ACTA Internet Chapter Leaks: Renogotiates WIPO, Sets 3 Strikes as Model

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Richard Forno <rforno () infowarrior org>
> Date: February 21, 2010 6:09:59 PM EST
> To: Undisclosed-recipients: <>;
> Cc: Dave Farber <dave () farber net>
> Subject: ACTA Internet Chapter Leaks: Renogotiates WIPO, Sets 3  
> Strikes as Model

> ACTA Internet Chapter Leaks: Renogotiates WIPO, Sets 3 Strikes as  
> Model
>
> Sunday February 21, 2010
>
> http://www.michaelgeist.ca/content/view/4808/125/
>
> Several months after a European Union memo discussing the ACTA  
> Internet chapter leaked, the actual chapter itself has now leaked.   
> First covered by PC World, the new leak fully confirms the earlier  
> reports and mirrors the language found in the EU memo.  This is the  
> chapter that required non-disclosure agreements last fall.
>
> The contents are not particulary surprising given the earlier leaks,  
> but there are three crucial elements: notice-and-takedown, anti- 
> circumvention rules, and ISP liability/three strikes.
>
> Notice-and-Takedown
>
> The notice-and-takedown provision, which is a pre-requisite for  
> intermediary safe harbour from liability, requires:
>
> 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. except that the provisions of (II)  
> shall not be applied to the extent that the online service provider  
> is acting solely as a conduit for transmissions through its system  
> or network.
>
> This would represent a change in Canadian law.  Both prior copyright  
> reform bills (C-60 and C-61) established notice-and-notice systems,  
> rather than notice-and-takedown.  There is currently an informal  
> agreement to use notice-and-notice, which has proven effective (the  
> Entertainment Software Association of Canada told the Liberal  
> copyright roundtable earlier this month that 71% of subscribers who  
> receive a notice do not repost the content within a week).  ACTA  
> would trump domestic law and the current Canadian business practice.
>
> Anti-Circumvention
>
> The anti-circumvention provisions are even more problematic as they  
> effectively represent a renegotiation of the WIPO Internet  
> treaties.  The proposed ACTA provision states:
>
> In implementing Article 11 of the WIPO Copyright Treaty and Article  
> 18 of the WIPO Performances and Phonograms Treaty regarding adequate  
> legal protection and effective legal remedies against the  
> circumvention of effective technological measures that are used by  
> authors, performers or producers of phonograms in connection with  
> the exercise of their rights and that restrict unauthorized acts in  
> respect of their works, performances, and phonograms, each Party  
> shall provide civil remedies, as well as criminal penalties in  
> appropriate cases of willful conduct that apply to:
>
> (a) the unauthorized circumvention of an effective technological  
> measure that controls access to a protected work,  performance, or  
> phonogram; and
>
> (b) the manufacture, importation, or circulation of a technology,  
> service, device, product, component, or part thereof, that is:  
> marketed or primarily designed or produced for the purpose of  
> circumventing an effective technological measure; or that has only a  
> limited commercially significant purpose or use other than  
> circumventing an effective technological measure.
>
> Article 11 of the WIPO Copyright Treaty (the anti-circumvention  
> provision) was intentionally left broad in scope to allow for  
> various implementations.  The treaty merely requires "adequate legal  
> protection and effective legal remedies against the circumvention of  
> effective technological measures."  It does not require access  
> controls nor prohibitions on the manufacture or distribution of  
> devices that can be used to circumvent.  Indeed, when the DMCA was  
> being discussed in the United States, Bruce Lehman, the Under- 
> Secretary of State, acknowledged that the treaties could be  
> implemented without a devices provision.  Moreover, he stated that  
> the DMCA would be used to pressure other countries into following  
> the U.S. example:
>
> When that legislation is in effect, then we will have a template  
> that we can use, that the Trade Representative can use, that we in  
> the Commerce Department can use, the State Department can use, when  
> we are in negotiations with other governments to advise them as to  
> what they need to do to implement their responsibilities in these  
> treaties to provide effective remedies.
>
> ACTA is therefore viewed as a mechanism to win the policy battle  
> lost in Geneva in 1996.  It would force countries like Canada to  
> adopt the U.S. approach, even though the treaty explicitly  
> envisioned other possibilities.
>
> Three Strikes/Graduated Response
>
> The draft chapter finally puts to rest the question of whether ACTA  
> in its current form would establish a three strikes and you're out  
> model. The USTR has recently emphatically stated that it does not  
> establish a mandatory three strikes system.  The draft reveals that  
> this is correct, but the crucial word is mandatory.  The draft U.S.  
> chapter does require intermediaries to play a more aggressive role  
> in policing their networks and the specific model cited is the three- 
> strikes approach.  In other words, the treaty may not specifically  
> require three-strikes, but it clearly encourages it as the model to  
> qualify as a safe harbour from liability.  The specific provision,  
> which is another pre-requisite for intermediary safe harbour from  
> liability, states:
>
> an online service provider adopting and reasonably implementing a  
> policy to address the unauthorized storage or transmission of  
> materials protected by copyright or related rights except that no  
> Party may condition the limitations in subparagraph (a) on the  
> online service provider's monitoring its services or affirmatively  
> seeking facts indicating that infringing activity is occurring;
>
> And what is an example of a policy provided in ACTA?  The treaty  
> states:
>
> An example of such a policy is providing for the termination in  
> appropriate circumstances of subscriptions and accounts in the  
> service provider's system or network of repeat infringers.
>
> This leaks shows how deceptive the USTR has been on this issue - on  
> the one hand seeking to assure the public that there is no three- 
> strikes and on the other specifically citing three strikes as its  
> proposed policy model.  Given the past U.S. history with anti- 
> circumvention - which started with general language and now  
> graduates to very specific requirements - there is little doubt that  
> the same dynamic is at play with respect to three strikes.
>
> From a process perspective, leaks coming out of the Mexico ACTA  
> talks revealed that the ISP provisions were discussed, but the anti- 
> circumvention provisions were not.  This suggests that the anti- 
> circumvention provisions from the U.S. are the only proposal  
> currently on the table.  According to a New Zealand official, there  
> may be alternate proposals for the three-strikes model, all of which  
> will presumably be discussed during the next round of negotiations  
> in April in New Zealand.



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