Doing nothing is not an option to stop on-line piracy

With the ability to make perfect digital copies of movies, books, music and software at zero cost, trying to stem the tide of on-line piracy is an uphill battle.  The current mechanism under U.S. law to deal with on-line piracy are the “notice and takedown” provisions of the Digital Millennium Copyright Act or “DMCA.”  The process envisioned by the DMCA is supposed to be simple and straightforward:  if a copyright holder finds that an on-line service (e.g., a search engine or YouTube) is providing access to illegal content, then the rights-holder shall “notify” the service who is supposed to promptly “take down” the content.

Unfortunately, life is not that simple.

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As an initial matter, given the sheer volume of illegal material on the Internet, the DMCA provides but a small band-aid on a gaping wound.  To give you an idea of the scale of the problem, consider these data:  in the six month period from March to August 2013, the Motion Picture Association of America’s six member studios sent 13.2 million takedown requests to remove infringing files from non-user generated content web sites (such as cyberlockers) and 12 million requests to remove links to infringing content available on sites from search results.  That’s over 25 million takedown notices…. from six companies…. in six months. Additionally, in January of 2013, Google received its 100 millionth music piracy notice from the recording industry.

But there is more: given the highly lucrative business models of many search engines and file-sharing sites (that is, in exchange for “free” access they collect personal data for advertising purposes), these firms have little incentive to cooperate enthusiastically with DMCA takedown requests.  By way of example, I commend your attention to the testimony of Grammy Award-winning artist Maria Schneider before the House Judiciary Committee last week (available here).  As Ms. Schneider demonstrated to the Committee, while it is relatively easy to upload illegal content to file-sharing sites, getting them to remove illegal content is complicated.  Not only must the artist typically jump through an array of hoops but, for example, when YouTube does take down illegal content, it leaves an avatar of a frowny-face along with an apology for the takedown.  And if this passive-aggressive compliance with the DMCA is not bad enough, YouTube goes so far as to name the rights-holder who requested the takedown, portraying them as the bad guy (and no doubt inviting assorted kooks to send the artist hate-mail and nasty tweets.)

So what can we do to improve the current DMCA process?

The first option is to do a legislative fix.  However, given growing political clout of web-services that profit from illegal content, coupled with the poor way the Stop Online Piracy Act (“SOPA”) debate was handled a few years back, politicians are a bit reticent to go back to that well at the moment.

The second option is to formulate private agreements between the relevant stakeholders—after all, a market-based solution is always better than government intervention.  To the Obama administration’s credit, last week the United States Patent and Trademark Office (“USPTO”) facilitated its first “multi-stakeholder forum” to try to improve the DMCA’s notice and takedown provisions.  While these talks are only at an early stage, these stakeholder discussions are certainly a step in the right direction.

The last option, advocated by folks such as New America Foundation fellow Marvin Ammori, is to do nothing and revel in the status quo.  According to a recent piece in Slate magazine by Ammori, both a legislative and voluntary solutions are unacceptable because efforts to enforce copyright will inevitably “threaten free expression and innovation online for all of us, just to target a few infringers.”  Ammori’s predictions are, however, pure speculation.  More than that, free expression and innovation does not give one permission to step on someone else’s rights. 

Copyright is established in the U.S. Constitution on the theory that one obtains more goods and services when one pays for them.  Those opposed to copyright, on whatever grounds, surely bear a substantial burden in making their case.  That burden requires more than the bandying about of sweet words.  Indeed, the general principle that payment to producers encourages production, so far as I know, is not under attack in any venue except copyright.

Given the evidence, doing nothing about on-line piracy is not a viable policy option.  If voluntary agreements fail, then Congress must act.

Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.

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