The blogosphere is abuzz over an apparently leaked document showing the United States trying to push its controversial DMCA-style notice-and-takedown process on the world. But since Threat Level already lives in the land of the DMCA, we’re more bothered by the fact that the U.S. proposal goes far beyond that 1998 law, and would require Congress to alter the DMCA in a manner even more hostile to consumers.
At issue is the internet section of the Anti-Counterfeiting Trade Agreement being developed under a cloak of secrecy by dozens of countries. The leaked document is a three-page European Commission memo written by an unnamed EU official, which purports to summarizes a private briefing given in September by U.S. trade officials.
The language in the Sept. 30 memo shows the United States wants ISPs around the world to punish suspected, repeat downloaders with a system of “graduated response” — code for a three-strikes policy that results in the customer eventually being disconnected from the internet with the ISP alone deciding what constitutes infringement and fair use.
While the proposal specifically says that three strikes wouldn’t be mandated, it might as well be. That’s because companies that refused to implement the policy would be ejected from the “safe harbor” that otherwise protects them from copyright infringement lawsuits over the actions of their customers.
Currently, the DMCA grants immunity or a “safe harbor” to internet companies that promptly remove allegedly infringing content at the request of the copyright holder. Only if they fail to do so can they be held liable in court, and face up to $150,000 in damages per infringement.
Under the U.S. proposal described in the memo, removing infringing content would no longer be enough to qualify for safe harbor. Companies would have to actively work to combat the flow of unauthorized copyrighted material through their pipes, and specifically implement the “graduated response” program.
Here is the key paragraph:
“On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorized storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead, they require some self-regulation by ISPs.”
Threat Level obtained the document on condition it not be posted, and we haven’t independently verified its authenticity, or that it accurately reflects the positions of the U.S. trade representatives. The document indicates the U.S. refused to turn over anything in writing itself, and briefed EU representatives on the plan orally in the hope of avoiding leaks.
The Obama administration has been obsessively secretive about the draft ACTA treaty — even, at one point, claiming national security could be jeopardized if the proposed treaty’s working documents were disclosed to the public. Now, it seems, we know what the administration is hiding.
Obama hasn’t asked Congress to implement a three-strike policy, which could anger consumers and watchdog groups. But if the administration gets three strikes written into ACTA, and the United States signs and ratifies the treaty, Congress would be obliged to change the DMCA to comply with it, while the administration throws its hands in the air and says, “It wasn’t our idea! It’s that damn treaty!”
That practice is common enough to have a name: policy laundering.
Language in the leaked text throws open the door to ISP filtering for unauthorized content, though there’s no way for filters to know whether the material constitutes fair use. That plan is similar to a proposal by the Motion Picture Association of America, which wants ISPs to filter for unauthorized motion pictures.
The three-strike language would be gold to companies like MediaSentry, which browse peer-to-peer networks for infringing content, and identify a user’s IP address and ISP. MediaSentry’s work was crucial in the RIAA’s 6-year-long litigation campaign that amounted to about 30,000 copyright lawsuits against individual file sharers using Kazaa, Limewire and other services.
Until today, the most alarming thing in the proposed ACTA treaty has been the secrecy surrounding it. But now the threat level is higher. It seems the executive branch would rather negotiate with other nations, instead of its own elected officials, about the future of a free and open internet.
ACTA -- A Patriot Act For the Internet (Novembr 04, 2009 - HuffPo - James Love)
This week 40 or so countries are meeting in South Korea to consider text for a new international agreement on the enforcement of intellectual property rights. It is called the Anti-Counterfeiting Trade Agreement (ACTA). The term "counterfeiting" is designed to demonize the agreement critics as friends of organized crime, much like the name of the Patriot Act seemed better than the "Elimination of Civil Liberties Act." It is really an agreement that addresses a wide range of intellectual property enforcement issues -- involving patents, copyrights, trademarks and other IPR. (Details here)
If you are a lowly member of the public, the text is secret. The names of persons who attend the meetings are secret. The titles of the documents are secret. If you represent a big firm or law firm -- pretty much any big firm it seems, the U.S. government will show you documents after you sign a non-disclosure agreement - curbing your right to speak out on the contents of the documents you see.
Some details of the negotiation have leaked out, most recently from a memo by Euopean Union describing the Obama Administration proposal for a new global system of Internet controls and liabilities. Michael Geist, Gwen Hienz of EFF, and a few journalists -- most living outside of the U.S., have written about ACTA.
The entire U.S. tech sector has been publicly silent, as the Obama administration has co-oped them into trading silence for access to the secret documents.
At this point, Congress needs to stand up and put an end to this appalling spectacle of secret legislation on a global scale. How can politicians claim to be all for transparency, and allow this indefensible violation of the public right to know proceed?
A large number of organizations and people have written President Obama asking that he end the secrecy of the negotiation. It is doubtful this will happen unless newspapers write about the issue (aren't they big advocates of the right to know?), members of Congress weigh in, or if the critics of the secret negotiation can mobilize public opinion.
There is a lot at stake. Civil rights, privacy, rules for injunctions and damages against businesses and individuals, chilling of speech, the first sale doctrine, the global movement of medicines and other commodities, etc, will all be impacted by this ridiculously secret negotiation.
Earth to politicians -- you work for us, not the International Chamber of Commerce. Make this negotiation public!
Secret Copyright Treaty Will Ruin the Internet (November 04, 2009 - The Atlantic Wire - Carl Franzen)
Leaked details of a proposed international Internet treaty have tech bloggers throwing fits. Negotiators from the U.S. many other nations are meeting behind closed doors in Seoul this week to hammer out the details of the Anti-Counterfeiting Trade Agreement (ACTA). The pact is designed to clamp down on the Internet's multifarious illegal file-swapping community by holding service providers accountable for their users' activities.
Bloggers are blasting the treaty, as you'd expect, but are also fulminating against the government's opacity, the companies' cooperation, and big news organizations for failing to sound the alarm:
* Patricio Robles, Econsultancy: "ACTA could be the worst thing for the internet- ever…Not only would ACTA be bad for citizens of the member nations, it would put businesses in those member nations at a significant disadvantage."
* Mike Masnick, Techdirt: "There is simply no reason for ACTA, at all. It is nothing but an attempt by the entertainment industry to put massive restrictions on the internet, place liability on lots of third parties, and do nothing to push themselves to adapt to a changing marketplace with new business models."
* Jolie O'Dell, ReadWriteWeb: "Are international treaties governing Internet content and intellectual property even necessary? Insofar as they fly in the face of normative cultural practices and contradict or tighten existing national laws, we find these suggested measures inflexible and unrealistic."
* Nicholas Deleon, CrunchGear: "Everything’s very hush-hush, of course, and you don’t hear a damn thing about it on TV, no. No, that’s filled with crackpots on the left and right claiming that health care will fix everyone’s problems automatically or destroy the country as soon as it’s signed into law. As if things this complicated could be debated in 30-second segments."
* James Love, Huffington Post: "At this point, Congress needs to stand up and put an end to this appalling spectacle of secret legislation on a global scale. How can politicians claim to be all for transparency, and allow this indefensible violation of the public right to know proceed?…Earth to politicians -- you work for us, not the International Chamber of Commerce. Make this negotiation public!"
* Glyn Moody, Computerworld UK: "The whole ACTA saga is one of the most nauseating demonstrations of the contempt in which the Power-that-Be hold ordinary people and their interests. Sadly, it is not clear to me how to fight it…Any suggestions not involving insurrection?"
I'm pissed. I'm more pissed about the msm news blackout on legisltature so fucking important. I did a google news on ACTA Treaty and only got 40 articles (mainly from blogs and tech news sites). What the fuck people? We need to voice our opinions on this or this will be shoved down our throats.
I'm in the process of writing up a post on my journal then I'm going to e-mail reps, then I'm e-mailing my local newspaper and news channel, and I'm planning on called my bastard representatives.
In the meantime, sign the peition, petition, start up facebook groups, twitter bomb this, do anything and everything we need to do to show them how pissed we are and finally get the attention of the msm.
Enough is enough. I am tired of being demonized and ignored my rights as a citizen of the internet.
Even if I do nothing wrong, I can't defend myself against this new treaty. My internet will be cut off. I may face fine or jail time. All it takes is one pissed off person who thinks I violated their copyright.
How many times has the DMCA been used to censor us? This is will make the DMCA look like a time-out compared to the smackdown we will face under ACTA.
P.S. mods, do you think we need an ACTA tag?
Letter to Congress requesting they not ratify ACTA
So far there's only three Facebook groups, inactive ones too. So I started my own.
Anyone want to help get an ACTA treaty hastag and see how far we can move it up the trends list?