The ACTA Leak is useful, but there are still plenty of secrets

This is a note about the leaked ACTA documents, that have been reported now by several news organizations and bloggers.*

On September 30, 2009, the EU wrote a three page memo on the Internet chapter of ACTA. This is about a week after the USTR held a secret meeting with selected corporate lobbyists and lawyers to debate the ACTA Internet under terms of a tough non-disclosure agreement.

The EU memo is based upon a briefing they received from USTR, and it provides the best insight yet into what is being discussed this week in Seoul, South Korea. The ACTA Internet section only covers one chapter, and needs to be read in connection with other still secret or unwritten parts of the agreement.

The big problem for USTR is not so much the public interest (they made that clear), but the conflicting interests of content providers and Internet Service Providers (ISPs).

The EU says the U.S. has modeled the Internet chapter after the Korea-US FTA (Korus), which is not a surprise. Eric Smith (International Intellectual Property Alliance) said this would be case in the Spring of 2008 in a seminar at Fordham University. There are elements about DRM, TPM, third party liability and safe harbors for ISPs.

In order to benefit from the safe harbors, ISPs may have to provide new clauses in consumer contracts, to stop non authorized uses. The EU believes there some space for a “graduated response” (which goes further than the DMCA), sometimes better known as “three strikes and you’re out”. Yes, the EU is referring to, three strikes and they pull the plug, you’re not on the Internet… Details? No. That’s still a secret.

Apparently the ISPs will be required to undertake some type of “self regulation,” under the supervision of governments. This raises all sorts of civil rights and free speech issues, but since the details remain secret, it is hard to evaluate.

The technological protection measures (TPMs) are supposed to be modeled after the US – Jordan FTA (4.13) and the WIPO Internet treaties (WCT and WPPT+). The actual text is still secret.

Interestingly enough, the EU says the US text says there are “no obligation for hardware manufacturers to ensure interoperability of TPMs.” It is not clear what this means. It’s a secret, of course.

The Chamber of Commerce has told the Obama Administration to keep the text secret, and USTR is apparently very responsive to the Chamber on this point. Participants in the negotiations say that the draft is not for public comments.

As KEI has indicated previously, all the big insiders in Washington, DC, have seen the Internet chapter, and so far, they are not commenting anywhere.

But while they cannot disclose what they have seen under the non disclosure agreement, certainly they can express views on what has been leaked, outside of the NDA.

* See Michael Geist and Gwen Hinze‘s blogs

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