by Nathan Douglas
The Internet has become an open gateway for downloading copyrighted materials. Recent legislation intensified the debate.
More than a decade ago, a trend began that nearly collapsed the entire recording industry. In 1999, a website called Napster pioneered peer-to-peer file sharing, which allowed users to share music files anonymously via the web. Users (peers) would connect computers and exchange music files from computer to computer. Napster was eventually shut down for copyright infringement, but the concept persisted and other sites changed the way peers connected to stay one step ahead of copyright laws. This eventually gave way to today’s bittorrent software, which connects peers globally and allows them to exchange tiny bits of files instead of
whole music, movies, video games or other forms of copyrighted intellectual property anonymously and for free. The bittorent sites are based out of countries like Sweden and Montenegro that have lax copyright laws and are currently the bane of content creators in the United States.
January witnessed the indefinite shelving of two contentious pieces of legislation known as the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT Intellectual Property Act (PIPA), each crafted to combat online piracy of copyrighted materials. Due in part to public outcry and a concerted blackout of popular Internet sites like Wikipedia, Reddit, Google and thousands of smaller sites, Congress was forced to indefinitely postpone
To explain how the issue developed, Peter Swire, C. William O’Neill Professor in Law and Judicial Administration at OSU Moritz College of Law and chief counselor for privacy to the Clinton Administration, explains: “The content industry and the copyright owners were there first, and they put together a very strong political coalition that said we have to take action against piracy. They had both Democrats and Republicans, and they had both the House and the Senate, and they were moving forward saying they were against piracy.” The recording and film industries argued that Internet service providers should block access to foreign infringing sites, so-called rogue sites, which are the facilitators of online piracy. Peer-to-peer file sharing of movies and music has taken a toll on the industries’ bottom lines over the last decade, and the industries are targeting their efforts at the worst offenders.
User-generated content sites like Wikipedia, Reddit and YouTube then countered that the legislation’s language was too vague as to what exactly was meant by facilitating infringement. They
were soon joined by online giants Google (which owns YouTube) and Facebook, among many others. These sites felt their entire business models were under threat, and the burden of
policing infringers was too onerous and the consequences of not doing so soon enough were too severe. The anti-SOPA
and PIPA contingent took to the court of public opinion in a campaign that marketed the legislation as stifling free
speech and ending the Internet as users now know it. Swire says, “In the fall of 2011 there was enough developing opposition that they were able to slow the markup of the bill in Congress. Congress
said it was going to wait and talk about it some more in 2012.”
Powerful lobbies on both sides of the debate attempted to influence Congress in their favor. Industry groups like the Recording Industry Association of America and the Motion Picture Association of America representing artists losing their copyrighted materials to
foreign infringing sites, and sites like Google, spent nearly $105 million lobbying Congress in the fourth quarter of 2011, according to the Center for Responsive Politics. As Swire says:
When there is heavy-duty lobbying it tends to be extremely
difficult to pass something in Congress. We can’t pass basic
“run the government” bills in Congress right now, and passing
something against the determined opposition of major industry groups and major parts of public opinion is really difficult. That is really the sign of success for the opponents that they have been able to mobilize public opinion over the last few months so effectively.
What is actually in the bills that Web giants like Google, YouTube and Wikipedia find threatening? Swire says that the bills “wouldn’t end the Internet as we know it,” but that “there are some significant problems with what’s known as DNSSEC, Domain Name Systems Security.”
This is the technical system that allows us to have a unified Internet around the world. The bills propose some major changes to this system. According to Swire:
The registries that serve the key parts of the Domain Name
System have a very complicated cryptography regime to
make sure that changes are only coming from authorized
sources, and when one gets updated they have a very strong
scheme of authentication to make sure that it’s not some fake site that’s spoofing it. This is what is called DNSSEC. When you start having lawsuits from the Justice Department, the problem is that they’re not part of that DNSSEC system, and each judge would be basically an unknown possible hacker into the security of the Domain Name System. When you get a judicial order, it’s not
a question whether the judge has legal authority; it’s a technical
question whether the registry can trust that it’s really a judge instead of a hacker.
Web giants like Google and Wikipedia may have sold the public on the bills being about freedom of information and democratic ideals, and that is at least somewhat true, but Swire sees the main problem with the bills as a technical issue. Domain Name System Security
may not have received as much attention as censorship, “But if you’re trying to motivate 20-year-olds to sign petition drives, you get the choice of ‘keep the Internet free’ or ‘we need an upgraded
DNSSEC cryptographic protocol for judicial orders.’ I think the marketing people are going to go with ‘let’s keep the
Internet free,’” says Swire. Web corporations, however, are only partly motivated by freedom of information and censorship. Their motivations are most likely financial as well, and the SOPA and
PIPA bills would have made changes to Title 17 of the U.S. Code that would have had a resounding financial impact.
The Digital Millennium Copyright Act (DMCA) of 1998 amended Title 17 to make up for its limitations in the digital age. One aspect of the DMCA is the Notice and Takedown provision. Under current law, this gives Internet users their first round of copyright liability. Swire explains: “When you, yourself, put up an infringing set of materials on your own personal website, and the copyright owners can come after you and say, ‘Take that down. If you don’t take it down immediately we are going to sue you for infringement,’ that’s just copyright violation.” There is no financial burden on the Internet provider at this point, but there is then a second round of liability
for Internet users. Swire explains: “You’ve posted a video on YouTube, for example, and it’s a direct infringement of a recent movie. YouTube didn’t know you were doing that, so when YouTube
gets a takedown notice under current law, YouTube is then supposed to take itdown or give an answer about why they think it’s not infringement. That’s current law.” This is where the major problem arises for websites in the United States. The legislation would have added a third round of liability that would have had a major financial impact on the usergenerated content site’s business model. Swire explains:
SOPA and PIPA go in the direction of whether YouTube
was facilitating, I think that’s the key word, that it’s facilitating
copyright infringement. The problem for YouTube is that can put their entire business model on trial, and then they get their entire site shut down if there’s enforcement against them. The problem is
that it’s incredibly vague what will count as facilitating copyright
infringement. That means that also the technology and platform providers would now be at risk for somebody deciding they’re facilitating infringement, and that’s why you’re seeing that side of the industry saying they can’t live with the bill.
If a content creator felt that a website had infringed on its copyright, the content creator could go to the U.S. Department of Justice (DOJ) with the complaint, which would then go to the site with a takedown notice. If the site did not comply in a timely fashion, the
DOJ could order Internet providers to block search queries for that website by going in through the Domain Name System. The SOPA and PIPA legislation, however, lacked clear language as to what qualified as facilitating infringement and also lacked provisions
for frivolous complaints. Under the bills’ Immunity Provisions, Internet providers or complainants would not have been liable for revenues lost due to a website being blocked through the DNS by judicial order. Websites that are reliant on heavy traffic for ad revenues are rightly concerned that rival sites could file frivolous complaints to the detriment of their bottom line, without fear of recourse.
Web giants and rogue sites alike are reliant on advertising revenue, however. The problem with catching rogue sites is that they are not on copyright holders’ radars. The burden of monitoring for infringing content falls on Internet sites’ staffs or copyright holders’ themselves. Swire refers to this problem as
that of elephants and mice.
The elephants are very big, and it is very hard to hide an elephant, but they have thick skin so it’s very hard to hurt them. On the other hand, mice hide away and they breed really fast. So for the elephants, the big sites like Facebook and YouTube, they can’t hide. They are going to have to deal with the big legal rules,
so self-regulation is more likely to work for them because all the content owners are going to be aiming for them and monitoring their content. On the other hand, if you have a rogue site based in Montenegro, they are not going to play the self-regulation game. They’re not in the United States, and they don’t have any assets to grab in the United States, so the rogue sites overseas won’t play along with self-regulation.
Content creators are rightly angered that their copyrighted materials are available for instant download all over the Internet. Though the bills may be targeted at foreign infringing sites, the
implications are that domestic sites would be affected due to their size and prominence. Most foreign bittorent sites are very small and new ones would pop up in their place if they were blocked anyway. Blocking foreign sites in the United States raises another issue that
should be of no small concern for U.S. citizens. According to Swire, “The advantage of having a technical based way of administering the Domain Name System is that we put a real check on the ability of dictatorships in other countries to try to use this tool [of blocking websites] much more broadly. We are setting a bad example and it
makes it harder to stand up for Internet freedoms in these other settings.”
Some simple solutions
The key, thus far, to combating piracy is what is known as the iTunes model. With this model, users pay for digital downloads either by the whole album or by single songs. The advantage is that
the digital version is considerably cheaper than the physical version. For example, if a physical copy of an album costs $25 at a record store, it can be purchased online for usually half that price or less, and single songs can be bought for 99 cents or less. Content owners get paid for their copyrighted materials, and users have the satisfaction of not having broken any laws to hear their favorite songs.
It is not just music that is sold in the iTunes model, either. Movies, television shows, games, books and even scholarly materials ranging from kindergarten to university levels in all subjects are available for purchase and use on computers and mobile devices. Swire says that “Many people use iTunes, and SOPA and PIPA will push more rogue site users into the iTunes model.” The bills, though, failed, and many content owners will be seeking more solutions to their intellectual property issues.
Therein lie the major concerns with the SOPA and PIPA legislation, and why they were shelved indefinitely until a bill can be crafted that addresses these shortcomings: serious threats to the Domain Name System that functions as the Internet’s address book, the vague language in the bill as to what facilitating infringement means, and the financial implications for domestic websites. Until revisions to the most controversial of the bill’s provisions can be hammered out or the alternative Online Protection and Enforcement of Digital Trade Act (OPEN Act) can garner public and congressional support, watch for continued debate on the legal implications of online piracy of intellectual property. Whatever the outcome, copyright and intellectual property attorneys can look forward to many more years of fruitful work.
Nathan Douglas is a senior at The Ohio State University majoring in English with a minor in professional writing. He was an intern for the OSBA Publications Department during the winter quarter and will be going to law school in the fall (still undecided).