ACTA Copyright owners have not had a lot of luck lately in their efforts to force ISPs and online service providers to take a more active and enforceable role in policing their networks for copyright infringing material.
In the U.S., courts have repeatedly rebuffed legal efforts to narrow the scope of DMCA’s Section 512 safe harbors, most recently by rejecting Viacom’s infringement claims against YouTube. Meanwhile, efforts by U.S. trade negotiators to launder new rules on ISP liability through international agreements have met resistance from foreign governments. The latest version of the double-secret Anti-Counterfeiting Trade Agreement (now leaked and posted online), discards earlier language pushed by the U.S. requiring parties to impose various flavors of secondary liability on ISPs and online service providers, or requiring the parties to implement French-style three-strikes regimes.
I don’t see copyright owners giving up the fight just yet, however. As I’ve noted in previous posts, in fact, sentiment seems to be building among major copyright-owner groups in Washington to seek changes to the 512 safe harbors in the next Congress. And even without the secondary liability provisions, ACTA still contains language that could cause serious headaches for service providers.
The U.S. in particular is pushing for language requiring that parties to the agreement “provide the means to address the infringement of [copyrighted works] in the digital environment, including infringement that occurs via technologies [US: or services] that can be used to facilitate widespread infringement.”
A footnote adds: “Examples may include unlawful file sharing and unlawful streaming.”
Further:
Each Party shall endeavor to promote cooperative efforts within the business community to effectively address {US: copyright and related rights}{EU/J: intellectual property rights} infringement while preserving legitimate competition and consistent with each Party’s law, preserving principles relating to freedom of expression, fair process, and privacy, [EU: among other [US: fundamental] principles].
There’s a lot of room in there for mischief if you’re a service provider. At a minimum, the U.S. position would seem to give license to the government to bring heavy pressure on ISPs and OSPs — if not quite a statutory obligation — to “cooperate” with efforts to “effectively address” certain protocols, applications and/or web sites implicated in “widespread infringement.” Efforts like “voluntary” filtering, for instance.
The U.S. Commerce Department has already signaled its intention to go down that road, in fact, with its pending notice of inquiry into “the challenges of protecting copyrighted works on-line and the relationship between copyright law and innovation.”
Fun times ahead.