According to the RIAA, MPAA, Directors Guild, Screen Actors Guild, and others, new IPEC Victoria Espinel should embark on nothing less than a quest to "push back the tide of copyright theft." But as anyone who has tried to hold back the tide can tell you, it's a tough job. Just ask Venice.
The groups talk a good game about "voluntary" network initiatives and "encouragement" of network admins and hosting providers. But they also demand a 120-day review to identify "any legislative, regulatory, or policy change needed to move more effectively against this menace to our economy, society, and culture."
Stopping the tide
The joint submission came yesterday, the last day to file comments with Espinel's office regarding the approach her work should take. As is Washington practice, everyone filed at the last moment to deny others from seeing (and responding to) their arguments.
The filing of the "creative community organizations" is surprising in that it really has a single focus: "online copyright theft." There's little apparent concern for anything else, showing just how seriously these industries take the problem of online infringement.
The language varies wildly between the apocalyptic ("menace to our economy, society, and culture") and the melodramatic ("The motion pictures, television programs, and music that our industries create are a representation to the world of our freedoms, our culture, and our diversity. They are woven into the fabric of our culture and are part of our national heritage. Generations of craftspeople, film and recording artists, and creators have learned from and build on the creativity of generations before them—and they have built industries that are like no others in the world.")
One of Espinel's key interests was in gathering good data on IP infringement and what it costs the US economy. She asked for metrics, methodologies, and rigorous research (many of these sorts of numbers are pretty transparently bogus). What she got from the core copyright industries was two pages that cited four reports, all done by the same guy at the same think tank. As for methodology, etc., Espinel can just go look it up "in the text of the cited report."
These are no doubt superb products of the researchers' art, but we were surprised to see so few studies mentioned (the MPAA's own commissioned and widely-touted study on college P2P downloading was notable by its absence, though for obvious reasons). Each industry gets one paragraph touting the horrors—$6.1 billion lost by the MPAA companies in 2005, $2.7 billion lost by the RIAA companies—and then it's on to what clearly matters: what to do about the problem.
Rightsholders have failed to convince most of the online players to participate in protecting their content in the ways they would like. The filing goes after everyone from hosting providers to search engines to ad networks to payment processors to domain name registrars, complaining that nearly all "turn a blind eye, or at best react passively and selectively to the problem" of online infringement.
It calls on Espinel to lean on such companies so that they "work with content owners on a voluntary basis." Nothing wrong with that—sites like YouTube are productively doing this sort of thing now, offering rightsholders pretty reasonable tools for blocking mass infringement of their works. (Rightsholders are also pressuring the FCC to push "voluntary cooperation" on the industry.)
One problem comes because the Digital Millennium Copyright Act make it sound as though Internet companies could become liable for infringement as soon as they begin proactively screening their content. This obviously discourages participation with rightsholders, and the filing suggests that the government clarify that such cooperation will not jeopardize safe harbor status.
Rightsholders also want the government to make sure that Internet companies really do terminate "repeat infringers," as required by the DMCA (which says nothing about how or when to do this).
But "voluntary" only goes so far, as shown by the basic failure of the RIAA's "graduated response" push in the US, and so rightsholders also want every federal agency dealing with IP to look at changing the law. Every agency should also come up with a list of proposed legislative, regulatory, and policy changes that would make it easier to crack down on online infringement.
Sharper solutions
Not surprisingly, the joint filing of consumer interest groups like the Electronic Frontier Foundation and Public Knowledge suggest a different approach. Trashing the "blunter solutions often recommended by the entertainment industry," these groups suggest that Espinel "might wish to consider whether facilitating legal access to content through mechanical licensing at reasonable rates would prove a better way to discourage infringement and benefit the industry as a whole."Does this actually fall within the purview of IPEC? Probably not, but such groups have long pushed for various blanket licensing schemes (voluntary or otherwise) that might harness and monetize things like P2P rather than go to war against it. The details of any such plan are complicated, but the copyright industries are not wholly opposed; see for example initiatives like Choruss, which is trying to bring voluntary blanket music licensing to college campuses.
In any event, the consumer groups have one key argument to make: "stronger" enforcement is not always "better" enforcement. A canonical example was the Sony BMG "rootkit" debacle of 2005, in which the music company tried to apply DRM to conventional CDs and created a legal and security nightmare for itself.
The filing suggests that instead of a "more is better" approach, Espinel use her coordinating role to focus on cost/benefit analyses of different enforcement types. The goal should be to focus on "violations likely to cause the greatest harm." Noting that copyright holders generally must police infringement privately, the filing encourages caution before spending too many public resources to protect private rights.
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