Although the public has been denied access to negotiations (note: RIAA and MPAA don’t count as ‘the public’), drafts of the ACTA’s internet enforcement section leaked online last week, providing a chilling glimpse into the covert negotiations among world leaders and the possible future of global internet policing. Introduced by the US Administration in 2007, the Anti-Counterfeiting Trade Agreement (ACTA) proposes making ISPs liable for content that subscribers transfer using their networks, forcing ISPs to “operate “automatic technical processes” to detect copyright-infringing activities.” While section 512 of the DMCA already establishes third party liability in the US, the ACTA extends the liability of intermediaries beyond notice-and-takedown to possible Deep Packet Inspection (bye bye net neutrality?) to the contentious three-strikes rule (which France passed in 2009, banning three-time accused file-sharers from the internet), thus exacerbating and spreading shortcomings of the DMCA internationally – namely the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.
The current digital gatekeeping model established by the DMCA promotes a ‘shoot now, ask questions later’ approach to handling allegations of copyright infringement. While the DMCA imposes the burden of proof on copyright holders and outlines the necessary elements to a notification of copyright infringement, the court found in ALS Scan, Inc. v. Remarq Communities, Inc. that copyright owners do not have to identify all infringing material (“imperfect notice”), thus shifting this responsibility to service providers. Although the complaint of infringement does not prove that infringement took place, the DMCA allows ISPs to takedown content without investigating whether the material was truly infringing before taking it down, thereby shifting the burden of proof onto subscribers.
The only recourse that subscribers have is filing a counter-notice of a “good faith belief that the material was removed or disabled as a result of mistake or misidentification…” Intermediaries risk losing their safe harbor if they do not take down infringing works whereas the consequences of wrongful takedowns amount to little more than disgruntled bloggers. In practice, there is no enforcement of fair use considerations prior to takedowns; section 512 of the DMCA explicitly imposes burden of proof on copyright holders, but third party provisions ultimately shifts the burden to subscribers.
Need to brush up on copyright law? Check out this video before it’s taken down…
As the amount of information online far exceeds copyright holders’ ability to monitor the dissemination of their works, they are becoming increasingly reliant on targeting internet hubs managed by intermediaries. In turn, intermediaries like YouTube are going “well above and beyond our legal responsibilities” by turning to automated technologies to keep up with this inundation of user-generated and uploaded content; its ContentID system enables copyright owners to automatically identify their works in YouTube hosted videos, and subsequently monetize, track or block the content. Technology that automatically screens for the presence of copyrighted material inevitably steamrolls over fair uses in favor of ease for copyright holders and intermediaries. As a standard rather than rule, fair use cannot be identified by an algorithm (real lawyers have enough trouble accomplishing that as it is) and technologies such as ContentID will further contribute to mass takedowns, leaving subscribers guilty until they prove themselves innocent.
Yale Law Tech 