I said in my posting yesterday that Luc Devigne, EU negotiator for ACTA would not be able to keep his promise of ‘no 3 strikes'. Today, that broken promise is already evident in the leaked draft of the full consolidated Anti-counterfeiting Trade Agreement. Mr Devigne was either being very Spartan with the truth, or he needs to consult an optician.

It will take a long time to complete the  analysis of the entire draft, but these two points stand out in respect of ISP liability and the 'possibility' for some kind of 3-strikes regime. Moreover, and of great concern, it appears to additionally provide for the blocking of websites, also under the 'liability' provision. 

Section 4 of the consolidated draft discusses measures related to the Internet.

Point 3, of Section 4 discusses instances where the ISPs may be liable or

On page 28, sub-paragraph iii concerning limition of ISP liability. Paraphrasing quite a large chunk of legalese, ISPs may be considered not liable in the following circumstances:  

Option 1 [US

An online service provider adopting and reasonably implementing a policy to address the unauthorised storage or transmission of materials protected by copyright

This is referenced to Footnote 29

An example of such policy is providing for the termination in appropriate circumstances of subscriptions [US and] [AUS or} accounts on the service provider's system or network of repeat infringers]

On page 29, Option 2 EU . Paraphrasing, this appears to mean that the EU is asking for a provision which permits users to be cut off the Internet as a sanction for copyright infringement, as well as the blocking of websites as a second form of sanction.

Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring a service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information.

Mr Devigne and his colleagues at DG Trade should understand that  this is describing what the rest of the world understands to be a 3-strikes regime. 

Michael Geist has some more initial points regarding border searches.

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) ACTA: EU wants  to cut off infringers in new leaked draft   

http://www.iptegrity.com 24 March  2010