Knowledge Ecology International has published a list of proposals which they say are “the substantive suggestions for provisions of the ACTA that the RIAA [Recording Industry Association of America] sent to the USTR [US Trade Representative] on March 17, 2008″.

The wish list makes for very interesting/scary reading for those interested in what the next generation of bi- or multi-lateral treaties in IP might look like. Of particular interest are the following suggestions relating to secondary liability (liability of intermediaries for copyright infringement):

  1. provide remedies/injunctive relief against any entity that creates or maintains directories of infringing materials;
  2. provide remedies/injunctive relief against any entity that provides ‘deeplinks’ to infringing files
  3. provide remedies/injunctive relief against any entity that commits any act/service that has little/no purpose other than to facilitate infringement, or that intentionally induces others to infringe (with ‘intent’ proved objectively – ie there is ‘intent’ if a reasonable person would infer intent)
  4. require ISPs and other intermediaries to employ ‘readily available measures to inhibit infringement, including filtering out infringing materials, provided such measures are not unduly burdensome…
  5. require ISPs or other intermediaries to restrict/terminate access to their systems with respect to repeat infringers
  6. make ISPs liable if they don’t remove pre-release materials within 24 hours of being alerted it is there;
  7. slap ISPs with knowledge of infringing content once the rightholder sends a notice (this of course having implications for all kinds of other sources of liability)
  8. establish policies against the use of government networks and computers (to prevent them being used in P2P filesharing);
  9. Make landlords responsible if they “fail to reasonably exercise their ability to control the infringing conduct of their tenants” (!!!)

This level of liability would certainly go well beyond current Australian secondary liability. So, for example, Australian courts have held a provider of ‘deeplinks’ and ‘directories’ liable for authorising infringement – but that was in a context of a website specifically set up and structured for that particular purpose, from which significant amounts of money were apparently being made. We would tend to emphasise subjective, not objective intent. We would not always require ‘services with both infringing and non-infringing uses’ to employ filtering. And of course while we do require ISPs to have policies for termination of users, these aren’t at a high level AND apply to ISPs – not other intermediaries (like big companies, Universities and the like which provide internet service to employees/students etc). To put these requirements in place, significant legislative amendment would be required in Australia.

The secondary liability provisions, while very interesting, are also not the only interesting part of the RIAA suggestions.

The first other thing which is notable is the blurring of criminal and civil procedures and provisions. Some of the suggestions in the RIAA document are specifically stated to apply to criminal proceedings, some to civil. But others don’t specify. For example, have a look at B.4 (courts’ authority to issue ex parte search orders); D1 (Court’s power to order seizure of suspected counterfeit goods, related materials and implements used to commit the offence, any any assets traceable to the infringing material); or H.5 (rightsholders to be entitled to recover costs of investigation and litigation against infringers).

So what? Well, it matters whether these powers are available in criminal or civil proceedings. Consider seizure of assets. In criminal law, we do have proceeds of crime laws that allow tracing of assets related to copyright crime. In our civil remedies, there is potential for an account of profits. But not a tracing of assets.

A second interesting thing about the RIAA suggestions are the way they ride roughshod over civil liberties and the rights of others. Take, for example, Suggestion E.1:

Parties shall … provide that goods determined to be infringing are subject to forfeiture and destruction regardless of whether any action for infringement is initiated, whether civil, administrative or criminal and without any compensation of any kind of the defendant, and regardless of whether there has been any finding of liability on the part of any person.

Wow. So let me get that straight. Forfeiture and destruction. On determination by ‘someone’ but not a court. Regardless of whether the rightholder had a good enough case to actually sue on. And this provision not to be limited to ‘counterfeit’ or pirate material, but any material said to be infringing. I say it again. Wow.

Or how about this one, E.2:

‘Parties shall … provide that courts shall confiscate and destroy the equipment used for the manufacture of pirated goods in order to ensure that infringing parties do not repeat their illegal activities.’

Notice the absence of a discretion there? So the idea is that courts should not have the option: that destruction of equipment should always be ordered. No matter how expensive the equipment? No matter how small the proportion of use of the equipment is for infringement? Honestly, the mind boggles. See also Suggestion H.6, which suggests that courts should have the authority to close commercial outlets and manufacturing plans used to manufacture or distribute pirate or counterfeit products. No matter who the premises belong to?

A third interesting thing is provision H.1. It’s long been said that copyright piracy/counterfeiting was an activity associated with organised crime (this is one of those things used to scare governments into acting – ‘it’s a way to get organised crime!’). What’s interesting about H.1 is that it effectively says that copyright infringement on a large scale IS ‘properly understood as criminal conspiracies and/or organized crime’. Oh, well, that’s more simple. No need to prove mafia connections if all the dudes at the market are organised criminals…