The latest wave of Big Content’s never-ending war on copyright infringement is the Stop Online Piracy / E PARASITE Act, which was introduced in the House two weeks ago. It incorporates key provisions of the Senate’s Protect IP Act as well as another Senate bill that makes unauthorized streaming a felony. But it also includes new provisions, that if passed, it will be the biggest overhaul of copyright law in at least a decade. Lets take a look at what’s at stake:
Does “Sites that have limited purpose other than the circumvention of copyright” cover all content streaming and distribution sites?
According to the bill’s definition, sites like YouTube infringe on someone-else’s copyrighted material, and it’s possible that the site could find itself virtually hidden from consumers.
- [A site that is] “…Primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” violations of the Copyright Act, Title I of the Digital Millennium Copyright Act, or anti-counterfeiting laws; or,
- [The site] “…Is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out the acts that constitute a violation” of those laws; or,
- [The site’s owner] “…Operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation” of those laws.
This language opens the door for Internet censorship, and if something like this passes you can expect new Web content to suffer and plenty of lawsuits to fight that. A number of recent popular innovations that come to mind are Singboard and Turntable.fm. And wouldn’t any site that hosts a great deal of user-generated content be in trouble? Tumblr, Twitter, and the entire sharing, re-posting, re-tweeting platform would be put on notice.
The Future Music Coalition has come out against the bill. “[The definitions] are seemingly broad and enough to include sites that have perfectly legitimate uses. For example: Some of us here at FMC are musicians and producers. We regularly use services like Dropbox, etc. to send files back-and-forth to collaborators. Under this bill, such services – and those yet to be invented – could be subject to blocking or other penalties.”
Guilty Until Proven Innocent
Copyright holders would merely have to allege a site is infringing on their property to shut down a business. If an Internet domain is suspected of infringing on another’s intellectual property, that Website is more or less ostracized from the Internet. Search engines are required to hide the accused sites. Hosts and payment services would be required to, more or less, blacklist a site once receiving a notice accusing it of stealing “U.S. property.” And then that site and its ad partners would be wiped out until it goes through the court system to establish its legitimacy, basically crippling their business.
The Great Overseas Traffic Migration = Less American Tech Jobs
Perhaps the most shocking element of E-PARASITE is that in order to punish pirating sites, the government would effectively be using a firewall to block them. This heavy-handed censorship is something web advocates have been lobbying against since the Web’s origins, and new light has been shed on the issue internationally within the last year. But it appears we’d be making an exception in this case, and under certain (vaguely defined) conditions, DNS blocking would be acceptable, which, in turn, would boost traffic for international search engines and sites, giving a lot of power to international markets. Innovators could find themselves taking their work outside America, further crippling our economy.
Big Content’s Attempt to Rewrite the DMCA
The RIAA’s litigation boss, Jennifer Pariser has recently claimed that the DMCA wording is great, but that the interpretation by the courts has just been dreadful – so Congress should clarify that and slap the judges down. As reported by Greg Sandoval at CNET:
“I think Congress got it right, but I think the courts are getting it wrong,” Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. “I think the courts are interpreting Congress’ statute in a manner that is entirely too restrictive of content owners’ rights and too open to [Internet] service providers.
“We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.”
The one part of the DMCA the RIAA fought the hardest was the service provider safe harbors. It’s just so much easier to make third party service providers liable. It’s easier to sue service providers rather than fans. What Pariser and the RIAA really mean when they mock judges for their rulings on the safe harbors is that they never liked the safe harbors in the first place, so the best way to get what they always wanted (i.e., no real safe harbors) is to pretend that it’s all a big “misinterpretation” that needs clarification from Congress. We believe that based on the share culture that is now predominant across the internet, the only logical way to police infringement with out stifling the beneficial spread of content is to keep the onus of enforcement on the rights owner. Congress foresaw this shift in culture and innovation even years ago, which is why they provided safe harbor for the service provider intermediaries in the first place.
Check this CNET video on the new additions to these evolutions of the PROTECT IP Act.