February 19, 2010, 1:40 PM — The U.S., Europe and other countries are secretly drawing up rules designed to crack down on copyright abuse on the Internet, in part by making ISPs liable for illegal content, according to a copy of part of the confidential draft agreement that was seen by the IDG News Service.
It is the latest in a series of leaks from the anticounterfeiting trade agreement (ACTA) talks that have been going on for the past two years. Other leaks over the past three months have consisted of confidential internal memos about the negotiations between European lawmakers.
The chapter on the Internet from the draft treaty was shown to the IDG News Service by a source close to people directly involved in the talks, who asked to remain anonymous. Although it was drawn up last October, it is the most recent negotiating text available, according to the source.
It proposes making ISPs (Internet service providers) liable under civil law for the content their subscribers upload or download using their networks.
To avoid being sued by a record company or Hollywood studio for illegally distributing copyright-protected content, the ISP would have to prove that it took action to prevent the copyright abuse, according to the text, and in a footnote gives an example of the sort of policy ISPs would need to adopt to avoid being sued by content owners:
"An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat offenders," the text states.
Terminating someone's subscription is the graduated response enacted in France last year that sparked widespread controversy. The French law is dubbed the "Three Strikes" law because French ISPs must give repeat file sharers two warnings before cutting off their connection.
Other countries in Europe are considering similar legal measures to crack down on illegal file-sharing. However, E.U.-wide laws waive ISPs' liability for the content of messages and files distributed over their networks.
European Commission officials involved in negotiating ACTA on behalf of the E.U. insist that the text being discussed doesn't contradict existing E.U. laws.
"There is flexibility in the European system. Some countries apply judicial solutions (to the problem of illegal file-sharing), others find technical solutions," said an official on condition he wasn't named.
He said the E.U. doesn't want to make a "three strikes" rule obligatory through the ACTA treaty. "Graduated response is one of many methods of dealing with the problem of illegal file-sharing," he said.
He also admitted that some in the Commission are uncomfortable about the lack of transparency in the ACTA negotiations.