Monday, February 22, 2010

Internet copyright enforcement proposal chapter leaked

ACTA "internet copyright enforcement" chapter leaks
By 
Cory Doctorow at 11:35 AM February 21, 2010

Someone has uploaded a PDF to a Google Group that is claimed to be the proposal for Internet copyright enforcement that the USA has put forward for ACTA, the secret copyright treaty whose seventh round of negotiations just concluded in Guadalajara, Mexico. This reads like it probably is genuine treaty language, and if it is the real US proposal, it is the first time that this material has ever been visible to the public. According to my source, the US proposal is the current version of the treaty as of the conclusion of the Mexico round.

I've read it through a few times and it reads a lot like DMCA-plus. It contains, for example, a duty to technology firms to shut down infringement where they have "actual knowledge" that such is taking place. This argument was put forward in the Grokster case, and as Fred von Lohmann argued then, this is a potentially deadly burden to place on technology companies: in the offline world Xerox has "actual knowledge" that its technology is routinely used to infringe copyright at Kinko's outlets around the world -- should that create a duty to stop providing sales and service to Kinko's?

This also includes takedown procedures for trademark infringement, as well as the existing procedures against copyright infringement. Since trademark infringement is a lot harder for a service provider to adjudicate (and since things that might be trademark infringement take place every time you do something as innocuous as taking a photo of a street-scene that contains hundreds or thousands of trademarks), this sounds like a potential disaster to me.

This calls on all parties to ensure that "third party liability" (the idea that ISPs, web-hosts, application developers, mobile carriers, universities, apartment buildings, and other "third parties" to infringement are sometimes liable for their users' copyright infringements) is on the books in their countries. It doesn't spell out what that liability should be, beyond "knowingly and materially aiding" an infringement -- see the Kinko's point above for why this is potentially deadly.

And, of course, this contains the DMCA's injunction against breaking digital locks (that is, circumventing DRM), even though this provision has been in international treaties since 1996 and has done nothing to reduce infringement, has never shown itself to be effective in shoring up the power of these technologies to prevent copies, and has introduced enormous anti-competitive effects into the market.

Also buried in a footnote is a provision for forcing ISPs to terminate customers who've been accused -- but not convicted -- of copyright infringement (along with their families and anyone else who happens to share their net connection).

There's plenty more here -- and we don't know what the rest of the treaty reads like, or what the competing drafts said -- and I'm sure that more astute legal scholars than I will be along shortly with their commentary.

Update: Here's an IDG report on the leak, with more analysis.

Article 2.17: Enforcement procedures in the digital environment (PDF)

1 comment:

  1. World, get ready for the DMCA: ACTA's Internet chapter leaks
    By Nate Anderson

    The oddest thing about the Anti-Counterfeiting Trade Agreement (ACTA) secrecy is that, whenever we see leaked drafts of the text, there's nothing particularly "secret" about them. That was also the case with this weekend's leak of the "Internet enforcement" section of the ACTA draft; as we've noted in the past, ACTA appears to be a measure to extend the US Digital Millennium Copyright Act (DMCA) to the rest of the world, and that's exactly what the Internet section tries to do.

    ...

    If the bill sounds much like existing American law, it should; the US delegation drafted the Internet section of ACTA, and the entire document is being negotiated as an executive agreement, meaning that it can be adopted without Congressional consent but may not alter US law. Thus, unsurprisingly, the leaked document takes the DMCA worldwide.
    ISP immunity

    In the ACTA draft, ISPs are protected from copyright lawsuits so long as they have no direct responsibility for infringement. If infringement merely happens over their networks, the infringers are responsible but the ISPs are not. This provision mirrors existing US and European law.

    Two key points need to be made here, however. First, the entire ISP safe harbor is conditioned on the ISP "adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright." A footnote provides a single example of such a policy: "providing for termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." In other words, some variation of "three strikes."

    Note that this is already US law. The DMCA grants safe harbor to an ISP only if it has "a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers." Yet no major ISP in the US has adopted a France-like "three strikes" system en masse. One reason for this is the vagueness of the statue: what are "appropriate circumstances"? How many times must someone "repeat" before this provision applies? And can an ISP know for certain that someone is an "infringer" without a court ruling?

    The ACTA draft also makes clear that governments cannot mandate Internet filtering, even in the pursuit of these "repeat infringers."

    Secondly, the ISP immunity is conditioned on the existence of "takedown" process. In the US, this is the famous "DMCA takedown" dance that starts with a letter from a rightsholder. Once received, an ISP or Web storage site (think YouTube) must take down the content listed in order to maintain its immunity, but may repost it if the uploader responds with a "counter-notification" asserting that no infringement has taken place. After this, if the rightsholder wants to pursue the matter, it can take the uploader to court.
    Hello, DRM

    While the ACTA draft would adopt the best part of the DMCA (copyright "safe harbors"), it would also adopt the worst: making it illegal to bypass DRM locks, even when the intended use is a legal one.

    ACTA would ban "the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram." It also bans circumvention devices, even those with a "limited commercially significant purpose." Countries can set limits to the ban, but only insofar as they do not "impair the adequacy of legal protection of those measures." This is ambiguous, but allowing circumvention in cases where the final use is fair would appear to be outlawed.

    more at the link

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