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U.S. Government Denies that ACTA Mandates Filtering or Three Strikes, But Questions On its Contents

February 10, 2010 , , , ,

On Monday, the New York Times added to the increasing media scrutiny of ACTA, the Anti Counterfeiting Trade Agreement. This proposed international agreement, which has the potential to drastically change the landscape of copyright law and policy, still remains hidden from the public eye.

Given this lack of transparency, it's no surprise that the substance of the agreement can only be discussed by way of leaks, speculation, and warring sound bites. Among the suppositions on ACTA's contents was the following:

E.U. negotiators, for example, are said to have balked at a U.S.-backed proposal to require Internet service providers to take tough steps against digital piracy.

Under such a structure, leaked papers from the Union show, Internet providers might be required to filter out illegally copied songs and films from their networks or to sever copyright violators’ Internet connections.

This was especially alarming news to us. Mandatory filtering and 3 strikes proposals are minefields of technical and due process problems. More than that, it was a worry that only added to existing concerns.

Because of that, I sent an email today to Stan McCoy of the U.S. Trade Representative, asking him whether or not ACTA would require mandatory filtering or cutting off Internet connections. His response:

Mandatory filtering by ISPs would go beyond existing U.S. law, as would a mandatory “three strikes” approach to termination of repeat infringers. The U.S. Government is not seeking these or any other obligations that would go beyond U.S. law in the ACTA.

Good news (well, any news) is hard to come by when it comes to ACTA, so I suppose this'll have to do for now. But my sigh of relief only lasts so long. For one thing, the leaked European document (which we covered here) referenced in the Times story doesn't limit ACTA's proposed provisions to filtering and three strikes. That analysis hints at changes to international norms on “third party liability”—such as contributory infringement, vicarious liability, or inducement of infringement.

These are areas of law that, in the U.S., are defined almost entirely by court decisions, which build in nuances and balance to the application and enforcement of the law. One of the dangers of trying to codify these doctrines into an international agreement is that it can freeze the law as it is currently, preventing the courts from adapting case law to adjust for new developments in business, technology, and culture. There's also the risk that binding the United States to an international set of standards will actually hamper Congress from enacting needed reforms to our copyright system.

Nor can we so quickly dismiss concerns about filtering and 3 strikes policies—even if the U.S. isn't pushing for legal obligations or mandates, there has been a constant, concerted effort by the largest record labels and movie studios over the past year or more to negotiate their own private 3 strikes agreements with ISPs. Filtering also remains a big topic for content industry lobbyists. Both of these measures, even if not mandated by laws, are often pressed upon ISPs and their customers as “voluntary” agreements, with threats of expensive lawsuits waiting in the margins if they don't comply. Even without mandating these procedures, laws, treaties, and executive agreements like ACTA can give them a great deal of cover by endorsing such “private agreements,” adding a veneer of legitimacy to practices that otherwise would raise greater alarm at their impact on privacy, or simply their false positive rate. ACTA's focus on penalties can also incentivize potential plaintiffs to push harder, and for potential defendants to cave.

And that's just a couple of fairly conservative guesses about the nature of ACTA—the actual provisions of the agreement can't be known for sure. But one thing that’s rapidly becoming clear from all of this is that the lack of transparency in the ACTA process is allowing rumor and speculation to rule the debate, rather than an intelligently informed discussion of the issues. No one is served by the secrecy of these negotiations. If sunlight is the best disinfectant, then the ACTA—however good its intentions may have been—is beginning to fester. Any good that an anti-counterfeiting agreement can do—in combating fraudulent goods, for instance—runs the risk of being poisoned by more controversial portions that the public and policymakers haven’t had the chance to inspect, debate, and, if necessary, cure or amputate for the sake of good public policy.