Via Canadian law professor Michael Geist comes word that a draft of the ACTA Internet chapter has now leaked. Once again, this document (which, it bears emphasizing, is only a draft) only confirms what I (and, much more importantly, USTR) have been saying for months now: Nothing in ACTA would impose a "three strikes" requirement or otherwise alter US law. Indeed, what's most striking about the leaked document (whose provenance I haven't independently verified) is how closely it resembles the DMCA -- which of course is existing US law.
Acta Digital Chapter Draft
The meat of this draft is in Paragraphs 2, 3, and 4. Paragraph 2 says that signatory nations must insure that "civil remedies, as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability for copyright and related rights infringement." Third-party liability (such as contributory and vicarious infringement, as well as inducement liability) has long been part of US intellectual property law. See, e.g., Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911) and cases collected in MGM v. Grokster, 545 U.S. 913 (2005). A vague requirement that the US recognize third-party liability in copyright ("and related rights") wouldn't change existing law one iota.
Paragraph 3 provides for limitations on liability against "online service provider[s]" for infringements by their users. To benefit from such limitations, service providers (including ISPs and hosts) must "adopt and reasonably implement a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" by, for example, "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." In addition, to obtain the limitation on liability, service providers must "expeditiously remov[e] or disabl[e] access to material or activity, upon receipt of legally sufficient notice of alleged infringement, 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 a mistake or misidentification." Sound familiar? It should; this language is taken almost verbatim from Section 512 of the DMCA, which, of course, provides safe harbors from liability for service providers that have a notice-and-takedown (and counter-notice) procedure and terminate repeat infringers.
And Paragraph 4 of the ACTA draft would require signatories to prohibit "the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram," as well as "the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure." Again, this language should be familiar to anyone who has ever read Section 1201 of the DMCA, which similarly bans circumvention of DRM, as well as trafficking in devices that do just that.
ACTA opponent Prof. Geist allows that the draft "may not specifically require three-strikes," but says that it "clearly encourages it as the model to qualify as a safe harbour from liability." He goes on to say that "This leaks [sic] shows how deceptive the USTR has been on this issue - on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model." Huh? How is USTR deceiving anyone? Nowhere does this draft "specifically cit[e] three strikes as [USTR's] proposed policy model." Rather, it merely says that one "example" of a "policy to address the unauthorized storage or transmission of materials protected by copyright or related rights" would be "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." And again, a requirement to terminate repeat infringers in appropriate circumstances as a condition for a limitation on liability is already in US law. See 17 USC § 512(i)(1)(A). If such a provision counts as "three strikes" provision, well, then the US already has a "three strikes" law.
I realize there are people out there who don't like copyright enforcement; they don't like secondary liability, or Sections 512 and 1201 of the DMCA. So it makes sense that these people won't like an international agreement that mirrors these pre-existing laws. And they're obviously entitled to their views. But if they're going to argue that ACTA would change existing US law, they're not going to find evidence of that in this leaked draft -- or, as far as I can tell, anywhere else.
Update: Read Nate Anderson's piece in Ars Technica, which similarly concludes that the draft "simply reflects existing US law."