Earlier this century, the entertainment industry attempted to vanquish illegal downloading and the online services that made it possible. Remember the injunctions against Limewire and Napster? The astronomical RIAA (Recording Industry Association of America) lawsuits filed against more than 35,000 individuals who downloaded and shared a handful of copyrighted music files? The industry achieved mixed results: the RIAA decided to abandon its suits against individuals, but Limewire is still enjoined from distributing its peer-to-peer file sharing software. Napster abandoned its focus on downloading and switched to pay-to-play streaming, carving out modest success compared to similar services such as Hulu, Pandora, and Spotify.
Streaming has challenged downloading as the content consumption mode of choice, and entertainment lobbyists are scrambling to keep pace with the sea of change. The
media industry mainly takes issue with “rogue sites,” (which are often hosted outside of the U.S. and unresponsive to DMCA Takedown Notices), that provide access to streaming copies of infringed works. The industry’s latest failed effort, the PROTECT IP Act (PIPA), would have once again attacked the entire streaming ecosystem:
- suspected infringing sites;
- a broad array of online actors (ISPs, domain name registries, search engines, advertising and payment networks) that point Internet users in their direction;
- users who stream content from sites in question.
The bill was a bipartisan effort that resumed the aims of earlier bills that had stalled after opponents, including Sen. Rob Wyden (D-OR), denounced the bills’ potential to “muzzle free speech, stifle innovation, and economic growth.”
With regards to copyright infringement, Protect IP in its original embodiment would have provided that:
- Private IP rights holders or the U.S. Attorney General may take action against the registered owner and operators of a site “dedicated to theft of U.S. property,” pursuing a court-ordered preliminary injunction or temporary restraining order under FRCP 65.
- Within five days of getting notice of a court order, ISPs and search engines must take “technically feasible and reasonable measures” to block access to the site (including DNS blocking). Ad and payment networks would also be required to block financial transactions to and from the site.
- Online providers are granted immunity from suit if they voluntarily undertake measures to block offshore sites if they have a “reasonable belief” that the site’s main purpose is infringement.
- Anyone who willfully streams infringing content would be subject to criminal sanctions under 18 U.S.C. § 2319.
The DNS blocking measure was removed after public outcry, but the continuing existence of search blocking and other onerous provisions only sparked more outrage from a growing contingent of concerned Web denizens. Many acknowledged the need to protect valuable intellectual property, but took issue with the ham-fisted solutions put forth by PROTECT IP. The Electronic Frontier Foundation and other critics denounced the bills’ one-sided legislation process, as well as their broad remedies that would have enabled claimants to shut down sites without affording due process to opponents. Protests mounted, culminating on January 18 in a daylong Internet blackout by Reddit, Wikipedia, and more than 7,000 other information providers. Afterwards, one-time supporters of PROTECT IP announced a change of heart – including the bills’ co-sponsors, Sen. Marco Rubio and Rep. Ben Quayle. The protests staved off a preliminary Senate vote on PIPA that had been scheduled for January 24 of this year, and the bills have since been tabled.
Despite the faltering of PROTECT IP, there is no ebb in proposed measures to curb piracy. International debate is churning over a new measure, the Anti-Counterfeiting Trade Agreement (ACTA). The U.S. has already signed onto the treaty, and the treaty will take worldwide effect after six ACTA countries have ratified it. The main ambit of the bill is to bring other countries into alignment with strict anti-counterfeiting provisions already in place in the US and the UK. As secretive negotiations continue, however, potential persists for overbroad remedies and more draconian interpretations. Countries are allowed to construe treaty provisions in accordance with their current rules of law; less permissive countries, such as Morocco, would be expected to have harsher penalties for infringement. The ACTA is supposed to target “widespread [unlawful] distribution,” but this aim could fall prey to looser interpretations. Looser interpretations would, for example, punish hobby bloggers who make vaguely transformative uses of copywritten expressions (e.g.,LOLcats), or squash low-level file sharers who send a few file bits up into the cloud.
ACTA aside, current methods of IP enforcement have left their Internet imprint. Following the shutdown and indictment of Megaupload, other online file storage sites have curbed their services in fear of similar retribution. As a result, those who seek to reaffirm DMCA safe harbors, maintain the online status quo, or even push for additional freedoms, will need to remain vigilant for the foreseeable future.