Copyright Stakeholders Prefer Voluntary IP Agreements, Call on Search Engines to Help Fight Piracy

Government encouragement can still play an important role, said Jill Lesser, executive director of the Center for Copyright Information (CCI), which operates CAS. She told us the government had played an important “bully pulpit” role in the development of the CAS, and that government encouragement could really push industry members to work together. Those partnerships can show industry members that there is more commonality than they think to achieve mutual goals, she added. She doesn’t support a government rubric with constant requirements for companies to check in, but oversight, including hearings like Wednesday’s, should continue, wrote Lesser in her testimony (http://1.usa.gov/16ab2Jp). CAS offers mitigation measures, to be delivered after multiple alerts, that would slow Internet speed or temporarily suspend a subscriber’s Internet access. The CAS is a collaboration among AT&T, Cablevision, Comcast, Time Warner Cable, Verizon and copyright holders (CD Feb 28 p7). Sherman said that though voluntary agreements were preferable to legislation, the government had a role to play in pushing reluctant industry members to come together. “Do not underestimate the value of government encouragement,” he said. “The role of encouragement can be very, very helpful."

But “entrenched interests who come together in carrying out these voluntary agreements could take actions that will stifle the emergence of other companies if there is not oversight,” said Gabriel Levitt, vice president of online pharmacy verification service PharmacyChecker.com. “There is an inherent risk when you deputize the private sector to take on a role” that could be the purview of regulatory or enforcement agencies, he said. He suggested an independent ombudsman who could oversee the agreements. “The ombudsman would analyze voluntary agreements to make sure private sector actions aren’t blocking Internet competition and are consistent with the Administration’s other goals of due process, free speech, and transparency,” he said (http://1.usa.gov/16nk0xi).

The flexibility of the voluntary agreement structure was the reason such opposing forces could work together on CAS, Lesser said. “But we only have six months under our belt, so next, part of the answer is that we have to wait and see.” CCI is working on a system to evaluate the impact of CAS. It will look internally at CAS to “evaluate the impact of this innovative partnership among content owners and ISPs,” including the impact on the behavior of those who receive alerts, Lesser said.

Search engines should also consider their own role in piracy, Sherman said, referencing a study released Wednesday by the MPAA that said Google and other search engines play a critical role in online piracy (http://bit.ly/16nevOW). It found that 74 percent of consumers surveyed cited using a search engine as a discovery or navigation tool in their initial viewing sessions on sites with infringing content. MPAA criticized Google, noting “the vast majority,” or 82 percent, of queries that led to the infringing content examined came from the search giant. “The study also found no evidence that the change Google made to its algorithm last year to take into account the number of copyright takedown notices a site has received had an impact on search referred traffic to infringing sites,” said MPAA in a news release.

"There can be no doubt that search engines play a considerable role in leading users to illicit services and can be a key part of addressing infringing activity online,” he said. “Unfortunately, while there has been some action and steps taken by search engines under the notice and takedown system of the DMCA, there has been little movement toward finding tools that have the impact of actually reducing theft and damage.” Search engines can be a “key partner” in the fight against piracy, he said.

RIAA sends “millions of notices, and [targeted files are] just going right back up again,” Sherman said. Google’s “attention” to the issue “is good, but it hasn’t been implemented well,” he said. Sherman called on Google to provide warnings about rogue sites the way it does about malware and phishing scams, and to promote good websites in search results or in autocomplete. “We ought to be able to sit down and work out more efficient means for us and for them and for the copyright community,” he said. Google had no comment.

Several other members of Congress weighed in on the study at a Wednesday news conference. “For years, I have been making the case that responsible players in the Internet ecosystem -- from payment processors to advertisers to ISPs -- have a responsibility and a self-interest to take voluntary, good faith steps against rampant online piracy,” said Rep. Adam Schiff, D-Calif. “This study shows that there is much more that search engines must do when it comes to pointing consumers towards legal outlets. Rep. Marsha Blackburn, R-Tenn., said everyone in the online ecosystem has a responsibility to protect creators from piracy. “The question search engines need to answer is this: Do they want to be the digital highways for legitimate information, entertainment and education, or do they want to be the get-away car for stolen content and mass exploitation of private property?” she asked.

CEA, of which Google is a member, criticized the study, saying in a statement Wednesday the MPAA was blaming the technology instead of providing customers with the experiences and products they want. “Search engines don’t ‘introduce’ consumers to infringing content -- most consumers simply want legal, conveniently accessed digital content at a reasonable price. Indeed, studies show that unauthorized downloading decreases as legal alternatives proliferate,” it said. It urged the content community to work with the technology industry on new solutions and distribution platforms.

The Interactive Advertising Bureau highlighted new guidelines that are “designed to establish trust between buyers and sellers in a complex and ever-changing digital advertising ecosystem,” said President Randall Rothenberg in testimony (http://1.usa.gov/16FuWtm). Those guidelines could include a certification for those websites that meet their requirements. He said those guidelines now include an option for lodging IP infringement complaints to the IAB, which would then direct the complaint to the relevant company. Sherman applauded the IAB’s work, but said he was disappointed that those guidelines don’t include IP infringement in their final considerations for certification.

But voluntary initiatives can also be “misused in anti-competitive ways which scare and thwart Americans from accessing affordable medication,” Levitt said. He urged Congress to consider the unintended consequences of voluntary initiatives, pointing to an Internet group, the Center for Safe Internet Pharmacies, that labels online pharmacies as safe or rogue. Its initiative, however, “misleads Americans,” based on arbitrary requirements about what makes a pharmacy rogue, she said.

A voluntary agreement for payment processors set up last year has been a “resounding success,” said Robert Barchiesi, president of the International AntiCounterfeiting Coalition. The program aims to diminish the ability of criminal counterfeiters to process online payments, decreasing their profitability, he said in written testimony (http://1.usa.gov/19g5Kr0). Program participants have referred nearly 7,500 websites for investigation, resulting in the termination of more than 2,100 counterfeiters’ merchant accounts, he said. The collaboration has also presented opportunities for providing training to banks on payment processing, and it has created a set of empirical data that “may be leveraged by both the public and private sectors to more effectively target their efforts in terms of traditional enforcement and to develop appropriate policy responses to such trafficking,” he said. “The success of the program proves that when rights-holders and others work side-by-side to ensure a safe and trusted marketplace, everyone wins.”