File-sharers could be jailed under proposed ACTA provisions

Leaked details of the Anti-Counterfeiting Trade Agreement being negotiated in secret by most of the world’s largest economies suggest Internet file-sharers could be blocked from accessing the Internet if they are repeatedly accused of sharing copyrighted material, say media and digital-rights watchdogs.

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And the worst-case scenario could see popular Web sites like YouTube and Flickr shut down because of a provision in the treaty that would force them to monitor everything uploaded to the site for copyright violations.

Internet law professor Michael Geist published details of “leaked” portions of the discussions on ACTA on his blog Tuesday, as a new round of ACTA negotiations began in Seoul, South Korea. The US, along with all the countries of the European Union as well as Japan, Canada, Australia and a handful of other countries, are involved in the negotiations.

“The provisions would pave the way for a globalized three-strikes and you’re out system,” Geist blogged Wednesday, referring to a proposal from copyright holders to have Internet service providers cut off service to anyone accused at least three times of illegally sharing copyrighted material.

“This means that your entire family could be denied [access] to the Internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel,” blogged tech writer and digital-rights supporter Cory Doctorow.

Doctorow also noted that another provision being proposed for the treaty would mean “that ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.”

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And, as Geist noted in a follow-up article on Wednesday, the proposed treaty could end up seeing file-sharers jailed for sharing copyrighted material, even if they had no financial gain from the transaction.

Geist wrote that the treaty, as currently proposed, would “extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, non-commercial infringement could lead to criminal penalties.”

“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,” writes Gwen Hinze at the Electronic Frontier Foundation.

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ACTA negotiations were being held entirely in secret until this past May, when the Wikileaks Web site released a 2007 draft proposal.

The Obama administration has resisted attempts to make the negotiations public, though it did make an exemption for a long list of senior executives at major corporations.

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In June, the administration announced it would continue the ACTA negotiations started under the previous administration.