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Life In The Safe Harbor About To Change For ISPs
How the ACTA pushes ISPs toward kicking copyright infringers off the network...
by Karl Bode 03:28PM Monday Feb 22 2010 Tipped by Go Tarheels See Profile
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.

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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 and Verizon, but also Cox) are already voluntarily threatening users with account termination if they don't stop downloading pirated The Golden Girls episodes.

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.

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Sandy, UT

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reply to tmc8080

Re: blinding google

FYI the US Constitution gives Treaties the same weight as the Constitution itself. The treaty is a backdoor way to essentially amend the constitution without all the rigor of a constitutional amendment.

There has been a lot of speculation that the recent success in getting unpopular laws written using treaties that the fed would begin to use the power more liberally to enact even more unpopular law, as a treaty only requires a majority vote in congress and no state approval whereas a constitutional amendment requires 2/3rds of both.