Abstract: With the recent release of the Trans Pacific Partnership (TPP) intellectual property chapters, jurists and pundits have quickly begun to comb through the
language and pick apart the intriguing and possibly soon-to-be influential document. While many have focused on this document’s proposed changes to the way copyright holders and infringers interact with their governments, each other, and each other’s governments, it is very important to stop and try to understand the changes that are more ground level. More specifically, it is worthwhile to take a close look at the proposed changes in how copyright holders and infringers interact with Internet Service Providers (ISPs), as this interaction and the legal responsibilities ISPs have during this interaction will mostly define how the average citizen in TPP member states will experience the effects of the document.
Thankfully, ISP responsibilities regarding IP infringement does not seem to span many chapters, but rather are contained to their own sections labeled quite clearly. The system envisioned by the TPP is one of notice and counter-notice, where the ultimate end for an ISP is to gain limitations on liability (monetary or otherwise) as well as other non-defined incentives. The treaty notably states that not qualifying for liability limitation under the TPP does not per se mean they are in a liable position. It points out that the TPP section in question is “without prejudice” to any current limitations in liability for intellectual property infringement, and thus does not displace those exemptions, but rather sit beside and provide other avenues to liability exemptions.