ACTA Would Disconnect File-Sharers After All

Another leak of the Anti-Counterfeiting Trade Agreement (ACTA) has surfaced. This time, it’s a big one – the long awaited internet chapter where provisions like the three strikes law has been considered.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

ACTA has had quite a reputation over the years and all the way up until recently, it has been known as the scariest agreement ever thought of to date that revolves around copyright and the internet that appears simply unstoppable. One of the most controversial provisions within ACTA is the concept of disconnecting file-sharers on the mere basis of accusations – most commonly referred to as a three strikes law.

Fearing that three strikes would damage public relations, the USTR said that there’s a lot of “misconceptions” about ACTA and said that ACTA does not focus exclusively on the internet and is more about physical piracy and counterfeiting on a commercial scale.

While the USTR said that something like a three strikes law was merely a misconception, their credibility was completely dashed on the topic recently now that the internet chapter has leaked.

The provision that would allow for the disconnection of file-sharers is the following:

“3. Each Party recognize that some persons use the services of third parties, including online
service providers, for engaging in copyright or related rights infringement. Each Party also
recognizes that legal uncertainty with respect to application of intellectual property rights,
limitations, exceptions, and defenses in the digital environment may present barriers to the
economic growth of, and opportunities in, electronic commerce. Accordingly, in order to
facilitate the continued development of an industry engaged in providing information
services online while also ensuring that measures take adequate and effective action against
copyright or related rights infringement are available and reasonable, each Party shall:


(b) condition the applicantion of the provisions of subparagraph (a) on meeting
the following requirements:
(I) an online service provider adopting and reasonably implementing a policy ^6 to address the unauthorized storage or transmission of materials protected by copyright or related rights

^6 An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s system or network of repeat infringers.”

So there it is pretty much in plain English, the three strikes law or similar measure in black and white ink.

Michael Geists in-depth analysis.

Already, representatives in the European Union have expressed concern over such provisions saying, “Such practices are highly invasive in the individuals’ private sphere. They entail the generalised monitoring of Internet users’ activities, including perfectly lawful ones. They affect millions of law-abiding Internet users, including many children and adolescents. They are carried out by private parties, not by law enforcement authorities.”

The document also notes, “Although the EDPS acknowledges the importance of enforcing intellectual property rights, he takes the view that a three strikes Internet disconnection policy as currently known – involving certain elements of general application – constitutes a disproportionate measure and can therefore not be considered as a necessary measure.”

What will no doubt be interesting in the future is whenever ACTA gets finalized is whether the European Union adopts such an agreement in to law in spite of wide-spread concerns on many levels.

In any event, although there have been denials about three strikes being in ACTA, the text of ACTA currently begs to differ.

Drew Wilson on Twitter: @icecube85 and Google+.

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