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Further, ACTA's "Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment" section contains a Japanese proposal for ISPs to provide intellectual property holders expeditious access to subscriber information after giving "effective notification:" also not recognized under US due process and judicial oversight rules. Currently, American copyright holders must sue and get an enforcing court injunction.
In addition, "ACTA's civil enforcement chapter includes two" UK-type "loser-pays attorney fee awards" proposals, not commonly practiced in US civil litigation.
Resolving these differences is at issue. Another involves the following:
"ACTA requires countries to adopt laws prohibiting circumvention of copyright owners' technological protection measures modeled on the US Digital Millennium Copyright Act (DMCA)." Yet ACTA allows, seven exceptions, providing "a small measure of flexibility," letting countries create exceptions to what's banned.
Its provisions also differ from recent US Circuit court rulings, requiring a nexus between copyright infringement and TMPs' legal protection. As a result, they "would require signatories to adopt (broader) anti-circumvention prohibitions" than under US law. Similarly, they'd mandate countries "adopt third party liability, but several proposals only permit, (not require) countries to create limitations on the liability of Internet intermediaries," weaker measures than under US safe harbor provisions.
Further, ACTA would prevent Congress from enacting laws diverging from its provisions, including consumer-friendly ones. Instead, it "will create new international norms, beyond those agreed (to) in the 1994 Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaties Implementation Act," affecting the following areas:
-- holding Internet intermediaries liable for their subscribers' behavior, requiring they police, restrict, and impact their privacy, free expression, and "ability to create and collaborate;"
-- having ISPs impose "graduated response" or "three strikes" policies, requiring they disconnect subscribers Internet access for alleged copyright infringements; and
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