefully. It's in section 3(b)I and in footnote 6. Basically, it says that for a service provider to get safe harbors, it must implement a policy to deal with infringing works -- and in footnote 6, it gives the concept of "termination" of service in the case of repeat infringers as an example of the type of measure. That, of course, is three strikes rules.

So, no, three strikes laws aren't "mandatory," but the only example given of a proper policy that would qualify a service provider for safe harbors, is three strikes. Guess what everyone's going to implement?

And, of course, if some country is so bold as to not implement such a thing, and to point out that ACTA says they do not need to implement three strikes, you can bet that the very same ACTA defenders will complain, and point to ACTA as a reason why they must do so. You can see this already in the way those same ACTA defenders treat Canada, in claiming that its current treaty agreements obligate it to put in place DMCA-like notice-and-takedown provisions, along with anti-circumvention rules -- despite the fact that the agreements say no such thing directly.

Speaking of notice-and-takedown and anti-cirumvention, both make their appearance in the ACTA document. The following subsection, again, highlighting what a service provider must do to get safe harbors, discusses takedowns:
an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification.
Michael Geist points out that this is a notice and takedown provision, though you could argue that it could be read as just notice-and-notice -- where the person uploading content has the right to respond before the takedown occurs. Still, the document is telling: note that the takedown is to occur on alleged infringement rather than on actual evidence or conviction of infringement. This should be seen as problematic as well. Given how often the notice-and-takedown system is abused, and given any judicial system that believes in innocence until guilt is proven, you would think that it should not be allowed to require a takedown without conviction.

Section 4 then discusses anti-circumvention and would lock in many of the mistakes of the DMCA that are causing serious problems today and need to be fixed -- not forced to stay due to "international obligations." The issue here is that it again will place the blame on the tools provider, since it includes just the manufacturing of tools for circumventing DRM or other technical protection measures. It's a bad law that blames those who make the tools, rather than those who use them. Furthermore, it makes no exceptions for the lawful use of the tools. You can use circumvention tools to make a perfectly legal backup of content that you bought. But, under the DMCA, the act of making that perfectly legal backup copy is illegal due to the circumvention. That's a huge problem that not only would be further locked into US law and blocked from change, but would then be forced on other countries who have (smartly) recognized how problematic this is.

In the end, the leaked document appears to show exactly what people feared it would (and, again explains why the USTR and the lobbyists, who helped draft the document, wanted to keep it so secretive). It takes a very fluid and evolving situation in copyright law and tries to lock it in place, despite tons of evidence of the harm done by certain aspects of that law, and to then spread those same mistakes to other countries. Furthermore, it ratchets up what is required to qualify for "safe harbors" to make it such that, while three strikes may not be required, no other option is presented. It's a multiple choice question with "A" as the only answer. And the USTR and entertainment industry lobbyists want to tell us that makes it not mandatory.

Filed Under: acta, anti-circumvention, copyright, dmca, enforcement, notice and takedown, secondary liability, third party liability, three strikes

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  1. icon
    Hephaestus (profile), 23 Feb 2010 @ 7:57am

    Re: Re: This just gets better and better .....

    "Sounds pretty sad to me. "I may be going to hell in a bucket but I'm going to enjoy the ride.""

    You dont seem to understand, its not the fact that people are going to be hurt I find amusing. Its the fact that these Media executives dont seem to look at what they have already done and see if it actually has worked. Here is what we have learned so far from the actions of the media distribution industry ...

    1) After laws are passed to counter copyright infringement, a temporary drop in infringing downloading occurs. The network utililaztion drops substantially. (see Sweden, South Korea)
    2) After 3-6 months people begin using encryption, VPN, set up encrypted shared distributed file systems. (again Sweden, South Korea)
    3) A short while after the network utilization of the country in question increases above what it was before. People actually download more because they now feel secure. (again Sweden, South Korea)

    Here are some of the possible unintended consequences ...

    - More bad publicity for the media companies causing a drop in sales.
    - More alternative competition popping up
    - More Encryption being used to hide what people are doing P2P wise
    - An acceleration of the failure of these companies due to the fact they now believe they have the tools needed to "stop piracy"
    - More harsher laws and punishments (Criminalization of infringement) when they realize that they need a bigger stick to threaten people with.
    - A major public out cry as three strikes gets implemented
    - A major public out cry as people realize that due process is being circuvented.
    - A major public out cry as people are arrested for infringement.
    - A major public out cry as people complain about private communications being monitored with out a warrant. This one has all sorts of secondary consequences.
    - a rework of patent and copyright law moving way to the minimalist side.
    - The failure of the news papers after someone puts together a "Paper boy" app that collects the information you are interested from alternate news sources, blogs, etc and feeds it to you. All customized and based on your interests.
    - The failure of the record labels as people shun them for their actions, find alternatives, as they dont even try to follow basic economic theory. A simple app to recommend CC and alternative music based on what you like in the main stream music area could accelerate this.
    - Failure of streaming music services as a revenue stream as people go alt and CC to aviod paying the streaming fees.
    - The failure of the TV studios as new technology begins to show up allowing anyone to do professional videos, new business models begin cropping up, and they also fail to follow basic economics.
    - etc.
    - etc.
    - etc.

    I could go on for hours about what could happen. I will leave you with this ... This attempt to stop the tide will fail miserably. The psychology of the media executives will cause it to happen. They are seeking a magical fix for their problems, jumping from one vaporous hope of salvation to another. This time its ACTA and the iPad. They ignore any nay sayers, surround themselves with people that tell them "Everything will be fine", and believe their own hype reports and numbers.

    It doesnt bode well for them ...

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