Wednesday, February 10, 2010

USTR: No mandatory 'three strikes' or filtering in ACTA

Via Public Knowledge comes further confirmation of what I've been saying for months: the hysterical claims by opponents of the Anti-Counterfeiting Trade Agreement ("ACTA") that the still-under-negotiation pact would impose a mandatory, French-style "three strikes" policy on ISPs are simply false. Public Knowledge's Sherwin Siy asked Stanford McCoy, Assistant U.S. Trade Representative for Intellectual Property and Innovation, "whether or not ACTA would require mandatory filtering or cutting off Internet connections." Siy quotes McCoy's clear and unambiguous response:
Mandatory filtering by ISPs would go beyond existing U.S. law, as would a mandatory "three strikes" approach to termination of repeat infringers. The U.S. Government is not seeking these or any other obligations that would go beyond U.S. law in the ACTA.
Siy laments "that the lack of transparency in the ACTA process is allowing rumor and speculation to rule the debate, rather than an intelligently informed discussion of the issues." I have much sympathy for that view, and would only hope that ACTA's opponents would absorb the facts he has presented, rather than engaging in the wild and inaccurate speculation that has so far dominated the debate. It would have been helpful for USTR to have put out such a clear statement months ago, but I guess better late than never.


  1. Maybe it would be even more helpful to have a look at the text that has actual being proposed, because USTR has told KEI that they think there is some part of the DMCA that would allow an agreement to address repeat infringers, and the EU's own leaked analysis discusses this issue. As a lawyer, I'm sure you appreciate the benefits of seeing the actual text. The "facts" are mostly speculation at this point. For example, lots of people think patents are out of the ACTA, based upon briefings from USTR. But other governments report this is an open question, and the EU is pushing to include patents and other types of IPRs. If the negotiating documents were as public as are the IP negotiations at WIPO, WHO, and WTO, we would be grounded in more facts than we are now.

  2. @James:

    You write: "USTR has told KEI that they think there is some part of the DMCA that would allow an agreement to address repeat infringers." That shouldn't be controversial. Of course, the DMCA, which is existing US law, already addresses "repeat infringers." Specifically, Section 512(i) provides that, in order to benefit from any of the 512(a)-(d) safe harbors, ISPs/hosts must "terminat[e] repeat infringers" in "appropriate circumstances." If ACTA merely reflects the DMCA's existing obligations as to "repeat infringers," then I don't see what the big deal is.

    Of course you're right that we're discussing what basically amount to third-hand reports of a draft, so we won't know anything definitive until we see the actual text. But McCoy's statement was refreshingly unambiguous.

  3. But McCoy's statement was refreshingly unambiguous.

    This of course assumes that the USTR is:

    1) Familiar with the text.
    2) Telling the truth.

    Ambassaodor Kirk was quoted earlier as saying that the negotiations had to be secret, otherwise certain governments would walk away from the them. I suspect that one of the governments that leave the talks if they weren't secret is that of the United States.

  4. @The Mad Hatter:

    This is absurd. Obviously USTR is familiar with the text; they're the ones negotiating it. And this statement from McCoy wouldn't violate confidentiality, since it doesn't reveal what's in the text or the negotiating position of other participants; it simply states the US government's position.

  5. It seems like your priorities are a little turned around--like you're more concerned with silencing inaccurate criticisms than with opening up the non-transparent process that leads to the wild speculation. "Dooood, just trust us, this treaty is totally cool and stuff."

  6. Hello Ben, many thanks for your consistently excellent blog. What is your position regarding graduated response/three strikes? From what I can tell you seem to oppose these types of schemes. If so, may I ask on what grounds you base your opposition? (My personal opinion, for what it's worth: use courts/statutory damages to pursue distributors [i.e. those making songs available either via torrents or P2P]; use graduated response to pursue downloaders.)

  7. I don't oppose all graduated response or three-strikes schemes. If done correctly, they can play a significant role in deterring infringement. I am skeptical of government-run programs like Hadopi in France.


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