Latest ACTA draft finally released, ISP 'safe harbor' limitations considered

As promised, the world's trade negotiators have finally released a public and, to a limited extent, redacted version of the current draft document for the Anti-Counterfeiting Trade Agreement. Releasing a draft of a global trade agreement is actually unprecedented, say many diplomats.

Though the authors of certain passages under consideration -- many of them marked by [square brackets] -- have been redacted from public view, it's clear that new legal limitations on an Internet service provider's ability to claim "safe harbor," excusing it from secondary liability for copyright (or patent) infringement, are being considered. That option is believed to have been proposed by the United States delegation, as indicated by a leaked document from the European Union (PDF available here from Wired). However, another option that would not limit ISP safe harbor provisions, is listed in the draft document under equal consideration.

The first option under consideration for Section 4, Article 2.18, paragraph 3 (actually a pair of options, the second contingent upon the first) defines the limitation of liability for an ISP that, by definition, doesn't alter the content of the information it provides to subscribers on behalf of other services. Note that sections in [square brackets] are proposed text, some of which may appear next to other proposed text set off in the same way. References to footnotes here have been removed.

Option 1

[ 3. Each Party recognizes that some persons use the services of third parties, including online service providers,...for engaging in [ patent, industrial design and trademark,] copyright or related rights infringement. Each Party also recognizes that legal uncertainty with respect to application of copyright and related 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 to take adequate and effective action against copyright or related rights infringement are available and reasonable each Party [shall][ may]:

(a) provide limitations on the scope of civil remedies available against an online service provider for infringing activities that occur by

(i) automatic technical processes, and

(ii) the actions of the provider's users that are not directed or initiated by that provider and when the provider does not select the material, and

(iii) the provider referring or linking users to an online location, when, in cases of subparagraphs (ii) and (iii), the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent; and ]

Option 2

[Each Party recognizes that some persons use the services of third parties, including online service providers,...for engaging in intellectual property rights infringements.

(a) In this respect, each Party shall provide limitation on the [liability of] [scope of civil remedies available against an] on-line service provider[s] for infringing activities that occur by

(i) automatic technical processes [ that keep the provider from taking measures to prevent the infringement], or

(ii) the actions of the provider´s users that are not initiated nor modified by that provided and when the provider does not select the material or

(iii) the storage of information provided by the recipient of the service or at the request of the recipient of the service,

when exercising the activities as stipulated in paragraph 3(a)(ii) and/or (iii) the online service providers act [takes appropriate measures] expeditiously, in accordance with applicable law [s], [such as those] to remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement [or the fact that the information at the initial source has been removed or disabled.] [or having reasonable grounds to know that the infringement is occurring]]

There's a preamble of sorts here that says, of course, we recognize that ISPs are legitimate businesses and we all want them to prosper. To that end, we're bound to disagree on the meanings of certain terms and legal minutiae, especially as the Internet continues to evolve. Nevertheless, we should set forth here and now to resolve that an ISP's liability -- given that it's likely to be innocent anyway -- should be limited when all it does is provide the pipeline. One of the proposed footnotes (not yet adopted) would stipulate that an online service provider by definition provides only access to content without modifying it (and if it does something differently, then it's not an ISP or "OSP" by that same definition).

Option 2 above would have the more forgiving portions of that language kick in only if the ISP published policies prohibiting the use of the service for piracy or copyright infringement, and if it also took pro-active steps to block access to infringing material once the ISP learned it was available. Exactly how it would take such steps is unspecified by this particular optional passage, although one can imagine blocking access to a Web site, or even restricting the use of -- or throttling the capabilities of -- an Internet application, as one acceptable possibility.

Another optional passage immediately following, which would become subparagraph (b) if adopted, is clearer as to what pro-active measures would be acceptable. To recap, "in order to facilitate the continued development of an industry...each Party [shall][ may]:"

Option 1

(b) condition the application of the provisions of subparagraph (a) on meeting the following requirements:

(i) an online service provider adopting and reasonably implementing a policy...to address the unauthorized storage or transmission of materials protected by copyright or related rights [except that no Party may condition the limitations in subparagraph (a) on the online service provider's monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring]; and

(ii) an online service provider expeditiously removing or disabling access to material or [activity][alleged infringement], upon receipt [of legally sufficient notice of alleged infringement,][of an order from a competent authority] and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of mistake or misidentification.

except that the provisions of (ii) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.]

It's a confusing section, especially since it would appear to directly contradict the section that came before it...but that's not unprecedented in a trade agreement at all. The original proposition here appears to stipulate that ISPs should adopt policies to prevent infringing content from being transmitted. Further, if it receives an order related to the availability of that content (maybe from a judge, maybe not from a judge) then it should act. Now, it may be up to nations to determine what "act" means; and perhaps it does not mean changing the definition of ISP (or "OSP") to the extent that it stops "acting solely as a conduit" and becomes a filtering system.

Evidently, there's an ongoing argument over this problem: When does an ISP stop being a conduit and start becoming the content police? If, by definition, it is unaware of what's going on inside the conduit, then some argue it should remain innocent. That innocence can then be broken, say the authors of the above option, if they receive a certified letter from an attorney saying there's theft, theft!, going on inside that conduit. At that point, if the ISP does nothing, then it's aiding and abetting that theft.

As today's newly released old text indicates, this is a very old argument that is nowhere close to being resolved. In a statement this afternoon, European Union Trade Commissioner Karel de Gucht celebrated the fact that this dispute is now public. "I am very glad that the EU convinced its partners to release the negotiation text. The text makes clear what ACTA is really about: It will provide our industry and creators with better protection in overseas markets which is essential for business to thrive. It will not have a negative impact on European citizens."