This article is also available in:
Deutsch: ENDitorial: ACTA enthüllt, europäische Internet-Service-Provider dü...

Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement have started in Seoul, South Korea. This week's closed negotiations will focus on "enforcement in the digital environment." Negotiators will be discussing the Internet provisions drafted by the US government. No text has been officially released but as Professor Michael Geist and IDG are reporting, leaks have surfaced. The leaks confirm everything that we feared about the secret ACTA negotiations. The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

As expected, the Internet provisions will go beyond existing international treaty obligations . We see three points of concern.

First, according to the leaks, ACTA member countries will be required to provide for third-party (Internet Intermediary) liability. This is not required by any of the major international IP treaties - not by the 1994 Trade Related Aspects of IP agreement, nor the WIPO Copyright and WIPO Performances and Phonograms Treaty. However, US copyright owners have long sought this.

Second and more importantly, ACTA will include some limitations on Internet Intermediary liability. Many ACTA negotiating countries already have these regimes in place: the US, EU, Australia, Japan, South Korea. To get the benefit of the ACTA safe harbors, Internet intermediaries will need to follow notice and takedown regimes, and put in place policies to deter unauthorized storage and transmission of allegedly copyright infringing content.

IDG reports that: "The U.S. wants ACTA to force ISPs to "put in place policies to deter unauthorized storage and transmission of IP infringing content (for example clauses in customers' contracts allowing a graduated response)," according to the (leaked European) Commission memo." The US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create - despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

European citizens should be concerned and indignant. As reported, the ACTA Internet provisions would also appear to be inconsistent with the EU eCommerce Directive and existing national law, as Joe McNamee, the European Affairs Coordinator of EDRi notes:

"The Commission appears to be opening up ISPs to third party liability, even though the European Parliament has expressly said this mustn't happen," McNamee said, adding that ACTA looks likely to erode European citizens' civil liberties."

Last, but by no means least. ACTA signatories will be required to adopt both civil and criminal legal sanctions for copyright owners' technological protection measures, in line with the US-Korea (and previous) FTA obligations. They will also be required to include a ban on the act of circumvention of technological protection measures, and a ban on the manufacture, import and distribution of circumvention tools.

Original article: Leaked ACTA Internet Provisions: Three Strikes and a Global DMCA (3.11.2009)
http://www.eff.org/deeplinks/2009/11/leaked-acta-internet-provisions-t...

Trade Talks Hone in on Internet Abuse and ISP Liability (3.11.2009)
http://www.pcworld.com/article/181312/trade_talks_hone_in_on_internet_...

The ACTA Internet Chapter: Putting the Pieces Together (3.11.2009)
http://www.michaelgeist.ca/content/view/4510/125/#copycon

EDRi-gram: European Parliament wants more transparency on ACTA (26.03.2009)
http://www.edri.org/edri-gram/number7.6/acta-transparency-european-par...

(Contribution by Gwen Hinze - EDRi-member Electronic Frontier Foundation USA)