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Online Piracy and Protection Efforts

​EARLIER THIS YEAR, a pair of congressional bills concerning the issues of Internet piracy and intellectual property protection appeared highly supported and likely to pass Congress. After intensive lobbying and protests by those opposed to them, however, the proposals lost support and died.

The bills, the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate, were supported by trade groups representing content industries such as those involved in motion pictures and music production and distribution. Their objective was to stop online piracy of their intellectual property and content products.

Opposing the legislation were many new media companies and Internet firms that make their money from the free flow of information. Civil libertarians also opposed the bills, saying that they granted government agencies excessive power. The legislation would have allowed law enforcement to shut down entire Internet domains that posted copyrighted content on individual sites or pages, for example, and could have badly threatened freedom of expression and innovation online. Those opposing the bills organized an Internet protest on one day in January during which the English version of the site Wikipedia and about 7,000 other Web sites fully or partially shut down their services to show their solidarity with the bills’ critics.

While those bills were stopped, content owners are pursuing other options, including an international treaty and a private outreach initiative involving Internet service providers (ISPs). Here’s a look at the progress on those fronts.

The Anti-Counterfeiting Trade Agreement (ACTA) was signed in October 2011 by the United States and seven other nations, including Japan, South Korea, and Australia. More recently, it was signed by 20 nations in the European Union (EU).

The objective is to establish international standards for intellectual property enforcement. To that end, ACTA would create a new global framework for targeting counterfeit goods, online copyright infringement, and other IP violations outside existing forums such as the World Trade Organization and the United Nations.

The treaty will officially go into effect when it has been signed and ratified by at least six nations. It will then go into effect for those six nations that have ratified it. Whether the treaty has been officially ratified in the United States seems to be the subject of controversy. The Obama Administration has said that the treaty requires no ratification. The administration has labeled ACTA an “executive agreement,” which, unlike traditional international treaties, does not require Senate ratification. But some members of Congress and scholars disagree.

Opponents of ACTA say that it could adversely affect fundamental rights including freedom of expression and privacy, and also that the treaty is too punitive and would be too expensive for some nations to fully implement. Another major complaint about the treaty is that it was crafted in excessive secrecy in a process that did not let civil liberty groups, developing countries, and the public provide sufficient input.

Others see ACTA as excessively based on the United States’ needs. “In a lot of ways ACTA is sort of the U.S. bullying other countries into agreeing to these initiatives,” says Maira Sutton, international outreach coordinator at the Electronic Frontier Foundation (EFF). Sutton adds that she considers lobbying groups, including the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), as very much behind the agreement. Lobbying organizations such as these “are the puppet masters of the [Office of the] U.S. trade representative,” she says.

Although numerous European nations have signed the treaty, protests have erupted in several European cities. That led the EU Parliament to reject ACTA this summer but Computerworld reported that EU may try to enact ACTA lite as a part of trade negotiations with Canada, which has signed ACTA. The European Commission also referred ACTA to the EU’s highest court, which will review it to see whether it violates any existing laws or treaties.

David Martin, the minister in the EU in charge of investigating and introducing ACTA to the EU Parliament, had come out officially against the treaty. “The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties,” wrote Martin. “Given the vagueness of certain aspects of the text and the uncertainty over its interpretation, the European Parliament cannot guarantee adequate protection for citizens’ rights in the future under ACTA.”

The minister’s announcement came only a few months after his predecessor, Kader Arif, resigned in protest over the prospect of ACTA’s passage. Arif cited threats to civil liberties from the treaty and also, in a statement, criticized the secrecy of the negotiations leading to the treaty.

“I condemn the whole process which led to the signature of this agreement: no consultation of the civil society, lack of transparency since the beginning of negotiations, [and] repeated delays of the signature of the text without any explanation given,” he said.

The EU is the world’s biggest economy, notes James Love, director of Knowledge Ecology International, a Washington-based nonprofit. So if the EU won’t approve ACTA, he says, “I’m not sure ACTA is going to succeed at a [truly international] level.”

Ad Hoc Cooperation
In the absence of an international treaty like ACTA, the United States is doing what it can to enforce copyrights. For example, it can work with international law enforcement agencies and get cooperative countries to shut down sites involved in egregious copyright violations. Earlier this year, the FBI, along with law enforcement from countries including New Zealand, the United Kingdom, and the Netherlands, conducted raids, shut down servers, and arrested some of the top executives of the file-sharing site Megaupload. The individuals and Megaupload were indicted by a grand jury in the Eastern District of Virginia and charged with running an international enterprise responsible for racketeering and copyright infringement, allegedly causing more than half a billion dollars in lost income to copyright owners.

Shutting down servers is one of the most effective ways to fight copyright violations, says David Sohn, general counsel at the Center for Democracy and Technology and director of its Project on Copyright and Technology. SOPA aimed partly at shuttering Internet domains, but taking down servers is more akin to combatting the violations “at their source,” he says. Internet domains generally refer to an entire Web address and can include numerous servers, computers, and other systems.

Others aren’t supportive of such proactive international law enforcement. Such actions represent a “horrifying precedent,” wrote the EFF. “If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?”

A major objection is the lack of due process. Such shutdowns, by going around the traditional legal process, represent a major threat to freedom of expression and innovation, Sohn says. It can be a bad precedent to shut down servers and make arrests without giving people “their day in court.”

Another issue that has arisen is what happens to the legitimate material and files that are stored on the company’s servers if they get shut down. “Some users have lawful information that their government
has seized,” Sohn says.

Another effort to combat Internet piracy is set to launch later in 2012. The Copyright Alert System (CAS), heavily supported by trade groups representing the music and film industry stakeholders, and involving many of the nation’s largest ISPs, will be designed to educate and alert users when they may be committing piracy or copyright infringement.

Under the system, content owners, represented by groups such as the MPAA and the RIAA, will notify participating ISPs when they believe their copyrights are being misused by a specific computer, which can be identified by its Internet Protocol (IP) address. The ISP will then identify the account held by that IP address and notify the end users that they may have been involved in illegal file sharing. The alert might also include information about how to find content legally, according to the CAS Web site. Users who receive multiple warnings may also be directed to a page that requires them to contact the ISP before they can access additional Web sites from that ISP, according to the CAS site. The CAS is being developed by a nonprofit called the Center for Copyright Information, created by the film, music, and television industries in conjunction with ISPs.

The effort is not intended to focus on punitive enforcement actions, according to the CAS site. The CAS says that while “subscribers who receive multiple alerts may ultimately warrant a mitigation measure, we expect those measures to be rare.” Instead, the alerts will be mainly educational in focus. The CAS will also provide end users with an opportunity to appeal any alerts to an independent arbitrator selected by the American Arbitration Association.

One question is how cooperative ISPs will be with this effort, given their focus on increasing their customer base and providing decent customer service, says Sutton. Many ISPs would not want to interrupt or even halt a customer’s access to the Internet, particularly in parts of the United States, such as the Midwest, where there may only be one Internet provider for an area. They might face legal opposition in addition to customer service issues. That may explain the CAS focus on education, rather than punitive measures.

Sutton says she thinks part of the reason for CAS’s creation is an effort by associations and ISPs to avoid stricter, perhaps less favorable, legislation or regulations. But in some ways such an arrangement is less preferable, she says, as it could avoid more traditional legal or judicial oversight. “It’s sort of worse, as they’re taking the judicial process into their own hands,” she notes.
Privacy is also a potential issue with the CAS, says Sohn. The alerts would let users know that ISPs are able to track which Web sites they visit, which some customers may not entirely appreciate. The CAS, on its Web site, says it’s committed to end users’ privacy. “No personal information about subscribers will be provided to content owners by ISPs, without applicable legal process and subscribers’ express consent.”

Another challenge for the industries trying to protect their online intellectual property rights is that they don’t want to act in a way that will alienate their potential customer base—the public at large. “Our position on this is that attacking consumers and users is very counterproductive,” Sutton says.

Content companies and artists, thus, seek other ways to protect their intellectual property. One is by making content available legally in a usable and relatively affordable manner as has been done through Apple’s iTunes and Netflix.

“For a large percentage of the public [such sites] provide a perfectly acceptable option without the hassle and risks of going to shady Web sites,” says Sohn.

Sutton also supports the concept of such legal models for purchasing content at reasonable rates, which she says may be even more important than law enforcement efforts because it’s impossible for the government to find or get most of those who violate copyright on the Internet. “I think affordability is key to how much infringement there is,” she says.

Very few people will argue that artists and others who own the rights to content do not deserve to receive the financial benefits from their work, Sutton says. But other issues, such as rights of free expression and privacy and a desire to foster healthy innovation online, make finding the right way to protect content owners’ rights challenging. Still, the success of pay-for-content online services suggests that progress is being made.