Too Soon to Worry about the Anti-Counterfeiting Trade Agreement (ACTA)?
Digital media law update: The U.S. has been in talks with the E.U., Japan, Canada and a number of other mostly developed nations since 2006 to develop the Anti-Counterfeiting Trade Agreement (ACTA). Several further rounds of ACTA negotiations have been scheduled, including meetings in Mexico this month and in Wellington, New Zealand in April 2010. Assuming an agreement is reached, ACTA, like any other international treaty, will have to be ratified to become U.S. law.
ACTA is supposed to provide international rules for enforcing a broad spectrum of intellectual property rights, including addressing Internet piracy. ACTA is not intended to affect the fundamental rights of the citizens of its signatories. However, virtually any law affecting the Internet has the potential to affect individual rights, such as freedom of expression and freedom of association.
ACTA negotiations have raised considerable concern among Internet access rights groups because the negotiations have been conducted in secret. A long list of industry "insiders" have been permitted to review drafts of ACTA documents -- including attorneys associated with Public Knowledge, a consumer rights advocacy group. However, they have been required to sign non-disclosure agreements that prohibit them from sharing what they have learned with the general public.
Despite the secrecy, a number of ACTA-related documents have been leaked to the public. A summary of the ACTA chapter dealing with the Internet was leaked in September 2009, and a set of comments by the E.U. regarding ACTA language proposed by the U.S. was leaked in October 2009. These documents suggest that ACTA is largely being modeled on the Digital Millennium Copyright Act and may not create the great threat to Internet access rights that some claim.
Among other provisions, current ACTA proposals would:
• Require member states to provide for third-party liability for ISPs: Third party liability appears to refer to liability for contributory infringement and for inducing infringement. These legal principles are already enshrined in current U.S. law, including the DMCA. The E.U. objected to this language -- but on the grounds that it went too far, because some E.U. member states do not permit civil liability for contributory copyright infringement. Rather, the E.U. indicated that it would prefer that the exact circumstances triggering liability be undefined, and that ACTA only provide for exemptions from civil liability.
• Provide safe harbors to ISPs from liability for third party infringement: These proposed safe harbors appear to be based on current DMCA safe harbors and include safe harbors for ISPs which provide temporary caching of third party data or are "mere conduits" of third party data and lack actual knowledge of infringing content included in that data.
• To qualify for safe harbors, require ISPs to put policies in place to deter unauthorized storage and transmission of infringing content: One element includes requiring ISPs to place clauses in consumer contracts allowing a graduated response to infringing activities -- similar to the "three strikes" legislation adopted by France in HADOPI 2. Current DMCA language requires ISPs to implement "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." 17 U.S.C. § 512i(1)(a). While the proposed change would specify the contents of an ISPs repeat infringer policy, the basic principle that a repeat infringer's account must be terminated would not constitute a change in current U.S. law.
• To qualify for safe harbors, require ISPs to institute a "notice and takedown" system: Most of the current DMCA safe harbors already require ISPs to maintain a notice and takedown system. See 17 U.S.C. § 512 (b), (c), (d), (e), (f). The E.U. comments query whether this might "mandate filtering by the ISP in [its] network." This comment is a bit cryptic. On one hand, the reference to "filtering" could mean that the ACTA language in question would require ISPs to engage in such things as deep packet inspection to locate infringing materials. On the other hand, the word "filtering" could merely mean that ISPs would be required to filter out infringing materials that have been specifically identified by a copyright holder. The latter is what is required under the DMCA. See 17 U.S.C. 512(c)(3). According to recent reports, U.S. trade negotiators are not pushing for language that would require ISPs to act as "Internet cops."
All of this suggests that the current alarm over ACTA may largely be a product of the secrecy surrounding the ACTA negotiation process. No question, ACTA bears watching. But given that so much of the content of ACTA appears to be based on the DMCA and that E.U. counter-proposals seem to put less pressure on ISPs to control infringing content, concerns that ACTA will put too much power into the hands of ISPs to control Internet traffic may well be premature.
