Copyright Treaty Is Policy Laundering at Its Finest

The blogosphere is abuzz over an apparently leaked document showing the United States trying to push its controversial DMCA-style notice-and-takedown process on the world. But since Threat Level already lives in the land of the DMCA, we’re more bothered by the fact that the U.S. proposal goes far beyond that 1998 law, and would require Congress to alter the DMCA in a manner even more hostile to consumers.

At issue is the internet section of the Anti-Counterfeiting Trade Agreement being developed under a cloak of secrecy by dozens of countries.The leaked document is a three-page European Commission memo written by an unnamed EU official, which purports to summarizes a private briefing given in September by U.S. trade officials.

The language in the Sept. 30 memo shows the United States wants ISPs around the world to punish suspected, repeat downloaders with a system of “graduated response” — code for a three-strikes policy that results in the customer eventually being disconnected from the internet with the ISP alone deciding what constitutes infringement and fair use.

While the proposal specifically says that three strikes wouldn’t be mandated, it might as well be. That’s because companies that refused to implement the policy would be ejected from the “safe harbor” that otherwise protects them from copyright infringement lawsuits over the actions of their customers.

Currently, the DMCA grants immunity or a “safe harbor” to internet companies that promptly remove allegedly infringing content at the request of the copyright holder. Only if they fail to do so can they be held liable in court, and face up to $150,000 in damages per infringement.

Under the U.S. proposal described in the memo, removing infringing content would no longer be enough to qualify for safe harbor. Companies would have to actively work to combat the flow of unauthorized copyrighted material through their pipes, and specifically implement the “graduated response” program.

There's more and it doesn't get better: http://www.wired.com/threatlevel/

When I posted the rules that were being concocted in secret, some people said it was a hoax. I was wondering too.

Apparently it's not. Oy!