February 23, 2010
Some ACTA Text Leaks
The ACTA Treaty's enforcement provision has leaked to the web. ACTA is the Anti-Counterfeiting Trade Agreement negotiated in secret. The Obama administration continues to lock down the text for national security reasons, continuing that status from the Bush administration. Every time text was shown to an individual they were limited in their ability to speak by a strict non-disclosure agreement. There was speculation that the approach to handling digital copyright infringement would be something like the approach Congress took when crafting the DMCA. ISPs would get immunity via safe harbors for infringing materials on their network if they had no knowledge. Takedown notices and counter-takedown notices to the ISP would be the method to get directly to alleged infringers and handle the offending materials. Oh, and there's DRM for everybody in that it would be illegal to circumvent file limits. Devices that would do these things would be illegal. No ripping your CD to your player, World, if your disc is protected. And certainly no DVD copies to your portable digital video player.
According to the summary in Ars Technica (which has links to the actual document), ISPs would not have to filter for offending content, something like a three strikes policy is encouraged for signatories, and the notices/harbor policy would be required. This would affect the law of a lot of different countries more than it would the United States, which is probably why the agreement is still secret. As the article notes, for the United States, the agreement is negotiated as an Executive Agreement rather than a treaty. No need to get the Senate involved here. They might impose conditions that would muck up the whole thing. I think the same reaction awaits in foreign jurisdictions when the representative branch of governments discover a version of American law is going to be imposed on them.
The proposed law may not sit too well with some content providers. The Vivendi lawsuit against Google that Google never did enough to get unlicensed copyrighted material off of YouTube attacks the takedown process as too cumbersome. Vivendi wants to court to find that Google should have taken affirmative or proactive steps to enforce Vivendi's copyrights. Imagine a European judge operating under ACTA saying that the takedown notice provision is fine. The case in the United States may be dragging on but no one has blinked yet. THere was also the case in Germany where a court ordered Rapidshare (a very popular file sharing host based in Europe) to filter its links for copyrighted material. ACTA might have provided for a less severe result. For all of its secrecy, ACTA has a long way to go before it's imposed enacted. Now we need to see the rest of it. [MG]