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RIAA Ups the ACTA Ante

By Senior Copyright Counsel, Google Inc.

I have heard that USTR denies that ACTA will any require substantive changes in US law. For this reason, no need to get Congress involved or to have public hearings; no need, in other words to worry. RIAA has just submitted its suggestions to USTR for what should be in the agreement. Here is a link to the full document, courtesy of Knowledge Ecology International.

There are a number of provisions that are intended to shift the financial burden of enforcing rights on to taxpayers back. There are also many that should give a great deal of pause and which would require extensive amendments to US law. Here are a few (keeping the original numbering)

Enforcement Best Practices

A.Legal Obligations

Parties shall:
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2. Provide criminal sanctions for any act of copyright infringement that takes place on a commercial scale, including in the online environment, regardless of whether such acts are undertaken with a financial incentive.
3. Make it a criminal offense to import or export, manufacture, sell or otherwise distribute a device or system, or a component of a device or a system, knowing or having reason to know that the device or system is primarily used or designed to circumvent technological protection measures used in conjunction with materials protected by intellectual property rights.
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5. Provide for the availability of civil and injunctive relief against landlords that fail to reasonably exercise their ability to control the infringing conduct of their tenants.
6. In territories with high rates of production of pirated optical discs, provide for a system of licensing prior to the manufacture or export of optical discs, as well as the import or export of manufacturing equipment, and manufacturing materials, including optical grade polycarbonate, "stampers" and "masters."

B. Investigatory Provisions
Parties shall:
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5. Provide that orders by judicial authorities need not individually identify the items subject to seizure, so long as they fall within general categories specified in the order.

J. Online Infringing Activities

Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides "deeplinks" to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of "intent" by reference to objective standards--i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries 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;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e?mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours;

or

Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
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8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.

10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data.

Full post as published by The Patry Copyright Blog on July 02, 2008 (boomark / email).