How the ACTA pushes ISPs toward kicking copyright infringers off the network...
We've already discussed at length how a massive new international Anti-Counterfeiting Trade Agreement (ACTA) is being crafted in total secrecy, with no input from independent parties or the consumers it will impact. That's been particularly troubling for broadband users and ISPs, given leaked information
on the plan suggests the agreement may include mandatory three strikes requirements (repeated copyright infringement means account termination) for carriers, erode ISP safe harbor protections, and extend many of the more troubling and myopic aspects of US DMCA copyright law internationally.
Over the weekend, bits of the ACTA finally leaked out
(Google storage link to pdf), and while the legal wording of the agreement does not
include mandatory three strikes provisions, it does dramatically change the safe harbor protections enjoyed by ISPs, and seriously pushes ISPs in the three strikes direction. Mike Masnick over at Techdirt
does a good job hacking through the lawyer linguistics:
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. . . 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.
In other words, the wording of the agreement doesn't explicitly mandate three strikes rules -- it simply uses graduated response as the only real example for ISPs to embrace if they want to be protected from legal liability. That's (not coincidentally) handy, given we're seeing how the biggest ISPs (most recently Qwest
, but also Cox
) are already voluntarily threatening users with account termination if they don't stop downloading pirated The Golden Girls
So while crafting the ACTA with the full cooperation of the world's governments, the entertainment industry has quietly been working with ISPs ahead of the changes to ensure they're playing along. All the biggest ISPs are happily obliging, because they have one foot in the entertainment business (Comcast, AT&T, Verizon). All of this of course is ongoing without any real discussion in the public sphere about independent oversight of such a process, whether the evidence used is reliable, how small ISPs are supposed to afford the added support burden, or whether account termination suits the crime.