Fighting intensifies over how to enforce intellectual property laws

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Barack Obama may be the country’s most tech-friendly president ever, as comfortable discussing Net neutrality as Swiss neutrality. But his administration is caught in at least three pitched battles over intellectual property that could leave tech advocates wondering why they were so optimistic about his presidency.

One fight stems from the secretive negotiations over the Anti-Counterfeiting Trade Agreement, which began under President George W. Bush. Copyright holders have pressed for provisions that could force Internet Service Providers to do more to combat online piracy, such as cutting off broadband accounts that are used repeatedly for infringement. Such three-strikes provisions are anathema to tech advocacy groups, which also fear that the agreement would make it harder for them to bring some fair-use balance to the anticircumvention provisions of the Digital Millennium Copyright Act.

A second battle concerns the Federal Communications Commission’s proposed Net neutrality rules, which Obama’s former Harvard Law School chum (and now FCC Chairman) Julius Genachowski has championed. Copyright holders and performing artists are pressing the commission to drop a proposed requirement that ISPs not discriminate against any type of traffic. They argue that content providers should be able to strike deals with ISPs that would help distinguish the flow of legitimate movies and music online from bootlegs. But such groups as the Electronic Frontier Foundation and Public Knowledge have argued forcefully against turning Net neutrality rules into tools for copyright enforcement.

The newly minted White House Office of Intellectual Property Enforcement Coordinator triggered a third dust-up last month when it asked for public comments on its strategic plan for, well, intellectual property enforcement. Seven groups representing copyright owners and performers, including the RIAA, MPAA and the Screen Actors Guild, filed their wish list Wednesday (download your copy here), and it’s a doozy.

Among other things, the ‘creative community organizations’ urged that:

• The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online;
• Copyright holders be able to combat infringement by making a database of their works available to service providers, rather than submitting individual takedown notices. And once a work is taken down, service providers should be expected to employ ‘reasonable efforts’ to prohibit users from uploading or even linking to them again;
• Copyright owners be able to block unauthorized streams of live broadcasts without going through the formal notice-and-takedown process;
• The federal government press search engines, social networks, hosting companies, domain name registrars and online advertising and payment networks to cooperate with copyright holders on efforts to combat piracy (‘Encouraging these intermediaries to work with content owners on a voluntary basis to reduce infringements, and assuring these intermediaries that such cooperation will not be second-guessed, should be top priories that call for the personal intervention of senior government officials if necessary.’);
• A federal interagency task force work with industry to interdict prerelease bootlegs of Hollywood blockbusters and crack down on U.S. services that assist foreign piracy hotbeds;
• States adopt ‘labeling laws’ that ‘defined unauthorized online file sharing and streaming as a felony,’ giving state and local law enforcement jurisdiction to go after unauthorized copying online;
• States use consumer protection laws to go after file-sharing sites that ‘expose consumers to intrusion, viruses and revelation of personal data.’

Not surprisingly, a coalition of online civil liberties, consumer and library groups called for a much more restrained approach to enforcement. Rather than offering a strategy for enforcing existing law, they warn about the potential for unintended consequences -- the legitimate users and content that can get caught in overly aggressive antipiracy traps. They also expressed deep skepticism about technologies designed to prevent infringement online:

Commenters caution the IPEC that many technologies designed to limit copyright infringement online have negative unintended consequences. For example, network-based content filters cannot take fair use into account, and could have the effect of blocking “unauthorized” uses of content, rather than unlawful ones. Content filters can be stymied by infringers through the use of easily available encryption technologies, undermining their purpose while still limiting unencrypted lawful uses.

But just as the creative community organizations seemed to overstate the damage caused by piracy, the coalition seemed reluctant to acknowledge that piracy was even a problem. The numbers from monitoring companies such as Big Champagne make it clear that piracy has exploded online. The challenge for the administration is to figure out how to combat illegal copying without killing off viable distribution technologies or completely transferring the enforcement responsibility from copyright holders onto third parties. These are very tough questions, hotly disputed by copyright holders and some elements of the tech community. Wednesday’s filings suggest that it won’t be easy to find middle ground.

Updated, Friday 4:37 p.m.: AT&T’s press folks drew my attention to its comments to the White House about copyright enforcement, which are summarized nicely in this blog post. It makes an effective argument against an ISP-directed regime of ‘three strikes’ sanctions against repeat offenders. More interestingly, it suggests creating something like a small-claims court where run-of-the-mill copyright claims could be resolved -- preserving due process for the accused and cutting expenses for all concerned. IMHO, lower statutory penalties would be an important piece of such an effort. But read the filing and/or the post for yourself, they’re mercifully brief.

-- Jon Healey

Healey writes editorials for The Times’ Opinion Manufacturing Division. Follow him on Twitter: @jcahealey