Remember ACTA, the draft proposed “harmonization” of copyright found on Wikileaks? In keeping with the view that harmonization is a one-way ratchet up, RIAA has some suggestions for the US Trade Representative.

J. Online Infringing Activities

Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
3. Provide remedies and injunctive relief against any entity that:
(a) Creates or otherwise maintains directories of infringing materials;
(b) Provides “deeplinks” to infringing files;
(c) Commits any act, practice or service that has little or no purpose or effect other than to facilitate infringement, or that intentionally induces others to infringe (specifically allowing proof of “intent” by reference to objective standards–i.e. a reasonable person would surmise such an intent);
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.
6. Establish liability against internet service providers who, upon receiving notices of infringement from content provides via e­mail, or by telephone in cases of pre-release materials or in other exigent circumstances, fail to remove the infringing content, or access to such content, in an expeditious manner, and in no case more than 24 hours; or
Provide that, in the absence of proof to the contrary, an internet service provider shall be considered as knowing that the content it stores is infringing or illegal, and thus subject to liability for copyright infringement, after receiving notification from the right holder or its representative, normally in writing, including by email or by telephone in the case of pre-release materials or in other exigent circumstances.
7. Establish, adequately fund and provide training for a computer crimes investigatory unit.
8. Provide injunctive relief against intermediaries whose services are used for infringing activities regardless of whether damages are available.
9. Establish policies against the use of government networks and computers, as well as those networks and computers of companies that have government contracts, to prevent the use of such computers and networks for the transmission of infringing materials, including a ban on the installation of p2p applications except, and to the extent to which, some particular government use requires such installation.
10. Consideration to be given to the following: possible rules on data retention, the right to information giving right holders access to data held by ISPs in the preparation and course of proceedings including in civil proceedings, and availability of complete and accurate WHOIS data

RIAA’s proposal is a compendium of everything they dislike about rulings that have gone against them: the lack of a “making available” right (Atlantic v. Howell); the requirement of knowledge before non-volitional actors such as ISPs can be held liable (RTC v. Netcom); the provisions of safe-harbor that let ISPs avoid liability (17 USC 512); the limitation of vicarious liability to situations where the proprietor has a right and ability to control; the possibility that non-infringing use could save a technology with infringing uses (Betamax); the status of hyperlinks (Perfect 10 v. Amazon).

Add in codification of stronger versions of rulings they like such as Grokster, and you’ve got a prescription for utterly insane copyright law! As the LA Times’ Jon Healy puts it, the RIAA’s ACTA would turn ISPs into enforcers, when they should be simple conduits.

Let’s hope enough ISPs, tech companies, public interest groups, libraries, educators, and friends can keep this RIAA wishlist from becoming our nightmare. We should start a corresponding wish-list, extravagant but alternate-universe plausible, would include on the other side. I’d start with: