

Someone has uploaded a PDF to a Google Group that is claimed to be the proposal for Internet copyright enforcement that the USA has put forward for ACTA, the secret copyright treaty whose seventh round of negotiations just concluded in Guadalajara, Mexico. This reads like it probably is genuine treaty language, and if it is the real US proposal, it is the first time that this material has ever been visible to the public. According to my source, the US proposal is the current version of the treaty as of the conclusion of the Mexico round.

I've read it through a few times and it reads a lot like DMCA-plus. It contains, for example, a duty to technology firms to shut down infringement where they have "actual knowledge" that such is taking place. This argument was put forward in the Grokster case, and as Fred von Lohmann argued then, this is a potentially deadly burden to place on technology companies: in the offline world Xerox has "actual knowledge" that its technology is routinely used to infringe copyright at Kinko's outlets around the world — should that create a duty to stop providing sales and service to Kinko's?

This also includes takedown procedures for trademark infringement, as well as the existing procedures against copyright infringement. Since trademark infringement is a lot harder for a service provider to adjudicate (and since things that might be trademark infringement take place every time you do something as innocuous as taking a photo of a street-scene that contains hundreds or thousands of trademarks), this sounds like a potential disaster to me.

This calls on all parties to ensure that "third party liability" (the idea that ISPs, web-hosts, application developers, mobile carriers, universities, apartment buildings, and other "third parties" to infringement are sometimes liable for their users' copyright infringements) is on the books in their countries. It doesn't spell out what that liability should be, beyond "knowingly and materially aiding" an infringement — see the Kinko's point above for why this is potentially deadly.

And, of course, this contains the DMCA's injunction against breaking digital locks (that is, circumventing DRM), even though this provision has been in international treaties since 1996 and has done nothing to reduce infringement, has never shown itself to be effective in shoring up the power of these technologies to prevent copies, and has introduced enormous anti-competitive effects into the market.

Also buried in a footnote is a provision for forcing ISPs to terminate customers who've been accused — but not convicted — of copyright infringement (along with their families and anyone else who happens to share their net connection).

There's plenty more here — and we don't know what the rest of the treaty reads like, or what the competing drafts said — and I'm sure that more astute legal scholars than I will be along shortly with their commentary.

Update: Here's an IDG report on the leak, with more analysis.

Article 2.17: Enforcement procedures in the digital environment (PDF)

My mirror (PDF)

(Thanks, Paolo!)