[Infowarrior] - Copyright Treaty Is Policy Laundering at Its Finest

[Richard Forno]

Copyright Treaty Is Policy Laundering at Its Finest
	• By David Kravets
	• November 4, 2009  |
	• 7:59 pm  |
http://www.wired.com/threatlevel/2009/11/policy-laundering/
	•
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.