The Internet continues to grow and innovate at a furious pace, changing virtually every facet of modern life – communication and commerce, politics and government, news and entertainment. Much of this growth is driven by the widespread availability of, and appetite for, books, music, films, and television shows – a vibrant creative marketplace that depends on strong copyright protections. Indeed, according to Sandvine, “Real-Time Entertainment (streaming video and audio) traffic now accounts for over 70 percent of North American downstream traffic in the peak evening hours on fixed access networks. Five years ago it accounted for less than 35 percent.”

But in a recent Huffington Post op-ed, Josh Lamel, executive director of anti-copyright coalition Re:Create paints a bleak picture. “The implementation of excessive and over-broad intellectual property protection measures would strangle the freedom and innovation essential to growth of the Internet,” he asserts. Specifically, Lamel warns against the adoption of “notice and staydown,” which would require Internet intermediaries to remove similar instances of illegally posted content after being notified once. 

{mosads}The current system, known as “notice and takedown,” was codified in the Digital Millennium Copyright Act in 1998. It was intended to strike a balance between rights holders trying to protect their content and legitimate websites, but instead requires rights holders to play an endless game of whack-a-mole as stolen content is reposted online almost immediately after it is taken down. Lamel refers to the eighteen year old notice and takedown system as a “bedrock principle of American jurisprudence,” (language usually reserved for the Bill of Rights, but no matter.) The system predictably has its critics. 

A 2013 policy brief by Professor Bruce Boyden highlights the problem, noting that in the six months ending in August of 2013, the six major Hollywood studios collectively sent 25,235,151 takedown notices. 

That’s over 25 million notices by six companies…. In just six months.

And these weren’t close calls. Only eight counter-notices were filed (0.000000317 percent) claiming the content was wrongly removed. And, incredibly, Google alone received, 71,466,066 takedown requests from rights holders in January of 2016. 

Further, while large entertainment companies at least have the scale, resources and sophistication to attempt to protect their content, smaller firms and individual creators do not. For instance, this video of Congressional testimony by Grammy Award winning composer Maria Schneider describes the barriers she faces to protecting her work online, which diminishes her time and incentive to create. 

Lamel is half right:  somebody’s “freedom and innovation” is clearly being strangled; he just confuses the victim for the perpetrator. 

To address rampant online theft, creators have been pursuing voluntary initiatives with good faith actors in the Internet ecosystem. For example, rights holders and the five largest ISPs created the Copyright Alert System to educate consumers about infringing behavior and inform them about legal alternatives. And the advertising industry recently launched the Trustworthy Accountability Group to limit ads from legitimate brands appearing on websites dedicated to stolen content, thereby taking some of the profit out of piracy and protecting the valuable reputations of legitimate companies. 

Presumably, like the ISP and advertising industries, Internet intermediaries could work with rights holders to implement a more effective system to limit illegal online content, but they appear to have no desire to do so. Instead, anytime an aggrieved party calls for higher standards of conduct online, they trot out lobbyists who issue breathless warnings that the innovation that is “essential to [the] growth of the Internet” is imperiled. 

The question is: do Silicon Valley entrepreneurs even believe their own lobbyists? Are IP protections truly the bogeyman of growth online? 

Not according to a recent ICANN commissioned report by the Boston Consulting Group analyzing barriers to the growth of the Internet economy. BCG concludes that the largest obstacle to growth, by far, is the lack of adequate broadband infrastructure. And the biggest concern for small and medium size enterprises (SME) looking to participate in the online economy is data security and privacy. Further, the report also notes that another major concern for SMEs is “reliability of intellectual property rights online.” 

Additionally, a recent Guardian article discussing venture capitalist sentiments that Silicon Valley could soon experience another course correction is illuminating. They’re not concerned about new IP laws. Rather, they fear that once high-flying startups won’t be able to justify now dubious seeming valuations. “Things have been frothy, and you see a lot of dumb money. The music’s going to stop and not a lot of people will have a chair” says French venture capitalist Philippe Suchet as he observes the founder of meal-replacement company Ample hand out samples. The label reads “Formula version 1.3 better because science.” Suchet watches another would-be disruptor of the burial services industry pitching his company, Halolife, state “It’s a $20bn industry. Everyone dies.” 


It’s plain that intellectual property protections don’t threaten the growth of the Internet. In fact, it’s their absence that concerns entrepreneurs looking to contribute to the online economy. And Silicon Valley moguls seem to be more concerned with a lack of broadband infrastructure, shady ideas, and investor over-exuberance. 

It’s time for responsible actors in the Internet ecosystem to join many of their peers by taking voluntary steps to curb rampant online theft. If not, Congress should act.

Schneider is the executive director of the American Conservative Union.


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