ACTA: Turning ISPs into enforcers

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Knowledge Ecology International, a group that seeks to reduce the control wielded by patent and copyright holders, recently posted a list of suggestions that the RIAA purportedly sent to the U.S. Trade Representative for what to include in the proposed Anti-Counterfeiting Trade Agreement. Ars Technica’s Nate Anderson took up the issue today, accusing the record companies of trying to disembowel the safe harbor provisions of the DMCA. I checked the legitimacy of the Knowledge Ecology post with Neil Turkewitz, the RIAA’s point man on such things, and he said it looked accurate. Not surprisingly, however, he offered a somewhat different take than Ars. Yet he acknowledged that some aspects of the RIAA’s proposal for ACTA go beyond U.S. law on the enforcement of copyrights online.

ACTA, which aims to establish a multinational standard for anti-piracy enforcement, has generated a fair amount of concern in the blogosphere because a) it’s being negotiated in secret, as are all trade pacts, and b) some media outlets have suggested that it could lead to people’s laptops and iPods being searched at the border. Here’s the RIAA’s position, according to the Knowledge Ecology post:

What that means is, border agents wouldn’t have to wait for a complaint from Warner Bros. Studios to be on the lookout for a few hundred bootlegged DVDs of ‘The Dark Knight.’ U.S. border agents already search laptops at random and without warrants, yet it’s hard to picture them spending the time and energy to catch people smuggling camcorded films on their iPods.

Much more problematic is the RIAA’s wish list for online enforcement. The suggestions would seem to shift the legal ground in favor of copyright holders on issues that remain in dispute in U.S. courts, and possibly on a few that have been settled here or in other countries. Two examples of the latter are suggestions to make manufacturers liable for products and services whose ‘predominant application’ is aiding piracy -- a more onerous standard than the one the Supreme Court laid out in the Sony Betamax case -- and to insure that copyright holders have access to the data they need from ISPs to bring lawsuits -- a potential conflict with some European court rulings.

In an e-mail, Turkewitz said the RIAA wasn’t trying to make a wholesale shift in the balance of legal power. ‘The bulk of this section is devoted to trying to secure harmonization around fundamental US legal principles of secondary liability and contributory infringement, including adoption of the `induce’ standard articulated by the Supreme Court in Grokster,’ he wrote (link added).

The RIAA’s proposal would also ratchet up the pressure on ISPs and search engines to weed out infringements. According to the Knowledge Ecology post, one RIAA suggestion would require ISPs ‘to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services.’ Another would require them to clamp down on or banish repeat infringers.

The RIAA and MPAA have pressed U.S. courts to oblige ISPs to police their networks, but judges haven’t exactly agreed. Wrote Turkewitz, ‘The Supreme Court in Grokster suggested that in the appropriate circumstances, an entity that is aware of the fact that they are facilitating piracy may assume an obligation to filter, although there is clearly no separate and independent legal obligation to do so. Likewise, termination of a repeat infringer may or may not form a part of an ISP’s current responsibility.’ To Turkewitz, the point isn’t to turn ISPs into copyright cops (‘No one is suggesting that ISPs monitor their networks,’ he said in an interview). It’s to address rampant online piracy in a more efficient way than the broad measures ISPs currently use, such as traffic shaping. Similarly, having ISPs notify suspected infringers could actually reduce the amount of enforcement done, Turkewitz said, by educating Internet users about copyright law.

Yet there’s no magic bullet to identifying and stopping pirated material as it’s traveling from one PC to another online, at least not yet. Even if ISPs could automatically identify when a song was being transmitted, technology alone can’t discern an infringement from a likely fair use (e.g., a parody or a transfer among family members). And one non-trivial problem with the notice and escalating penalties idea is that it can be hard to identify who actually was using a particular broadband account when an infringement occurred. IP addresses can be faked, wireless routers can be hijacked. But Turkewitz was not deterred. ‘You can deal with all of those issues,’ he said of the potential notification problems. ‘I think the critical thing is that you can’t let everything just stop forward motion. There are always issues. You have to advance in a reasonable way, and be flexible and accommodating in making sure all reasonable expectations are met.’

‘Reasonable,’ ‘flexible’ and ‘accommodating’ aren’t words often used in connection with the RIAA’s campaign against individual file-sharers. But while the RIAA may be the most aggressive in trying to stop piracy by individual Internet users, it’s hardly alone in seeking to force ISPs to play a greater role in protecting intellectual property. ‘This is early in the ACTA process, and we have no idea how this will develop,’ Turkewitz wrote. ‘Does RIAA want the parties to discuss the role of ISP’s in the fight against piracy? Absolutely. How can you talk about fighting piracy in 2008 without talking about a key aspect of this challenge?’

He added, ‘Having said that, there is zero chance that the [U.S. government] would agree to a binding obligation on an issue of this magnitude without the consent of Congress -- and most importantly for present purposes -- we are not asking them to do so.... Our submission to the US negotiators should certainly not be construed as asking the US to legislate. These are some of our ideas about how to enhance enforcement.’

Addendum: Having talked about ACTA entirely in the context of pirated entertainment, I neglected to make a point that bloggers often overlook about contemporary piracy. There’s much more at stake than just music and movie industry profits. All sorts of branded products -- medicines, batteries, auto parts, toys, apparel, etc. -- have become targets for counterfeiters. In some cases, those fakes pose a real risk to health and safety. That’s why there’s broad support from U.S. industry for a crackdown, as evidenced by the involvement of the U.S. Chamber of Commerce. There are also complex issues involving how developing nations compete, but that’s a subject for an even longer post.