ACTA treaty aims to deputize ISPs on copyrights

After years of political skirmishing, a previously secret draft of digital copyright treaty has been made public. It encourages broadband providers to disable access to infringing Web sites.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

Internet service providers could become copyright cops encouraged to block access to suspected pirate Web sites, according to a previously secret draft treaty made public on Wednesday.

One section of the proposed digital copyright treaty says that immunity from lawsuits would be granted to Internet providers "disabling access" to pirated material and adopting a policy dealing with unauthorized "transmission of materials protected by copyright." If the ISPs choose not to do so, they could face legal liability.

Both the Obama administration and the Bush administration had rejected requests from civil libertarians and technologists for copies of the Anti-Counterfeiting Trade Agreement, or ACTA. Last year, the White House went so far as to invoke an executive order saying disclosure would do "damage to the national security."

But after the European Parliament voted last month by a 633-to-13 margin to demand the release of ACTA's text, keeping it secret became too politically problematic for the countries represented in the closed-door negotiations. Besides the United States, the European Commission, Australia, Canada, Japan, and New Zealand are among the nations participating. They've been egged on by copyright lobby groups.

Much of the language in ACTA has been anonymously proposed by one nation or another but is not final, and it's not clear whether the "disabling access" section will remain. Another nearby paragraph does say, in a nod to privacy concerns, that governments should not "impose a general monitoring requirement" on broadband providers. The language does appear to go further than U.S. laws governing broadband providers and copyright.

The wording is slightly different from an earlier draft, which talked about yanking the accounts of "repeat infringers" and was leaked last month by a French digital rights group.

The European Union published the draft text of ACTA on its Web site on Wednesday, along with a statement from EU Trade Commissioner Karel de Gucht saying concerns about the document's sweep were "unfounded."

De Gucht noted, for instance, that suspected language such as a "three strikes" rule for broadband customers and a "gradual response" for suspected infringement was not in the ACTA draft.

In general, ACTA's proposals seek to export controversial chunks of U.S. copyright law to the rest of the world. The Digital Millennium Copyright Act's "anti-circumvention" section, which makes it illegal to bypass copy protection even to back up a Blu-Ray disc, is in there. So is the No Electronic Theft Act's concept of making it a crime to copy a sufficient quantity of software, music, or videos -- even if no money changes hands.

While the public draft version of ACTA wouldn't prohibit border guards from searching travelers' gadgetry for infringing files, nor would it appear to require that action. That has been one of the concerns of groups like the Electronic Frontier Foundation and Public Knowledge, which have criticized the draft treaty.

The U.S. Trade Representative said in a statement last week that recent ACTA negotiations in New Zealand were "constructive." The next meeting is in Switzerland in June.

Update late Wednesday: By now, there has been a flurry of responses to the release of the ACTA draft, including the Motion Picture Association of America saying it is an "important step forward" and deserves to be adopted. The Copyright Alliance likes it too. Public Knowledge, on the other hand, remains concerned that ACTA attempts "to export a regulatory regime that favors big media companies at the expense of consumers and innovators." The Computer and Communications Industry, which has often cast a skeptical eye toward laws expanding copyright, says the release confirms "fears that the agreement will unreasonably increase the legal exposure of U.S. technology and Internet businesses operating abroad."