Nearly a month ago, digital rights advocates at La Quadrature du Net got their hands on a draft of the Anti-Counterfeit Trade Agreement that the United States and nine other countries have been negotiating for months. Opponents are concerned that the treaty will hold Internet service providers responsible when their customers illegally downloaded copyrighted material.
Under proposed language, if the ISP adopts and implements a policy designed to address customers' unlawful activity, it will avoid penalty or other sanctions. What that policy should look like for every ISP remains to be seen, but organizations such as the Motion Picture Association of America and the Recording Industry Association of America support a "three strikes" policy. A "three strikes" policy would require ISPs to terminate the accounts of users who repeatedly download copyrighted material without authorization.
If the proposed language stands, it will change longstanding U.S. policy on the issue of secondary liability. Under the Digital Millennium Copyright Act, ISPs are only required to remove infringing material from their networks when the copyright holders request it. Critics are also concerned that the treaty, if ratified, could eliminate the fair use doctrine in the United States, according to SiliconValley.com. Fair use allows small excerpts of copyrighted material to be used "for commentary, criticism, research, teaching and news reporting."
More than the changes it could bring about in U.S. and foreign law, though, some say the entire negotiation process for the treaty has been all wrong. For instance, Michael Geist, a law professor at the University of Ottawa, told SiliconValley.com:
Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law.
Instead he says the proper forum for negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny.