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Trade talks hone in on Internet abuse, ISP liability

Could ISPs be forced to snoop on their subscribers?

By Paul Meller
November 3, 2009 11:57 AM ET

IDG News Service - ISPs around the world may be forced to snoop on their subscribers and cut them off if they are found to have shared copyright-protected music on the Internet, under an international agreement being promoted by the U.S.

Countries including Japan, Canada, South Korea, Australia as well as the European Union and U.S. have been negotiating an anti-counterfeiting trade agreement (ACTA) over the past two years to combat the growing problem of counterfeit products ranging from designer clothes to downloadable music.

The countries are due to discuss the ACTA at a meeting in South Korea on Wednesday, focusing specifically on the issue of Internet piracy. The U.S. has drafted the text of the chapter on the Internet.

In a summary of the U.S.'s position shared orally with trade officials at the European Commission in September, signatories of the accord must "provide for third-party liability." The Commission informed all 27 countries in the E.U. of the U.S. position in a memo seen by IDG News service.

Under existing laws in the U.S., the E.U. and elsewhere, ISPs are granted immunity from prosecution for illegal activities carried out by subscribers across their networks. This new global trade agreement appears to contradict the legal status quo, said Michael Geist, a law professor at Ottawa University in Canada.

This provision would mean that every country that signs up to ACTA must allow content owners such as record companies and Hollywood studios to sue ISPs for failing to stop their subscribers from illegally sharing copyright-protected material such as music and movies.

U.S. trade officials have been slow to show trading partners its draft of the Internet chapter ahead of Wednesday's meeting. "This is an intellectual property agreement yet it is being treated like nuclear secrets," Geist said.

The Commission memo said the U.S. is secretive about the Internet chapter because it is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet freedom on the other)."

Geist has been "troubled" about the secretive way the ACTA has been drafted "from the beginning."

"It is unprecedented for an IP treaty that impacts literally millions of people to be negotiated in such secrecy," he said, adding that the U.S. negotiating stance "runs counter to the Obama Administration's commitment to transparency."

Europe appears willing to back up the U.S.'s plans to make ISPs more liable for the content on their networks, according to Joe McNamee, European affairs specialist for Digital Rights Europe, a free speech and privacy pressure group.

The prevailing E.U. law on the matter of ISP liability is the e-commerce directive, which grants service providers protection from prosecution as long as they are just the conduit and not involved with the sender or receiver of illegal content.

Reprinted with permission from Story copyright 2014 International Data Group. All rights reserved.
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