Congress looms large in piracy battle

The content and tech industries are coming to the table to try and solve the problem of online piracy.

As tech companies and copyright holders hash it out over how to curb repeated online piracy in an administration-facilitated process, Congress looms large in the background, threatening to step in if the stakeholders can't come to an agreement.

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On Thursday, representatives from those industries and advocates will meet for the first time in a set of discussions being facilitated by the Department of Commerce’s Patent and Trademark Office and National Telecommunications Information Administration (NTIA).

The talks are aimed at improving the current “notice-and-takedown” system under copyright law, which allows copyright holders to push Internet platforms such as Google or WordPress to take down infringing content.

The content industry says the current system, the Digital Millennium Copyright Act DMCA), creates a “Whac-A-Mole” problem for copyright holders, who have to repeatedly request that different iterations of the same infringing material be taken down.

On the other hand, tech companies say they spend the time and money to sift through millions of takedown notices to prevent themselves from having to censor online speech.

The Commerce Department process comes after Congress’s failed attempt to legislate in this area with the Stop Online Piracy Act (SOPA) and its Senate companion bill two years ago.

The process is being closely watched by members of Congress, many of whom say they would prefer a voluntary agreement but are ready to act if one can’t be reached.

Rep. Judy Chu (D-Calif.) said she is “encouraged” by the process and hopes it can lead to protections against online piracy for creators.

“Voluntary agreements are one of the strongest vehicles we have to effect real change in reducing digital theft,” she said in a statement.

“The fact is, ‘take down’ should mean ‘stay down.’ But right now, the creative community — particularly smaller, individual artists — is being forced to fight for the copyright protections that are rightfully theirs.”

Rep. Jerrold Nadler (D-N.Y.) told The Hill that he will be “watching to see what happens” in the Commerce Department process.

“Pressure is building, and I think that it’s clear there needs to be some changes,” he said.

Nadler is the new ranking member of the House Judiciary subcommittee on Intellectual Property, which held a hearing last week about the notice-and-takedown system as part of the committee’s sweeping review of copyright law.

If the stakeholders can’t reach an agreement on best practices through the Department of Commerce process, Congress can act, he said.

“You can amend the statute, in what way, we’re just beginning to explore,” he said, but “it’s better if they came to an agreement.”

Mitch Glazier, senior executive vice president of the Recording Industry Association of America, said he is glad the process is happening with a watchful Congress nearby.

“I think it’s good that Congress is in the background pushing both parties” to be reasonable, he said, but the RIAA is “certainly not going into these negotiations threatening a Congressional campaign.”

Instead of threatening legislation, Glazier said his group will ask other stakeholders in the room to consider technical changes and additions to the current notice-and-takedown system, including standardizing the ways rights holders submit takedown requests.

When it comes to search engines, Glazier said he hopes those companies will promote websites that host legitimate content by informing users if they that are about to visit websites that receive numerous takedown requests, and continuing to change their search algorithms to downgrade those sites. 

“We’re hoping that service providers and especially search engines will help to educate consumers,” he said.

Glazier said he hopes the process includes search engines because many websites containing infringing content are based outside of the U.S. and are not subject to the country’s copyright laws.

“The real bad guys are out of the reach of the DMCA,” but Internet users find them using search engines, he said.

While there are certain technological solutions he would like to see, such as a way to prevent removed infringing content from being uploaded again, Glazier said he anticipates that stakeholders will focus on the solutions that are more widely supported. 

“I think we’re more inclined to push for the practical,” he said.

Glazier pointed to the Copyright Alert System, a voluntary agreement between content groups and Internet providers that launched last year. Through that agreement, Internet providers notify subscribers when their accounts access content identified as infringing by the copyright holders.

That process “took a long time to get and we had to go inch by inch,” Glazier said.

Through cooperation, “we’re able to continually make more progress,” he added.

But some think a long wish list from the creative community could mean a dead end for the stakeholder process.

“We don’t yet know whether the various stakeholders will be willing to commit to cutting through the rhetoric and moving toward practical solutions that work for everyone,” said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation.

McSherry commended the Commerce Department for trying to bring everyone to the table, but warned that a single-minded focus on certain solutions could prove unproductive.

“If the conversation revolves entirely around the SOPA-like notion of ‘notice and stay down’ and universal copyright filters ... than I fear this will not be a productive conversation, particularly for users,” she said.

Matt Schruers, vice president of law and policy at the Computer and Communications Industry Association, also hopes that the process can be focused on improving the notice and takedown system under current copyright law.

“The online infringement is a problem and the DMCA is intended to solve it,” he said. Schruers’s group includes Google, Microsoft and Yahoo.

“This can be an effective forum for the issue it’s focused on,” he added, warning that companies could be hesitant to participate if it seems like the conversations will focus on other topics.

“If we don’t get the right operational people showing up, including from the sending side, then it’s not going to be very successful,” he said.

Part of improving the current system includes improving the system for the tech companies that handle the takedown requests, Schruers said. 

He pointed to problematic takedown requests, such as incomplete and mistaken requests or those sent in bad faith, as a drain on tech companies.

“A small number of bad actors end up consuming a lot of the resources,” he said.

Ultimately, the content industry should be focusing on providing more options if it wants to curb online piracy, Schruers said.

“We need to figure out additional ways to get the content that people want to them online,” he said. “Perfect enforcement, if the consumer options aren’t there, isn’t going work.”