As noted in a previous entry, the U.S. and its major trading partners are engaged in negotiations on a new treaty entitled the “Anti-Counterfeiting Trade Agreement” or ACTA. There is significant concern among Internet infrastructure providers about the terms of ACTA, particularly rumors that these providers will be subject to warrantless requests for information about their subscribers and EU like requirements that providers maintain connection and subscriber information for statutorily proscribed periods of time. The U.S. government agency tasked with representing U.S. interests in the negotiation, the U.S. Trade Representative, or USTR, has not provided significant details on the course of negotiation and refused to release the draft texts of the ACTA citing “national security.”
A recent leak of the European Commission’s summary of negotiations indicates that the ACTA will contain a provision similar to the Digital Millennium Copyright Act in which users are given “three strikes” before their service must be terminated. This document also suggests that the USTR is taking the lead in preparing this aspect of the ACTA. There are several issues of interest to web hosts in the leaked document.
As an initial matter, it is clear that public interest uses of copyrighted information are taking a back seat to commercial interests in the negotiation. By enclosing the words “freedom” in quotes in its reference to “supporters of internet ‘freedom,’” the Commission telegraphs the status accorded to these issues. Further relegation of these issues to preambles in various section helps substantiate this conclusion. This dismissal of a bona fide defense to copyright infringement is not only troubling on a Constitutional basis, but also on an operational basis for web hosts. In my practice I’ve noticed a significant increase in the use of the DMCA as a tool to suppress controversial discussions and dissenting viewpoints, if only for the ten to fourteen days during which hosts are required to keep material identified in a DMCA notice suspended. This increase creates an administrative and operational burden for hosts.
The inability of content users to interpose traditional defenses to copyright infringement has long been cited as one of the DMCA’s fundamental flaws. Courts have so broadly interpreted the “good faith” belief standard imposed on entities alleging copyright infringement, that it has lost almost all meaning. Indeed a brief review of recent cases did not find one case in which a court determined that a complainant failed to satisfy this standard.
This view is reinforced by a subsequent comment that the notice and take down provisions in the ACTA be “broad.” Current DMCA notices look almost like check box forms. It is difficult for me to imagine a revision to the DMCA that would give copyright holders broader notice and take down rights. Indeed, if U.S. courts apply an even more liberal reading of the DMCA’s notice and take down provisions than currently, these provisions will have essentially no meaning.
It bears remembering that the six criteria required by the DMCA to be contained in the notice provisions of the DMCA have been interpreted by courts to really mean three criteria. Basically, if a copyright owner signs his name, and copies the good faith and perjury statements into his DMCA notice, the notice is valid. It is up to the host to clarify any unclear elements. This broad interpretation of the notice requirements has led to presentation of DMCA notices that contain less detail than a political advertisement. This issue has created a type of feedback loop in which hosts who seek clarification of DMCA notices solicit arguments from the copyright owners about the clarity of their notice, and risk falling outside the DMCA’s safe harbor by not responding to DMCA notice in an expeditious manner.
Second, the document discusses a requirement that there be “third party liability” and a new definition of “safe harbor.” Currently hosts who comply with the DMCA are given “safe harbor” from liability for contributory and vicarious copyright infringement. In the early years of the DMCA, copyright holders attempted to whittle this safe harbor down significantly. A change in this standard would significantly change the ways hosts conduct business and narrow the clientele who would be give access to the Internet since hosts would limit their clientele to well established businesses in traditional business categories.
To my knowledge, strict web hosting providers are not participating in any capacity in these negotiations. I suggest that hosts pay close attention this new treaty and be prepared to take action if the protections afforded to them by the DMCA are further eroded.
