In part one of this series, we took a brief look at the two types of piracy that the movie studios, record labels, and other content providers are worried about. There are the “for profit” pirates who want to make money, and then there are the people who want to make some use of a copyrighted work. (Yes, there’s also a segment of people who want the content but just don’t want to pay for it. For now, we’re lumping them in with the for profit pirates.)
Although the “for profit” pirates are the greater threat to the entertainment industry, they are pushing for laws to allow them to go after people who have fair use rights as well. In the eyes of the MPAA and the RIAA, there is no difference between the two. The federal Immigration and Customs Enforcement agency (ICE) investigates pirates who try to get illicit goods into U.S. markets, and every once in a while we hear about some bust that yielded thousands of pirated copies of the latest Britney Spears CD or something like that. I’ve seen one case involving local law enforcement where a drug bust uncovered a DVD pirating operation as well. It wasn’t a large scale operation, but the people behind it made a little money off of it.
Law enforcement does a good job of investigating and taking down plenty of counterfeiting operations, and the entertainment industry is justifiably pleased by their efforts. What is worrisome, however, is that the industry wants to have a similarly heavy hand in the civil side of the world to go after what they perceive to be online, non-profit pirates.
Presently, federal law gives copyright owners a very effective tool to deal with people who misuse copyrighted content. The Digital Millennium Copyright Act allows a copyright owner to notify a web site operator of infringing content, and the operator is required to take the material down. The person who posted the material can then ask the web site operator to restore the content by explaining why the fair use doctrine applies. If the two sides do not agree that fair use applies, they have the courts where they can resolve the issue of fair use. The problem with this balanced approach is that the entertainment industry uses a chainsaw when a scalpel is all that is needed.
There are many reports about copyright owners issuing DMCA takedown notices for things they do not actually own. Ars Technica reported last November about Warner Brothers doing exactly this. December of last year saw the big “Megaupload” controversy explode, with Universal Music Group even issuing takedown notices against online news coverage of the issue.
Not content with this ability, the entertainment industry has been pushing for legislation that would allow them to require entire web sites to be taken down. The so-called Stop Online Piracy Act (in the U.S. House) and the PROTECT IP Act (in the U.S. Senate) are the gifts to the entertainment industry in recognition of their huge campaign contributions. Three law professors, writing in the Stanford Law Review (not exactly a fifth-tier publication) have concluded that these laws, if enacted, would be unconstitutional and “break the Internet.” Tech companies like Google and interest groups like the Electronic Frontier Foundation have worked hard to lobby against these bills, arguing that they will stifle innovation online.
The battle was expected to come to a crescendo right before Christmas, but legislative leaders decided to renew their fight to get the bills passed after the new year. The reasons to oppose these bills are the same, and I commend you to this article, Kill Switch, for a wonderful explanation and a call to action.