[ga] LA Times BLog: ACTA: Turning ISPs into enforcers

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

All,

  You may want to contact your ISP in this regard as well as your
legal representative.  I personally find this to be a very dangerous
idea.  It seems to have originated from organizations such as
the RIAA and MPAA.

http://opinion.latimes.com/bitplayer/2008/06/acta-turning-is.html

Los Angeles Times - Home Blogs

Bit Player - latimes.com

ACTA: Turning ISPs into enforcers

Riaa_logo 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:

    Provide that competent authorities have the authority to initiate
border measures ex officio, with respect to imported, exported, or
in-transit merchandise suspected of being counterfeit or confusingly
similar trademark goods, or pirated copyright goods, without the need
for a formal complaint from a private party or right holder, and
regardless of whether the relevant right that is being infringed is
recorded with Customs otherwise registered.

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 canâ??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.

Regards,

Spokesman for INEGroup LLA. - (Over 281k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
   Abraham Lincoln

"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
===============================================================
Updated 1/26/04
CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
div. of Information Network Eng.  INEG. INC.
ABA member in good standing member ID 01257402 E-Mail
jwkckid1@xxxxxxxxxxxxx
My Phone: 214-244-4827