Internet Copyright Infringement Issues Remain Vexatious But Some Consensus on Solutions Emerging

AT&T participated in the development of the new Copyright Alert System (CAS) in the U.S., said Jeff Brueggeman, vice president-public policy and deputy chief privacy officer. It involves contracts between some content providers and ISPs under which ISPs will obtain notices of suspected infringements from the content providers and in turn will send them to subscribers. AT&T views the program as educational, because pilots showed that a high percentage of customers quit illegally downloading when they received notices, he said. Intermediaries don’t want to be in the position of deciding who’s infringing, but being part of the process of the alert system could avoid the need for government involvement, he said.

Vivendi straddles the content and ISP sectors, said Senior Vice President-Public and European Affairs Sylvie Forbin. It’s subject to various EU laws and Hadopi, the independent body that administers France’s “three-strikes” graduated response system. Hadopi is now being re-evaluated, she said. One idea is to maintain the business-to-consumer system but to try to focus on making end-users more aware of infringement issues and begin imposing fines, she said. It’s not clear if France will stick with Hadopi in its current form, she said. “We're not now where we were 10 years ago."

Asked whether private copyright enforcement is more efficient than public, Carl Schonander, a member of the U.S. delegation to the World Intellectual Property Organization Standing Committee on Copyright and Related Rights, said the U.S. doesn’t see any contradiction between the two approaches. Rather, it backs a combination of legislation, traditional law enforcement and voluntary best practices, such as the new Center for Copyright Information (CCI), he said. CCI administers CAS. There’s not enough data available yet to tell which route is better, he said: It’s likely a combination of activities will be needed.

There’s a tendency in the online environment to move toward industry self-regulatory solutions, said AccessNow Senior Policy Analyst Raegan MacDonald. But “self-regulatory” is a misnomer, she said. It’s supposed to involve a problem, like spam, which affects industry and which industry sorts out, she said. But the content sector wants intermediaries such as ISPs to take care of its interests, when policing for piracy isn’t an interest for ISPs, she said.

Graduated response mechanisms can affect Internet architecture and online free expression, said World Wide Web Consortium Policy Counsel Wendy Seltzer, who’s also part of online rights organization Chilling Effects Clearinghouse. Building in copyright enforcement though deep-packet inspection or monitoring at the ISP level can make the Internet less amenable to such things as scientific experimentation, such as when students are required to seek approval from some higher authority to access websites with copyright controls, she said. And while infringement is unlawful, many things that might annoy copyright owners, such as speech that causes commercial harm, or is critical or political, are not, she said. The clearinghouse sees many examples of incorrectly targeted copyright notices, she said. She cited the recent brouhaha over a NASCAR accident, where a fan video posted to YouTube was taken down after NASCAR claimed copyright violations. The video may, as NASCAR said, have upset the families of those injured, but it wasn’t a copyright abuse, she said. Seltzer worried that private ordering of copyright takedowns is less transparent than those handled through the judicial process.

Google believes transparency is the way forward, said Marco Pancini, from the search engine’s Brussels policy team. Copyright enforcement should be viewed less dogmatically, he said. On Tuesday, the music industry said revenue is up for the first time in years, and that trend is showing up in the publishing, game and video sectors, he said. That doesn’t mean piracy isn’t an issue, but the question is how to tackle it in a way that’s effective but that also respects fundamental rights, he said. EU Internal Market and Services Commissioner Michel Barnier has said now isn’t the time for new enforcement measures, but rather to stop the online payments and advertising fees that are fueling infringement, Pancini said.

Panelists said any antipiracy solutions must be based on input from all interested parties. The new U.S. system, although negotiated by content owners and ISPs, has a multistakeholder advisory board, AT&T’s Brueggeman said. That offers some public accountability for the program, which could be a model for standardizing and creating some structure around these issues, he said. The CCI is more inclusive and multistakeholder, but the issue is what private companies can do at will, AccessNow’s MacDonald said. AT&T will block users who receive a certain number of copyright notices until they take an educational course. Verizon will slow connection speeds. To connect Internet access to alleged infringement is troubling, she said.

Meanwhile, a report published Tuesday by Hadopi on the fight against streaming and direct download sites “advocates for the establishment of measures bearing a close resemblance” to those of the Anti-Counterfeiting Trade Agreement (ACTA) and the rejected U.S. Stop Online Piracy Act (SOPA), French citizens’ advocacy group La Quadrature du Net said Wednesday. The administration wants to broaden its control to Internet intermediaries such as hosting services, search engines, ISPs or online payment services, it said. Doing so could only lead to active monitoring of content shared on the Internet, with “unavoidable collateral damage to freedom of expression, the protection of privacy and the right to a fair trial.”

The best way to counter for-profit copyright infringement is to legalize non-market sharing between individuals within a clearly defined scope, to promote decentralized peer-to-peer sharing at the expense of commercial, centralized streaming or direct download platforms, La Quadrature said. The French government would be foolish to ignore that ACTA was rejected by the European Parliament and SOPA ailed in the U.S. Congress, it said. Citizens are capable of mobilizing when an unfair and disproportionate approach to copyright threatens their freedoms, it said.