July 26, 2011
The Next Approach to Online Piracy
Did you hear about the latest proposed effort to combat online media piracy? This comes via a proposal from the performing Rights Society (PRS) in the United Kingdom, or the UK's equivalent of ASCAP and BMI. The central proposition is to mark sites within search results with a red tick symbol if they are determined to contain unlicensed content. The standard for identifying an offending site is by scoring the number of ignored notice and take down requests. That process would be managed by a centralized, independent "authority body" that would identify all licensing defects rather than music, which would be the major focus for the PRS.
The implementation would come from cooperation from a search engine provider which would supply the red ticks to the affected site in the search results. Another possibility would be cooperation from virus protection software manufacturers. Many provide indicators such as a checkmark in a green circle placed next to search results that identify sites as safe for browsing. It is possible that a red tick next to a green circle means the site would be safe from malware but detrimental to one’s moral health, depending, I suppose, on one’s view of copyright morality. There is a possibility that something like this could be implemented via law in the United Kingdom through the Digital Economy Act.
PRS notes that the red tick scheme would be effective for 90% or so of Internet users. The other 10% are free to click on these sites at their peril, or at least that is the implication. As they say:
Traffic lights are part of an escalating set of sanctions to address problems online. It performs the critical role of establishing a distinction between good and bad in the minds of users, which we hope will be enough to deter 90% of users from accessing problem sites. This distinction is vital and provides the bedrock for an escalating series of measures to deal with the remaining determined offenders.
Those escalating series of measures are not spelled out but I trust they would inconvenience downloaders to the full extent the law allows. Europe is fond of three strikes, though we in the United States seem to prefer six.
Takedown notices, at least in the United States, require an action on the part of the receiver. The DMCA allows for counter-notices that allow the return of the disputed content, as such setting up potential litigation to determine the legal status of the subject content. The likelihood is that many sites would rather take down the content than fight an expensive court case. I am sure that rights holders are counting on that fact when they send takedown notices even where fair use is implicated. That is the problem from my perspective. The number of ignored takedown notices may be determined by an independent body, but sending a takedown notice (or multiples) is arbitrary as to its reasons. There is a lot of potential for abuse merely to achieve a red tick result. Whether or not any implementation will account for in any abusive practices remains to be seen.
This may be an English solution to the problem of Internet piracy, but one no doubt viewed by the RIAA, the MPAA, publishers or anyone else with U.S. copyright interests. They will likely push a receptive Congress for something similar in the United States. Count on it. [MG]